IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19-12-2008 CORAM THE HONOURABLE MR.S.J.MUKHOPADHAYA, ACTING CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT APPEAL No.961 OF 2008 A.Manokaran ...Appellant -vs- 1. The Management of Futura Polyesters Ltd., (formerly known as Indian Organic Chemicals Ltd.), Manali, Chennai-600 068, 2. The Presiding Officer, I Addl.Labour Court, Chennai-600 104. ...Respondents Appeal under Clause 15 of the Letters Patent against the order of this Court dated 25.07.2008 and made in W.P.No.23446/2007 this Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records relating to the award dated 10.05.2007, passed in complaint No.1/07, on the file of I Additional Labour Court, Chennai, the 1st respondent herein and quash the same. For Appellant : Mr.A.Manokaran, Party-in-person. For Respondent 1 : Mr.A.L.Somayaji, Senior Counsel, for M/s.J.James. J U D G M E N T V.DHANAPALAN,J. This Writ Appeal is directed against the order, dated 25.07.2008, passed in W.P.No.23446 of 2007, whereby a learned single Judge of this Court set aside the award of the second https://hcservices.ecourts.gov.in/hcservices/ respondent Labour Court, ordering reinstatement of the appellant with back wages, continuity of service and all other attendant benefits. 2. Appellant was employed as a Plant Operator in the first respondent's manufacturing unit on 14.07.1989. He remained absent from 09.02.2004 for psychosomanic illness. When he reported for duty on 21.02.2004, the first respondent advised him to appear before the Medical Board to ascertain his fitness for duty. Since the appellant refused to appear before the Medical Board, the first respondent, by an order, dated 08.09.2004, discharged him from service with retrospective effect on the ground that he was unfit for work. 3. Pursuant to the order of termination, dated 08.09.2004, the appellant approached the second respondent by way of a complaint under Section 33-A of the Industrial Disputes Act (in short, "the Act"), which was taken on file as I.D.No.465 of 2004. After the said dispute was entertained by the second respondent, the appellant filed an application vide I.A.No.73 of 2006 in the said dispute, alleging that what was filed by him was a complaint under Section 33-A and therefore his claim made earlier should be treated as a complaint and dealt with under Section 33-A of the Act. The second respondent Labour Court accepted the stand of the appellant and treated the petition, which was earlier numbered as I.D.No.465 of 2004, as a complaint under Section 33-A and numbered as Complaint No.1 of 2007. 4. The said order of the Labour Court was challenged by the first respondent in W.P.No.22221 of 2006, which was dismissed, holding that the conversion of the dispute as a complaint under Section 33-A did not take away the right of the first respondent to contest the same under the provisions of the Act. Subsequently, the first respondent challenged the said order of the learned single Judge in W.A.No.1324 of 2006, which order was confirmed by a Division Bench. A Special Leave Petition preferred by the first respondent was also dismissed at the admission stage. 5. The second respondent Labour Court dealt with the complaint on merits and passed an award, dated 10.05.2007, directing the first respondent to reinstate the appellant in service with back wages, continuity of service and all other attendant benefits, holding that the order of termination, dated 08.09.2004, was passed in violation of the provisions of Section 33 of the Act; the first respondent failed to hold an enquiry before passing the order of discharge; the first respondent also did not ask for any opportunity to let in any evidence to support the order of discharge; the first respondent failed to prove the medical unfitness of the appellant and, hence, the order of termination was invalid. The said award of the Labour Court was challenged before https://hcservices.ecourts.gov.in/hcservices/ the learned single Judge in the present impugned W.P.No.23446 of 2007, whereupon the award was set aside, remitting the matter back to the second respondent Labour Court for a de novo enquiry, permitting the parties to let in evidence with regard to non- employment of the appellant. Hence, this Writ Appeal, at the instance of the workman. 6. Mr.A.Manokaran, party in-person, would contend that since the order of termination, dated 08.09.2004, passed by the first respondent was in violation of Section 33 (2) (b) of the Act and the said order being a nullity, the second respondent Labour Court was justified in declining the request of the first respondent to go into the merits of the order of dismissal. He would also contend that since the maintainability of the complaint under Section 33-A was dealt with by this Court in the earlier writ petition and the writ appeal, it was no longer open to the first respondent to canvass the same in the writ petition. He further argued that the allegation of medical unfitness was not established by the first respondent before the second respondent and that the medical unfitness, as declared by the Company's Medical Officer, cannot be accepted, as he was not competent to issue such a certificate. 7. Per contra, Mr.A.L.Somayaji, learned Senior Counsel for the first respondent, would vehemently contend that the complaint preferred by the appellant under Section 33-A of the Act was not maintainable; since the conciliation failure report was received by the first respondent and the appellant on 02.09.2004 and the order of termination came to be passed on 08.09.2004, there was no violation of Section 33, as alleged by the appellant; the Labour Court, having disallowed the first respondent to cross examine the appellant on merits, who was examined as WW1, was not justified in holding that the first respondent failed to establish the merits of the allegations based on which the order of termination, dated 08.09.2004, came to be passed. 8. The learned Senior Counsel would further contend that the second respondent Labour Court failed to consider the opinion of the company's Medical Officers, based on whose certificate, the order of termination came to be passed and that the second respondent Labour Court thwarted the first respondent to cross examine the appellant on merits and thereby committed serious irregularity while passing the award impugned. 9. We have heard the appellant and the learned Senior Counsel for the first respondent and also gone through the records. 10. At the outset, it is to be stated that prior to the passing of the order of termination dated 08.09.2004, the appellant approached the Conciliation Officer viz., the Assistant https://hcservices.ecourts.gov.in/hcservices/ Commissioner (Conciliation-II) Kurulagam, by filing an application on 27.04.2004, alleging non-employment on and after 21.02.2004. The said application was filed under Section 2-A of the Act and the same was opposed by the first respondent, contending that there was no termination as alleged by the appellant and that he continued to remain in service and, therefore, the dispute, raised under Section 2-A, was not maintainable. The Conciliation Officer submitted his failure report dated 24.08.2004, which was received by the first respondent and the appellant on 02.09.2004. 11. Under the circumstances, the appellant preferred the complaint under Section 33-A before the second respondent Labour Court, alleging that there was violation of Section 33 and for a direction for his reinstatement with all back wages and continuity of service. According to the appellant, though the conciliation failure report, dated 24.08.2004, was received by both the parties on 02.09.2004, unless the said report had actually been received by the Government, the dispute was deemed to have been pending on the file of the Conciliation Officer and, therefore, the dismissal order passed on 08.09.2004, prior to the date of such receipt of the Report by the Government, was in violation of the provisions of the Act. 12. In this connection, a reference to Sections 2A, 12, 20, 33 and 33-A is necessary. While under Section 2-A even the individual dispute relating to non-employment of the workman should be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute, by inserting sub-section (2) by way of State Government amendment, a provision has been made to enable the individual workman to approach the Labour Court for adjudication of the issue of non- employment, if no settlement is arrived at in the course of conciliation proceedings. 13. Section 12 prescribes the duties of the Conciliation Officers. Under sub-section 4 of Section 12, if no settlement is arrived at in an industrial dispute raised before him, the Conciliation Officer should send a full report to the appropriate Government, setting forth the steps taken by him for resolving the dispute and the reasons on account of which, in his opinion, the settlement could not be arrived at. 14. Under Section 20, it is specifically provided that the conciliation proceedings should be deemed to have commenced on the date on which a notice of strike or lock-out under Section 22 is received by the Conciliation Officer and such conciliation proceedings should be deemed to have concluded either on account of a settlement reached between the parties or in its absence the failure report of the Conciliation Officer is received by the appropriate Government or when a reference is made with reference https://hcservices.ecourts.gov.in/hcservices/ to the said dispute to a Court under Section 10 of the Act, even during the pendency of the conciliation proceedings. 15. After the introduction of Section 2-A in the present form as set out in the Act, it can no longer be said that any dispute covered under the said provision should still be equated to the density of a dispute governed by Section 2 (k) read along with Section 10 and the consequential procedure applicable to such a dispute. Inasmuch as the legislature has though it fit to enable the workman concerned to seek for a remedy in case of non- employment either at the conciliation level or for getting it adjudicated by approaching the Labour Court without much effort, it will have to be held that such a dispute falling under Section 2-A has to be treated differently than the one covered by Section 2(k) and the consequential procedure set down in dealing with such dispute. 16. When an individual workman raises an industrial dispute by invoking Section 2-A, in the event of failure of such dispute before the Conciliation Officer, what all required is that as soon as the intimation is received from the Conciliation Officer of the failure report of such conciliation, he will have to straightaway move the appropriate Labour Court within whose jurisdiction the said dispute falls by filing an application and, thereafter, the Labour Court concerned will deal with the said dispute and adjudicate the same as per the procedure prescribed under the Act. 17. When such a dispute is raised by the workman by invoking Section 2-A of the Act and even after the receipt of intimation about the failure of the said dispute by the Conciliation Officer and communicated by the said officer in the manner prescribed, it can still be held that the conciliation proceeding continue to remain pending unlike a dispute raised under Section 2 (k) of the Act, wherein after the failure of conciliation, the report, as prescribed under Section 12 (4), has to be forwarded to the Government and the appropriate Government will have to examine the scope of making a reference of the said dispute as contemplated under Section 10. Therefore, the situation as between the dispute raised under Section 2-A and the one raised under Section 2(k) is entirely different in its composition. 18. A dispute under Section 2(k) would cover all sorts of disputes by nature of the definition contained in the said provision whereas under Section 2-A, the dispute is restricted to an individual workman and that too in relation to his non- employment alone. While under Section 2(k) a reference is made by a specific order passed by the State Government, in respect of a dispute raised under Section 2-A by virtue of Tamil Nadu Act 5 of 1988 by invoking Section 2-A(2) immediately after the receipt of https://hcservices.ecourts.gov.in/hcservices/ the failure report, the workman concerned can straightaway approach the Labour Court along with a copy of the intimation received from the Conciliation Officer. Keeping the nuances relating to the disputes falling under Section 2(k) and Section 2-A in mind, the restrictions imposed under Section 33 along with the other provisions are to be examined. 19. Under Section 33, the restrictions are three fold. While under sub-section (1) permission is required to be obtained from the Authority before whom the proceeding is pending, under sub-section (2) approval of the said Authority has to be obtained. Under sub-section (3), in respect of protected workman, prior permission will have to be obtained from the very same Authority. One common requirement prescribed in all the three sub-sections of Section 33 is that either the permission or the approval will have to be obtained from the Authority before whom either the conciliation proceedings or dispute is pending consideration. One other special feature of Section 33 is that it contemplates the maintenance of either conditions of service in relation to the workman concerned to remain unaltered or the termination of employment of any of the workman concerned in the dispute, during the pendency of the conciliation proceedings or the industrial dispute, as the case may be, depending upon the order to be passed by the authority concerned. 20. The complexity and nature of consequences arising out of an industrial dispute under Section 2 (k) is far different from the industrial dispute falling under Section 2-A. In the case on hand, the dispute originally raised by the appellant was with reference to his alleged non-employment from 21.02.2004. When he raised the said dispute on 27.04.2004, the appellant was very much in the service of the first respondent. The said fact was brought to the notice of the Conciliation Officer in the reply filed by the first respondent on 21.07.2004. Therefore, there was no dispute at all, much less a dispute of non-employment of the appellant. 21. As the legislature has carved out that the dispute relating to non-employment of the individual workman be governed by Section 2(A) by prescribing a more easy procedure and the State Government having further liberalised the said procedure to enable the workman to straightaway approach the concerned Labour Court on receipt of the intimation from the Conciliation Authority, it is imperative to examine the scope of initiation and conclusion of the said proceeding. 22. The individual dispute of non-employment concerns single workman alone, where the broader principle set out in relation to an industrial dispute falling under Section 2(k) need not necessarily be applied and thereby making the procedure more https://hcservices.ecourts.gov.in/hcservices/ cumbersome as that will not be in the interest of the workmen concerned in the dispute relating to his non-employment. The intention of the legislature can be easily visualised to the extent that such a dispute of non-employment of individual workman will have to be conciliated upon quickly and, in the event of its failure, to be adjudicated upon at the earliest possible time. When that be so, the prescription contained in Section 20 (2) to the effect that conciliation proceeding can be said to conclude only on the date of receipt of a failure report by the appropriate Government will have to be restricted to in respect of the dispute governed by Section 2 (k) and the same need be extended to a dispute covered by Section 2-A. In other words, while the violation of Section 33 will get attracted in respect of an industrial dispute whether it be raised under Section 2 (k) or under Section 2-A, the stringent prescription of receipt of conciliation proceedings by the State Government, as stipulated under Section 20 (2), can be applied in all fours in respect of a substantive industrial dispute covered by Section 2 (k), but the same will not be the case in respect of a dispute covered by Section 2-A. By creating an easy procedure for raising an industrial dispute under Section 2-A and also seeking for adjudication of the said dispute by invoking Section 2-A (2), the legislature mainly intended to ensure that an individual dispute relating to non-employment should not drag on for an indefinite period and that it should reach its conclusion at the earliest point of time. 23. The fact remains that when the appellant raised the dispute under Section 2-A (2), he was in the services of the first respondent and the failure report was admittedly received by both the parties on 02.09.2004. The termination order came to be passed only on 08.09.2004, which was received by him on 09.09.2004. After the receipt of the conciliation failure report dated 24.08.2004 and later after the termination order dated 08.09.2004, the appellant filed a complaint before the second respondent Labour Court under Section 33-A on 27.09.2004. Even assuming that such a complaint filed on the file of the second respondent could be entertained, in view of our holding that the receipt of the failure report resulted in conclusion of the conciliation proceeding, there was no scope for invoking Section 33-A, at the instance of the appellant. We, therefore, hold that there was no violation of Section 33 at all by the first respondent to give way for the appellant to prefer a complaint under Section 33-A. 24. The next question for consideration is, whether the complaint under Section 33-A, as preferred by the appellant, was maintainable before the second respondent Labour Court. 25. In this context, it is necessary to refer to the earlier order of the Labour Court passed in I.A.No.73 of 2006 in I.D.No.465 of 2004; the subsequent order of the learned Single https://hcservices.ecourts.gov.in/hcservices/ Judge of this Court in W.P.No.22221 of 2006 dated 10.10.2006; the Division Bench Judgment dated 22.12.2006 in W.A.No.1324 of 2006 and the order of the Supreme Court, dated 25.01.2007, in S.L.P. (Civil) No.662 of 2007. 26. When the appellant preferred his complaint under Section 33-A, the same came to be entertained by the Labour Court as an industrial dispute and the proceeding was numbered as I.D.No.465 of 2004. In the said petition dated 27.09.2004, the appellant though stated that he preferred the said proceeding under Section 33-A, in the cause title portion, it was mentioned as an industrial dispute. Misled by the nomenclature given by the appellant, the office of the second respondent numbered the said proceeding as an industrial dispute by registering it as I.D.No.465 of 2004. On 11.03.2006, the appellant filed I.A.No.73 of 2006, pointing out that what was preferred by him was a complaint under Section 33-A and not an industrial dispute. A counter statement was filed on behalf of the first respondent opposing the said application inter alia contending that Section 33-A complaint could not have been preferred before the second respondent Labour Court and, therefore, what was preferred was only a dispute falling under Section 2-A(2). By an order dated 23.06.2006, the second respondent Labour Court held that the claim made by the appellant would have to be entertained as a complaint under Section 33-A and disposed of as such by examining whether there was any violation of Section 33. The Labour Court went on to state that the appellant would be at liberty to file an industrial dispute under Section 2-A (2), based on the failure report of the Assistant Commissioner of Labour, dated 24.08.2004, if he so desired. 27. The writ petition preferred by the first respondent in W.P.No.22221 of 2006 as against the order of the second respondent dated 23.06.2006 was also dismissed by a learned Single Judge, holding that by the conversion of the dispute as a complaint, the right of the first respondent, available under the provisions of the Act, was not taken away. In fact, the only issue involved in the writ petition was the correctness of the order of conversion of the industrial dispute as a complaint under Section 33-A. The question whether there was any violation of Section 33 and the sustainability of the alleged violation was not required to be considered at that stage. Therefore, the learned single Judge only confirmed that the Labour Court was fully justified in converting the industrial dispute as a complaint under Section 33- A. When the first respondent challenged the order of the learned single Judge in W.A.No.1324 of 2006, the Division Bench also confirmed the order of the learned single Judge. The Special Leave Petition preferred by the first respondent also ended in failure, as the same was dismissed by the Supreme Court on 25.01.2007. https://hcservices.ecourts.gov.in/hcservices/ 28. The said orders, in our considered opinion, have not concluded the issue as regards the sustainability of the complaint before the second respondent inasmuch as both the learned single Judge as well as the Division Bench have ultimately held that whatever stated by the Labour Court was only for the purpose of disposal of I.A.No.73 of 2006, which was only for converting the industrial dispute into a complaint under Section 33-A. After the conversion was thus allowed by the Labour Court and also confirmed by this Court as well as the Supreme Court, the real issue, which related to the maintainability and the sustainability of the complaint, had to be necessarily examined by the second respondent Labour Court. 29. If we examine the alleged violation of Section 33 as a complaint by the appellant, it will have to be held, that, in order to invoke Section 33-A, the basic requirement is, it should be launched only before the authority at whom the so called proceedings are pending, during which, the alleged violation of Section 33 has taken place. The very opening words of Section 33-A are to the effect that "Where an employer contravenes the provisions of Section 33 during the pendency of the proceedings before a Board, Conciliation Officer, etc., any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner to such Conciliation Officer or such other Authority and that such complaint should be taken into account by the concerned Conciliation Officer in mediating and promoting the settlement of such industrial dispute." Therefore, it has to be examined as to whether the complaint preferred by the appellant before the second respondent Labour Court can be strictly held to be a proceeding maintainable under Section 33-A, inasmuch as no proceeding, by way of an industrial dispute, was pending before the second respondent Labour Court. For a complaint under Section 33-A to be maintained before the second respondent Labour Court, there should have been a dispute pending before it, connected with the issue relating to the appellant himself vis-a-vis the first respondent. 30. Going by the specific provisions contained in Section 33-A, it is difficult to accept that in respect of a complaint, which was preferred before the Assistant Commissioner of Labour, a violation can be complained of by way of an application under Section 33-A. Such a procedure adopted by the appellant was wholly impermissible in law while applying the provisions contained in Section 33-A vis-a-vis the violation complained of under Section 33. Therefore, at the very threshold, it has to be held that a complaint preferred under Section 33-A before the second respondent Labour Court, in the absence of any dispute pending before it concerning the appellant, was not maintainable at all. The basic and fundamental principle for application of Section 33-A has been completely omitted to be considered by the second respondent https://hcservices.ecourts.gov.in/hcservices/ Labour Court while passing the order, which was impugned in the Writ Petition. As such, we are of the opinion that the complaint, preferred by the appellant under Section 33-A before the second respondent Labour Court, was not maintainable. 31. It is also seen from the cross examination of WW1 viz., the appellant that the first respondent was prevented from putting any question to the appellant as regards the merits of non- employment. Once the complaint was entertained and dealt with by the second respondent