IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 OP.No. 5473 of 2001(B) ---------------------- PETITIONER: ----------------- P.BALAKRISHNAN, 'BHASKARA' CHANDRATHIL ROAD, EDAPPALLY, COCHIN 682 024. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: -------------------- 1. LABOUR COURT, ERNAKULAM. 2. BLUE STAR LTD, REPRESENTED BY ITS SENIOR ENGINEER, AC AND R PROJECTS DIVISION, MEENAKSHI MANDIRAM, M.G. ROAD, ERNAKULAM, COHCIN-682 106. ADV. SRI.A.V.XAVIER FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAMD DAY DELIVERED THE FOLLOWING: JUDGMENT When the matter was called, neither the petitioner nor the counsel is present. Dismissed for default. 16th June, 2009 Sd/- Harun-Ul-Rashid, Judge. ORDER ON CMP.NO.9133/2001 ------ DISMISSED 16/6/2009 Sd/- Harun-Ul-Rashid, Judge. True Copy P.S. to Judge. (CR) P.R. RAMACHANDRA MENON, J. .............................................................................. O.P. No. 5473 OF 2001 ......................................................................... Dated this the 24th August , 2011 J U D G M E N T Termination of service of the petitioner in 1992, on proven misconduct, upheld by the first respondent/Labour Court in Ext. P1 Award in I.D.No.191 of 1993, is the subject matter involved in this case. 2. Whether non-compliance of the statutory prescription under section 33(3) of the Industrial Disputes Act, (hereinafter referred to as the 'Act') without obtaining 'prior permission' of the Industrial Tribunal/Labour Court for awarding punishment in respect of a 'protected workman' during the pendency of any proceeding before the Industrial Tribunal/Labour Court will result in automatic reinstatement and whether the intimation given by the Trade Union, furnishing the list of 'protected workmen' to the Management will enable the concerned workman to be recognised as a 'protected workman ' by the Management, without any positive act of such declaration, are the 'legal questions' involved. Whether the petitioner workman is a 'protected workman' and whether 'typing work' was part of the duty attached to the post of ''Commercial Assistant'' held by the O.P. No. 5473 OF 2001 2 petitioner at the time of termination of service are the 'factual disputes'. 3. The petitioner joined service of the second respondent as a 'Typist - Clerk' in the year 1975. Later, he was provisionally promoted as 'Commercial Assistant' in the year 1982 and was confirmed in the said post. The case of the petitioner is that he was an office bearer of the Trade Union in the second respondent Company and was actively taking part in such activities. In connection with the service conditions of the employees, a charter of demands was submitted before the Management in 1988. But the negotiations failed and the rift between the Managements and the Union/workers got widened. The dispute raised on the said issue was finally referred for adjudication to the Industrial Tribunal, Alappuzha, where it was numbered as I.D. 201 of 1990 and was pending. 4. In the meanwhile, the second respondent transferred the petitioner to another Unit on 13.06.1989, also referring to the 'typing work' he had to perform while holding the post of 'Commercial Assistant' in the new Unit. The said order was accepted by the petitioner, who joined duty at the destination, O.P. No. 5473 OF 2001 3 as the transfer was not under challenge. However, nearly one month after the transfer, the Union representing the petitioner raised the 'dispute', stating that the job of 'typing' was not part of the duty attached to the post of 'Commercial Assistant' and hence that the petitioner was not liable to discharge the said function. It appears that the said course was pursued when the Management alerted the petitioner to carry out the instructions as to the typing works, which was not acceded to by the petitioner, who chose to contend that it was not part of his job and that he was never doing the same from 1982, on promotion as 'Commercial Assistant'. 5. In view of the insubordination and non-discharging of the duty in respect of the 'typing work', the Management observed that there was clear misconduct on the part of the worker, which accordingly was ordered to be enquired into. An advocate was appointed as Enquiry Officer. Witnesses were examined on either side and documents were produced, adducing evidence to sustain the rival stand. On conclusion of the enquiry, the Enquiry Officer arrived at a finding that the charges levelled against the delinquent employee were proved, O.P. No. 5473 OF 2001 4 based on which, the Management issued a show-cause notice, proposing the punishment of 'termination' from the service. The petitioner submitted a reply, mainly pointing out that the enquiry findings were wrong and perverse and that 'typing work' was not part of the duty of the 'Commercial Assistant' and he was not liable to do the same. Since the explanation was not satisfactory, the Management considered the matter and on arriving at a finding that the enquiry was conducted in accordance with law and the materials on record justified the finding and reasoning of the Enquiry Officer, the petitioner was served with the order dated 16.07.1992, putting an end to the service; of course, after obtaining approval of the Industrial Tribunal, Alappuzha for inflicting the punishment by filing a petition under Section 33(2)(b) of the I.D. Act, in view of an industrial dispute already pending there (as I.D.No.201/90). 6. Pursuant to reference of the dispute to the first respondent (Labour Court, Ernakulam), the petitioner was examined as W.W.1 and Exts.W1 to W5 were marked on the part of the Union. The Management adduced documentary evidence by way of Exts. M1 series ( 3 Nos.) pertaining to the enquiry O.P. No. 5473 OF 2001 5 proceedings, including the deposition of the witnesses, documents and report of the Enquiry Officer. The contentions raised from the part of the Union as mentioned hereinbefore were reiterated before the Labour Court, also pointing out that the termination itself was null and void, for want of 'prior approval' under section 33 (3) of the I.D. Act., the petitioner being a 'protected workman'. Violation of the principles of natural justice in conducting the enquiry, victimization and total lack of merits, as 'typing' was never part of the duty attached to the post of 'Commercial Assistant' as contended by the petitioner, were asserted before the Labour Court. The Management vehemently rebutted the same, referring to the relevant facts and figures, as discernible from the materials on record. After analysing the data/evidence on record, the Labour Court arrived at a finding that that enquiry was conducted adhering to the principles of natural justice and that the finding and reasoning were well based on the pleading and evidence and hence not perverse. The action on the part of the Management in discharging the petitioner from service was upheld. The proportionality of the punishment was also considered and answered in favour of the O.P. No. 5473 OF 2001 6 Management, which in turn is under challenge in this Original Petition. 7. Mr.P.Ramakrishnan, the learned Counsel appearing on behalf of the petitioner submitted that the petitioner was constrained to approach this Court directly, as the Trade Union who represented him earlier had become defunct . The sequence of events as to the factual aspects and as to the consequence of non-filing of any application for obtaining 'prior sanction' under Section 33(3) of the I.D. Act were highlighted, also placing reliance on the decision rendered by the Gujarat High Court reported in 1978 (1) LLJ 432 ( R. Balasubramanian vs. Carborandum Universal Ltd.). The learned Counsel also pointed out that the Union furnished a list of 'protected workmen' to the Management on 27.03.1992 and that the Management sought for some clarification on 05.05.1992, which was supplied on 08.05.1992 and it was thereafter, that the petitioner was sent out from the service on 16.07.1992 without getting any 'prior approval' under Section 33(3) of th I.D. Act. The learned Counsel submitted further, that by virtue of the relevant rules (Rule 61 of the Central Rules and Rule 62 of the Kerala Rules), O.P. No. 5473 OF 2001 7 the Management had to act upon the list of 'protected workmen' furnished by the Union within 15 days and since it was not done, the petitioner had obtained deemed status of a 'protected workman' and hence no punishment could have been imposed without getting 'prior approval' of the Industrial Tribunal, Alappuzha, where an industrial dispute was already pending; more so in view of the law laid down by the Gujarat High Court, cited supra. 8. Mr. A.V.Xavier, the learned Counsel for the respondents submits that the idea and understanding of the petitioner as to the scope of Section 33 (3) of the I.D. Act is quite wrong and misconceived. It is stated that the case of the petitioner is not correct with reference to the facts as well, that the Management had not recognised the petitioner as a 'protected workman'; that no material was produced either before the Labour Court or even before this Court to arrive at any such inference; that the Enquiry Report was submitted on 11.02.1992 and show-cause notice was issued proposing punishment on 27.04.1992, i.e. before seeking for clarification on the list of 'protected workmen' submitted by the Union and further that the attempt of the O.P. No. 5473 OF 2001 8 petitioner/Union was only to overreach the consequences in view of the outcome of the Enquiry and the adamant stand taken by the worker that he will not perform the 'typing' works. The learned Counsel also submits that the factual position as available in Balasubramanian's case (cited supra) is entirely different and not applicable to the case in hand. It is also stated that since the Management had not recognised the petitioner as a 'protected workman' and in view of pendency of the dispute before imposing the order of punishment, approval of the Industrial Tribunal, Alappuzha was sought for by filing a petition under Section 33 (2)(b)of the I.D. Act. Even though the petitioner had filed objection to the same, by the time the matter was considered, termination of service of the petitioner had already been referred for adjudication. In the said circumstance, the petitioner filed a 'memo' clearly conceding that approval could be given, without prejudice to the right of the petitioner to pursue the dispute on termination. It was accordingly, that the approval was granted. The Management had already paid one month's wages, as contemplated under Section 33(2)(b), and the same was accepted by the petitioner (which otherwise is not O.P. No. 5473 OF 2001 9 payable in the case of normal termination from service). This being the position, the petitioner cannot take a 'U' turn contending that termination was bad for want of 'prior approval' under Section 33. It is also stated that, even if there was infringement of any statutory prescription as aforesaid, it will not result in automatic reinstatement in view of the law clearly laid down by the Apex Court as per the decision in AIR 1978 SC 995 (Punjab Beverages Pvt.Ltd. vs. Sureshchand & Another) . The learned counsel further submits that the petitioner has already attained the age of superannuation( which earlier was '58', and subsequently was enhanced to '60') and as such, there cannot be any reinstatement, as sought for. 9. To answer the various points raised, particularly on the legal issues, it is necessary to examine the term 'protected workman' and the rights and liabilities on declaration/recognition as a 'protected workman'. The term 'protected workman' is defined in the 'Explanation' to Section 33 (3) (b) of the I.D. Act, which is extracted below: “Explanation: For the purpose of this sub- O.P. No. 5473 OF 2001 10 section, a “protected workman” in relation to an establishment, means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment is recognised as such in accordance with rules made in this behalf. ” 10. Rule 61 of the Central Rules stipulates the course and events to be pursued with regard to the rights and liberties of a 'protected workman'. As provided under sub rule (1) of the said Rule, every registered trade Union shall communicate to the employer before the 30th April every year, the names and address of such of the officers of the Union, who are employed in that establishment and who, in the opinion of the Union, should be recognised as “protected workmen”. Sub-rule (2) says that the employer shall recognise such workmen to be “protected workmen” and communicate to the Union, in writing (within 15 days of the receipt of names and addresses under sub-rule (1)) and the said list of workmen recognised as 'protected workman', shall be in force for a period of 12 months from the date of such communication. As per the Rule, the maximum number of O.P. No. 5473 OF 2001 11 workers to be recognised by the Management is only '5', to be distributed among all the Registered Trade Unions. Sub-rule (4) of Rule 61 is more relevant in the given context, which stipulates that, when a dispute arises between an Employer and any Registered Trade Union, in any matter connected with the recognition of “'protected workman'” under the said Rule, the dispute shall be referred to the Regional Labour Commissioner (Central) or Assistant Labour Commissioner (Central) concerned, whose decision thereon shall be final. 11. The State of Kerala has formulated Rules. synonymous with the Central Rules. Rule 62 is almost similarly worded like Rule 61 of the Central Rules and the only difference is with regard to the Conciliation Officer, to whom the dispute, if any, is to be referred to, as given in sub rule (4). 12. The crux of the contentions raised by the petitioner is that, the Union having submitted the list of 'protected workman' including the petitioner on 27.03.1992, also furnishing the clarification on 08.05.1992 in response to the notice issued by the Management on 05.05.1992, the petitioner was to be treated as a 'protected workman' on expiry of 15 days, O.P. No. 5473 OF 2001 12 particularly in the light of the law declared by the Gujarat High Court in 1978(1) LLJ 432 ( K. Balasubramanian and others vs. Carborandum Universal Ltd., Okha). 13. On going through the rule position, as discussed herein before, it is seen that, on submitting the list of office bearers by the Trade Union to be recognised as “'protected workmen'”, the Employer has to recognise the concerned workmen to the extent as prescribed, as 'protected workmen' and shall communicate the list of such recognised workmen to the Registered Trade Union in writing within 15 days. This shows that the mere submission of a list of ''protected workmen'' by the Trade Union is not enough and a conscious act (to be pursued by the Employer giving effect to the concerned workmen as 'protected workmen'), is specifically contemplated under the statute; followed by communication to be given by the Employer, in writing. In other words, the tenure of such 'protected workmen' is for a period of 12 months from the date of communication of the list of recognised workmen by the Employer. This shows that it is not an automatic process as contended by the petitioner. 14. It is also relevant to note that the statute itself takes O.P. No. 5473 OF 2001 13 care of the situation, where no action is taken by the Employer to recognise the 'protected workmen' within 15 days from the date of submission of the list by the registered Trade Union. This is provided under sub rule (4) of Rule 62 of the Kerala Rules ( sub rule (4) of Rule 61 of the Central Rules), which reads as follows: “(4) When a dispute arises between an employer and any registered trade union whether a particular workmen should be recognised as a 'protected workmen' or not the dispute shall be referred to the Conciliation Officer concerned whose decision thereon shall be final”. From the above, it is obvious that in case of dispute, either by inaction on the part of the Employer or on refusing to recognise the workers named by the Union as ''protected workmen'', the remedy of the Union is to approach the concerned Conciliation Officer, who is to consider the position and pass an order, which is to be final and binding. Admittedly, no such course has been pursued by the Union representing the petitioner in this case. 15. Coming to the reliance sought to be placed in Balasubramanian's case (cited supra), it is to noted that, it was a case where the list of 'protected workmen' given by the O.P. No. 5473 OF 2001 14 registered Trade Union was accepted and recognised by the Employer for the previous year. In the concerned/subsequent year, the change was only with regard to one name among the total 5 persons to be recognised as 'protected workmen' of the sole Registered Trade Union. But since the Management did not recognise them as 'protected workmen' within the prescribed time, dispute was raised by the Union before the Conciliation Officer who passed an order recognising the workmen as 'protected workmen'. But the Management dismissed the concerned workers as per the order passed in the morning, on the same day. The action was sought to be justified by the Management contending that, at the time of dismissal, the workers were not recognised as 'protected workmen'. The said contention was repelled by the Division Bench of the Gujarat High Court, referring to the sequence of events. This, however does not apply to the case in hand, as no communication in writing has been given by the second respondent/Management recognising the petitioner as a 'protected workman' and further that, no dispute under sub rule (4) of Rule 6 has ever been raised or got adjudicated by the Union in this regard, before passing the O.P. No. 5473 OF 2001 15 order of discharge from the service on 16.07.1992. 16. Incidentally, it has to be noted that the second respondent, by virtue of the pendency of I.D.No. 201/90 before the Industrial Tribunal, Alappuzha as to the charter of demands submitted by the Union, had filed a petition for approval under Section 33(2) (b) of the I.D.Act in respect of the punishment of termination from service imposed on the petitioner. Though the petitioner filed a statement of objections, a 'memo' was filed later, conceding to grant approval without prejudice to his right to raise the contentions with regard to the challenge against the punishment, in the dispute already referred for adjudication by that time. It was accordingly, that an order was passed by the Tribunal on 16.12.1993, granting the approval as agreed, a copy of which was placed before this Court for perusal, during the course of hearing. The operative portion as contained in paragraph '2' of the said order is extracted below: “The opposite party entered appearance and filed objection statement. Then after the matter was posted at several times for evidence of the parties, on 02.12.1993 when this petition was called a memo was filed by O.P. No. 5473 OF 2001 16 the opposite party stating the issue of dismissal against him had already been referred for adjudication to the Labour Court, Ernakulam. In view of that, approval sought by the applicant might be granted without prejudice to his right to raise the contentions against dismissal in the industrial dispute now pending before the Labour Court. The content of the memo is recorded. 17. The question to be considered is whether the petitioner is now justified in pressing the contention with regard to the absence of 'prior approval' under section 33 (3) of the I.D.Act, even if he were a 'protected workman'. The 1st respondent/Labour Court has considered the matter and has clearly observed that the petitioner/Union had no case in the objection filed in response to the application filed under Section 33(2) (b), as to any lapse on the part of the Employer with respect to Section 33(3). To put it more clear, there was no challenge from the part of the petitioner/Union as to the validity of the proceedings, with reference to 'prior approval' under section 33(3). The petition for approval under Section 33(2) (b) O.P. No. 5473 OF 2001 17 was allowed by the Industrial Tribunal on 16.12.1993 as conceded by the petitioner/Union, who filed a 'memo' to have it allowed without prejudice to the contentions against the punishment, raised in the Industrial Dispute referred to the Labour Court and pending there. This Court finds that the finding and reasoning given by the Labour Court in this regard are perfectly within the four walls of law. 18. Even otherwise, violation, if any, to comply with the requirements under Section 33(2) (b) or 33(3) will not make the punishment imposed 'void ab initio', so as to enable the workman to claim the wages or such other benefits. This has been considered by the Apex Court as per the decision reported in AIR 1978 SC 995 (Punjab Beverages Pvt.Ltd. vs. Sureshchand & Another) holding that, contravention of Sec. 33 does not render an order of discharge or dismissal as void or inoperative . The Apex Court has observed that the only remedy available to the workman for challenging the order of discharge or dismissal is, as provided under section 33A, apart the course provided under Section 10 and that he cannot maintain an application under section 33 C (2) for determination and payment O.P. No. 5473 OF 2001 18 of wages on the basis that he continued to be in service. It was made clear that the workman can proceed under section 33C(2), only if the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10, that the order of discharge or dismissal passed by the Employer is not justified and has set aside the order, reinstating the workman. 19. The remaining issue is only with regard to the factual dispute, as to whether there is any merit in the contention of the petitioner that the 'typing work' was not part of the duty attached to the post of 'Commercial Assistant' held by the petitioner at the time of discharge and whether the petitioner has suffered any 'prejudice' for not considering the validity of the enquiry as a preliminary issue, but for considering the same only while passing the final Award (when there is a contention for the petitioner that he could not effectively substantiate the adequacy of the punishment and the scope of Section 11A of the Act). 20. Admittedly, the original appointment of the petitioner was as 'Typist cum Clerk' in 1975 and thereafter, he was promoted as 'Commercial Assistant', subject to some terms and conditions. Copies of the original appointment order dated O.P. No. 5473 OF 2001 19 07.05.1975, the order dated 10.05.1982 granting provisional promotion and also the order dated 15.02.1983 confirming the petitioner in the post of 'Commercial Assistant' were placed for consideration of this Court during the course of hearing. 21. The learned Counsel for the petitioner submitted that 'typing work' was not specifically included in the 'promotion order' given to the petitioner and as such, he was not liable to do the said work. It was also stated that, witnesses examined from the part of the worker before the Labour Court, had deposed that the petitioner was not doing any typing work after his promotion in 1982 and that the concerned witnesses were doing the said work, as given by the petitioner. It was stated that the evidence on record was not correctly looked into or properly analysed by the Labour Court while passing Ext.P1 Award. It was further pointed out that the promotion order of the petitioner was never produced before the Labour Court and the case of the Management/Employer was sought to be substantiated (to show that the typing work was also part of the work of the 'Commercial Assistant') with reference to the promotion order stated as given to some other officer, which O.P. No. 5473 OF 2001 20 hence is not liable to be