IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.09.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.28019 of 2007,7323 of 2009, M.P.Nos.1 of 2007 and 1 of 2009 The Management of Sakthi Auto Ancillary Private Ltd., Idigarai Road, N.G.G.O Colony, Coimbatore - 641 022. ... Petitioner in both WPs v. 1.The Presiding Officer, Labour Court, Coimbatore. ...1st respondent in both Wps 2.M.Kumarraj 3.P.Ponnusamy 4.P.Vijayakumar 5.K.Gopal 6.M.Murugan 7.C.Senthilkumar 8.V.Kanagaraj ...Respondents 2 to 8 in W.P.No.28019/2007 9.C.Senthil Kumar 10.K.Gopal 11.V.Kanagaraj 12.P.Vijayakumar 13.M.Murugan 14.P.Ponnusamy ...Respondents 2 to 7 in W.P.No.7323/2009 Writ petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records from the file of the first respondent herein in the C.P.Nos.56, 58, 60, 61, 62, 64 and 66 of 2004, C.P.Nos.207, 208, 209, 211, 212 and 213 of 2007, and to quash its common award dated 27.03.2007 and 30.12.2008 respectively. For Petitioner :: Mr.S.Jayaraman in both WPs For Respondents :: Mr.Sunil Kumar for R2 to R8 in W.P.No.28019/2007 https://hcservices.ecourts.gov.in/hcservices/ Mr.G.B.Saravanabhavan for R2 to R7 in W.P.No.7323 of 2009 C O M M O N O R D E R The petitioner in both the Writ Petitions is the same management, namely Sakthi Auto Ancillary Private Limited, Coimbatore. In the 1st Writ Petition, they have challenged a common order passed by the 1st respondent Labour Court, Coimbatore in C.P.Nos. 56, 58, 60, 61, 62, 64 and 66 of 2004 filed by the contesting respondents 2 to 8. By the impugned order, the Labour Court computed the various amounts due to the workmen representing their wages from the date of dismissal on 27.7.2003 till the date of filing of the petition under Section 33-C (2) of the I.D.Act. The said Writ Petition was admitted on 24.8.2007. Pending the Writ Petition, this Court granted an interim stay. 2. Subsequently, a second batch of Claim Petitions in C.P.Nos.207, 208, 209, 211, 212 and 213 of 2007 have been filed before the same Labour Court, Coimbatore by some other contesting respondents, namely respondents 2 to 7, claiming wages for the subsequent period from 13.1.2004 to April 2007 together with bonus and encashment of Earned Leave. Those claim petitions were taken on file by the Labour Court and notice was ordered to the management. The management also filed counter statements. By a common order dated 30.12.2008, the Labour Court computed the amounts only towards backwages from the date of dismissal till the date of filing of the petition. But, with reference to the bonus and encashment of Earned Leave, since there was no proof in support of the claims were forthcoming from the workmen, those claims were rejected by the Labour Court. Therefore, challenging the impugned order dated 30.12.2008, the second Writ Petition has been filed. The Writ Petition was admitted on 22.4.2009. Pending the Writ Petition, this Court granted an interim stay after notice to the parties. 3. It is the admitted case that the contesting respondents were dismissed for certain misconduct by order dated 27.6.2005. After the dismissal, they filed claim petitions under Section 33-C (2) of the I.D.Act. The basis of the claim was that at the relevant time the conciliation proceedings were pending before the Conciliation Officer and a failure report was sent to the State Government on 14.10.2003, the dispute was raised by the contesting respondents trade union under Section 2-I of the I.D.Act with reference to the lay off and the matter was pending before the Conciliation Officer, Assistant Commissioner of Labour-III. Even during the conciliation, when the workmen were concerned with the outcome of the conciliation, they were dismissed. If any dismissal is made for any issue in connection https://hcservices.ecourts.gov.in/hcservices/ with the issue pending before the Conciliation Officer, the post approval is to be sought for from the Conciliation Officer. Under Section 33 of the I.D.Act, the workmen has right to lodge a complaint before the appropriate adjudicating authority. With reference to the complaint proceedings under Section 33-A were not extended if the matters were pending before the Conciliation Officer, it was because the Legislature did not want to give the power of adjudication to the Conciliation Officer since a complaint under Section 33-A will have to be adjudicated as if it was a reference under the I.D.Act. However, it obliges an employee under Section 33 (5) to seek approval even before the Conciliation Officer for the actions to be taken by an employer. The Conciliation Officer without delay was directed to hear such applications within three months or within the time extended by him. The power to hear such petitions will not get lapsed till the disposal of the complaint in view of the second proviso to Section 33(5) of the I.D.Act. 4. In the present case, the Conciliation Failure Report sent to the State Government had resulted in a reference on 12.8.2003. The dismissal had taken place on 27.6.2003. Inasmuch as the management did not file any approval even before the Conciliation Officer, the Labour Court based upon the judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and others reported in (2002) 2 SCC 244 computed the amounts as claimed by the workmen in both the Writ Petitions. Challenging these two orders, the Writ Petition came to be filed. 5. The contention raised by the management was that the workmen did not question their dismissal orders when there was specific misconducts attributed for dismissal. The conciliation proceedings were concluded even before the dismissal of the workmen. The non- seeking approval from the Conciliation Officer will not result in any invalidity the dismissal. The workmen after the dismissal had not been employed and they have not earned their wages. Therefore, the principle of 'no work no pay' will apply. The Jaipur Zila's case (cited supra) was sought to be interpreted by stating that only in cases, if the approval was not granted, then it will result in the order becoming void abinitio. In the present case, there was no such order declaring their dismissal as void and the workmen in such circumstances must only raise a dispute against the non-employment and cannot seek wages directly under Section 33-C (2) of the I.D.Act. 6. All the contentions raised by the management have been squarely answered by the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, reported in (2002) 2 SCC 244. The Supreme Court in paragraphs 13 to 15 had observed as follows: https://hcservices.ecourts.gov.in/hcservices/ 13. ....The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman. 14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straight away make a complaint before the very authority https://hcservices.ecourts.gov.in/hcservices/ where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time he should suffer misery of unemployment in spite of the statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. 15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33-A, cannot be accepted. In our view, not making an application under Section 33(2) (b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33 (2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33-A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee https://hcservices.ecourts.gov.in/hcservices/ under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment." 7. Therefore, there is no case made out for this Court to interfere with the impugned orders challenged in both the Writ Petitions. The Writ Petitions are deserved to be dismissed. 8. However, after the conclusion of the hearing, Mr.S.Jayaraman, learned counsel for the petitioner had produced copies of the settlements signed by Mr.M.Kumarraj dated 14.11.2008, Mr.K.Gopal dated 2.8.2010, Mr.M.Murugan dated 8.2.2010 and Mr.V.Kanagaraj dated 17.6.2010, wherein the workmen have compromised their subsequent dispute raised before the Labour Court in I.D.No.95 of 2004. Since the matter had been settled as between the parties, they are not entitled to claim any further wages. These facts were not controverted by the learned counsel for the workmen. Therefore, in their cases, the claim petitions will stand dismissed, in the light of the settlements dated 14.11.2008, 2.8.2010, 8.2.2010 and 17.6.2010 made in I.D.No.95 of 2004. Only in respect of the others, the claim petitions will survive. It is made clear that in respect of the above workmen, namely M/s.M.Kumarraj, K.Gopal, M.Murugan and V.Kanagaraj, they are not entitled for the amounts computed by the Labour Court. 9. Both the Writ Petitions stand dismissed with the above directions. No costs. The connected Miscellaneous Petitions are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ajr To The Presiding Officer, Labour Court, Coimbatore. 1 cc to Mr.S.Jayaraman, Advocate, Sr.No.56178 W.P.Nos.28019 of 2007 & 7323 of 2009 RJ {CO} TP/22.9.2011. https://hcservices.ecourts.gov.in/hcservices/