IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.09.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.2020 of 2006 and W.P.No.31375 of 2007 & WPMP No.2301 of 2006 in W.P.No.2020 of 2006 The Management of Alpha Helical Pumps 2/131, Venkitapuram Road, Venkitapuram Post, Coimbatore - 641 104. ... Petitioner in both WPs v. 1.The Presiding Officer, Labour Court, Coimbatore. ...1st respondent in both WPs 2.S.Radhakrishnan 3.A.Sekar 4.S.Jegadeeshkumar 5.S.Venkatachalam 6.T.Raja ...Respondents 2 to 6 in W.P.No.2020/2006 7.V.Assaidurai ...2nd respondent in W.P.No.31375/2007 W.P.No.2020 of 2006 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 claim petition Nos.979 to 983 of 2003 and 773 to 777 of 2004 and quash its common order dated 15.11.2005 W.P.No.31375 of 2007 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 C.P.No.284 of 2005 and to quash its order dated 28.02.2007. For Petitioner :: Mr.S.Jayaraman in both Wps For Respondents :: Mr.R.Sunilkumar for R2 to R6 in W.P.No.2020/2006 Mr.G.B.Saravanabhavan for R2 in W.P.No.31375 of 2007 https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R In both the Writ Petitions, the petitioner is the management of Alpha Helical Pumps. In the first Writ Petition, they have challenged a common order passed by the 1st respondent Labour Court, Coimbatore in C.P.Nos. 979 to 983 of 2003 and 773 to 777 of 2004 dated 15.11.2005 and seek to set aside the same. The said Writ Petition was admitted on 27.1.2006. Pending the Writ Petition, this Court granted an interim stay on the condition that the petitioner deposits 50% of the amount covered by the impugned order to the credit of the respective Claim Petitions with the 1st respondent Labour Court within four weeks. 2. In the 2nd Writ Petition, they have challenged a common order dated 28.02.2007 made in C.P.No.284 of 2005. In that Writ Petition, Notice of Motion was ordered. While ordering interim stay, a condition of 50% deposit was made. The learned counsel for the workman is unable to state whether the said condition has been complied with or not. 3. Since the common question is involved in both the Writ Petitions, they were heard together and a common order is passed. In order to verify the veracity of the claim made by the management, this Court directed the learned Special Government Pleader to produce the original G.O.File relating to G.O.(D) No.801, Labour and Employment Department dated 12.8.2003 for perusal by this Court. Accordingly, the original file has been circulated for perusal. 4. The contesting respondents/workmen initially filed claim statements in C.P.Nos.979 to 983 of 2003 claiming wages for the period from 13.8.2003 to 31.10.2003. This was on the premise that when they were dismissed by order dated 13.8.2003, a dispute was pending regarding the imposition of selective lock outs against the contesting respondents and whether the workmen was entitled for wages and other benefits as per the claim made by the trade union. According to the contesting respondents, the union to which they belonged raised an industrial dispute before the Conciliation Officer. The Conciliation Officer, i.e. Assistant Commissioner of Labour, Coimbatore unable to conciliate between the parties sent a failure report dated 10.2.2003 to the State Government. The State Government by G.O.(D) No.801, Labour and Employment Department dated 12.8.2003 referred the dispute under Section 10(1)(d) of the Industrial Disputes Act for adjudication by the 1st respondent Labour Court. The Labour Court had taken up the dispute as I.D.No.374 of 2003 for adjudication and ordered notice to the parties. Since, during the pendency of the adjudication, dismissal orders were made and no approval either under Section 33(1)(b) or under Section 33(2) (b) was sought, they are entitled for wages as dismissal is void abinitio and non-est in law and their claim was based upon the judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas https://hcservices.ecourts.gov.in/hcservices/ Bank Ltd. v. Ram Gopal Sharma, reported in (2002) 2 SCC 244. 5. While the first set of claim petitions were pending, the same set of contesting respondents filed the second batch of Claim Petitions in C.P.Nos.773 to 777 of 2004 for the subsequent period from 1.11.2003 to 14.7.2004 claiming wages on the basis of the earlier right. 6. The Labour Court consolidated all the claim statements and conducted a joint trial. It also issued notice to the petitioner management. The petitioner management filed individual counter statements in all the claim petitions. The stand taken by the management was that the dismissal of the workmen was preceded by a regular domestic enquiry and in accordance with the principles of natural justice and they were dismissed for grave act of misconduct. Therefore, they are not eligible for any wages. They have also stated that it is in the welfare of other workers, the partial lock out was declared on the contesting respondents on 6.8.2002. The said power to declare partial lock out is very much available to the management under the provisions of the Industrial Disputes Act. Declaration of partial lock out will not alter the service conditions of the workers and therefore Section 33 of the I.D.Act is not attracted. Without prejudice to the above contention, the management also stated that the Government Order referring the dispute for adjudication, namely G.O.(D) No.801, L& E Department dated 12.8.2003 was received by the management only on 30.8.2003. Even before the receipt of the said order of reference, the petitioner management had dismissed the workmen on 13.8.2003. Therefore, according to them, the question of seeking approval from the adjudicating authority did not arise. 7. The petitioner management also further stated that the conciliation report sent by the Conciliation Officer, namely, the Assistant Commissioner of Labour, Coimbatore dated 10.2.2003 was received by the Government on 21.7.2003 and the Government by reference in the form of G.O was received on 12.8.2003. Therefore, during the period between 21.7.2003 and 12.8.2003, there was no impediment for the management to dismiss the worker. Hence, there was no contravention to either section 33(1)(b) or 33(2)(b) of the I.D.Act. It is also stated that in case the workmen had aggrieved that there was infraction of the provisions of the I.D.Act under Section 33(1)(b) or 33(2)(b), the recourse open to the workmen is to lodge a complaint under Section 33-A of the I.D.Act before the Labour Court and not claim wages for the alleged illegal dismissal. Since there is no pre-existing right on the part of the workmen, the question of the Labour Court in computing wages to the workers will not arise. 8. In the joint trial conducted by the Labour Court, no oral evidence was let in on both sides. On the side of the workmen, 4 https://hcservices.ecourts.gov.in/hcservices/ documents were filed and marked as Ex.M.1 to Ex.M.4. On the side of the petitioner management, 3 documents were filed and marked as Ex.M.1 to Ex.M.3. While the workmen relied upon G.O.(D) No.801 dated 12.8.2003 as Ex.W.1, the same was also marked as Ex.M.1. 9. The Labour Court upon the material placed before it came to the conclusion that as soon as the reference was made by the State Government, it is a starting process for adjudication and the adjudication process is deemed to have commenced from the date of reference and the reference was made to Section 20(3) of the I.D.Act. 10. The Labour Court also placed reliance upon the judgment of the Labour Appellate Tribunal in Associated Cement Companies Ltd., vs. their workmen reported in 1953 II LLJ 369. In that case, the Labour Appellate Tribunal (LAT) opined that the proceedings before the Tribunal is deemed to have commenced by the legal fiction created under Section 20(3) of the I.D.Act. The Labour Appellate Tribunal also opined that it is not complete until the order of reference is actually received by the Tribunal. 11. The Labour Court also took note of the fact that by an order dated 15.7.2004, (marked as Ex.M.3), the management withdrew the order of dismissal. It is in that view of the matter, the Labour Court held that withdrawal of the dismissal order does not disentitle the workmen from claiming wages for the period of illegal dismissal, namely from the initial order of dismissal till the date of revocation of the dismissal order. 12. In this context, the Labour Court placed strong reliance upon the judgment of the Supreme Court in Jaipur Zila case (cited supra). In that case, the Supreme Court held that the provisions under Section 33-C (1) and 33-C (2) of the I.D.Act are mandatory in character, inasmuch as the infraction of the provision will visit with the final liability. The provision is deemed to be held to be mandatory. The Labour Court also disagreeing the earlier decision of the Supreme Court in Punjab Beverages (P) Ltd. vs. Suresh Chand reported in (1978) 2 SCC F144 that in case of violation of Section 33 (1) or 33 (2) of I.D.Act, the remedy is open to the workmen to file a complaint under Section 33-A of the I.D.Act and again declare dismissal as invalid. In answer to the above, the Supreme Court while laying down the proposition of law in Jaipur Zila's case (cited supra) in paragraphs 13 to 15 had observed as follows: 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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." 13. In that view of the matter, the Labour Court held that the workmen need not get really dismissed or the penalty adjudicated by any court. Since the dismissal order itself has become void abinitio, https://hcservices.ecourts.gov.in/hcservices/ the workmen are entitled to claim wages as if there was no order of dismissal. 14. In the second Writ Petition challenging the award passed in C.P.No.284 of 2005, the 2nd respondent claimed wages for the period from 31.8.2003 to 30.6.2005 and the said claim statement was taken on file as C.P.No.284 of 2005. The management filed similar counter statement before the Labour Court. 15. Before the Labour Court, on the side of the 2nd respondent, 3 documents were filed and marked as Ex.M.1 to Ex.M.3. Ex.W.3 is the order passed by the Labour Court impugned in the 1st Writ Petition, namely W.P.No.2020 of 2006. On the side of the management, one P.V.Kutty was examined as M.W.1 and 2 documents were filed and marked as Ex.M.1 and Ex.M.2. The Labour Court came to the conclusion on the similar findings as covered by the earlier order impugned in the first Writ Petition. 16. Mr.S.Jayaraman, learned counsel for the petitioner contended that inasmuch as the management is not even aware of the order of reference, it cannot be said that by a legal fiction, an obligation is created on the management. He has also placed reliance upon the judgment of the Supreme Court in BPL Ltd., and others vs. R.Sudhakar and others reported in (2004) 7 SCC 219. It is for the parties to contend that the express permission under section 33-1 or approval under Section 33 (2) of the I.D.Act will not be available, if there is no actual pending dispute. Reliance was placed upon the following passage found in the said judgment and it reads as follows: 16. The effect of grant of stay of operation of the order of industrial reference was that the Industrial Tribunal could not take up the reference for adjudication. Consequently, no action based on such reference could be taken by the Tribunal including grant or refusal of approval to the disciplinary action under Section 33(2) of the Act. The employer could not have, therefore, approached the Tribunal for seeking approval for its disciplinary action so long as the order of reference remained stayed by the order of the High Court. The industrial reference stood revived only when the writ petition against the industrial reference was finally disposed of by the High Court on 12- 4-1999. The industrial reference would be said to be pending only from 12-4-1999. The action of dismissal of the services of the workmen was taken on 31-3-1999. On that date, as a result of the order of the stay of the operation of reference by the High Court on 11-3-1999, no reference was pending for adjudication before the Tribunal. The provisions of Section 33 of the Act are attracted only when an industrial dispute is pending for adjudication and not merely when an order of reference is made by the https://hcservices.ecourts.gov.in/hcservices/ Government. In the present case, proceedings were not pending before the Tribunal because of the stay of the order of reference itself. Both sub-section (1) and sub- section (2) of Section 33 employ the language “during the pendency of any proceeding” which clearly conveys that obligation on the part of the employer under the said section of seeking “express permission” for the purpose of sub-section (1) or “approval” for the purpose of sub- section (2) arises only when there are proceedings pending on industrial dispute before the Tribunal or other specified statutory adjudicatory authorities under the Act. 17. It is not clear as to how the said judgment will have any relevance to this case because in that case, order of reference was stayed by a higher court and therefore in the eye of law, there was no dispute and hence, there was no duty cast on the employer to seek for approval. 18. But, however, in the present case, it is admitted that the failure report was sent by the Conciliation Officer, namely the Assistant Commissioner of Labour on 10.2.2003 and as the existing administrative procedure has to be routed through the Commissioner of Labour. The Commissioner of Labour is expected to give his own opinion on the failure report. The Commissioner of Labour gave his opinion for ordering reference by his concurrence dated 17.7.2003 and that was received by the State Government on 21.7.2003 along with the relevant forms. The draft minutes was circulated by the Department on 30.7.2003 and the Hon'ble Minister for Labour and Employment had approved the draft on 6.8.2003 and thereafter the draft order was made ready and appropriate G.O was issued on 12.8.2003. It was also despatched to the parties on the same day. 19. When the management had dismissed the workmen on 13.8.2003, the reference order already come into existence as found already. The draft was approved by the Minister concerned on 6.8.2003 and the final draft was sent for publication on 12.8.2003. Perhaps knowing the legal consequences, the management had withdrawn the earlier dismissal order so as to avoid any future eligibility. The contention that the summons were received from the Labour Court as per Ex.M.2 even before the dismissal order dated 13.8.2003 does not hold water because provisions of the I.D.Act have been constructed in such a way that the intention of the Government was between the order of failure report and the order of reference there should not be any time gap. That is why the Act itself provides a fiction under Section 20 of the Act regarding the starting and conclusion of the proceedings. 20. With reference to conciliation, it is stipulated that the conciliation will be deemed to be completed only when a reference is made to the Labour Court and the adjudication starts from the day of the reference made to the Labour Court. The fact that the summons https://hcservices.ecourts.gov.in/hcservices/ were received from the Labour Court subsequent to the dismissal and that the management was not aware of the pendency of the dispute cannot hold water because the management had participated in the conciliation proceedings and there was running a battle between the management and the union. In fact the management itself had come to this Court with W.P.No.30300 of 2002 seeking for police protection for running the industry and also obtained interim injunction on 25.7.2002. Subsequently in their letters dated 13.9.2002 and 15.12.2002 addressed to the Conciliation Officer, they wanted to bring the conciliation to an end stating that there is no conciliation possible. 21. Therefore, their urge to complete the conciliation was only with a view to pass final orders on the disciplinary action against the workmen. But, once a legal fiction was introduced for a larger purpose to prohibit strikes or lock-outs either during the conciliation or during the adjudication, the legal fiction must be given its full meaning and it should not be left to the vagaries of the parties. If the fiction is not allowed to play a full role, then the purpose for which the fiction was created will be lost. 22. The legislature thought that during the pendency of the conciliation or adjudication, there should not be any strike or lock out. It is in that view of the matter, the law itself had taken pains to decide what is the starting process of a conciliation and ending process of the conciliation. Likewise the starting process of an adjudication and the ending process of the adjudication was also indicated. The legislature had taken efforts to provide by a fiction with a view to prevent unilateral action by the workman or the management. During the pendency of those proceedings, the conditions of service of the workers cannot be altered and hence Section 33 of the I.D.Act was introduced. The contention that the petitioner was unaware of the proceedings cannot be accepted. In the present case, nothing prevented them to rescind the order after the reference order was received by them. However, on knowing the legal effect, the management had withdrawn their dismissal orders. Therefore, they cannot feign ignorance of the correct legal provisions. 23. The Constitution Bench of the Supreme Court in Jaipur Zila's case (cited supra) had explained the object behind the introduction of Section 33 of the Industrial Disputes Act. In paragraphs 6 and 7 of the said judgment, it is held as follows: "6. Answer to the question on which conflicting decisions are rendered, as noticed above, depends on a fair reading and proper interpretation of Section 33(2)(b) of the Act. Prior to the amendment of 1956, the provision contained in Section 33 corresponded to the present Section 33(1) only. The object behind enacting Section 33, as it stood before it was amended in 1956, was to allow continuance of industrial https://hcservices.ecourts.gov.in/hcservices/ proceedings pending before any authority/court/tribunal prescribed by the Act