IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.02.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.19689 of 2000 & W.P.M.P.Nos.12186 and 12187 of 2004 1 THE MANAGEMENT OF TAMIL NADU STATE TRANSPORT CORPORATION (COIMBATORE DIVISION II) LTD. (FORMERLY KNOWN AS JEEVA TRANSPORT CORPORATION LTD ) REP BY ITS MANAGING DIRECTOR ERODE-638 001 [ PETITIONER ] Vs 1 THE PRESIDING OFFICER INDUSTRILA TRIBUNAL TAMIL NADU CHENNAI 2 V.PALANISAMY [ RESPONDENTS ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records on the file of the 1st respondent made in petition No.32 of 1995 dated 3.3.2000. For Petitioner :: Mr.T.Chandrasekar, Spl.G.P For Respondent-2 :: Mr.V.Ajay Khose O R D E R The writ petitioner is a State owned Transport Corporation. They have come forward to file the present Writ Petition seeking to challenge the order passed by the 1st respondent Industrial Tribunal in Approval Petition No.32/1995 dated 3.3.2000. 2. The Writ Petition was admitted on 14.11.2000. Pending the Writ Petition, in the Interim application, only Notice was issued. Subsequently, when the matter came up on 14.1.2003, the stay application was dismissed as there were no grounds to grant an interim order. 3. Thereafter, the 2nd respondent workman took out two applications in W.P.M.P.Nos.12186 of 2004 and 12187 of 2004 seeking https://hcservices.ecourts.gov.in/hcservices/ for a direction to pay last drawn wages in terms of Section 17-B of the Industrial Disputes Act and also to pay the back wages and other retirement benefits pending the Writ Petition. However, in both the Miscellaneous Petition, no order was passed. 4. It is seen from the records that the 2nd respondent, who was employed as Bus-Body Cleaner (Seeralar) on 4.5.1981 was terminated from service by an order dated 20.2.1995. Before terminating his service, an enquiry was conducted. After the completion of the enquiry, on the basis of the enquiry report, a second show cause notice dated 6.12.1994 was issued. Though in the second show cause notice, it was stated that the enquiry report accompanies the notice, but the same was not sent. The particular sentence was also scored off. After the second respondent's explanation, the termination order came to be passed. The 2nd respondent was given one month's pay of Rs.2964/- in lieu of Notice. 5. Since the dispute was pending before the 1st respondent Tribunal, a petition under section 33 (2)(b) of the Industrial Disputes Act, 1947 was filed before the Tribunal for approving the action of the termination of the service of the 2nd respondent. The said petition was taken on file by the 1st respondent as Approval Petition No.32/1995 and Notice was ordered to the 2nd respondent workman. Before the Tribunal, 14 documents were filed by the petitioner Corporation and they were marked as Ex.M.1 to M.14. 6. The Tribunal held that the pre-requisite for granting approval, namely, complying with the standing orders were not adhere to. Therefore, in view of the infraction and also the fact that the workman was not given sufficient opportunity in defending himself in the enquiry and also the fact that the second show cause notice was not accompanied with the findings of the enquiry officer, the Tribunal refused to grant its approval. The Tribunal also held that the witnesses have not spoken about the inconvenience caused by the 2nd respondent's absence and that his absence was due to ill-health. For those reasons, the 2nd respondent ought not to have imposed the punishment of termination. 7. When the matter came up before this Court, the learned counsel for the petitioner Corporation was directed to find out whether the petitioner Corporation had obeyed the orders of the Tribunal inasmuch as whether he was reinstated and due to the fact that the petition for interim stay was rejected as early as January 2003. The reasons for not implementing the order of the Tribunal was not explained and it is a serious breach on the part of the petitioner Corporation. 8. The Supreme Court vide its judgment in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma reported in 2002 (2) SCC 244 has held that infraction of Section 33 (2)(b) of the Industrial https://hcservices.ecourts.gov.in/hcservices/ Disputes Act cannot be condoned. Since it gives a statutory obligation on the part of the employer to seek approval and coupled with the disqualification for its violation, the said obligation is mandatory and in case of no approval or refusal to approve, the order of the employer becomes void ab initio and the workman is also entitled to get all the benefits. The statutory Corporation like the petitioner Corporation ought to have obeyed the orders of the Tribunal in the absence of this Court granting any relief on the interim stay petition. 9. In any event, the short question that has to be decided was whether the order of the Tribunal suffers from any non-application of mind or material irregularity. In the present case, the issuance of second show cause notice is mandatory in terms of the Model Standing Orders framed by the State Government and as applicable to the petitioner Corporation. 10. Section 12-A of the Industrial Employment Standing orders Act applies the Model Standing Orders in the absence of a certified Standing Orders. The Model Standing Orders 17(4)(bb) and 17(4)(c) reads as follows: "(bb) A copy of the enquiry proceedings shall be given to the workman concerned at the conclusion of the enquiry on request by the workman c) If on the conclusion of the inquiry or, as the case may be, of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered, after giving the workman concerned a reasonsable opportunity of making representation on the penalty proposed that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer shall pass an order accordingly. (Emphasis added) 11. Even in the absence of such Standing Order, a Constitution Bench of the Supreme Court vide its decision relating to Managing Director, ECIL, vs. B.Karunakar reported in AIR 1994 SC 1074 held that if the enquiry officer is different from the disciplinary authority, then the employee must be given a copy of the enquiry report before its acceptance. It has also held that right of the employee to have the report was to defend himself effectively. He must know in advance whether the report is in his favour or against him. It will not be proper to construe his failure to ask for such report as a waiver of his right. Whether the employee asked for the copy of the report or not, the said report has to be furnished. The Supreme Court has held such a requirement as part of the principles of natural justice. https://hcservices.ecourts.gov.in/hcservices/ 12. In the present case, a perusal of the show cause notice shows that even before issuance of such notice, the enquiry officer's report was accepted by the management. Not only it was accepted but the show cause notice was given only on the question of penalty and not on the question of the report of the Enquiry Officer. Though the printed format adopted by the Corporation contains a sentence that a copy of the report should be enclosed along with the show cause notice, for reasons best known to the Corporation, that sentence was struck off and no copy of the report was furnished to the workman. 13. Therefore, the Tribunal held in the impugned order that principles of natural justice required findings of the enquiry officer should be communicated and that the procedure adopted by the petitioner was not legal. There is no answer for the petitioner on the refraction of the requirement under the Standing Orders. 14. On the contrary, apart from being part of the principles of natural justice, even the Model Standing Order as applicable to the Corporation, such a requirement has been made by the State amendment to the Standing Orders vide G.O.Ms.No.265, Labour Department dated 5.2.1995. 15. One of the functions of the Tribunal in deciding the petition under section 33 (2) (b) of the Industrial Disputes Act is whether the enquiry was held in accordance with the Standing Orders and whether the principles of natural justice have been complied with or not. The Supreme Court vide its judgment in Lala Ram vs.D.C.M.Chemical Works Limited., and another reported in 1978 (1) LLJ 507 held that in the absence of any one of the ingredients mentioned under section 33(2)(b) of the Industrial Disputes Act, the Tribunal is under no obligation to grant any approval. 16. In the present case, the stand of the petitioner cannot be appreciated and their conduct in not restoring the workman to service is also highly questionable. When the petitioner Corporation moved this Court in the year 2000, they failed to get any interim order. Their application for interim order itself was rejected in the year 2003. It is rather unfortunate that the for the past 10 years, the petitioner Corporation has made the worker to suffer. Therefore, apart from the fact that the Writ Petition is misconceived and lacks in merit, the attitude of the Corporation also calls for deterrent action. 17. In the light of the above, the Writ Petition stands dismissed with cost of Rs.10,000/- (Rupees ten thousand only). It shall be paid to the learned counsel for the 2nd respondent within a period of four weeks from today. The order passed by the Tribunal https://hcservices.ecourts.gov.in/hcservices/ shall also be implemented in its entirety within four weeks from today. No costs. The connected Miscellaneous Petitions stand closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ajr To 1 THE PRESIDING OFFICER INDUSTRIAL TRIBUNAL TAMIL NADU CHENNAI 1 cc to Mr.T.Chandrasekaran, Advocate, Sr.No.10380 W.P.No.19689 of 2000 AKR {CO} TP/23.2.2010. https://hcservices.ecourts.gov.in/hcservices/