IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.9.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.2997 of 2001 The Management of Metropolitan Transport Corporation (Chennai-Division-I) ltd., Formerly Pallavan Transport Corporation Ltd., Annasalai Chennai-600 002 .. Petitioner vs. 1. The Presiding Officer Industrial Tribunal Chennai-600 104 2. R.Murugesan .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records relating to the order, dated 13.11.1999 made in petition No.104 of 1995 on the file of the Industrial Tribunal, Chennai-104, the first respondent herein and to quash the same. For petitioner : Mr.V.R.Kamalanathan For Respondents : Mr.S.Senthilnathan for R2 O R D E R This writ petition has been filed by the petitioner Corporation to quash the order, dated 13.11.1999, passed by the first respondent Industrial Tribunal in petition No.104 of 1995. The first respondent Industrial Tribunal, by its order, dated 13.11.1999, had rejected the petition filed by the petitioner Corporation, praying for an approval for the order dismissing the second respondent workman from service, under Section 33(2)(b) of the Industrial Disputes Act, 1947. https://hcservices.ecourts.gov.in/hcservices/ 2. It has been submitted that the second respondent had been appointed as a Junior Assistant in the petitioner Corporation, with effect from 3.12.1977. While he was employed as a Senior Assistant in the Tickets and Cash section at K.K.Nagar Depot, he had absented himself from duty on and from 6.6.1993, without any prior intimation or permission, which amounts to a misconduct under Clause 25(vi) of the Certified Standing Orders of the corporation. Therefore, a charge memo, dated 11.11.1994, had been issued against the second respondent, which is as follows: "1. Respondent absented for duty from 6.6.1993 without prior permission which amounts to misconduct under Clause 25(vi) of Certified Standing Orders applicable to petitioner Corporation. 2. Because of the unauthorised absence of the respondent there was stalemate in the administration of the petitioner corporation which is a misconduct enumerated under Clause 25(xi) of the Certified Standing Orders." 3. The second respondent had submitted an explanation, on 28.11.1994, denying the charges framed against him. He had stated that he was taking treatment in a Hospital, since he was sick. As the petitioner Corporation was not satisfied with the explanation submitted by the second respondent, a domestic enquiry had been conducted against him. All the necessary procedures were followed during the enquiry including the principles of natural justice. The petitioner was given sufficient opportunity to put forth his case and to defend himself. During the enquiry, the second respondent had admitted the charges framed against him and he had stated that he was not able to get prior permission from the petitioner Corporation before he had gone on leave due to his sickness. The enquiry officer had submitted a report stating that the charges against the second respondent were proved. Based on the findings of the enquiry officer, the Management of the petitioner Corporation had issued a second show cause notice, dated 19.1.1995, to the second respondent, calling for his explanation as to why the removal of punishment should not be imposed on him. As the explanation, dated 30.1.1995, submitted by the second respondent was not satisfactory, he was removed from service vide Proc.No.23112/LS(DP)4/PTC/94, dated 13.2.1995. 4. It has been further stated that since a common dispute regarding the issue of bonus was pending before the Industrial Tribunal at that time, in I.D.No.62 of 1982, the petitioner Corporation had filed a petition before the first respondent Tribunal, seeking approval of the removal of the second respondent, https://hcservices.ecourts.gov.in/hcservices/ under Section 33(2)(b) of the Industrial Disputes Act, 1947. The petition filed by the Management was taken on file by the first respondent Industrial Tribunal in A.P.No.104 of 1995. The first respondent Industrial Tribunal had passed an order in the said petition, on 13.11.1999, and it was received by the petitioner Corporation, on 21.6.2000. The first respondent Industrial Tribunal had rejected the petition filed by the petitioner Corporation holding that the absence of the second respondent from attending to his duty for a period of nearly 1 year and 8 months was due to his sickness. The first respondent Industrial Tribunal had not taken into consideration the fact that the second respondent had absented himself from duty without prior permission or intimation stating that he was sick. The first respondent Industrial Tribunal had also come to the conclusion that previous service records relating to the earlier misconduct, said to have been committed by the second respondent, had not been given to him at the time of the domestic enquiry. The stand taken by the first respondent Industrial Tribunal, in dismissing the petition filed by the petitioner Corporation for the approval of the dismissal order passed against the second respondent would encourage the employees to absent themselves without the sanctioning of leave by the petitioner Corporation leading to dislocation of bus services operated by the petitioner Corporation causing heavy loss and inconvenience both the petitioner Corporation as well as to the public at large. In such circumstances, the petitioner has filed the present writ petition before this Court under Article 226 of the Constitution of India challenging the order of the first respondent Industrial Tribunal, dated 13.11.1999, made in petition No.104 of 1995. 5. In the counter affidavit filed on behalf of the second respondent, it has been stated that he was terminated from service by an order, dated 13.2.1995. The charge against the second respondent was that he was absent from duty, from 6.6.1993 till an application had been filed by the petitioner Corporation before the first respondent Industrial Tribunal, under Section 33(2)(b) of the Industrial Disputes Act, 1947, for approval of the dismissal order passed against the second respondent. The second respondent had resisted the approval petition raising various grounds. The second respondent had stated that the domestic enquiry conducted by the petitioner Corporation had not been conducted fairly and properly following the principles of natural justice. Further, the witness produced by the petitioner Management, during the enquiry, is only the departmental representative. The second respondent had not been given an opportunity of being heard with regard to his past records referred to by the Management. Further, there has been a delay in filing of the application. Considering the contentions raised by the second respondent, the first respondent Industrial Tribunal had rejected the approval petition filed by the petitioner Corporation. https://hcservices.ecourts.gov.in/hcservices/ Pursuant to the order of the first respondent Industrial Tribunal, the petitioner Management had permitted the second respondent to join in service, on 9.10.2000. However, the petitioner Management had not paid the backwages due to the second respondent from 6.6.1993 till 9.10.2000. In such circumstances, the writ petition is liable to be dismissed. 6. The learned counsel appearing for the second respondent had submitted that the first respondent Industrial Tribunal was right in rejecting the petition filed by the petitioner Corporation for approval of the dismissal order passed against the second respondent. It has been submitted that the first respondent Industrial Tribunal had rightly rejected the petition stating that there was a delay of nearly 3 months in filing the petition. 7. The learned counsel appearing for the second respondent had relied on the decision of the Supreme Court in CALCUTTA STATE TRANSPORT CORPN., Vs. MD.NOOR ALAM (1973 II L.L.J.248) wherein it has been held that the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, contemplates three things (i) dismissal or discharge (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction. 8. In STRAWBOARD MFG. CO Vs. GOVIND (VOL.XXII F.J.R.236), the Supreme Court had held as follows: " ..... the proviso to Section 33(2) (b) contemplates the three things mentioned therein, namely, (i) dismissal or discharge (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction, so that the employer when he takes the action under Section 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time. When, however, we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge (ii) payment of the wages and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employee's right under Section 33-A would be affected. The question https://hcservices.ecourts.gov.in/hcservices/ whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case." 9. In FILMISTAN (P). LTD., Vs. BALKRISHNA BHIWA (1971 II L.L.J.335), the Supreme Court has quoted with approval its decision in STRAWBOARD MFG. CO Vs. GOVIND ((1962) Supp.3 S.C.R.618), to hold that the action taken by the employer must be simultaneous. 10. In T.N.S.T.C. LTD., Vs. JOINT COMMR OF LABOUR (CONCILIATION) (2006-III-LLJ 832), this Court has held as follows: "7. In Lalla Ram Vs. D.C.M. Chemical Works, Ltd., AIR 1978 SC 1004: 1978(3) SCC 1: 1978-I-LLJ-507, the Supreme Court, after considering several earlier decisions, gave guidelines regarding the manner in which the Industrial Tribunal should exercise its jurisdiction in proceedings under Section 33(2)(b): "The position that emerges from the above quoted decisions of this Court may be stated thus: in proceedings under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to- (i) whether a proper domestic enquiry in accordance with the relevant Rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out; (iii) whether the employer had corns to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Company v. Ram Prakash Singh, AIR 1964 SC 486: 1963-I-LLJ-291, Titaghur Paper Mills Company Ltd. Vs. Ram Naresh Kumar, 1961-I-LLJ-511 (SC) Hind Construction and Engineering Company Ltd., Vs. Their Workmen, AIR 1965 SC 917; 1965-I-LLJ- 462, Workmen of Firestone Tyre and Rubber Company of India (Private) Ltd., V. Firestone Tyre and Rubber Company of India (Private) Ltd., AIR 1973 SC 1227: 1973(1) SCC 813: 1973 I LLJ-278 and Eastern Electric and Trading Company v. Baldav Lal, AIR 1975 SC 1892: 1975(4) SCC 684: 1975-II- https://hcservices.ecourts.gov.in/hcservices/ LLJ-367, that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or to severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment. (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If, however, the domestic enquiry suffers from any defect or infirmity, the labour, authority will have to find out on, its own assessment of the avoidance adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him." 11. In view of the submissions made by the learned counsels appearing for the petitioner as well as the respondents and on a perusal of the records available, this Court is of the considered view that the petitioner Corporation has not shown sufficient cause or reason for this Court to interfere with the order of the first respondent Industrial Tribunal, dated 13.11.1999, made in petition No.104 of 1995. The petitioner Corporation ought to have shown that the requirements of the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, had been fully complied with. The first https://hcservices.ecourts.gov.in/hcservices/ respondent Industrial Tribunal had come to the conclusion that the filing of the petition before the said Tribunal had not been simultaneous and that it was not part of the same transaction, as held in the decisions cited above. There has been a delay of 30 days in filing the petition by the Management of the petitioner Corporation for the approval for its order dismissing the second respondent from service. 12. The first respondent Industrial Tribunal had also found that in the second show cause notice marked as Exhibit M.6, the past record of service of the second respondent had not been mentioned. However, in the final order, marked as Exhibit M.9, it has been mentioned that the past record of service of the second respondent had been looked into and it has been stated that it is not satisfactory. However, the second respondent has not been put on notice before his past record had been considered. Further, it was found that the second respondent had suffered only one punishment, on 8.3.1992, for having assaulted a fellow employee, for which he was punished with stoppage of increment for 12 months. No other previous misconduct like unauthorised absence etc., had been seen in the past record of the service of the second respondent. The first respondent Industrial Tribunal had also found that one Kalaimani, departmental representative, had been examined as a witness on behalf of the petitioner Management and no opportunity had been given to the second respondent to cross-examine him. It was found that the enquiry officer had not followed the proper procedures during the enquiry. Further, it was also found that the principles of natural justice had been violated. 13. This Court, while exercising its jurisdiction under Article 226 of the Constitution of India cannot be persuaded to reappraise the evidence, based on which the Tribunal had come to its conclusion, as held by a decision of the Supreme Court in Hari Shankar Sharma and Others Vs. Artificial Limbs Manufacturing Corpn., and others ((2002) 1 SCC 337). The petitioner Corporation is not in a position to substantiate its claim that the order of the first respondent Industrial Tribunal, dated 13.11.1999, made in petition No.104 of 1995, is illegal and void. Hence, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Presiding Officer Industrial Tribunal Chennai-600 104 1 cc to Mr.V.R.Kamalanathan, Advocate, SR.No.52438 1 cc to Mr.Mr.S.Senthilnathan, Advocate, SR.51791 W.P.No.2997 of 2001 SJ [CO] RB 16/10/2008 https://hcservices.ecourts.gov.in/hcservices/