IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24-9-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.244 of 2006 W.P.M.P.No.294 of 2006 Tamil Nadu State Transport Corporation (Villupuram Division-I) Ltd., 3/137, Salamedu, Villupuram 605 602, rep.by its Managing Director. ... Petitioner Vs. 1. The Joint Commissioner of Labour (Conciliation), DMS Compound, Chennai 600 006. 3. R. Jayaraman ... Respondents This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorari calling for the records and quash the order dated 13.12.2004 passed in A.P.No.339 of 2003 on the file of the first respondent, Joint Commissioner of Labour (Conciliation), Chennai. For Petitioner : Mr.Gupta, for M/s.Gupta & Ravi For 1st Respondent : Mr.R.Murali, Government Advocate For 2nd Respondent : Mr.S.Vaidyanathan O R D E R
The prayer in the writ petition is to quash the order of the first respondent dated 13.12.2004 rejecting the approval petition filed by the petitioner management to terminate the services of the second respondent.
2. The petitioner is the Tamil Nadu State Transport Corporation (Villupuram Division-I) Ltd., Villupuram. The second respondent was employed with the petitioner Transport Corporation as Driver on daily wages basis initially from 2.5.1996 and subsequently he was absorbed on permanent basis from 1.4.1997. According to the petitioner management, the second respondent unauthorisedly absented from duty from 21.8.2002 and hence a charge memo was issued on 15.10.2002. An enquiry was conducted and the Enquiry Officer held that the second respondent was guilty of charges. Thereafter a second show cause notice was issued on 21.7.2003 proposing the punishment of dismissal. The second respondent did not submit any explanation and considering the enquiry report, the management terminated the second respondent from service by order dated 9.9.2003.
3. As an industrial dispute was pending before the first respondent, the management filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947, for approval of the order of dismissal. Simultaneously the second respondent was paid a sum of Rs.5,667.50 being one month wages. The first respondent taken the said application on file as Approval Petition No.339 of 2003. The said approval sought for was objected by the second respondent/ workman by raising a plea that one month wages paid was not the correct wages among other grounds. Thereafter the management paid further amount of Rs.292/- being the disputed amount on 10.6.2004.
4. The approval petition was rejected by the first respondent on 13.2.2004 against which this writ petition is filed contending that while exercising the limited jurisdiction available under Section 33(2)(b) of the Act, the first respondent exercised his power as if the power conferred under Section 11A of the Industrial Disputes Act, 1947. The second respondent/workman having been absented from 21.8.2002 and the charge of unauthorised absence having been proved, the proposal to dismiss the second respondent is bound to be approved. The wages paid was correct, however the health allowance and arrears of variable dearness allowance, which were not declared then, could not be included in one month wage paid to the workman and on being noticed the same, the management voluntarily tendered the said amount and therefore there is compliance of Section 33(2)(b) of the Act.
5. The second respondent has filed counter affidavit on 25.7.2010 by stating that he joined in the service of the petitioner Transport Corporation as permanent staff on 1.4.1997 and he was dismissed by order dated 9.9.2003 on the ground of unauthorised absence, pursuant to a charge memo dated 15.10.2002. The Enquiry Officer found the second respondent/workman as guilty of charges, except charge Nos.4 and 5. Since an industrial dispute was pending, the management has to necessarily obtain approval as required under Section 33(2)(b) of the Act by paying one month actual pay. There was shortfall of Rs.292/- while remitting the one month pay, which was subsequently paid. Therefore there is non-compliance of Section 33(2)(b) and the same was rightly interfered with by the competent authority and rejected the approval petition. In the counter affidavit it is also stated that the second respondent is willing to give-up 50% of backwages till the date of reinstatement, provided he is given continuity of service and other benefits, including the counting of entire service for pensionary purposes and the contribution to the extent of his 100% share can be recovered from 50% of his backwages. According to the second respondent as per Section 2(rr) of the Industrial Disputes Act, 1947, the wages payable include commission and other concession except those that are excluded under the provision.
6. Heard the learned counsel for the petitioner/management as well as the second respondent/workman.
7. The point for consideration is whether the rejection for Approval Petition No.339 of 2003 by the first respondent is just and proper ?
8. The charges levelled against the second respondent are as follows:
i. Absented from duty continuously from 21.8.2002;
ii. frequent absence from duty;
iii. dislocation of functioning of Transport Corporation buses;
iv. caused revenue loss to the Transport Corporation;
v. due to non-plying of buses in time caused damage to the
reputation of the Corporation among the public;
vi. indisciplined behaviour while on duty; and
vii. dislocation of Transport Corporation’s bus operation
The crux of the charges is that the petitioner absented from duty from 21.8.2002 while functioning as Driver of the petitioner Transport Corporation bus. All other charges are incidental or consequential to the said charge.
9. The case of the second respondent/workman is that there was breathing difficulty due to congestion in lungs/pulmonary tuberclosis, which is also a contagious disease and therefore he could not attend to duty as he had to take treatment. The charge Nos.5 and 6 are found not proved even according to the Enquiry Officer’s report dated 15.5.2003. Admittedly an industrial dispute was pending and therefore approval has to be obtained under section 33(2)(b) of the Industrial Disputes Act, 1947, before passing any order. Section 33(2)(b) of the Industrial Disputes Act, 1947 reads as follows:
Sec.33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.
(1) * * *
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,
(a) * * *
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
From the perusal of the above statutory provision it is evident that one month full wages has to be paid in full to the workman and the approval petition shall be made before the first respondent. A cheque for Rs.5,667.50 was enclosed by the management, which was found to be not the correct wages and admittedly further cheque for Rs.292/- dated 15.6.2004 was issued by the petitioner management towards short remittance. The said short remittance was noticed by the first respondent as non-compliance of the statutory provision and rejected the approval petition. There is a finding that subsequent payment of the difference in wages would not cure the defect in compliance of the provisions contained in section 33(2)(b) of the Industrial Disputes Act, 1947. The first respondent has also found that such subsequent payment is a clear admission of short payment to the second respondent/workman at the first instance.
(a) A Division Bench of the Karnataka High Court in the decision reported in 1999 (2) LLJ 643 (Prabhakar H.Manjare v. Indian Telephone Industries Ltd.) considered the said issue and in paragraphs 7 to 10 held thus,
“7. Non payment of the requisite wages, would therefore, make the order of dismissal void for which no approval can be granted under Section 33(2) of the Act. It is settled position of law that, if approval is not granted, the order of dismissal or discharge cannot be operative and the employee concerned is required to be deemed to be in service. For this view we find support in the judgment of Bombay High Court in G.K.Sengupta v. Hindustran Construction Co.Ltd., 1994 LLR 550.
8. It is undisputed that as the Appellants were removed from the service from January 21, 1986 without payment of the requisite wages and that as the Tribunal had not granted the approval, they were deemed to be in service for all practical purposes. The non-payment of wages cannot be held to be a mere ritual of a formality and its non-compliance only technicality as has been argued before us on behalf of the Management.
9. A single Judge of this Court in the Bangalore Printing and Publishing Co. Ltd., Bangalore v. A.V.Venkatanarayan, (supra), had held:
“It is not correct to say that failure to pay the correct amount of wages under the proviso to Sec.33(2)(b) of the Act is only a technical breach. Payment of a month’s wages under that proviso is a mandatory requirement of that Section and hence if it is not complied with, rejection of the application on the ground that there was a failure to comply with the mandatory requirement is a rejection on merits. Hence the 2nd application filed by the petitioner after revoking the earlier order of dismissal was not maintainable.
It was further held that it was not open to the Management to file a second application of approval when the first set of application had been dismissed on merits. We fully agree with the proposition of law settled by the learned single Judge in that case.
10. Once it is held that the proviso to sub-section (2)(b) of Section 33 was mandatory, it cannot be held that its non-compliance was a technical defect. The proviso itself mandates that no application shall be entertained and approval granted without the prior or simultaneous payment of the wages specified therein. ……….”
(Emphasis Supplied)
(b) The Supreme Court in the decision reported in (2002) 2 SCC 244 (Jaipure Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma) considered the compliance of Section 33(2)(b) of the Industrial Disputes Act, 1947. In paragraphs 8, 9 and 13 the Supreme Court held thus,
“8. A Constitution Bench of this Court in the case of P.H. Kalyani v. Air France, Calcutta (AIR 1963 SC 1756 : (1964) 2 SCR 104) referring to Strawboard2 has observed thus: (AIR p.1758, para 4)
4. The main point which was raised in this appeal is now concluded by the decision of this Court in Straw Board Mfg. Co. Ltd. v. Govind. This Court has held in that case that 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. It was further held that the employers conduct should show that the three things contemplated under the proviso, are parts of the same transaction; and the question 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 the case of Tata Iron and Steel Co.(AIR 1966 SC 380 : (1965) 3 SCR 411) it is reiterated and stated thus: (AIR p.382, para 5)
It is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law.
13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. 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.”
(Emphasis Supplied)
10. The decision cited by the learned counsel for the petitioner management reported in 2006 (2) LLN 264 (Tamil Nadu State Transport Corporation Ltd. v. Joint Commissioner of Labour (Conciliation), Chennai) is factually distinguishable as the finding of the Division Bench is that the enquiry was fairly and properly conducted and therefore the Joint Commissioner’s finding that enquiry was not conducted in a fair and proper manner was found baseless. The other decision cited by the learned counsel, reported in 2005 (2) LLN 833 (Dheeran Chinnamalai Transport Corporation Ltd., Tiruchirapalli v. Industrial Tribunal, Madras) the modification of the punishment by the approving authority under section 33(2)(b) was held as improper as it was beyond his jurisdiction.
11. Thus, applying the two decisions cited by the learned counsel for the second respondent/workman to the facts of this case and having regard to the factual finding given by the first respondent, namely less payment of one month wages to the second respondent, I am of the view that the findings given by the first respondent refusing to give approval is legally valid as the conditions stipulated in Section 33(2)(b) are not fulfilled and no case is made out to interfere with the said findings.
12. Insofar as the grant of relief to the second respondent/workman is concerned, the second respondent/workman is out of employment from the date of dismissal i.e., from 9.9.2003. The approval having been rejected by the first respondent, the consequence is that the second respondent/workman is deemed to be in service and never dismissed. During pendency of the writ petition an interim order was passed on 4.1.2006 directing the management to pay 50% backwages from the date of dismissal till the date of interim order. Since the second respondent/workman is deemed to be reinstated in service, the stand taken by the second respondent to give up 50% of backwages in the counter affidavit filed on 25.7.2010 is a bona fide request to shorten the litigation and by accepting the said plea, the right of the management is also protected, which is not a profit earning Public Sector Undertaking. It is also the specific case of the workman that he is not gainfully employed all these years and the same is reiterated in the counter affidavit filed on 25.7.2010 (para 6). No contra averment or evidence is made or produced by the petitioner management to deny backwages.
13. Further, for the charge of unauthorised absence, dismissal of workman is too harsh. Similar issue was considered by me in W.P.No.12619 of 2001 order dated 13.11.2009 and W.P.No.40097 of 2002 order dated 23.12.2009 wherein I have followed the judgment of the Supreme Court reported in AIR 2009 SC 2458 (Jagdish Singh v. Punjab Engineering College) wherein the Supreme Court modified the punishment of dismissal in a case of unauthorised absence and ordered reinstatement without backwages but with continuity of service.
14. In a given case the Court itself can impose punishment to shorten the litigation, is well settled. In W.P.No.33542 of 2007 by order dated 29.4.2010, this Court in paragraph 14 held as follows:
“14. How the charges of unauthorised absence on medical ground is to be considered and punishment shall be imposed is considered by the Supreme Court in the decision reported in (2004) 4 SCC 560 : AIR 2004 SC 2131 (Bhagwan Lal Arya v. Commissioner of Police, Delhi). In paragraphs 11 and 14 it is held thus,
“11. …….. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become the basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside.
14. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.”
(Emphasis Supplied)
In the said judgment the Supreme Court instead of remanding the matter to the department, following the earlier decision reported in (1995) 6 SCC 749 : AIR 1996 SC 484 (B.C.Chaturvedi v. Union of India) imposed punishment by itself. In AIR 1996 SC 484, in para 18 it is held thus,
“18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”
(Emphasis supplied)
The same is the view taken by the Supreme Court in the decision reported in (2005) 7 SCC 338 (V. Ramana v. A.P.SRTC).”
15. In 2005 (4) CTC 390 (T.N.State Transport Corporation (Madurai) Ltd. v. The Presiding Officer, Industrial tribunal) a Division Bench of this Court considered similar unauthorised absence charge and held that for unauthorised absence the punishment of dismissal is too harsh. The interference made by the learned single Judge in setting aside the dismissal order was upheld by the Division Bench. Hence in any event, the punishment of dismissal of workman for the charge of unauthorised absence is unproportionate, particularly when there is a defence that he took leave as he was suffering from Pulmonary Tuberclosis, which is a contagious disease.
16. The writ petition is dismissed. The approval petition having been dismissed, the workman shall be deemed to be in service. Hence the petitioner/management is directed to reinstate the second respondent/workman in service with continuity of service and 50% backwages and other benefits as agreed by the second respondent in his counter affidavit (para 7) dated 25.7.2010, within four weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petition is also dismissed.
Index : Yes/No.
Internet : Yes/No. 24-9-2010 vr To The Joint Commissioner of Labour (Conciliation), DMS Compound, Chennai 600 006. N. PAUL VASANTHAKUMAR, J. Vr Pre-Delivery Order in W.P.No.244 of 2006 24-9-2010