JUDGMENT
Y. Venkatachalam, J.
1. Invoking Article 226 of the Constitution of India, the petitioner-management herein has filed the present writ petition seeking for a writ of certiorari calling for the records of the first respondent in Complaint No. 117 of 1987 in I.D. Nos. 1 to 5 of 1986 and to quash the award dated January 7, 1993.
2. In support of the writ petition, the petitioner herein has filed an affidavit wherein they have narrated all the facts and circumstances that forced them to file the present writ petition and requested this Court to allow the same as prayed for. Per contra, though no counter-affidavit has been filed, the case was contested by learned counsel appearing for the respondents. They argued the matter and justifying the impugned award, they pleaded that the writ petition may be dismissed for want of merit.
3. Heard the arguments advanced by learned counsel appearing for the respective parties during the course of their arguments. I have perused the contents of the affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by learned counsel appearing for the rival parties. I have also considered the various citations relied on by both the parties.
4. In the above facts and circumstances of the case, the only point that arises for consideration is, as to whether there are any valid grounds to allow this writ petition or not.
5. The brief facts of the case of the petitioner as seen from the affidavit are as follows:
The petitioner-management herein is having a textile mill at Nagercoil where it employs about 300 workmen. The workmen employed in the mills are governed by industry-wise settlements and awards made from time to time for the workmen employed in the textile industry in Tamil Nadu. Apart from the workmen directly employed in the mills, the petitioner used to employ some miscellaneous workmen for canteen and garden. The workmen employed in the canteen and garden were paid daily rate of wages and they were not governed by the settlements and awards for the workmen in the textile industry. The present respondents Nos. 2 to 5 were the erstwhile canteen workers, and, as the canteen continued to incur losses, the petitioner decided to entrust the running of the canteen to a contractor and since these workmen expressed that they were not willing to work under the contractor, accordingly, they were provided work for garden maintenance in the mills. The said six workmen, including respondent Nos. 2 to 5, were attending to all garden work such as watering the plants, applying manure, removal of weeds, digging of trenches, etc. On June 25, 1985, respondents Nos. 2 to 5 applied farmyard manure to the coconut plants. On June 26, 1985, when a tempo carrying farmyard manure came to the garden and respondents Nos. 2 to 5 were asked to unload the manure, they refused to do so. In spite of counselling, they persisted in their refusal. On July 3, 1985, respondents Nos. 2 to 5 were served with charge sheets dated July 3, 1985, calling upon them to show cause why disciplinary action shall not to be taken against them. They have given an explanation dated July 5. 1985. As their explanation was not satisfactory, an enquiry was held into the charge against them. Respondents Nos. 2 to 5 participated in the enquiry. On November 5, 1985, the enquiry officer gave his findings holding that the charge against respondents Nos. 2 to 5 was proved. On the basis of the findings of the enquiry officer, a second show-cause notice dated November 20, 1985, proposing punishment of dismissal was issued. Respondent Nos. 2 and 3 gave explanation on November 23, 1985, and respondents Nos. 4 and 5 gave their explanation on November 25, 1985. After considering their representation, orders were passed on December 19, 1985, dismissing respondents Nos. 2 to 5 from service. That time I.D. No. 1 of 1985 before the Special Industrial Tribunal, Madras, was pending. Without realising that respondents Nos. 2 to 5 were not concerned with the dispute, the petitioner preferred Approval: Application No. 4 of 1986. Subsequently, the petitioner was advised that as respondents 2 to 5 were not concerned in I.D. No. 1 of 1985 there was no need to seek approval. Accordingly, on August 1, 1986, the petitioner withdrew the approval applications and the same were dismissed. In August, 1986, respondents Nos. 2 to 5 filed complaints under Section 33-A of the Industrial Disputes Act on the footing that their dismissal was done without seeking approval under Section 33 of the Industrial Disputes Act and as there was contravention of Section 33, they were entitled to invoke Section 33-A of the Industrial Disputes Act. The complaints were numbered as I.D. Nos. 1 to 4 of 1985. After passing of the award by the Special Industrial Tribunal, Madras, in I.D. Nos. 1, 3 and 5 of 1985, the complaints pending before the Special Industrial Tribunal were transferred to the Labour Court, Madurai and after formation of the first respondent, the complaints were transferred from the Labour Court, Madurai, to the first respondent. The complaints of respondent Nos. 2 to 5 were contested by the petitioner, among others, on the ground that there was no violation of Section 33 of the Industrial Disputes Act, and hence the complaints under Section 33-A were not maintainable. Further, the petitioner also justified the dismissal on merits by reference to the show-cause notice, enquiry proceedings and the findings of the enquiry officer. The first respondent has now passed an award dated January 7, 1998, in which he has failed to advert to the contention about the maintainability of the complaints under Section 33-A. The first respondent has held that the enquiry held into the charge against respondents Nos. 2 to 5 was fair and proper and the findings were justified. On merits the first respondent held that respondents Nos. 2 to 5 were guilty of misconduct as found by the enquiry officer. However, the first respondent held that respondents Nos. 2 to 5 were poor workers and as they had expressed their willingness to carry out the work assigned by the petitioner, the punishment of dismissal was not justified. In that view, the first respondent has directed the petitioner to offer employment to respondents Nos. 2 to 5 with continuity of service but without back wages for the period from the date of dismissal to July 7, 1985. It is their case that the award of the first respondent dated January 7, 1993, in Complaint No. 17 of 1987 in I.D. Nos. 1 to 5 of 1986 is vitiated by errors of law and jurisdiction and the same is liable to be quashed.
6. The impugned order is challenged by the petitioner herein on the grounds that the same is vitiated for non-consideration of the petitioner’s objection about the maintainability of the complaints, that the first respondent erred in disposing of the complaints without going into the question whether the complaints under Section 33-A were maintainable and that the first respondent ought to have held that respondents Nos. 2 to 5 were not the workmen concerned in the dispute in I.D. No. 1 of 1985 covered by the order of reference in G.O. Ms. No. 1395, dated July 15, 1985, and as such it was not necessary for the petitioner to seek approval or permission under Section 33 of the Industrial Disputes Act. It is also contended by the petitioner-management that it is not known on what basis the first respondent came to the conclusion that the punishment of dismissal was awarded to respondents Nos. 2 to 5 even after they had expressed their willingness to perform the work assigned to them, and that the first respondent ought to have held that poverty of the workmen would hardly be a justification for commission of misconduct and, therefore, the order of dismissal cannot be interfered with on the ground that respondents Nos. 2 to 5 were poor. It is also their case that at no time, either before or after their dismissal, respondents Nos. 2 to 5 expressed their willingness to perform the work assigned to them, and that being so, there was no justification for the first respondent to hold that the punishment of dismissal was not justified. It is also contended by them that the first respondent should have further held that as persons engaged in garden work, refusal on the part of respondents Nos. 2 to 5 to unload the farmyard manure was incompatible to their employment and that, therefore, no useful purpose would be served by retaining them in employment. Viewed in that context, the punishment of dismissal cannot be said to be harsh or excessive. It is also the grievance of the petitioner herein that the first respondent erred in interfering with the punishment of dismissal awarded to respondents Nos. 2 to 5. It is also their strong contention that if they are to be reinstated now, it will affect the morale and discipline among the miscellaneous workmen, and the other workmen employed in the garden may also resort to refusal of assigned work. Therefore, it is prayed for by them that the impugned award has to be set aside.
7. Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter claims made by the rival parties, the following are the admitted facts. Respondents Nos. 2 to 5 were under the employment of the management herein. Previously, they were all working in the canteen run by the management. Thereafter, due to financial grounds, the management handed over the canteen to a contractor and as these respondents were not willing to work under the said contractor they were given work in the garden of the petitioner, and in the garden they were doing all garden work such as watering the plants, applying manure, removal of weeds, digging of trenches, etc. On June 25, 1985, when respondents Nos. 2 to 5 applied farmyard manure to the coconut plants, a tempo carrying farmyard manure came to the garden and respondents Nos. 2 to 5 were asked to unload the manure, they refused to do so and even after counselling, they persisted in their refusal. Thereafter, charge-sheets were served. Show-cause notice was issued. Explanation was called for and considered, and as the management was not satisfied, an enquiry was held into the said charges. All the respondents participated in the enquiry. The enquiry officer found that the charges against them proved and on the basis of the findings of the enquiry officer, second show-cause notice was issued and after receiving their explanation they were issued with the punishment of dismissal. Ultimately, the matter came before the first respondent-Labour Court and on January 7, 1993, the Labour Court passed the impugned award, awarding reinstatement with continuity of service together with back wages from July 8, 1988. Thus, the Labour Court has awarded them only a punishment for cutting three years wages. That being so, it is significant to note that the Labour Court has clearly recorded a finding that the findings given by the enquiry officer is correct but the punishment of dismissal from service is disproportionate to the proved charges and the Labour Court also observed that they are poor labourers and they are ready to do whatever work the management gives hereinafter. At this juncture it is contended by the petitioner herein that the first respondent erred in disposing of the complaints without going into the question whether the complaint under Section 33-A was maintainable on the ground that respondents Nos. 2 to 5 were not the workmen concerned in the dispute in I.D. No 1 of 1985 covered by the order of reference in G.O. Ms. No. 1395, dated July 15, 1985, and as such it was not necessary for the petitioner to seek approval or permission under Section 33 of the Industrial Disputes Act. Further, in this case, the respondents herein have admittedly refused to perform the work assigned to them, even though they have expressed their willingness to perform the work assigned to them at the time when they were transferred from the canteen to the garden work. It is also contended by the petitioner herein that the poverty of the workmen would hardly be a justification for commission of misconduct and that, therefore, the order of dismissal cannot be interfered with on the ground that respondents Nos. 2 to 5 were poor. In this case, it is the categoric case of the management that at no time, either before or after their dismissal, respondents Nos. 2 to 5 expressed their willingness to perform the work assigned to them and that being so, there was no justification for the first respondent to hold that the punishment of dismissal was not justified. Therefore, in such circumstances of the case, it is rightly contended by them that it is not known on what basis the first respondent came to the conclusion that the punishment of dismissal was awarded to respondents Nos. 2 to 5 even after they had expressed their willingness to perform the work assigned to them. In this case, it is also the strong contention of the management that if these respondents are reinstated now, it will affect the morale and discipline among the miscellaneous workmen, and, the other workmen employed in the garden may also resort to refusal of assigned work. I see every force in the above contentions of the petitioner herein. But, the Labour Court failed to look into these aspects.
8. Though four decisions were relied on by both the petitioner and respondents, only the decisions relied on by the petitioner were produced before this Court while the four decisions relied on by the respondents were not produced for perusal. They are as follows:
1. Instruments Employees’ Union v. Labour Court, [1992] 81 FJR 542;
2. Scooters India Ltd. v. Labour Court, .
3. Workmen v. India Forge and Drop Stampings Ltd. [1996] 89 FJR 141 (Mad); and
4. 2000 (2) LLN 339.
9. Whereas the following four decisions were relied on by learned counsel for the petitioner:
1. C. Rajagopal v. EID Parry Ltd., 1992(1) LLN 546, wherein it has been held that in view of the aforesaid reasoning that the first petitioner cannot be construed as the workman concerned, and, if the first petitioner happened to be the workman not concerned with the dispute for the reasons stated above, there was no need for the employer to seek permission as contemplated under Section 33(2)(b) of the Act.
2. Andhra Bank v. Industrial Tribunal, 1992 (1) LLN 764, wherein it has been held that it is incumbent upon the Tribunal to record a finding whether an employee can be construed as a workman concerned in the dispute before going into merits of case, and in the absence of such a finding, the order of the Tribunal is vitiated and is liable to be set aside.
3. Indian Oxygen Ltd. v. T. Natarajan, 1999 (I) LLN 475 (Mad), wherein it has been held that the action of the respondent withdrawing the permission petition and seeking approval of their action dismissing the workman cannot be said to be either erroneous or improper.
4. Udumbanchola Estate Workers Union v. Indian Cardamom Research Institute, 1998-I-LLJ-1238 (Ker), wherein it has been held that even if the concerned workman was a protected workman merely because the employer fails to file an application under Section 33(3) while imposing punishment of dismissal, it will not per se make the dismissal void. It has also been held therein that in a Section 33-A proceedings, contravention of Section 33 should be proved first. Only when such contravention is proved, application under Section 33 will lie. But, it will still be open to the employer to justify the dismissal on merits. In other words, mere contravention of Section 33 will not make the dismissal void.
10. That being so, it is very clear that the
decisions relied on by the petitioner, support
the case and the stand taken by them in the case
on hand.
11. Therefore, for all the aforesaid reasons and in the facts and circumstances of the case and also in view of my above discussions with regard to the various aspects of this case and also in the light of the decisions discussed above, I am of the clear view that the petitioner herein has clearly made out a case in their favour that the impugned award herein is vitiated by errors of law and jurisdiction and that, therefore, the same is liable to be quashed. Thus, the writ petition succeeds and the same has to be allowed as prayed for.
12. In the result, the writ petition is allowed as prayed for. No costs. Consequently, W.M.P. No. 15526 of 1993 is dismissed.