IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/1/2005
C O R AM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
W.P.No.19009 of 1996
Mohammed Hanifa .. Petitioner
-Vs-
1. The Presiding Officer,
Labour Court,
Coimbatore.
2. Pandalur Indco Tea Factory,
Pandalur rep. by its
Special Officer .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for the relief as stated therein.
For petitioner : Mr.S.Ravi for
M/s.Gupta & Ravi
For respondents : Mr.L.Dwarakanathan for R.2.
:O R D E R
This writ petition has been filed praying to issue a Writ of
Certiorari calling for the records of the award dated 2.11.1995 made in I.
D.No.366 of 1994 on the file of the first respondent and quash the same
insofar as it relates to denial of backwages for the period of non-employment.
2. The petitioner/workman challenges the award passed by the
Labour Court, Coimbatore, relating to the denial of backwages for the period
of non-employment under the second respondent. The petitioner herein and
another were charged for certain alleged misconduct, regarding which an
enquiry was ordered to be held on 5.3.1994 in which the petitioner appeared
and the enquiry date was adjourned to 19.3.1994. The petitioner applied for
medical leave from 8.3.1994 to 6.4.1994 and the same was sanctioned by the
management, but it was not brought to the notice of the enquiry officer. Even
thereafter from 7.4.1994 to 6.5.1994, he extended the leave period, besides
writing a letter seeking postponement of the enquiry, in spite of which, they
proceeded to hold an exparte enquiry on 9.4.1994 and a finding was given on
16.4 .1994 finding the petitioner guilty of the charges levelled against him,
though admittedly the petitioner was on leave. Thereafter, the second
respondent Management passed an order on 30.4.1994 dismissing the
petitioner/workman from service. Aggrieved, the petitioner herein raised a
dispute before the first respondent and an award was passed reinstating the
petitioner with continuity of service, but without backwages and challenging
this portion of the award of denial of backwages, the present writ petition
has been filed.
3. During arguments, the learned counsel for the petitioner,
besides narrating the facts and events, would specifically point out that in
respect of similarly placed persons, the petitioner alone has been singled out
and discriminated because as the secretary of the Workmen Committee, he had to
espouse the cause of the fellow workmen and therefore, the management started
harassing him with frequent memos. and show cause notices on flimsy grounds.
Learned counsel would also submit that there is a gross violation of Section
33(2)(b) of the Industrial Disputes Act, 1947 and the Apex Court has also held
that where there is violation of 33(2)(b) of the I.D. Act, the order of
dismissal is void and inoperative and would refer to a decision of the Apex
Court reported in 2004 (1) LLN 594 (P.Balasundaram v. P.O., Labour Court)
wherein it is held as follows:-
“When S.33 specifically mandates the employer to seek prior permission
under S.33(1) or to seek an approval under S.33(2)(b), merely because the
enabling provision of S.33A entitling the employees to lodge a complaint for
non compliance of the provisions of S.33, the protection accorded to the
employees under S.33 for imposing the punishment of dismissal or otherwise of
the workmen when the dispute before the Conciliation Officer cannot be taken
away and the right for approval as a precondition for dismissal or disch arge
could be deprived. When once this position of law is accepted and factually
such objection was raised by the employees and the same was rejected only on
the ground that the employees have to approach the very Conciliation Officer
under S.33A by making a complaint, I find no merit in the submissions of the
learned counsel for management in this regard. The finding of the Labour
Court that is contrary to the law laid down by the Apex Court cannot be
sustained.
“Once this court comes to the conclusion that the orders of dismissal
were made without any approval under S.33(2)(b) of the Act, the award of the
Labour Court in directing the discharge of the employees with compensation
only cannot be sustained.”
Learned counsel would submit that once violation of Section 33(2)(b) is there,
the order of dismissal is void ab initio and this point has been specifically
made in the claim statement and even though this plea was raised before the
labour court, there was no finding to that effect.
4. Yet another submission of the learned counsel is on the
ground of discrimination. The pertinent point is that discrimination is
attempted to by the management as among the persons similarly placed and the
petitioner alone has been singled out and proceedings were initiated against
and there is no explanation as to why he alone has been singled out and he
would cite a judgment of this Court reported in 19 93 I LLJ 1148, in his
favour wherein it is held as follows:-
“When evidence with regard to the misconduct of a number of workman is
identical, the employer must give rational or reasonable explanation for
awarding different punishments to the different workman on the same
misconduct. If different workman are similarly placed with regard to the
evidence and if the workman are covered by the same set of facts and
circumstances, the employer cannot single out a particular workman for
discriminatory treatment while awarding punishment. If some of the workman
are arbitrarily weeded out for discriminatory treatment, the court will not
hesitate to frown upon such discriminatory treatment.”
5. Learned counsel would also cite a judgment of the Apex
court reported in (2002) 2 SCC 244 (Jaipur Zila Sahakari Bhoomi Vikas Bank
Ltd., v. Ram Gopal Sharma) wherein it is held:-
“The proviso to Section 33(2)(b), as can be seen from its very
unambiguous and clear language, is mandatory. Moreover, 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 ). This
penal provision is again a pointer of the mandatory nature of the proviso. In
other words, 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. Taking a view to the contrary would defeat the very purpose of the
proviso and render the same meaningless. It is well-settled rule of
interpretation that no part of a statute should 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. The protection afforded to a workman under the said provision
cannot be taken away. Otherwise the employer may with impunity discharge or
dismiss a workman.
The view that when no application is made or the one made is
withdrawn, there is no order of refusal of such application on merits and as
such the order of dismissal of discharge does not become void or inoperative
unless set aside under Section 33-A, cannot be accepted. 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).”
6. Learned counsel would further submit that the whole
proceedings would clearly show the vindictive action perpetrated on the part
of the management in singling out the petitioner which has been clearly
arrived at by the labour court and moreover a person who was on leave, unless
it is denied and proved that he was not on leave, no such exparte order could
be passed against him and therefore, the petitioner is entitled to the relief
prayed for by him.
7. In reply, the learned counsel for the second respondent
management would submit that the labour court was right in denying the
backwages for the reason that the employee concerned was charge sheeted for
certain misconduct and the labour court has also held that the petitioner,
along with other employees, are jointly responsible for the delinquency and
has ordered a lesser punishment of denial of backwages to the petitioner.
Learned counsel would also submit that this is the final award passed on
merits and there is a preliminary award passed by the labour court, which is
not challenged.
8. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for both,
what could be assessed is that the award passed by the lower Court relating to
the denial of backwages for the period of nonemployment under the second
respondent has come forward to file the above writ petition on such grounds
extracted supra.
9. A careful perusal of the award passed by the lower Court,
the labour Court would find that the petitioner cannot be singled out and
accused of having committed the delinquency and it is the combined
responsibility of many as it came to be proved from various documents such as
M.Ws.15 and 16 and even from M.Ws. 11 and 12 would ultimately decide that the
petitioner cannot be singled out and accused of having committed any offence
of that sought as he was charged by the management.
10. The labour Court would further find that showing M.Ws.1
to 8 series of documents, the disciplinary authority has arrived at the
conclusion that the petitioner has committed delinquency without considering
the other aspects involved in the case which are vital for consideration and
therefore, the labour Court would validly arrive at the conclusion to hold
that it is erroneous on the part of the Management to have come forward to
accuse the petitioner and proceeded against him and therefore, would order
reinstatement of the petitioner in service but without backwages.
11. The flimsy reason assigned on the part of the labour
Court while ordering reinstatement of the petitioner denying the backwages, is
that in the discharge of responsibilities along with others, the petitioner
has also been slack in his duties and therefore, for the days the petitioner
was not in service, the punishment of denial of backwages will serve the ends
of justice. The conclusion arrived at by the labour Court is not acceptable,
since it is the big question as to what is the punishment that has been meted
out for all those who have been accused of having committed the same offence
along with the petitioner, against whom absolutely no action was initiated by
the Management at all. The simple answer is that since the petitioner also
sails along with the other employees, he cannot be discriminated against and
therefore, since the Management has not bothered about initiating any action
against all those who have been responsible for the commission of the
delinquency, it is only proper not to impose any punishment on the petitioner
alone and therefore, the denial of backwages ordered by the labour Court is
illegal and improper. Since no other valid or proper reasons have been
assigned by the labour Court for having denied the backwages, this Court is of
the view that it is only proper to allow the above writ petition and the same
is ordered accordingly.
In result,
(i). the above writ petition succeeds and the same is
allowed.
(ii). So far as the award dated 2/11/1995 made in I.D.No.366
of 1 994 by the Presiding Officer, Coimbatore, is concerned, denial of the
backwages for the petitioner is set aside.
(iii). Instead, it is ordered directing the petitioner to be
reinstated with all backwages and attendant benefits.
(iv). No costs.
gs/mvs.
Index: Yes/No
website: Yes/No
To
1. The Presiding Officer,
Labour Court,
Coimbatore.
2. The Special Officer
Pandalur Indco Tea Factory,