IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.07.2008
C O R A M
THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA
W.P.No.23446 of 2007
The Management of Futura
Polyesters Ltd., (Formerly known as)
Indian Organic Chemicals Ltd.,
Manali, Chennai 600 068. .. Petitioner
-Vs-
1. The Presiding Officer,
I Addl. Labour Court,
Chennai 104.
2. A. Manoharan. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari, calling for the records relating to the award dated 10.05.2007, passed in Complaint No.1/07, on the file of I Addl. Labour Court, Chennai, the 1st Respondent herein and quash the same.
For Petitioner : Mr.A.L.Somaiyaji,
Senior Counsel for Mr.J.James.
For Respondent 2 : Mr.A.Manoharan,
Party-in-Person.
- - - -
O R D E R
The petitioner is aggrieved against the order of the first respondent Labour Court dated 10.05.2007, passed in Complaint No.1/07.
2. The brief facts which are required to be stated are that the second respondent was employed as plant operator in the petitioner’s manufacturing unit. He remained absent from 09.02.2004, on the ground of Psychosomanic illness. When he reported for duty on 21.02.2004, the petitioner advised him to appear before the Medical Board to ascertain his fitness for duty. Since the second respondent refused to appear before the Medical Board, the petitioner by an order dated 08.09.2004, discharged him from service with retrospective effect on the ground that he was unfit for work.
3. Even before the passing of the order dated 08.09.2004, it is stated that the second respondent raised an Industrial Dispute alleging non-employment from 21.02.2004, which dispute was conciliated upon by the Assistant Commissioner of Labour of the Government of Tamil Nadu. In the Conciliation Proceeding, the petitioner took the stand that the second respondent continue to remain in their service and therefore the Conciliation Officer submitted his failure report on 24.08.2004 and a copy of which was furnished to the petitioner as well as the second respondent on 02.09.2004.
4. After the order of termination dated 08.09.2004, the second respondent approached the first respondent by way of a complaint filed under Section 33 A of the Industrial Disputes Act, hereinafter referred to as the Act, which was taken on the file of the first respondent as I.D.No.465/04. Two years after the said dispute was entertained by the first respondent, the second respondent filed an application in I.A.No.73 of 2006, in the said dispute alleging that what was filed by him was a complaint under Section 33 A and therefore his claim made earlier should be treated as a complaint and dealt with under Section 33 A of the Industrial Disputes Act. Even the said I.A. was stated to have been filed in the form of a memo. The first respondent Labour Court accepted the stand of the second respondent and treated his petition which was earlier numbered as I.D.No.465 of 2004 as a complaint under Section 33A of the Industrial Disputes Act and numbered as Complaint No.1 of 2007.
5. The said order of the Labour Court was challenged by the petitioner in W.P.No.22221 of 2006 and by an order dated 10.10.2006, the said writ petition was also dismissed holding that the conversion of the dispute as a complaint under Section 33 A does not take away the right of the petitioner to contest the same under the provisions of the Industrial Disputes Act. The petitioner however challenged the said order of the learned Single Judge in W.A.No.1324 of 2006 and by an order dated 22.12.2006, the Division Bench affirmed the order of the learned Single Judge. The Special Leave Petition preferred by the petitioner was also dismissed at the admission stage.
6. Thereafter, the complaint was dealt with by the first respondent Labour Court on merits and by the order impugned in this writ petition dated 10.05.2007, the first respondent Labour Court held that the order of termination dated 08.09.2004, was passed in violation of the provisions of Section 33 of the Industrial Disputes Act; that the petitioner failed to hold an enquiry before passing the order of discharge dated 08.09.2004; that the petitioner also did not ask for any opportunity to let in any evidence to support the order of discharge and therefore the petitioner having failed to prove the medical unfitness of the second respondent, the order of termination was invalid. So holding, the first respondent Labour Court directed reinstatement of the second respondent with all backwages, continuity of service and all other attendant benefits.
7. Assailing the same, Mr.A.L.Somaiyaji, learned senior counsel appearing for the petitioner contended that the complaint preferred by the second respondent under Section 33 A of the Industrial Disputes Act itself was not maintainable in the facts and circumstances of the case; that assuming the complaint was maintainable, since the conciliation failure report was received by the petitioner and the second respondent on 02.09.2004, while the order of discharge came to be passed only on 08.09.2004, there was no violation of Section 33 as alleged by the second respondent; that the Labour Court having disallowed the petitioner to cross examine the second respondent on merits, who was examined as WW1, it was not justified in holding that the petitioner failed to establish the merits of the allegations based on which the order of discharge dated 08.09.2004, came to be passed.
8. The learned Senior Counsel further contended that the first respondent Labour Court failed to consider the opinion of the company’s Medical Officers, based on whose certificate, the order of discharge came to be passed. According to the learned Senior Counsel, the first respondent Labour Court in its order dated 08.03.2007, passed in I.A.Nos.15 to 19 of 2007 in complaint No.1/2007 having held that in the interest of justice, petitioner’s additional counter should be received and should be allowed to adduce evidence prevented the petitioner to cross examine the second respondent on merits and thereby committed serious irregularity while passing the impugned award. The learned senior counsel relied upon the decisions reported in 2006 (5) SCC 752, 2006 (9) SCC 643, 2005 (4) APLT 541, AIR 1972 Bom 152, Vol 33 Bom LR 396, 1980 (1) MLJ 395 and 1984 (3) Bombay Case Reporter 36 in support of his submissions.
9. As against the above submissions, the second respondent who appeared as Party-in-Person contended that since the order of discharge dated 08.10.2004, was passed in violation of Section 33(2)(b) of the Industrial Disputes Act, the said order being a nullity, the first respondent Labour Court was justified in declining the request of the petitioner to delve into the merits of the order of dismissal. He also contended that since the maintainability of Section 33 A complaint was dealt with by this Court in the earlier writ petition and the writ appeal, it is no longer open to the petitioner to canvass the very same grounds in this writ petition. The second respondent however, curiously contended that the first respondent Labour Court failed to consider various relevant aspects and therefore it requires remittal. He further contend that the allegation of medical unfitness was not established by the petitioner before the first respondent. According to him the medical unfitness as declared by the Company’s Medical Officer cannot be accepted as he was not competent to issue such a certificate. He relied upon the following decisions in support of his submissions viz., AIR 2001 SC 2090, AIR 1955 SC 258, AIR 1966 SC 380, AIR 2002 SC 643, AIR 1960 SC 160, 2007 (2) LLN 226, AIR 1999 SC 2423, AIR 1953 SC 88, AIR 1998 SC 1681, AIR 1978 SC 311 and AIR 1962 SC 1363.
10. After hearing the learned senior counsel appearing for the petitioner and the second respondent in person, I find the following questions require to be dealt with in this writ petition, viz.,
(a) Whether there was any violation of Section 33 of the Industrial Disputes Act in order to maintain a complaint under Section 33 A of the Industrial Disputes Act ?
(b) Whether the complaint under Section 33 A of the Industrial Disputes Act as preferred by the second respondent was maintainable before the first respondent Labour Court ?
(c) Even if it were to be held that Section 33 A complaint as preferred is not maintainable, whether the first respondent Labour Court had jurisdiction to deal with the claim of the second respondent in the proceedings which culminated in the impugned Award ? (d) Whether the impugned Award is sustainable in law and what is the relief to be granted to the parties ?
11. To consider the first question viz., Whether there was any violation of Section 33 of the Industrial Disputes Act in order to maintain a complaint under Section 33 A of the Industrial Disputes Act, the provisions of the Industrial Disputes Act are required to be referred. Prior to the passing of the order of termination dated 08.09.2004, the second respondent approached the Conciliation Officer viz., the Assistant Commissioner (Conciliation-II) Kurulagam, by filing an application on 27.04.2004. In the said application, the second respondent alleged non-employment on and after 21.02.2004. The said application was filed under Section 2 A of the Industrial Disputes Act. The petitioner filed their counter in the said dispute on 21.07.2004, contending that there was no termination as alleged by the second respondent and that he continue to remain in their service and therefore the dispute as raised under Section 2 A was not maintainable. The Conciliation Officer sent his failure report dated 24.08.2004, to the second respondent and marked copies of the report to the Secretary, Labour and Employment Department, Madras-9, Commissioner of Labour, Joint Commissioner of Labour, Deputy Commissioner of Labour as well as the petitioner. The said report was stated to have been received by the petitioner and the second respondent on 02.09.2004.
12. It is in the above said background, the second respondent preferred the present complaint under Section 33 A before the first respondent Labour Court alleging that there was violation of Section 33 of the Industrial Disputes Act and the petitioner should be directed to reinstate him with all backwages and continuity of service. According to the second respondent, even though the conciliation failure report dated 24.08.2004, was received by both the parties on 02.09.2004, unless the said report had actually been received by the Government, the dispute was deemed to have been pending on the file of the Conciliation Officer and therefore the dismissal order passed on 08.09.2004, prior to the date of such receipt of the Report by the Government was in violation of the provisions of the Industrial Disputes Act.
13. To test the correctness of the above stand of the second respondent, a reference to Section 2A, 12, 20, 22, 33 and 33A have to be made. Section 2A(2) has been inserted by way of amendment by the State of Tamil Nadu by Tami Nadu Act 5 of 1988. While under Section 2A of the Act, even the individual dispute relating to non-employment of the workman should be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute, by inserting sub-section (2) by way of State Government amendment, provision has been made to enable the individual workman to approach the Labour Court for adjudication of the issue of non-employment, if no settlement is arrived at in the course of conciliation proceedings. In order to workout such an easy remedy made available to the individual workman under Section 2A(2), consequential rules have also been introduced in Rules 25A and 25B in the Tamil Nadu Industrial Disputes Rules, hereinafter referred to as the Rules.
14. Rule 25A prescribes that the Conciliation Officer should send a report under sub-section 4 of Section 12 of the Act to the Secretary to Government of Tamil Nadu, Labour Department, Fort St. George, Madras, through the Commissioner of Labour, Madras. Under Rule 25B it is provided that on failure of conciliation in a dispute raised under Section 2(A)(1), the Conciliation Officer should send an intimation to the aggrieved workman with a copy marked to the employer as well as the Commissioner and Secretary to Government, Labour and Employment Department, Madras-9 and Commissioner of Labour, Madras-6 and on receipt of such intimation, the aggrieved workman can apply in Form C-1 to the Labour Court having jurisdiction over the area for adjudication of such dispute. While such dispute should be filed in duplicate, along with the dispute a copy of the intimation received from the Conciliation Officer should also be filed.
15. Section 12 of the Act prescribes the duties of the Conciliation Officers. Under sub-section 4 of Section 12 if no settlement is arrived at in an industrial dispute raised before him, the Conciliation Officer should send a full report to the appropriate Government setting forth the steps taken by him for resolving the dispute and the reasons on account of which, in his opinion, a settlement could not be arrived at. As we are not concerned with the Industrial Dispute as defined under Section 2(k) and we are presently concerned with an individual dispute, which by virtue of Section 2A of the Act is deemed to be an industrial dispute, the other provision contained in Section 12(5) of the Act need not be gone into.
16. Under Section 20 of the Industrial Disputes Act, it is specifically provided that the Conciliation Proceedings should be deemed to have commenced on the date on which a notice of strike or lock-out under Section 22 is received by the Conciliation Officer and such conciliation proceedings should be deemed to have concluded either on account of a settlement reached between the parties or in its absence the failure report of the Conciliation Officer is received by the appropriate Government or when a reference is made with reference to the said dispute to a Court under Section 10 of the Act, even during the pendency of the conciliation proceedings. Section 22 imposes a statutory prohibition in relation to strikes and lock-outs in a public utility service.
17. When the above provisions are examined, I find distinctive features in relation to a collective dispute falling squarely under Section 2(k) of the Industrial Disputes Act, vis-a-vis, the procedure contemplated under Section 12, 20 and 22 of the Industrial Disputes Act as regards the sequences and consequences of conciliation talks in relation to the said dispute, in contrast to an individual dispute raised under Section 2A of the Industrial Disputes Act, which by virtue of a fiction created under the said provision, deemed to be an industrial dispute for which a separate procedure is prescribed to deal with such dispute by the conciliation machinery under Section 2A(2) read along with Section 12 (1) to (4) and the corresponding rules viz. Rules 25A and 25B of the Tamil Nadu Industrial Disputes Rules.
18. It is well settled that a collective dispute under Section 2(k) of the Industrial Disputes Act is one which encompasses very many issues viz., differences between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. Whereas, a dispute under Section 2A concerns only an individual workman and that too with reference to his non-employment either by way of discharge, dismissal, retrenchment or termination in any other form. Since the raising of an industrial dispute even in regard to an individual workman in relation to his non-employment was also covered by Section 2(k) and since such affected individual workmen were facing difficulties in their non-employment issues being raised by way of a collective industrial dispute, the legislature thought it fit to ease out the situation by introducing Section 2A to enable such individual workman to sort out their grievances as regards their non-employment by raising an industrial dispute without any support from any other workman or body of workmen. The Amendment by way of Tamil Nadu Act 5 of 1988 provides a further relaxation enabling the concerned individual workman to invoke Section 2A(2) of the Industrial Disputes Act to approach the concerned adjudicating machinery viz. the Labour Court without waiting for any reference to be made under Section 10 of the Industrial Disputes Act.
19. Therefore, in the present juncture after the introduction of Section 2A in the present form as set out in the Industrial Disputes Act, it can no longer be said that any dispute covered under the said provision should still be equated to the density of a dispute governed by Section 2(k) of the Act read along with Section 10 and the consequential procedure applicable to such a dispute. In as much as the legislature has though it fit to enable the concerned individual workman to seek for a remedy in case of non-employment either at the conciliation level or for getting it adjudicated by approaching the Labour Court without much effort, it will have to be held that such a dispute falling under Section 2A will have to be treated differently then the one covered by Section 2(k) and the consequential procedure set down in dealing with such dispute.
20. Keeping the above said legal background in relation to an individual dispute covered by Section 2A(2) when the other provisions connected thereto are considered and examined, it will have to be held that when an individual workman raises an industrial dispute by invoking Section 2A, in the event of failure of such dispute before the Conciliation Officer, what all required is that as soon as the intimation is received from the Conciliation Officer of the failure report of such conciliation, he will have to straightaway move the appropriate Labour Court within whose jurisdiction the said dispute falls by filing an application in Form C-1. Along with Form C-1 a copy of the intimation received from the Conciliation Officer will have to be filed and thereafter the concerned Labour Court will deal with the said dispute and adjudicate the same as per the procedure prescribed under the Act.
21. The question for consideration is when such a dispute is raised by the workman by invoking Section 2(A) of the Industrial Disputes Act on his own, can it be held that even after the receipt of intimation about the failure of the said dispute by the Conciliation Officer and communicated by the said officer in the manner prescribed under Rules 25A and 25B, it can still be held that the conciliation proceeding continue to remain pending unlike a dispute raised under Section 2(k) of the Industrial Disputes Act, wherein after the failure of conciliation, the report as prescribed under Section 12(4) of the Industrial Disputes Act has to be forwarded to the Government and the appropriate Government will have to examine the scope of making a reference of the said dispute as contemplated under Section 10 of the Industrial Disputes Act. Therefore, the situation as between the dispute raised under Section 2A and the one raised under Section 2(k) are entirely different in its composition.
22. A dispute under Section 2(k) would cover all sorts of disputes by nature of the definition contained in the said provision whereas under Section 2A, the dispute is restricted to an individual workman and that too in relation to his non-employment alone. While under Section 2(k) a reference is made by a specific order passed by the State Government, in respect of a dispute raised under Section 2A by virtue of Tamil Nadu Act 5 of 1988 by invoking Section 2A(2) immediately after the receipt of the failure report, the workman concerned can straightaway approach the Labour Court along with a copy of the intimation received from the Conciliation Officer. Keeping the nuances relating to the disputes falling under Section 2(k) and Section 2A in mind, the restrictions imposed under Section 33 of the Industrial Disputes Act along with the other provisions have to be examined.
23. Under Section 33, the restrictions are three fold. While under sub-section (1) permission is required to be obtained from the Authority before whom the proceeding is pending, under sub-section (2) approval of the said Authority has to be obtained. Under sub-section (3) in respect of protected workman prior permission will have to be obtained from the very same Authority. One common requirement prescribed in all the three sub-sections of Section 33, is that either the permission or the approval will have to be obtained from the Authority before whom either the conciliation proceedings or dispute is pending consideration. One other special feature of Section 33 is that it contemplates the maintenance of either conditions of service in relation to the workman concerned to remain unaltered or the termination of employment of any of the workman concerned in the dispute; during the pendency of the conciliation proceedings or the industrial dispute as the case may be; depending upon the order to be passed by the Authority concerned as the case may be.
24. While considering the scope and ambit of Section 33, the Hon’ble Supreme Court in an earlier decision reported in Automobile Products of India Ltd vs. Rukmaji Bala (1955) 1 LLJ 346 took the view that the purpose of the prohibitions contained in Section 33 were two fold viz., on the one hand, they are designed to protect the workmen concerned during the course of industrial conciliation, arbitration and adjudication, against employer’s harassment and victimisation, on account of their having raised the industrial dispute or their continuing the ‘pending proceedings’, while on the other hand they seek to maintain status quo by prescribing management conduct which may give rise to ‘fresh disputes which would further exacerbate the already strained relations between the employer and the workmen’. In a later decision reported in Boisahabi Tea Estate vs. Presiding Officer, Labour Court, Dibrugarh 1981 Lab IC 557 it was held that the Section is made for the protection of ‘the workman concerned in the dispute’ against victimisation by an employer on account of his having raised an industrial dispute or his being a party to a pending industrial proceeding and to ensure that pending industrial disputes are brought to an expeditious determination in a peaceful atmosphere, without being disturbed by any subsequent cause tending to accelerate or deteriorate the already strained relationship between the management and the workman. In yet another decision, the Hon’ble Supreme Court held that in all cases, where industrial disputes are pendente lite before an authority mentioned in Section 33, it was thought necessary that such disputes should be conciliated or adjudicated upon by the authority in a peaceful atmosphere, undisturbed by any subsequent causes for bitterness or unpleasantness. In order to achieve the said object, a ban was imposed upon the employer from exercising his common law, statutory or contractual right to terminate the services of his employees or alter the terms of such services to their prejudice.
25. It will have to be stated therefore that the said two expressions ‘pending conciliation proceeding’ or ‘pending dispute’ in relation to a comprehensive collective industrial dispute under Section 2(k) in contrast to the one falling under Section 2A will have to be analyzed independently and there cannot be any blindfolded approach to the vexed question. As stated earlier, the complexities in relation to an industrial dispute falling under Section 2(k) varies in very many degrees when compared to an industrial dispute covered by Section 2A of the Act. When the purport of the ban imposed under Section 33 as highlighted by the Hon’ble Supreme Court are applied, it will have to be held that in respect of an industrial dispute falling under Section 2(k) which invariably concerns a collective dispute backed by substantial section of workmen, any alternation either in the terms of employment by resorting to termination of any employee connected with the dispute will have far reaching consequences and that would have very serious impact in dealing with the dispute either by the Conciliation Officer or by the adjudicating authority.
26. The complexity and nature of consequences arising out of an industrial dispute under Section 2(k) is far different from the industrial dispute falling under Section 2A of the Act. It is therefore imperative that a new look is made while considering the dispute falling under Section 2A as compared with the one falling under Section 2(k) of the Act vis-a-vis the application of Section 33 of the Act. Though the applicability of Section 33 of the Industrial Disputes Act in respect of an industrial dispute falling under Section 2(k) as well as the one falling under Section 2A is common, having regard to the nature and extent of impact in respect of the violation of Section 33 of the Act in different situations, I am of the view that having regard to the specified procedure prescribed under Rules 25A and 25B of the Tamil Nadu Rules in respect of the conclusion of the conciliation proceeding in respect of the dispute covered by Section 2A of the Act, a stringent application to all the procedure as it has been contemplated in respect of the conclusion of the conciliation proceedings in respect of an industrial dispute falling under Section 2(k) cannot be ipso facto applied. In other words while in respect of an industrial dispute covered by Section 2(k) and the commencement of conciliation proceeding by virtue of application of Section 22(1) of the Industrial Disputes Act in respect of public utility service and thereby the prescription contained under Section 20(2) of the Industrial Disputes Act comes into play in order to ascertain the conclusion of conciliation proceedings, it looms large in ones mind whether such a procedure should be extended even to a dispute covered under Section 2A of the Act. When the various implications of Section 33 as laid down by the Hon’ble Supreme Court are examined, I find one factor stated in the earliest case reported in Automobile Products of India Ltd vs. Rukmaji Bala (1955) 1 LLJ 346 was that during the course of industrial conciliation, arbitration and adjudication, the employers harassment by way of victimization should not be allowed on account of a dispute raised by the workmen which is pending. The very expression used by the Hon’ble Supreme Court namely industrial conciliation, arbitration and adjudication is referred only to a larger issue concerning the whole lot of workmen and in that situation, the employer should not be allowed to create a dent in the process of conciliation by resorting to any change in the working condition including by way of discharge, dismissal, retrenchment or any other form of termination. Apparently, when the collective dispute concerning the entire labour force is pending before the conciliation machinery, it is quite understandable that the attempt of the Conciliation Officer in bringing about a settlement should not be allowed to be thwarted by any party to the dispute by indulging in any action that will mar the process of conciliation. When the said basic concept contemplated of in relation to a collective dispute is compared with a deemed industrial dispute relating to a single case of non-employment, it is very difficult to hold that the said concept can be ipso facto applied irrespective of its consequences. Even in the case on hand, admittedly, the dispute originally raised by the second respondent was with reference to his alleged non-employment from 21.02.2004. When he raised the said dispute on 27.04.2004, the second respondent was very much in the service of the petitioner. The said fact was brought to the notice of the Conciliation Officer in the petitioner’s reply dated 21.07.2004, therefore, there was no dispute at all, much less, a dispute of non-employment of the second respondent with reference to which any conciliation could have taken place. The case of non-employment pleaded by the second respondent was therefore an imaginary one.
27. In my humble opinion the legislature having carved out the dispute relating to non-employment of the individual workman be governed by Section 2(A) of the Act by prescribing a more easy procedure and the State Government having further liberalised the said procedure to enable the workman to straightaway approach the concerned Labour Court on receipt of the intimation from the Conciliation Authority, the initiation and conclusion of the said proceeding will have to be examined by restricting the scope and ambit of the said procedure within a limited prescription contained under Section 2A of the Act read along with Rules 25A and 25B of the Tamil Nadu Industrial Disputes Rules. I say so because the individual dispute of non-employment concerns that single workman alone, where the broader principle set out in relation to an Industrial Dispute falling under Section 2(k) need not necessarily be applied and thereby making the procedure more cumbersome as that will not be in the interest of the workmen concerned in the dispute relating to his non-employment. After all the intention of the legislature can be easily visualised to the extent that such a dispute of non-employment of individual workman will have to be conciliated upon quickly and in the event of its failure, to be adjudicated upon at the earliest possible time. If that be so, the prescription contained in Section 20(2) of the Industrial Dispute Act to the effect that conciliation proceeding can be said to conclude only on the date of receipt of a failure report by the appropriate Government will have to be restricted to in respect of the disputes governed by Section 2(k) and 22 of the Industrial Disputes Act and the same need not and to be more precise should not be extended to a dispute covered by Section 2A of the Industrial Disputes Act.
28. In other words, while the violation of Section 33 of the Industrial Disputes Act will get attracted in respect of an industrial dispute whether it be raised under Section 2(k) or under Section 2A of the Act, the stringent prescription of receipt of conciliation proceedings by the State Government as stipulated under Section 20(2) of the Act can be applied in all fours in respect of a substantive industrial dispute covered by Section 2(k) of the Act, the same will not be the case in respect of a dispute covered by Section 2A of the Act. It will have to be reiterated that only by way of a fiction created under Section 2A(1), the individual dispute relating to non-employment is deemed to be an industrial dispute. By creating such an easy procedure for raising an industrial dispute under Section 2A and also seek for adjudication of the said dispute by invoking Section 2A(2) of the Act, the legislature mainly intended to ensure that an individual dispute relating to non-employment should not drag on for an indefinite period and that it should reach its conclusion at the earliest point of time. That is the reason why the State Government while inserting sub-section (2) to Section 2A thought it fit to add on Rules 25A and 25B to enable the individual workman to move the adjudication forum viz. the Labour Court without waiting either for the receipt of the conciliation report by the appropriate Government or any reference being made under Section 10 of the Act. In respect of those disputes, what all required is the enclosure of a copy of the intimation received from the Conciliation Officer along with Form-C1 to ignite the Labour Court to commence the adjudication process, no sooner the conciliation proceedings ends in failure. In this context when the decision of the Hon’ble Supreme Court reported in AIR 1999 SC 2422 (M/s. Sardar Construction Co., Vs. State of Gujarat) relied upon by the second respondent is referred to, in the first place it will have to be noted that the said decision came to be rendered in respect of a collective dispute concerning more than one workman which was pending, wherein the question as to when the conciliation came to an end was considered. It was in that context, the Hon’ble Supreme Court by referring to Section 20(2)(b) of the Act held that the conciliation proceeding should be deemed to have concluded only when the failure report of the Conciliation Officer is received by the appropriate Government. Having regard to the distinction made out as between a collective dispute falling under Section 2(k) and an individual dispute falling under Section 2A, the ratio of the said decision can have no application. I am convinced that the question of conciliation failure report being received by the State Government, in order to ascertain whether the proceedings have come to an end will not apply to a case of an individual dispute.
29. While referring to the above decision of the Hon’ble Supreme Court, it will be useful to refer to an earlier decision of the Hon’ble Supreme Court reported in 1975 4 SCC 332 (Chemicals & Fibres of India Ltd., Vs. D.G.Bhoir). That was a converse case where the question was, whether the ban imposed under Section 23 of the Industrial Disputes Act will equally apply to an individual dispute covered by Section 2A of the Industrial Disputes Act. That was a case where an individual dispute raised under Section 2A of the Act came to be referred for adjudication to the Labour Court under Section 10(1)(c) of the Act, which relates to dismissal of a single workman. During the pendency of the said dispute three other workmen were also dismissed, which resulted in a strike in the factory of the management. As a sequel to it, 312 employees came to be discharged and 12 applications were filed for approval of such discharge before the Industrial Tribunal on the ground that reference was pending before it. The management contended that the strike was illegal by virtue of the pendency of Section 2A dispute vis-a-vis the ban imposed under Section 23 and 24 of the Industrial Disputes Act. Dealing with the said issue, the Hon’ble Supreme Court made a distinction as between a collective dispute falling under Section 2(k) and an individual dispute falling under Section 2A of the Act. After a detailed reference to almost all the relevant provisions of the Act, the Hon’ble Supreme Court has stated the legal position has under in paragraphs 5 & 7 viz.,
“5……The prohibition of strikes during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal under Section 23 was, in the Act as originally enacted, confined only to disputes between the employer and the general body of employees and not to individual workmen. It is in that context that Section 23 should be interpreted. In the case of an industrial dispute between an individual workman and the employer the whole elaborate machinery earlier set forth of the Industrial Disputes Act may not be necessary lest it would be like using a sledge-hammer to kill a flea. While there is justification for preventing a strike when a dispute between the employer and the general body of workmen is pending adjudication or resolution, it would be too much to expect that the legislature intended that a lid should be put on all strikes just because the case of a single workman was pending. That the general body of labour should be prevented from resorting to strike where they had chosen to espouse the cause of a single workman is understandable and reasonable. It has even been held that if the employer and workmen are parties to a reference the decision therein binds them even though they may have said they were not interested in it (Ballarpur Collieries v. Presiding Officer). But if strikes are to be prohibited merely because the case of an individual workman was pending, whose case had not been espoused by the general body of the workmen, there can never be any strike even for justifiable grounds. A strike is a necessary safety valve in industrial relations when properly resorted to. To accede to the contention of the employer in this case would be in effect acceding to a contention that there should never be a strike. While we realise the importance of the maintenance of industrial peace, it cannot be secured by putting a lid on the legitimate grievances of the general body of labour because the dispute relating to an individual workman under Section 2-A is pending. That might mean that the boiling cauldron might burst. In that case the general body of workmen would be legitimately aggrieved that they are prevented from striking because an individuals case was pending with which they were not concerned. It is not enough in this situation to say that it is always open to the Government to make a reference under Section 10. It may or may not happen. Furthermore, the matters that could be pending before a Labour Court under Section 23 under the Second Schedule are:
1. The propriety or legality of an order passed by an employer under the standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and
6. All matters other than those specified in the Third Schedule.
The propriety or legality of an order passed by an employer under the standing orders very often might refer to an individual workman and that should not be made the reason for preventing labour from giving vent to its legitimate grievances in a legitimate way.
6……
7. We are therefore of opinion that the proper point of view from which to look at the problem is to give limited application to the fact of the introduction of Section 2-A in the Industrial Disputes Act and to hold that the pendency of a dispute between an individual workman as such and the employer does not attract the provisions of Section 23.”
30. The said decision came up for consideration before the Hon’ble Supreme Court in the subsequent decision reported in 1999 6 SCC 275 (Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad), while distinguishing the said decision in the facts and circumstances of the case dealt with by the Hon’ble Supreme Court, the legal position as regards the pendency of an individual dispute falling under Section 2A vis-a-vis Section 33 of the Act, has been lucidly set out by the Hon’ble Supreme Court in paragraph 28 which reads as under:
“28…..Learned counsel for the appellant in support of his contention seeking a dichotomy between the concept of pendency and concept of deemed conclusion of proceedings placed strong reliance on a decision of this Court in Chemicals & Fibres of India Ltd. v. D.G. Bhoir. In that case this Court was concerned with an entirely different situation under Section 2-A of the ID Act after it was brought on the statute-book. As per this provision, an individual dispute raised by a workman who had suffered dismissal from service was to be considered as an industrial dispute within the meaning of the relevant provisions of the Act so that such a dispute could be conciliated upon, arbitrated or could be referred for adjudication before competent authorities under the Act. For that limited purpose, an individual workman could be said to have raised an industrial dispute. The question before this Court was whether raising of such a dispute by an individual workman which was not sponsored by a large body of workmen could attract Section 33 of the ID Act even qua other workmen who had nothing to do with this individual dispute. Answering the question in the negative, it was held by this Court that the fiction created by Section 2-A had a limited effect and could not be pressed into service for applicability of Section 33(1) in connection with lockout qua other workmen who were not parties to the said industrial dispute. In that case during the pendency of such individual dispute the appellant Company before this Court discharged about 312 of its employees and filed 12 applications before the Industrial Tribunal for approval of such a discharge on the ground that a reference was pending before it. The question was whether these applications were maintainable for approval under Section 33(1) when the dispute which was pending before the Industrial Tribunal was one under Section 2-A of the ID Act. In this connection, it was held by this Court that the legal fiction created by Section 2-A had a limited effect and those workmen who were not parties to such a dispute, if had gone on strike, it could not be said that their strike was necessarily illegal…..” (emphasis added)
31. The second respondent placed reliance upon the decision reported in AIR 1955 SC 258 (Automobile Products of India Ltd., Vs. Rukmaji Bala) in particular paragraph 8. The Hon’ble Supreme Court in that particular paragraph 8 while considering Sections 23 and 29 of the Industrial Disputes (Appellate Tribunal) Act, 1950, set out four relevant concepts to be noted. Since we are not concerned with the said provisions in the case on hand, I am not dealing with the contentions based on the said judgment in this order. In the other decision relied upon by the second respondent in AIR 1966 SC 380 (Tata Iron and Steel Co. Ltd., Vs. S.N.Modak), the Hon’ble Supreme Court held that Section 33A has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of Section 33. The Hon’ble Supreme Court however made it clear that the grievance relating to such violation can be raised by way of a complaint under Section 33A only to the specified Authority who will have to deal with the case as if it were an industrial dispute. There can be no quarrel with regard to the said proposition. The question as to whether the second respondent has preferred his complaint in accordance with the said prescription before the concerned authority will have to be seen. Even in the decision reported in AIR 2002 SC 643 (Jalpur Z.S.B.V Bank Ltd., Vs. Shri Ram Gopal Sharma) relied upon by the second respondent, the Hon’ble Supreme Court has held that Section 33A is available to an employee and it is intended to save his time and trouble in as much as it makes a complaint before the very Authority where the Industrial Dispute is already pending between the parties, instead of making the efforts to raise an industrial dispute for the purpose of adjudicating the issue relating to non-employment.
32. It is common ground that when the second respondent raised the dispute under Section 2A(2) of the Act, he was in the services of the petitioner and the failure report was admittedly received by both the parties on 02.09.2004. The termination order came to be passed only on 08.09.2004, which was received by him on 09.09.2004 at 4.00 pm.
33. Going by the above factual matrix, it can be safely held that after the receipt of the Conciliation failure report dated 24.08.2004 and later after the termination order dated 08.09.2004, the second respondent filed a complaint before the first respondent Labour Court under Section 33 A of the Act on 27.09.2004. Assuming for a moment that such a complaint filed in the office of the first respondent can be entertained, going by the details of the dates mentioned above and in the light of my conclusion that the receipt of the failure report results in conclusion of the conciliation proceeding themselves, there was no scope for invoking Section 33A of the Act at the instance of the second respondent. I therefore hold that there was no violation of Section 33 at all in order for the second respondent to prefer a complaint under Section 33A of the Industrial Disputes Act. I accordingly answer the question as above.
34. The next question for consideration is whether a complaint under Section 33A of the Industrial Disputes Act as preferred by the second respondent was maintainable before the first respondent Labour Court. Before dealing with the said question, it is necessary to briefly refer to the earlier order of the Labour Court passed in I.A.No.73 of 2006 in I.D.No.465 of 2004 by the first respondent and the subsequent orders of the learned Single Judge of this Court in W.P.No.22221 of 2006 dated 10.10.2006, the Division Bench Judgment dated 22.12.2006 in W.A.No.1324 of 2006 and the order of the Hon’ble Supreme Court dated 25.01.2007, passed in S.L.P. (Civil) No.662 of 2007.
35. When the second respondent preferred his complaint under Section 33A, the same came to be entertained by the first respondent Labour Court as an industrial dispute and the proceedings was numbered as I.D.No.465 of 2004. In fact in the said petition dated 27.09.2004, itself, the second respondent though stated that he preferred the said proceedings under Section 33A of the Industrial Disputes Act, in the cause title portion, it was mentioned as an industrial dispute. Apparently misled by the nomenclature given by the second respondent, the office of the first respondent appeared to have numbered the said proceeding as an industrial dispute by registering it as I.D.No.465 of 2004. The petitioner filed its counter statement on 27.12.2005. Much later on 11.03.2006, the second respondent filed I.A.No.73 of 2006 pointing out that what was preferred by him was a complaint under Section 33A and not an industrial dispute. A counter statement was filed on behalf of the petitioner opposing the said application inter alia contending that Section 33A complaint could not have been preferred before the first respondent Labour Court and therefore what was preferred was only a dispute falling under Section 2A(2) of the Industrial Disputes Act. By an order dated 23.06.2006, the first respondent Labour Court held that the claim made by the second respondent will have to be entertained as a complaint under Section 33A and will have to be disposed of as such and examine whether there was any violation of Section 33 of the Industrial Disputes Act. The first respondent went on to state that the second respondent will be at liberty to file an industrial dispute under Section 2A(2) of the Industrial Disputes Act, based on the failure report of the Assistant Commissioner of Labour dated 24.08.2004, if he so desired.
36. The writ petition preferred by the petitioner in W.P.No.22221 of 2006 as against the order of the first respondent dated 24.08.2004 was also dismissed by a learned Single Judge holding that by the conversion of the dispute as a complaint, the right of the petitioner Management available under the provisions of the Industrial Disputes Act was not taken away. In fact the only issue involved in the writ petition was the correctness of the order of conversion of the industrial dispute as a complaint under Section 33A. The question whether there was any violation of Section 33 of the Industrial Disputes Act and the sustainability of the alleged violation was not required to be considered at that stage. Therefore, the said order of the learned Single Judge only confirmed that the Labour Court was fully justified in converting the Industrial Dispute as a complaint under Section 33A of the Industrial Disputes Act.
37. When the petitioner challenged the order of the learned single Judge in W.A.No.1324 of 2006, the Division Bench also confirmed the order of the learned Single Judge. The Division Bench however took a view that in the case on hand, there was no information as to when the Government received the failure report in terms of Section 20(2)(b) of the Industrial Disputes Act. Therefore, in the absence of such relevant information, it should be held that the proceedings before the Assistant Commissioner of Labour has to be considered as not concluded and deemed to be pending. Even before the Division Bench, the discussion centered around Section 20(2) of the Industrial Disputes Act. Ultimately, the Division Bench also held that in as much as the decision of the Labour Court only prima facie concluded for the disposal of I.A.No.73 of 2006, they are unable to accept the contention of the Management that the Labour Court has gone into the merits and pre-concluded the issue. So holding, the Division Bench also declined to interfere with the order of the Labour Court as well as that of the learned Single Judge. The Special Leave Petition preferred by the petitioner also ended in a failure as the same was dismissed by the Hon’ble Supreme Court on 25.01.2007.
38. The above orders in my considered opinion has not concluded the issue as regards the sustainability of the complaint before the first respondent in as much as both the learned Single Judge as well as the Division Bench have ultimately held that whatever stated by the Labour Court was only for the purpose of disposal of I.A.No.73 of 2006, which was only for converting the industrial dispute as a complaint under Section 33A. After the conversion was thus allowed by the Labour Court and also confirmed by this Court as well as the Hon’ble Supreme Court, the real issue had to be necessarily examined by the first respondent Labour Court which relates to its maintainability as well as sustainability. In this respect, I am fortified by the following decisions. In the decisions reported in Mayuram Subramanian Srinivasan Vs. CBI (2006 5 SCC 752), the Hon’ble Supreme Court has held as under in paragraph 10 and 11:
10. In State v. Ratan Lal Arora it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands on a par, if not on a better footing. The provisions of Section 439 do not appear to have been taken note of.
11……To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience……
Similarly in the decision reported in Union of India and Another Vs. Manik Lal Banerjee reported in (2006 9 SCC 643), the Hon’ble Supreme Court has held as under in paragraph 19 as under:
19. It is now well settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court in Pritam Singh while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent. The Tribunal and consequently the High Court, therefore, committed a manifest error in holding otherwise.
It will also be worthwhile to refer to the decision of the learned Single Judge of the Bombay High Court reported in AIR 1972 Bom 152 (Shivamurti Vs. Vijaysing Vinayakrao Dubhe). The learned Single Judge has stated the legal position as under in paragraph 4:
4……It is a platitude that hard cases make bad law. In such cases, the remedy, if any, lies with the legislature and not with the court which must interpret an enactment as it stands.
The said principle was also followed by this Court in the decision reported in The State of Tamil Nadu, represented by the Accommodation Controller Vs. K.N.Dhanasekaran (1980 1 MLJ 395). In the Division Bench decision of the Bombay High Court reported in Maruti Babaji Vadekar Vs. Ramchandra Balvant Punekar (1931 33 BOMLR 396) the Division Bench as held as under in paragraph 16:
16……We must bear in mind the course that hard cases make bad lawas the saying isand that if the law is clear then it must not be strained or unreasonably stretched even for the purpose of avoiding injustice…….
39. With that view, when I examine the alleged violation of Section 33 of the Industrial Disputes Act as a complaint by the second respondent, in the foremost it will have to be held that in order to invoke Section 33A the basic requirement is it should be launched only before the concerned authority before whom the so called proceedings are pending during which the alleged violation of Section 33 has taken place. The very opening words of Section 33A are to the effect that Where an employer contravenes the provisions of Section 33 during the pendency of the proceedings before a Board, Conciliation Officer, etc., any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner to such Conciliation Officer or such other Authority and that such complaint should be taken into account by the concerned Conciliation Officer in mediating and promoting the settlement of such industrial dispute. Therefore, at the outset it will have to be examined whether the present complaint preferred by the second respondent before the first respondent Labour Court can be strictly held to be a proceeding maintainable under Section 33A of the Act, in as much as no proceedings by way of an industrial dispute was pending before the first respondent Labour Court. For a complaint under Section 33A to be maintained before the first respondent Labour Court, there should have been a dispute pending before it connected with the issue relating to the second respondent himself vis-a-vis the petitioner.
40. Going by the specific provisions contained in Section 33A of the Act, it is difficult to accept that in respect of a complaint which was preferred before the Assistant Commissioner of Labour, a violation can be complained of by way of an application under Section 33A. Such a procedure adopted by the second respondent was wholly impermissible in law while applying the provisions contained in Section 33 A vis-a-vis the violation complained of under Section 33 of the Act. Therefore, at the very threshold it will have to be held that a complaint preferred under Section 33A before the first respondent Labour Court in the absence of any dispute pending before it concerning the second respondent was not maintainable at all. To put it differently, if at all the first respondent were to entertain a complaint from the second respondent under Section 33A of the Industrial Disputes Act, there should have been a proceeding pending before the first respondent Labour Court concerning the second respondent. Only then there would have been any scope for the second respondent to allege any violation of Section 33 based on the dismissal order dated 08.09.2004. It is unfortunate that the said basic and fundamental principle for application of Section 33A has been completely omitted to be considered by the first respondent Labour Court while passing the order impugned in this writ petition. Therefore, I am constrained to hold that the complaint as preferred by the second respondent under Section 33A of the Industrial Disputes Act before the first respondent Labour Court was not maintainable at all. I answer the question accordingly.
41. Even if it were to be held that Section 33A complaint before the first respondent was not maintainable it will have to be found out, whether the first respondent Labour Court could have dealt with the claim of the second respondent in the proceedings which culminated into the impugned Award. Though on the face of it, a complaint preferred under Section 33A was not maintainable before the first respondent Labour Court, I am of the view that the claim of the second respondent cannot be rejected on such a hyper technical ground. Merely because the second respondent captioned his claim under Section 33A, it cannot be held that the application is really one falling under the said provision. In any event, since in the earlier round of litigation, the conversion of the dispute as one under Section 33A, having been allowed which was also confirmed by this Court, it will not be appropriate to reject the claim of the second respondent on that preliminarily ground. Further even as per Section 33A when the complaint is preferred before the Labour Court, such a complaint should be adjudicated as if it were a dispute preferred before it and dealt with in accordance with the provisions of the Act and the first respondent should submit its Award, to which the other provisions would apply. Therefore, if the complaint of the second respondent alleging violation of Section 33 is taken for its face value, the consequence would be that such a complaint will have to be dealt with as if it were an industrial dispute and the first respondent should pass an Award accordingly.
42. The second respondent placed reliance upon the decision of the Hon’ble Supreme Court reported in AIR 1960 SC 160 (Punjab National Bank Ltd., Vs. All India Punjab National Bank Employees’ Federation) and AIR 1978 SC 311 (Western India Match Co. Vs. Third Industrial Tribunal) and contended that the application made under Section 33A of the Act will have to be dealt with as if it is a reference under Section 10 of the Industrial Disputes Act. Therefore, I hold that even though the so-called complaint preferred by the second respondent under Section 33A was not maintainable in the stricto-senso of the relevant provisions, yet in the light of the fact that the complaint was authorised to be entertained by the Labour Court, as confirmed by this Court and the Hon’ble Supreme Court, the first respondent Labour Court was well justified in dealing with such a complaint on merits by way of adjudicating it as an industrial dispute. Moreover, the claim of the second respondent in the petition filed by him before the first respondent Labour Court by alleging violation of Section 33 was for a direction to set aside the order of termination and pass appropriate orders. I therefore hold that even though the proceedings were initiated by the second respondent as one under Section 33A of the Industrial Disputes Act, having regard to the orders of this Court as well as the stipulations contained in Section 33A(2) of the Industrial Dispute Act, there was nothing wrong on the part of the first respondent Labour Court in dealing with the merits of the claim of the second respondent by adjudicating the claim as though it was an Industrial Dispute. It is well settled that mere reference to a wrong provision of law will not defeat the claim, if that claim is otherwise maintainable in law. Therefore, applying the said principle, when the second respondent had admittedly raised an industrial dispute alleging non-employment under Section 2A(2) of the Act, there was every justification in dealing with the said dispute by the first respondent Labour Court. Question No.(c) is answered accordingly.
43. With this when I come to the last question as to the sustainability of the impugned Award and the relief to be granted, I find that before the first respondent Labour Court, the petitioner preferred five applications in I.A.Nos.15 to 19 of 2001. That apart the petitioner also filed an additional counter statement in complaint No.1/2007, wherein the petitioner specifically prayed for a full-fledged enquiry to be held and opportunity to be extended to the petitioner for oral as well as documentary evidence to be adduced to support the order of dismissal.
44. In I.A.No.15 of 2007, the petitioner specifically prayed for permission to reopen the complaint for the purpose of oral and documentary evidence on its side. In I.A.No.16 of 2007, the petitioner pleaded for permission to file additional counter in the complaint. In I.A.No.18 of 2007, the petitioner pleaded for receipt of additional documents on its side. In I.A.No.19 of 2007 the petitioner prayed for letting in oral evidence for marking the documents filed on its side. In I.A.No.17 of 2007, the petitioner wanted to summon the files from the Assistant Commissioner of Labour in order to ascertain as to on what date, the failure report was actually received by the State Government. By a common order dated 08.03.2007, the first respondent allowed I.A.Nos.15,16,18 and 19 of 2007 and dismissed I.A.No.17 of 2007. The second respondent preferred I.A.No.22 of 2007 claiming interim relief which was however rejected by the first respondent along with the above I.A. Nos.15 to 19 of 2007 by the said common order.
45. In the course of the cross examination of WW1 viz., the second respondent, the first respondent has passed the following order at the very inception viz., :-
VERNACULAR (TAMIL) PORTION DELETED
(Emphasis added)
Therefore, the petitioner was prevented from putting any question to the second respondent in the course of the cross examination as regards the merits of the non-employment. Similarly in the course of cross examination of MW1 also the first respondent Labour Court has passed a similar order to the following effect:
VERNACULAR (TAMIL) PORTION DELETED
Therefore, while on the one hand the first respondent Labour Court allowed the petitioner’s application to reopen the evidence, marking of documents and also examining necessary witnesses, unfortunately prevented the petitioner from letting in any evidence on the merits of the non-employment of the second respondent. In fact, in the additional counter statement filed in Complaint No.1 of 2007, a specific claim was made by the petitioner that it should be permitted to let in evidence to sustain the order of dismissal. When once the complaint was entertained and dealt with by the first respondent Labour Court and was adjudicated upon as though it was an industrial dispute relating to the non-employment of the second respondent, there is no reason why the first respondent Labour Court prevented the petitioner from either letting in any evidence on merits or from putting any question to the second respondent as regards the merits relating to his non-employment.
46. At this juncture, it will be appropriate to reiterate as to how the non-employment of the second respondent as claimed by the petitioner came into being. According to the petitioner the second respondent produced medical certificate dated 21.02.2004, certifying that he was under treatment for Acute Depression from 09.02.2004 to 20.02.2004 and fit for duty from 21.02.2004. But on medical examination by the Company’s Medical Officer, he was not found fit to resume work on 21.02.2004 also. The petitioner is stated to have therefore directed the second respondent to appear before the Medical Board of the Government Hospital, Chennai for their assessment and opinion with regard to the physical fitness of the second respondent and that the second respondent failed to appear before the Medical Board and therefore his service had to be terminated on the ground of medical unfitness in the Electrical Department of the petitioner company.
47. Therefore it is for the petitioner to substantiate and justify the said order of termination before the first respondent Labour Court. Unfortunately, since the first respondent Labour Court has totally prevented the petitioner from letting in any evidence on merits, the petitioner was denied a valuable opportunity in that respect. When the Impugned Award of the first respondent Labour Court is perused, I find that quite contrary to its own conclusion while recording the evidence of WW1 and MW1, it made a specific statement in paragraph 13 that an enquiry in respect of a complaint under Section 33A cannot be confined to contravention of Section 33 alone and can go further and deal with the merits of the order of discharge or dismissal. The first respondent Labour Court wanted to draw support to the said conclusion on the decision of the Hon’ble Supreme Court reported in Automobile Products of India vs. Rukman Bala reported in AIR 1955 SC 258 and Punjab Beverages P. Ltd., vs. Suresh Chand reported in AIR 1978 SC 995. In para 15 it was held as follows:
15….. As per the above principle, the employer who wants to avail the opportunity of adducing evidence for the first time before the Tribunal to justify its action should ask for it at the appropriate stage. Here, the employer neither asked to adduce evidence to justify its action either in its counter or at the appropriate stage. During cross examination of W.W.1, the petitioner was not allowed to question with respect to merits. The fact remains that no enquiry was conducted before passing the order of termination. Therefore, without leave to the Court at the appropriate stage, the management is not entitled to adduce evidence to justify its action. The management has not sought for permission to adduce evidence and no evidence has been let in to justify its action. Thus on merits also, the management has failed to prove that the petitioner was medically unfit to join duty. Therefore, the termination order issued by the management is not valid. For the aforesaid reasons, the petitioner is entitled to reinstatement in service with backwages, continuity of service and all other attendant benefits and the points are answered accordingly. (underlining is mine)
It will have to be held that the said conclusion of the first respondent Labour Court was totally perverse, in as much as, it was contrary to its own orders passed in I.A.Nos.15,16,18 and 19 of 2007 dated 08.03.2007, wherein the first respondent Labour Court itself permitted the petitioner to let in necessary evidence in support of its stand. However, at the time when evidence of parties was recorded, curiously, the Labour Court prevented the petitioner from dealing with the merits of the termination order.
48. It is also necessary to reiterate that in the additional counter filed in Complaint No.1 of 2007, the petitioner raised a specific plea for letting in necessary evidence in support of its stand. When the above statements in the pleadings as well as the order of the first respondent itself was staring at once face, it is unfortunate that the first respondent Labour Court had completely omitted to note the above relevant factors while adjudicating the complaint on merits. Furthermore, it was the first respondent who specifically prevented the petitioner from cross examining the second respondent on merits and in tune with the said action, it also directed the second respondent not to put any question on merits to the management witness.
49. The culmination of all the above factors lead to one and only conclusion that the impugned Award cannot be sustained and accordingly the same is set aside. While setting aside the Award, I feel it appropriate to remit the matter back to the first respondent Labour Court for a de novo enquiry, since the parties will have to let in evidence on the merits of the non-employment of the second respondent. The first respondent shall therefore permit the petitioner as well as the second respondent to adduce necessary evidence in support of their stand. Therefore, while setting aside the impugned Award of the first respondent Labour Court dated 10.05.2007, passed in Complaint No.1 of 2007, the dispute is remitted back to the file of the first respondent for adjudication on merits by permitting the petitioner as well as the second respondent to let in necessary evidence in support of their respective stand. In as much as the dispute is hanging fire for the past more than 4 years, it is just and proper that the first respondent Labour Court carry out the above said exercise expeditiously preferably within three months from the date of receipt of the records along with a copy of this order. The writ petition stands allowed with the above direction to the first respondent Labour Court. All Miscellaneous Petitions are closed. No costs.
kk
To
The Presiding Officer,
I Addl. Labour Court,
Chennai 104