IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/07/2003
CORAM
THE HONOURABLE MR.JUSTICE C.NAGAPPAN
WRIT PETITION No.11436 of 1996 and WRIT PETITION No.1145 OF 1997
The Management of Sri Ganapathy
Mills Co.Ltd.,
Sankaranagar,
Tirunelveli-627 357. ... Petitioner in W.P.
No.11436/96 & 2nd
respondent inW.P.1145/1997
-Vs-
1. The Presiding Officer,
Special Industrial Tribunal,
Madras. ... 1st Respondent
in both the W.Ps.
2. N.Kandiah ... Petitioner in
W.P.1145/1997 &
2nd respondent in
W.P.11436/1996
Writ Petitions under Article 226 of the Constitution of India
praying for issuance of writ of certiorari and writ of certiorarified
mandamus, respectively as stated therein.
!For Petitioner in W.P.11436/96 & 2nd respondent in W.P.1145/97 .. Mr.Vijay Narayan ^For Respondents .. Mr.K.M.Ramesh for Petitioner in W.P.1145/97 & 2nd respondent in W.P.No.11436/1996 :COMMON ORDER
The petitioner in Writ Petition No.11436 of 1996 is the
management and it has sought for issuance of writ of certiorari to quash the
records in Complaint No.2 of 1993 in I.D.Nos.1,2 and 3 of 1993, pertaining to
the Award, dated 8.11.1995, insofar as it relates to the relief of wages from
31.1.1993 till the date of award.
2. The petitioner in Writ Petition No.1145 of 1997 is the
Workman and he has sought for issuance of writ of certiorarified mandamus for
quashing the same award insofar as it denies the relief of reinstatement with
continuity of service and all other attendant benefits and directing the
respondent/management to reinstate the petitioner/ workman in service with
continuity of service and all other benefits.
3. Since both the writ petitions arise out of the same award,
they are heard together and a common order is passed. The parties are
referred to as arrayed in Writ Petition No.l1436 of 1996 in this order.
4. The second respondent/workman was employed as a Sider in
the Spinning Department of the petitioner/ management mill. The second
respondent/workman took active part in the general textile strike in Tamil
Nadu from 15.12.1992 and the petitioner/management issued three charge sheets
in succession and the first and third charge sheets related to alleged wastage
of yarn and the second charge sheet related to absence in the work spot during
working hours. The petitioner/ management conducted three domestic enquiries
and the enquiry officer found all the charges levelled against the second
respondent/workman were proved and a second show cause notice was issued to
the second respondent/workman on 26.2.1993 and the petitioner/ management
issued final order, dated 6.3.1993, dismissing the second respondent/workman
from service with effect from 31.1.1993. At the relevant point of time, a
dispute was pending in the first respondent Industrial Tribunal relating to
the Textile Mills in Tamilnadu, regarding the General Charter demands, to
which the petitioner/management mill was a party. The petitioner/management,
by omission, did not seek approval of the action under Section 33(2)(b) of the
Industrial Disputes Act to dismiss the second respondent/workman from service.
Therefore, the second respondent/workman filed a complaint under Section 33(A)
of the Act, which was taken on file as complaint No.2 of 1993 in I.D.Nos.1,2
and 3 of 1993. The petitioner/management filed counter statement. The
validity of the domestic enquiry was taken as preliminary issue and the
petitioner/management was permitted to let in evidence on the merits of the
charges and the first respondent Industrial Tribunal, by its award, dated
8.11.1995, came to the conclusion that the charges were proved and the non
employment of the second respondent/workman was justified. However, the first
respondent Industrial Tribunal held that inasmuch as the domestic enquiry was
held to be invalid, but subsequently, the Tribunal upheld the punishment, the
second respondent would be entitled to wages from the date of dismissal,
namely, 31.1.1993, till the date of award, namely, 8.11.1995. Aggrieved by
the declining of the relief of reinstatement with backwages and other
benefits, the second respondent/workman has challenged the award in
W.P.No.1145 of 1997 and aggrieved by the granting of relief of wages from
31.1.199 3 to the date of award, the petitioner/management has challenged the
award in W.P.No.11436 of 1996.
5. Heard the learned counsel for the petitioner/management
and the second respondent/workman.
6. The facts are not disputed. The petitioner/management
issued final order, dated 6.3.1993 dismissing the second respondent/workman
from service with effect from 31.1.1993 and at the relevant point of time, an
industrial dispute relating to the Textile Mills in Tamilnadu, regarding the
General Charter of Demands, of which the petitioner mill was a party, was
pending before the first respondent Tribunal and the petitioner/management, by
omission, did not seek the approval of its action to dismiss the second
respondent/workman from service under Section 33(2)(b) of the Act before the
first respondent Tribunal. The learned counsel for the second
respondent/workman contended that the conditions contained in the proviso to
Section 33(2)(b) are mandatory in nature and their non compliance would render
the order of dismissal void and the second respondent/workman would be deemed
to have continued in service and entitled to all the benefits of service and
he relied on the decision of the Constitution Bench of the Apex Court in
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and others
(2002-I-LLJ 834). In the above decision, Their Lordships of the Supreme
Court considered the question of approval under Section 33(2)(b) of the
Industrial Disputes Act, 1947 on a reference made to the Constitution Bench
and laid down the law as follows.
“15. The view that when no application is made or the one made is
withdrawn, there is no order of refusal of such application on merit and as
such the order of dismissal or discharge does not become void or inoperative
unless such an order is set aside under Section 33-A, cannot be accepted. In
our view, 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). An employee
who does not make an application under Section 33(2)(b) or withdraws the one
made, cannot be rewarded by relieving him of the statutory obligation created
on him to make such an application. ……
16. ……
17. ……
18. In view of what is stated above, we respectfully agree
with and endorse the view taken in the case of Strawboard and Tata Iron and
Steel Co. and further state that the view expressed in Punjab Beverages on
the question is not the correct view. The question raised in the beginning of
this judgment is answered accordingly.”
7. The Constitution Bench endorsed the view taken in the case
in Strawboard Manufacturing Co. vs. Gobind – (AIR 1962 SC 1500) and Tata
Iron and Steel Co. Ltd. vs. S.N.Modak (AIR 1966 SC 380) and held that not
making an application under Section 33(2)(b) seeking approval before any order
is made thereon is a clear case of contravention of the proviso to Section
33(2)(b) and the workman would be deemed never to have been dismissed or
discharged and would remain in the service of the employer. In the later
decision in Indian Telephone Industries Ltd. vs. Prabhakar H.Manjare and
another (2002-III-LLJ 113 4), the Apex Court referred to the Constitution
Bench Judgment and held as follows.
“5. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi
Vikas Bank Ltd. (supra), has ruled that the conditions contained in the
proviso to Section 33(2)(b) are mandatory in nature and their non-compliance
would render the order of discharge or dismissal void or inoperative. It is
further held that if the Tribunal refuses to grant approval sought for under
Section 33(2)(b), the effect of it shall be that the order of discharge or
dismissal had never been passed and consequently the employee would be deemed
to have continued in service entitling him to all the benefits available. It
is also made clear that 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). While approving the cases of Straw Board (Supra), and Tata Iron and
Steel Co. (supra), the case of Punjab Beverages ( supra), is overruled.”
8. The law is well settled that non compliance of the
condition contained in the proviso to Section 33(2)(b), which is mandatory in
nature, would render the order of dismissal void and the effect of which shall
be that the order of dismissal had never been passed and the employee would be
deemed to have continued in service. In the present case, admittedly, the
petitioner/management did not comply with the condition under Section 33(2)(b)
while rendering the order of the dismissal of the second respondent/workman
and hence it shall be that the order of the dismissal has never been passed
and the second respondent/workman will be deemed to have been in service and
entitled to all the benefits available to him. The second respondent/workman
is entitled for the relief prayed for in his writ petition and at the same
time, the petitioner/management is not entitled to the relief claimed in its
writ petition.
9. In the result, writ petition No.1145 of 1997 is allowed as
prayed for. Writ Petition No.11436 of 1996 is dismissed. No costs in both
the petitions.
Index: Yes.
Internet:Yes.
gb.
To:
The Presiding Officer,
Special Industrial Tribunal,
Madras.