{"id":20491,"date":"2006-04-03T00:00:00","date_gmt":"2006-04-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arasu-viraivu-vs-state-express-transport-on-3-april-2006"},"modified":"2017-04-27T07:34:36","modified_gmt":"2017-04-27T02:04:36","slug":"arasu-viraivu-vs-state-express-transport-on-3-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arasu-viraivu-vs-state-express-transport-on-3-april-2006","title":{"rendered":"Arasu Viraivu vs State Express Transport on 3 April, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Arasu Viraivu vs State Express Transport on 3 April, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 03\/04\/2006 \n\nC O R A M  \n\nThe Hon'ble Mr. A.P. SHAH, THE CHIEF JUSTICE     \nand \nThe Hon'ble Mrs. Justice PRABHA SRIDEVAN     \n\nWrit Appeal No.379 of 2006 \n\n\nArasu Viraivu\n Pokkuvarathu \nOozhiyar Sangam, rep. by its\nGeneral Secretary,\nNo.2, Pallavan Salai, Chennai-2.                ..  Appellant\n\n-Versus-\n\n1. State Express Transport\n    Corporation Ltd.,\n    rep. by its Managing Director,\n    No.2, Pallavan Salai, Chennai-2.\n\n2. The General Manager (Administration),\n    State Express Transport Corporation Ltd.,\n    No.2, Pallavan Salai, Chennai-2.\n\n3. The Labour Officer-II,\n    Kuralagam, Chennai.                         ..   Respondents\n\n        Prayer :  Writ Appeal filed under Clause  15  of  the  Letters  Patent\nagainst  the  order of a learned single Judge of this Court dated 15.3.2006 in\nW.P.  No.32986 of 2005. \n\n!For Appellant  :  Mr.  K.  Chandru, Senior Counsel\n                for Mr.  D.  Hari Paranthaman.\n\n^For Respondent-1:  Mr.  R.Thiagarajan, Senior Counsel\n                for Mr.  L.G.  Sahadevan.\n\n\n\n:J U D G M E N T \n<\/pre>\n
(Judgment of the Court delivered by The Honourable The Chief Justice)<\/p>\n
        Appeal is admitted.\n<\/p>\n
2.   We  have  heard learned counsel appearing for the parties finally in this
\nappeal.  It is being disposed of by this judgment.\n<\/p>\n
3.  The question involved in this appeal at  the  instance  of  the  Workmen’s
\nUnion  pertains  to  the  legality  and  validity  of  the  order of the first
\nrespondent Corporation, whereby the workmen have been reverted from  the  post
\nof  Data  Entry  Operators  (DEO) to conductor\/technical staff and calls for a
\ndecision as to whether the said order was in violation of Section 33(1)(a)  of
\nthe  Industrial  Disputes Act, 1947 (for brevity sake, hereinafter referred to
\nas the ‘Act’).  A few relevant facts are required to be noted at this stage.\n<\/p>\n
        4.  The appellant is a Trade Union registered under the  Trade  Unions
\nAct, 1926.    The  first  respondent  is  a  company  under Section 617 of the
\nCompanies Act, wholly owned, controlled and administered by the Government  of
\nTamil Nadu.    The respondent\/Corporation is operating long distance passenger
\ntransport services all over Tamil Nadu and also in three southern  States  and
\nthe Union  Territory  of  Pondicherry.  It appears that the ticket reservation
\nsystem in the respondent\/ Corporation  was  originally  being  done  manually.
\nSince   this  system  required  a  lot  of  manpower  and  caused  delay,  the
\nrespondent\/Corporation introduced computerised  reservation  system  in  their
\noperational  areas  as  well  as  in  the  Head  Office and the Administrative
\nSections in the branches.  Computers were introduced, both for reservation and
\nalso for effective and speedy accounting and  other  official  purposes.    In
\norder  to  handle\/operate the computers, the respondent\/Corporation decided to
\nappoint persons through internal section from amongst  the  workmen  in  their
\nemployment, except the drivers.  Accordingly, 48 and odd persons were selected
\nas  Data  Entry  Operators,  who were paid the salary payable to Conductors or
\nTradesman\/Technical Staff, apart from a Special Allowance.  In or around 2002,
\nthe respondent\/Corporation decided to outsource the computer work  to  outside
\ncontractors by  calling  for  tenders  in  newspapers.    The  action  of  the
\nrespondent\/Corporation was challenged by the appellant\/Union in Writ  Petition
\nNo.6491 of 2002.  The said writ petition was heard along with a batch of cases
\nwhere  the action of the other Transport Corporations in sending back the Data
\nEntry Operators to their original posts was challenged.   The  learned  single
\nJudge, vide his order dated 24.2.2004, allowed all the writ petitions and held
\nthat asking  the D.E.Os.\/E.D.P.  Operators to join in their original posts was
\nillegal and contrary to Clause 11 of the 12(3) Settlement dated 28.9.1989  and
\nviolative of Article 14 and Article 1 9(1)(g) of the Constitution of India and
\nthat any change in the conditions of service of Data Entry Operators should be
\ndone  only after following the procedure contemplated under Section 9-A of the
\nAct.  Pursuant to the order passed by the learned  single  Judge,  the  second
\nrespondent  issued  a  notice  dated  5.7.2005  under  Section 9-A of the Act,
\nproposing to revert 54 Data Entry Operators working in the  E.D.P.    Wing  to
\ntheir  original posts of conductor\/technical staff after the expiry of 21 days
\nfrom the date of the notice, i.e., with effect from 27.7.2005.  Immediately on
\nreceipt of the notice dated 5.7.2005,  the  appellant\/Union  issued  a  strike
\nnotice  dated  13.7.2005  to  respondents  1  and  2  objecting to the changes
\nproposed  to  be  made  in  the  notice  dated  5.7.2005  and  also  demanding
\nrespondents  1  and  2 to continue the workmen as Data Entry Operators and for
\nfixation of proper scale of pay from the date of  their  appointment  as  Data
\nEntry Operators  with  arrears  and  consequential  benefits.  Since the first
\nrespondent is a  public  utility  service,  conciliation  is  deemed  to  have
\ncommenced immediately  on  the  issuance  of  the strike notice.  In fact, the
\nConciliation Officer issued a notice  of  conciliation  on  15.7.2005  on  the
\nstrike  notice  issued  by  the Union and fixed the conciliation on 21.7.2005.
\nThereafter, conciliation meetings were held on various dates and  finally,  in
\nthe conciliation meeting which was held on 4.10.2005, the Conciliation Officer
\nsigned the  failure  report.  Immediately on the close of the proceedings held
\non 4.10.2005, the second respondent issued the impugned order dated  5.10.2005
\nand  sought  to  implement  the change proposed in their notice dated 5.7.2005
\nissued under   Section   9-A   of   the   Act.      This   action    of    the
\nrespondent\/Corporation  is  challenged  by  the appellant\/Union in the present
\nwrit petition on the ground that effecting the change proposed in  the  notice
\nunder  Section  9-A  of  the  Act  during the pendency of conciliation without
\nseeking the express prior permission was  non-est  and  inoperative  and  also
\nviolative  of  Section  33(1)(a) of the Act and further seeking a direction to
\nrespondents 1 and 2 to continue the workmen as Data Entry  Op  erators.    The
\nwrit  petition  is  dismissed  by  the  learned  single Judge by directing the
\nappellant\/Union to work out their remedy under the Industrial Disputes Act.\n<\/p>\n
        5.  We have heard Mr.  K.  Chandru, learned senior  counsel  appearing
\nfor the appellant\/Union  and  Mr.    R.    Thiagarajan, learned senior counsel
\nappearing for the respondent\/Corporation.\n<\/p>\n
        6.  The short question which falls for our  consideration  is  whether
\nthe  action  of the Corporation reverting the Data Entry Operators to the post
\nof conductor\/technical staff was in violation of Section 33(1)(a) of the  Act.
\nThe  question  of  violation  of  Section  33(1)(a)  of the Act requires to be
\nconsidered in the light of the  relevant  statutory  provisions  of  the  Act.
\nSection 33(1) which is relevant for our discussion, reads interalia as under :\n<\/p>\n
        “33.  Conditions  of  Service, etc.  to remain unchanged under certain
\ncircumstances during pendency of proceedings :\n<\/p>\n
        (1) During the pendency of the  conciliation  proceedings  before  (an
\narbitrator or) a Conciliation Officer of the Board or of any proceeding before
\nany  Labour Court or Tribunal or National Tribunal in respect of an industrial
\ndispute, no employer shall –\n<\/p>\n
        (a) in regard to any matter connected with the dispute, alter, to  the
\nprejudice  of the workmen concerned in such dispute, the conditions of service
\napplicable to them immediately before the commencement of such proceeding, or\n<\/p>\n
        (b) for any  misconduct  connected  with  the  dispute,  discharge  or
\npunish,  whether  by  dismissal  or  otherwise,  any workman concerned in such
\ndispute;\n<\/p>\n
        save with the express permission in writing of  the  authority  before
\nwhich the proceeding is pending.”\n<\/p>\n
7.   As  stated  earlier the order of reversion was passed on 5.10.2005, i.e.,
\nimmediately after the closing of the conciliation  proceedings  on  4.10.2005.
\nBefore  the impugned order was passed by the Management, it had already served
\na notice dated 5.7.2005 under Section 9-A of the Act to the appellant\/Union to
\nthe effect that it proposed to introduce a change in the conditions of service
\nof the members of the Union by reverting  them  to  their  original  posts  of
\nconductor\/technical staff.  On the receipt of the notice dated 05.07.2005, the
\nappellant\/  Union issued a strike notice dated 13.07.2005 to respondents 1 and
\n2 objecting to the change proposed to be made in the notice dated 05.07.20  05
\nfor  fixation  of appropriate scales of pay from the date of their appointment
\nas Data Entry Operators with arrears and consequential benefits.   Since,  the
\nfirst respondent is the public utility service, conciliation is deemed to have
\ncommenced immediately  on  the  issuance  of  the strike notice.  In fact, the
\nConciliation Officer issued a notice of  conciliation  on  15.07.2005  on  the
\nstrike notice issued by the union under Section 12(1) of the Act and fixed the
\ndate of conciliation as 21.07.2005.  Section 12(1) of the Act reads as under :\n<\/p>\n
        “12.  Duties  of  Conciliation  Officers.     (1) Where an industrial
\ndispute exists or is apprehended, the Conciliation Officer may, or  where  the
\ndispute  relates to a public utility service and a notice under Section 22 has
\nbeen given, shall hold conciliation proceedings in the prescribed manner.”\n<\/p>\n
        8.  On these aforesaid admitted facts, the question  that  now  arises
\nbefore us is whether the reversion order dated 5.10.2005 was passed during the
\npendency of  the  conciliation  proceedings.    It  is not in dispute that the
\nconciliation proceedings were held by  the  Conciliation  Officer  on  various
\ndates and  finally,  the  proceedings  were closed on 4 .10.2005.  On the very
\nnext day, the Corporation implemented the change proposed in their Section 9-A
\nnotice dated 5.7.2005.  It is conceded before us that the failure  report  was
\nforwarded to  the  State Government only on 14.10.2005.  The submission of the
\nlearned senior counsel appearing for the  appellant\/Union  is  that  till  the
\nConciliation  Officer  prepared his report as per Section 12(4) of the Act and
\ntill that report reached the Government,  the  conciliation  proceedings  were
\ndeemed  to have been continued and not deemed to have been terminated at least
\ntill 14.10.2005 and since in the mean time, i.e., on 4.10.200 5  the  impugned
\nreversion  order was passed without following the procedure contemplated under
\nSection 33(1) of the Act, it got vitiated in law.\n<\/p>\n
        9.  Under these circumstances, the question that arises is whether the
\nconciliation proceedings deemed to be terminated on signing of  failur  report
\nby  the Conciliation Officer or deemed to be continued till the failure report
\nis received by the appropriate Government.  In order to answer this  question,
\nit  is necessary to note Sub-section (4) of Section 12 of the Act, which reads
\nas under :\n<\/p>\n
        “(4) If no such settlement is arrived  at,  the  conciliation  officer
\nshall,  as  soon  as practicable after the close of the investigation, send to
\nthe appropriate Government a full report setting forth the steps taken by  him
\nfor  ascertaining  the facts and circumstances relating to the dispute and for
\nbringing about a settlement thereof, together with a full settlement  of  such
\nfacts  and circumstances, and the reasons on account of which, in his opinion,
\na settlement could not be arrived at.”\n<\/p>\n
A mere look at this provision shows that if  the  Conciliation  Officer  finds
\nduring  the  conciliation proceedings that no settlement is arrived at between
\nthe disputing parties, then after closing the investigation, he has,  as  soon
\nas
\npracticable, to send to the appropriate Government a full report setting forth
\nthe  steps  taken by him for ascertaining the facts and circumstances relating
\nto the dispute and has also to mention all other details  as  required  to  be
\nmentioned in the report under Section 12(4) of the Act.\n<\/p>\n
10.   At  this  stage,  it  is necessary to refer to Section 20(2) of the Act,
\nwhich is relevant for the purpose of this appeal and the provisions of Section
\n20 are as follows :\n<\/p>\n
        “20.  Commencement and conclusion of proceedings – (1) A  conciliation
\nproceeding  shall be deemed to have commenced on the date on which a notice of
\nstrike or lockout under Section 22 is received by the Conciliation Officer  or
\non the date of the order referring the dispute to a Board, as the case may be.\n<\/p>\n
        (2) A conciliation proceeding shall be deemed to have concluded –\n<\/p>\n
        (a)  where a settlement is arrived at, when a memorandum of settlement
\nis signed by the parties to the dispute;\n<\/p>\n
        (b) where  no  settlement  is  arrived  at  when  the  report  of  the
\nConciliation  Officer  is  received  by the appropriate Government or when the
\nreport of the Board is published under Section 17, as the case may be; or\n<\/p>\n
        (c) when a reference is made to a Court  [Labour  Court,  Tribunal  or
\nNational  Tribunal]  under  Section  10  during  the  pendency of conciliation
\nproceedings.”\n<\/p>\n
On a perusal of the above said provisions, it is seen that  Sub  section  –  1
\nfixes the date of commencement of conciliation proceeding as the date on which
\na  notice  of  strike  or  lock  out  under  Section  22  is  received  by the
\nConciliation Officer.  As  far  as  the  non-public  utility  undertaking  are
\nconcerned,  the  conciliation  proceeding shall be deemed to have commenced on
\nthe date of the order referring the dispute to a Board.  The provisions of Sub
\nsection – 2 apply to all conciliation proceedings, whether in regard to public
\nutility service or otherwise.    A  conciliation  proceeding  under  this  sub
\nSection shall  be  deemed  to  have  concluded  in  the manner aforesaid.  The
\nconciliation proceeding therefore do not end when  the  report  under  Section
\n12(4)  is  submitted by the Conciliation Officer, but it ends when that report
\nis received by an appropriate government.  The word received in Sub  section
\n2  (b)  obviously  implies  actual  receipt  of  the report by the appropriate
\ngovernment where no settlement is arrived at.\n<\/p>\n
        11.  In Lokmat Newspapers Pvt.  Ltd.  vs.   Shankarprasad<\/a>  [1999  (II)
\nL.L.J.   136],  the  provisions  of  Section 20(2) fell for consideration of a
\nDivision Bench of the Supreme Court.  The Supreme Court observed as follows :\n<\/p>\n
        “A mere look at the aforesaid provisions shows that in cases of public
\nutility services  referred  to  in  Section  22(2)  of  the  I.D.    Act   the
\nconciliation  proceedings  shall  be  deemed  to have commenced on the date on
\nwhich a notice of strike or lockout  under  Section  22  is  received  by  the
\nConciliation Officer.   That deals with commencement of mandatory conciliation
\nproceedings as laid down by Section 12(1) read with Section 20(1).  But,  when
\nwe  come  to  Section  20(2),  it  becomes  obvious  that  the legislature has
\nintroduced by  way  of  legal  fiction  an  irrebuttable  presumption  as  per
\nsub-clause  (b)  of Section 20(2) that when during conciliation proceedings no
\nsettlement is arrived at between the  parties,  the  conciliation  proceedings
\nshall  be deemed to have concluded when the failure report of the Conciliation
\nOfficer is  received  by  the  appropriate  Government.    Consequently,   the
\nlegislative  intention  becomes  clear that conciliation proceedings initiated
\nunder Section 12(1) whether of a discretionary nature or of a mandatory nature
\nshall be treated to have continued and only to have concluded when the failure
\nreport reaches the appropriate Government.  As noticed earlier, it is  not  in
\ndispute  between  the  parties that after the closure of investigation on June
\n22, 1982 when the Conciliator sent the failure report, it  reached  the  State
\nGovernment only  on  August  13,  1982.  Therefore, it has to be held that the
\nconciliation proceedings in the present case had not got  terminated  and  got
\nconcluded  only  on August 13 , 1982 as per the aforesaid category presumption
\ncreated by the legal fiction provided in Section 20(2)(b).   Therefore,  as  a
\nnecessary  corollary, it must be held that these conciliation proceedings were
\npending till August 13, 1982.  It is axiomatic that  conciliation  proceedings<\/p>\n
which are  deemed  to  have  continued or remained pending.  That which is not
\nconcluded is pending, equally that which is  pending  cannot  be  said  to  be
\nconcluded.” (emphasis supplied)<\/p>\n
The Supreme Court further observed as follows:\n<\/p>\n
        “We  fail to appreciate how this decision can be pressed in service by
\nlearned counsel for the appellant while construing Section 20(2) of  the  I.D.
\nAct.   That Section, as noted earlier, has created an irrebuttable presumption
\nby way of legal fiction and that presumption covers the very  question  as  to
\nwhen  conciliation  proceedings  once commenced can be said to have concluded.
\nIn other words, when they can be said to have not remained  on  pending.    As
\nseen  earlier,  the legal fiction which is created for that purpose by Section
\n20(2) has to be given its full effect.  As it  is  well-settled  while  giving
\neffect  to  the  legal  fiction  for  the  purpose  for which it is created by
\nLegislature it has to be given full play for fructifying the said  legislative
\nintention.  We  cannot  allow our imagination to boggle on that score.  It is,
\nof course, true as laid down by the Constitutional Bench of this Court in  the
\ncase of Bengal Immunity  Co.    Ltd.    vs.  State of Bihar and Others, A.I.R.<\/a>
\n1995 S.C.  661 @ 680.  Das, A ctg.  C.J., speaking for the Court in para 31 of
\nthe report, made the following pertinent observations :\n<\/p>\n
        ‘Legal fictions are created only for some definite purpose.<\/p>\n
        xxx xxx xxx
\n        a legal fiction is to be limited to  the  purpose  for  which  it  was
\ncreated and should not be extended beyond that legitimate field.’
\n        However,  as  noted earlier, legal fiction created by Section 20(2) is
\nfor the purpose of laying down as to till what stage conciliation  proceedings
\ncan be  said  to  be  pending and when they can be said to have concluded.  On
\nthat basis, if it is held that conciliation proceedings once  validly  started
\nunder Section  12(1) of the I.D.  Act can by way of an irrevocable presumption
\nbe treated to have continued till the failure report reached  the  appropriate
\nGovernment,  during the interregnum of necessity such conciliation proceedings
\nhave to be treated as pending before the Conciliation Officer.   In  fact,  on
\nthese aspects of the matter, we have a decision of this Court in Andheri Marol
\nKurla Bus Service & Anr.    vs.  The State of Bombay,<\/a> 1959-II-L.L.J.  236.  In
\nthat case, a Bench of two Judges of this Court had to consider the question as
\nto when conciliation proceedings can be  said  to  have  concluded  under  the
\nrelevant provisions  of  this  very  Act.    In that case, during the admitted
\npendency of conciliation proceedings the management had dismissed the  workman
\nbus conductor.  However, the submission on the part of the management was that
\nsuch  dismissal  was  after  the  expiry of statutory period of 14 days within
\nwhich the conciliation proceedings once started had to be concluded and as  14
\ndays  were  already  over,  the  dismissal  did  not attract Section 33(1) and
\nconsequently, the management could not be penalised under Section 31(1) of the
\nI.  D.  Act which lays down as under :\n<\/p>\n
        ‘Any employer who contravenes the provisions of Section  33  shall  be
\npunishable with imprisonment for a term which may extend to six months or with
\nfine which may extend to one thousand rupees, or with both.’
\n        In  the  aforesaid  factual  matrix of the case, this Court in Andheri
\nMarol Kurla Bus Service & Anr.  vs.   The  State  of  Bombay<\/a>  (supra)  had  to
\nconsider the scope of Section 33(1) read with Section 20(2)(b).  On a conjoint
\nreading of these relevant provisions at paragraphs 4 and 5 of the report, J.L.
\nKapur J., speaking for the Court, made the following pertinent observations :\n<\/p>\n
        The   provisions  of  Sub-section  20(2)  apply  to  all  conciliation
\nproceedings whether  in  regard  to  utility  services  or  otherwise.     All
\nconciliation  proceedings  under  this  sub-section  shall  be  deemed to have
\nconcluded in the case where no settlement is reached, when the report  of  the
\nConciliation Officer   is   received  by  the  appropriate  Government.    The
\nconciliation proceedings therefore do not end when the report under  Sec.12(6)
\nis  made  by the Conciliation Officer, but when that report is received by the
\nappropriate Government, it was contended  that  the  conciliation  proceedings
\nshould  be  held  to  be  terminated when the Conciliation Officer is required
\nunder Sec.12(6) of the Act to submit his report but the provisions of the  Act
\nabove  quoted  do  not  support  this  contention  as  the  termination of the
\nconciliation proceedings is deemed to take place when the report  is  received
\nby the  appropriate  Government.    That  is  how Sec.20(b) was interpreted in
\nWorkers of the Industry Colliery Dhanbad  vs.    Management  of  the  Industry
\nColliery,<\/a> 1 953-I-L.L.J.  190 (SC).\n<\/p>\n
        It  was  next  contended that on this interpretation, the conciliation
\nproceedings could be prolonged much beyond what was contemplated  by  the  Act
\nand  the  termination  would  depend upon how soon a report is received by the
\nappropriate Government.  It is true that Sec.12(6) of the Act contemplates the
\nsubmission of the report by the Conciliation Officer within 14 days  but  that
\ndoes  not  affect the pendency of the conciliation proceedings and if for some
\nreason the Conciliation Officer delays the submission but that will not affect
\nthe interpretation to be put on Sec.20(2)(b) of the Act.  Section 12 lays down
\nthe duties of the Conciliation  Officer.    He  is  required  to  bring  about
\nsettlement  between the parties and must being his investigation without delay
\nand if no settlement is arrived  at,  he  is  to  submit  his  report  to  the
\nappropriate Government.   No doubt, Sec.12 contemplates that the report should
\nbe made and the proceedings closed within a fortnight and if  proceedings  are
\nnot  closed  but  are  carried on, as they were in the present case, or if the
\nConciliation Officer does not make his report within 14 days he may be  guilty
\nof a breach of duty but in law the proceedings do not automatically come to an
\nend  after  14 days but only terminate as provided in Sec.20(2)(b) of the Act.
\nColliery Mazdoor Congress, Asansol vs.  New Beerbhoomi Coal Co.    Ltd.,  1952
\nLab.A.C.  21 9 (222).’
\n        The  aforesaid  decision,  therefore,  has settled controversy on this
\naspect by holding  that  conciliation  proceedings  would  terminate  only  as
\nprovided by  Section  20(2)(b)  of the Act.  Meaning thereby, till the failure
\nreport reaches the  appropriate  State  Government,  conciliation  proceedings
\ncannot be  said to have terminated.  Hence, breach of Section 33(1) during the
\npendency of such proceedings could attract penal  liability  of  the  employer
\nunder Section  31(1)  of  the Act.  Learned counsel for the appellant tried to
\nsubmit that the aforesaid decision had not considered the legal effect of  the
\nfiction  created  by  Section  20(2)(b) and its limited scope regarding deemed
\nconclusion of the conciliation proceedings which  was  different  from  actual
\npendency of  the proceedings as required by Section 33(1).  It is difficult to
\nappreciate this contention for the simple reason that the relevant  provisions
\nof  the  Act  to  which  our  attention  was  drawn by learned counsel for the
\nappellant for submitting that there was  a  difference  between  pendency  and
\nconclusion of proceedings do not advance the case of the appellant, as we have
\nseen  earlier, nor can it be said that any relevant provisions of the Act were
\nnot noticed by the Division  Bench  of  this  Court  which  decided  the  case
\nreferred to in  Andheri  Marol  Kurla  Bus  Service  & Anr.  vs.  The State of
\nBombay<\/a> (supra).” (emphasis supplied) <\/p>\n
12.  In view of the clear pronouncement of law by the Supreme Court, there  is
\nno  escape  from  the  conclusion  that when the order of reversion was passed
\nagainst the workmen, the respondent\/Management had committed breach of Section
\n33(1) of the Act by not passing the said order  after  obtaining  the  express
\nprevious  permission  in  writing  of the Conciliation Officer before whom the
\nconciliation proceedings must be held  to  be  pending  till  his  report  was
\nforwarded to  the  State  Government on 14.10.2005.  The impugned retrenchment
\norder must, therefore, be held to be illegal, being contrary to the provisions
\nof the Industrial Disputes Act.\n<\/p>\n
        13.  In our opinion, the learned single Judge was not right in  asking
\nthe  appellant\/Union  to resort to the alternative remedy under the Industrial
\nDisputes Act.  In Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd.  vs.  Ram Gopal
\nSharma<\/a> [(2002) 2 S.C.C.  244], the Constitution Bench  of  the  Supreme  Court
\nheld  that  the  provisions  of Section 33 of the Act are mandatory in nature.
\nThe Supreme Court observed as follows :\n<\/p>\n
        “Taking a contrary view that an order of discharge or dismissal passed
\nby an employer in contravention of the mandatory conditions contained  in  the
\nproviso  does  not  render such an order inoperative or void, defeats the very
\npurpose of the proviso and it becomes meaningless.  It is well-settled rule of
\ninterpretation that no part of statute shall be construed  as  unnecessary  or
\nsuperfluous.  The  proviso  cannot be diluted or disobeyed by an employer.  He
\ncannot disobey the  mandatory  provision  and  then  say  that  the  order  of
\ndischarge  or  dismissal made in contravention of Section 33(2)(b) is not void
\nor inoperative.  He cannot be permitted to take advantage of  his  own  wrong.
\nThe  interpretation  of  statute  must  be  such  that  it  should advance the
\nlegislative intent and serve the purpose for which it is made rather  than  to
\nfrustrate it.  The proviso to Section 33(2)(b) affords protection to a workman
\nto  safeguard his interest and it is a shield against victimization and unfair
\nlabour practice by the employer during the pendency of industrial dispute when
\nthe relationship between them is already strained.    An  employer  cannot  be
\npermitted  to  use  the  provision  of  Section 33(2)(b) to ease out a workman
\nwithout complying with the conditions contained in the said  proviso  for  any
\nalleged  misconduct said to be unconnected with the already pending industrial
\ndispute.  The protection afforded to a workman under the said provision cannot
\nbe taken away.  If it is to be held that an order of  discharge  or  dismissal
\npassed  by  the  employer  without complying with the requirements of the said
\nproviso is not void or inoperative, the employer may with  impunity  discharge
\nor dismiss a workman.\n<\/p>\n
        …..\n<\/p>\n
        Section  33-A is available only to an employee and is intended to save
\nhis time and trouble inasmuch as he can straightaway make a  complaint  before
\nthe very authority where the industrial dispute is already pending between the
\nparties  challenging  the order of approval instead of making efforts to raise
\nan industrial dispute, get a reference and thereafter adjudication.   In  this
\nview,  it  is not correct to say that even though where the order of discharge
\nor dismissal is inoperative for  contravention  of  the  mandatory  conditions
\ncontained  in  the  proviso or where the approval is refused, a workman should
\nstill make a complaint under Section 33-A and that the order of  dismissal  or
\ndischarge becomes invalid or void only when it is set aside under Section 33-A
\nand  that  till  such time he should suffer misery of unemployment in spite of
\nthe statutory protection given to him by the proviso to Section 33(2)(b).   It
\nis  not  correct to say that where the order of discharge or dismissal becomes
\ninoperative because of contravention of proviso to Section  33(2)(b),  Section
\n33-A would be meaningless and futile.  The said section has a definite purpose
\nto  serve,  as already stated above, enabling an employee to make a complaint,
\nif aggrieved by the order of the approval granted.\n<\/p>\n
        The view that  when  no  application  is  made  or  the  one  made  is
\nwithdrawn,  there  is  no order of refusal of such application on merit and as
\nsuch the order of dismissal or discharge does not become void  or  inoperative
\nunless such  an order is set aside under Section 33-A, cannot be accepted.  In
\nour view, not making an application under Section 33(2)(b) seeking approval or
\nwithdrawing an application once made before any order is made  thereon,  is  a
\nclear case  of  contravention of the proviso to Section 33(2)(b).  An employer
\nwho does not make an application under Section 33(2)(b) or withdraws  the  one
\nmade,  cannot be rewarded by relieving him of the statutory obligation created
\non him to make such an application.  If it is so done, he will be  happier  or
\nmore  comfortable  than  an employer who obeys the command of law and makes an
\napplication inviting scrutiny of the  authority  in  the  matter  of  granting
\napproval of the action taken by him.  Adherence to and obedience of law should
\nbe obvious  and necessary in a system governed by rule of law.  An employer by
\ndesign can avoid to make an application after  dismissing  or  discharging  an
\nemployee or file it and withdraw before any order is passed on it, on its meri
\nts,  to  take a position that such order is not inoperative or void till it is
\nset aside under Section 33-A  notwithstanding  the  contravention  of  Section
\n33(2)(b)  proviso,  driving  the  employee  to  have  recourse  to one or more
\nproceedings by making a complaint under  Section  33-A  or  to  raise  another
\nindustrial dispute  or  to  make  a  complaint  under  Section 31(1).  Such an
\napproach destroys the  protection  specifically  and  expressly  given  to  an
\nemployee  under  the  said  proviso  as against possible victimization, unfair
\nlabour practice or harassment because of pendency  of  industrial  dispute  so
\nthat an employee can be saved from hardship of unemployment.”\n<\/p>\n
It  is  thus  clear  that the order, which has been passed in violation of the
\nmandatory provisions of Section 33 of the Act, is void and inoperative and  it
\nis  not necessary for the workmen to approach the Labour Court, and especially
\nwhen there is no factual dispute, such an order can be interfered  with  under
\nArticle 226 of the Constitution of India.\n<\/p>\n
        14.  In  the  result,  the  writ  appeal is allowed.  The order of the
\nlearned  single  Judge  is  set  aside  and  impugned  Order   No.13\/15039\/A1\/
\nSETCTN\/2002  dated  5.10.2005 issued by respondents 1 and 2 reverting the Data
\nEntry Operators to the post of conductor\/technical staff  is  hereby  declared
\nnull and  void  and non-est.  The State Government is directed to consider the
\nfailure report furnished  by  the  Conciliation  Officer  and  make  a  proper
\nReference  to  the  Labour  Court\/Industrial  Tribunal for adjudication of the
\ndispute between the parties, within a period of four weeks from  the  date  of
\nreceipt  of a copy of this judgment and till the dispute is adjudicated by the
\nLabour Court\/Tribunal, respondents 1 and 2 are directed not to discontinue the
\nservices of the workmen in the post of  Data  Entry  Operators  without  prior
\napproval of the  Labour Court\/ Tribunal.  No order as to costs.  Consequently,
\nW.  A.M.P.  No.806 of 2006 is closed.\n<\/p>\n
ab\/sm <\/p>\n
To<\/p>\n
1.  The Managing Director,
\nState Express Transport Corporation Ltd.,
\nNo.2, Pallavan Salai, Chennai-2.\n<\/p>\n
2.  The General Manager (Administration),
\nState Express Transport Corporation Ltd.,
\nNo.2, Pallavan Salai, Chennai-2.\n<\/p>\n
3.  The Labour Officer-II,
\nKuralagam, Chennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Arasu Viraivu vs State Express Transport on 3 April, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 03\/04\/2006 C O R A M The Hon’ble Mr. A.P. SHAH, THE CHIEF JUSTICE and The Hon’ble Mrs. Justice PRABHA SRIDEVAN Writ Appeal No.379 of 2006 Arasu Viraivu Pokkuvarathu Oozhiyar Sangam, rep. by […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-20491","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nArasu Viraivu vs State Express Transport on 3 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arasu-viraivu-vs-state-express-transport-on-3-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arasu Viraivu vs State Express Transport on 3 April, 2006 - 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