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Judgment
Honourable Mr. Justice K. Chandru
The writ petition is filed by a State owned Transport Corporation having its headquarters at Kumbakonam and its division office at Karaikudi. In this writ petition they have challenged an order of the second respondent, Joint Commissioner of Labour (Conciliation), Chennai, in A.P.No.168 of 2003.
By the impugned order, the second respondent refused to grant approval for dismissing the first respondent vide an order dated 14.07.2006.
When the writ petition came up on 20.12.2007, private notice was ordered to the contesting respondent. Subsequently, after several private notice, the first respondent entered appearance through counsel. When the matter came up on 06.12.2010, parties were directed to explore the possibility of a compromise. Since no compromise was possible, the matter was argued.
The first respondent filed an affidavit stating that he was working as a Driver in the petitioner''s Corporation from the year 1989 and his son R. Arunkumar had kidney failure, which required a continuous treatment from 1999. Hence, he had applied for leave during that period. Thereafter, an enquiry regarding unauthorised absent was conducted and he was dismissed from service on 05.06.2003. In the meantime, his son died on 23.08.2003. Thereafter, in the approval petition, the Joint Commissioner of Labour, (Conciliation), refused to accord approval for the dismissal issued by the petitioner. Further, his wife was diagnosed to be having cancer. She got treatment in the Government Aringnar Anna Memorial Cancer Hospital, Karapettai, Kancheepuram from 03.04.2006.
After, the rejection of the approval order, he was making continuous representations through the Union. His wife was once again admitted for treatment. He did not get any proper notice from this Court in the writ petition. In paragraph 7 of the affidavit he gave an undertaking voluntarily which was as follows:
I respectfully submit that I lost my job from the petitioner corporation, my elder son died due to kidney failure and my wife is undergoing treatment for her abdomen cancer and she is in death bed till today. I am not gainfully employed anywhere from the date of dismissal i.e. on 05.06.2003. However, due to the delay caused by me till receiving the notice in the above writ petition, I agree to receive only 50% backwages, in case I am reinstated in the service of the petitioner corporation with continuity of service and attendant benefits.
Therefore, the only question that has to be determined by this Court is as to whether the petitioner corporation''s attack on the impugned order is legally justified.
The claim of the petitioner is that a charge memo was framed against the first respondent on 24.09.2003 and the first respondent gave his explanation. Thereafter, an enquiry was conducted followed by a second show cause notice. Finally the first respondent was dismissed from services on 05.06.2003. Since, at the relevant time, conciliation proceedings were pending, the management sought for approval for the dismissal of the first respondent u/s 33(2)(b) of the Industrial Disputes Act.
The said authority registered the approval petition as A.P.No.168 of 2003 and ordered notice to the first respondent. After hearing the arguments on both sides, the authority held that one month wages were not paid to the first respondent and there was a simultaneous application for getting approval and the resultant order was not due to any unfair labour practice. But, on the question of enquiry conducted against the first respondent, he found there was no prima facie material to hold that the workman was guilty of charges relating to unauthorized absent and the same was not proved. The finding rendered by the enquiry officer was perverse.
When the first respondent pleaded for cancellation of his suspension, the same was not considered. Though these facts were disclosed in the enquiry, the enquiry officer did not take note of the defence taken by the first respondent. He had also not dealt with the representation made by the first respondent. Therefore, he held that it is not a case of unauthorised absence. He also found that his valid defence was not considered and this was not a fit case for grant of approval.
The Contention of the management was that the first respondent was a habitual absentee. The dismissal was based upon the records and the authority should have granted permission.
However, this Court do not consider that the petitioner has raised any valid ground. The Supreme Court vide its judgement in Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another, dealt with the scope of Section 33(2)(b) of the Act and it was held as follows:
The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings u/s 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (1) Whether a proper domestic enquiry in accordance with the relevant rules/standing orders and principles of natural justice has been held;(ii) Whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;(iii) whether the employer has come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee regard being had to the position settled by the decision of this Court.
If however, the domestic enquiry suffers from any detect or infirmity the labour authority will have to find out on its own assessment for the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.
The authority confined himself to the issues and recorded the following finding, which is as follows:
In the enquiry the Opposite Party had requested the Enquiry Officer to take his explanation to the charge memo as his statement in the enquiry and the enquiry officer had recorded in the enquiry proceedings that this request of the opposite party was accepted. However, in his findings, the Enquiry Officer had not even made a mention about the explanation to the charges the Opposite Party says that he was surrendered by the Branch and had requested the General Manager to cancel this surrender. This explanation forms part o the enquiry proceedings and should have been considered by the Enquiry Officer. But this was not done. In the enquiry proceedings also the management had not explained this statement made by the Opposite Party in his explanation. If, in fact, the Opposite Party was surrendered by the Branch, then the charge of unauthroized absence falls. The Enquiry Officer had given his findings without considering a vital defence taken by the Opposite Party for his absence and therefore, the findings of the Enquiry Officer has to be held to be perverse. On this ground alone the approval sought for should be refused.
It is not a fit case where any interference is called for. The writ petition will stand dismissed. However, the dismissal of the refusal of approval u/s 33(2)(b) of the Industrial Disputes Act will result the dismissal order ab initio void. In such a situation it is a case where the workman can contend that there was no order of dismissal against him and he was entitled to all the wages and other attendant benefits. In the present case, the first respondent had voluntarily given up 50% of the backwages, which is recorded by this Court. It is enough if the petitioner pays 50% of the backwages to the first respondent. But, however in view of the continuity of service granted with attendant benefits, his wages will have to be computed as if the first respondent was entitled for all increments and wage revision, which had taken place during the interregnum period.
There will be a direction to the petitioner to restore the first respondent service within a period of four weeks from the date of receipt of a copy of this order and pay his wages as directed above, within a period of eight weeks from the date of receipt of a copy of this order. With these directions, the writ petition will stand dismissed. Consequently, the connected miscellaneous petition is closed. No costs.