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Judgment
K. Chandru, J.—The Petitioner is the management of Tamil Nadu State Transport Corporation, Madurai Division at Nagercoil. They have filed the present writ petition, seeking to challenge an order passed by the first Respondent Conciliation Officer in Approval Petition No. 184 of 2003, dated 22.12.2006. By the impugned order, the first Respondent declined to entertain the approval petition filed by the management u/s 33(2)(b) of the Industrial Disputes Act.
In the writ petition, notice of motion was ordered on 19.6.2008 and an interim stay was granted. Subsequently, the second Respondent entered appearance through his counsel and filed an application in M.P.(MD) No. 2 of 2009 seeking for a direction to pay the last drawn monthly wages for a sum of Rs. 5194.10 from the date of the order of the first Respondent, dated 22.12.2006 till the disposal of the writ petition. This Court by an order, dated 19.8.2009 ordered the said application and directed the Petitioner to pay the law drawn monthly wages. But, however it was also stated that in case the management restored him in service pending the writ petition, there was no necessity to pay any amount u/s 17(b) of the I.D. Act. It is accepted by both sides that the management had restored the Petitioner in service even pending the writ petition.
The case of the Petitioner management was that the second Respondent was appointed as a Conductor with effect from 1.5.1997. On 2.4.2002 when he was working as a Conductor in the route No. 3E Vadasery Bus stand to Madanpillai Dharmam, the checking officials entered into the bus at James Town bus stop. It was found at the time of checking that he was in drunken stage. He was also taken to the Government Hospital, Nagercoil. The second Respondent did not hand over the tickers and the collection bag. On investigation, it was found that he had misappropriated a sum of Rs. 74.60. Therefore, he was placed under suspension on 4.4.2002. Subsequently, a charge memo was given to him including misappropriation and also found to be in drunken stage. In response to the charge memo, dated 12.4.2002, the second Respondent submitted an explanation. As it was not satisfactory to the management, a personal hearing was offered. In the meanwhile, on 3.5.2002, the suspension was revoked. The second Respondent did not appear for the personal hearing. He had accepted the charges. After completion of the enquiry, the Enquiry Officer by his report dated 14.8.2002 found him guilty of charges. A show cause notice, dated 31.8.2002 was given to him to show cause as to why he should not be dismissed from service. But he did not submit any explanation. Therefore, after verifying the records, it was proposed to dismiss him from service. He was also offered one month wage in terms of Section 33(2)(b).
Since the dispute was pending before the Conciliation Officer, an application was filed u/s 33(2)(b) for approving the proposed action of the management. The said application was registered as A.P. No. 184 of 2003 by the first Respondent. Before the first Respondent, the entire enquiry proceedings were filed. They were marked as Exs.A.1 to A.17. Notice was issued to the second Respondent. The first Respondent found that there was prima facie case for dismissal based on legal evidence against the second Respondent. It was also recorded that the management had come to a bona fide conclusion that the second Respondent was guilty and that the dismissal would not amount to an unfair labour practice. Insofar as the issuance of one month wage is concerned, the authority found that the amount of Rs. 5194.10 is correctly representing his monthly pay. But there was no simultaneous application after dismissal, the authority recorded the following findings in the penultimate paragraph of the impugned order, which reads as follows:
The next issue to be decided is whether the Applicant has simultaneously or within such reasonably short time as to form part of the same transaction applied to this Authority before which the main industrial dispute was pending for approval of the action taken by him. The opposite party was dismissed by an order dated 17.1.2003. The application seeking approval was filed before this Authority on 11.2.2003. The time interval between the date on which the Opposite Party was dismissed and the date on which the application seeking approval was filed is 26 (twenty six) days. The time gap between the two actions is so large that they could not be regarded as forming part of the same transaction.
Therefore I hold that the Applicant had not complied with the mandatory conditions of Section 33(2)(b) of the Industrial Disputes Act 1947 regarding the simultaneous filing of the application seeking approval before this Authority.
It is on that short ground, permission was refused.
The only question to be decided is whether the impugned order is liable for any interference?
The Supreme Court vide its judgment in Strawboard Manufacturing Co. Vs. Gobind, , while dealing with the scope of Section 33(2)(b), had observed in paragraphs 5 and 6 as follows:
... As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes the action u/s 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer''s conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employee''s right u/s 33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case.
... it will depend upon the facts of each case whether the application has been made at once or without delay. This, we think, is the correct view to take.
(Emphasis added)
If that is the correct position of law, then the findings recorded by the first Respondent Approving Authority that there was an unexplained delay of 26 days in seeking approval and it is so large it cannot be considered as forming part of the same transaction, cannot be found fault with. Considering the facts, the authority had passed a correct order and that the second Respondent had also been restored to duty pending the writ petition, this Court is not inclined to interfere with the impugned order.
In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.