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Judgment
Honourable Mr. Justice K. Chandru
The petitioner is a workman employed as a Junior Tradesman in the first respondent transport corporation, Madurai Division-II. Unfortunately, he is before this Court for the second time without any justification.
It is seen from the records that the petitioner had absented himself without prior permission from 10.02.2004 and therefore, an enquiry was conducted against the petitioner. He was dismissed by an order dated 27.04.2005. At that time, since a conciliation proceedings was pending before the first respondent, a petition for grant of approval u/s 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred as the Act) was filed before the conciliation officer seeking approval for the dismissal of the petitioner. The said petition was taken on file in Approval Petition No. 64 of 2005 and notice was given to the petitioner.
The second respondent by his order dated 29.01.2007 held that the domestic enquiry was vitiated as no relevant evidence was placed before him and that the findings of the enquiry officer was perverse. In normal circumstances, the approval petition was liable to be rejected on the ground that the enquiry held by the management was not valid, however, in the petition seeking for approval, the management had pleaded that in case the approving authority is of the view that the enquiry was vitiated due to violation of principles of natural justice or that the finding of the enquiry officer held to be perverse, they may be allowed to lead evidence to establish the charges before the approving authority. Acceding to the request, the approval petition was postponed for letting in fresh evidence by the management and parties were informed that due notice will be given to them for the same.
It is at this stage, the petitioner filed a writ petition before this Court being W.P.(MD).No.6436 of 2007 challenging the order dated 29.01.2007 permitting the management to lead fresh evidence. They sought to challenge the order dated 29.01.2007 insofar it gave an opportunity to the management to prove the charges afresh. It is not clear how such a writ petition was maintainable, since the authority has not passed any final order in the approval petition and had only posted the case for letting in fresh evidence. When the writ petition filed by the workman came up for admission, the earlier counsel for the petitioner withdrew the writ petition and also made an endorsement in the court bundle stating that it may be dismissed as withdrawn. On 31.07.2007 on the basis of the endorsement made, the writ petition W.P.(MD).No.6436 of 2007 was dismissed as not pressed.
It transpires that subsequent to the order dated 29.01.2007, the management had examined one T.Manickam, Branch Manager of Tiruchendur Branch and the petitioner also examined himself and gave a statement. The authority who subsequently heard the approval petition by his order dated 08.05.2009 found that there are grounds for dismissing the workman and the workman did not lead satisfactory evidence to state that he was prevented from attending to his duties. It is in that view of the matter, he came to the conclusion that the charges were proved and there was no lack of bonafide or any unfair labour practice on the part of the corporation. Thus, approval was granted for dismissing the workman. The authority also did not find any procedural irregularities in the approval petition submitted.
Instead of accepting the said order and raising a fresh dispute u/s 2-A(2) of the Act, for the reasons unexplained, the petitioner has filed the second writ petition challenging the order granting approval u/s 33(2)(b) of the Act, dated 08.05.2009.
When the writ petition came up for admission on 23.12.2009, this Court ordered notice regarding admission to the respondents. The writ petition is yet to be admitted by this Court.
On notice from this Court, the first respondent corporation, appeared through their standing counsel and they have filed a counter affidavit dated 20.06.2011 with the supporting document.
The reason that prompted the workman from filing a writ petition was that he wanted to take the advantage of the judgment of the Hon''ble Supreme Court reported in Indian Telephone Industries Ltd & Anr v. Prabhakar H. Manjare & Anr reported in 2003 (1) SCC 320 : 2002 (8) Supreme 215. In that case, the Supreme Court found that a second petition u/s 33(2)(b) of the Act filed by the management was not maintainable when the approval was refused in the earlier occasion for non compliance of the proviso to Section 33(2)(b) of the Act. The Supreme Court found in that case that the earlier refusal of grant of approval by the Tribunal was not challenged by the management. Therefore, in the absence of any such challenge and the workman being paid wages for the interregnums period, the second application is clearly barred. In paragraphs 8 and 9 of the Judgement it was observed as follows:
"8. The judgment dated 1-9-1987 given by the Tribunal had reached the finality inasmuch as it was not challenged by the petitioners any further. The respondents were not reinstated in service even thereafter. In the light of the Constitution Bench judgment2 aforementioned, the order refusing to give approval for dismissal on the ground of non-compliance with the proviso to Section 33(2)(b) rendered it void and inoperative and the respondent was deemed to have continued in service as if no order of dismissal was passed. Admittedly, no wages were paid to the respondent for the period between the first and second order of dismissal. The main question that came up for consideration in Tata Iron and Steel Co.4 was whether the proceeding validly commenced u/s 33(2)(b) would automatically come to an end merely because the main industrial dispute had meanwhile been finally determined. In the said case, it is held thus: (AIR p. 384, para 11)
"[E]ven if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent''s services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted."
Having not challenged the earlier order dated 1-9-1987, it was not open to the petitioners to make a second application seeking approval for the order of dismissal of the respondent, that too without paying full wages. The Division Bench of the High Court has found that the second order of dismissal amounted to unfair labour practice and victimization. The Tribunal was not justified in allowing the second application seeking approval by ignoring the dismissal of the earlier application made by the management for non-compliance with the mandatory provisions of law. The Tribunal proceeded on the ground that the earlier application was not decided on merits and held that it was open to the petitioners to file a second application. This is clearly contrary to the decision of the Constitution Bench. It appears to us that the petitioners designed to defeat the claim of the respondents by making a second application when the order suffered by them on the first application had become final. Even as stated in the decision of Tata Iron & Steel Co.4 the petitioners failed to pay full wages to the respondents between the period of two dismissal orders. The case of Tata Iron and Steel Co.4 on facts of the present case does not help the petitioners. The question that was dealt in that case was altogether different."
(Emphasis added)
The said judgment will not apply to the case on hand. In the present case, the order dated 29.01.2007 passed by the second respondent was not a final order. On the contrary, the matter was postponed for recording fresh evidence. Whether such a procedure is valid or not, is no longer res integra. The Supreme Court vide judgment Divyash Pandit V. NCCBM reported in (2007) 15 SCC 787 dealt with the scope of leading evidence to justify the charges before the authority. In paragraph 8 it was observed as follows:
The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2-12-2002 as clarified on 3-3-2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC v. Lakshmidevamma this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman.
(Emphasis added)
The petitioner, who had challenged the said liberty given in the earlier writ petition, for reasons best known, withdrew that writ petition thereby making the order dated 29.01.2007 to become final. Once the authority allows parties to lead fresh evidence and the management having let in evidence through its Branch Manager, and the workman has also given rebuttal evidence, the matter has to be decided by the authority by one way or other. While doing so, the authority has only find out whether there is a prima facie case for grant of approval. But that will not end the matter. The workman can go before the appropriate labour officer and raise a dispute u/s 2-A(2) of the Act and can bring the matter before a labour Court. In such an event, the labour Court will have a wider jurisdiction clotted with the powers u/s 11-A of the Act. If the petitioner had done so, by this time even such a dispute would have reached its finality. Due to ill-advice, the petitioner has moved this Court challenging the order granting approval.
It has been time and again held by the Courts, the findings in a 33(2)(b) order would not binding on the adjudicating authority in a regular industrial dispute and it does not operate as res judicata. In Cholan Roadways Corpn. Ltd V. Industrial Tribunal, Madras & Anr) reported in 1994 (1) LLJ 1076, this Court held in paragraph 10 as follows:
"The position of law that emerges from the above quoted decisions may be stated thus. The Tribunal exercising jurisdiction under Sec.33(2)(b) of the Industrial Disputes Act is not sitting as a Court of appeal weighing or reappraising evidence. For the purpose of granting or refusing approval under Sec.33(2)(b)of the Act, the tribunal only examines the findings of the enquiry officer in order to find out whether there is a prima facie case or whether the findings of the enquiry officer are perverse. A prima facie case is not a case proved to the hilt. If the employer has held a proper enquiry into the alleged misconduct of the employee following the principles of natural justice and if it does not appear that the proposed dismissal of the employee amounts to victimization or an unfair labour practice, the other ground on which the tribunal can interfere is only when there is no legal evidence at all recorded in the domestic a conclusion of guilt on the evidence recorded in the domestic enquiry. In other words, if there was a proper enquiry into the misconduct and no victimization or unfair labour practice is involved, the tribunal has to limit its enquiry under Sec.33(2)(b) only to the extent as to whether a prima facie case has been made out or not. It must be remembered that the jurisdiction is only to decide whether the ban imposed on the employer by Sec.33 is to be lifted or maintained by granting or refusing the approval. If the approval is refused by the tribunal, the employer would be precluded from discharging or punishing the workmen. However, if permission or approval is granted, that could not validate the action of discharge or dismissal. Permission or approval would merely remove the ban but the validity of the order would still be liable to be decided in a reference at the instance of the workmen under Sec.10 or 20A of the Act."
Similarly in the judgment M/s. Echjay IND(P)LTD v.Shri M. Shivubha & Ors reported in 1994 (2) LLJ 1234, the Gujarat High Court in paragraph 11 it had held as follows:
"11.... It is settled law that inquiry u/s 33(2)(b) is confined only to the question as to whether a prima facie case has been made out and permission granted u/s 33(2)(b) would not bar the examination of the question of validity of the order of dismissal u/s 10 of the I.D.Act."
The learned counsel also contended that since the matter was kept pending from the year 2005 and as there was long delay it had disabled the workman from defending himself. Hence, denial of subsistence allowance to the workman placed under suspension during the pendency of the proceedings is clearly illegal. For this purpose, the learned counsel placed reliance upon the judgment of the Supreme Court in Fakirbhai Fulabhai Solanki Vs. Presiding Officer and Another, .
The said judgment has no relevance to the case on hand. In that case, the workman involved was a "protected workman" u/s 33(3) of the Act. In case of dismissal of such a workman, express permission from the competent authority is required. The Court found that in that case permission was sought after six years and in that context held that non-payment of subsistence allowance results in denial of opportunity to the workman to defend himself. It was a case of prior approval from the authority.
The case falling u/s 33(3) of the Act is different from the case falling u/s 33(2)(b) of the Act. In the first case, it requires a prior permission. In the second case, it only requires a post facto approval. It was in that context, the Court held that workman had suffered and the order directing payment of subsistence allowance pending the proceedings so as to defend himself was justified. It was also held that in an unscrupulous management may by all possible means delay the proceedings so that the workman may be driven to accept its terms instead of defending himself in the proceedings u/s 33(3) of the Act.
In the present case, if the Workman had filed an application, after the management was allowed to lead evidence, before the approving authority, then the authority would have considered the grant of some interim relief. In such an event, the ratio of the judgment in Fakirbhai Fulabhai Solanki''s case (cited supra) would have helped him before the authority. On the other hand, in the present case, the workman has challenged the interim order passed by the authority. After withdrawing the writ petition and even before the approving authority, he did not lead satisfactory evidence which led to the grant of approval, on a prima facie basis. Hence this Court is of the view that no case was made out to interfere with the impugned order. Hence, the writ petition stands dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
It is made clear that the dismissal of the writ petition will not prevent the workman from making an application u/s 2-A(2) of the I.D. Act before the jurisdictional conciliation officer and thereafter, get his case adjudicated by a competent labour Court.