The General Manager, v. The Special Deputy

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.04.2021 C O R A M THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU and M.P.(MD)Nos.1 and 2 of 2014 The General Manager, Tamil Nadu Transport Corporation (Madurai) Limited, Dindigul Region, Bye pass Road, Collectorate Post, Dindigul-624 004.

... Petitioner Vs.

1.The Special Deputy Commissioner of Labour, O/o. Commissioner of Labour, Chennai-600 006.

2.S.Thangavel

...Respondents

PRAYER: Writ Petition filed under Article 226 of the constitution of India, to issue a writ of Certiorari, to call for the records of the first respondent in his proceedings in Approval Petition No.73/2011 dated 27.12.2012 and quash the same.

For Petitioner : Mr. J.Senthil Kumariah For Respondent 1 : Mr. M.Jeyakumar Additional Government Pleader For Respondent 2 : Mr. S.Govindan

ORDER

(through video conference) Heard Mr. J.Senthil Kumariah, Learned Counsel for the Petitioner, Mr. M.Jeyakumar, Learned Additional Government Pleader appearing for the First Respondent and Mr. S.Govindan, Learned Counsel appearing for the Second Respondent, and perused the materials placed on record, apart from the pleadings of the parties. 1/5

2.

The Second Respondent, who was employed as conductor, had been terminated from service by the Petitioner by Order dated 23.02.2011 on the charge of misappropriation. Since conciliation proceedings relating to an industrial dispute between the Petitioner and the Trade Union in which the Second Respondent was a member was then pending before the First Respondent, the Petitioner had made an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) for approval of termination, but it was rejected by order dated 27.12.2012 in A.P. No. 73 of 2011 passed by the First Respondent. Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the same.

3.

It is evident from the impugned order that the First Respondent has examined the application for approval made by the Petitioner with reference to the relevant aspects stipulated in the decision of the Hon-ble Supreme Court of India in Lalla Ram -vs- D.C.M. Chemical Works Ltd. [(1978) 3 SCC 1], which are as follows:- (i) 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 had 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 victimise the employee; (iv) whether the employer has paid or offered to pay wages for one month to the employee; and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.

4.

The First Respondent came to the conclusion that the requirement in items (iii) (iv) and (v) had been satisfied and in respect of the aspects in items (i) and (ii), it was held that the domestic enquiry has not been conducted following the Rules, Standing Orders and the principles of natural justice and prima facie case has not been made out and as such approval cannot be granted.

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5.

Insofar as the question relating to validity of the domestic enquiry is concerned, it would be necessary to focus here that the Hon-ble Supreme Court of India in the decision in John D'Souza -vsKarnataka State Transport Corporation (Order dated 16.10.2019 in Civil Appeal No. 8042 of 2019) has explained the law relating to the procedure to be adopted in a proceeding for approval under Section 33(2)(b) of the Act with reference to the earlier rulings, as follows:- "31. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases.

Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment.

In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified.

...

34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be `preponderance of probability' and not a `proof beyond all reasonable doubts' suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act."

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Viewed from this perspective, if the Second Respondent had been of the opinion that the domestic enquiry suffered from any infirmity, it ought to have disclosed the same to the parties and thereafter called upon them to adduce their evidence in support of their respective contentions and then decide whether there was justification for the termination made.

6.

At this juncture, it must be recapitulated here that the Constitution Bench of the Hon'ble Supreme Court of India in Karnataka State Road Transport Corporation -vs- Lakshmidevamma [(2001) 5 SCC 433] has held that in order to avoid unnecessary delay and multiplicity of proceedings, when an employer seeks approval under Section 33(2)(b) of the Act, leave to lead additional evidence to support the action in the alternative and without prejudice to his rights and contentions has to be made in application itself. In this case, it is seen from para 12 of Form-T that the Petitioner has sought for such leave.

7.

As it is apparent that the exercise in accordance with the procedure required to be followed in the aforesaid binding decisions of the Hon'ble Supreme Court of India had not been undertaken by the First Respondent in this case, it would not be possible to uphold the impugned order refusing approval for termination of the First Respondent.

8.

The result of the foregoing discussion is that the impugned order dated 27.12.2012 in A.P. No. 73 of 2011 passed by the First Respondent, which cannot be sustained, is set aside and the matter is remitted back to the First Respondent for deciding the matter afresh in the required manner. In order to expedite disposal, the matter shall be listed for hearing before the First Respondent at 11.00 a.m. on 22.07.2021 when the Petitioner and the Second Respondent shall appear in person or through their authorized representative. If the First Respondent is not in a position to take up the matter for hearing on that date, it shall inform all parties concerned of the date of hearing to which it is adjourned in the prescribed manner.

It shall be ensured by the First Respondent that there is atleast one effective hearing every week showing progress of the case, that full opportunity of hearing is afforded to all parties concerned following the prescribed procedure in consonance with the principles of natural justice, that reasoned orders are passed dealing with each of the contentions raised by them on merits and in accordance with law, that the decision taken is communicated to the concerned parties under written acknowledgment and that proof of such compliance is filed by 31.10.2021 before the Registrar (Judicial) of this Court. Though obvious, it is made clear that while deciding the matter, the First Respondent shall not be inhibited or influenced by the impugned order, which has been set aside.

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In fine, the Writ Petition is disposed on the aforesaid terms. No costs. Consequently, the connected Miscellaneous Petitions are closed.

Sd/- Assistant Registrar(P & A) // True Copy // / /2021 Sub Assistant Registrar(CS) ta/dm Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To The Special Deputy Commissioner of Labour, O/o. Commissioner of Labour,Chennai-600 006.

Copy to:-

1. The Registrar (Judicial), Madurai Bench of Madras High Court,Madurai.

2.The General Manager, Tamil Nadu Transport Corporation (Madurai) Limited, Dindigul Region, Bye pass Road, Collectorate Post, Dindigul-624 004.

3.S.Thangavel, Conductor 60761, S/o. Sonai, Palayankottai Post, Sithaiyankottai Via, Dindigul Taluk.

+1 CC to M/s.SPL GP ( SR-17367[F] dated 23/04/2021 ) W.P.(MD)No.14391 of 2014 21.04.2021 KMV(CO) TR(18.06.2021) 5P 6C 5/5