Kerala High Court

A.A.Salim vs Labour Court on 6 June, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
     THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                        WP(C) NO. 21740 OF 2020
PETITIONERS:
     1     A.A.SALIM,
           CHAIRMAN, QUILON MEDICAL TRUST,
           TRAVANCORE MEDICAL COLLEGE HOSPITAL,
           MEDICITY N.H. BYPASS, UMAYANALLOOR P.O.
           KOLLAM 691 589.

    2       ABDUL SALAM, SECRETARY
            QUILON MEDICAL TRUST,
            TRAVANCORE MEDICAL COLLEGE HOSPITAL,
            MEDICITY N.H. BYPASS,
            UMAYANALLOOR P.O. KOLLAM 691 589.

            BY ADVS.
            P.RAMAKRISHNAN
            SMT.PREETHI RAMAKRISHNAN (P-212)
            SRI.T.C.KRISHNA
            SRI.C.ANIL KUMAR
            SRI.PRATAP ABRAHAM VARGHESE
            SMT.ASHA K.SHENOY


RESPONDENTS:
     1     LABOUR COURT
           KOLLAM VIDYA NAGAR, KOLLAM 69 013.

    2       SMT. BINDU SURESH BABU,
            REPRESENTED BY G. JAYAPRAKASH,
            GENERAL SECRETARY, PRIVATE HOSPITALS,
            EMPLOYEES ASSOCIATION OF KERALA INTUC,
            MUNDAKKAL, KOLLAM 691 001.

            BY ADVS.
            SRI.B.ASHOK SHENOY
            SMT.C.G.PREETHA
            SRI.P.S.GIREESH
            SRI.RIYAL DEVASSY


     THIS   WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
08.04.2024, THE COURT ON 06.06.2024 DELIVERED THE FOLLOWING:
 WP(C) NO. 21740 OF 2020      : 2 :




                           JUDGMENT

The petitioners are respectively the Chairman

and Secretary of the Quilon Medical Trust which runs

the Travancore Medical College (hereinafter referred

to as 'the Management'). The 2nd respondent

(hereinafter referred to as 'the worker') was working

as Laboratory Assistant in the Medical College

Hospital from 02.11.2009. According to the

Management, the worker was issued with Exts.P1 and

P2 charge memos dated 04.07.2016 and 05.07.2016

alleging serious misconducts. The worker refused to

receive the charge sheets and unauthorisedly

absented herself from work from 08.07.2016. The

charge memos were, therefore, sent to her

residential address by registered post. The worker

submitted Ext.P3, a reply denying the charges,

stating that she was instructed not to attend work,

that she has been denied work, and that she is willing

to return to work at any time. She also stated that

the Trade Union, of which she is a member, raised

the dispute regarding denial of her employment

before the Management by registered letter dated

08.07.2016 which the Management received on

11.07.2016. The Trade Union also raised the dispute

of denial of her employment before the District

Labour Officer by complaint dated 08.07.2016, and

the District Labour Officer issued a notice dated

12.07.2016 convening a conciliation conference.

2. The worker was suspended from service

pending enquiry with effect from 03.08.2016. She

was issued with Ext.P4 charge memo dated

12.08.2016 alleging unauthorised absence and

refusal to accept Exts.P1 and P2 charge sheets.

3. Since the explanation submitted by the

worker was not satisfactory, the Management

appointed an enquiry officer to enquire into the

charges. The enquiry officer initiated a joint enquiry

into Exts.P1 and P2 charges and a separate enquiry

regarding Ext.P4 charge sheet. The worker was set

ex parte, and the enquiry officer found her guilty of

the charges. The Management issued Ext. P5 order

dated 26.04.2017, imposing the punishment of

removal of the worker from service.

4. The Government had, in the meantime,

issued G.O.(Rt) No.79/2017/LBR dated 20.01.2017

referring the dispute regarding denial of employment

of the worker for adjudication under Section 10(1) C

of the Industrial Disputes Act, 1947 (hereinafter

referred to as the 'ID Act', for short). The issue

referred for adjudication is:-

"Whether the denial of employment to Mrs. Bindu Suresh Babu, Lab Assistant by the Management of Quilon Medical Trust, Travancore Medical College Hospital, Medicity, N.H.By Pass, Umayanalloor-P.O., Kollam is justifiable or not? If not what relief the worker is entitled to?".

5. The dispute was referred for adjudication to

the Labour Court, Kollam as ID No.9/2017. Pursuant

to the reference, the Trade Union filed Ext.P6 claim

petition. The Management filed Ext.P7 written

statement stating that the worker was dismissed

from service after domestic enquiry and there is no

denial of employment as alleged in the claim petition

and praying to pass orders holding that there is no

denial of employment to the worker and that she was

dismissed from service on proved misconduct and to

uphold the domestic enquiry by Management as fair

and proper.

6. The worker filed I.A. No. 66/2018 (Ext.P8) in

ID No. 9/2017 on 04.06.2018 under Section 33-A of

the ID Act contending that during the pendency of

the proceedings before the Labour Court, she was

removed from service by the Management without

obtaining permission of the Court under Section 33

(1) (b) of the ID Act and praying to set aside Ext.P5

order of removal from service.

7. The Management filed Ext.P9 reply to

Ext.P8 stating that the removal of the worker was

based on the findings on Exts.P1 and P2 charge

memos, on which no conciliation proceedings were

pending.

8. As requested by both sides, Ext.P8

interlocutory application filed under Section 33-A was

converted to ID No.96/2019. However, the request

for joint trial by the Trade Union was rejected. The

Labour Court observed that before taking any

decision on the application filed under Section 33(1)

(b), it is appropriate and desirable to have a finding

whether dismissal of worker was justifiable or not and

by Ext. P10 Preliminary Award in ID No.9/2017 found

that enquiry report is not valid, proper and legal and

the enquiry proceedings were conducted in violation

of the principles of natural justice and set aside Ext.

M1 series enquiry reports.

9. Ext.P10 Preliminary Award is impugned in the

writ petition contending that the Labour Court has

gone beyond the issue referred for adjudication and

erred in examining the validity of the enquiry in a

reference made on allegation of denial of

employment. It is contended that the Labour Court

ought not to have examined the issue of removal of

the worker from service as the same was not an

issue referred for adjudication and had exceeded its

jurisdiction. The finding of the Labour Court in

Ext.P10 that the enquiry is vitiated is also challenged

in the writ petition. Accordingly, the Management has

sought to quash Ext.P10 Preliminary Award.

10. This Court, by order dated 14.10.2020, has

stayed all proceedings pursuant to Ext.P10

Preliminary Award.

11. Heard Sri. Pratap Abraham Varghese, the

learned counsel for the petitioners and Sri. P.S.

Gireesh, the learned counsel for the 2nd respondent.

12. I.D No.9/2017 is pending adjudication

before the Labour Court pursuant to a reference by

the Government under Section 10(1) C of the ID Act.

The issue referred for adjudication is whether the

denial of employment to the worker is justifiable or

not. During the pendency of the said dispute, the

worker filed Ext. P8 Interlocutory Application in ID

No. 9/2017 under Section 33-A contending that

during the pendency of the proceedings before the

Labour Court, she was removed from service by the

Management without obtaining permission of the

Court under Section 33(1)(b) of the ID Act and

praying to set aside Ext. P5 order of removal from

service. Section 33(1) of the ID Act reads as

follows:-

"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.--(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,--

(a) in regard to any matter connected with the dispute, alter, to

the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending."

Section 33-A of the ID Act deals with

adjudication of complaints relating to contravention

of Sec.33 and reads as follows:-

"33A. Special provision for

adjudication as to whether conditions

of service, etc., changed during

pendency of proceedings.--Where an

employer contravenes the provisions of

section 33 during the pendency of

proceedings before a conciliation officer,

Board, an arbitrator, a Labour Court,

Tribunal or National Tribunal, any

employee aggrieved by such

contravention, may make a complaint in

writing, in the prescribed manner,--

(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and

(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly."

Section 33-A of the ID Act enables an employee to

lodge a written complaint to the Labour Court if an

employer contravenes the provisions of Section 33

during the pendency of proceedings before the

Labour Court and the Labour Court is vested with the

jurisdiction to adjudicate upon the complaint in

accordance with the provisions of the ID Act, as if it

were a dispute referred to under Section 10 of the

Act or pending before it. The Hon'ble Supreme Court,

in Kumarhatty Co Ltd v. Ushnath Pakrashi [1959

KHC 637: AIR 1959 SC 1399: 1959 (2) LLJ 556],

interpreting the language employed in Section 33-A

of the ID Act, has held as under:-

"3....It is thus clear that a complaint under S.33A of the Act is as good as a reference under S.10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S.10. It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can

make if a dispute is referred to it relating to the dismissal or discharge of a workman. In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore a complaint under S.33A being in the nature of a dispute referred to a tribunal under S.16 of the Act, it is certainly which its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S.33."

Since Section 33-A vests the Labour Court with the

jurisdiction to adjudicate upon the complaint, as if it

were a dispute referred to under Section 10 of the ID

Act, the contention of the petitioners that the Labour

Court has exceeded its jurisdiction and gone beyond

the issue referred for adjudication, cannot be

sustained. Even if the issue of removal from service

is not referred for adjudication, the Labour Court can

examine the issue on a complaint that the employee

has been dismissed or removed in breach of Section

33(1)(b).

13. In Ext. P10 Preliminary Award, the Labour

Court observed that, before taking any decision on

the application filed under Section 33(1)(b), it is

appropriate and desirable to have a finding whether

dismissal of worker was justifiable or not.

Accordingly, the Labour Court ventured into the

validity of the enquiry leading to the removal of

worker from service. In a complaint filed under

Section 33-A, the Labour Court has to deal not only

with the question of contravention of Section 33(1)

(b), but also with the merits of the order of

dismissal.

14. Section 33-A provides for adjudication of

complaint in accordance with the provisions of the ID

Act, as if it were a dispute referred to under Section

10 of the Act. The reasoning behind the special

provision in Section 33-A of the ID Act is to provide

speedy remedy to an employee who has been

dismissed by the employer in contravention of

Section 33, without a reference under Section 10(1).

However, the alleged contravention of Section 33

does not make the order of removal or dismissal void

thereby entitling the reinstatement of the employee.

In other words, merely by a finding that the

dismissal or removal from service was without the

permission of the Court, the reinstatement is not

automatic. The order of dismissal can be interfered

with by the Labour Court by passing an award after

adjudication of the complaint under Section 33-A, in

accordance with the provisions of the ID Act. The

scope of Section 33-A was considered by the Hon'ble

Supreme Court in Punjab National Bank Ltd v. All

India Punjab National Bank Employees'

Federation and another [AIR 1960 SC 160: 1960

KHC 571: 1959 (2) LLJ 666] wherein the Court held

as under:

"34. In the present case the impugned orders of dismissal have given rise to an industrial dispute which has been referred to the tribunal by the appropriate Government under S.10. There can be no doubt that if under a complaint filed under S.33A a tribunal has to deal not only with the question of contravention but also with the merits of the order of dismissal, the position cannot be any different when a reference is made to the tribunal like the present under S.10. What is true about the scope of enquiry under S.33A is a fortiori true in the case of an enquiry under S.10. What is referred to the tribunal under S.10 is the industrial dispute between the Bank and its employees. The alleged contravention by the Bank of S.33 is no doubt one of the points which the tribunal has to decide; but the decision on this question does not conclude the enquiry. The tribunal would have also to consider

whether the impugned orders of dismissal are otherwise justified; and whether, in the light of the relevant circumstances of the case, an order of reinstatement should or should not be passed. It is only after all these aspects have been considered by the tribunal that it can adequately deal with the industrial dispute referred to it and make an appropriate award."

In Hindusthan General Electrical Corporation v.

Bishwanath Prasad and another [(1971) 2 SCC

605: AIR 1971 SC 2417: 1971 KHC 592], the

Hon'ble Supreme Court considered the scope of

Sections 33 and 33-A of the ID Act and held as

follows:

"9. The scope of S.33 and 33A was examined by this Court in several cases to some of which we shall presently refer. S.33 (1) has obviously no application to the facts of this case. S.33 (2) relates to the dismissal, discharge etc. of a workman for any misconduct not connected with an industrial dispute during the pendency of

any conciliation proceeding before a conciliation officer or a Board etc. unless he had been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. S.33A enables a workman who has been punished by dismissal or discharge etc. to make a complaint in writing to a labour court, tribunal or National Tribunal when an employer contravenes the provisions of S.33 during the pendency of proceedings before Labour Court, Tribunal or National Tribunal etc. If such a complaint is made, the labour court, tribunal etc. is to adjudicate upon the complaint as if it were a dispute referred to or pending before it and in accordance with the provisions of the Act submit its award to the appropriate Government. In other words, when the conditions laid down in S.33A apply a workman who is punished as mentioned therein does not have to wait for a reference of an industrial dispute by an appropriate authority under S.10 of the Act

for adjudication of the dispute but can himself prefer his complaint which is to be treated in the same way as a dispute under S.10. These sections do not lend themselves to the construction that as soon as the Labour Court, Tribunal etc. finds that there has been a violation of S.33 it should award reinstatement. It must go through the proceedings which would have to be taken under S.10 and it would be the duty of the labour court etc. to examine the merits of the case in the light of the principles formulated in the Indian Iron and Steel Co.'s case 1958 SCR 667: AIR 1958 SC 130."

Thus, it is trite that in a complaint filed under

Section 33-A, the Labour Court has to deal with the

merits of the order of dismissal. It was accordingly

that the Labour Court examined the validity of the

enquiry and passed Ext. P10 Preliminary Award.

There is no jurisdictional error in passing Ext. P10

warranting interference of this Court under Article

226 of the Constitution of India. As regards the

findings of the Labour Court in Ext. P10 Preliminary

Award that the enquiry is vitiated, it will be open to

the petitioners to challenge the Preliminary Award

along with the Final Award of the Labour Court, if