Avtec Limited vs Avtec Evam Hindustan Motors ...
2021 Latest Caselaw 6884 MP

       High Court of Madhya Pradhesh; Bench At Indore

                             MP No.2145/2020
       (AVTEC Ltd Vs. President/General Secretary and ors)
                              MP No.2357/2020
           (AVTEC Ltd Vs. President/General Secretary and ors)


INDORE; DATED - 27/10/2021
       Shri Jamshed Cama, learned senior counsel with Ms.Kirti
Patwardhan, learned counsel for the petitioner.
       Shri A.S Kutumble, learned senior counsel with Shri B.L Nagar,
learned counsel for the respondent.

On the joint prayer, IA Nos.1650/2021 and 1651/2021, applications seeking recall of order dated 18.11.2020 is taken up for hearing.

1. The petitioner no.1 Trade Union issued a charter of demand dated 05.03.2015 raising a demand of increase of wages and other perks. The discussion of the union with the management could not fetch any result. Case of union is that management started victimizing the active trade union members/office bearers. In this backdrop, State Government made a reference dated 27.01.2016 and referred the dispute for its adjudication to the Industrial Tribunal, Indore, which was registered as case no.7/2016/IDR. The reference reads as under :-

^^D;k lsok fu;kstj dkj[kkuk izca/kd ,oVsd fy- ihFkeiqj laLFkku esa lsofu;qDr i{k v/;{[email protected]=h ,oVsd ,oa fganqLrku eksVlZ Jfed la/k }kjk fofHkUu ekaxks dks ysdj izLrqr osru HkRrksa vkfn esa o`f) lEcU/kh ekax i= ij vkilh ppkZ,a tkjh jgus ds nkSjku laLFkku esa mRiknu dk;Z esa c<k ,oaa O;o/kku mRiUu djrs gq, gMrky dh fLrfFk fufeZr dh tk jgh gS? ;fn gkWa rks D;k ;g d`R; os/k vkSj mfpr gS \ ;fn ugha rks bl lEcU/k esa vukosnd lsofu;qDr i{k dks D;k funsZ'k fn, tkuk pkfg, ,oa vknsnd lsofu;kstd i{k fdl lgk;rk dk ik= gS\^^

2. The petitioner/union by order dated 02.06.2016 prayed for declaring certain workers as "protected workmen" under the Industrial Dispute Act, 1974 (ID Act). The stand of union was that false and stereo type charge sheets were issued against active members and office bearers of the union in order to punish them because of demand raised High Court of Madhya Pradhesh; Bench At Indore

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by union which resulted into issuance of reference aforesaid to the Industrial Tribunal.

3. The employer considering the fact that reference was pending adjudication before the Tribunal, filed a separate applications for approval of termination of certain workmen under section 33 (2)(b) of the ID Act. The approval of dismissal order dated 27.04.2016 was sought for. The employer's application for approval of dismissal order was dismissed which covers 38 workmen. The management assailed the order of tribunal in this petition. This Court granted interim relief to the petitioner and said interim relief was continued by order dated 18.11.2021 subject to compliance of section 17-B of ID Act.

4. Learned senior counsel for the petitioner placed heavy reliance on the language employed in section 17-B of ID Act and urged that unless there exists a direction of 'reinstatement' in the impugned order, the question of compliance of section 17-B of the ID Act does not arise. In the impugned order, there exists no direction to reinstate the concerned workmen.

5. Learned senior counsel for the employer placed reliance on Hiren Mayee Bhattacharyya Vs. Secretary SM School for Girls and Ors. (2002) 10 SCC 293 and Union of India Vs. Y.S Sandhu (AIR 2009 SC

161) to contend that if departmental inquiry is found to be erroneous because of any procedural flaw, a de-novo inquiry can be ordered but in that situation, the question of reinstatement does not arise and termination order already passed will remain in force. This termination order will however be subject to the result of fresh consideration after the domestic inquiry.

High Court of Madhya Pradhesh; Bench At Indore

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6. The reliance is also placed on the judgment of the Apex Court reported in AIR 1978 SC 995 (Punjab Beverages Pvt. Ltd. Vs. Suresh Chand). It is urged that in view of this judgment, it cannot be presumed that there exists a direction to reinstate the concerned workmen by passing the impugned order.

7. Per contra, learned senior counsel for the respondent placed reliance on full bench judgment of Delhi High Court in the case of Delhi Transport Corporation Vs. Jagdish Chandra reported in (2005) SCConline Delhi 116. It is submitted that if the application of employer seeking approval of punishment order is rejected by the Tribunal, inevitable, implied and automatic consequences would be direction of reinstatement.

8. The parties confined their arguments to the extent indicated above.

9. The judgment of Punjab Beverages (supra) was considered by the Delhi High Court in the aforesaid full bench judgment. Relevant portion of this judgment reads as under :-

18. The above decision of the Supreme Court was referred with approval and the principle enunciated even explained in greater depth by the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma [2002 (1) L.L.N. 639]. In this case Their Lordships of the Supreme Court specifically referred that the law as stated in the case of Punjab Beverages (Private), Ltd., Chandigarh v. Suresh Chand [1978 (1) L.L.N. 665], was not correct disposition of law in so for as it stated that the order of dismissing the workman in violation of provisions of S. 33(2)(b) of the Act would not be void and inoperative and workman would not be entitled to maintain an application for determination and payment of wages under S. 33-C(2) of the Act. Finally the Supreme Court held as under 2002 (1) L.L.N. 639, in Paras. 14 and 16, at pages 644 and 645:

"14, Where an application is made under S.

33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action High Court of Madhya Pradhesh; Bench At Indore

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taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization of unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never has been passed. The order of dismissal or discharge passed invoking S. 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position, there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under S. 33-A challenging the order granting approval on any of the grounds available to him.

Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead High Court of Madhya Pradhesh; Bench At Indore

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of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under S. 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under S. 33-A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to S. 33(2)(h). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to S. 33(2)(b), S. 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted.

16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that S. 31 provides a remedy to an employee for contravention of S. 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under S. 33-A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under S. 33-A. There is nothing in Ss. 31, 33 and 33-A to suggest otherwise even reading them together in context. These sections are intended to serve different purposes."

19. In view of the above enunciated law it is really not necessary for us to discuss the matter in any greater detail. High Court of Madhya Pradhesh; Bench At Indore

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Suffice it to state that once an application filed by the employer before. The competent authority under S. 33(2) (b) of the Act is rejected the order of dismissal against the workman is non est and inoperative in law. Inevitable consequence thereof is that for all intent and purposes the workman continues to be in employment and is entitled to all benefits. Now, it cannot be stated that the workman is remedyless in a situation where application of the employer under S. 33(2)(b) of the Act has been rejected. He could invoke provisions of S. 33-C(2) as far as the monetary benefits are concerned and approach the High Court for issuance of a prerogative writ jurisdiction of the High Court under Art. 226 of the Constitution of India. Rejection of an application under S. 33(2)(b) is also a determination within the ambit of industrial jurisprudence. The application for approval filed by the employer is contested by the workman on all fronts including the merits of the case. Parties are permitted to lead evidence as per practice of the Labour Court/Tribunal and provisions of the Act. May be the scope of jurisdiction under S. 33(2)(b) of the Industrial Tribunal is not as wide as it is while answering a reference made to it by the appropriate Government under S. 10 of the Act. But it can hardly be disputed that there is complete and final determination by the Industrial Tribunal while deciding an application under S. 33(2)

(b) of the Act. In the event it rejects the application and declines to grant approval prayed for then in terms of the above law the order of dismissal is ineffective and inconsequential right from its very inception.

20. Under Art. 141 of the Constitution the law declared by the Supreme. Court shall be binding on all Courts within the territory of India while under Art. 142 any order made by the Supreme Court shall be enforceable throughout the territory of India in such a manner as may be prescribed by or under any law made by the Parliament. The judgments of the Supreme Court in the case of Managing Director Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam [2001 (3) L.L.N. 34] (vide supra), and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Sri Ram Gopal Sharma [2002 (1) L.L.N. 639] (vide supra), have clearly enunciated--

High Court of Madhya Pradhesh; Bench At Indore

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"the law in relation to consequences of an order of dismissal and remedies available to the workman in the event the application of the employer under S. 33(2)(b) of the Act is rejected by the Industrial Tribunal. This law would be operative and effective and all concerned are required to implement such law without protest and demur and ensure that unless proper meaning is given to the order of dismissal it will be invalid and inoperative in law..." This being the position there is no need for a separate or specific order for his reinstatement. The employer is bound to treat the employee as continuing in service and give him all the consequential benefits.

21. Pervasive analysis of the contents of S. 17-B of the Act and the judgments of the Supreme Court in the above cases laying down the law while interpreting the provisions of S. 33(2)(b) of the Act discernibly predicate the principle that a workman is entitled to receive full wages last drawn by him under S. 17-B of the Act where the Labour Court upon reference finds action of the employer in dismissing the workman illegal or, unjustified and directs by award his reinstatement under S. 17-B of the Act subject to the satisfaction of the conditions stated therein on the one hand, while on the other wherever the action of the employer is found to be unjustified or illegal and the Industrial Tribunal rejects an application of the employer under S, 33(2)

(b) of the Act the workman is entitled to receive all benefits including full wages last drawn by him at the time of termination of his services by "deemed fiction of law." The order of dismissal or termination upon rejection of application under S. 33(2)(b) is rendered non est and inoperative. Continuity in service with consequential benefits is thus an inevitable' result of such order of rejection. This is so in view of the judicial pronouncements which are the law of the land. In one case the workman gets the benefits in terms of the provisions of the statute while in the other on the foundation of the Judge made law, both of which are equally enforceable under the constitutional provisions of the country. Furthermore, flex nil rustra iubet, directs that law High Court of Madhya Pradhesh; Bench At Indore

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commands nothing vainly, the legislative law or the law which emerges from judicial pronouncements should be given effect to. An approach which would render either of them ineffective or futile would not be permissible, the maxim verb cum effectual accipienda sunt would clearly apply to such situations and need for giving a wider and effective meaning to the expressions of the provisions, to achieve only the object enunciated in the scheme of the statute as well as in the judicial pronouncements. Discussion en merits of rival contentions:

Recapitulation of admitted facts would be necessary in order to examine the merit or otherwise of the rival contentions placed before us. The workman who was working as Chowkidar with Delhi Transport Corporation since May 20, 1988 was removed from service vide order, dated May 19, 1993 on the plea of misconduct. The misconduct related to unauthorised repeated absence of workman from duty and in particular for unauthorised absence of 52 days during the mentioned period. The management had paid the workman one month wages as contemplated under S. 33(2)(b) of the Act by money order and they had also filed an application under S. 33(2)(b) of the Act before the Industrial Tribunal, Delhi. The application was contested by the workman, parties led evidence and after hearing them the application was rejected by the Tribunal vide its order, dated August 19, 1999. We have noticed these facts again only with a view to co-relate our conclusions to the facts of the case. However, we are not called upon in this reference to decide the merits of the dispute but only to answer the limited question indicated in the order of reference. In the backdrop of the above facts the learned counsel appearing for the petitioner contended that the expression "award" has to be given its restricted meaning and the provisions of S.

17-B on their plain reading cannot take into its ambit the cases where the employer has preferred the proceedings before the High Court against order of High Court of Madhya Pradhesh; Bench At Indore

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the Tribunal rejecting its application under S. 33(2)

(b) of the Act. In order to substantiate his submission he relied upon the judgments of the Supreme Court in the cases of State Bank of India v. N.

Sundaramoney [1976 (2) L.L.N. 5] and Steel Authority of India Ltd. v. National Union Waterfront Workers [2001 (4) L.L.N. 135]. The law enunciated in these judgments is not in any way in controversy before us. In fact, this has been the consistent view of the Supreme Court that while interpreting the Court should apply the plain rule of construction and need not attempt to legislate. In the case of Sundaramoney (vide supra) the Court held as under, in Paras. 6 and 8, at pages 9 [1976 (2) L.L.N. 5].

"6. The diagram of the employment order must now be studied to ascertain which of the rival meanings counsel have pressed deserves preference. Statutory construction, when Courts consider welfare legislation with an economic justice bias, cannot turn on cold print glorified as grammatical construction but on teleological purpose and protective intendment. Here Ss. 25-F, 25-B and 2(oo) have a workers mission and the input of part IV of the Constitution also underscores this benignant approach...

8. ........... Such cases are outside the concept of 'retrenchment' and cannot entail the burden some conditions of S. 25-F. Of course, that a nine-days' employment, hedged in with an express condition of- temporariness and automatic cessation, may look like being in a different street (if we may use a colloquialism) from telling a man off by retrenching him. To retrench is to cut down. You cannot retrench without trenching or cutting. But dictionaries are not dictators of statutory construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation. Section 2(oo) is High Court of Madhya Pradhesh; Bench At Indore

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the master of the situation and the Court cannot truncate its amplitude."

While in the case of Steel Authority of India (vide supra) Their Lordships of the Supreme Court held as under, in Para. 25, at page 145:

"It is a well-settled proposition of law that the function of the Court is to interpret the statute to ascertain the intent of the Legislature-Parliament. Where the language of the statute is clear and explicit the Court must give effect to it because in that case words of the statute unequivocally speak of the intention of the Legislature. This rule of literal interpretation has to be adhered to and a provision in the statute has to be understood in its ordinary natural sense unless the Court finds that the provision sought to be interpreted is vague or obscurely worded in which event the other principles of interpretation may be called in aid. A plain reading of the said phrase, under interpretation, shows that it is lucid and clear. There is no obscurity, no ambiguity and no abstruseness. Therefore the words used therein must be construed in their natural ordinary meaning as commonly understood."

(emphasis supplied)

10. In para 35 of this judgment, the full bench answered the formulated question as under:-

35. Thus, our answer to the following formulated question as to whether the provisions of S. 17-B of the Industrial Disputes Act will be applicable in a case where the management in the writ petition has challenged the order of the Labour Court/Industrial Tribunal whereby its application under S. 33(2)(b) of the Act seeking approval of the order of dismissal was dismissed by such Court or Tribunal is as under:

"The provisions of S. 17-B of the Industrial Disputes Act will be applicable in a case where the management in the writ petition has challenged the order of the Labour Court/Industrial Tribunal whereby its High Court of Madhya Pradhesh; Bench At Indore

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application under S. 33(2)(b) of the Act seeking approval of the order of dismissal was dismissed by such Court or Tribunal, subject to the conditions stated in S. 17-B itself."

(emphasis supplied)

11. The employer unsuccessfully assailed the judgment of full bench in the case of DTC in SLP (c) no.16637/2005, which was dismissed on 18.08.2005.

12. Pertinently, dicta of judgment of full bench in Delhi Transport (supra) was followed by Gujarat High Court in Somabhai Babubhai Parmar Vs. Gujarat State Road Transport Corporation reported in 2008 SCC Online Guj 113. Relevant portion reads as under :-

"18. In case of Delhi Transport Corporation v/s. Jagdish Chander reported in 2005-III-LLJ page 390, Full Bench of the Delhi High Court has observed as under at page 390.

"Respondent, who was a Conductor in petitioner - Delhi Transport Corporation, was removed from service on charges of irregularity and irresponsibility in the performance of his duties, amounting to misconduct in terms of paras 4 and 19 (f) among others of the Standing Orders. The Corporation sought approval of the removal under Section 33 (2) (b) of the Industrial Disputes Act, 1947 before the Industrial Tribunal. The Tribunal declined to grant the approval. The Corporation challenged the Tribunal's order in the present petition. Respondent filed an application seeking relief under Section 17-B of the Act. A reference was made upon this application to the present Full Bench, the issue being whether Section 17-B would be applicable to writ proceedings challenging an order of the Tribunal under Section 33 (2) (b) declining approval. The Full Bench answered the reference in the affirmative."

13. The Bombay High Court followed the ratio decidendi of full bench Delhi High Court in Oil and Natural Corporation Ltd. Vs. Ninan Thomas reported in 2008 SCC Online Bom 1708.

14. The Division bench of Rajasthan High Court followed the ratio decidendi of full bench Delhi High Court in Karan Singh Vs. High Court of Madhya Pradhesh; Bench At Indore

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Authorized Disciplinary Authority RSRTC, reported in 2008 SCC Online Raj 319.

15. We are in respectful agreement with the view taken by full bench of Delhi High Court. In view of judgment of full bench aforesaid, it is clear that once the application filed by the employer under section 33(2)

(b) of the ID Act is rejected, the order of dismissal against the workmen becomes non-est and inoperative in law. The inevitable consequence of the same would be continuation/reinstatement of the workmen. In clear terms, it was held that there is no need for a separate or specific order for the reinstatement of the workmen.

16. In this view of the matter, we find no reason to recall the order dated 18.11.2020.

17. Accordingly, IA Nos. 1650/2021 and 1651/2021 are dismissed.

18. The employer shall comply with the order dated 18.11.2020 and file the compliance report within three week.

19. List the matter thereafter with connected matters.

                  (Sujoy Paul)                         (Pranay Verma)
                    Judge                                    Judge

       sourabh

Digitally signed by
SOURABH YADAV
Date: 2021.10.28 17:24:56
+05'30'