Madras High Court
The Management vs The Special Joint Commissioner Of ... on 1 August, 2021
W.P. No. 32018 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2021
CORAM
THE HON'BLE MR. JUSTICE S.VAIDYANATHAN
W.P. No. 32018 of 2018
and
W.M.P. No. 37272 of 2018
The Management,
Represented by its General Manager,
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Trichy Region,
Trichy - 620 001. ... Petitioner
-vs-
1. The Special Joint Commissioner of Labour,
DMS Campus,
Anna Salai, Chennai.
2. N.Chokkar ... Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the
order dated 09.07.2018 passed by the first respondent in Approval Petition No.153
of 2012 and quash the same, consequently direct the first respondent to approve
the order of the petitioner dated 16.04.2012 dismissing the second respondent
from service.
1/10
https://www.mhc.tn.gov.in/judis
W.P. No. 32018 of 2018
For Petitioner : Mr.D.Venkatachalam
For Respondents : Mr.L.S.M.Hasan Fizal
Government Advocate for R1
No appearance for R2
ORDER
Petitioner / Transport Corporation has come up with this Writ Petition
challenging the order dated 09.07.2018 passed by the first respondent in Approval
Petition No. 153 of 2012 and for a consequential direction to the first respondent
to approve the order dated 16.04.2012 passed by them, dismissing the second
respondent from service.
2. Heard the learned counsel on either side and perused the material
documents available on record.
3. The Authority rejected the Approval Petition filed by the petitioner /
Management in A.P. No. 153 of 2012 on the ground that, the enquiry was not
conducted properly and not in accordance with the principles of natural justice and
that, there is victimization.
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W.P. No. 32018 of 2018
4. Once the domestic enquiry is vitiated, in the light of the judgments
rendered by the Hon'ble Apex Court in the case of John D' Souza v. Karnataka
State Road Transport Corporation reported in (2019) 18 SCC 47 and in the case
of Management, Tamil Nadu State Transport Corporation (Villupuram)
Limited, Kancheepuram Region, Kancheepuram v. M.Chitti Babu (deceased)
and others reported in 2021-I-LLJ-17 (Mad), the Authority / Lower Court /
Tribunal must give an opportunity to the employer to establish the charges and
hence in the case on hand the matter will have to be remanded. If the employer had
sought for an opportunity in the application to establish the charges and in case,
the departmental enquiry is held to be bad, only then an opportunity need to be
given. In Shankar Chakravarti vs. Britannia Biscuit Company Limited and
others reported in (1979) 3 SCC 371, the Apex Court held that there is no need for
the Labour Court or Tribunal to remind the Management as to what they should
do. Even if the matter is remanded and approval is granted by the Authority on
remand, the employee is entitled to raise an Industrial Dispute and the Labour
Court is empowered to take a different view in terms of Section 11(A) of the
Industrial Disputes Act, 1947, taking into account the past record
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W.P. No. 32018 of 2018
5. In view of the above, this Court opines that, the order passed by the first
respondent / Authority requires interference in the light of the principle laid down
in John D' Souza's case (supra), as the order of rejection of the Approval Petition
passed by the Authority is not in accordance with law. Accordingly, this Court
interferes with the order dated 09.07.2018 passed by the first respondent /
Authority and sets aside the same.
6. It is open to the second respondent / employee to raise an Industrial
Dispute under Section 2(A) of the Industrial Disputes Act, 1947, as, remanding
the matter to the Authority is not going to help him as the authority may grant
approval again. In case, after remand, the Approval Petition is once again rejected
by the Authority, then, the employee need not raise an Industrial Dispute. Instead
of litigating endlessly, he can straightaway raise an Industrial Dispute challenging
the dismissal order without waiting for an adverse order in Approval Petition.
7. This Court in a decision dated 30.07.2021 passed in W.P. No. 6850 of
2017 has dealt with the period of limitation with regard to raising of Industrial
Dispute and the relevant portion of the order reads as follows:
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W.P. No. 32018 of 2018
“5. An employee can raise an industrial dispute
under Section 2(A) of the Industrial Disputes Act,
1947. A reading of Section 2(A) of the Act makes it
clear that, an industrial dispute has to be raised by
the employee within three years from the date of
dismissal. Even though, an order of dismissal has
been passed on a particular date, if the Approval
Petition filed by the Management is pending without
attaining finality, it may take effect at a
retrospective date. Hence, the period of limitation
prescribed under Section 2(A) of the Act will
commence on and from the date of approval of the
action of the Management, in confirming the order
of dismissal. Otherwise, the purpose of Section 2(A)
of the Industrial Disputes Act, 1947, itself will be
defeated.
6. Once the Authority confirms the order passed
by the Management, the order of dismissal of the
employee will get merged with the order of the
Authority in the Approval Petition, and the period of
limitation begins from the date of grant of approval
and not prior to that date, even though the dismissal
order is held to be valid. Hence, the period of
limitation will run only from the date of the order in
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W.P. No. 32018 of 2018
the Approval Petition, when the dismissal order is
confirmed by the Tribunal/Authority/Board.
7. Similarly, the period during which the Writ
Petition is pending shall also be excluded for the
purpose of limitation.”
If any Industrial Dispute is raised, the period of limitation, if not already expired,
will commence only from the date of order of this Court in the Writ Petition.
8. Even though Section 17-B of the Industrial Disputes Act, 1947 is not
applicable to the order passed by the Authority under Section 33(2)(b) of the
Industrial Disputes Act, 1947, this Court is of the view that, the order passed by
the Authority under Section 33(2)(b) of the Industrial Disputes Act is more than
one of reinstatement. Since the Approval Petition has been rejected by the
Authority, the second respondent / employee is deemed to be in service, in the
light of the judgment rendered by this Court in the case of Tata Iron and Steel
Company Ltd. vs. G.Ramakrishna Ayyar reported in 1950 (0) LLJ 1043. For
better appreciation, relevant portion of the said judgment is extracted hereunder:
“4. It is next contended by Mr.Ramakrishna Ayyar
that, in any event the order of the Commissioner was bad
insofar as it directed a reinstatement in service of the first
respondent. The argument was that, there is no specific
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W.P. No. 32018 of 2018
provision in the Act which enabled the Authority to make an
order of reinstatement. He referred us by way of analogy to
the jurisdiction of Industrial Tribunals to make orders of
reinstatement, but, we think such reference is wholly
irrelevant. To a certain extent we agree with the learned
counsel, namely, that the Authority should not have said that
the employee would be entitled to reinstatement. But this is
only quarrelling with his language. Actually the legal
position is this. The employer passes an order dispensing
with the services of an employee. That order is carried
on appeal to a higher Authority. That Authority
reverses the decision of the employer and the result is
that, the order of the employer is set aside. It is no
longer in existence. It follows that, the effect of the
original order of the employer also disappears and it is
as if the order is nonest. Though, therefore, it may not be
quite accurate to say that the employee will be entitled to
reinstatement in service, yet the result of the order of the
Appellate Authority is virtually the same. Probably, the
result is that, the appellate order is even better than an
order of reinstatement. It is as if the employee had never
been properly dismissed from service. In this view, it is
not necessary to quash the order of the appellate authority
even in this respect.”
9. In view of the decision rendered in Tata Iron and Steel Company's case
(supra), as the second respondent / employee is deemed to be in service on account
of rejection of Approval Petition, he is entitled to wages from the date of
rejection of the Approval Petition till the said order is set aside by this Court,
i.e. till today, even if the order of dismissal is restored and relates back to the
original date of order of dismissal. Even though this decision is rendered under
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W.P. No. 32018 of 2018
under the Tamil Nadu Shops and Establishments Act 1947, Section 41 of the
Tamil Nadu Shops and Establishment Act and 33(2) of the Industrial Disputes Act
are pari materia. Once the order of the employer is set aside, the employee is
deemed to be in service till the order of the employer is restored and relates back.
10. The Writ Petition is allowed on the above terms. No costs.
Consequently, connected W.M.P. No. 37272 of 2018 is closed.
01.08.2021
Index : Yes / No
Speaking Order : Yes / No
vji
https://www.mhc.tn.gov.in/judis
W.P. No. 32018 of 2018
To
The Special Joint Commissioner of Labour,
DMS Campus,
Anna Salai, Chennai.
https://www.mhc.tn.gov.in/judis
W.P. No. 32018 of 2018
S.VAIDYANATHAN,J.
vji
W.P. No. 32018 of 2018
and
W.M.P. No. 37272 of 2018
01.08.2021
https://www.mhc.tn.gov.in/judis
