Madras High Court
The Management vs The Special Deputy Commissioner ... on 1 August, 2021
W.P. No. 32235 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2021
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P. No. 32235 of 2016
and
W.M.P. No. 27955 of 2016
The Management,
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Represented by its Managing Director,
Railway Station New Road,
Kumbakonam - 612 001. ... Petitioner
-vs-
1. The Special Deputy Commissioner of Labour,
DMS Campus, Anna Salai,
Chennai.
2. R.Sampath ... 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 09.06.2014 passed by the first respondent in Approval Petition
No. 477 of 2011 and quash the same, consequently direct the first respondent to
approve the order of the petitioner dated 09.11.2011 dismissing the second
respondent from service.
For Petitioner : Mr.D.Venkatachalam
For Respondents : Mr.L.S.M.Hasan Fizal
Government Advocate for R1
Mr.V.Ajay Khose for R2
1/7
https://www.mhc.tn.gov.in/judis
W.P. No. 32235 of 2016
ORDER
This Writ Petition has been filed, seeking to quash the order dated
09.06.2014 passed by the 1st Respondent in Approval Petition No.477 of 2011, by
which, the approval sought for dismissal of the Workman / 2 nd Respondent herein
was rejected. The Petitioner / Management also sought for a direction to the 1st
Respondent to grant approval to the action of the Management.
2. Learned Standing Counsel for the Management submitted that the main
reason for rejection of the Approval Petition by the Authority was that the
punishment imposed was harsh. The Authority has gone beyond the scope of
principle laid down by the Apex Court in the case of in the case of Lalla Ram vs.
Management of D.C.M. Chemical Works Limited, reported in AIR (1978) SCC
1004. It is further submitted that frequent absence from duty without proper
intimation or leave by the Workman caused inconvenience to the Management and
therefore, the Workman was dismissed from service after following due process of
law.
3. The contention of the Workman is that the punishment for dismissal for
https://www.mhc.tn.gov.in/judis
W.P. No. 32235 of 2016
unauthorized absence is harsh and therefore, the Authority has rightly interfered
with the punishment and rejected the Approval Petition. Hence, this Court need
not interfere with the order of the Authority, by exercising the Writ jurisdiction
under Article 226 of the Constitution of India. In the case of Approval Petition,
the Authority's power is very limited and certain guidelines have been framed in
the aforesaid judgment. Even if the enquiry is vitiated, the Employer will have to
be given an opportunity to establish the charges and to let in evidence, before the
Authority.
4. In the present hand on hand, the Management has not violated any of the
guidelines referred to in Lalla Ram's case, but the Authority has mechanically
interfered with the punishment on the ground that for unauthorized absence, the
punishment is excessive.
5. Heard the learned counsel on either side and perused the material
documents available on record.
6. The power under Section 11-A of the Industrial Disputes Act, 1947 is not
https://www.mhc.tn.gov.in/judis
W.P. No. 32235 of 2016
available to the Authority under Section 33(2)(b) of the Act. It is seen that the
order of dismissal was passed on 09.11.2011 and the rejection order of Approval
Petition was on 09.06.2014, which has been tested by the employer before this
Court. Once approval is granted, it does not mean that the employee's rights are
taken away and he is entitled to raise an Industrial Dispute, questioning the
dismissal order, if it is approved by the Authority, as this Court is inclined to
reverse the order of the Authority in question.
7. The next issue is as to whether the employee will be out of time, in view
of the amendment of section 2-A of the Industrial Disputes Act, 1947, which came
into effect from 15.09.2010. Once there is a dismissal order, the employee will
have to approach the Authority within a period of three years as prescribed under
the Act and that may not be applicable to cases falling under Section 33(2)(b) of
the Industrial Disputes Act. Once the dismissal order is passed, it is mandatory on
the part of the employer to seek approval of the action by complying with the
provisions under Section 33(2)(b) of the said Act and Rule 64(2) of the Tamil
Nadu Industrial Disputes Rules, 1958. In case, approval is granted, it is open to
the employee to challenge the same either by way of a Writ Petition or by raising
https://www.mhc.tn.gov.in/judis
W.P. No. 32235 of 2016
an industrial dispute, which means, the order of dismissal becomes final only on
the date, the Authority grants approval on the action and the dismissal order will
come into effect only from the date of approval that may be granted by the
Authority. If the Approval Petition is rejected, the employer and employee
relationship continues, till such time it is reversed by a Higher Forum.
8. In the present case on hand, the relationship between the employer and
employee continues, pursuant to the rejection of Approval Petition and the same
has been reversed by this Court which means, the employee will have three years
limitation prescribed under Section 2A of the Industrial Disputes Act, 1947 and
the same will commence only from the date of the order of this Court. Hence, the
employee is permitted to raise the industrial dispute within three years from today
and if dispute is raised, it is mandatory on the part of the Conciliation Officer to
entertain the matter and conciliate it and thereafter, come to a conclusion within
45 days, failing which, it is open to the employee to approach the Labour Court
straightaway seeking redressal of his grievance.
9. It is needless to mention that it is open to the Workman to raise a Dispute,
https://www.mhc.tn.gov.in/judis
W.P. No. 32235 of 2016
even if an Approval Petition is filed by the Management. However, the Workman
S.VAIDYANATHAN,J.,
vji
must make an endorsement in the Approval Petition, to the effect that approval
may be granted without prejudice to his or her rights in the Industrial Dispute that
may be raised or already raised. The Workman cannot be allowed to ride two
horses at the same time, namely, contesting in the Approval Petition filed by the
Management under Section 33(2)(b) on one hand and raising a Dispute under
Section 2(k) of the I.D.Act, 1947 on the other hand.
10. With the above observation, this Writ Petition is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.
01.08.2021
Index: Yes / No
Speaking order : Yes / No
vji
Note: Issue order copy on 23.11.2021
To:
The Special Deputy Commissioner of Labour,
DMS Campus, Anna Salai,
Chennai.
https://www.mhc.tn.gov.in/judis
W.P. No. 32235 of 2016
W.P.No.32235 of 2016
https://www.mhc.tn.gov.in/judis
