Madras High Court
The Management vs The Special Joint Commissioner Of on 26 July, 2021
W.P.No.9696 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
W.P. No.9696 of 2021
and
WMP. Nos.10279 & 13641 of 2021
The Management,
M/s.Metropolitan Transport Corporation
(Chennai) Ltd.,
Pallavan Illam, Anna Salai,
Chennai – 600 002. ... Petitioner
..Vs..
1.The Special Joint Commissioner of
Labour, D.M.S. Complex, IV Floor,
Teynampet, Chennai – 600 006.
2.Mr.K.Baburaj ... Respondents
Prayer:- This Writ Petition is filed under Article 226 of the Constitution
of India praying to issue a Writ of Certiorari, to call for the records
pertaining to the order passed in A.P. No.10 of 2018 dated 07.01.2021 on
the file of the 1st respondent, Chennai -6 and quash the same.
1/9
W.P.No.9696 of 2021
For Petitioner : Mr.M.Chidambaram
For Respondent : Mr.S.R.Karthikeyan,
for R2
*****
ORDER
This Writ Petition has been filed, challenging the order of the 1st
respondent made in A.P.No.10 of 2018 dated 07.01.2021, by which, the
Approval Petition filed by the Management for dismissal of the 2nd
Respondent / Employee, was rejected.
2. The Management has come forward with this Writ Petition,
challenging the order of the Authority dated 07.01.2021, refusing to grant
approval. The Rejection Order was passed, on the ground that the enquiry
proceedings have not been produced by the Management and that the
employee was not paid one month wage.
3. The Authority proceeded on the basis that there was no notice on
the Employee regarding intimation of enquiry proceedings and held that
charges have not been properly established. When the Authority came to
W.P.No.9696 of 2021
the conclusion that the enquiry proceedings have not been produced, no
other finding than the one as stated supra can be arrived at, irrespective of
whether an opportunity was given to the employee or not, when such
document is absent before him. The employee has filed the findings of the
Enquiry Officer (Ex.P.11), a reading of which, shows that the employee
was given due opportunity. This Court, in Management, Tamil Nadu
State Transport Corporation (Villupuram) Limited, Kancheepuram
Region, Kancheepuram vs. M.Chitti Babu (deceased) and others, 2021-
I-LLJ-17, by referring to Paragraphs Nos.31 and 34 of the judgment of the
Apex Court in John D'Souza vs. Karnataka State Road Transport
Corporation, (2019) 18 SCC 47, held that once the domestic enquiry is
vitiated, the matter will have to be remanded. The relevant passage of the
order of this Court reads as follows:
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 v. Karnataka 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:-
W.P.No.9696 of 2021
"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
W.P.No.9696 of 2021
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."
4. The proceedings under Section 33(2)(b) and reference under
Section 10 or a dispute under Section 2A are completely different. In case
the Approval Authority comes to the conclusion that the domestic enquiry
suffers from infirmity, due opportunity should be given to the parties to let
in evidence and the Authority can finally decide the validity of the Enquiry.
However, he cannot decide about the punishment. In case the domestic
enquiry is held to be unfair and improper, he can reject the Approval
Petition, if the employer had not sought for an opportunity to establish the
charges. If there was a plea, the Authority will have to take the role of the
Disciplinary Authority, conduct enquiry and decide based on evidence
whether the charges are established. If established, still he will have no
power to impose a lesser punishment than the one imposed by the
employer and his power under Section 33(2) (b) and limited.
W.P.No.9696 of 2021
5. In this case, the employee had already suffered the punishment of
reduction in pay and the last drawn wages, based on the reduction of pay
was extended to the employee, which is evident from the documents and
the cheque produced by the Management herein. Hence, I am of the view
that the order of the Approval Authority needs to be interfered with and is
liable to be set aside, thereby remanding the matter to the Authority for
fresh consideration on merits and in accordance with law.
6. Though the employee has filed a Miscellaneous Petition, claiming
last drawn wages in terms of Section 17(B) of the Industrial Disputes Act
1947, the provision of 17(B) may not be applicable to the proceedings
under Section 33(2)(b). Once the order of dismissal has been set aside, the
employee is deemed to be in service and is entitled to wages from the date
of the order that has been set aside, till the order of the Approval Authority
is interfered with by the Higher Forum. Once the approval is rejected, the
order of dismissal becomes non-est in the eye of law and the employee is
deemed to be in service even if the dismissal relates back. Hence, this
W.P.No.9696 of 2021
Court holds that the employee is entitled to wages from the date of the
order of dismissal till today.
7. At this juncture, it is represented by Mr.Chidambaram, learned
counsel for the petitioner that a sum of Rs.3,00,000/- has already been
deposited before the Labour Court, pursuant to the interim order. The
employee is entitled to withdraw the same together with accrued interest.
However, it is made clear that the employee must be paid last drawn
wages from the date of dismissal till this date, as the dismissal order has
not been accepted by the Approval Authority. Since the order has now
been interfered with, the order of dismissal stands restored today, of
course it relates back.
8. In the result, the Writ Petition is allowed and the matter is
remitted back to the Approval Authority for fresh consideration. The
Authority shall hear the Approval Petition and decide the same in
accordance with law, within a period of six months from the date of receipt
of a copy of this order, after affording an opportunity of personal hearing
W.P.No.9696 of 2021
to the parties concerned. No costs. Consequently, connected
Miscellaneous Petitions are closed.
26.07.2021
dpq (½)
Index: Yes/No
Speaking order / Non speaking order
To:
The Special Joint Commissioner of Labour,
D.M.S. Complex, IV Floor,
Teynampet,
Chennai – 600 006.
W.P.No.9696 of 2021
S.VAIDYANATHAN, J.
dpq
W.P. No.9696 of 2021
(½)
26.07.2021
