Madras High Court

S.Rajasekar vs The Management on 30 July, 2021

                                                                            W.P.No.46324 of 2006

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 30.07.2021

                                                     CORAM

                            THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

                                              W.P.No.46324 of 2006
                 S.Rajasekar                                                       ... Petitioner

                                                      -vs-

                 1. The Management
                    Tamil Nadu State Transport Corporation
                    (Madurai Division – 1) Limited
                    Bye pass road,
                    Madurai 625 010.

                 2. The Joint Commissioner of Labour (Conciliation)
                    DMS Building
                    Teynampet
                    Chennai 600 006.                                           ... Respondents


                 Prayer: Writ Petition filed under Article 226 of Constitution of India praying
                 for the issuance of a Writ of Certiorari calling for the records relating to
                 Approval Petition No.222 of 2003 on the file of the second respondent herein
                 and quash the order dated 15.02.2005 made therein.

                          For Petitioner         :     Ms.Sai Sudha for
                                                       Mr.D.Saravanan

                          For R1                 :     Mr.D.Raghu
                                                     *****


                 Page No.1
https://www.mhc.tn.gov.in/judis   of 10
                                                                                W.P.No.46324 of 2006

                                                     ORDER

This writ petition has been filed, challenging the order dated

15.02.2005, passed by the 2nd Respondent in Approval Petition No.222 of

2003, by which approval was granted for dismissal of the Petitioner/Employee.

2. It is the case of the Petitioner that he joined the services of the 1st

Respondent / Management as Conductor on 25.07.1993 and he was issued

with a Charge Memo on certain misconducts. It is further case of the Petitioner

that the Enquiry Officer submitted a report on 19.02.2003 without following

the principles of natural justice and based on the report, he was dismissed from

service. When a Petition was filed before the Authority for approval of the

action of the Management, the Authority concerned, without considering the

fact that the capital punishment of dismissal was inflicted upon him without

getting any explanation from him, has erroneously accorded approval.

Aggrieved by the same, he is before this Court.

3. Per contra, learned counsel for the Management contended that the

Petitioner frequently absented himself from duty on several occasions, inspite

of warnings and it is incorrect to state that he was not given any opportunity to

Page No.2 https://www.mhc.tn.gov.in/judis of 10 W.P.No.46324 of 2006

defend his case, as the punishment for the gravity of the misconduct was

imposed after getting an explanation from the petitioner. Since the explanation

offered by him was not satisfactory, it was decided to accept the findings of

the Enquiry Officer and the order of dismissal was passed thereafter. The

Authority concerned took note of the past records of the Petitioner and granted

approval for dismissal of the Petitioner, which does not call for any

interference by this Court.

4. Heard the learned counsel on either side and perused the material

documents available on record.

5. The Employee has questioned the order of the Authority on various

grounds, viz., a) there was a short fall in payment of monthly wages; b) the

application has not been filed simultaneously and c) that there is a delay of 7

days.

6. Insofar as the 1st ground is concerned, though there was a short fall,

there was a subsequent revision of wages, granting Dearness Allowance

retrospectively and naturally, the arrears would be paid subsequently and

Page No.3 https://www.mhc.tn.gov.in/judis of 10 W.P.No.46324 of 2006

hence, I am of the view that the Management has paid the last drawn wages

correctly. In respect of 2nd and 3rd grounds, admittedly, the Approval Petition

was made with a delay of 7 days and those grounds appear to be sound for this

Court to interfere with the order of the Authority. Section 33(2)(b) of the

I.D.Act, 1947 stipulates the condition that the employee must be paid one

month wages last drawn and application has got to be made before the

Authority before which the proceeding is pending for approval of the action of

the employer that was taken against the employee. Similarly, Rule 64(2) of the

Tamil Nadu Industrial Disputes Rules, 1958 mandates filing of an application

to the Conciliation Officer, Board, Labour Court or Industrial Tribunal under

Section 33, which reads as follows:

“(2) An employer seeking the approval of the Conciliation Officer, Board, Labour Court or Tribunal, as the case may be, of any action taken by him under clause (a) or clause (b) of sub-section (2) of section 33 shall present an application in Form "T" in duplicate to such Conciliation Officer, Board, Labour Court or Tribunal either personally or by registered post with acknowledgment due. A copy of it shall also be served simultaneously either personally or by registered post acknowledgment due on the workman or workmen concerned and the fact indicated on the copies of the application presented to the Conciliation Officer, Board, Labour Court or Tribunal, as the case may be.”

7. From the above, it is clear that the application seeking approval has

got to be served simultaneously either personally or by way of Registered Post

with acknowledgment due, on the Employee and copies have to be marked to

Page No.4 https://www.mhc.tn.gov.in/judis of 10 W.P.No.46324 of 2006

the Authorities concerned. The petitioner's contention is supported by the

decision rendered by this Court in the case of State Express Transport

Corporation Tamil Nadu Limited vs. The Joint Commissioner of Labour

(Conciliation) [W.P.No.20466 of 2007 dated 11.01.20120, reported in

MANU/TN/0156/2012, wherein it was held as follows:

“7. The Supreme Court vide its judgment in Strawboard Manufacturing Company Vs. Gobind reported in MANU/SC/0298/1962 : 1962 Vol (I) LLJ 420 = AIR 1962 SC 1500 had an occasion to consider the scope of Section 33(2)(b) of the Industrial Disputes Act, 1947. The Supreme Court had explained the proviso to Section 33(2)(b) of the Act. In pages 425 and 426 of the Report it was observed as follows:-

The next question is as to when should an application be made. In this connection, our attention was drawn to Section 33A of the Act which gives a right to the employer to apply for redress in case an employer contravenes the provision of S.33 and there is no doubt that the proviso to Section 33(2)(b) should be so interpreted as not to whittle down the protection provided by S.33A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely,

(i) dismissal or discharge;

(ii) payment of wages; and

(iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under Section 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also makes an application to the tribunal for approval at the same time. When, however, we say that the employer must take action simultaneously or immediately, we do not mean that literally, for when three things are to be done, they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely,

(i) dismissal or discharge;

(ii) payment of wages; and

(iii) making of the application are parts of the same transaction. If that is done, there will be no occasion to fear that the employee's right under S.33A would be affected. The

Page No.5 https://www.mhc.tn.gov.in/judis of 10 W.P.No.46324 of 2006

question whether the application was made as part of the same transaction, or at the same time when the action was taken, would be a question of fact and will depend upon the circumstances of each case.

We may now refer to certain cases which have been relied upon by either side. The main case on which learned counsel for the respondents relies is Premier Automobiles Limited Vs. Ramachandra Bhimayya Polkam and another (MANU/MH/0229/1959 : 1960 I LLJ 443). In that case, the Bombay High Court held that the application should be made before the action has been taken by the employer and that it was not correct to infer from the use of the word "approval" in the proviso that the legislature intended that such an application should be made after the action had been taken. The High Court has pointed out that there is apparent conflict between the first and last part of the proviso and the view it took was with the object of harmonizing the two parts. This view has been followed by the Gujarat High Court in Indian Extractions (Private) Limited Vs. A.V. Vyas, Conciliation Officer (AIR (1961) Guj. 22) though with some hesitation. With respect we feel that it is not necessary to read the words "action taken" in the proviso as equal to "action proposed to be taken" as the Bombay High Court has done and that the apparent conflict between the two parts of the proviso can be harmonized, as we have indicated above, leaving it open to the employer to dismiss or discharge the employee and at the same time pay him the necessary wages and make an application to the authority concerned for approval of the action taken. The contrary view has been taken by the Calcutta High Court in Metal Press Works Limited Vs. Deb(N.R) and others (MANU/WB/0221/1961 : 1962 I LLJ 75) where it has been held that payment of wages and the making of the application should be simultaneous with the order of discharge or dismissal. It has further been pointed out that the word "simultaneously" must of course be taken reasonably and a motion of split-second timing should not be imported. It should be done at once and without delay. and it will depend upon the facts of each case whether the application had been made at once or without delay. This, we think, is the correct view to take.

Let us, therefore, see what has happened in this case. The appellant concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on 1 February 1960. On the same day, he sent two applications by post addressed to the two tribunals. The application at Meerut was received on 3 February and the application at Allahabad on 4 February 1960. In these circumstances, we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was, therefore, in accordance

Page No.6 https://www.mhc.tn.gov.in/judis of 10 W.P.No.46324 of 2006

with the proviso. The view taken by the labour Court that the application must be made before dismissing the respondent, is not correct. The appellant in this case had complied with the proviso to Section 33(2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it.

8. The Supreme Court, once again, considered the scope of proviso to Section 33(2)(b) of the Act in the judgment in Calcutta State Transport Corporation Vs. Md. Noor Alam reported in MANU/SC/0267/1973 : AIR 1973 SC 1404. In that case, the Court also referred to Strawboard Manufacturing Company Vs. Gobind reported in MANU/SC/0298/1962 : 1962 I LLJ 420 and in paragraph 4, it was observed as follows:-

4..........The employer's conduct should show that the three things contemplated under the proviso are parts of the same transaction.

(See Strawboard Manufacturing Co. Vs. Gobind MANU/SC/0298/1962 : (1962) Supp 3 SCC 618 : (AIR 1962 SC 1500) In P.H. Kalyani Vs. M/s. Air France, Calcutta, MANU/SC/0137/1963 : (1964) 2 SCR 104 : (AIR 1963 SC 1756) the order of dismissal was passed on May 28, 1960 and was communicated to the employee on May 30,1960. The wages were offered to him at the same time when the order was communicated. An application was made under S.33(2)(b) on the same day. It was held that the application was in accordance with the proviso to S.33(2)(b). This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day. It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of materials consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts.

(Emphasis added)”

9. The Supreme Court in the judgments cited have considered as to what was meant by the "same transaction" and held it has to be seen in the facts and circumstances of each case. In the case of Calcutta State Transport Corporation Vs. Md. Noor Alam reported in MANU/SC/0267/1973 : AIR 1973 SC 1404, the Supreme Court held that a day's delay cannot be said to be material consequence so long as it was

Page No.7 https://www.mhc.tn.gov.in/judis of 10 W.P.No.46324 of 2006

clear that the employer had meant to do all the three things as part of one and the same transaction. In the case of Strawboard Manufacturing Company Vs. Gobind reported in MANU/SC/0298/1962 : 1962 I LLJ 420, the Supreme Court rejected the argument that approval should be obtained before dismissal. The Supreme Court had held that the word "simultaneously" must of course be taken reasonably and a motion of split- second timing should not be imported. It should be done at once and without delay. In the present case, the Authority had categorically held that 23 days delay was unexplained and therefore, the time gap is too large.

10. In the light of the principles enunciated in the above decisions of the Supreme Court holding that action should be taken at the same transaction, the writ stands dismissed. Consequently, connected miscellaneous petitions are closed.”

8. It is seen that there is no plea taken by the Management that the

Approval Petition has been despatched immediately by Registered Post, as

admittedly, it has reached the Authority concerned belatedly. That apart, there

is no evidence to show as to whether the Petition was physically submitted, as

it is permissible to file a Petition to the Authority in-person, by simultaneously

despatching a copy of it to the concerned Employee by Registered Post or vice

versa. In the absence of these details, the Authority concerned ought to have

rejected the Approval Petition on that score, as there is no explanation

forthcoming as to the delay of 7 days.

9. In the result, finding much substance in the argument of the

Petitioner, this Writ Petition is allowed and the order of the Authority dated

15.02.2005, granting approval for dismissal of the Petitioner is hereby set