Madras High Court
N.Shanmugam vs The Management on 10 March, 2022
W.A.No.503 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.No.503 of 2022
N.Shanmugam ... Appellant
Vs.
1. The Management
Tamil Nadu State Transport corporation
(Kumbakonam) Ltd.
27, Railwaystation New Road
Kumbakonam - 612 001.
2. The Special Deputy Commissioner of Labour
DMS Campus
Anna Salai
Chennai. ... Respondents
Prayer: Appeal filed under Clause 15 of the Letters Patent against the
order dated 30.07.2021 in W.P.No.14328 of 2017.
For the Appellant : Mr.K.Ramesh
For the Respondents : Mr.D.Venkatachalam for R1
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W.A.No.503 of 2022
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
By this writ appeal, a challenge has been made to the order
dated 30.07.2021, by which, the writ petition preferred by the
Management/Tamil Nadu State Transport Corporation challenging
the order of Labour Commissioner was allowed.
2. It is a case where the Transport Corporation filed an
Approval Application before the Labour Commissioner. It is to seek
the approval of punishment of dismissal of the appellant from
service on account of unauthorised absence. The Labour
Commissioner refused to grant approval holding punishment to be
disproportionate.
3. While exercising the power under Section 33(2)(b) of the
Industrial Disputes Act, 1947, the Authority is not clothed with the
power to hold punishment to be disproportionate. Rather, such
power can be exercised by the Labour Court or Tribunal under
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W.A.No.503 of 2022
Section 11A of the Act on a dispute raised before it. The Approval
Application is to be dealt with in reference to the fact as to whether
the Approval Application has been filed simultaneous to the order of
punishment and after causing notice and payment, as given under
the provisions and if those conditions are satisfied, then the issue of
fairness of the enquiry has to be decided. If the enquiry is found to
be fair, then the Authority or the Court has to proceed further to
find out as to whether charges have been made out or not. They do
not have jurisdiction to enter into the proportionality of the
punishment in view of the judgment of the Apex Court in the case
of John D'Souza v. Karnataka State Road Transport
Corporation, (2019) 18 SCC 47. Paragraphs 21, 37 and 38 are
relevant and the same are quoted hereunder:
"21. The legislature has, thus, provided a self-
contained mechanism through Section 10 read with
Sections 11(3) and 11-A of the Act, for adjudication
of an “industrial dispute” stemming out of an order
of discharge or dismissal of a workman. Having done
so, it can be safely inferred that neither the
legislature intended nor was there any legal
necessity to set-up a parallel remedy under the same
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W.A.No.503 of 2022
statute for adjudication of the same “industrial
dispute” by the same forum of Labour Court or
Tribunal via Section 33(2)(b) of the Act. To say it
differently, Section 33(2)(b) has been inserted
for a purpose other than that for which
Sections 10(1)(c) and (d) have been enacted.
Section 33(2)(b), thus, is neither meant for nor
does it engender an overlapping procedure to
adjudicate the legality, propriety, justifiability
or otherwise sustainability of a punitive action
taken against a workman.
...
37. The Labour Court or Tribunal, therefore,
while holding enquiry under Section 33(2)(b)
cannot invoke the adjudicatory powers vested
in them under Sections 10(i)(c) and (d) of the
Act nor can they in the process of formation of
their prima facie view under Section 33(2)(b),
dwell upon the proportionality of punishment,
as erroneously done in the instant case, for
such a power can be exercised by the Labour
Court or Tribunal only under Section 11-A of
the Act.
38. Consequently, the Labour Court shall in the
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W.A.No.503 of 2022
instant case re-visit the matter afresh within the
limit and scope of Section 33(2)(b), as explained
above and keeping in mind that the exercise in hand
is not adjudication of an “industrial dispute” under
Section 10(1)(c) or (d) read with Section 11-A of the
Act. However, if the Labour Court finds that the
domestic inquiry held against the appellant is
suffering from one of the incurable defects as
illustrated by this Court in Mysore Steel Works (P)
Ltd. v. Jitendra Chandra Kar, (1971) 1 LLJ 543 SC
or Lalla Ram v. DCM Chemical Works Ltd., (1978) 3
SCC 1 cases, then it may look into the evidence
adduced by the parties for the purpose of formation
of its prima facie opinion."
[emphasis supplied]
4. In the instant case, the Labour Commissioner refused to
grant approval on the ground that the punishment inflicted on the
employee was disproportionate, though he was not having power
under Section 11A of the Act, while exercising the jurisdiction under
Section 33(2)(b) of the Act of 1947.
5. In view of the above, the learned Single Judge has set
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W.A.No.503 of 2022
aside the order of the Labour Commissioner. We do not find any
illegality therein. However, the appeal is disposed of with a
clarification that the Labour Commissioner would now proceed with
the application by exercising his jurisdiction within the four corners
of Section 33(2)(b) of the Industrial Disputes Act, 1947 and
accordingly, the matter is remanded back. Consequently,
CMP.No.3638 of 2022 is also closed.
(M.N.B., CJ.) (D.B.C., J.)
10.03.2022
Index : Yes/No
kpl/drm
To
1. The Management
Tamil Nadu State Transport corporation
(Kumbakonam) Ltd.
27, Railwaystation New Road
Kumbakonam - 612 001.
2. The Special Deputy Commissioner of Labour
DMS Campus
Anna Salai, Chennai.
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W.A.No.503 of 2022
THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY, J.
kpl/drm
W.A.No.503 of 2022
10.03.2022
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