Madras High Court
The Management vs 3 The Commissioner Of Labour on 10 July, 2023
W.A. No.1772 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.07.2023
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. No.1772 of 2023 & C.M.P. No.15575 of 2023
The Management
State Express Transport Corporation
(Tamil Nadu) Ltd.
represented by its Senior Deputy Manager
Pallavan Salai
Chennai 600 002 Appellant
v
1 The Presiding Officer
Labour Court
Chennai
2 L. Thillaivasan
3 The Commissioner of Labour
DMS Campus
Teynampet
Chennai 600 018 Respondents
Writ Appeal filed under Clause 15 of the Letters Patent challenging the
order dated 23.12.2021 passed in W.P. No.30593 of 2012.
For appellant Mr. S. Sivasubramani
R1 Court
For R2 No appearance
For R3 Mr. T. Arunkumar
Additional Government Pleader
https://www.mhc.tn.gov.in/judis -----
W.A. No.1772 of 2023
JUDGMENT
(delivered by S. VAIDYANATHAN, J.)
For the sake of clarity, the parties will be referred to as per their rank in this
writ appeal.
2 The summary of facts giving rise to the filing of this writ appeal is as
under:
2.1 The second respondent workman, who was working as temporary
Driver-cum-Conductor in the appellant Transport Corporation, was terminated
from service on 20.03.2003 on the ground of unauthorised absence, pending
conciliation proceedings, in pursuance whereof, the second respondent workman
straightaway filed a petition before the first respondent Labour Court under
Section 33-C (2) of the Industrial Disputes Act, 1947, seeking computation of
monetary benefits for the period April 2003 to September 2006.
2.2 The said computation petition was allowed by the first respondent
Labour Court vide order dated 29.11.2011 on the ground that termination was
resorted to sans prior permission under Section 33(1)(b), ibid. and the appellant
Transport Corporation was directed to pay a sum of Rs.2,83,115/- to the second
respondent workman towards monetary benefits.
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W.A. No.1772 of 2023
2.3 The aforesaid order passed by the second respondent Labour Court
was assailed in a writ petition being W.P. No.30593 of 2012 by the appellant
Transport Corporation on the ground that the second respondent workman was
only a casual labourer and not a permanent workman and as such, there is no need
to obtain prior approval under Section 33(1)(b), ibid. and that the appellant
Transport Corporation cannot be mulcted with any liability when the termination
order has not been set aside in the manner known to law.
2.4 However, the Single Bench, by order dated 23.12.2021, relying on the
judgment of the Supreme Court in New India Motors (P) Ltd. v K.T. Morris1,
confirmed the order of the second respondent Labour Court and dismissed the writ
petition.
2.5 The aforesaid order passed by the Single Bench is put to assail in this
writ appeal.
3 Heard the learned counsel for the appellant and perused the materials
available on record.
4 For the purpose of deciding this case, it is necessary to have a cursory
look at Section 33(1), ibid., which reads as under:
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1 AIR 1960 SC 875
W.A. No.1772 of 2023
“33 Conditions of service, etc., to remain unchanged under
certain circumstances during pendency of proceedings.-
(1) During the pendency of any conciliation proceeding
before a conciliation officer or a Board or of any proceeding before an
arbitrator or a Labour Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer shall--
(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen concerned
in such dispute, the conditions of service applicable to
them immediately before the commencement of such
proceeding; or
(b) for any misconduct connected with the
dispute, discharge or punish, whether by dismissal or
otherwise, any workmen concerned in such dispute, save
with the express permission in writing of the authority
before which the proceeding is pending.”
5 Be it noted, the expression used in the aforesaid provision is
“workmen concerned in such dispute”. Section 2(s), ibid., nowhere specifies that
only a permanent employee can raise an industrial dispute. Thus, it is as clear as
the sky that the Industrial Disputes Act, 1947, is applicable even to a casual
labourer. When the factum of employment of the second respondent workman is
not in dispute, the appellant Transport Corporation ought to have taken prior
permission as contemplated under Section 33(1)(b), ibid.
6 At this juncture, it is pertinent to point out that the Supreme Court, in
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v Ram Gopal Sharma and
others , considered the question of noncompliance of the provision of Section
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2 (2002) 2 SCC 244
W.A. No.1772 of 2023
33(2)(b), ibid. by the employer and held that when an employee is concerned with
an industrial dispute pending, after the dismissal order is passed by the employer,
a duty is cast on the employer to seek approval of the action and only thereafter,
the dismissal order will come into effect. In the case on hand, concededly, there is
a clear violation of the provisions of Section 33(1)(b), ibid, and the principle laid
down in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd v Ram Gopal Sharma
and Others3 will apply to this situation also.
7 In view of the foregoing discussion, we find no ground to interfere
with the order impugned passed by the Single Bench, affirming the order passed
by the second respondent Labour Court. The order of the second respondent
Labour Court shall be implemented within a period of three months from the date
of receipt of a copy of this judgment in the light of the judgment of the Supreme
Court in Tamil Nadu State Transport Corporation v Neethivilangan,
Kumbakonam4.
In the result, this writ appeal is dismissed as being devoid of merits,
however, sans costs. Connected C.M.P. stands closed.
(S.V.N., J.) (K.R.S., J.)
10.07.2023
cad
https://www.mhc.tn.gov.in/judis
3 (2002) 2 SCC 244
4 (2001) 9 SCC 99
W.A. No.1772 of 2023
S. VAIDYANATHAN, J.
and
K. RAJASEKAR, J.
cad
To
1 The Presiding Officer
Labour Court
Chennai
2 The Commissioner of Labour
DMS Campus
Teynampet
Chennai 600 018
W.A. No.1772 of 2023
10.07.2023
https://www.mhc.tn.gov.in/judis
