Madras High Court
The Management vs Mr.K.Muthukumar on 3 June, 2024
W.P.No.10438 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAs
ORDER RESERVED ON : 13.03.2024
ORDER PRONOUNCED ON : 03.06.2024
CORAM
THE HON'BLE MRS. JUSTICE N.MALA
W.P.No.10438 of 2019
and
W.M.P.Nos.10968 of 2019, 7946 & 7949 of 2021
The Management,
Hyundai Motor India Limited,
Plot No. H1, SIPCOT Industrial Park,
Irunkattukottai, Sriperumbudur Taluk,
Kancheepuram District – 602 117
Rep. by its Deputy General Manager,
Mr.M.Sagadevan
...Petitioner
Vs.
Mr.K.Muthukumar
...Respondent
Writ Petition is filed under Article 226 of Constitution of India
praying to issue a Writ of Certiorari, call for records relating to the Order
dated 25.01.2019 passed by the Industrial Tribunal, Chennai in A.P.No.44
of 2014 and to quash the same.
For Petitioner : Mr.Sanjay Mohan
for Mr.R.Jayaprakash
For Respondent : Mr.K.M.Ramesh, Senior Counsel
for Mr.V.Sivaraman
https://www.mhc.tn.gov.in/judis
1/12
W.P.No.10438 of 2019
ORDER
Writ petition is filed challenging the order dated 25.01.2019 in
A.P.No.44 of 2014 on the file of the Presiding Officer, Industrial Tribunal,
Tamil Nadu, Chennai.
2. The brief facts of the case are as follows:
The petitioner is a company incorporated under the Companies Act and is
engaged in the business of manufacturing and sale of Hyundai range of
passenger cars. The respondent was employed in the petitioner company
as a Technician since 1999. It is the petitioners case that the respondent
was unauthorisedly absent from 07.02.2014 to 09.04.2014 for a total period
of 62 days. A show cause notice dated 09.04.2014 was issued to the
respondent on the complaint given by his superior and domestic enquiry
was conducted in accordance with the principles of natural justice. The
respondent remained unauthorisedly absent even beyond 09.04.2014 till
29.05.2014 and therefore another domestic enquiry was conducted in
accordance with the principles of natural justice. On 21.06.2014, the
enquiry officer on the basis of the record held that the charges levelled
against the respondent under Clause 21 (33) of the Certified Standing
https://www.mhc.tn.gov.in/judis
Orders were proved. Meanwhile the respondent continued his
unauthorised absence and was unauthorisedly absent for about 200 days.
According to the petitioner, even in the past the respondent was thrice
warned and thrice suspended from service for his unauthorised absence.
On 02.09.2014, a second show cause notice combining both the enquiry
reports was served on the respondent directing him to submit his written
explanation as to why proposed punishment of dismissal should not be
imposed. The respondent sent his reply on 04.09.2014 and as the same was
found unsatisfactory he was dismissed from service on 12.09.2014. The
petitioner filed approval petition before the Industrial Tribunal, Chennai
under Section 33(2)(b) of the Industrial Disputes Act, 1947 for grant of
approval for the dismissal order passed against the respondent. The
respondent was also paid one month salary as per Section 33(2)(b) of the
Act. The approval petition in A.P.No.44 of 2014 was taken up by the
Industrial Tribunal and on consideration of the entire materials on record,
vide order dated 23.10.2018 passed an order on the preliminary issue
holding that the enquiry conducted by the petitioner was fair and proper.
Thereafter the Industrial Tribunal vide order dated 25.01.2019 dismissed
the approval application. Aggrieved by the impugned order the petitioner
https://www.mhc.tn.gov.in/judis
has filed the above writ petition.
3. The learned counsel for the petitioner submitted that the Industrial
Tribunal having found favour with the petitioner on the preliminary issue
regarding the fairness of the enquiry conducted by the petitioner erred in
interfering with the punishment imposed by the petitioner. The learned
counsel further submitted that the Industrial Tribunal had no jurisdiction
to interfere with the punishment imposed by the petitioner under Section
11 A of the I.D. Act, which power was available only under Section 10 or
2(A)(2) of the I.D. Act. The learned counsel lastly submitted that assuming
that the Industrial Tribunal interfered with the punishment on the ground
that it was unduly harsh, severe or shockingly disproportionate, it ought
to have seen that on the facts of the case, the said grounds for interference
with the punishment were not available. The learned counsel therefore
submitted that the impugned order of the Industrial Tribunal was
erroneous and the same deserve to be set aside.
4. The learned counsel for the respondent on the other hand
submitted that the order of the Industrial Tribunal was fair, just and
https://www.mhc.tn.gov.in/judis
proper and the Industrial Tribunal was well within its right to interfere
with the quantum of punishment as the misconduct complained of was
only unauthorised absence.
5. I have heard both the learned counsels and I have perused the
materials placed on record.
6. The facts of the case are undisputed and the core issue that is to be
decided is whether the Industrial Tribunal is justified in interfering with
the quantum of punishment under Section 11 A of the I.D. Act while
deciding the approval petition filed under Section 33(2)(b). Before
embarking on the legal principles, the facts necessary for considering the
issue are to be looked into.
7. It is not disputed that the respondent was unauthorisedly absent
for more than 200 days. The respondent was charge sheeted for
unauthorised absence twice, one for a period of 62 days (i.e) from
07.02.2014 to 09.04.2014 and another for a period of 43 days from
10.04.2014 to 29.05.2014. A domestic enquiry was conducted and the
https://www.mhc.tn.gov.in/judis
respondent remained absent and so he was set ex-parte. It was only to the
second show cause notice dated 02.09.2014, wherein both the enquiry
reports were served on the respondent calling for his explanation on the
proposed punishment that the respondent replied vide letter dated
04.09.2014 stating that he could not attend duty due to his poor health
condition. The Industrial Tribunal while considering the fairness of the
domestic enquiry, vide order dated 23.10.2018 held that sufficient
opportunities were afforded to the respondent to defend his case and
therefore the enquiry conducted was fair and proper.
8. The issue that is to be decided in this writ petition is whether the
Industrial Tribunal was justified in interfering with the quantum of
punishment by invoking Section 11A of the I.D. Act in 33(2)(b) petition.
The law on the subject is succinctly laid down by the Hon'ble Supreme
Court in the case of John D'souza Vs. Karnataka State Road Transport
Corporation reported in MANU/SC/1428/2019. The Hon'ble Supreme Court
in the aforesaid Judgment at Para 22 and 25 held as follows:
“22. The Legislature has, thus, provided a self-contained
mechanism through Section 10 read with Sections 11(3) and
https://www.mhc.tn.gov.in/judis
11A 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 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 Section 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.
25. The Labour Court/Tribunal, nevertheless, while
holding enquiry Under Section 33(2)(b), would remember that
such like summary proceedings are not akin and at par with its
jurisdiction to adjudicate an 'Industrial dispute' Under
Section 10(i) (c) and (d) of the Act, nor the former provision
clothe it with the power to peep into the quantum of
punishment for which it has to revert back to Section 11A of
the Act. Where the Labour Court/Tribunal, thus, do not find
the domestic enquiry defective and the principles of fair and
just play have been adhered to, they will accord the necessary
approval to the action taken by the employer, albeit without
https://www.mhc.tn.gov.in/judis
prejudice to the right of the workman to raise an 'industrial
dispute' referrable for adjudication Under Section 10(1)(c) or
(d), as the case may be. It needs pertinent mention that an
order of approval granted Under Section 33(2)(b) has no
binding effect in the proceedings Under Section 10(1)(c) and
(d) which shall be decided independently while weighing the
material adduced by the parties before the Labour
Court/Tribunal.”
9. The Hon'ble supreme Court in the aforesaid Judgment referred to
a number of Judgments and held as above. It is clear that the Industrial
Tribunal while exercising power under Section 33(2)(b) of the Act had no
jurisdiction to interfere with the quantum of punishment by invoking
Section 11 A of the Act, which jurisdiction is referrable to an adjudication
under Section 10(1)(c) or (d) of the I.D. Act. In view of the aforesaid
binding precedent, I do not consider it necessary to further elaborate on
the legal issue.
10. In the said Judgment the Hon'ble Supreme Court further held
that in the event where no defect was detected in the domestic enquiry, the
https://www.mhc.tn.gov.in/judis
approval must follow. In my view, as the Industrial Tribunal has found on
the preliminary issue that the domestic enquiry was fairly and properly
conducted, the Industrial Tribunal ought to have accorded the approval
without interfering with the quantum of punishment. It is further relevant
to note here that grant of approval under Section 33(2)(b) does not attain
any finality and it is always open to the respondent to challenge the order
of dismissal by raising Industrial Dispute.
11. The Industrial Tribunal relied on the Judgment in Lalla Ram's case
to interfere with the proportionality of punishment. In the aforesaid
Judgment, it is stated that “though generally speaking the award of punishment
of misconduct under the Standing Orders is a matter for the management to
decide and the Tribunal is not required to consider the propriety or adequacy of the
punishment or whether it is excessive or too severe yet an inference of mala fides
may in certain cases be drawn from the imposition of unduly harsh, severe,
unconscionable or shockingly disproportionate punishment”. In my view, before
applying the said Judgment the Industrial Tribunal ought to have
https://www.mhc.tn.gov.in/judis
appreciated the facts of the present case. In the present case, it is seen that
the respondent was unauthorisedly absent for more than 200 days and his
past conduct was also not above board. Even in the dismissal order
marked as Ex.M51, it was clearly stated that the respondent in the past was
thrice warned and thrice suspended from service for unauthorised
absence. The Industrial Tribunal relying on the Standing Order No.22
found that the punishment was disproportionate to the misconduct. The
punishment provided under the Standing Order No.22 for misconduct of
unauthorised absence are Censure, Penalty under Act 1936, suspension
(break-in service), stoppage of increment and dismissal. As already stated,
the management had already imposed lesser punishment of warning and
suspension on six occasions and therefore in the light of the facts of the
case, the Industrial Tribunal ought not to have interfered with the
quantum of punishment.
12. I therefore find both legally as well as factually that the Industrial
Tribunal had no jurisdiction to interfere with the punishment imposed by
https://www.mhc.tn.gov.in/judis
the management and dismissing the approval petition. For all the above,
the writ petition is allowed. No costs. Consequently, connected WMP's are
closed.
03.06.2024
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation:Yes/No
dsn/ah
To
The Presiding Officer,
Industrial Tribunal,
Chennai.
https://www.mhc.tn.gov.in/judis
N.MALA,J.
dsn
PRE-DELIVERY ORDER IN
ORDER DELIVERED ON
03.06.2024
https://www.mhc.tn.gov.in/judis
