Madras High Court
The Management vs B. Karunanithi on 2 April, 2025
W.P.No.2948 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
RESERVED ON : 27.03.2025
PRONOUNCED ON : 02.04.2025
PRESENT:
THE HON’BLE DR. JUSTICE A.D. MARIA CLETE
W.P.No. 2948 of 2020
and
WMP No.3428 of 2020 and 4778 of 2023
The Management,
Chemplast Sanmar Limited,
Rep. by its General Manager (Legal)
Plant IV, Raman Nagar,
Mettur, Salem – 636 403 …. Petitioner
Vs.
1. B. Karunanithi
S/o. Balakrishnan,
E38, Chemicals Colony,
Mettur Dam RW2, Salem
2. M.Selvaraju
S/o. Muthsamy,
4A/44, Vaideeswara Nagar,
Raman Nagar, Mettur Dam 3
3. A.Srinivasan
S/o. AbathSahayam
C32, Chemicals Colony,
Mettur Dam RS2, Salem
4. P.Natarajan
S/o. Perumal
5/1-121 IrattaiPuliamarathur
Raman Nagar, Mettur Dam 3
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W.P.No.2948 of 2020
5. K.Annamurthy
5A/58, Vaideeswara Nagar
Raman Nagar, Mettur Dam 3
6. P.Pandian
S/o. Pandaram Pillai,
E-91, Chemicals Colony
Mettur Dam RS2, Salem
7. G.Andikalai
S/o. Gurusamy,
E-51, Chemicals Colony
Mettur Dam RS2, Salem
8. G.Venkatarajulu
S/o. Govindarajulu
E-50, Chemicals Colony
Mettur Dam RS2, Salem
9. S.V.Umamaheswaran
S/o. S G Viswanathan
E-25, Chemicals Colony,Mettur Dam,
RS2, Salem
10. S.Usha
W/o. Late D.Selvam
4/1-93, Sri Nagar
Raman Nagar, Mettur 3
11.S.Vikram
S/o. Late D.Selvam
4/1-93, Sri Nagar
Raman Nagar, Mettur 3
12.S.Ilakiya
D/o. Late D.Selvam
4/1-93, Sri Nagar,
Raman Nagar, Mettur 3
13.A Sundaresan
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W.P.No.2948 of 2020
S/o P S Ananthanarayanan,
Sri Jayalakshmi Nivas
114 Shanmuga Nagar
Konur, Mettur 4
14.R Senthilkumar
S/o. Ramanathan,
4-A1, Vaideeswara Nagar
Raman Nagar, Mettur 3
15.M Venkatesan
S/o. Madhappan
3-A4, Vaideeswara Nagar
Raman Nagar, Mettur 3
16.S Panneerselvam
S/o. Sambasivam
3-3A, Vaideeswara Nagar
Raman Nagar, Mettur 3
17.M Saravanakumar
S/o. V K Muthusamy
5/2-25, Teachers Colony
Murugan Nagar
Raman Nagar, Mettur 3
18.B Suresh Kumar
S/o. G.Balan,
E45, Chemicals Colony,
Mettur Dam RS 2
19.S Selvaraj,
S/o. K Sundaram
5-A/39, Vaideeswara Nagar
Raman Nagar, Mettur 3
20.R Suresh
S/o Rajaram,
5/26, Mayana Street,
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W.P.No.2948 of 2020
Desai Nagar, Mettur Dam RS2
21.A Shanmugam
S/o. Angamuthu
5A/6, Vaideeswara Nagar,
Raman Nagar, Mettur -3
22.S Thangaraj
S/o. Sembannan
4A/3, Vaideeswara Nagar,
Raman Nagar, Mettur – 3
23. P Mayilsamy,
S/o. Pachamuthu
4A/5, Vaideeswara Nagar
Raman Nagar, Mettur 3
24. K Govindaraj
S/o Kannusami
4A/6, Vaideeswara Nagar
Raman Nagar, Mettur 3
25. S Murali
S/o. A Srikandan
14 R K Nagar
Saibaba Colony, Mission Post
Kovai 11
26. M Saravanan
S/o. R Manickam
3A/13, Vaideeswara Nagar
Raman Nagar, Mettur 3
27. G Allimuthu
S/o Gopal
4/71, Kunjandiyur New Colony
Konus Post, Mettur - 4
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W.P.No.2948 of 2020
28. K Ramasamy
S/o Kuppusamy
4/168, North Vadukapatti Post
Sankari Taluk, Salem
29. N Varadharajan
S/o.Natarajan
1/490, Ponnampalayam,
Koneripatti, Poovarampatti,
Sankari Taluk, Salem.
30. M Subramanian
S/o. MaraiyaAchari
11/5-93B, Nangavalli Main Road,
Near Vinayagarkovil
Mecheri, Salem
31. A Mohan
S/o Ammasi
3A/7, Vaideeswara Nagar
Raman Nagar, Mettur 3
32. S Selvaraj
S/o. Subramanian
5A/49, Vaideeswara Nagar
Raman Nagar, Mettur 3
33. D Prabhakaran,
S/o. Devasahayam
3A/12, Vaideeswara Nagar
Raman Nagar, Mettur 3
34. N Shanmugam
S/o. Navadeedhan
NC36, Chemicals Colony,
Mettur Dam RS2
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W.P.No.2948 of 2020
35. C Nagarajan
S/o. Chinnasamy,
4/265 Thangamapuripattinam
Mettur Dam 2
36.M Kalaiarasan
S/o. Madhusamy
5A/4, Vaideeswara Nagar
Raman Nagar, Mettur 3
37. A Ravi
S/o Appu
3A/1, Vaideeswara Nagar
Raman Nagar, Mettur 3
38. D Boopathy
S/o. Duraisamy
11-1/98B, Pudhuchampalli
Mettur Dam 3
39. KL SureshBabu
S/o. K V S Lakshmanan
A79, Veena Apartments
Anna Nagar, Madurai 625 020
40. G.Ashokan
S/o P Govindaraju
E66, Chemicals Colony
Mettur Dam RS
(dead, LRs not brought on record)
41. K Balaji
S/o. Kandasamy
Plot 119, Door No.45,
Kamarajan Salai (Ground floor)
Alwarthirunagaram
Chennai – 600 087.
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W.P.No.2948 of 2020
42.T.Gnanaprakasam,
S/o Thangasamy
4A/24, Vaideeswara Nagar
Raman Nagar, Mettur 3 …Respondents 1 to 42
Prayer in W.P.No.2948 of 2020
To issue a writ of certiorari or any other appropriate writ, order or direction
in the nature of writ to call for the records connected with the common
order dated 17/08/2019 made in Nos. 41 of 2010 to 62 of 2010 and C.P.Nos.
1,6,9, 30 to 35 and 37 to 45 of 2012 on the file of the Labour Court, Salem
and quash the same.
Prayer in WMP No.3428 of 2020
To grant interim stay of all further proceedings pursuant to the common
order dated 17/08/2019 made in Nos. 41 of 2010 to 62 of 2010 and
C.P.Nos.1,6,9,30 to 35 and 37 to 45 of 2012 on the file of the Labour Court,
Salem pending disposal of the writ petition.
Prayer in WMP No.4778 of 2023
To vacate the stay granted on 07.02.2020 in WMP No.3428 of 2020 in
W.P.No.2948 of 2020.
Appearance of Parties:
For Petitioner : Mr.S.Ravindran, Senior Counsel
For Sai Raaj Associates assisted
by Mr.S.Sai Prasad, Advocate
For all Respondents except R40 : Mr.NGR Prasad, Advocate
For V.Ajoy Khose, Advocate
For Respondent 40 : Dead, steps not taken for
bringing LRs on record.
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W.P.No.2948 of 2020
JUDGMENT
Heard.
2. Two stalwarts of the Labour Bar have appeared before this
Court and addressed the matter with thoroughness and distinction, leaving
no aspect unexplored. However, the controversy lies within a narrow
compass. The issue for consideration is whether the respondent workmen
can maintain a claim for back wages under Section 33C(2) of the Industrial
Disputes Act, 1947, solely on the ground that their dismissal was effected
without the prior approval mandated under Section 33(2)(b) of the Act—
when the legality of such dismissal has not yet been adjudicated by a
competent forum.
3. It is pertinent to note that the issue at hand is no longer res
integra. A Constitution Bench of the Supreme Court, in its authoritative
Judgment in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram
Gopal Sharma & Others, reported in (2002) 2 SCC 244, has conclusively
settled the legal position. At paragraphs 14 to 19 of the judgment, the Court
held as follows:-
“14. Where an application is made under Section 33(2)(b)
proviso, the authority before which the proceeding is pending
for approval of the action taken by the employer has to
examine whether the order of dismissal or discharge is bona
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fide; whether it was by way of victimization or unfair labour
practice; whether the conditions contained in the proviso were
complied with or not, etc. If the authority refuses to grant
approval obviously it follows that the employee continues to be
in service as if order of discharge or dismissal never had been
passed. The order of dismissal or discharge passed invoking
Section 33(2)(b) dismissing or discharging an employee brings
an end of relationship of employer and employee from the date
of his dismissal or discharge but that order remains incomplete
and remains inchoate as it is subject to approval of the
authority under the said provision. In other words, this
relationship comes to an end de jure only when the authority
grants approval. If approval is not given, nothing more is
required to be done by the employee, as it will have to be
deemed that the order of discharge or dismissal had never been
passed. Consequence of it is that the employee is deemed to
have continued in service entitling him to all the benefits
available. This being the position there is no need of a separate
or specific order for his reinstatement. But on the other hand, if
approval is given by the authority and if the employee is
aggrieved by such an approval, he is entitled to make a
complaint under Section 33A challenging the order granting
approval on any of the grounds available to him. Section 33A is
available only to an employee and is intended to save his time
and trouble inasmuch as he can straightaway make a complaint
before the very authority where the industrial dispute is already
pending between the parties challenging the order of approval
instead of making efforts to raise an industrial dispute, get a
reference and thereafter adjudication. In this view, it is not
correct to say that even though where the order of discharge or
dismissal is inoperative for contravention of the mandatory
conditions contained in the proviso or where the approval is
refused, a workman should still make a complaint under
Section 33A and that the order of dismissal or discharge
becomes invalid or void only when it is set aside under Section
33A and that till such time he should suffer misery of
unemployment in spite of statutory protection given to him by
the proviso to Section 33(2)(b). It is not correct to say that
where the order of discharge or dismissal becomes inoperative
because of contravention of proviso to Section 33(2)(b),
Section 33A would be meaningless and futile. The said Section
has a definite purpose to serve, as already stated above,
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enabling an employee to make a complaint, if aggrieved by the
order of the approval granted.
15. The view that when no application is made or the one
made is withdrawn, there is no order of refusal of such
application on merit and as such the order of dismissal or
discharge does not become void or inoperative unless such an
order is set aside under Section 33A, cannot be accepted. In our
view, not making an application under Section 33(2)(b) seeking
approval or withdrawing an application once made before any
order is made thereon, is a clear case of contravention of the
proviso to Section 33(2)(b). An employer who does not make
an application under Section 33(2)(b) or withdraws the one
made, cannot be rewarded by relieving him of the statutory
obligation created on him to make such an application. If it is
so done, he will be happier or more comfortable than an
employer who obeys the command of law and makes an
application inviting scrutiny of the authority in the matter of
granting approval of the action taken by him. Adherence to and
obedience of law should be obvious and necessary in a system
governed by rule of law. An employer by design can avoid to
make an application after dismissing or discharging an
employee or file it and withdraw before any order is passed on
it, on its merits, to take a position that such order is not
inoperative or void till it is set aside under Section 33A
notwithstanding the contravention of Section 33(2)(b) proviso,
driving the employee to have recourse to one or more
proceeding by making a complaint under Section 33A or to
raise another industrial dispute or to make a complaint under
Section 31(1). Such an approach destroys the protection
specifically and expressly given to an employee under the said
proviso as against possible victimization, unfair labour practice
or harassment because of pendency of industrial dispute so that
an employee can be saved from hardship of unemployment.
16. Section 31 speaks of penalty in respect of the offences
stated therein. This provision is not intended to give any
remedy to an aggrieved employee. It is only to punish the
offender. The argument that Section 31 provides a remedy to an
employee for contravention of Section 33 is unacceptable.
Merely because penal provision is available or a workman has
a further remedy under Section 33A to challenge the approval
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granted, it cannot be said that the order of discharge or
dismissal does not become inoperative or invalid unless set
aside under Section 33A. There is nothing in Sections 31, 33
and 33A to suggest otherwise even reading them together in the
context. These Sections are intended to serve different
purposes.
17.As already noticed above, the Constitution Bench of this
Court in P.H. Kalyani vs. M/s. Air France Calcutta has referred
to Strawboard Manufacturing Co. vs. Gobind and approved the
view taken in the said decision as regards the requirements of
the proviso to Section 33(2)(b). Unfortunately in Punjab
Beverages Pvt. Ltd. vs. Suresh Chand, the earlier two cases of
Strabboard and Tata Iron & Steel Co. were not noticed touching
the question. It is true that in S.Ganapathi & others vs. Air
India and another, there is no reference to Punjab Beverages.
But the view taken in two earlier decisions of Strabboard and
Tata Iron & Steel Co. is followed on the question and rightly so
in our opinion.
18. In view of what is stated above, we respectfully agree with
and endorse the view taken in the case of Strabboard and Tata
Iron & Steel Co. and further state that the view expressed in
Punjab Beverages on the question is not the correct view. The
question raised in the beginning of this judgment is answered
accordingly.
19.In these appeals, respondent No. 1 was employed as Clerk-
cum-Cashier with the appellant. He was dismissed from
service. As certain proceedings were pending before the
Industrial Tribunal, Jaipur, an application seeking approval of
the Tribunal for the said dismissal was submitted by the
appellant before the Tribunal under Section 33(2)(b). The said
application was contested on various grounds by the
respondent including that the appellant-Bank had failed to
comply with the provisions of Section 33(2)(b) as salary for
one month was not paid. The Tribunal, on facts, found that the
appellant failed to comply with the provisions of Section 33(2)
(b) and in that view dismissed the application. The appellant
challenged the order of the Tribunal before the High Court in
writ petition No. 666 of 1980. The same was dismissed
concurring with the order passed by the Tribunal.”
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4. As observed in paragraphs 17 and 18 of the aforesaid judgment, the
Supreme Court affirmed the earlier two decisions in Strawboard
Manufacturing Co. v. Gobind, AIR 1962 SC 1500, and Tata Iron & Steel
Co. v. S.N. Modak, AIR 1966 SC 380, and expressly held that the view
taken in Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand &
Another, (1978) 2 SCC 144, does not lay down the correct position of law.
5. In Punjab Beverages Pvt. Ltd. (supra), a three-Judge Bench of the
Supreme Court categorically held that an employee cannot invoke the
jurisdiction of the Labour Court under Section 33C(2) of the Industrial
Disputes Act for claiming wages, as the employer’s failure to obtain the
requisite approval under Section 33(2)(b) does not, by itself, render the
order of dismissal void. The Court held as follows:—
“We accordingly hold that the appellant contravened section
33(2) (b) in dismissing the workmen in both the appeals but
such contravention did 'not have the effect of rendering the
orders of dismissal void and inoperative and hence the
workmen were not entitled to maintain the applications for
determination and payment of wages under section 33C(2).”
6. In the same judgment, the Supreme Court also held that proceedings
under Section 33 are summary in nature. Therefore, a workman who seeks
to challenge his dismissal must either file a complaint under Section 33A or
raise an industrial dispute and obtain a reference under Section 10(1) of the
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Industrial Disputes Act, as these provide an effective remedy. The Court
observed as follows:–
“In the employer contravenes the provisions of section 33
and discharges or dismisses a workman without obtaining
permission or approval of the Tribunal, he would render
himself liable to punishment under section 31(1) and this
punishment can extend even to imprisonment. Moreover, the
aggrieved workman would not only have the remedy of
moving the appropriate Government for making a reference
under section 10, but he would also be entitled to make a
complaint to the Tribunal under section 33A and on such
reference or complaint, the order of discharge or dismissal
would be liable to be subjected to a much greater scrutiny
than what would be available before a Tribunal exercising
the limited jurisdiction conferred under section 33. The
workman is thus not left without remedy, though according
to the trade union movement, the remedy provided tinder
sections, 31, 10 and 33A may not be as adequate as the
workman might wish it to be.”
7. Now that the larger Bench of the Supreme Court has disapproved
the decision in Punjab Beverages (supra) in its ruling in Jaipur Zila (supra),
any judgment rendered prior to the latter—wherein the ratio in Punjab
Beverages was followed—cannot be regarded as laying down a sound legal
precedent. Before turning to the citations submitted by the learned senior
counsel for the Management, it is pertinent to note that Section 33 of the
Industrial Disputes Act was not part of the original enactment of 1947; it
was introduced by Amendment Act 36 of 1956, with effect from
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10.03.1957.
8. Since the Industrial Disputes Act seeks to resolve all industrial
disputes through either conciliation or adjudication, it contains special
provisions to ensure that conditions of service remain unchanged during the
pendency of such proceedings. If an employer intends to dismiss workmen
—whether they are connected to the dispute or not—he must obtain prior
permission from the authority before whom the proceedings are pending.
This requirement applies to both conciliation and adjudication proceedings.
9. Initially, the Industrial Disputes Act provided for an aggrieved
workman to file a complaint under Section 33A directly before the
adjudicating authority. In such cases, the adjudicatory body could treat the
complaint as if it were a dispute referred under Section 10(1) of the Act.
This enabled the workman to bypass the otherwise cumbersome process of
securing a reference from the appropriate Government and instead approach
the adjudicating authority directly. However, at that stage, there was no
provision for filing a complaint before the Conciliation Officer.
10. This lacuna was subsequently addressed by the Industrial Disputes
(Amendment) Act, 1982 (Act 46 of 1982), through which Section 33A was
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amended to allow a workman to file a written complaint before the
Conciliation Officer as well. However, unlike a complaint under Section
33A that is filed before an adjudicating authority and treated as a deemed
reference under Section 10(1), the newly inserted provision—Section
33A(a)—did not confer any adjudicatory powers upon the Conciliation
Officer. Instead, the Conciliation Officer is empowered only to consider
such complaints in the course of conciliation efforts. Section 33A(a), as
introduced, reads as follows:–
“to such Conciliation Officer or Board, and the
Conciliation Officer or Board shall take such complaint
into account in mediating in, and promoting the
settlement of, such industrial dispute”
11. Therefore, in the absence of any provision offering effective relief
to the workman upon filing a complaint, employers would not treat the
requirements under Section 33 seriously when proceedings were pending
before the Conciliation Officer. Their approach further reinforced by the
ratio laid down in Punjab Beverages (supra). Although a violation of
Section 33 constitutes a penal offence under Section 31 of the Industrial
Disputes Act, such violation did not, by itself, provide any substantive relief
to the affected workman. Recognizing this lacuna, the larger Bench in Jaipur
Zila (supra) held that compliance with Section 33 is mandatory, and any
action taken by the employer in violation of it would be void ab initio. This
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position was emphasized particularly because the breach amounts to a
specific penal offence under the Act.
12. The Supreme Court, recognizing that an employer’s failure to seek
permission for dismissal during the pendency of conciliation proceedings
before the Conciliation Officer amounted to a violation—and noting the
absence of any specific adjudicatory mechanism in such cases—explicitly
upheld the right of the workmen to claim wages before the Labour Court.
The Court accordingly directed that the workmen be treated as if they had
not been dismissed from service.
13. Learned senior counsel for the Management, Mr. S. Ravindran,
while realizing the true legal effect, relied on the decision of the Supreme
Court in Rajasthan State Road Transport Corporation & Anr. v. Satya
Prakash, reported in (2013) 9 SCC 232. In that case, the scope of Section
33A was examined, and the Court held that in a complaint under Section
33A, the adjudicating authority is required to examine the merits of the
dispute and cannot dispose of the matter solely on the technical ground of a
violation of Section 33(2)(b). In that case, the workman, having failed in his
complaint under Section 33A, sought liberty to independently raise the issue
of non-compliance with Section 33(2)(b), which was declined.
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14. Learned senior counsel also placed reliance on two decisions of this
Court—The Management of Together Textile Mills India Private Ltd. v.
The Presiding Officer, Labour Court, Coimbatore & Ors., reported in
2012 (2) LLJ 521 (Mad), and an unreported judgment in Codimen v. The
Management of Indo Shell Mould Ltd. & Anr. in W.P. Nos. 480 & 5482
of 2004, dated 3.7.2008. In the first case (Together Textile Mills), the issue
was whether a legal strike notice issued in respect of a public utility service
could give rise to a deemed conciliation proceeding so as to attract the
applicability of Section 33. In that context, this Court observed in paragraph
21 as follows:–
“In view of the above, this Court is of the opinion that
since the contesting workmen have not established that the
petitioner Mill is a Public Utility Service, the consequential
notice to the jurisdictional Conciliation Officer and the
deemed conciliation provided under Section 20(1) of the
I.D.Act will not be attracted. Therefore, the question of
invoking the ratio in Jaipur Zila case for claiming wages
under the premises that there was violation of Section
33(1) will not arise.”
15. In the second decision (Codimen case), this Court held that in the
case of an individual dispute falling under Section 2A of the Industrial
Disputes Act, the provisions of Section 33 would not be attracted. In
paragraph 9, the Court observed as follows:–
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“In the present case, admittedly, all the petitioners have
raised dispute before the Assistant Commissioner of Labour
III under Section 2A of the I.D.Act. This was under the
hope that they can get their relief in terms of the judgment of
the Supreme Court in Jaipur Zila Sahakari Boomi Vikas
Bank Ltd Case (cited supra). Their petitions were allowed to
be withdrawn so as to pursue their remedy before the Labour
Court under Section 33C(2) of the I.D.Act. This court finds
that proper remedy for the petitioners is only to get the
industrial dispute adjudicated by the competent Labour
Court and Section 33C(2) of the I.D.Act cannot be a remedy
when there are so many disputed questions of rights between
the parties.”
16.Drawing support from these decisions, the learned senior counsel further
advanced a twofold contention: first, that no valid conciliation proceedings
were pending before the Conciliation Officer at the relevant time, and
therefore, there was no violation of Section 33(2)(b) of the Industrial
Disputes Act; and second, that in the absence of such violation, the
contesting respondent could not have claimed full back wages before the
Labour Court. Central to this argument was the question of when a
conciliation proceeding can be deemed to have commenced. In support of
this submission, reliance was placed on the following three judgments:–
“1.The Management of Menon Pistons Vs. Labour Officer-II & anr.,
reported in Manu/TN/1007/2000
2. State Bank’s Staff Union (Madras Circle) Vs. State Bank of India
reported in 1991 (1) LLJ 163 (DB Madras)
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3. KN Asokan Vs. Presiding Officer, Labour Court & Ors. reported
in 2010 (1) LLJ 438 Mad”
17. In the first judgment (Menon Pistons case), the emphasis was on the
principle that in the case of a non-public utility service, the initiation of
conciliation proceedings lies within the discretion of the Conciliation
Officer. It was held that unless the Conciliation Officer expressly indicates
his intention to commence conciliation, issues a formal intimation to that
effect, and fixes a specific date for the proceedings, such conciliation cannot
be deemed to have commenced. In the absence of such formal notice, the
existence of pending conciliation proceedings cannot be presumed.
18. In the second judgment (State Bank case), the Court observed that
multiple disputes may arise between workmen and the management, but not
all such disputes would necessarily lead to the initiation of conciliation by
the Conciliation Officer. Mere talks or negotiations between the parties do
not, by themselves, amount to conciliation proceedings. In support of this
proposition, reliance was placed on the following passage from paragraph
11 of the judgment, which reads as follows:–
“Merely because the Conciliation Officer conceived the idea of
holding a discussion on coming to known of the particular
attitude of either the employer or employees with regard to the
implementation of the settlement, after the same has been duly
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arrived at, and also being confronted with belligerent and
uncompromising attitude of the parties, may be resulting in an
explosive situation, that will not make the said proceedings
conciliation proceedings in the eye of law.”
19. In the third judgment (K.N. Asokan case), the Court found that the
matter involved retrenchment. Upon protest by the workman, he was offered
a position in a new role as a baker. However, since he did not express his
willingness to accept the new post, the case did not amount to either a
dismissal or a discharge. Consequently, the provisions of Section 33(1) or
Section 33(2) of the Industrial Disputes Act were held to be inapplicable.
20.Learned senior counsel also placed reliance on the judgment of the
Supreme Court in Management, Essorpe Mills Ltd. v. Presiding Officer,
Labour Court & Ors., reported in (2008) 7 SCC 594. In that case, the
Supreme Court held that the ratio laid down in Jaipur Zila would not apply,
as the strike notice issued by the union was not in accordance with the
requirements of the Act. Consequently, it could not be treated as a valid
strike notice within the meaning of the deemed provision under Section 22
of the Industrial Disputes Act. In that view of the matter, the Court declined
to grant relief to the workmen.
21. Learned senior counsel further contended that the remedy under
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Section 33C(2) of the Industrial Disputes Act was not available to the
respondent workmen for claiming wages based on an alleged infraction of
Section 33. In support of this argument, he relied on the decision in
Municipal Corporation of Delhi v. Ganesh Razak & Anr., reported in
(1995) 1 SCC 235. This judgment, delivered prior to the decision in Jaipur
Zila, involved daily-rated casual workmen who sought wages equivalent to
those of regular employees without there being any prior adjudication of
their claim.
22. Similarly, the decision relied upon was State Bank of India v.
Ram Chandra Dubey & Ors., reported in 2000 II LLJ 1660 (SC), where
the Supreme Court reiterated that for a petition under Section 33C(2) to be
maintainable, there must be a pre-existing right. Another decision cited was
State of Uttar Pradesh & Anr. v. Brijpal Singh, reported in (2005) 8 SCC
58. In that case, a three-judge Bench of the Supreme Court decided the
matter on 27.09.2005, without the benefit of considering the earlier larger
Bench decision in Jaipur Zila (2002), and instead relied on Punjab
Beverages (supra), which has since been expressly overruled and is no
longer considered good law. So these three decisions cited —two of which
merely affirm general principles relating to Section 33C(2) of the Industrial
Disputes Act, and the third of which failed to take into account a binding
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larger Bench decision directly relevant to the present case.
23. Another submission advanced by the learned senior counsel was
that, in the absence of oral evidence, the Labour Court ought not to have
proceeded with the computation of wages. In support of this contention,
reliance was placed on the decision of the Hon’ble Supreme Court in State
Bank of India, through its General Manager v. National Housing Bank &
Others, reported in (2013) 16 SCC 538.
24. Learned senior counsel also referred to the decision of the Supreme
Court in Bikash Bhushan Ghosh & Ors. Vs. Novartis India Ltd & Anr.
reported in 2007 (5) SCC 591 and relied upon the following passage which
reads as follows:-
“Yet again appellants being workmen, their services were
protected in terms of the Industrial Disputes Act, 1947. If
their services were protected, an order of termination was
required to be communicated. Communication of an order of
termination itself may give rise to a cause of action. An
order of termination takes effect from the date of
communication of the said order.”
In that case, the Supreme Court referred to and quoted with approval an
earlier decision in State of Punjab v. Amar Singh Harika (AIR 1966 SC
1313), wherein the Court laid down the following principle:
“We are, therefore, reluctant to hold that an order of
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dismissal passed by an appropriate authority and kept on its
file without communicating it to the officer concerned or
otherwise publishing it will take effect as form the date on
which the order is actually written out by the said authority;
such an order can only be effective after it is communicated
to the officer concerned or is otherwise published”
This was to contend that, as on the date the termination orders took effect
upon their issuance to the respondent workmen, no conciliation proceedings
were pending.
25. In light of the above objections, this Court, here and now, examines
whether the respondent workmen have made out a valid case. A total of 42
workmen initially filed individual claim petitions before the Labour Court at
Salem under Section 33C(2) of the Industrial Disputes Act. These claim
petitions were registered as C.P. Nos. 41 to 62 of 2010, 1/2012, 6/2012,
9/2012, 30/2012, 35/2012, 37/2012, and 45/2012. The petitions were filed
on different dates, and a total of 40 workmen are ultimately involved in the
proceedings. The Management filed separate counter statements in response
during May 2012 and subsequently submitted an additional counter
statement dated 26.03.2014.
26. Before the Labour Court, a joint memo was filed seeking a joint trial
of all the claim petitions, which was duly permitted. It was further agreed
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that common evidence would be recorded in C.P. No. 41 of 2010
(B.Karunanithi, 1st Respondent in the W.P.). During the proceedings, the
workmen relied on two documents—conciliation notices issued by the
Conciliation Officer (Labour Officer, Salem)—which were marked as Ex.P1
and Ex.P2, dated 28.09.2007 and 01.10.2007, respectively. On the side of
the petitioner Management, 75 documents were produced and marked as
Ex.R1 to Ex.R75. The Management also filed written submissions dated
04.07.2019.
27. Though in paragraph 4(k) of the written submissions dated
04.07.2019, the Management stated that the amounts claimed by the
workmen were not proved by acceptable evidence, they also referred to
Exhibits R29 to R68—all dismissal orders issued to the workmen—which
specifically indicated their last drawn wages. It is also relevant to note that,
in the additional counter statement, the Management filed the following
three documents:
“a.Wage slips of the Petitioner for the months September
2007, October 2007 and December 2007 corresponding to
their date of dismissal (Ex.R72 series)
b. Statement showing details of last drawn wages by the
Petitioner (Annexure-A) (Ex.R73)
c. Statement showing month wise production from
September 2007 till December 2012 (Annexure-B)
(Ex.R74).”
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28. The Labour Court, by a common order dated 17.08.2019, computed
the amounts payable to the workmen, as reflected in paragraph 12 of the
impugned order. It determined the monthly wages of each workman based
on Exhibits R72 and R73 filed by the respondents, which contained salary
details. For ten of the claimants, the salary period considered was from
04.12.2007 to 31.05.2010. For another twelve workmen, the salary period
ranged from 20.10.2007 to 31.05.2010. Similarly, the Labour Court
recorded different salary periods for different sets of claimants.
29. On the merits of the case, the Labour Court held that there was a
clear violation of Section 33, as the Management had failed to obtain
approval for the dismissal of the workmen from the Conciliation Officer. It
also rejected the Management’s objections regarding the maintainability of
the claim petitions, as well as the various decisions cited in support of their
case (some of which were also referred to before this Court). The Labour
Court concluded that the workmen were entitled to wages and directed that
the amounts be paid to each of them within a period of two months, with
interest at 6% per annum, failing which the amount would carry further
interest at 9% per annum. It is this common order that is now under
challenge before this Court.
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30. In the writ petition that came up for hearing on 07.02.2020, notice
was ordered to the respondents, and an interim stay was granted for a period
of four weeks. Upon receipt of notice, the individual workmen entered
appearance through their counsel and filed W.M.P. No. 4778 of 2023
seeking to vacate the interim order. However, notice to the 40th respondent,
G. Ashokan, could not be effected, as he had passed away. Consequently,
the writ petition, insofar as it relates to him—namely, C.P. No. 43 of 2012—
stands abated. Despite being granted leave for private notice, no steps were
taken to bring his legal representatives on record, and no affidavit of service
has been filed to date.
31. On behalf of the contesting respondents, a typed set of documents
was filed, which included the bonus demand and charter of demands, the
two conciliation notices marked as Ex.P1 and Ex.P2 (also marked as
Ex.R11 and Ex.R12), along with subsequent conciliation notices dated
07.11.2007 (Ex.R17), 09.11.2007 (Ex.R18), 20.11.2007 (Ex.R19),
23.11.2007 (Ex.R20), and 03.12.2007 (Ex.R22), as well as a copy of the
conciliation failure report dated 11.12.2007 (Ex.R23). Pursuant to the
workers' demands, the Government issued G.O.(D) No. 565, Labour and
Employment Department, dated 21.10.2010, referring the dispute relating to
bonus and performance incentives for adjudication before the Industrial
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Tribunal, Tamil Nadu. In compliance with the Government Order, the
Tribunal registered the dispute as I.D. No. 33 of 2010 and issued notice to
the parties. Although the Management, in its additional counter statement,
asserted that the factory had been closed on 24.12.2012, the respondents
filed a copy of the Registration and License to Work issued by the
Directorate of Industrial Safety and Health. This document, obtained under
the Right to Information Act, indicated that the license for the plant was
valid up to 31.12.2023, thereby contradicting the claim of closure.
32. An additional typed set of documents was also filed, which included a
copy of the dismissal order issued to S. Selvaraj dated 27.09.2007 (Ex.R45),
along with the postal covers evidencing that the order was dispatched by the
Management on 27.09.2007 and delivered on 28.09.2007, as indicated by
the postal seal. Also included was a copy of the settlement entered into
between the Management and the trade union under Section 12(3) of the
Industrial Disputes Act before the Labour Officer, Salem, dated 21.10.2022
(Ex.R2).
33. Mr. N.G.R. Prasad, the doyen of the Labour Bar, ably assisted by
Mr. V. Ajoy Khose, submitted that the legal contours of what constitutes a
conciliation proceeding before a Labour Officer were clearly laid down by
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the Supreme Court as early as 1959. In support of this, he referred to the
judgment in Andheri Marol Kurla Bus Service & Anr. v. State of
Bombay, reported in AIR 1959 SC 841, and relied on the following passage
from paragraph 5 of the judgment, which reads as follows:–
“5. It was next contended that on this interpretation the
conciliation proceedings could be prolonged much beyond
what was contemplated by the Act and the termination would
depend upon how soon a report is received by the appropriate
Government. It is true that s. 12(6) of the Act contemplates the
submission of the report by the Conciliation Officer within 14
days but that does not affect the pendency of the conciliation
proceedings and if for some reason the Conciliation Officer
delays the submission of his report his action (1) may be
reprehensible but that will not affect the interpretation to be put
on s. 20(2)(b) of the Act. Section 12 lays down the duties of the
Conciliation officer. He is required to bring about settlement
between the parties and must begin his investigation without
delay and if no settlement is arrived at he is to submit his report
to the appropriate Government. No doubt s. 12 contemplates
that the report should be made and the proceedings closed
within a fortnight and if proceedings are not closed but are
carried on, as they were in the present case, or if the
Conciliation Officer does not make his report within 14 days he
may be guilty of a breach of duty but in law the proceedings do
not automatically come to an end after 14 days but only
terminate as provided in s. 20(2)(b) of the Act. Colliery
Mazdoor Congress, Asansol v. New Beerbhoom Coal Co. Ltd
(1). As the conciliation proceedings were pending at the time
when Louis Pereira was dismissed the appellants were rightly
convicted under s. 31(1) read with s. 33 of the Act.”
In that case, the employer was convicted for violating Section 31(1) of the
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Industrial Disputes Act, and the conviction was upheld by the Labour Court.
The violation arose from the employer’s failure to obtain the requisite
approval from the Conciliation Officer.
34. The learned counsel further placed reliance on the decision of the
Hon’ble Supreme Court in Lokmat Newspapers Pvt. Ltd. v.
Shankarprasad, reported in (1999) 6 SCC 275, and referred to the
following excerpts from paragraphs 23, 24, and 25:
“23. …..For the time being, it is sufficient to note that the
question of violation of Section 33(1) of the I.D. Act has a
direct nexus with the further question whether on 22.6.1982
when the impugned termination order was passed,
conciliation proceedings were pending before the authority
or not.
24. In order to answer these questions, it is necessary to note
sub- section (4) of Section 12 of the I.D. Act which reads as
under :
"(4) If no such settlement is arrived at, the conciliation
officer shall, as soon as practicable after the close of the
investigation, send to the appropriate Government a full
report setting forth the steps taken by him for ascertaining
the facts and circumstances relating to the dispute and for
bringing about a settlement thereof, together with a full
statement of such facts and circumstances, and the reasons
on account of which, in his opinion, a settlement could not
be arrived at."
A mere look at this provision shows that if the Conciliation
Officer finds during conciliation proceedings that no
settlement is arrived at between the disputing parties, then
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after closing the investigation he has, as soon as practicable,
to send to the appropriate Government a full report setting
forth the steps taken by him for ascertaining the facts and
circumstances relating to the dispute and has also to
mention all other details as required to be mentioned in the
report under Section 12(4) of the I.D.Act.
25. The aforesaid statutory requirements leave no room for
doubt that after closing the investigation and after having
arrived at the conclusion that no settlement is possible
between the parties, the Conciliation Officer has to spend
some more time before submitting his detailed written
report about failure of consideration for information and
necessary action by the State Government. In the very
nature of things, therefore, such requirement will take at
least a couple of days, if not more, for the conciliator after
closing the investigation to enable him to send an
appropriate report to the State Government ….It is,
therefore, difficult to appreciate how within half an hour
after the closing of investigation by the conciliator and
before his getting even a breathing time to prepare his
detailed written report about failure of conciliation to be
sent to the Government as per Section 12(4), the appellant
could persuade itself to presume that conciliation
proceedings had ended and, therefore, it was not required to
follow the procedure of Section 33(1) and straightaway
could pass the impugned order of retrenchment within 25
minutes of the closing of the investigation by the conciliator
on the very same day…….Thus, on the express language
of Section 12(4) the conclusion is inevitable that closer of
investigation by 4.35 p.m. on 22.6.1982 did not amount to
termination of conciliation proceedings by that very time.
The argument of learned counsel for the appellant was that
closer of investigation automatically amounted to
termination of conciliation proceedings. This argument
proceeds on a wrong premise that closer of investigation by
the conciliator is the same as closer of conciliation
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proceedings. The legislature while enacting Section
12(4) has deliberately not used the words `closer of
conciliation' but, on the contrary, provided that after closer
of investigation something more was required to be done by
the conciliator as laid down under Section 12(4) before he
can be said to have done away with conciliation proceedings
earlier initiated by him. On this conclusion alone the
decision rendered by the Division Bench of the High Court
that the impugned order of termination dated 22.6.1982 was
issued by the appellant without following the procedure
of Section 33(1) of the I.D. Act has to be sustained.”
35. The learned senior counsel next referred to a Division Bench
judgment of this Court in Arasu Viraivu Pokkuvarathu Oozhiyar
Sangam v. State Express Transport Corporation Ltd. and Others,
reported in (2006) 3 LLN 916, wherein it was held that, in the case of public
sector undertakings, a violation of Section 33 of the Industrial Disputes Act
could be challenged by way of a writ petition for setting aside an illegal
order.
36. Two decisions were also cited—one by a learned Single Judge and
the other being the affirmation of that order by a Division Bench—namely:
(1) Management of Bharathan Publication v. Labour Officer &
Another, (2009) 5 MLJ 95, and (2) Management of Bharathan
Publication v. Labour Officer & Another, (2009) 6 MLJ 625. However, it
must be noted that the matter was taken up before the Hon’ble Supreme
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Court, where the main writ petition itself was withdrawn by a learned senior
counsel appearing for the petitioner, with the Court permitting such
withdrawal. Consequently, the effect of both the aforementioned decisions
stands nullified and no longer holds binding value.
37. The management also submitted the order dated 06.10.2010 passed
in Civil Appeal No. 8579 of 2010, titled The Management of Bharathan
Publication (P) Ltd. v. Bharathiyar Employees’ Mazdoor Sangh. The
relevant portion of the said order is extracted below:—
“In our opinion, if the workman concerned had a complaint
that Section 33 of the Act has been violated, his remedy was
to apply before the Labour Court under Section 33A of the
Act. Instead, the workman appeared to have applied to the
Labour Officer. The Labour Officer has only power of
conciliation and not adjudication. Hence, it appears that the
workman concerned was wrongly advised to approach the
Labour Officer instead of the Labour Court. The appellant
herein had challenged the order of the Labour Officer dated
20.12.2007 on which the Division Bench has passed the
impugned order.
Mr.P.P.Rao, learned counsel for the appellant, assisted by
Mr.V.Karthic, Advocate has submitted that there was no
proceeding pending before the Labour Officer when the
dismissal order was passed. We are not deciding this dispute
because Mr.P.P.Rao, Ld. Counsel for the appellant, submitted
that the appellant wishes to withdraw the Writ Petition
before the High Court. We allow this prayer.
On the facts of the case, we permit the workman concerned
to approach the Labour Court under Section 33A of the
Industrial Disputes Act, 1947, if not already approached. If
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the workman approaches the Labour Court by filing a proper
petition / application, the same shall be decided
expeditiously in accordance with law uninfluenced by any
observations made by the Division Bench or Single Judge of
the High Court. We, consequently, allow the appellant to
withdraw the Writ Petition which he had filed before the
High Court.”
38. In light of the fact that the very foundation of the Bharathan
Publication case has been rendered ineffective by the withdrawal of the writ
petition before the Hon’ble Supreme Court, this Court refrains from placing
reliance on the two related decisions cited. That said, a broader reflection is
warranted. In the months during which this Court have had the opportunity
to hear labour matters, this Court have consistently noted that counsel on
both sides approach their cases with commendable diligence and fervour,
citing a wide array of decisions and leaving no legal argument unexplored.
However, in their earnest effort to defend their clients, counsel must remain
equally conscious of their responsibility to the Court. The citation of
decisions that have no bearing on the factual matrix, or that are no longer
binding or good law, does not assist the Court in the dispensation of justice.
On the contrary, such references may inadvertently misdirect the Court and
lead to incorrect legal conclusions. As Justice V.R. Krishna Iyer once aptly
observed, “the illiteracy of the bench is the reflection of the illiteracy of the
Bar.” It is in this constructive spirit that the observation is made — as a
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gentle reminder of the shared responsibility we bear in upholding the
integrity of legal proceedings in the pursuit of justice.
39. The next question that arises for consideration is whether the
impugned common order passed by the Labour Court withstands legal
scrutiny. In its additional counter statement before the Labour Court, the
management contended that out of the 40 claim petitions, C.P. Nos. 41 to 62
of 2010 were filed after a delay of two years, while C.P. Nos. 1, 6, 9, 30 to
35, and 37 to 45 of 2012 were filed after a delay of five years from the
respective dates of termination. It was argued that the workmen had been
pursuing remedies elsewhere, and that the delay had caused serious
prejudice to the management. On this ground, the petitions were alleged to
be vexatious and liable to be dismissed.
40. In the present case, the claims were instituted under Section 33C(2)
of the Industrial Disputes Act, based on an existing legal right. It is well-
settled that no period of limitation is prescribed under the Act for initiating
such claims. Reference may be made to the judgment of the Supreme Court
in Nityanand M. Joshi v. Life Insurance Corporation of India & Others,
reported in (1969) 2 SCC 199, wherein it was categorically held that the
Limitation Act does not apply to proceedings under Section 33C(2). The
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Court held as follows:—
“This Court in Town Municipal Council, Athani v. The
Presiding Officer, Labour Court, Hubli has dissented from the
decision of the Bombay High Court and has held that art.
137 of the Limitation Act, 1963, does not apply to applications
under s. 33C(2) of the Industrial Disputes Act. This Court gave
two reasons for coming to this conclusion. The first ground
was that in spite of the changes made in the Indian Limitation
Act, 1963, no drastic change was intended in the scope of art.
137 so as to include within it all -applications irrespective of
the fact whether they had any reference to the Code of Civil
Procedure or not. This Court held that in spite of the changes
the interpretation of art. 181 of the Limitation Act, 1908, by
this Court in Bombay Gas Co. Ltd. v. Gopal Bhiva and Others
would apply to art. 137 of the Limitation Act, 1963. The
second ground given by this Court was that it is only
applications to Courts that are intended to be covered under art.
137 of the Limitation Act, 1963.
In our view art. 137 only contemplates applications to
Courts. In the Third Division of the Schedule to the Limitation
Act, 1963, all the other applications mentioned in the various
articles are applications filed in a court. Further s. 4 of
the Limitation Act, 1963, provides for the contingency when
the prescribed period for any application expires on a holiday
and the only contingency contemplated is "when the court is
closed". Again under s. 5 it is only a court which is enabled to
admit an application after the prescribed period has expired if
the court is satisfied that the applicant had sufficient cause for
not preferring the application. It seems to us that the scheme of
the Indian Limitation Act is that it only deals with applications
to courts, and that the Labour ,Court is not a court within
the Indian Limitation Act, 1963. It is not necessary to express
our views on the first ground given by this Court in Town
Municipal Council, Athani v. The Presiding Officer
Labour Court, Hubli.”
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This effectively negates the contention raised by the respondents regarding
the claims being barred by limitation.
41. The next question that falls for consideration is whether
conciliation proceedings were pending before the Labour Officer on the
dates when the respondent workmen were dismissed. It is an admitted fact
that the trade union to which the respondents belonged had raised an
industrial dispute relating to bonus and a charter of demands as early as
February 2007. The Labour Officer at Salem, who was the jurisdictional
Conciliation Officer, issued a notice dated 28.09.2007 (marked as
Ex.P1/Ex.R11), and stated that in view of the stay in strike by the workers
with reference to the demands, he had directed the parties to appear before
him and the letter reads as follows:-
”ேமற்ொகொண்ட ொதொழிற்தொவொ ொதொடர ்பொக இன் ற (28.9.2007)
பிற்பகல் 5.00 மணியளவில் இவ்வலவலகத்தில் ேசலம், ொதொழிலொளர ்
அலவலர ் மன் பொக நைடொபறவிரக்கம் ேபச்சவொர ்த்ைதக்க
இரதரப்பினரம் தவறொத ஆஜரொகமொற ேகட்டக் ொகொள் ளப்படகிறத.
இரதரப்பினரம் அவர ்களத தரப்பில் மடொவடக்கம் அதிாொரம் ொகொண்ட
நபர ்கள் . ேபச்சவொர ்த்ைதயில் கலந்த ொகொள்ள ேவண்டொமன் றம்
ொதரிவிக்கப்படகிறத .”
42. In its notice published on 01.10.2007 (marked as Ex.P2 / Ex.R12),
the management issued an appeal to the workers, which reads as follows:—
”ேபொனஸ் உள்ளிட்ட ொதொழிலொளர ்களின் ேகொரிக்ைககள் கறித்த, ேசலம்
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ொதொழிலொளர ் அலவலர ் மன் னிைலயில் 29.09.2007-ல் ொதொடங்கி
நைடொபற உள் ள சமரச ேபச்சவொர ்த்ைதகளின் மலம் மடவ கண்ட
ஒப்பந்தம் ஏற்படத்தி பலன் கைள நைடமைறபடத்த ேவண்டம்.
ஆனொல் ொதொழிலொளர ்கள் அந்த அறிவைரைய உதொசீ னப்படத்தி நொளத
ேததிவைர பணிக்காு திரம்பொமல் இரந்த வரவத நிர ்வொகத்திற்க
வரத்தத்ைத அளிக்கிறத. ஏற்கனேவ பல அறிவிப்பகள் மலம்
ொதொழிலொளர ்களின் ேதைவயற்ற, சட்டத்திற்க பறம்பொன ேவைல
நிறத்தத்ைத ைகவிட்ட சகஜநிைலக்க திரம்பமொற நிர ்வொகம் கறிய நல்ல
அறிவைறைய மீண்டம் நிைனவபடத்தவதடன் ேமலம் கொல தொமதம்
ொசய்யொமல் உடனடயொக ேவைல நிறத்தத்தில் ஈடபட்டள் ள
ொதொழிலொளர ்கைள பணிக்க திரம்பமொற அறிவறத்தப்படகிறொர ்கள்.”
43. Even while conciliation proceedings were pending before the
Conciliation Officer (Labour Officer, Salem), the management proceeded to
enter into a settlement under Section 18(1) of the Industrial Disputes Act
with another trade union on 05.10.2007 (marked as Ex.R13). The preamble
to the said settlement reads as follows:—
Whereas the workmen belonging to the other union,
Metkem Silicon Employees Union (SLM:605) which also
participated in the negotiation for the same demand went
on illegal “Stay in Strike” from 6.00 AM on 22.09.2007.
Whereas the striking union, Metkem Silicon Employees
Union, as directed in the peace committee meeting
conducted by the Revenue Divisional Officer (RDO),
Mettur on 27.09.2007, failed to resume duty.
Whereas the Labour Officer, Salem called the Management
and both the Unions for conciliation meeting on
28.09.2007.
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44. Although the settlement was signed with a different union, it was
prepared by the management. Notably, the emphasized portion in the
preamble to the settlement clearly acknowledges that the meeting convened
pursuant to the notice dated 28.09.2007 (marked as Ex.P1 / Ex.R11) was, in
fact, a conciliation meeting. Following this, the Conciliation Officer issued
further notices on 07.11.2007, 09.11.2007, 20.11.2007, 23.11.2007, and
03.12.2007 (marked as Ex.R17 to Ex.R20 and Ex.R22). As all the notices
were identically worded, the text of the notice dated 07.11.2007 (Ex.R17),
addressed to both parties, is extracted below:—
”ொபொரள்: ொதொழிற்தகரொற-1947 ஆம் வரடத் ொதொழிற்
தகரொறகள் சட்டம் பிரிவ 2ஏ / 2ேக – ொகம்பள ் ொஸ் ட்
சன் மொர ் லிட், பிளொன் ட ் 4 – ொமட்கம் சிலிக்கொன்
எம்ளொய ீஸ் யனியன் – ேவைலநிறத்தம்
பிரிவ 12(1)ன் கீ ழ் சமரச நடவடக்ைககள் அறிவாிப்ப ொசய்தல் –
கறித்த
ேமற்கண்ட தரப்பினரிைடேய எழந்தள் ள ொதொழிற் தகரொற சம்மந்தமொக
சமரசப் ேபச்சவொர ்தைத வரகின் ற 16.11.07 அன் ற மப/பிப 12.00
மணிக்க இவ்வலவலகத்தில் மடவைடகின் றத அதசமயம் ேமேல
கறப்பட்டள்ள வழக்க சம்பந்தப்பட்ட ஆவணங்களடன் தவறொமல்
கலந்த ொகொள்ளமொற ேகட்டக் ொகொள்ளப்படகிறத. அவ்வொற
ேநரடயொக கலந்த ொகொள் ள இயலொவிடல் ொதொழிற்தகரொற விதிகள்
1953, விதி எண். 26-ன் கீ ழ் தக்க ஒரவரக்க மைறப்பட அதிகொரம்
அளித்த அனப்பி ைவக்கவம்.
நிர ்வொகத்தினர ் இந்த சமரசப் ேபச்ச வொர ்த்ைதக்க வரத்தவறினொல்
ொதொழிற்தகரொறகள் சட்டம் 1947, பிரிவ 12(4) ன் கீ ழ் அரசினரக்க
சமரச மறிவறிக்ைக அனப்பப்படம் / சமரச மறிவ தரப்பினர ்களக்க
ொதரிவிக்கப்படம். ொதொழிலொளி / ொதொழிற்சங்கப் பிரதி நிதி
வரத்தவறினொல் இவ்வழக்க சம்பந்தமொன நடவடக்ைககள்
ைகவிடப்பட்ட ேகொப்ப மடக்கப்படம் எனத் ொதரிவிக்கப்படகிறத.
ொதொழிற்சங்கம் பதிேவடகைள தொக்கல் ொசய்யமொற ேகட்டக்
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ொகொள்ளப்படகிறத.”
45. The conciliation talks conducted by the Labour Officer ultimately
ended in failure. Consequently, the Conciliation Officer forwarded a failure
report under Section 12(4) of the Industrial Disputes Act to the Government
of Tamil Nadu, by his letter bearing Na.Ka.No.751/07 dated 11.12.2007
(marked as Ex.R23). Relevant portions of the said letter are usefully
extracted below:—
”ேசலம் மொவட்டம், ேமட்டர ் அைண, ொகம்பள் ொஸ் ட் சன் மொர ் லிட்,
பிளொன் ட ்-4 நிறவனத் ொதொழிலொளர ்கள் ேபொனஸ் , ஊக்கத்ொதொைக உயர ்வ
உள்ளிட்ட ேகொரிக்ைககைள வலியறத்தி 22.9.2007 மதல் உள் ளிரப்ப
ேவைலநிறத்தத்தில் ஈடபட்டள் ளதொக ொமட்கம் சிலிக்கொன் எம்பள ் ொய ீஸ்
யனியன் ொதொழிற்சங்கத்தின் 22.9.2007 ேததியிட்ட கடதம் மலம்
ொதரிவிக்கப்பட்டைதயடத்த, இப்பிரச்சைன 1947-ம் வரடத்
ொதொழிற்தகரொறகள் சட்டம் பிரிவ 2ேக-ன் கீ ழொன ொதொழிற்தொவொவொக
கரதப்பட்ட ேபச்சவொர ்ைதகள் நடத்தப்பட்டன.
……….
அதைனயடத்த இவ்வலவலகத்தில் 28.9.2007, 2.10.2007, 3.10.2007,
8.10.2007, 12.10.2007, 19.10.2007, 25.10.2007, 30.10.2007, 5.11.2007,
19.11.2007, 23.11.2007, 30.11.2007 மற்றம் 7.12.2007 ஆகிய
ேததிகளில் சமரசப் ேபச்சவொர ்த்ைதகள் நடத்தப்பட்டன. இதில்
ொதொழிற்சங்கத்தின் தரப்பில் தைலவர ் திர.எம்.ொசல்வரொச, ொசயலொளர ்
திர.ஏ.ேமொகன் உள் ளிட்ேடொர ் கலந்தொகொண்டனர ் . நிர ்வொகத்தின் தரப்பில்
25.10.2007 வைர நைடொபற்ற சமரசப் ேபச்சவொர ்த்ைதகளில்
நிர ்வொகத்தின் தரப்பில் உதவித்தைலவர ் (பணியொளர ்)
திர.ேக.பொர ்த்தசொரதி அவர ்கள் கலந்தொகொண்டொர ். அதன் பின் னர ்
நிர ்வொகத்தின் தரப்பில் எவரம் சமரசப் ேபச்சவொர ்த்ைதகளில்
கலந்தொகொள்ளவில்ைல. மொறொக ேபச்சவொர ்த்ைதகளில்
கலந்தொகொள்ளொைமக்க 29.10.2007 ேததியிட்ட கடதத்தின் வொயிலொக
பின் வரம் கொரணங்கைள நிர ்வொகம் ொதரிவித்தத…
இரதரப்பினரம் ேமற்கண்டவொறொன தத்தமத நிைலப்பொட்ைடேய
ொதொடர ்ந்த வலியறத்தியைமயொலம், 40 ொதொழிலொளர ்கள் ொதொடர ்ந்த
ேவைலநிறத்தத்தில் ஈடபட்ட வந்தைமயொலம், இத்தொவொவில்
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இரதரப்பினரிைடேய ஒர சமகமொன தீ ர ்ைவ ஏற்படத்த இயலவில்ைல.
மொறொக சமரசப் ேபச்சவொர ்த்ைதகள் ேதொல்வியில் மடந்தன. எனேவ
1947ம் வரடத் ொதொழிற்தகரொறகள் சட்டம் பிரிவ 12(4)ன் பட இச்சமரச
மறிவறிக்ைகயிைன சமர ்ப்பிக்கிேறன்.”
46. The conciliation proceedings were compelled to end in failure
due to the boycott by the management, which refused to participate in
further talks on the basis of certain objections it had raised. Acting upon the
failure report, the Government, after a lapse of three years, referred the
dispute for adjudication by issuing G.O.(D) No. 565, Labour and
Employment Department, dated 21.10.2010. The dispute was subsequently
taken on file by the Industrial Tribunal as I.D. No. 33 of 2010.
47. The management appears to have overlooked the fact that it had
voluntarily boycotted the conciliation proceedings. Significantly, a State
amendment introduced by the Tamil Nadu Legislature through Act 5 of
1988 conferred civil court powers upon Conciliation Officers. As per
Section 11(4)(i) of the Industrial Disputes Act, they are empowered to
enforce the attendance of any person before them. It is, therefore, evident
that from the issuance of the notice dated 28.09.2007 (Ex.P1 / Ex.R11) until
the date of the failure report on 10.12.2007, the conciliation proceedings
were actively pending. Furthermore, by virtue of the extended operation
contemplated under Section 20(2) of the Industrial Disputes Act,
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conciliation proceedings are deemed to have concluded in the following
manner:—
“ A conciliation proceeding shall be deemed to have
concluded-
(a)where a settlement is arrived at, when a memorandum of the
settlement is signed by the parties to the dispute;
(b)where no settlement is arrived at, when the report of the
conciliation officer is received by the appropriate Government
or when the report of the Board is published under section 17,
as the case may be; or
(c)when a reference is made to a Court, [Labour Court,
Tribunal or National Tribunal] under section 10 during the
pendency of conciliation proceedings.”
48. The management appeared keen to bring the conciliation
proceedings to an end, with the objective of dismissing the workmen
without seeking the mandatory approval of the Conciliation Officer under
Section 33 of the Industrial Disputes Act. In fact, as stated in paragraph 8 of
the additional counter statement filed before the Labour Court, only in the
cases of C.P. No. 45 of 2010 (K. Annamurthy), C.P. No. 48 of 2010 (G.
Venkatrajulu), C.P. No. 57 of 2010 (S. Selvaraj), and C.P. No. 34 of 2012
(S. Selvaraj), domestic enquiries were allegedly conducted on 27.09.2007.
In respect of the remaining workmen, they were summarily dismissed even
while conciliation proceedings were pending. One such instance is evident
from the dismissal order issued to M. Saravanakumar (Respondent No. 17
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in C.P. No. 55 of 2010), dated 23.10.2007, which clearly reveals that the
respondent was asked to report for duty on 23.10.2007, and upon his failure
to do so, he was retrospectively dismissed from service with effect from
20.10.2007.
49. The management consciously took a calculated risk by dispensing
with domestic enquiries and by failing to adhere to the procedure for
imposing penalties as stipulated under the certified standing orders of the
company (marked as Ex.R1). This course of action appears to have been
adopted with the expectation that such dismissals would deter other
workers, and based on the belief that, at most, a violation of Section 33 of
the Industrial Disputes Act would entitle the workmen only to lodge a
complaint or raise an industrial dispute. It seems the management also relied
on the proposition laid down in Workmen of Firestone Tyre & Rubber Co. v.
Management, (1973) 1 SCC 813, that in the event of a dispute, it could lead
evidence to substantiate the charges at a later stage. However, having taken
this risk, the management must now bear the consequences of its non-
compliance with the mandatory requirements under Section 33 of the
Industrial Disputes Act, including facing claims from the workmen for back
wages. It is a fact that all the dismissals of the respondent workmen
occurred during the pendency of conciliation proceedings and without
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obtaining express permission from the Conciliation Officer, who was
conciliating the primary dispute between the parties.
50. Confronted with the charter of demands and the reported Stay in
Strike by the workmen, the Conciliation Officer made earnest efforts to
mediate between the parties. He had issued appropriate statutory notices for
holding conciliation talks. Whether it is arose out of a strike notice through
fiction and whether the notice was proper is immaterial in the present case.
On the contrary, to save the management, the conciliation officer had issued
notices to the parties and was holding talks. Whether the conciliation
stemmed from a formal strike notice or arose by legal fiction—and whether
the notice was technically proper—are immaterial for the purpose of the
present case. What is material is that the Conciliation Officer undertook his
statutory duty to bring about a resolution. However, it was the management
that escalated the situation by withdrawing from the conciliation process
and proceeding to dismiss the workmen in contravention of the Act and the
Certified Standing Orders. For this deviation from legal procedure, the
management must necessarily bear the consequences.
51. The term “conciliation proceeding” is defined under Section 2(e)
of the Industrial Disputes Act, which reads as follows:—
“Conciliation proceeding means any proceedings held by a
Conciliation Officer or Board under this Act”
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52. The provision for the appointment of a Conciliation Officer is
contained in Section 4(1) of the Industrial Disputes Act, which reads as
follows:—
“The appropriate Government may, by notification in the
Official Gazette appoint such number of persons as it thinks
fit, to be Conciliation Officers, charged with the duty of
mediating in and promoting the settlement of industrial
disputes.”
53. Section 12 of the Industrial Disputes Act outlines the duties of the
Conciliation Officer, and is extracted as follows:—
“(1)Where any industrial dispute exists or is apprehended, the
conciliation officer may, or where the dispute relates to a public
utility service and a notice under section 22 has been given,
shall, hold conciliation proceedings in the prescribed manner.
(2)The conciliation officer shall, for the purpose of bringing
about a settlement of the dispute, without delay investigate the
dispute and all matters affecting the merits and the right
settlement thereof and may do all such things as he thinks fit
for the purpose of inducing the parties to come to a fair and
amicable settlement of the dispute.
(3)If a settlement of the dispute or of any of the matters in
dispute is arrived at in the course of the conciliation
proceedings, the conciliation officer shall send a report thereof
to the appropriate Government [or an officer authorised in this
behalf by the appropriate Government] together with a
memorandum of the settlement signed by the parties to the
dispute.
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(4)If no such settlement is arrived at, the conciliation officer
shall, as soon as practicable after the close of the investigation,
send to the appropriate Government a full report setting forth
the steps taken by him for ascertaining the facts and
circumstances relating to the dispute and for bringing about a
settlement thereof, together with a full statement of such facts
and circumstances, and the reasons on account of which, in his
opinion, a settlement could not be arrived at.
(5)If, on a consideration of the report referred to in sub-section
(4), the appropriate Government is satisfied that there is a case
for reference to a Board, [Labour Court, Tribunal or National
Tribunal], it may make such reference. Where the appropriate
Government does not make such a reference, it shall record and
communicate to the parties concerned its reasons therefor.
(6)A report under this section shall be submitted within
fourteen days of the commencement of the conciliation
proceedings or within such shorter period as may be fixed by
the appropriate Government:
Provided that, subject to the approval of the conciliation
officer, the time for the submission of the report may be
extended by such period as may be agreed upon in writing by
all the parties to the dispute.”
54. When the Industrial Disputes Act lays emphasis on the role of the
Conciliation Officer in facilitating a fair settlement between the parties—
and keeping in view the possibility that workmen may be victimised during
the course of such proceedings—Section 33 was introduced to mandate that
the management must obtain express permission or approval before taking
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any punitive action against workmen. The provision also entrusts the same
Conciliation Officer with supervisory authority to maintain status quo until
the proceedings conclude. In this context, the petitioner-management cannot
be permitted to circumvent the statutory mandate by raising hyper-technical
objections, which have consistently been rejected by the courts over time.
55. Anticipating a possible challenge to the authority of the Jaipur
Zila judgment (supra) on the ground that it was rendered by a coordinate
bench and therefore could not have disagreed with earlier decisions, and
that the Court ought to follow the prior rulings, Mr. N.G.R. Prasad, learned
counsel for the workmen, placed reliance on the Division Bench judgment
in Management of GEM Granites v. Presiding Officer, reported in 2024
SCC OnLine Mad 5377. In that case, a similar argument was expressly
rejected by the Bench. Paragraphs 10, 11, and 12 of the said judgment may
be usefully extracted below:—
“10. This leads us to the second limb of his arguments as to the
binding nature of the decisions of a Smaller Bench of the
Hon'ble Supreme Court, vis-a-vis the Larger Bench, on the High
Courts of the Country. It is the submission of the learned senior
counsel for the Management that even though the subsequent
decisions are rendered by a Smaller Bench, where explanations
and interpretations are rendered, the High Court is bound to
follow the subsequent decisions by the Smaller Bench of the
Hon'ble Supreme Court and cannot give a different
interpretation than the one made in the subsequent decision.
Apparently, the learned senior counsel is referring to the
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mandate under Article 141 of the Constitution of India, which
enshrines that the law declared by the Hon'ble Supreme Court is
binding on all Courts within the territory of India…..”
The learned senior counsel appearing for the workmen had
relied upon the decision in Sundeep Kumar Bafna's case (supra),
which answers the ground raised by the Management, wherein it
was held inter alia that when decisions of the Larger Benches
and contrary views of the Smaller Benches of the Hon'ble
Supreme Court are cited before the High Courts, the only option
available to the High Courts is to apply the earliest view. The
relevant portion of the judgment reads as follows:
“19. It cannot be overemphasized that the discipline demanded
by a precedent or the disqualification or diminution of a decision
on the application of the per incuriam rule is of great
importance, since without it, certainty of law, consistency of
rulings and comity of courts would become a costly casualty. A
decision or judgment can be per incuriam any provision in a
statute, rule or regulation, which was not brought to the notice of
the court. A decision or judgment can also be per incuriam if it is
not possible to reconcile its ratio with that of a previously
pronounced judgment of a co-equal or larger Bench; or if the
decision of a High Court is not in consonance with the views of
this Court. It must immediately be clarified that the per incuriam
rule is strictly and correctly applicable to the ratio decidendi and
not to obiter dicta. It is often encountered in High Courts that
two or more mutually irreconcilable decisions of the Supreme
Court are cited at the Bar. We think that the inviolable recourse
is to apply the view as the succeeding ones would fall in the
category of per incuriam.”
12. The aforesaid extract squarely covers the predicament when
decisions of the Larger Bench of the Hon'ble Supreme Court, as
well as the Smaller Benches with interpretations and further
explanations on the ratio decedendi are produced before the
High Courts, or when two different views on a ratio decedendi
by the Hon'ble Supreme Court are relied upon. In line with the
decision in Sundeep Kumar Bafna's case (supra), the High Court
would be obligated to follow the earliest view of the Hon'ble
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Supreme Court.”
56. Lastly, it cannot be said that the impugned order is a case of no
evidence. On the contrary, relevant documentary evidence—marked with
the consent of both parties—was very much on record, and the Labour
Court has appropriately appreciated the same while granting relief to the
workmen. Further, under Section 11(3)(d) of the Industrial Disputes Act, the
powers of the Labour Court may be supplemented as prescribed by the
appropriate Government. In this regard, Rule 39 of the Tamil Nadu
Industrial Disputes Rules, 1958, is relevant and reads as follows:—
“A Conciliation Officer, Board, Court, Labour
Court or Tribunal, or an Arbitrator may call for,
admit or accept any evidence at any stage and in
any manner, which in equity and good conscience
he thinks fit.”
57. Relying on the same evidentiary framework under the Industrial
Disputes Act, Justice M. Srinivasan (as he then was), in S. Ramaiah
Mudaliar Bros v. The Presiding Officer, Industrial Tribunal, Madras,
reported in 1992 (1) LLJ 9, upheld the validity of an award even though the
workmen had filed affidavits that were not subjected to cross-examination
by the management.
58. In view of the foregoing discussion, W.P. No. 2948 of 2020 stands
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dismissed. Consequently, W.M.P. Nos. 3428 of 2020 and 4778 of 2023 are
also dismissed. However, as Respondent No. 40 is reported to be deceased
and the petitioner has not taken steps to bring his legal representatives on
record, it is hereby directed that the amount awarded under the impugned
order in C.P. No. 43 of 2012 (relating to Late G. Ashokan, son of
Govindaraju) shall be disbursed to his legal heirs, without driving them to
initiate separate proceedings. There shall be a cost of Rs.20,000/- payable
by the petitioner-management to the learned counsel appearing for the
respondents.
02.04.2025
ay
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation : Yes / No
To
The Presiding Officer,
Additional Labour Court,
Coimbatore.
DR. A.D. MARIA CLETE, J
ay
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Pre-Delivery Judgment made in
and
WMP No.3428 of 2020 and 4778 of 2023
02.04.2025
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