Madras High Court
The Management vs Thiru T.V.Mani on 24 April, 2025
W.P.No.5335 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
RESERVED ON : 04.04.2025
PRONOUNCED ON : 24.04.2025
PRESENT:
THE HON’BLE DR. JUSTICE A.D. MARIA CLETE
W.P.No. 5335 of 2020
and
W.M.P.No.6465 of 2020
The Management
Tamil Nadu State Transport Corporation (Villupuram) Ltd,
Kanchipuram Region,
Ponnerikarai,
Chennai – Bangalore National Highroad,
Kanchipuram- 631552. ….Petitioner
Vs.
1.Thiru T.V.Mani
No.348, Udayar Street,
Minnal Post, Arakonam Taluk,
Vellore.
2. The Special Deputy Commissioner of Labour,
D.M.S.Compound,
Chennai ….Respondents
Prayer in W.P.
To pass a Writ of Certiorari or any writ, order or direction to call for the records
of the 2nd Respondent made in A.P.No.218/2014 dated 05.07.2017 and to quash
1/13
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
W.P.No.5335 of 2020
the same as illegal and against the provisions of the Industrial Disputes Act,
1947 and pass any other orders as may be deem fit in the interest of justice.
Prayer in WMP
To pass an order of interim stay of all further proceedings pursuant to the order
of the 2nd respondent in A.P.No.218/2014 dated 5.7.2017 pending disposal of the
main writ petition.
Appearance of Parties:
For Petitioner : Mr.M.Aswin, Advocate
For Respondent 1 : M/s. V.S.Jagadeesan and E.Elangovan, Advocates
For Respondent 2 : Mr.K.Suresh, Govt. Advocate
JUDGMENT
Heard.
2.The writ petitioner is a State-owned Transport Corporation. In the
present writ petition, the petitioner challenges the order dated 05.07.2017 passed
by the 2nd Respondent in A.P. No. 218 of 2014, whereby approval sought under
Section 33(2)(b) of the Industrial Disputes Act, 1947, was declined.
3.When the writ petition was listed on 12.03.2020, notice of motion was
ordered. Thereafter, on 07.02.2025, this Court suggested that both parties
explore the possibility of an amicable settlement. Pursuant thereto, by order
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
dated 10.02.2025, the parties were directed to appear before the Mediation
Centre on 17.02.2025. However, the learned Mediator submitted a report dated
03.03.2025 stating that the efforts at mediation had failed and no settlement
could be arrived at between the parties.
4.The case of the petitioner is that the 1st Respondent was employed as a
Conductor in the Kancheepuram Region and had unauthorizedly absented
himself from duty with effect from 22.04.2013 without obtaining prior
permission. According to the management, such unauthorized absence
constituted misconduct under Standing Order No. 24(6). A charge memo dated
10.07.2013 was issued, alleging continuous unauthorized absence from
22.04.2013 until the date of the proposed disciplinary action.
5.A domestic enquiry was initiated, and an Enquiry Officer was
appointed. The Enquiry Officer submitted his report dated 01.10.2013, holding
that the charges stood proved. Upon issuance of a memo calling for explanation
to the enquiry findings, the 1st Respondent failed to submit any reply.
Consequently, a second show cause notice dated 28.02.2014 was issued,
proposing the punishment of dismissal from service. As there was no response
from the 1st Respondent, the management proceeded to pass an order of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
dismissal dated 24.09.2014.
6.Simultaneously, a sum of Rs.6,034/- was tendered to the 1st
Respondent by way of cheque towards one month's wages, and an application
under Section 33(2)(b) of the Industrial Disputes Act, 1947, seeking approval of
the dismissal, was filed before the 2nd Respondent, before whom conciliation
proceedings were stated to be pending.
7.The 2nd Respondent took up the approval petition on file as A.P. No.
218 of 2014 and issued notice to the 1st Respondent. In response, the 1st
Respondent filed six documents, which were marked as Exs. P1 to P6. On
behalf of the petitioner management, 23 documents were filed and marked as
Exs. R1 to R23.
8.Upon consideration of the materials placed on record, the 2nd
Respondent found that the management had not produced the enquiry
proceedings. In the absence of the same, the authority held that it was not
possible to determine whether the domestic enquiry had been conducted in
accordance with the Certified Standing Orders and the principles of natural
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
justice. It was further observed that the materials relied upon in the enquiry did
not disclose any prima facie evidence supporting the charge.
9.The authority also took note of the fact that the 1st Respondent had
produced medical certificates in justification of his absence. In such
circumstances, the 2nd Respondent held that the proper course for the
management would have been to refer the 1st Respondent to a Medical Board,
obtain a report therefrom, and only thereafter, upon affording him a reasonable
opportunity of being heard, pass an order of dismissal. The failure to adopt such
a procedure, according to the 2nd Respondent, vitiated the disciplinary action.
10.The authority also placed reliance on the judgment of this Court in
Tamil Nadu State Transport Corporation v. Joint Commissioner of Labour,
reported in 2011 LLJ 646 (Mad), wherein it was held that dismissal from service
on the ground of unauthorized absence may be disproportionate and could
amount to victimization of the workman.
11.With regard to the requirement of payment of one month’s wages, the
authority found that while the last drawn wages of the 1st Respondent amounted
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
to Rs.7,099/-, the management had only tendered a sum of Rs.6,034/. Therefore,
the payment could not be construed as equivalent to one month's wages as
mandated under Section 33(2)(b) of the Industrial Disputes Act, 1947.
12.As to the requirement of simultaneous filing of the approval petition
along with the order of dismissal, the authority observed that while the
dismissal order was dated 24.09.2014, the approval petition was filed only on
30.09.2014. Hence, it could not be construed as a filing simultaneous with the
order of termination, as required under the settled legal position.
13.Learned counsel for the petitioner placed reliance on the decision of
this Court in The Management of Metropolitan Transport Corporation
(Chennai) Ltd. v. Thiru A. Ramesh Babu and another in W.P. Nos. 33497 to
33505 of 2015, dated 03.02.2016, wherein a learned Judge, while allowing the
writ petitions and setting aside the order of the approving authority, directed the
management to consider imposing an appropriate punishment other than
dismissal.
14.He further relied upon the judgment of the Hon’ble Supreme Court in
John D’Souza v. Karnataka State Road Transport Corporation, reported in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
(2019) 18 SCC 47, wherein it was held that proceedings under Section 33(2)(b)
of the Industrial Disputes Act, 1947, are summary in nature and do not extend to
examining the proportionality of the punishment, as such an exercise falls
within the scope of Section 11A of the Act. Specific reference was made to
paragraphs 37 and 38 of the said judgment, which elucidate this legal position.
“37. The Labour Court or Tribunal, therefore, while holding
enquiry under Section 33(2)(b) cannot invoke the adjudicatory
powers vested in them under Section 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 11A
of the Act.
38. Consequently, the Labour Court shall in the 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 11A 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 Pvt. Ltd. or Lalla Ram’s cases, then it
may look into the evidence adduced by the parties for the purpose
of formation of its prima facie opinion.”
15.Per contra, the learned counsel for the 1st Respondent placed reliance
on various judicial pronouncements in support of distinct propositions of law
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
applicable to the case at hand. He further drew the attention of the Court to the
relevant Minimum Wages Notification to establish the actual wages that were
payable to the 1st Respondent as on the date of his dismissal.
Delay in filing approval petition cannot be condoned:
1. Palani Vs. TNSTC (VPM) Ltd, Vellore Region & anr. in
W.A.No.32 of 2022 (DB) dt. 23.12.2022
2. The TNSTC (VPM) Ltd, Cuddalore Region Vs. J.Govindan & anr.
in W.P.No.12945 of 2019 dt. 16.11.2023
3. SETC Vs. JCL (Conciliation) reported in CDJ 2012 MHC 606
Shortage of one month wages will not amount to complying with the
payment of one month pay or pay in lieu of notice:
4.G.Vellaichamy Vs. The TNSTC (Madurai) Ltd Vs. The JCL
(Conciliation) & anr. reported in 9.1.2014 reported in CDJ 2014
MHC 3115
5. The TNSTC (Madurai) Ltd Vs. The JCL (Conciliation) & anr.
reported in CDJ 2014 MHC 4923
6. D.Prasad Vs. The General Manager, MTC reported in CDJ 2014
MHC 3774
7. TNSTC (VPM) Ltd, Vellore Vs. The JCL (Conciliation) reported in
CDJ 2015 MHC 052
8. TNSTC (VPM) Ltd Vs. JCL, Chennai in W.P.No. 11939 of 2006 dt.
28.4.2014
Absence without leave, the punishment of dismissal is too harsh
9. TNSTC (Madurai) Ltd Vs. The Presiding Officer, Industrial
Tribunal, Madras & anr. reported in 2005 (4) CTC 390
10. TNSTC, VPM Division-I Vs. JCL (Conciliation) & anr.in
W.P.No.244 of 2006 dt. 24.9.2010
11. TNSTC (KUM) Ltd, Trichy Division, Trichy Vs. P.Dhanraj & anr.
in W.P.No. 31429 of 2018 dt. 27.11.2023
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
16.It is pertinent to note that the Hon’ble Supreme Court has elaborately
considered the scope and import of the proviso to Section 33(2)(b) of the
Industrial Disputes Act, 1947, in Calcutta State Transport Corporation v.
Md. Noor Alam, reported in AIR 1973 SC 1404. In the said judgment, the
Court also referred to the earlier decision in Strawboard Manufacturing Co.
Ltd. v. Gobind, reported in 1962 (1) LLJ 420, and in paragraph 4 of the
judgment, the following observations were made:—
" 4. .........The employer's conduct should show that the three
things contemplated under the proviso are parts of the same
transaction. (See Strawboard Manufacuting Co. Vs. Goving
(1962) Supp 3 SCC 618 – (AIR 1962 Scheduled Caste 1500) In
P.H.Kalyani Vs. M/s.Air France, Calcutta, (1964) 2 SCR 104 –
(AIR 1963 Scheduled Caste 1756) the order of dismissal was
passed on May 28, 1960 and was communicated to the employee
on May 30,1960. The wages were offered to him at the same time
when the order was communicated. An application was made
under S.33(2)(b) on the same day. It was held that the application
was in accordance with the proviso to S.33(2)(b). This decision
shows that similar action has to be taken in these matters but that
does not mean that all the three things mentioned before should be
done on the same day. It is the conduct of the employer that has to
be considered from the point of view of finding out whether the
dismissal or discharge, payment of wages and making of the
application for approval form a part of the same transaction. A
difference of a day in doing one thing or the other may not be of
materials consequence so long as it is clear that the employer
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
meant to do all the three things as part of one and the same
transaction. No hard and fast rule can be laid down in these
matters. Each case must be decided on its own facts." (Emphasis
added)
17.The Hon’ble Supreme Court, while interpreting the expression "same
transaction" in the context of Section 33(2)(b) of the Industrial Disputes Act,
has held that its meaning must be determined based on the facts and
circumstances of each case. In Calcutta State Transport Corporation v. Md.
Noor Alam, reported in AIR 1973 SC 1404, the Court held that a delay of one
day in filing the approval petition would not be of material consequence,
provided it was evident that the employer intended to ndertake all the requisite
steps—namely, dismissal, payment of wages, and filing of approval petition—as
part of a single, composite transaction. Reference was also made to the earlier
decision of the Supreme Court in Strawboard Manufacturing Co. Ltd. v.
Gobind, reported in 1962 (1) LLJ 420, wherein the Court rejected the
contention that approval must be obtained prior to the order of dismissal. It was
observed that the term "simultaneously" must be construed reasonably and not
with an unrealistic expectation of split-second precision. What is required is that
the three statutory requirements must be complied with promptly and without
undue delay. In the present case, however, the approving authority has
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
categorically found that there was an unexplained delay of 24 days in filing the
approval petition, and that the time gap was too long to satisfy the requirement
of simultaneity under the proviso to Section 33(2)(b) of the Act.
18.Though something could be said on the lack of power in interfering
with the penalty under Section 33(2)(b) by the authority, the other limbs of
Section 33(2)(b) i.e. Payment of one month wages as well as simultaneous filing
of the petition seeking for approval were not done by the writ petitioner
corporation. Those defects cannot be cured. Hence the writ petition lacks in
merits, accordingly will stand dismissed. Consequently, the Miscellaneous
Petition will also be dismissed. However, there will be no order as to costs.
24.04.2025
ay
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
To
1.The Management
Tamil Nadu State Transport Corporation
(Villupuram) Limited,
Kancheepuram Region,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
Ponnerikarai,
Bangalore National Highway,
Kancheepruam – 631 552.
2.The Special Joint Commissioner of Labour
DMS Office Compound,
Chennai – 600006.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:41 pm )
