Madras High Court
The Managing Director vs R.Koothan on 29 May, 2025
W.P.No.28211 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
RESERVED ON : 22.04.2025
PRONOUNCED ON : 29.05.2025
PRESENT:
THE HON’BLE DR. JUSTICE A.D. MARIA CLETE
W.P.No. 28211 of 2021
and
W.M.P.No. 29809 of 2021
The Managing Director,
Tamil Nadu State Transport Corporation (Salem) Ltd,
No.12, Ramakrishna Road,
Salem – 636 007. …Petitioner
Vs.
R.Koothan,
S/o. Ramasamy,
No.410, North Kattukottai,
Vellalappatti (PO)
Pethanaickenpalayam Taluk,
Salem – 636 114. ….Respondent
Prayer in W.P.
To issue a Writ or direction particularly in the nature of a Writ of Certiorari
calling for the records relating to the Order dated 29.04.2021 passed by the
Labour Court, Salem in C.P.No.73 of 2017 and to quash the same as illegal and
pass such further or other orders as this Hon’ble Court may deem fit and proper
in the circumstances of the case.
Prayer in W.M.P
To grant interim stay of the impugned order dated 29.04.2021 passed by the
Labour Court, Salem in C.P.No. 73 of 2017 pending disposal of the above writ
1/20
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W.P.No.28211 of 2021
petition.
Appearance of Parties:
For Petitioner: Mr.M.Aswin, Advocate
For Respondent: Mr.R.Dillikumar, Advocate
JUDGMENT
Heard.
2.The petitioner is a State-owned Transport Corporation. In the present
writ petition, the petitioner challenges the order dated 29.04.2021 passed by the
Labour Court, Salem, in C.P. No. 73 of 2017, whereby the Labour Court
computed a sum of Rs. 16,16,127/- as dues payable to the respondent, together
with interest at the rate of 6% per annum until the date of realisation. When the
writ petition was taken up for admission on 04.01.2022, notice was ordered
and, pending service of notice, an interim stay was also granted.
3.The core issue arising from the order dated 29.04.2021 passed by the
Labour Court in C.P. No. 73 of 2017 is whether there was a violation of Section
33(2)(b) of the Industrial Disputes Act, 1947, on account of the petitioner
corporation having failed to obtain approval from the competent authority
before whom a conciliation proceeding was allegedly pending at the time of the
respondent’s dismissal, thereby rendering the order of dismissal void ab initio
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and entitling the respondent to claim wages and other service benefits as if the
dismissal had never been effected.
4.In light of the aforesaid issue, when the matter was taken up on
21.06.2024, a learned Judge of this Court passed the following order:
“Learned Counsel for petitioner has circulated letter dated
16.11.2021 in Letter No.C1/29146/2021, given by Joint
Commissioner of Labour who is approval authority, stating that
as on 28.01.2010, there was no dispute between the union and the
Management. Learned Counsel for the respondent has requested
short accommodation to get instruction with regard to this letter.
“
5.Subsequently, when the matter was listed on 17.04.2025, this Court
passed the following order:
“Mr.Aswin, learned counsel appearing for the petitioner seeks
time to verify the pendency of the common dispute in
C1/37589/2007, dated 23.11.2007 as referred in Ex.P3 to Ex.P6
marked before the Trial Court.”
6.Pursuant to the above directions, learned counsel for the petitioner
corporation produced the following documents:
(a)8.10.2021 Letter from Management
(b)16.11.2021 Letter from DCL, Chennai
(c)2008 12 (3) Settlement
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7.In support of the aforesaid documents, an additional affidavit dated
22.04.2025 was also filed by the petitioner. Paragraphs 6, 7, 8, and 11 of the
said affidavit are reproduced below:
“6. I further submit that while deciding the computation in
C.P.No.73 of 2017, the Labour Court have held that there is
pendency of dispute and the said finding is on the strength of
Exhibit P3 to P6.
7. I further state that where in the Exhibit P4 to P6 which belongs to
Our region in respect other employees and in which the reference
number Letter No. C1/37589/2007, dated 23.11.2007 is wrongly
mentioned by our Management and it is irrelevant. Mistakenly, in a
routine way this number was mentioned in those exhibits and it is
incorrect number.
8. I further state that due to this confusion our Management vide
letter dated 08.10.2021 wrote the authority requesting to furnish the
details about the pendency of any common dispute. In turn the
authority under section 33(2)(b) of the ID Act replied that there is
no common dispute pending on 28.10.2010, which is the dismissal
date of the Respondent / workman.
11. I further submit that the above common dispute was resolved on
06.02.2008 vide settlement and after that dispute was raised by the
union on 2011 only.”
8.The respondent’s claim for wages following his dismissal dated
28.01.2010 was founded on the assertion that conciliation proceedings were
pending before the Deputy Commissioner of Labour at the time of his
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dismissal. It was contended that, in the absence of approval as required under
Section 33(2)(b) of the Industrial Disputes Act, the dismissal was rendered void
ab initio, thereby entitling him to be treated as continuing in service for all
purposes. In the claim petition filed in C.P. No. 73 of 2017, the respondent, in
paragraphs 5(b) and 7, stated as follows:
“5(b) The Respondent management gave a charge sheet fabricating
wrong and faulty reasons, vide Memo No. HOCL3-1350-D6-
TNSTC-2009 dated 06.05.2009 and terminated the petitioner by
conducting an unfair and unlawful domestic enquiry against natural
justice. The Opposite Party terminated the Petitioner vide its Memo
No. HOCL3-1350-D6-TNSTC-2008 Dt.28.01.2010.
(7) The Petitioner wandered and roamed here and there for his
reemployment. On his enquiry in the office of the Commissioner of
Labour, he was informed that the Opposite Party suppressed its
legal obligation and disobeyed the provisions laid down under
section 33(2) b of the Industrial Disputes Act, 1947, as a common
dispute was pending before for negotiation. It is an obligation that
dismissal orders passed by the employer have to be got approval.”
9.Upon issuance of notice by the Labour Court, the petitioner filed a
counter statement dated 17.03.2018. In the said statement, the petitioner did not
specifically deny the existence of pending conciliation proceedings that would
necessitate seeking approval from the Conciliation Officer under Section
33(2)(b) of the Industrial Disputes Act. The only relevant averments made in
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the counter statement are as follows:
“kDjhuu; 28/01/2010?y; gzp epWj;jk; bra;ag;gl;lij vjpu;jJ
; ve;j
tHf;Fk; jhf;fy; bra;ahky; gzp epWj;jk; mKypy; cs;s epiyapy;
nkw;go kD epiyf;fj;jf;fjy;y/ kDjhuu; mtuJ kDtpy; nkw;nfhs;
fhl;oa[ss
; khz;g[ik cr;rePjpkd;w jPu;gg; [ ,e;j tHf;fpw;F bghUe;jhj
xd;whFk;/ kDjhuupd; gzp epWj;j cj;jut[ epYitapy; cs;s nghJ
bjhHpw;jfuhW rl;lk; 33 2(b)?d; fPH; ve;j epthuzKk; nfhu ,ayhJ/”
“xU gzpePf;fk; bra;ag;gl;l bjhHpyhsp me;j gzpePf;fj;jpid vjpuj; ;J
gzpePf;fk; bra;ag;gl;l ehspypUe;J K:d;W tUl fhyj;jpw;Fs;
bjhHpw;jhth vGg;g ntz;Lk; vd;gij bjhHpw;jfuhW rl;lk;
tiuaWj;Js;sJ/ kDjhuupd; gzpepWj;jk; epYitapy; cs;s nghJ
neuoahf fzf;fPl;L kD jhf;fy; bra;Js;sJ epiyf;fj;jf;fjy;y/”
10.It is pertinent to note that neither the petitioner corporation nor the
contesting respondent produced any material before the Labour Court to
establish that a conciliation proceeding was, in fact, pending before the
Conciliation Officer with respect to collective demands of the workmen as on
the date of the respondent’s dismissal, i.e., 28.01.2010. Before the Labour
Court, the respondent examined himself as PW1 and marked twelve documents
on his side, which were taken on record as Exhibits P1 to P12. On behalf of the
petitioner corporation, one Mr. A. Pargathullah was examined as RW1, and
thirteen documents were filed and marked as Exhibits R1 to R13.
11.The respondent also produced four dismissal orders relating to other
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workmen, marked as Exhibits P3 to P6. In each of those cases, involving
temporary conductors or reserve drivers, approval applications had been filed
before the appropriate conciliation officers. However, the said orders—Ex.P3
dated 15.06.2011 (Deenathayalan), Ex.P4 dated 06.07.2011 (Ravikumar), Ex.P5
dated 29.07.2013 (M. Babu), and Ex.P6 dated 24.06.2014 (Govindasamy)—all
pertain to periods subsequent to the respondent’s dismissal, which took place
on 28.01.2010. None of these documents are contemporaneous with the
respondent’s dismissal. Nevertheless, the Labour Court, in paragraphs 8, 10,
and 11 of its order, held as follows:
“8. The learned counsel appearing for the petitioner states that
when the common dispute is pending for negotiation it is
mandatory on the part of the respondent to pay one month salary
and to make application for approval. But in this case
management violated the mandatory requirements contemplated
U/S 33 2(b) of the Industrial Dispute Act 1947 as they have not
paid one month pay to the petitioner and they did not make any
application for approval before the competent authority. Per
contra the learned counsel appearing for the respondent would
contend that as the petitioner is temporary employee it is not
necessary to comply the conditions found U/S 33 2(b) of
Industrial Disputes Act 1947.”
“10. The above provisions reads that payment of one month
wage and making application for getting approval from
competent authority is sine quo non for the management before
passing any dismissal order when any common dispute is
pending for negotiation between the unions of employees and
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employer. In this case admittedly one month wage was not paid
to the petitioner and management did not make application
before competent authority for getting approval. At this
juncture learned respondent counsel raised three contentions,
one is the condition found U/S 33 2(b) would not apply for
temporary conductors, second one is no common dispute was
pending during the relevant time. Third one is the petitioner had
not yet raised any industrial dispute as against his dismissal
order before court of law and there is no pre existing right
subsists for the petitioner.
11. In order to repudiate the contentions raised by the
respondent counsel the petitioner have produced Ex.P3 to Ex.P6
namely dismissal order of various employees of TNSTC,
wherein the management paid one month salary and made
application for getting approval as the common dispute was
pending between the employees and employers during the
relevant time.”
12.It is evident that the Labour Court has not recorded any specific
finding as to whether a conciliation proceeding was actually pending before a
Conciliation Officer in relation to the collective demands of the workmen of the
petitioner corporation as on the date of the respondent’s dismissal, i.e.,
28.01.2010. The respondent’s attempt to rely upon dismissal orders of other
similarly placed workmen, marked as Exhibits P3 to P6, is of little assistance,
as those orders pertain to later periods and are not contemporaneous with the
date of his dismissal. In a matter of this nature, the most crucial issue that ought
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to have been determined is whether any conciliation proceeding was, in fact,
pending on the date of the respondent’s dismissal.
13.Pursuant to the directions issued by this Court, the petitioner produced
a copy of the communication received from the Special Deputy Commissioner
of Labour, Chennai, bearing Letter No. C1/29146/2021 dated 16.11.2021. The
contents of the said letter are as follows:
“bghUs;: jkpH;ehL muR nghf;Ftuj;Jf; fHfk; (nryk;) ypl;/. ?
28/01/2010 md;W midj;J nghf;Ftuj;J fHfj;jpw;Fk;
bjhlu;g[ila bghJthd Common Dispute epYitapypUe;j
tptuk; nfhupaJ ? bjhlu;ghf ghu;it: jkpH;ehL muR
nghf;Ftuj;Jf; fHfk; (nryk;) ypl; fojk; ehs;: 08/10/2021
------
nkw;go bghUs; bjhlu;ghf 28/01/2010 md;iwa njjpapy;
bjhHpw;jhth VJk; epYitapy;iy vd;w tptuk;
bjuptpf;fg;gLfpwJ/
Sd/-
bjhHpyhsu; jdp ,iz Mizau;”
14.The petitioner-management also placed on record a copy of the
settlement dated 06.02.2008, entered into under Section 12(3) of the Industrial
Disputes Act, whereby the demands of the workmen were resolved before the
Special Deputy Commissioner of Labour. The terms and implications of the
said settlement were elaborated in paragraphs 9, 10, and 11 as follows:
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“9.It is humbly submitted that 10th Wage settlement had been
concluded under Section 12(3) of the Industrial Disputes Act, 1947
through negotiations with the Trade Union Councils regarding
wages and working conditions related thereto. Accordingly, the 9th
Wage Agreement with effect from 01.09.2003 validated up to
31.08.2008. Hence the Government had modified the periodicity
of five-years settlement into four years. Therefore, entered into a
new wage settlement effected from 1.9.2007 to 31.08.2010 arrived
on 06.02.2008.”
“10.It is humbly submitted that the conclusion para in the 10th
Wage settlement arrived on 06.02.2008 said that, “bjhHpwr; ';f';fspd;
gy;ntW nfhupf;iffs; kPJ ,g;ngr;Rthu;j;ijapy; rK:f Kot[
Vw;gl;Ls;sjhy; ,t;bthg;ge;jj;jpy; Kot[ fhzg;gl;l nfhupf;iffs; jtpu
,ju nfhupf;iffis bjhHpw;r';f';fs; jpUk;gg; bgWtjhf
xg;gf[ b; fhs;fpd;wd/”
11. I further submit that the above common dispute was resolved
on 06.02.2008 vide settlement and after that dispute was raised by
the union on 2011 only.”
15.It was therefore contended that, in view of the settlement dated
06.02.2008 entered into under Section 12(3) of the Industrial Disputes Act,
which was to remain in force until 31.08.2010, and considering that all the
recognised unions had withdrawn their residuary demands, no fresh demand
could have been raised during the subsistence of the said settlement.
Consequently, it was argued that there could not have been any valid
conciliation proceeding pending in relation to a collective dispute on the date of
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the respondent’s dismissal, namely, 28.01.2010.
16.In response, learned counsel for the respondent produced four orders
to demonstrate that the petitioner corporations had, in other instances, sought
approval from the Conciliation Officer in respect of various dismissal actions. It
was contended that such conduct implied the existence of ongoing conciliation
proceedings at the relevant time. It was further argued that the failure to seek
similar approval in the case of the respondent rendered the order of dismissal
invalid.
1.11.9.2012 Letter-notice 740/14114/tnstc/2011 R Chandrappa
2.13.06.2013 Letter-notice 183/3416/D6/tnstc/2012 M.Rajkumar
3.24.6.2014 Letter – notice 707/14326/D6/tnstc/2013 M.Govindsamy
4.18.10.2014 Letter – notice 522/12241/D4/tnstc/2013 S.Gandhi
17.In rebuttal to this contention, the petitioner, in paragraph 12 of the
additional affidavit, stated as follows:
“It is humbly submitted that in Dharmapuri Region of this
Corporation, unknowingly submitted their approval petitions before
the Authority and by mistakenly mentioned as No.C1/37589/2007,
dated. 23.11.2007 in the approval seeking petitions in respect of the
listed dismissed Employees.
i) Thiru. R.Chandrappa, Conductor, CR1015
ii) Thiru.M.Rajkumar, Daily Paid Conductor, DC7141
iii) Thiru. M.Govindsamy, Reserve Driver, RD0844
iv) Thiru.S.Gandhi, Conductor, CR1576”
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18.In this context, it is pertinent to refer to the judgment of the Hon’ble
Supreme Court in Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh
Chand, reported in (1978) 2 SCC 144, wherein the Court observed as follows:
“It cannot be said that where the application for approval is
withdrawn, there is a decision by the Tribunal to refuse to lift
the ban. The withdrawal of the application for approval stands
on the same footing as if no application u/s 33(2)(b) has been
made at all.”
19.Section 20 of the Industrial Disputes Act, 1947, which governs the
commencement and conclusion of proceedings, reads as follows:
“20. Commencement and conclusion of proceedings.
(1)A conciliation proceeding shall be deemed to have commenced
on the date on which a notice of strike or lock-out under section
22 is received by the conciliation officer or on the date of the
order referring the dispute to a Board, as the case may be.
(2) 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] [ Substituted by Act 36 of 1956, Section 15,
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for " or Tribunal" (w.e.f. 10.3.1957).] under section 10 during the
pendency of conciliation proceedings.”
20.The Supreme Court, in Management, Essorpe Mills Ltd. v.
Presiding Officer, Labour Court, reported in (2008) 7 SCC 594, has
categorically held that in the absence of a validly pending conciliation
proceeding on the date of dismissal, the provisions of Section 33 of the
Industrial Disputes Act would not be attracted. The relevant observation is as
follows:
“On the dates of dismissal of workmen no conciliation
proceeding was pending in the eye of law. Unless a conciliation
proceeding was pending at the time of dismissal of
workmen, Section 33 will not be attracted and there is no
question of seeking permission of the Conciliation Officer in
such a case.”
21.It is significant to note that the petitioner corporation, despite being
adequately equipped with legal advice, did not raise any contention on this
issue before the Labour Court. On the contrary, the petitioner now seeks to
argue the matter extensively before this Court as though it were a court of first
instance. It must be borne in mind that the relief sought is in the nature of a writ
of certiorari, which can only be granted where the impugned order suffers from
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an error apparent on the face of the record. Such an error must be demonstrated
based on the materials that were placed before the Labour Court. It is
impermissible to introduce fresh materials or to advance arguments not rooted
in the original record.
22.The Supreme Court, in Satyanarayan Laxminarayan Hegde v.
Millikarjun Bhavanappa Tirumale, reported in AIR 1960 SC 137, held as
follows:
“An error which has to be established by a long drawn process of
reasoning on points where there may conceivably be two opinions
can hardly be said to be an error apparent on the face of the record.
As the above discussion of the rival contentions show the alleged
error in the present case is far from self evident and if it can be
established, it has to be established by lengthy and complicated
arguments. We do not think such an error can be cured by a writ of
certiorari according to the rule governing the powers of the
superior court to issue such a writ.”
23.The Supreme Court, in T.C. Basappa v. T. Nagappa, reported in
AIR 1954 SC 440, laid down the principles governing the issuance of a writ of
certiorari in the following terms:
“An error in the decision or determination itself may also be
amenable to a writ of certiorari but it must be amanifest error
apparent on the face of the proceedings, e.g., when it is based on
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clear ignorance or disregard of the provisions of law. In other
words, it is a patent error which can be corrected by certiorari but
not a mere wrong decision.”
24.In Shivdev Singh v. State of Punjab, reported in AIR 1963 SC
1909, the Supreme Court held that there is nothing in Article 226 of the
Constitution that precludes a High Court from exercising its power of review—
an inherent power vested in every court of plenary jurisdiction—to prevent
miscarriage of justice or to correct grave and palpable errors. However, it must
be noted that the said judgment pertains to the limited scope of review and not
to the appellate jurisdiction of the Court. This position was subsequently
considered and clarified by the Supreme Court in Aribam Tuleshwar Sharma
v. Aribam Pishak Sharma, reported in (1974) 3 SCC 389, wherein it was
observed as follows:
“3 …It is true as observed by this Court in Shivdeo Singh v.
State of Punjab there is nothing in Article 226 of the Constitution
to preclude a High Court from exercising the power of review
which inheres in every court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave and pulpable errors
committed by it. But, there are definitive limits to the exercise of
the power of review. The power of review may be exercised on
the discovery of new and important matter or evidence which,
after the exercise of due diligence was not within the knowledge
of the person seeking the review or could not be produced by
him at the time when the order was made; it may be exercised
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where some mistake or error apparent on the face of the record is
found; it may also be exercised on any analogous ground. But, it
may not be exercised on the ground that the decision was
erroneous on merits. That would be the province of a court of
appeal. A power of review is not to be confused with appellate
power which may enable an appellate court to correct all manner
of errors committed by the subordinate court.”
25.Owing to the absence of proper assistance from both sides and the
Labour Court’s failure to consider the relevant legal and factual aspects while
arriving at a finding of violation under Section 33(2)(b) of the Industrial
Disputes Act, the impugned order passed in C.P. No. 73 of 2017 dated
29.04.2021 is found to be vitiated by error and liable to be interfered with. The
Labour Court appears to have proceeded on assumptions and presumptions,
rather than on a clear foundation of evidence. At the same time, this Court is
not inclined to consider the fresh materials produced by either party at this
stage to undertake a de novo determination of whether a valid conciliation
proceeding, relating to a collective dispute involving the petitioner corporation,
was pending before a Conciliation Officer as on 28.01.2010, and whether the
petitioner corporation failed to obtain the requisite approval under Section
33(2)(b). Since this issue goes to the root of the respondent’s entitlement to
maintain a claim petition under Section 33C(2), it is only appropriate that the
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matter be remitted for fresh consideration. Accordingly, the matter is remitted to
the Labour Court, Salem, for fresh disposal in accordance with law, after
affording due opportunity to both parties.
26.In view of the foregoing discussion, the writ petition in W.P. No.
28211 of 2021 is allowed. The order dated 29.04.2021 passed by the Labour
Court, Salem in C.P. No. 73 of 2017 is set aside. The claim petition in C.P. No.
73 of 2017 is remitted to the Labour Court, Salem, for fresh consideration in
accordance with law. Both parties are at liberty to adduce appropriate evidence
in support of their respective claims. The Labour Court shall endeavour to
dispose of the matter within a period of six months from the date of receipt of a
copy of this order. Consequently, the connected miscellaneous petition stands
closed.
27.Despite being equipped with sufficient legal resources and advice, the
petitioner corporation failed to raise the relevant issues before the Labour
Court, resulting in unnecessary protraction of the proceedings and compelling
the respondent to wait for nearly four years to know the outcome of his claim.
Accordingly, notwithstanding the fact that the order of the Labour Court is
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being set aside, a cost of Rs. 10,000/- is imposed on the petitioner corporation,
payable to the respondent.
28.Since the respondent had instituted the claim petition under Section
33C(2) of the Industrial Disputes Act on the premise of an alleged infraction of
Section 33(2)(b), it is open to him, if so advised, to raise an industrial dispute
under Section 2A(2) of the Act challenging his order of dismissal dated
28.01.2010. In such an event, he would have the opportunity to agitate the
matter on a broader canvass before the Labour Court.
29.05.2025
ay
NCC : Yes / No
Index : Yes / No
Speaking Order / Non-speaking Order
To
The Presiding Officer,
Labour Court, Salem.
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DR. A.D. MARIA CLETE, J
ay
Pre-Delivery Judgment made in
and
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29.05.2025
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