@JUDGMENTTAG-ORDER
Honourable Mr. Justice K. Chandru
1. Both writ petitions came to be posted before this Court on being specially ordered by the Hon''ble Chief Justice vide order dated 10.08.2011.
2. W.P.No.16139 of 2009 is filed by the workmen represented by the General Secretary, Bharathiya Employees Mazdoor Sangh, challenging the
Award passed by the Industrial Tribunal in I.D.No.100 of 1998 dated 26.05.2000. They seeks to set aside the Award in so far as it had held that
the transfer of the 8 workers covered by the reference was justified and that they are not entitled for any relief. The writ petition was admitted on
22.09.2000.
3. Thereafter, the Management of M/s.Gem Granites have filed the second writ petition viz., W.P.No.17664 of 2001, challenging an Award
passed in Complaint No.1 of 2000 made by the Tribunal dated 22.06.2001. In that case, the Tribunal after trial allowed the complaint made by
the workmen and held that the dismissal order in violation of Section 33 of the I.D. Act is void. That writ petition was admitted by this Court on
26.09.2001. Pending the writ petition, this Court granted an interim stay on 28.02.2002.
4. When that matter came up on 12.10.2004, this Court directed the Management to pay two months'' salary in terms of Section 17-B of the
Industrial Disputes Act,1947 except one worker T.V. Shanmugam, who has already settled his account. Thereafter, this Court in
WPMP.No.11537 of 2005 further gave a direction to pay the last drawn wages to all the workmen in terms of Section 17-B of the I.D. Act
starting from April 2006 till the final disposal of the writ petition.
5. For the sake of convenience, parties are referred to as the Union, Workmen and the Management as the case may be. In view of the
interconnectivity between the Award in the main ID and the Award in the complaint, which respectively challenged in both writ petitions, they were
heard together and a common order is passed.
6. The facts leading to the Industrial Dispute as well as the complaint are as follows:
Bharathiya Employees Mazdoor Sangh, a trade Union in respect of the factory at Injambakkam was formed during August, 1997. It conducted its
Flag Hoisting function on 27.08.1997. Prior to this, there was a Union by name Gem Granites Employees Union. That Union was formed with the
full aid and patronage of the Management. The formation of the new Union was not able to be digested by the Management. Within one week of
its formation, they transferred all the Union leaders who are workmen covered in this writ petition to Ilkal at Karnataka State. Those workers who
were transferred and their designation in the Union are P. Bhaskaran (Working President), R. Varadhan (Vice President), M. Shankar (Organising
Secretary), M. Selvaraj (Executive Member), T.V. Shanmugham (Secretary), K. Rajendran (Assistant -Secretary), V.K. Prakasam (Treasurer)
and S. Jacob (Executive Member). Out of this, M/s. M. Selvaraj and S. Jacob are Helpers and the others are Operators under the management.
7. The trade Union raised an Industrial Dispute against the Management''s unfair labour practice including the illegal transfer of the 8 workers. The
Deputy Commissioner of Labour -II, Chennai as he could not bring about any mediation sent a failure report u/s 12(4) of the I.D. Act to the State
Government. The State Government on consideration of the failure report referred the dispute for adjudication by the Industrial Tribunal at Chennai
vide G.O(D)472 Labour and Employment Department, dated 02.07.1998.
8. The Order of reference made to the Tribunal was ""whether the action of the Management in transferring 8 workers from Chennai to the branch
factory at Karnataka was justified and if not, to what relief they are entitled to?
9. The said dispute was taken on file by the Industrial Tribunal as I.D.No.100 of 1998 and notice was issued to the Management. Even while the
dispute was pending, charge memos were given to each worker. The charge levelled against the workers was that they have disobeyed the orders
of transfer. They were asked to show cause as to why disciplinary action should not be taken against them. The workmen contended that already
conciliation proceedings regarding their transfer was pending before the Conciliation Officer and a failure report had also been sent to the State
Government. Therefore, even before the State Government can decide the issue, the Management should not precipitate the matter by giving the
charge memos. The transfer orders were not valid as it would amount committing ''unfair labour practice'' set out u/s 2(ra) prescribed under V
Schedule which is prohibited by Section 25T of the I.D. Act. When the workers tried to report at the factory at Injambakkam, it was found that
their time cards have been removed from the time office. The Management appointed an Enquiry Officer. It was on the basis of the enquiry
proceedings, which was conducted on different dates, a finding was given by the Enquiry officer. Subsequently, second show cause notices were
issued on 24.09.1998. After the workers'' explanation, dated 01.10.1998 was received and considered, they were dismissed by orders dated
28.11.1998.
10. In the dismissal orders, it was stated that Standing Order 20 enabled the Management to transfer a worker from one Station to another or
from one establishment to another or from one State to another provided the wages, grade, continuity and other condition of service are not
adversely affected. In case of transfer from one state to another, reasonable notice should be given and reasonable joining time should be given. As
the dismissals were made during the pendency of the I.D. No.100/1998 before the Industrial Tribunal, Chennai, the Management sought for
express permission u/s 33(2)(b) of the I.D. Act for dismissing the workers. Those petitions were numbered as Approval Petition Nos.61 to 68 of
1998. But for reasons best known, the Management withdrew those applications on 04.04.2000, though it was claimed that it was without
prejudice to their rights. At the time of withdrawal of the petitions for approval, the Industrial Dispute in I.D.No.100 of 1998 relating to legality of
the transfers were still pending before the Tribunal and the trial was in progress. But, the Tribunal in the ID passed an Award only on 26.05.2000
and it held that the transfer orders were valid and the workmen are not entitled for any relief.
11. Therefore, the workmen filed a complaint u/s 33A of the I.D. Act against their dismissals done without approval. Their complaint was taken on
file as Complaint No.1/2000 and notice was issued to the Management. The Management filed a counter statement on 03.07.2000. Unfortunately,
even though the complaint was received by the Tribunal, the ID was separately tried and disposed of by the Industrial Tribunal on 26.05.2000.
Thereafter, the enquiry into the complaint was continued by a subsequent Tribunal and after the trial in the complaint, an Award was passed on
22.06.2001 that too exactly after one year and one month. The Tribunal held that their dismissals were not justified. By the Award dated
22.06.2001 it held that the dismissal was void ab initio and the workmen were entitled to be reinstated with continuity of service. While the trade
union came forward to challenge the award made in I.D.No.100 of 1998 dated 26.5.2000 in the first writ petition, the Management have come
forward to challenge the Award made in Complaint No.1 of 2000 dated 22.6.2001 in the second writ petition.
12. In the Industrial Dispute (I.D.No.100 of 1998), on behalf of the Workmen one T.V. Shanmugham (who is the 6th respondent in
W.P.No.17664 of 2001) was examined as W.W.1. It is now stated by the Management that the said worker had settled his claim and nothing
survives in respect of his claim. This fact is not seriously disputed by the Learned Counsel for the workmen. On behalf of the Management, no oral
evidence was let in. While the Union filed 16 documents, which were marked as Exs.W1 to W16, the Management filed 12 documents, which
were marked as Exs.M1 to M12.
13. The Tribunal held that the Management has got power to transfer the workmen from one station to another station. The Tribunal also
appreciated the argument of the Management that if small groups of people are allowed to form separate trade unions, it will lead to multiplicity of
unions and will hamper the administrative functions of the employers. The Tribunal also brushed aside the evidence of W.W.1 who stated that his
school going daughter was threatened by two rowdies sent by the Management. It held that by mere filing of such complaints, it cannot be
concluded that such rowdies were set up by the Management. It also held that Clause 20 of the Certified Standing Order applied to the case.
Further the exhibit in Ex. M7 a letter from Karnataka Unit at Ilkal seeking for more skilled workers as there was shortage showed that there was
no lack of bona fides in the action of the management. Since the service conditions of the workmen were not in any way affected, it held that the
Court cannot sit on appeal over the administrative reasons for transfer and upheld the order of transfer.
14. In the complaint before the Tribunal, no oral evidence was let in on both sides. On the side of the workers, 17 documents were filed and were
marked as Exs.W1 to W17. On the side of the Management, enquiry proceedings in respect of all the workers were filed and marked as Exs.M1
to M134. The Tribunal after referring to the pleadings of the parties found that there was no malafide in the order of transfer. The Tribunal was also
made aware of the Award passed in I.D.No.100 of 1998 dated 26.05.2000 by which, the transfers were held to be valid. Though before the
Tribunal, the Management after referring to the judgment of the Supreme Court reported in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh
Chand and Another, contended that mere withdrawal of the approval petition can only give a cause of action for filing a compliant, but even on
such complaint u/s 33A, the Tribunal will have to go into the merits of the dispute. Referring to Punjab Beverages case, the Tribunal held that
notwithstanding the finding that there was no malafide regarding transfer, but the enquiry conducted by the Management was illegal since the
workmen were not given subsistence allowance during the said period of their non-employment from September 1997 and till the date of dismissal
on 28.11.1998, they were made to starve and therefore, they were unable to defend themselves in the enquiry and the denial of fair play will result
in enquiry being held opposed to the rule of natural justice. For this purpose, the Tribunal also referred to the judgments reported in 1988 II LLN
260 : 1999 II LLN 640. Even after finding non compliance of Section 33 of the I.D. Act, the Tribunal went into the validity of the enquiry and held
by a cryptic Award that the dismissals of the workmen were not valid. Hence, they were directed to be reinstated in service with all attendant
benefits by its Award.
15. When the matter came up for final disposal, this Court suggested certain terms for compromise between the parties. For that purpose, the
matters were adjourned for more than three times. But parties are at variance and no compromise was possible. Hence the matters were heard at
length.
16. An additional affidavit was also filed by the Management claiming that some of the workers concerned were employed elsewhere and they are
being paid their last drawn wages u/s 17B of the I.D. Act. The Management was incurring losses due to stiff competition in the international
market. Hence they wanted this Court to take notice of these factors while passing final orders in the writ petitions.
17. Mr. A.L. Somayaji, learned Senior Counsel referred to a judgment of the Supreme Court reported in (2001) 2 SCC 289 [Addisons Paints
and Chemicals Ltd. v. Workmen Represented by the Secretary (A.P. & C.) Assistants'' Association and another] for contending that in case of
transfer, the workmen should have reported for duty and could have raised a dispute thereafter and agitated the matter. In that case, the Supreme
Court found that there was no justification for the workmen not reporting for duty at the transferred place.
18. In the present case, both Tribunals found there was no malafide in the orders of transfer. The evidence let in by the workmen in the ID was
very weak and it did not throw light on the victimisation aspect of the transfers. It was only some of the office bearers have been transferred while
others were retained. Therefore, those findings cannot be dislodged in a writ petition filed under Article 226 of the constitution.
19. But at the same time, during the pendency of the conciliation and adjudication in the Industrial Dispute in I.D.No.100 of 1998, the
Management had proceeded with the enquiries and dismissed the workers. Though they had filed approval petitions in A.P.Nos.61 to 68 of 1998
seeking prior approval u/s 33(1)(b), for reasons best known, they withdrew those approval petitions. This had enabled the workmen to file a
complaint u/s 33A of the I.D. Act as there was a clear case of contravention of Section 33(1)(b) of the I.D. Act. The complaint was held to be
maintainable.
20. At the time when the Tribunal heard the complaint, the law that was prevailing was the judgment of the Supreme Court in Punjab Beverages
case, wherein the Supreme Court held that even if there is infraction of provisions of Section 33, in a complaint u/s 33-A, the Tribunal was bound
to go into the merits of the dispute and it cannot hold that violation of Section 33 will result in automatic restoration of service. This Award in
I.D.No.100/98 of the Tribunal was dated 26.05.2000. The Award in complaint No.1 of 2000 was dated 22.06.2001. The judgment in Punjab
Beverages case came to be overruled by a constitution Bench of the Supreme Court, dated 17.01.2002 in Jaipur Zila Sahakari Bhoomi Vikas
Bank Ltd. Vs. Ram Gopal Sharma and Others, . In that case, the Supreme Court in paragraph 13 held as follows:
13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of
Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially
complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment u/s 31(1) with imprisonment for a term
which may extend to six months or with fine which may extend to Rs 1000 or with both. This penal provision is again a pointer of the mandatory
nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied
if an order of discharge or dismissal passed u/s 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing
an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said
proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions
contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It
is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or
disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention
of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be
such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)
(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer
during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the
provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged
misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision
cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of
the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.
21. But unfortunately, the judgment of the Jaipur Zila Case was not available before the subsequent Tribunal. Hence, it was forced to go into the
merits of the case and rendered a finding. It found since workmen were kept out of employment for more than one year without any allowance,
they were unable to defend themselves in the enquiry. But all these exercise was unnecessary. Both the Tribunals while passing Awards in the ID
and the complaint fell into error by attempting to go into the so called merits of the case. Even while doing that exercise, the second Award of the
Tribunal was not satisfactory as by a one paragraph, it had concluded the issue.
22. However in view of the authoritative pronouncement of the constitution Bench of the Supreme Court in Jaipur Zila case (cited supra), it is
unnecessary to go into the merits of the dismissals since infraction of Section 33 (in the present case 33(1)(b)) will clearly make such orders void
ab initio. As regarding going into the merits of the case in Jaipur Zila case, it was observed in paragraphs 14 to 16 which are as follows:
14. Where an application is made u/s 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 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 the 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 the 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 u/s 33-A challenging the order granting approval on any of the grounds available
to him. Section 33-A 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 u/s 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set
aside u/s 33-A and that till such time he should suffer misery of unemployment in spite of the 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 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above,
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 u/s 33-A, cannot be accepted. In our
view, not making an application u/s 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 u/s 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 u/s 33-A notwithstanding the
contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint u/s 33-A or
to raise another industrial dispute or to make a complaint u/s 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 u/s 33-A to challenge the approval granted, it
cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside u/s 33-A. There is nothing in
Sections 31, 33 and 33-A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes.
(Emphasis added)
23. Subsequent to the Jaipur Zila case, the Supreme Court had an occasion to decide a similar case and set aside an Award passed by a Tribunal
which relied on the Punjab Beverages case. The Supreme Court in United Bank of India v. Sidhartha Chakraborty reported in (2007) 7 SCC
670, in paragraph 7 held as follows:
7. As has been noted in the said judgment, the proviso to Section 33(2)(b) of the Act affords protection to a workman to safeguard his interest
and it is in the nature of a shield against victimisation and unfair labour practice by the employer during pendency of an industrial dispute. That being
so, the judgment of the learned Single Judge as affirmed by the Division Bench does not suffer from any infirmity.
24. It was contended by Mr. A.L. Somayaji, learned Senior counsel that at the relevant time when the management took decision to dismiss the
workers, the law prevailing was only Punjab Beverages case''s case (cited supra). Therefore, the Tribunal in the complaint u/s 33A had to go into
the merits of the case and having found both in the industrial dispute and in the complaint that the dismissals were legal, in the complaint the
Tribunal ought not to have ordered reinstatement of workers. The Award in the complaint is ex facie illegal. However, it must be noted that in
Jaipur Zila case (cited supra), the law relating to violation of Section 33 by employer was discussed by the Constitution Bench and the Punjab
Beverages case''s case had been specifically overruled. Hence that is the law of the land with reference to interpretation of contravention of Section
33.
25. The Supreme Court in Jaipur Zila case did not order any prospective application of its own ruling. If the Supreme Court had wanted, it could
have done so as done in the case of Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc.
etc., . In that case in paragraph 125(2)(b), the Supreme Court had specifically declared as follows:
125.The upshot of the above discussion is outlined thus:
(1) omitted
(2)(a) omitted
(b) Inasmuch as the impugned notification issued by the Central Government on 9-12-1976 does not satisfy the aforesaid requirements of Section
10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no
order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal
or court including a High Court if it has otherwise attained finality and/or it has been implemented.
(Emphasis added)
In the absence of any prospective application of the judgment, the law relating to Section 33 must held to be the same at all times is the law
declared by the Supreme Court in Jaipur Zila case. Therefore, this Court is unable to accept the contentions made by the learned Senior Counsel.
26. The learned Senior Counsel also argued that since in the main I.D.No.100 of 1998, the transfers were held to be valid and workers are not
entitled for any relief and even in the subsequent complaint, the transfers were held to be legal and the Tribunal ought not to have granted any relief.
The findings in the Award in the industrial dispute which was produced before the second tribunal must have binding effect. Even this argument
cannot be held to be valid in view of the pronouncement of the Supreme Court in Engineering Laghu Udyog Employees'' Union Vs. The Judge,
Labour Court and Industrial Tribunal and Another, . In that case, the Supreme Court held that violation of Section 33(2) makes the dismissal order
void. Therefore in a reference u/s 10 of the I.D. Act, the Tribunal cannot render a finding on the misconduct and bring life into the dead. It is
necessary to refer to a the following passages found in paragraphs 13 and 14, which are as follows:
13.When in terms of the proviso appended to clause (b) of sub-section (2) of Section 33 of the Act, an approval is sought for and is refused, the
order of dismissal becomes void. If an approval is not obtained, still, the order of punishment cannot be given effect to. It is, therefore, not correct
to contend that the Tribunal in a reference u/s 10 of the Act, when passes an order recording a finding of misconduct, brings life into the dead.
Unfortunately, the Court did not take notice of the binding decisions in Motipur Sugar Factory case 8 and Firestone case9.
14.We may further notice that P.H. Kalyani case2 has also recently been followed by another Constitution Bench in Jaipur Zila Sahakari Bhoomi
Vikas Bank Ltd. v. Ram Gopal Sharma 17."" In view of the above, the contention raised by the learned senior counsel has to necessarily fail.
27. Therefore, it is an undeniable fact that the workmen were dismissed without seeking the express permission from the Tribunal before which the
ID relating to their dispute regarding transfer was still pending. In the light of Jaipur Zila case, the Award in Complaint No.1 of 2000 dated
22.06.2001 is legal, just and proper. Hence, W.P.No.17664 of 2001 stands dismissed. The workmen are entitled to get wages from the date of
dismissal till the date of their restoration to service with all attendant benefits and also restoration to service in the same unit in which they were
initially employed. this Court is not inclined to order compensation in lieu of reinstatement on the basis of a recent affidavit filed by the management
as the workmen did not have the benefit of repudiating it since it was filed on the date on which the orders were reserved in the writ petitions.
28. In W.P.No.16139 of 2000, the Labour Court had upheld the transfer of the workmen and rejected the dispute by the Union. Since in both the
Award as well in the subsequent complaint, the Tribunals have recorded there was no malafide and the Management has power to transfer the
workmen from one Station to another station, this Court is not inclined to interfere with that Award in I.D.No.100 of 1998, dated 26.5.2000.
Hence, W.P.No.16139 of 2000 filed by the Trade Union also will stand dismissed.
29. In the result, both the writ petitions are dismissed with the directions indicated above. No costs.
