Indrajit Mahanty, J.@mdashSince both the writ applications relate to the common/similar orders passed u/s 33(2)(b) of the Industrial Dispute Act, against two different employees, namely, Radheshyam Barik (O.P. No. 2 in W.P.(C) No. 14248 of 2008) & Sri Akrura Dhurua (O.P. No. 2 in W.P.(C) No. 14249 of 2008), the same were heard together & are being disposed of by this common judgment.
2. M/s. Orissa Power Generation Corporation Ltd. (Petitioner in both the cases) has sought to challenge the Order Dated 10.9.2008 passed by the Conciliation Officer-Cum-Assistant Labour Commissioner (Opp. Party No. 1) rejecting the application dated 21.6.2007 filed by the Petitioner-company u/s 33(2)(b) of the Industrial Disputes Act. 1947 (in short ''the Act'') in which, prayer has been made for approval of their action in awarding punishment of dismissal against Opp. Party No. 2 in both the cases.
3. Learned Counsel for the Petitioner-company contended that the impugned Order Dated 10.9.2008 passed by Opp. Party No. 1 (Conciliation Officer) was illegal & without jurisdiction, inasmuch as, the powers & duties as has been provided under the Act, does not vest in a Conciliation Officer, the authority to carry out "judicial scrutiny" of the action of the Management & even if the Conciliation Officer was of the view that the action of the Petitioner-company was not justified, the Conciliation Officer ought to have referred the matter for adjudication to the appropriate Court/forum provided under the Act, instead of, merely rejecting the application filed by the Petitioner-company u/s 33(2)(b) of the Act. In this respect, reliance was placed by the Petitioner under the provisions contained in Sections 11 & 12 of the Act, vis-a-vis the procedures, powers & duties of Conciliation Officer. Learned Counsel for the Petitioner further contended that the order of the Conciliation Officer is wholly perverse since he placed reliance on the written submissions of the workman-Opp. Party No. 2 in both the cases, without permitting the Petitioner-Company to lead evidence as was prayed for by the Petitioner-company in its petition & thereby, violating the mandate of the Hon''ble Supreme Court as reported in
4. Learned Counsel appearing for Opp. Party No. 2 workman, in both the cases, on the other hand, submitted that the impugned order under Annexure-1 passed by the Conciliation Officer-Opp. Party No. 1 was in consonance with the judgments of the Hon''ble Supreme Court in the case of the
5. In the light of the contentions raised as noted hereinabove, it becomes necessary to take note of the facts leading to the present challenge:
(A) Opp. Party No. 2 in both the cases, namely, Radheshyam Barik & Akrura Dhurua who were working as Senior Assistant & Vice-President of the O.P.G.C. Employees Union respectively, in the Petitioner-company, on 19.6.2007, while a DPC meeting was sitting for considering promotion for the cadre of non-executives at ITPS, Banaharpalli, forced their way into the said room & without any provocation assaulted the Senior General Manager (P & A) with fist blows in presence of the Director (Operation) & other senior officers of the Petitioner-company.
(B) The Opp. Party No. 2 in both the cases were dismissed from service by the order of Management dated 21.6.2007 by dispensing with the enquiry before inflicting the punishment of dismissal for the following reasons:
a. During & after the incident the offending employee threatened the officers & other employees not to disclose the incident before any authority & also threatened them of dire consequences.
b. The conduct of the employee created an atmosphere of terror.
c. The overt act of the employee necessitated early & stringent action for which the Management took the decision to dismiss the employee without resorting to an enquiry proceeding.
d. The Director (Operation) & the Senior General Manager (P & A) who were assaulted have categorically expressed that the offending employee along with some others unleased a reign of terror at the factory site & the officers & employees were mortally afraid of him for which it was believed that no witness would come forward to depose against the said employee if a disciplinary enquiry is held.
e. After the incident the offending employee had been threatening the officers & the employees to refrain from adducing any evidence against him & such threats have been reported to the police by lodging complaints vide situation report; & lastly.
f. The Management believed that no useful purpose would be served by holding any enquiry since the offending employees were most likely to influence the witnesses by threat & that the witnesses may never come forward to depose.
(C) The Petitioner-company in its application before Opp. Party No. 1, mentioned that in case it is found that the reasons given for dispensing with the enquiry were found to be adequate, then opportunity should be given to the Management to adduce evidence in support of its action. It appears that the Petitioner-company had indicated in its application that as per the proviso to Clause (b) of Sub-section (2) of Section 33 of the Act, the dismissed employees have been paid wages for one month vide Pay Orders Dated 21.6.2007, drawn on the State Bank Of India, Banharpalli, I.B Thermal Power Station, Jharsuguda.
(D) The Conciliation Officer on receipt of the aforesaid application issued notice to the Management as well as Opp. Party No. 2-workmen to appear before it on 4.3.2008 for enquiry along with all connected papers/documents. Opp. Party No. 2 (in both the cases) appeared at, the enquiry & submitted their written statements, along with documents & categorically denied the incident/occurrence, as alleged by the Management & submitted their views in detail as to the occurrence which took place on 19.6.2007. The Opp. Party No. 2 workmen (in both the cases) made counter allegations against the Senior General Manager (P & A) & alleged that they having failed to achieve their object of conducting the DPC interview, without awaiting the finalization of the Seniority List & holding interview even before the date for filing of the objection to the Draft Seniority List.. It is further alleged by the workmen that the Senior General Manager (P & A) created a situation with dismissing Opp. Party No. 2-workmen (in both the cases) as well as other office bearers of the Union, were assaulted by the security guards of the Corporation &, thereafter, directed dismissal of Opp. Party No. 2-workmen by way of the punishment based on false accusations.
(E) The Opp. Party No. 2 workmen (in both the cases) categorically claimed in their written statements that the Petitioner-company contravened the statutory requirement u/s 33(2)(b) of the Act, since they did not offer payment to the dismissed employees their salary for one month simultaneously with issuance of the order of dismissal & submission of the application before the Conciliation Officer u/s 33(2)(b) of the Act.
(F) Further, it appears that on 8.4.2008, the Opp. Party No. 2 (in both the cases) filed a reply to the counter application of the Applicant.
6. On perusal of the impugned order passed by the Conciliation Officer, it appears that the Conciliation Officer took note of the fact that the dismissed workmen-Opp. Party No. 2 (in both the cases) had not been offered payment of salary for one month at the time of the order of dismissal & further submitted that the dismissal Order Dated 21.6.2007 had not been served on them & had merely been affixed in the Notice Board of ITPS Banaharpali. Opp. Party No. 2-workmen (in both the cases) categorically denied the assertion made by the Management of the Petitioner-company that they had been paid wages for one month vide Pay Orders Dated 21.6.2007 & instead submitted that they found from their respective Bank Account at S.B.I., Banaharpali that their Accounts were credited with a sum of Rs. 1,00,002 & Rs. 76,004 respectively on 25.8.2007. Such act on the part of the Management cannot be construed to constitute payment of his salary of one month simultaneous with the order of dismissal dated 21.6.2007 as required by law.
In this respect, it was submitted on behalf of the dismissed-employees Opp. Party No. 2 (in both the cases) that the mere filing of the Cheque & signing the same on 21.6.2007 would not either be conclusive evidence of payment or offer of payment of the amount mentioned therein, until & unless such cheque was duly served on the workman. While Opp. Party No. 2-workmen (in both the cases) categorically denied receipt of payment or receipt of any offer of payment of their salary for one month simultaneously with the order of dismissal dated 21.6.2007, the Management did not produce any evidence to controvert the said assertion.
Accordingly, in such circumstance, the Conciliation Officer in Paragraph -14 of his order came to conclude that the dismissed employees assertion of non-receipt of payment or offer of payment along with the order of dismissal was found to be correct & genuine. Therefore, Conciliation Officer came to hold that, payment or offer of payment of wages for one month by the Management to the dismissed employees was not made simultaneous with the passing of the order of dismissal & filing of application for approval on 21.6.2007. Therefore, the payment not being a part of the same transaction i.e. along with dismissal, the applications u/s 33(2)(b) for approval were refused.
7. The further contention of the dismissed employees that Clause (b) of Sub-section (2) of Section 33 of the Act stipulates that an employer can dismiss of discharge any employee for misconduct not connected with the pending dispute in accordance with the "Standing Orders" applicable to the employees. The Petitioner-Corporation accepted the fact that the "standing orders" were followed by it in respect of its employees. Therefore, the employees'' contention that in terms of their standing orders, the Management was required to draw up a charge-sheet & hold an enquiry as provided therein & only if the employees were found guilty, in such a proceeding, punishment as provided therein could be inflicted. Therefore, infliction of punishment without holding an enquiry as has been provided in the Model Standing Orders not having been complied with, the Management application u/s 33(2)(b) of the Act deserved to be refused.
8. Opp. Party No. 2 (in both the cases'') further raised contention that the order of dismissal dated 21.6.2007 as well as the application u/s 33(2)(b) of the Act & the documents appended thereto would indicate that, the same are merely accusations without any foundation & while referring a report submitted by the Director (Operation) submitted that the same was created subsequently for the purpose of the present case. In this respect, it had been mentioned in the report that in the occurrence, the Director (Operation) also sustained injury in his hand. The Director (Operation) who claimed to be in his chamber at the time of the alleged occurrence, has not complained that the alleged injury sustained on his hand, was by the assault made by the delinquent employees. In so far as the F.I.R. filed by the Management is concerned, the dismissed employees state that while the same contained false accusations, Sri Radheshyam Barik, working president of the employees union had also lodged an F.I.R. on the same day, before the Banaharpali P.S. & the same was pending investigation, for the alleged assault committed the employees by the security staff of the Petitioner-company. The Conciliation Officer also took note of the fact that" there was no report by the Director (Operation) or the Senior General Manager (P & A) that, the concerned employee gave any threat to them either during or after the alleged occurrence took place. Further, no material was produced by the Management of the Petitioner-company to indicate that Opp. Party No. 2-workmen created any terror in the Organization & that employees were mortally afraid of them. In fact, the Conciliation Officer came to a finding of fact that, there was no police report against Opp. Party No. 2-workmen in such regard & accordingly, came to the conclusion that the Petitioner-company had failed to provide any material to establish that, there was a prima facie case for dispensing with the enquiry. In the absence of any material on record, the Conciliation Officer concluded that he was not in a position to hold that the Management had been able to make out a prima facie case against the dismissed employees or have been able to show any justifiable ground to sustain the order of termination issued to the Opp. Party No. 2-workmen (in both the cases) & that too by dispensing with the requirement to held an enquiry.
9. The Conciliation Officer also dealt with the contention of the Petitioner-company of providing opportunity to the Management to lead evidence on merit to prove the misconduct alleged against the employees. While dealing with the application u/s 33(2)(b) of the Act, the Conciliation Officer not being an Adjudicatory Authority u/s 10 read with Section 11A of the Act, has only limited jurisdiction & therefore, the prayer made by the Management of the Petitioner-company was declined.
10. In the light of the facts as noted hereinabove & the order of the Conciliation Officer, as noted hereinabove, it now becomes essential to deal with the challenge made by the Petitioner-company, to the order of the Conciliation Officer impugned herein under Annexure-1. At the very outset, we may take note of Sections 11 & 12 of the Act which stipulates that the "procedures" & "powers" as well as "duties" of the Conciliation Officer.
Section 33(2)(b) of the Act is quoted hereunder:
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall-
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him & the workman]-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month & an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
In terms of the provisions as noted hereinabove, it is the clear there from that during the pendency of any conciliation proceeding or any proceeding before or in any proceeding before the appropriate labour Court or Tribunal or National Tribunal, in support of the Industrial Dispute, no employer shall discharge punish or dismiss any workman for misconduct "save with the express permission in writing of the authority before which the proceeding is pending". It is further stipulated in Sub-section (2) that during the pendency of any such proceeding, an employer may, in accordance with standing orders applicable to a workman concerned in such dispute may dismiss, discharge or punish any workman for misconduct provided that unless such dismissed employee has been paid wages for one month & an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
11. In the present case, there is no dispute between the parties that the dispute between the workmen & the Management is pending adjudication & it is also not dispute that the contemplated action of dismissal against Opp. Party No. 2-workmen (in both the cases) required the approval of the "statutory authority", prior to it being given effect to. In this respect, it needs to be clarified herein that the "Authority" who is required to grant approval in such cases is in none other than the Conciliation Officer-Cum - Assistant Labour Commissioner. It is clear there from that the powers & duties of the "Authority" u/s 33 of the Act are distinct from the procedures, powers & duties of the "Conciliation Officer" Under Sections 11 & 12 of the Act.
In the present case, the "authority" (Conciliation Officer) while dealing with the application made by the Petitioner-company u/s 33(2)(b) of the Act obviously is not acting in his capacity as "Conciliation Officer" Under Sections 11 & 12 of the Act. The function of the Conciliation Officer Under Sections 11 & 12 of the Act & as the ''Authority'' u/s 33 of the Act are distinct & different & to this extent, we approve the views expressed by the Conciliation Officer in the impugned order. In the light of the aforesaid observations & conclusion reached by us, we are of the considered view that, in the event the authority u/s 33 of the Act does not grant approval of action of the Management against the workmen, it would be incumbent upon the Management to proceed against the employees in terms of the Model Standing Orders applicable to such workmen & not de-hors of the same.
12. On perusal of the judgment of the Hon''ble Supreme Court relied upon by the Learned Counsel for Opp. Party No. 2-workmen in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) rendered by a Constitutional Bench relied on its earlier judgment in the case of
9. In the case of Tata Iron & Steel Co. (supra) it is reiterated & stated thus:
It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; & stated generally, the employer must either payor offer the salary for one month to the employee before passing an order of his discharge or dismissal & must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, & the employee can legitimately claim to continue to be in the employment of the employer not-withstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval; such an order is invalid & inoperative in law.
13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous & clear language, is mandatory. This apart, from the object of Section 33 & 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 other 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 & 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 can not disobey the mandatory provision & 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 & 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 & it is a shield against victimization & unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are 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.
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 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 & employee from the date of his dismissal or discharge but that order remains incomplete & remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end 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 & if the employee is aggrieved by such an approval, he is entitled to make a complaint u/s 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee & is intended to save his time & trouble inasmuch as he can straightway 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 & 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 33A & that the order of dismissal or discharge becomes invalid or void only when it is set aside u/s 33A & 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 & 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."
Another judgment relied upon by the Petitioner-company, i.e. in the case of
Considering the aforesaid facts, we are of the view that the facts of the said case have no bearing on the facts in the present case for consideration. In the present case, admittedly, no enquiry whatsoever was conducted & instead, the Management sought the approval of its action from the prescribed authorities u/s 33(2)(b) of the Act. The refusal to accord approval by the prescribed authority is the subject matter of challenge in the present case.
Therefore, the judgments cited by the Petitioner-company in support of the contention as noted hereinabove, do not at all come to the aid of the Petitioner & instead the judgment of the Hon''ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) clearly & categorically noted that "the employer is required to satisfy the proviso to Section 33(2)(b) of the Act on the basis that the "form part of the same prosecution". In other words, approval of the prescribed authority makes the order of discharge or dismissal effective, in the absence of approval such an order is invalid & in operational in law.
In view of the proviso to Section 33(2)(b) of the Act, which was in acted to safeguard interest of workman to act as a shield against victimization & unfair labour practice by the employers, during the pendency of the dispute when the relationship between them are already strained. The employers cannot be permitted to use the provision of Section 33(2)(b) of the Act to ease out the workman without complying with the conditions contained in the said provision for any alleged misconduct.
Apart from the aforesaid judgment, it becomes necessary also to deal with the judgment relied by the Learned Counsel appearing for Opp. Party No. 2 (in both the cases), i.e., the case of The Automobile Products of India Ltd. (supra) & in particular, the conclusion of the Hon''ble Supreme Court in Paragraph-22 thereof is quoted herein below:
22. The object of Section 22 of the 1950 Act like that of Section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject-matter of pending proceedings against'' victimization by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. It is further the object of the two Sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere & that no employer should during the pendency of those proceedings take any action of the kind mentioned in the Sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer & the workmen. To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment. Section 22 of the 1950 Act & Section 33 of "the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein. The purpose of these two Sections being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these Sections is to accord or withhold permission. & so it has been held we think rightly - by the Labour Appellate Tribunal in Carlsbad Mineral Works Co. Ltd. v. Their Workmen 1953 1 Lab. L.J.85) which was a case u/s 33 of the 1947 Act. Even a cursory perusal of Section 33 of the 1947 Act will make it clear that the purpose of that Section was not to confer any general power of adjudication of disputes. It will be noticed that u/s 33 of the 1947 Act the authority invested with the power of grating or withholding permission is the conciliation officer, Board or Tribunal. The conciliation officer or the Board normally has no power, under the 1947 Act, to decide any industrial dispute but is only charged with the duty of bringing about a settlement of dispute. It is only the Tribunal which can by its award decide a dispute referred to it. Section 33 by the same language confers jurisdiction & power on all the three authorities. Power being thus conferred by one & the same Section, it cannot mean one thing in relation to the conciliation officer or the Board & a different & larger thing in relation to the Tribunal. There is no reason to think that the legislature, by a side wind as it were, vested in the conciliation officer & the Board the jurisdiction & power of adjudicating upon disputes which they normally do not possess & which they may not be competent or qualified to exercise. Further, if the purpose of the Section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make & submit an award to which the provisions of the Act would apply such as is provided in Section 33A of the 1947 Act or Section 23 of the 1950 Act. There is no, machinery provided in Section 33 of the 1947 Act or Section 23 of the 1950 Act for enforcing the decision of the authority named in those Sections. This also indicates that those Sections only impose a ban on the right of the employer & the only thing that the authority is called upon to do is to grant or withhold the permission, i.e to lift or maintain the ban. & so it has been held by this Court in
15. In view of the aforesaid facts, case laws as well as on perusal of the impugned order & after having considered the contentions advanced by the Learned Counsel appearing for the respective parties, we are of the considered view that there is no error whatsoever in the impugned Order Dated 10.9.2008 passed by the Conciliation Officer-Cum-Assistant Labour Commissioner (Opp. Party No. 1) under Annexure-1 to the writ application refusing to grant his approval to the Petitioner-company''s petition u/s 33(2)(b) of the I.D. Act.
Accordingly, the writ applications are dismissed & the Order Dated 10.9.2008 passed by the Conciliation Officer-Cum-Assistant Labour Commissioner (Opp. Party No. 1) is affirmed. Interim Order Dated 31.10.2008 passed in Misc. Case No. 12488 of 2008 stand vacated.
L. Mohapatra, J.
I agree.
