AI Structured Summary
Not yet generated for this judgment
Judgment
M. Jaichandren, J.—The Writ Petition has been filed praying for the issuance of a Writ of Certiorari to call for the records of the first respondent in Complaint No. 6/91 and quash the award, dated March 26, 1997.
Heard the learned Counsel for the petitioner as well as for the respondents.
The brief facts of the case, as stated by the petitioner, are as follows:
The second respondent was employed as a clerk in the petitioner-Bank and he was working in Pandamangalam Branch of the petitioner-Bank, from February 26, 1980. While so, on November Saturday, July 07, 200718, 1986, the second respondent, had taken a jewel loan of Rs. 9,000/- from the Canara Bank, Pothanur Pudupalayam, and a sum of Rs. 11,072.02 was outstanding in the said loan account, as on August 16, 1988. On August 16, 1988, the brother-in-law of the second respondent had come to Pandamangalam Branch and the second respondent had given him a sum of Rs. 11,000/-, from the bank cash, for the purpose of redeeming the jewel which was pledged with the Canara Bank. The said amount had been given away by the second respondent without the sanction of the Branch Manager. Therefore, the Branch Manager, had taken the second respondent to task asking him to explain as to why the money from the bank accounts have been given away without prior permission or authority. There were exchange of words between the Branch Manager and the second respondent. Therefore, the second respondent had insisted that a jewel loan be given to his brother-in-law on the same day, even though the time allotted for the granting of such loans was over. However, in order to safeguard the bank funds, the jewel loan was sanctioned to K. Selvaraj, the brother-in-law of the second respondent, for a sum of Rs. 10,500/-.
It has been stated that, on August 17, 1988, the Branch Manager had reported the incident to the Central Office at Karur. An investigating Officer was deputed to investigate the incident that had taken place on August 16, 1988. On August 18, 1988, the Investigating Officer had visited the branch and questioned the staff members, who had confirmed the unauthorised removal of cash from the bank and the subsequent creation of the jewel loan. It has been further stated that, on August 31, 1988, a charge memo had been issued to the second respondent, setting out the allegations against him and calling upon him to submit an explanation. He was asked to appear for an enquiry. In the enquiry, the Branch Manager, the Investigating Officer, and another Officer in the Branch were examined in proof of the charges. The second respondent had examined himself, his brother-in-law Selvaraj, and one Palaniappan. On November 23, 1989, the Enquiry Officer gave his report holding that the charges against the second respondent were duly proved. Thereafter, the second respondent was asked to appear for a personal hearing to show cause against the proposed punishment of dismissal. After hearing his representation, orders were passed, on January 6, 1990, dismissing the second respondent from service.
Since I.D. No. 58 of 1989, on the question of bonus for the accounting year 1981, was pending before the first respondent and as no approval application was filed, the second respondent preferred a Complaint, u/s 33-A of the Industrial Disputes Act, 1947. The said Complaint had been numbered as complaint No. 6 of 1991.
The first respondent by an award, dated March 26, 1997, had set aside the order of dismissal passed against the second respondent and had directed his reinstatement with continuity of service and with full back wages and other attendant benefits, based on the finding that the charges against the second respondent were not proved.
At this stage of the hearing of the case, the learned Counsel appearing on behalf of the second respondent had submitted that the Writ Petition filed on behalf of the petitioner management cannot be sustained, since the respondent had been dismissed from service, without the necessary approval from the concerned authority, as contemplated under the provisions of Section 33 of the Industrial Disputes Act, 1947.
The learned Counsel appearing on behalf of the petitioner submits that the Writ Petition ought to be heard on merits, since it is not open to the second respondent to contend, at this stage, that the provisions of Section 33 of the Industrial Disputes Act, 1947, had not been complied with and to plead that the order of dismissal from service against the second respondent is a nullity in law. It was contended that the award of the Labour Court, dated March 26, 1997, made in Application No. 6 of 1991, ought to be set aside based on the various grounds as stated in the affidavit filed in support of the Writ Petition.
Per contra, the learned Counsel appearing on behalf of the second respondent had stated that the issue regarding non-compliance with the provisions of Section 33 of the Industrial Disputes Act, 1947, had already been raised in the complaint filed u/s 33-A of the Industrial Disputes Act, 1947, before the Industrial Tribunal, Chennai. Therefore, it is not for the first time the second respondent has raised the issue, as stated on behalf of the petitioner. The second respondent could not challenge the findings of the first respondent Industrial Tribunal, since the award was in his favour. Admittedly, there was a pending dispute at the time the impugned order had been passed against the second respondent and that no approval had been obtained by the petitioner management, as contemplated under the provisions of Section 33 of the Industrial Disputes Act, 1947.
The learned Counsel appearing for the petitioner had relied on an order passed by a Division Bench of this Court in Indian Bank v. R.S. Thiruvengadam and Anr. 1990 (2) LLN 26, wherein, it was held that the plea of want of jurisdiction should not be permitted to be raised at a late stage. However, the learned Counsel appearing for the second respondent had pointed out that the plea of jurisdiction had already been raised before the first respondent Industrial Tribunal, Chennai, and therefore, there is nothing wrong on the part of the second respondent in pleading before this Court that the order of dismissal passed against him by the petitioner management cannot be sustained for want of jurisdiction.
The learned Counsel appearing for the second respondent had also relied on Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, wherein the Supreme Court has held as follows:
The object behind enacting Section 33 of the I.D. Act, as it stood before the 1956 amendment, was to allow the continuance of industrial proceedings pending before any Authority/Court/Tribunal prescribed by the Act in a peaceful atmosphere undisturbed by any other industrial dispute. In course of time, it was felt that unamended Section 33 was too stringent. Therefore it was amended in 1956 permitting the employer to make changes in conditions of service or to discharge or dismiss an employee in relation to matters not connected with the pending industrial dispute. At the same time, it was also felt that there was need to provide some safeguards for a workman who might be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. This position is clear by reading the redrafted and expanded Section 33.
The Proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. Moreover, 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). This penal provision is again a pointer of the mandatory nature of the proviso. In other words, 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. Taking a view to the contrary would defeat the very purpose of the proviso and render the same meaningless. It is well-settled rule of interpretation that no part of a statute should 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. The protection afforded to a workman under the said provision cannot be taken away. Otherwise, the employer may with impunity discharge or dismiss a workman.
Where an application is made u/s 33(2)(b) Proviso, the authority before which the proceedings 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 had never 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 the dismissal or discharge but that order remains incomplete and 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.
The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merits and as such the order of dismissal or discharge does not, become void or inoperative unless set aside u/s 33-A, cannot be accepted. 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).
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.
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. 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.
In C. Ramanujam Vs. The Presiding Officer, Industrial Tribunal and The Management of Pattukottai-Azhagiri Transport Corporation, a learned single Judge of this Court had held as follows at p. 296:
7... It is settled proposition of law that the Supreme Court while interpreting law, it is open to the Supreme Court to declare the law prospectively under Article 141 of the Constitution of India. However, if the Supreme Court does not specifically lay down in the judgment itself that it will have only prospective effect, it is not open to any party to contend that the judgment cannot apply to a case, which arose for consideration prior to the declaration of law by the Supreme Court. Unless and otherwise the Supreme Court declares it positively in the judgment itself that it will apply only prospectively, it is not possible to infer that the judgment of the Supreme Court cannot be applied to a case, which arose for consideration before the said judgment. In Baburam Vs. C.C. Jacob and Others, , the Supreme Court observed that the purpose of prospective declaration, is to avoid reopening of settled issues and to prevent multiplicity of proceedings. Therefore, in the absence of a specific declaration to give effect to the judgment only prospectively, the judgment is bound to apply to pending cases also. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , there is no such specific declaration by the Supreme Court that the said judgment will operate only prospectively....
In K. Ramakrishnan and Ors. v. Presiding Officer and Anr., this Court by its order, dated October 1, 2004, in W.P. No. 15585 of 2004, had allowed the Writ Petition filed on behalf of the employees only on the ground that the respondent-management had not obtained the approval from the competent authority as required, u/s 33(2)(b) of the Industrial Disputes Act, 1947, following the decisions cited supra. On a perusal of the records available and based on the submissions made by the learned Counsels appearing on behalf of the petitioner and the second respondent, it is clear that the petitioner-management had not obtained the approval of the competent authority as contemplated, u/s 33(2)(b) of the Industrial Disputes Act, 1947, before the impugned order of dismissal was passed against the second respondent, even though an earlier dispute was pending adjudication. Even though the first respondent Industrial Tribunal had passed an award, dated March 26, 1997 in Complaint No. 6 of 1991, it does not prevent the second respondent to raise the issue at this stage, especially in view of the fact that he had already raised it before the Industrial Tribunal at the stage of the complaint. In such view of the matter, the Writ Petition stands dismissed.