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Judgment
T. Meenakumari, J.—The writ petition is for the issue of writ of certiorari to call for the records in Complaint No. 13 of 1987 in I.D. No. 62 of 1982 on the file of the first Respondent. Industrial Tribunal, Madras and quash the impugned award dated 29.11.1991.
The Petitioner is the Pattukottai Azhagiri Transport Corporation Limited having its registered office at Vellore. Aggrieved by the award passed in Complaint No. 13 of 1987 in I.D. No. 62. of 1982, by the first Respondent Tribunal, the Petitioner has filed the above writ petition.
The brief facts are: The second Respondent was appointed as an apprentice driver from 1.12.1983 in the Petitioner Transport Corporation. Before his services could be regularised, on 22.8.1984 at about 1420 hours, while the second Respondent was on duty, he drove the bus No. TML 2610 on Route No. G. 5 plying between Gudiyatham and Ambur in a rash and negligent manner, lost his control and dashed against a tamarind tree and wall, on the right side of the road, causing serious damage to the bus. Due to the accident, 10 persons sustained injuries including a boy aged about 4 years who died on 29.8.1984. On the date of the accident, the Traffic Manager had been to the site of the accident, made investigation and recorded the statement of the second Respondent. According to the Petitioner-Corporation, the second Respondent has not mentioned in the statement about applying of breakes and the speed at which the bus was driven at the time of the accident. The second Respondent was issued with a charge memo on 5.10.1984 for the following charges: "1. On 22.8.1984 while he was on duty in Bus No. TML 2610 of Route No. G-5 caused an accident by rash and negligent driving, dashed the bus against a boy aged about 4 years, a Tamarind tree and a wall on the right side of the road at Melvazhithunaryan Kuppam. 2. Owing to the accident, he was responsible for the death of 4 years old boy at 13.15 hrs on 29.8.1984 in Government Hospital and for the grievous injuries of six passengers admitted in the same hospital and for minor injuries of four other passengers also. 3. Caused heavy damages to the vehicle and consequent loss. The second Respondent by submitting the explanation on 7.11.1984, denied the charges. As the explanation submitted by the second Respondent was not satisfactory, the Petitioner-Corporation appointed an enquiry officer. The second Respondent was given sufficient opportunity to defend himself. The Enquiry Officer gave his findings that all the charges against the delinquent have been proved. The Petitioner-Corporation issued a second show cause notice on 24.4.1985 to the second Respondent. As the explanation submitted by the second Respondent was not satisfactory, his services were terminated on 11.5.1985 by the Petitioner-Corporation. The second Respondent filed a complaint which was numbered as Complaint No. 13 of 1987 in ID. No. 62 of 1982 u/s 33-A of the Industrial Disputes Act before the Industrial Tribunal Madras, challenging the order of termination. It was contended by the second Respondent before the first Respondent Tribunal that the Petitioner has violated the provisions of Section 33 of the Industrial Disputes Act for not filing an approval application u/s 33(2)(b) of the Industrial Disputes Act 1947. The second Respondent herein has further contended that the findings of the enquiry officer were perverse. The Petitioner-Corporation has filed a counter statement before the first Respondent Tribunal raising preliminary objection of maintainability stating that the Petitioner-Corporation came into existence only on 1.12.1982 whereas Industrial Dispute No. 62 of 1982 relates to the bonus payable by the erstwhile Pallavan Transport Corporation (District) for the period April 1981 to March 1982. In the circumstances, the Petitioner-Corporation contended before the first Respondent that they are not bound to file an approval petition as the Petitioner-Corporation has no liability in I.D. No. 62 of 1982. The further contention of the Petitioner-Corporation before the first Respondent was that the complaint by the second Respondent was not sustainable as the second Respondent was not a workman concerned in the proceedings in I.D. No. 62 of 1982. The Petitioner-Corporation came into existence only on 1.12.1982 and the second Respondent joined as apprentice driver on 1.12.1983. Hence the second Respondent could not be considered as the workman concerned in the dispute as contemplated u/s 33 of the Industrial Disputes Act and hence the contention of the second Respondent that the Petitioner-Corporation violated the provisions of Section 33 of the Act would not arise. The case of the Petitioner is that the first Respondent Tribunal has failed to appreciate the above facts with regard to jurisdiction and has erred in holding in favour'' of the second Respondent. To susbtantiate his contention that the second Respondent was not a workman concerned in the dispute, learned Counsel for the Petitioner has relied upon the following case laws.
Digwadih Colliery v. Ramji Singh 1964 (II) L.LJ. 143.
Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, .
Pepsu Road Transport Corporation v. Sher Singh 58 FJR 91.
Andhra Bank v. Industrial Tribunal 1992 (I) L.L.N. 764.
Gangpur Labour Union Vs. Industrial Tribunal and Another, .
The second Respondent herein has filed a complaint before the first Respondent Tribunal against the order terminating the services of the second Respondent by the Petitioner-Corporation. The complaint was filed u/s 33-A of the Industrial Disputes Act. The second Respondent-complainant has stated the following in the complaint:
On 22.8.1984, when he was driving the Corporation bus towards Ambur and near a place called Puthoor, he was driving the vehicle slowly after crossing a stop and he saw three children suddenly darting from left to right side. In his anxiety to avoid hitting the children swerved the vehicle to the extreme left and in that process, the vehicle hit on the road side Tamarind tree and also a wall. One of the three children running fast came into contact with the front left side near the foot-board and sustained injuries. This happened only due to the negligent of the child. He avoided hitting the other two children by turning the vehicle to the right. The Traffic Inspector who visited the accident spot did not take any statement from any witness. It was further stated in the complaint that the inference of the Traffic Manager that the complainant drove the vehicle rashly and negligently was without any basis. The only witness was the Traffic Manager who had admitted that the children suddenly crossed the road. The report of the Traffic Manager that the complainant alone was responsible for the accident, was not supported by any evidence. The complainant has also alleged that failure to furnish relevant documents to him vitiates the enquiry proceedings. The further claim of the complainant that the Corporation should have filed an approval petition u/s 33(2)(b) of the Act before passing the order terminating the services of the Petitioner.
The Petitioner herein has filed a counter before the first Respondent in Complaint No. 13 of 1987 stating that the Corporation came into existence only on 1.12.1982 whereas Industrial Dispute No. 62 of 1982 which deals with the bonus payable for the year April 1981 to March 1982 by the erstwhile Pallavan Transport Corporation (District). Hence the Corporation has no liability in Industrial Dispute No. 62 of 1982 and the Corporation is not bound to file an approval petition. Hence the complaint filed u/s 33-A of the Act is not maintainable. The Petitioner-Corporation has further stated in the counter filed in the abovesaid Complaint that the domestic enquiry against the complainant was held in accordance with the Principles of Natrual Justice and standing orders of the Corporation.
Section 33(2) of the Act reads as follows:
Section 33 conditions of service etc. to remain unchanged under certain circumstances during pendency of proceedings.
(1).....
(2). During the pandency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the 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 and 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 and 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 Andhra Bank v. Industrial Tribunal 1992 (1) L.L.N. 764, the Andhra Pradesh High Court, has observed as follows:
In Digwadih Colliery v. Ramji Singh 1964 (II) L.LJ. 143 it is held that it is necessary that the Respondent-workman shoud satisfy the Tribunal by proving the nature of the dispute pending before the Tribunal before asking it to make a finding in his favour u/s 33(2) of the Act, and in the absence of any such evidence, the Tribunal is not justified in holding that Section 33(2) of the Act applies and has been contravened.
In view of the above judicial dictum of the Supreme Court, the principle that is to be deduced is that the Tribuunal is required to record a finding u/s 33(2) of the Act as a preliminary point before embarking upon inquiry on the merits of the case. No doubt, in that case, the Tribunal cast burden of proof on the workman to establish that he came within the expression "a workman concerned in such dispute" as visualised u/s 33(2) of the Act. This case Ramji Singh 1964 (II) L.L.J. 143, is cited with approval in the decision of the Supreme Court in Tata Iron and Steel Company v. Singh 1965 (II) L.LJ. 122. Contention raised in that case was that, where judicial decisions differed on the construction of the words "workmen concerned in such dispute" it would be idle and unreasonable to suggest that the employer should make up his mind whether Section 33 applies or not, and if he thinks that Section 33 does not apply, he need not make application; on the other hand, if he thinks that Section 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. The Supreme Court, held, rejecting that contention, that such a view was wholly illogical and unsatisfactory, and ruled that the Tribunal, in that case, was in error in not considering the preliminary point raised by the Appellant therein that the Respondent was not "workman concerned," in the main industrial dispute and as such, the application made by it was unnecessary. It may be stated that, in the case before the Supreme Court also, a plea was made on behalf of the management that the application was being filed by way of abundant caution so that there might not be any complication about the action taken by the management against the workman and the same might not expose the management with any penal action. In this case also, the application clearly stated that it was filed by way of abundant caution. Therefore, it was incumbent upon the Tribunal to record a finding before going into the merits of the matter. Similar view has been taken by a learned single Judge of this Court in Andhra Pradesh Electric Equipment Corporation v. B. Veeraiah 1989 (2) A.L.T. 308. It was held therein relying upon the above two Supreme Court decisions, that the Tribunal was bound to record a finding whether the Respondents therein were, in any way, concerned with the dispute and if the misconduct alleged against them was not connected with the dispute, the Tribunal should have considered according approval for the action of the management. Failure of the Industrial Tribunal to consider the jurisdictional aspect whether the Respondents-workmen were concered with the pending dispute was held to have vitiated the impugned order in that case.
As the second Respondent remained absent even after the service of notice as early as on 13.1.1994, Mr. R. Saravanakumar, Advocate, 42, Law Chambers, High Court, Madras, was appointed as Amicus Curiae by order of this Court dated 21.3.2000, to represent the second Respondent. The contention of the counsel for the second Respondent is that the Petitioner-Corporation should have filed approval petition u/s 33(2) (b) of the Act before passing the order of termination against the second Respondent. In the absence of the approval petition, the order passed by the Petitioner-Corporation terminating the services of the second Respondent is liable to be set aside.
A reading of the award passed by the first Respondent in Complaint No. 13 of 1987 shows that Exs. Ml to M10 were marked. The second Respondent was charged for having caused the death of a child and injuries to four persons on 22.8.1984 at about 14.15 hours due to the rash and negligent driving of the vehicle belonging to the Petitioner-Corporation. Ex. M6 was the reply given by the second Respondent herein, to the charge memo. The only witness in the domestic enquiry was M.W. 1 Kothandapani, Traffic Manager who went to the spot and made an investigation. M.W. 1 has also admitted that he did not record the statement of any member of the public at or near the place of accident. The Respondent in the complaint i.e. the Petitioner-Corporation took the objection that the Petitioner-Corporation came into existence only on 1.12.1982 whereas Industrial Dispute No. 62 of 1982 which deals with bonus payable for the year April, 1981 to March 1982, by the erstwhile Pallavan Transport Corporation and the Petitioner-Corporation has no liability and the Corporation is not bound to file an approval petition. A further reading of the impugned award passed by the first Respondent Tribunal shows that the Tribunal has failed to appreciate the fact whether the second Respondent herein was a workman concerned with the dispute. Without going into the above question, the Tribunal has simply dealt with the occurrence of accident and has set aside the order of termination passed against the second Respondent by the Petitioner-Corporation and has ordered reinstatement of the second Respondent herein with back wages and attendant benefits. In my view, the first Respondent Tribunal has failed to record a finding whether the second Respondent herein can be construed as "a workman concerned in the dispute" before going into the merits of the case. Following the decision of the Andhra Pradesh High Court in Andhra Bank v. Industrial Tribunal 1992 (1) L.L.N. 764, it has to be held that as a jurisdictionel point, it is incumbent upon the Tribunal to record a finding whether the employee can be construed as "a workman concerned in the dispute" before going into the merits of the case. As the first Respondent Tribunal has failed to record a finding on that issue, it has to be held that the order of the Tribunal is vitiated and is liable to be set aside. Accordingly, the impugned award passed by the first Respondent Tribunal, is set aside and the writ petition is allowed. No costs. In view of the setting aside of the award, the Industrial Tribunal is directed to record the finding with regard to the preliminary point of jurisdiction and then dispose of the case on merits and in accordance with law on or before 30.6.2001. As the facts in the case on hand are similar to that of the case of Andhra Bank v. Industrial Tribunal, Hyderabad reported in 1992 (1) L.L.N. 764, this Court has followed the decision of the Andhra Pradesh High Court in the case referred to above and the other case laws cited by the learned Counsel for the Petitioner, have not been discussed separately. The Legal Aid, Madras, is directed to pay a sum of Rs. 500/- (Rupees five hundred only) to Mr. R. Saravanakumar, Advocate, 42, Law Chambers, High Court, Madras, who has been appointed by this Court as Amicus Curiae to represent the second Respondent herein. In view of the disposal of the Main Writ Petition, W.MJ\\No. 5476 of 1993 is closed.