The Management of Axles India Ltd. vs The Presiding Officer, Industrial Tribunal and Others

R. Subbiah, J.—All these writ petitions have been filed by the Management, challenging the common order passed by the Industrial Tribunal,

Madras, dated 12.10.2009, on the complaints filed by the 2nd respondent in these writ petitions/workmen u/s 33-A of the Industrial Disputes Act

in I.D. Nos. 34 of 2004 and 22 of 2005 with regard to the maintainability of the complaints.

The facts, as set out in the writ petitions, which are necessary to decide the issue involved in these writ petitions, are as follows:

The writ petitioner, viz., M/s. Axles India Limited, is a company registered under the Companies Act, 1956, involving in manufacturing of rear axle

housings and components for medium and heavy commercial vehicles. The petitioner company incurred heavy financial loss continuously and for

that, the management of the petitioner company had taken economic measures and to improve the operational efficiency, so that the company

would be viable. Hence, the petitioner company had arranged to conduct the ''Time Study'' for the optimum production level for Scam bracket.

The findings of the ''Time Study'' conducted with all the details were informed to the workmen through the notice board and to their Union also.

Time and again the employees were asked by the management to produce, according to the level fixed based on the ''Time Study''. But the

workmen did not heed to the request of the management and continued to give low production. The production output for the period from

21.04.2005 to 20.05.2005 was thoroughly examined by the management and the out-put given by the complainants for the above said period was

far below the level fixed based on the Time Study. Since it was found that the act of the complainants was nothing but a deliberate ''go slow''

tactics and was also a ''misconduct'' as per the Clauses 17(iii), 17(viii), 17(xi)(d) and 17(xvi) of the Company''s Certified Standing Orders,

individual charge sheets were issued to the complainants, calling for their written explanation. On receipt of the charge sheet, the complainants

submitted their explanation and thereafter, a domestic enquiry was conducted to enquire into the charges levelled against the complainants on

various dates by affording adequate opportunities to defend their case in all stages. On completion of the enquiry, the copy of the enquiry

proceedings were given to the workmen concerned, in compliance of the principles of natural justice. On receipt of the enquiry proceedings, the

2nd respondent in each writ petition/employees have submitted their written explanation for the findings of the enquiry officer. Since the same was

found to be not satisfactory, a show cause notice for the proposed punishment was issued to the complainants and on receipt of the same, they had

also submitted their written explanation. After considering the entire materials on record, the petitioner management decided to discharge them for

the proved acts of misconduct and issued the order of discharge on 15.12.2006.

At the time of issuing the discharge order dated 15.12.2006, three different disputes raised by the Axles India Workers'' Union were pending

before the I Additional Labour Court as well as the Industrial Tribunal. Therefore, it has become necessary for the petitioner management to get an

approval u/s 33(2)(b) of the I.D. Act. Out of the 3 disputes, I.D. No. 34 of 2005 was pending before the I Additional Labour Court, Chennai and

other two disputes in I.D. Nos. 34 of 2004 and 22 of 2005 were pending before the Industrial Tribunal. I.D. No. 34 of 2005 pending before the I

Additional Labour court, Chennai, was pertaining to the dispute raised by the Union in respect of the transfer of 18 employees from

Sriperumbudur factory to the factory at Sipcot complex, Gummidipoondi. I.D.34 of 2004 relates to the dispute raised by the Union in respect of

promotion given to 12 employees to the post of Technical Assistant without following the seniority list. The other I.D.22 of 2005 relates to the

change of shift timings and change in the number of shift by the management.

In the said situation, the workmen/complainants, by invoking Section 33-A of the I.D. Act filed separate complaint against the petitioner

management individually before the Industrial Tribunal, stating that the petitioner company had violated Section 33 of the I.D. Act. It was further

stated in the complaints that when the proceedings were pending before the Industrial Tribunal, the management dismissed some workmen without

obtaining prior approval as contemplated u/s 33(2)(b) of the I.D. Act and hence, the management had violated the provisions of Section 33 of the

I.D. Act.

The petitioner Management had filed a counter stating that the complaints were not maintainable since the management had already filed an

application u/s 33(2)(b) before the Labour Court for approval of the discharge order passed by them, where the dispute was pending before the I

Additional Labour Court, Chennai in I.D.34 of 2005. Since the petitioner management had raised the question of maintainability in respect of the

complaints filed by the 2nd respondent/employees in I.D. 34 of 2004 and 22 of 2005 pending before the Industrial Tribunal, the Tribunal framed a

preliminary issue of maintainability of the complaints and held that the complaints filed by the 2nd respondent/employees were maintainable since

no approval application was filed before it. Aggrieved over the said order, the present writ petitions have been filed by the management.

The learned Counsel for the petitioner submitted that one dispute pending before the Labour Court and the other two disputes pending before

the Industrial Tribunal are general in nature and the respondents/employees are in no way connected with the disputes raised by the Labour Union.

Under such circumstances, no fault could be found as against the petitioner management in filing an application u/s 33(2)(b) of the I.D. Act before

the Labour Court, where an industrial dispute was pending. Further, by inviting the attention of this Court to the provisions of Section 33 of the

I.D. Act, the learned Counsel submitted that only if any one of the employees was said to have committed a misconduct connected with the dispute

pending before the Labour Court or the Industrial Tribunal, then only the permission has to be obtained by the Management before the dismissal of

the employee u/s 33(1)(b). So far as Section 33(2)(b) is concerned, in any matters not connected with the dispute, the management can discharge

a workman by paying one month''s salary to him after obtaining the approval from the authority concerned, before whom the dispute is pending.

Thus, the learned Counsel for the petitioner submitted that Section 33(1)(b) speaks about the misconduct connected with the dispute and Section

33(2)(b) speaks about the misconduct not connected with the dispute. If any one of the disputes before the two forums is connected with the

misconduct, then only an objection can be raised stating that the approval petition has not been filed in the dispute connected with misconduct. But,

in the instant case, all the three disputes are general in nature and not connected with the misconduct of the individual employees/complainants.

Under such circumstances, no fault could be found in the action of the petitioner management in filing the approval petition before the Labour

Court. But ignoring all these aspects, according to the learned Counsel for the petitioner, the Industrial Tribunal has come to a wrong conclusion as

if the petitioner has not filed the approval application in the dispute connected with the matter of the employees pending before the Industrial

Tribunal. Thus, it is seen that the Industrial Tribunal has wrongly misconstrued the entire provisions of Section 33(1)(a) of I.D. Act and had come

to the conclusion that the petitioner management ought to have filed a petition before the Industrial Tribunal, where the disputes connected with the

matter of employees are pending. In this regard, the learned Counsel has also relied on a catena of judgments in support his contentions, namely,

Sri Rajagopal Transports v. Presiding Officer, Labour Court, Madurai 1971 I L.L.J. 643; Air-India Corporation, Bombay Vs. V.A. Rebellow and

Another, ; Management of Borpukhurie Tea Estate Vs. The Presiding Officer, Industrial Tribunal, Assam and Another, ; D.P. Maheshwari v. Delhi

Admn. and Ors. AIR 1984 SC 153; Rangaswamy & Co. v. D.V. Jagadish 1990 II L.L.J. 745; Blue Star Employees Union v. Ex. Officio,

Principal Secretary to Govt. and Anr. 2000 II L.L.J. 1398; Zaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. R.G. Sharma 2002 (1) L.L.N. 639

and Ram Sanjeevan v. Presiding Officer, Labour2009 Lab.I.C. 2023 Court, U.T. Chandigarh .

Per contra, the learned Counsel for the 2nd respondent in each writ petition/complainants contended that the order passed by the Industrial

Tribunal is only an interim order in nature and against which, the writ petitions filed by the management cannot be maintainable and the petitioner

can very well put forth their case in the complaints pending before the Industrial Tribunal filed by the complainants. Further, it is incorrect to state

that all the disputes are general in nature and are in no way connected with the employees. The dispute pending before the Labour Court i.e. I.D.

No. 34 of 2005 pertaining to 18 employees, who have been transferred from Srivilliputhur factory to Gummidipoondi factory, is independent in

nature; but the disputes pending before the Industrial Tribunal are in respect of larger workmen. Under such circumstances, the non-filing of the

application in the disputes concerned with the employees pending before the Industrial Tribunal would mean that, no approval petition was filed

and the employees continued to be in service as if the order of discharge was never passed. In support of this contention, the learned Counsel

relied upon the judgments reported in 2004 (3) L.L.N. 1029 (Sri Ramanarayan Mills Ltd. v. Presiding Officer, Labour Court, Coimbatore and

Anr.) and 2007 (1) LLN 351 (R. Bojan v. Needle Industrial (India) Ltd.).

In view of the submission made by the learned Counsel on either side, the question that arises for consideration in these writ petitions is, whether

the dispute pending before the Labour Court in I.D. No. 34 of 2005 and the disputes pending before the Industrial Tribunal in I.D. Nos. 34 of

2004 and 22 of 2005 are general in nature or otherwise for a misconduct committed not connected with the workmen concerned.

It is the categorical contention of the learned Counsel for the petitioners that all the disputes are general in nature and as such, no fault could be

found in the action of the petitioner management in filing the approval proceedings before the Labour Court. In support of this contention, the

learned Counsel for the petitioner has relied on the judgment reported in 2002 II L.L.J. 1398 (cited supra), wherein it has been held as follows:

A complaint can be made to the Tribunal u/s 33-A of the Act if there has been violation or contravention of the provisions of Section 33 of the

Act and if it is found that there has, in fact, been such a contravention the Tribunal can proceed to adjudicate the dispute contained in a complaint

on its merits. Thus violation or contravention of the provisions of Section 33 of the Act would be the basic question that arises for consideration

and before giving any relief to an aggrieved employee under this section, the Tribunal has to find out whether the employer''s action falls within one

of the following prohibitions contained in Section 33 of the Act:

(i) if the dispute pending adjudication has nothing to do with the alteration in conditions of service of a workman in contravention of Section 33(1)

(a) of the Act or alteration of conditions of service of a ''protected workman'' within Section 33(1) of the Act;

(ii) discharges or punishes a workman by dismissal or otherwise for a misconduct connected with the pending dispute without obtaining prior

express permission in writing of the appropriate authority as required by Section 33(1)(b) of the Act;

(iii) discharges or punishes a ''protected workman'' by dismissal or otherwise for a misconduct not connected with the pending dispute, without

obtaining prior express permission in writing of the appropriate authority as required by Section 33(3)(b) of the Act read with Section 33(1)(b) of

the Act; or

(iv) discharges or punishes a workman by dismissal or otherwise for a misconduct not connected with the pending dispute, without complying with

the provisions of proviso to Section 33(2)(b) of the Act.

Thus, the contravention of the provisions of Section 33 of the Act is the foundation for exercise of the power u/s 33 of the Act. If this issue is

answered against the employee, nothing further survives for consideration or action by the Tribunal u/s 33 of the Act. In other words, an

application u/s 33-A of the Act without proof of contravention of Section 33 of the Act would be incompetent....

Thus, by relying upon the said judgment, the learned Counsel for the petitioner contended that only if there is any failure to comply with the

provisions of Section 32(2)(b) of the I.D. Act, it can be said that the employer has contravened the provisions of Section 33. But, in the instant

case, the application u/s 33(2)(b) was filed in the dispute pending before the Labour Court. When all the three disputes are general in nature and

the misconduct committed by the employees is not connected with the pending dispute, the filing of the petition before the Labour Court where the

dispute is pending, cannot be said that the petitioner has contravened the provisions of Section 33, but with regard to the same principle, the

learned Counsel for the petitioner relied upon the judgment reported in 1972 (1) LLJ 501 and other judgments (cited supra).

Vice versa, it is the contention of the complainants/respondents that all the disputes are not general in nature and the dispute pending before the

Labour Court was not connected with the complainants; but the other two disputes pending before the Industrial Tribunal are connected with the

complainants. In order to appreciate this submission of the complainants, it is necessary to look into the disputes raised by the complainants.

So far as I.D. No. 34 of 2005 pending before the I Additional Labour Court is concerned, it is pertaining to transfer of 18 employees from the

factory at Sriperumbudur to the Sipcot factory at Gummidipoondi. Any decision taken in this industrial dispute cannot have any effect on the 2nd

respondent employees. So far as I.D. No. 22 of 2005 and 34/2004 are concerned, I.D.34/2004 is pertaining to the promotion given to 12

employees by violating the seniority list. Similarly so far as I.D. 34 of 2005 is concerned, the dispute raised by the Union is only in respect of

change of working hours and change in the number of shift. Any decision arrived at in this dispute certainly have an effect in the interest of all the

employees including the complainants. Under such circumstances, the dispute pending before the Labour Court cannot be equated to the disputes

pending before the Industrial Tribunal.

Section 33(2)(b) of the I.D. Act reads as follows:

Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings:

(1)....

(2) During the pendency 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)....

(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.

It is manifestly clear from the said section that if an employee is concerned with the dispute though for any misconduct not connected with the

dispute, an approval is a must u/s 33(2)(b). So far as the dispute pending before the Labour Court is concerned, the 2nd respondent employee is

not at all concerned with regard to the transfer of 18 employees nor connected with the disputes. But, So far as the dispute pending before the

Industrial Tribunal in I.D. No. 22 of 2005 is concerned, the decision taken with regard to the shifting of times certainly would have a bearing on the

employees. Under such circumstances, the petitioner ought to have filed the approval petition only in the dispute pending before the Industrial

Tribunal.

Moreover, as pointed out by the Tribunal, there is no such pleading that the approval petition filed before the Labour Court must be treated as

an application filed before the Tribunal.It is relevant to extract paragraph 19 of the impugned order, wherein it has been stated by the Tribunal, as

follows:

...It is not even pleaded that the approval application filed before I Addl. Labour Court must be treated as an application filed before this

Tribunal. Instead the contention is that the management is justified in filing the application before the I Addl. Labour Court as the law do not

prescribe, to which court the application for approval has to be filed. This contention is incorrect because as per the decision reported in 2009

LLR 811 (Punjab and Haryana High Court between Ram Sanjeev and Ors. v. Presiding Officer, Labour Court, U.T. Chandigarh and Anr.), it has

been held that approval application has to be filed only before the court in which the industrial dispute is pending.

Similarly, I am of the view that another dispute raised by the Union with regard to the promotion of 12 employees by violating the seniority,

also have a bearing on the other employees. In support of the contention that the parties cannot be penalised for inadvertent errors, the learned

Counsel for the petitioner relied on the judgment reported in Management of Borpukhurie Tea Estate Vs. The Presiding Officer, Industrial

Tribunal, Assam and Another, . It could be seen from the said judgment that, instead of filing an application u/s 33(3), the application was filed u/s

33(2)(b); subsequently when the application was filed for modification, the Tribunal refused to treat the original application u/s 33(2)(b) as one u/s

33(3) of the Act; in those circumstances, the Hon''ble Supreme Court has held that the parties cannot be penalised for inadvertent errors. But, in

the instant case, the application filed in the dispute, which is neither concerned nor connected with the the complainants/employees, cannot be

equated with the case in which the application was filed before the proper forum, but by quoting a wrong provision and as such, the said judgment

relied on by the petitioner is not applicable to the case on hand. Hence, I do not find any infirmity in the order passed by the Tribunal and as such,

the writ petitions are liable to be dismissed.

For the reasons mentioned above,all the writ petitions are dismissed. No costs. Consequently, connected M.Ps. are closed.