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Judgment
M. Venugopal, J.—The Petitioner has filed the present writ petition seeking for the relief of Writ of Certiorarified Mandamus in calling for
the records relating to the order passed by the second Respondent/Joint Commissioner of Labour (Conciliation), Chennai in Approval Petition No.
167/2003 dated 29/1/2007 and to quash the same. Further, the Petitioner has also prayed for granting approval to the dismissal order passed by
the second Respondent.
The first Respondent was employed in Devakottai Branch of the Tamil Nadu State Transport Corporation (Kumbakonam Division III) Limited,
Karaikudi, as ''Conductor''. He was charge sheeted for a serious charge of trying to misappropriate a sum of Rs. 6/- when he was on duty in bus
bearing Registration No. TN63-511 on 26/5/2002.
A Domestic Enquiry was conducted as per Standing Orders against the first Respondent/Employee. Based on the findings of the Enquiry
Officer, a second show cause notice was served on the first Respondent/Employee and later, he was dismissed from service. The
Petitioner/Transport Corporation filed A.P. No. 167 of 2003 on the file of the second Respondent/Joint Commissioner of Labour (Conciliation),
Chennai.
The Second Respondent/Joint Commissioner of Labour (Conciliation), Chennai passed an order on 1/3/2007 rejecting the Petitioner''s
application to accord approval to the dismissal order on the ground that the first Respondent/Employee was not paid one month wages of Rs.
6,755.50 at the time of dismissal.
The learned Counsel for the Petitioner/Transport Corporation submits that the order of the second Respondent/Joint Commissioner of Labour
(Conciliation), Chennai dated 29/1/2007 in Approval Petition No. 167 of 2003 is not a legally valid one because of the simple fact that it is an
unconstitutional one.
It is the contention of the learned Counsel for the Petitioner/Transport Corporation that the second Respondent/Joint Commissioner of Labour
(Conciliation), Chennai has no authority in law to interfere with the punishment on technical ground of non-payment of one month wages.
Advancing his arguments, the learned Counsel for the Petitioner takes a plea that the order of the second Respondent dated 29/1/2007 in
Approval Petition No. 167/2003 is against all principles of Natural justice. Also the said order is violative of Article 14, 16, 21 and 300A of the
Constitution of India.
The learned Counsel for the Petitioner submits that if an Employee is found guilty of misappropriating the Transport Corporation''s money, then
the loss of confidence will have to be taken into account and not the money misappropriated. To lend support to the said contention, the learned
Counsel for the Petitioner relies on the decision of the Honourable Supreme Court in Chairman-cum-M.D., T.N.C.S. Corpn. Ltd. and Others Vs.
K. Meerabai, wherein at page 257, it is held as follows:
The plea of the Respondent for taking a lenient view has no force. The scope of judicial review is very limited. Sympathy or generosity as a factor
is impermissible. Loss of confidence is the primary factor and not the amount of money misappropriated. In the instant case, the Respondent
employee was found guilty of misappropriating the Corporation funds. There was nothing wrong in the Corporation losing confidence or faith in
such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the
judicial forums and interfering therefore with the quantum of punishment awarded by the disciplinary and Appellate Authority.
He also cites the decision of Honourable Supreme Court in A. Sudhakar Vs. Post Master General, Hyderabad and Another, wherein at page
No. 349 is held hereunder:
It is well settled that those principles of natural justice are not embodied principles. The requirements contained in Article 311(2) of the
Constitution are held to be as a part of the principle of natural justice. The Courts in the aforementioned situation are required to see as to whether
non-observance of any of the said principles in a given case has resulted in denial of justice. If there had been substantial compliance with the
procedure, the Court may not interfere.
The learned Counsel for the Petitioner submits that the wage revision pertaining to the employees for the period 2001 - 2005 has been pending
before the Commissioner of Labour and therefore, the approval sought for by the Petitioner/Transport Corporation is mandatory as per Section
33(2)(b) of the Industrial Disputes Act, 1947.
Added further, the learned Counsel for the Petitioner contends that the jurisdiction of the second Respondent/Joint Commissioner of Labour
(Conciliation), Chennai, as per Section 33(2)(b) of the Industrial Disputes Act is very limited and as such, he cannot assume or take the role of the
Labour Court or Tribunal.
The learned Counsel for the Petitioner/Transport Corporation contends that one month wage is Rs. 6,739.50 to be paid to the first
Respondent/employee, but through cheque, a sum of Rs. 6,705/- has been given to the first Respondent/Employee and the non-payment of
difference of Rs. 34/- to the first Respondent/Employee is not intentional.
Also, the learned Counsel for the Petitioner takes a plea that it is not the case of the first Respondent/Employee that he has not been paid with
the wages. Further, it is the contention of the Petitioner''s side that prima facie, the dismissal order passed by the Petitioner/Transport Corporation
against the first Respondent/Employee has been based on evidence available on record in the domestic enquiry and further, the
Petitioner/Transport Corporation has not indulged in any unfair labour practice.
Per contra, it is the contention of the learned Counsel for the First Respondent/Employee that the Petitioner/Transport Corporation has not
paid one month salary/wages to the Petitioner as per the ingredients of Section 33(2)(b) of the Industrial Disputes Act, 1947 and also that the
findings of the domestic Enquiry Officer that the first Respondent/Employee is guilty of the charge levelled against him is not a correct one.
The learned Counsel for the First Respondent/Employee cites the decision of this Court in Management of Cheran Transport Corporation
Ltd., Coimbatore v. (1). Presiding Officer, Industrial Tribunal, Madras and Anr. reported in (2002) 1 LLN 388 wherein at paragraph No. 17.1, it
is held thus:
That apart, the Tribunal itself found that the second Respondent driver was pressed by the Superior Officer to take out the bus for its normal run
without further loss of time. In the absence of any legal evidence and in view of the admitted finding that the second Respondent workman was
pressed by the superior officer to take the bus without any further loss of time, the very finding of the enquiry officer, in my considered opinion,
cannot be held to be a bona fide conclusion. If that be so, the adverse finding arrived at by the Tribunal holding that the enquiry officer''s report is
not perverse, can be interfered with by this Court, as it is open for the second Respondent-workman to attack such finding, even though he had no
occasion to file a separate writ petition challenging the same in view of the final decision of the Tribunal, refusing to approve the order of dismissal,
dated 6 October 1989, as held by the Apex Court in Anil Kumar Gupta and Ors. v. Municipal Corporation of Delhi and Ors. reported in 2000
(1) L.L.N.1, following the decision in Ravindra Kumar Sharma v. State of Assam reported in JT 1999 (6) SC - 565.
Also, he relies on the decision of Honourable Supreme Court in Bharat Electronics, Ltd., v. Industrial Tribunal, Karnataka, Bangalore and
Anr. reported in (1990) 1 LLN - 1004, wherein at page Nos. 1004 and 1005, it is laid down as follows:
Though the definition of word ""wages"" as given in Cl.(rr) of Section 2 of the Industrial Disputes Act, 1947 is comprehensive enough to include such
of the allowances as the workman is for the time being entitled, yet, despite such comprehension, the inclusive meaning is subject to a meaningful
change if there is anything repugnant in the subject or context. The proviso to Section 33(2)(b) mandating the management to pay wages for one
month is intended to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been
passed. One month''s wages as thought and provided to be given are conceptually for the month to follow, the month of unemployment and in the
context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dismissal. The date of
dismissal u/s 33(2)(b) is the date when the approval petition is filed, after dismissal.
An allowance which from the term of employment flows as not contingent on actual working is part of wages for the purposes of Section 33(2)(b)
but an allowance which is earnable only by active serving is not an allowance which will form part of wages within the meaning of the said
provision. Therefore, the workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was
contingent upon his reporting to duty and being put to that night shift. That night shift allowance automatically did not form part of his wages for
purposes of Section 33(2)(b) of the Industrial Disputes Act. The Tribunal fell into a grave error in declining the application of the management for
approval on the ground of short payment of Rs. 12 on account of night shift allowance, which the workman supposedly would have earned had he
gone to report on duty, which in the circumstances he could not, or having worked rotationally at night, which he did not, and that too fictionally, in
the month following the month and the date of the application, on which date the dismissal was to be effective.
In short, the core contention advanced on behalf of the first Respondent/Employee is that it is for the Petitioner/Transport Corporation to
prove that the amount paid to the first Respondent/Employee as per Section 33(2)(b) of the Industrial Disputes Act, 1947 represents the entire or
full wages of the month following the date of dismissal or otherwise.
It is not out of place for this Court to quote Section 33(1) and Section 33(2) of the Industrial Disputes Act, which runs as follows:
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 workmen 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 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.
It is to be noted that an order granting or declining approval of an employee''s dismissal during the pendency of an industrial dispute before the
Conciliation Officer is in exercise of quashing the judicial power, in the considered opinion of this Court.
From the careful reading of Section 33 of the Industrial Disputes Act and by virtue of the ingredients of Section 33(2)(b) of the Industrial
Disputes Act, 1947, it is quite obvious that the conditions specified in the said provision are to be essentially complied with. To put it differently,
the conditions prescribed are being mandatory, they are to be satisfied, if an order of discharge or dismissal passed u/s 33(2)(b) of the Industrial
Disputes Act is to be operative as per decision of the Honourable Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., v. Ram Gopal
Sharma reported in AIR 2002 SC - 643.
Section 33(2)(b) of the Industrial Disputes Act require the Petitioner/Transport Corporation to fulfill the conditions in the manner prescribed
and at the time mentioned therein. Admittedly, the said provision visualizes three factors, viz.,
a. action of discharge or dismissal
b. payment of wages for a month and
c. making of application for approval of the action taken.
The authority viz., the second Respondent is required to examine whether the conditions enumerated in Section 33(2)(b) of the Industrial
Disputes Act are satisfied. If any of these conditions has not been fulfilled, then the concerned authority will refuse to grant approval of the action
taken by the Employer/Management.
It is to be noted that satisfying the requirements of three conditions envisaged as per Section 33(2)(b) of the Industrial Disputes Act ought to
be simultaneous and the Petitioner/Employer''s conduct ought to show that they are part of the same transaction, so that, the Petitioner/Employer,
when it takes action as per Section 33(2) of the Industrial Disputes Act by dismissing or discharging an Employee ought immediately paying or
offer to pay him the wages for the month and also to make an application to the Tribunal for approval at the same time. Satisfying the conditions or
complying with the same is a condition precedent for proceeding with an application for approval on merits by the authority/Tribunal concerned.
The payment of a month''s salary or wages is to soften the rigour of unemployment that will be faced by a workman/Employee against whom
an order of dismissal or discharge has been passed. As per decision in Tata Iron and Steel Co. Ltd. Vs. S.N. Modak, the term ''wages'' has
understood in Section 33(2)(b) of the Industrial Disputes Act, 1947 represents full wages of the month following the date of discharge or dismissal
as enunciated by the provision. In fact, the expression ''wages'' as appreciated and understood by this provision will signify the correct amount so
payable to an Employee. The Petitioner/Transport Corporation as an Employer is to satisfy the Adjudicator that the salary or wages has been paid
or tendered on the date of application as per decision in Hind Galvanising And Engineering Pvt Ltd., v. State of West Bengal reported in 1977
LAB IC 1416 (Cal.). The term ''wages'' has been defined in Section 2(rr) of the Industrial Disputes Act, 1947 ''wages'' to be paid or to be as
visualized by the definition.
It cannot be gainsaid that the term ''wages'' employed in the provision is to be appreciated and understood as the wages which the workman is
entitled to receive and not what is being actually paid by him. To put it differently, if an increment is due at the relevant point of time, the wages as
contemplated as per Section 33(2)(b) of the Act ought to be computed by including the due increment. Failure of the Employer to include the
increment in the wages paid at the time of dismissal will constitute non-compliance of the requirements of the provision as per decision in
Karnataka Agro Industrial Corporation Limited v. Presiding Officer, Industrial Tribunal, Bangalore reported in 1984 LAB IC - 1358 (Kant).
However, if when a specific question is raised as to the noncompliance of the requirement of the provision suggests payment of one month salary,
the authority/Tribunal should decide such an issue as a jurisdictional one before proceeding to go into the question of granting or refusing approval
to the Employer as per the decision in B. Yallappa v. 8th Industrial Tribunal reported in (1997) 2 LLJ 1047.
Equality is the basic tenet of our Constitution. Earlier, the term ''concept of equality'' has been confined to the aspects of discrimination and
classification. Later on, it got expanded to include the Doctrine of promissory estoppel.
The aim of Article 16 of the Constitution of India is to create a constitutional employment right to equality of opportunity in public offices.
Article 21 of the Constitution of India does not refer only to the necessity to comply with the procedural requirements, but also to the
substantive rights of a citizen.
Article 300-A of the Constitution of India embodies the Doctrine of eminent domain which consists of two parts, viz., (i) Acquisition of
property in public interest and (ii) Payment of reasonable compensation therefore.
The provision of Article 300-A of the Constitution of India is available to any person including legal or jurisdictive person and not confined only
to citizen.
The resultant effect to grant ''approval'' will be that the action taken by the employer will be void and inoperative as per the decision in Dinesh
Khare Vs. Industrial Tribunal and Others, .
On going through the order of the second Respondent/Joint Commissioner of Labour (Conciliation), Chennai dated 29/1/2007 in Approval
Petition No. 167 of 2003, this Court is of the considered view that the second Respondent has come to the right conclusion that a proper
Domestic Enquiry in accordance with the relevant rules/Standing Orders and principles of Natural justice has been conducted by the
Petitioner/Employer. Also, that the first Respondent/Employee has been found to be guilty of the charges framed against him and that a prima facie
case for his dismissal based on legal evidence adduced in the domestic enquiry has been made out by the Petitioner/Employer/Transport
Corporation.
Apart from the above, the second Respondent/Joint Commissioner of Labour (Conciliation), Chennai in regard to the issue/point whether the
Petitioner/Transport Corporation has tried or offered to pay wages for one month to the first Respondent/Employee, the second Respondent/Joint
Commissioner of Labour (Conciliation), Chennai has come to the resultant conclusion that as per Ex.OP-1, the monthly wages of the first
Respondent/Employee is Rs. 6,739.50. However, as per Ex.OP-3, the monthly wages of the first Respondent/Employee is Rs. 6,705.50, the
second Respondent in its order in A.P. No. 167 of 2003 dated 29/1/2007 has observed the following:
The Applicant had not explained as to how the variable dearness allowance was reckoned as Rs. 1302.00 in Exhibit OP-3 while it is reckoned as
Rs. 1330.00 in Exhibit OP-1. The variation in the quantum of health allowance between the two documents also was not explained. I take the
contents of Exhibit OP-1 to indicate the one month wages of the Opposite Party and hold that the monthly wages of the Opposite Party as Rs.
6739.50 and as the Applicant had paid to the Opposite Party only Rs. 6705.50/- at the time of his dismissal I hold that the Applicant had not paid
to the Opposite Party his one month''s wages at the time of his dismissal. On this ground I refuse to accord approval for the dismissal of the
Opposite Party.
In short, the second Respondent/Joint Commissioner of Labour (Conciliation), Chennai has refused to grant approval for dismissal of the first
Respondent/Employee.
This Court pertinently points out that any Approval Petition No. 167 of 2003, the Employer/Transport Corporation, in paragraph 10 has
stated that the first Respondent/Employee has been paid a sum of Rs. 6,705.50 being the one month wages by cheque bearing No. 0152268
dated 4/6/2003 payable at State Bank of India, Karaikudi as per Clause (b) of Section (2) of Section 33 of the Industrial Disputes Act, etc.
Inasmuch as the Petitioner/Transport Corporation/Employer has not paid the one month salary or wages to the first Respondent/Employee at
the time of his dismissal and it has paid only a sum of Rs. 6,705.50 through cheque and not Rs. 6,739.50 as per Ex.OP-1, this Court comes to an
inevitable conclusion that the Petitioner/Transport Corporation as an Employer has paid less than one month wages due u/s 33(2)(b) of the
Industrial Disputes Act to the first Respondent/Employee at the time of his dismissal and therefore, the same is a fatal one to the permission sought
by it in A.P. No. 167 of 2003. Moreover, it cannot be said that the order of the second Respondent dated 29.10.2007 in A.P. No. 167 of 2003
is violative of Articles 14, 16, 21 and 300-A of the Constitution of India.
Viewed in that perspective, the order of the second Respondent/Joint Commissioner of Labour (Conciliation), Chennai in A.P. No. 167 of
2003 dated 29/1/2007 in refusing to accord his permission or approval/consent for the dismissal of the first Respondent/Employee, does not suffer
from any serious material irregularity or patent illegality warranting interference in the hands of this Court sitting in writ jurisdiction. Resultantly, the
writ petition fails.
In the result, the writ petition is dismissed, leaving the parties to bear their own costs.