WP/34648/2018 of Garment and Fashion workers Union(Reg.No.3317/CNI) Vs The Assistant Commissioner of Labour (Conciliation)-I on 31 December 2018

O R D E R

The petitioner has come forward with this Writ Petition toforbear the second respondent from taking any disciplinary actionagainst the members of the Petitioner Union included in theAnnexure herewith or altering their service conditions inviolation of Section 33 of the Industrial Disputes Act, till thedisposal of conciliation proceedings in disputes referred tounder ID Nos.659 and 23 of 2017, pending before the firstrespondent.

2. According to the learned counsel for the petitioner,there is a dispute pending and that the Petitioner has to complywith Section 33(1) of the Industrial Disputes Act.

3. For the sake of convenience, Section 33 of theIndustrial Disputes Act, 1947, is extracted hereunder:33. 1 Conditions of service, etc., toremain unchanged under certain circumstancesduring pendency of proceedings.

(1) During the pendency of any conciliationproceeding before a conciliation officer or aBoard or of any proceeding before[ 2] anarbitrator or] a Labour Court or Tribunal orNational Tribunal in respect of an industrialdispute, no employer shall-- (a) in regard to any matter connected withthe dispute, alter, to the prejudice of theworkmen concerned in such dispute, theconditions of service applicable to themimmediately before the commencement of suchproceeding; or (b) for any misconduct connected with thedispute, discharge or punish, whether bydismissal or otherwise, any workmen concerned insuch dispute, save with the express permissionin writing of the authority before which theproceeding is pending.

(2) During the pendency of any suchproceeding in respect of an industrial dispute,the employer may, in accordance with thestanding orders applicable to a workmanconcerned in such dispute[ 2] or, where there areno such standing orders, in accordance with the terms of the contract, whether express orimplied, between him and the workman],-- (a) alter, in regard to any matter notconnected with the dispute, the conditions ofservice applicable to that workman immediatelybefore the commencement of such proceeding; or (b) for any misconduct not connected withthe dispute, or discharge or punish, whether bydismissal or otherwise, that workman: Providedthat no such workman shall be discharged ordismissed, unless he has been paid wages for onemonth and an application has been made by theemployer to the authority before which theproceeding is pending for approval of the actiontaken by the employer."

4. If the relief sought by the petitioner is granted, itis like putting the Cart before the horse. This Court cannotissue a direction as to to how the employer has to act. If thereis any illegality, remedy is available to the petitioner as perthe principles laid down by the Apex Court in the case of JaipurZila Sahakari Bhoomi Vikas Bank Ltd. V. Ram Gopal Sharma reportedin 2002 (2) Supreme Court Cases 244, relevant paragraphs ofwhich, read as under:

"13. The proviso to Section 33(2)(b), ascan be seen from its very unambiguous andclear language, is mandatory. This apart, fromthe object of Section 33 and in the context ofthe proviso to Section 33(2)(b), it is obviousthat the conditions contained in the saidproviso are to be essentially complied with.Further, any employer who contravenes theprovisions of Section 33 invites a punishmentunder Section 31(1) with imprisonment for aterm which may extend to six months or withfine which may extend to Rs 1000 or with both.This penal provision is again a pointer of themandatory nature of the proviso to comply withthe conditions stated therein. To put it inanother way, the said conditions beingmandatory, are to be satisfied if an order ofdischarge or dismissal passed under Section 33(2)(b) is to be operative. If an employerdesires to take benefit of the said provisionfor passing an order of discharge or dismissalof an employee, he has also to take the burdenof discharging the statutory obligation placed on him in the said proviso. Taking a contraryview that an order of discharge or dismissalpassed by an employer in contravention of themandatory conditions contained in the provisodoes not render such an order inoperative orvoid, defeats the very purpose of the provisoand it becomes meaningless. It is well-settledrule of interpretation that no part of statuteshall be construed as unnecessary orsuperfluous. The proviso cannot be diluted ordisobeyed by an employer. He cannot disobeythe mandatory provision and then say that theorder of discharge or dismissal made incontravention of Section 33(2)(b) is not voidor inoperative. He cannot be permitted to takeadvantage of his own wrong. The interpretationof statute must be such that it should advancethe legislative intent and serve the purposefor which it is made rather than to frustrateit. The proviso to Section 33(2)(b) affordsprotection to a workman to safeguard hisinterest and it is a shield againstvictimization and unfair labour practice bythe employer during the pendency of industrialdispute when the relationship between them isalready strained. An employer cannot bepermitted to use the provision of Section 33(2)(b) to ease out a workman without complyingwith the conditions contained in the saidproviso for any alleged misconduct said to beunconnected with the already pendingindustrial dispute. The protection afforded toa workman under the said provision cannot betaken away. If it is to be held that an orderof discharge or dismissal passed by theemployerwithoutcomplyingwiththerequirements of the said proviso is not voidor inoperative, the employer may with impunitydischarge or dismiss a workman.

14. Where an application is made underSection 33(2)(b) proviso, the authority beforewhich the proceeding is pending for approvalof the action taken by the employer has toexamine whether the order of dismissal ordischarge is bona fide; whether it was by wayof victimization or unfair labour practice;whether the conditions contained in theproviso were complied with or not etc. If theauthority refuses to grant approval obviously it follows that the employee continues to bein service as if the order of discharge ordismissal never had been passed. The order ofdismissal or discharge passed invoking Section33(2)(b) dismissing or discharging an employeebrings an end of relationship of the employerand employee from the date of his dismissal ordischarge but that order remains incompleteand remains inchoate as it is subject toapproval of the authority under the saidprovision. In other words, this relationshipcomes to an end de jure only when theauthority grants approval. If approval is notgiven, nothing more is required to be done bythe employee, as it will have to be deemedthat the order of discharge or dismissal hadnever been passed. Consequence of it is thatthe employee is deemed to have continued inservice entitling him to all the benefitsavailable. This being the position there is noneed of a separate or specific order for hisreinstatement. But on the other hand, ifapproval is given by the authority and if theemployee is aggrieved by such an approval, heis entitled to make a complaint under Section33-A challenging the order granting approvalon any of the grounds available to him.Section 33-A is available only to an employeeand is intended to save his time and troubleinasmuch as he can straightaway make acomplaint before the very authority where theindustrial dispute is already pending betweenthe parties challenging the order of approvalinstead of making efforts to raise anindustrial dispute, get a reference andthereafter adjudication. In this view, it isnot correct to say that even though where theorder of discharge or dismissal is inoperativefor contravention of the mandatory conditionscontained in the proviso or where the approvalis refused, a workman should still make acomplaint under Section 33-A and that theorder of dismissal or discharge becomesinvalid or void only when it is set asideunder Section 33-A and that till such time heshould suffer misery of unemployment in spiteof the statutory protection given to him bythe proviso to Section 33(2)(b). It is notcorrect to say that where the order ofdischarge or dismissal becomes inoperative because of contravention of proviso to Section33(2)(b), Section 33-A would be meaninglessand futile. The said section has a definitepurpose to serve, as already stated above,enabling an employee to make a complaint, ifaggrieved by the order of the approvalgranted.

15. The view that when no application ismade or the one made is withdrawn, there is noorder of refusal of such application on meritand as such the order of dismissal ordischarge does not become void or inoperativeunless such an order is set aside underSection 33-A, cannot be accepted. In our view,not making an application under Section 33(2)(b) seeking approval or withdrawing anapplication once made before any order is madethereon, is a clear case of contravention ofthe proviso to Section 33(2)(b). An employerwho does not make an application under Section33(2)(b) or withdraws the one made, cannot berewarded by relieving him of the statutoryobligation created on him to make such anapplication. If it is so done, he will behappier or more comfortable than an employerwho obeys the command of law and makes anapplication inviting scrutiny of the authorityin the matter of granting approval of theaction taken by him. Adherence to andobedience of law should be obvious andnecessary in a system governed by rule of law.An employer by design can avoid to make anapplication after dismissing or discharging anemployee or file it and withdraw before anyorder is passed on it, on its merits, to takea position that such order is not inoperativeor void till it is set aside under Section 33-A notwithstanding the contravention of Section33(2)(b) proviso, driving the employee to haverecourse to one or more proceedings by makinga complaint under Section 33-A or to raiseanother industrial dispute or to make acomplaint under Section 31(1). Such anapproach destroys the protection specificallyand expressly given to an employee under thesaidprovisoasagainstpossiblevictimization, unfair labour practice orharassment because of pendency of industrial dispute so that an employee can be saved fromhardship of unemployment."

5. Though, the decision of the Apex Court in Jaipur Zilacase (cited supra) has been rendered under the context ofviolation of Section 33(2)(b), the same principle will apply tocases falling under Section 33(1).

6. At this juncture, it is worth referring to the ApexCourt decision in the case of Fabril Gasosa Vs. LabourCommissioner, reported in (1997) 3 SCC 150, relevant portion ofwhich, reads as under:

"19. Section 33-C is in the nature ofexecution proceedings designed to recover thedues to the workmen. Vide Sections 33-C(1) and(2), the legislature has provided a speedyremedy to the workmen to have the benefits of asettlement or award which are due to them andare capable of being computed in terms ofmoney, be recovered through the proceedingsunder those sub-sections. The distinctionbetween sub-section (1) and sub-section (2) ofSection 33-C lies mainly in the proceduralaspect and not with any substantive rights ofworkmen as conferred by these two sub-sections.Sub-section (1) comes into play when on theapplication of a workman himself or any otherperson assigned by him in writing in thisbehalf or his assignee or heirs in case of hisdeath, the appropriate Government is satisfiedthat the amounts so claimed are due andpayable to that workman. On that satisfactionbeing arrived at, the Government can initiateaction under this sub-section for recovery ofthe amount provided the amount is a determinedone and requires no “adjudication”. Theappropriate Government does not have the powerto determine the amount due to any workmanunder sub-section (1) and that determinationcan only be done by the labour court under sub-section (2) or in a reference under Section 10(1) of the Act. Even after the determination ismade by the labour court under sub-section (2)the amount so determined by the labour court,can be recovered through the summary and speedyprocedure provided by sub-section (1). Sub-section (1) does not control or affect theambit and operation of sub-section (2) which iswider in scope than sub-section (1). Besides

the rights conferred under Section 33-C(2)exist in addition to any other mode of recoverywhich the workman has under the law. Ananalysis of the scheme of Sections 33-C(1) and33-C(2) shows that the difference between thetwo sub-sections is quite obvious. While theformer sub-section deals with cases where moneyis due to a workman from an employer under asettlement or an award or under the provisionsof Chapter V-A or V-B, sub-section (2) dealswith cases where a workman is entitled toreceive from the employer any money or anybenefit which is capable of being computed interms of money. Thus, where the amount due tothe workmen, flowing from the obligations undera settlement, is predetermined and ascertainedor can be arrived at by any arithmeticalcalculation or simpliciter verification and theonly inquiry that is required to be made iswhether it is due to the workmen or not,recourse to the summary proceedings underSection 33-C(1) of the Act is not onlyappropriate but also desirable to preventharassment to the workmen. Sub-section (1) ofSection 33-C entitles the workmen to apply tothe appropriate Government for issuance of acertificate of recovery for any money due tothem under an award or a settlement or underthe provisions of Chapter V-A and theGovernment, if satisfied, that a specific sumis due to the workmen, is obliged to issue acertificate for the recovery of the amount due.After the requisite certificate is issued bythe Government to the Collector, the Collectoris under a statutory duty to recover theamounts due under the certificate issued tohim. The procedure is aimed at providing aspeedy, cheap and summary manner of recovery ofthe amount due, which the employer haswrongfully withheld. It, therefore, followsthat where money due is on the basis of someamount predetermined like the VDA, the rate ofwhich stands determined in terms of thesettlement, an award or under Chapter V-A or V-B, and the period for which the arrears areclaimed is also known, the case would becovered by sub-section (1) as only acalculation of the amount is required to bemade.

22. The Division Bench of the Bombay HighCourt was therefore, right in holding that therecovery certificates issued by the LabourCommissioner for recovery of the amountsclaimed by the workmen in the proceedings underSection 33-C(1) of the Act were perfectlyvalid, legally sound and suffered from noinfirmity whatsoever. We do not find any meritin these appeals and consequently dismiss thesame with costs. One set of fee only in the twoappeals.

23. Before parting with the judgment, wewould, however, like to clarify that theapplication which has been filed by theemployees' union before the labour court underSection 33-C(2) of the Act for recovery ofbenefits/amounts, other than those claimed intheir application under Section 33-C(1) of theAct shall be decided by the labour court on itsown merits and the findings recorded by ushereinabove shall be considered as confinedonly to the recovery certificates issued by theLabour Commissioner under Section 33-C(1) ofthe Act, which are the subject-matter of theappeals hereby disposed of by us."

7. In a similar circumstance, this Court, by an orderdated 29.12.2016 in W.P.No.44768 of 2016 in the case of PuthiyaJananayaga Thozilalar Munnani vs. Government of Tamil Nadu, hasdismissed the said Writ Petition. Relevant paragraphs of the saiddecision are extracted hereunder:

"10. In view of the disputed question offact, the remedy available to the workman isonly before the Industrial Forum. Section 33(1) of the I.D. Act deals with the conditionsof service that no employer shall in regardto any matter connected with the dispute,alter, to the prejudice of the workmenconcerned in such dispute, the conditions ofservice applicable to them immediately beforethe commencement of such proceedings. Apartfrom that, it also clearly states that forany misconduct connected with the dispute,the employer shall not, without permission,discharge or punish, whether by dismissal orotherwise, any workman concerned in suchdispute.

11. Section 33(2) of the I.D. Act alsocontemplates that the employer during thependency of the Industrial dispute may, inaccordance with the standing orders or ifthere are no standing orders in terms ofcontract whether express or implied, alterthe service conditions of the workman inregard to any other matter not connected withthedispute,immediatelybeforethecommencement of the proceedings. It alsocontemplates that for any misconduct notconnected with the dispute, no such workmanshall be discharged or dismissed, unless hehas been paid wages for one month and anapplication has been made by the employer tothe authority before which the proceeding ispending, for approval of the action taken bythe employer.

12. A conjoint reading of both theabove said provisions makes it clear that itis independent of each other, which clearlystipulates that, in case, the employerviolates the mandatory provisions, then theemployee can seek the relief. The employeescannot presume that the employer is going toviolate the provisions and seek for aninjunction restraining the Management fromproceeding further or a direction not toalter the service conditions or to direct theManagement to comply with the provisions ofthe Act. If there is no compliance by theemployer, the rights are protected not onlyin terms of the I.D. Act, but also in view ofthe Constitution Bench decision in the caseof Jaipur Zila Sahakari Bhoomi Vikas BankLtd. (cited supra).

13. Section 33(3) of the I.D. Actclearly states that no employer shall, duringthe pendency of any such proceeding inrespect of an industrial dispute, take anyaction against any protected workmanconcerned in such dispute, by altering, tothe prejudice of such protected workman, theconditions of service applicable to himimmediately before the commencement of suchproceedings or by discharging or punishing,whether by dismissal or otherwise, such protectedworkman,withtheexpresspermission in writing of the authority beforewhich the proceeding is pending.

14. Section 33(4) of the I.D. Act dealswith number of workmen to be recognised asprotected workmen in every establishment. Incase, the employer violates the mandatoryprovisions of Section 33, the Supreme Courtin the case of Punjab Beverages (P) Ltd. Vs.Suresh Chand (1978 (2) SCC 144) hascategorically held that if an employercontravenes the provisions, the employee canapproach the forum by filing a petition underSection 33-A, and the authority will take upthe complaint under Section 33-A as if it isan industrial dispute, and pass a finalaward. But the Supreme Court has watered downthe said judgment in the case of PunjabBeverages (P) Ltd. (cited supra) and heldthat it is bad in law after 25 years in theyear 2002, in the case of Jaipur ZilaSahakari Boomi Vikas Bank Ltd. (cited supra),wherein, it has been held that if theemployer violates the mandatory provisionsand passes any order, the employee need notapproach the Labour forum, to get an illegalorder set aside to get the benefits, as therewould be no such order passed by the employerin the eye of law. When such wide protectionis given by the Apex Court, which is still alaw of the land, the employees, cannot by-pass the remedy available under theIndustrial Disputes Act and seek the presentprayer and this Court cannot direct theManagement to comply with the provisions ofthe Industrial Disputes Act. The rights ofthe employees are protected under Section 33and if there are any violations by anemployer, it is open for the employees toapproach the Industrial Forum.

15. As already observed, the issue inthis case is a still-born-child. There is noguarantee about the nature of punishment thatmay be imposed, if the charges areestablished and it is also not sure as towhether the disciplinary action would becontinued.

16. Apart from the fact that the WritPetition is against the private Management,there is no iota of evidence that there is animminent danger or the situation is monstrousthat there is violation of statutoryprovisions of the Act driving the petitioner-Union to invoke the Writ Jurisdiction of thisCourt under Article 226 of the Constitutionof India.

17. The contention of the petitioner-Union is that the employees have not beengiven an opportunity to defend in theenquiry, and even though the said request ofopportunity is raised, the members of thepetitioner-Union had not been given a fairchance cannot be gone into in the presentWrit Petition.

18. Moreover, in this case, theemployees concerned are facing charges and itappears from the records that an industrialdispute had been raised only after issuanceof the charge-sheet and in order to defeatthat, one can say that industrial dispute hadbeen raised. In any event, even assumingthat the industrial dispute is raised earlieror subsequently, it is open for the thirdrespondent-Management to take appropriateaction. Nothing prevented the petitioner-Union from raising an industrial dispute atany time and nothing prevented the employerto proceed against the employees at any pointof time. Whether the Management has compliedwith the mandatory provisions of the Act ornot, is a matter to be decided only in thesaid industrial dispute and this aspect ofthe matter cannot be gone into the WritPetition under Article 226 of theConstitution of India. As disputed questionsof fact are involved in this Writ Petition,and as the employees concerned are alreadyfacing charges, apart from the fact that theyhave been issued with charge-sheet and onlysubsequently, they have raised the industrialdispute, the Writ Petition is liable to bedismissed."

8. Now, Section 33-C has been amended, vesting the powersof recovery with the respective Labour Courts.

9. Under the guise of seeking the above relief, thepetitioner is trying to stall the entire proceedings. Once thedispute is pending, the employer has to comply with Section 33 ofthe Industrial Disputes Act, 1947 and it is for the employer todecide as to how the provisions should be followed and he will betaking the risk of not following the provisions. The Courtcannot give directions like the one sought for in this WritPetition, as the workers are armed with the ratio laid down inthe decisions rendered by the Apex Court in the cases of JaipurZila and Fabril Gasosa (cited supra).

10. If this kind of prayer is allowed, no employer wouldbe allowed to proceed with departmental proceedings against theemployee and everyone will approach the Conciliation Officerstating that the employer will have to comply with the provisionsof Section 33 of the Industrial Disputes Act. Hence, if there isany illegality, it is open to the petitioner to proceed inaccordance with law.

11. Registry is directed to mark a copy of this order tothe Principal Secretary to Government, Labour and EmploymentDepartment, Chennai and to all the Labour Courts and IndustrialTribunals in the State of Tamil Nadu.

12. The Principal Secretary to Government, Labour andEmployment Department, Chennai, is expected to circulate a copyof this order to all the Labour Officers/Deputy Commissioners ofLabour/Joint Commissioners of Labour, who are dealing withdisputes under the Industrial Disputes Act, 1947.

This Writ Petition is dismissed with the above directionsand observations. No costs. Consequently, connectedmiscellaneous petition is closed. Sd/-Deputy Registrar //True copy//

vrc/aeb

To:

1. The Principal Secretary to Government, Labour & Employment Department, Fort ST George, Chennai – 9. (To take necessary steps) Fort ST George, Chennai – 9. (To take necessary steps)

2. The Assistant Commissioner of Labour (Conciliation)-I, SIPCOT Office Complex, Irungattukkottai, Sriperumbudur Taluk, Kanchipuram District. SIPCOT Office Complex, Irungattukkottai, Sriperumbudur Taluk, Kanchipuram District.

Copy To : The Court Manager, High Court, Madras (To take necessary steps) (To take necessary steps)

+1cc to Mrs.D.Geetha, Advocate SR.No.434

W.P. No.34648 of 2018

EV(CO)GMY(21/01/2019)