WP/44769/2016 of Puthiya Jananayaga Vagana Vs The Government of Tamil Nadu on 29 December 2016

1. Government of Tamil Nadu, Represented by its Secretary, Labour and Employment Department, Fort St.George, Chennai-600 009.

2. The Assistant Commissioner of Labour (Conciliation)-2, Kuralagam, Chennai.

3. The Management, R.M.K. Engineering College, R.S.M.Nagar, Kavarapettai, Gummidipoondi Taluk, Tiruvallur District.

4. The Management,

R.M.D. Engineering College, R.M.K.Nagar, Kavarapettai, Gummidipoondi Taluk, Tiruvallur District.

5. The Management,

R.M.K. College of Engineering and Technology, R.M.K.Nagar, Puthuvayal, Gummidipoondi Taluk, Tiruvallur District.

6. The Management, Sri Durgadevi Polytechnic, R.S.M.Nagar, Kavarapettai, Gummidipoondi Taluk, Tiruvallur District.

7. The Management, R.M.K.Padasala, R.S.M.Nagar, Kavarapettai, Gummidipoondi Taluk, Tiruvallur District.

8. The Management, R.M.K. Matric. Hr. Sec. School, R.S.M.Nagar, Kavarapettai, Gummidipoondi Taluk, Tiruvallur District... Respondents Writ Petition filed under Article 226 of the Constitutionof India, praying for issuance of a Writ of Mandamus to forbearthe respondents 3 to 8 from altering the service conditions ofthe members of the petitioner-Union, (whose list of names areenclosed in the annexure to the Writ Petition), in any mannerwhich will make result in non-employment to the members of thepetitioner-Union, without getting prior permission underSection 33 of the Industrial Disputes Act, 1947, in theindustrial dispute raised by the petitioner-Union, dated16.01.2015 with regard to charter of demands which are pendingconciliation before the second respondent and further direct theConciliation Officer, viz., second respondent to conciliate andeffect settlement under Section 12(3) and if no settlement isforthcoming, to submit failure report under Section 12(4) of theIndustrial Disputes Act, 1947 and in turn, direct the firstrespondent to refer the dispute for adjudication before thecompetent adjudicator.

The prayer in this Writ Petition is for issuance of a Writof Mandamus to forbear the respondents 3 to 8 from altering theservice conditions of the members of the petitioner-Union, inany manner which will make result in non-employment to themembers of the petitioner-Union, without getting priorpermission under Section 33 of the Industrial Disputes Act,

1947, in the industrial dispute raised by the petitioner-Union,dated 16.01.2015 with regard to charter of demands which arepending conciliation before the second respondent and furtherdirect the Conciliation Officer, viz., second respondent toconciliate and effect settlement under Section 12(3) and if nosettlement is forthcoming, to submit failure report underSection 12(4) of the Industrial Disputes Act, 1947 and in turn,direct the first respondent to refer the dispute foradjudication before the competent adjudicator.

2. Heard the learned counsel appearing for the learnedcounsel on record, for the petitioner and the learnedAdditional Government Pleader appearing for the respondents 1and 2. In view of the order that is being passed in this WritPetition, it is not necessary to issue notice to the respondents3 to 8.

3. From the narration of events, it appears that thepetitioner-Union is alleged to have been registered under theTrade Union Act. The petitioner-Union has raised an industrialdispute. It appears that some of the members-employees havebeen suspended and they have also given a representation thatthey have not been provided with a job and that no wages havebeen paid them. From the records, it is clear that eightemployees have been suspended and they have been getting wagesinitially without any work. After suspension of the employees,they have been charge-sheeted by the Management. According tothe petitioner-Union, those employees have already given a replyimmediately thereafter. An industrial dispute is also pendingbetween the parties. The Writ Petition is being proceeded on thepresumption that the Management is not going to comply with theprovisions of the Industrial Disputes Act. Even assuming thatthe members of the petitioner-Union are "workmen" under variousrespondents-private management and even assuming that theIndustrial Disputes Act is applicable to them, the petitioner-Union cannot seek the relief against the private management.Hence, the Writ Petition has got to be dismissed.

4. It is true that for statutory violation, the WritPetition can be maintained, in view of the decision of a FullBench of this Court reported in 2006 (4) C.T.C. 689 = 2006 (4)L.W. 495 (K.Marappan vs. The Deputy Registrar of Co-operativeSocieties, Namakkal & another). Further, learned counselappearing for the petitioner also relied upon a judgment of thisCourt reported in 2002 (4) LLN 530 (A.N.E.Workers Union Vs.Planters' Assn. of T.N), wherein it was pointed out that a WritPetition against a private management is maintainable forstatutory violation.

5. In this case, the issue is a still-born-child. From therecords, it appears that the Management in this case has

admittedly charge-sheeted the employees, which is pending, andthe employees have been suspended due to the pendency of thecharge-sheet. Learned counsel appearing for the petitioner-Union has also drawn the attention of this Court that in similarcircumstances, this Court has issued interim orders not to alterthe service conditions of the employees. This reliance on theinterim order will not be helpful to the petitioner-Union to thefacts and circumstances of the present case, and further, thisCourt is deciding the matter on merits and the Writ Petition isbeing disposed of finally. Admittedly, there is no alteration ofservice conditions, as it appears from the records placed beforethis Court. Merely because an industrial dispute is pendingunder the Industrial Disputes Act, the Act nowhere states thatthe Management should fold their hands and keep quiet and wouldnot proceed further during the pendency of an industrial disputeagainst the employees and hence, the prayer sought for in theWrit Petition cannot be granted. It is alleged that there isviolation of Section 33(1) of the I.D. Act. Apparently, as ondate, there is no violation of Section 33 of the I.D. Act. Ifthe Management is going to alter any of the service conditionsas alleged by the petitioner-Union, then the petitioner may seekrelief and that is absent in this case till date. TheManagement may seek orders under Section 33(2)(b) of the I.D.Act, as some of the employees have committed misconduct, and itis for the respondents-Management to proceed against thoseemployees and take a final call. If the employee is a'protected workman', the Management can take permission beforepassing the final orders, and if he is 'not a protectedworkman', then it is for the respondents-Management to pass anyorder of their choice and seek approval of their action underSection 33(2)(b) of the I.D. Act. The words mentioned inSection 33(2)(b) are very clear that the Management is entitledto proceed against the workmen and seek approval of their actionand not prior permission. In any event, such a situation hasnot arisen till date.

6. In the decision of the Supreme Court reported in 2002 (2)SCC 244 (Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. RamGopal Sharma), the Constitution Bench of the Supreme Court madeit clear that the Management can proceed against the worker andpass final order. The only thing is that they have to complywith the mandatory provisions of Section 33(2)(b) of the I.D.Act. For better appreciation of the case, paragraphs 13 to 15of the said decision of the Supreme Court are extractedhereunder:

"13. The proviso to Section 33(2)(b), as canbe seen from its very unambiguous and clearlanguage, is mandatory. This apart, from theobject of Section 33 and in the context of theproviso to Section 33(2)(b), it is obvious that

the conditions contained in the said proviso areto be essentially complied with. Further anyemployer who contravenes the provisions ofSection 33 invites a punishment under S.31(1)with imprisonment for a term which may extend tosix months or with fine which may extend toRs.1000/- or with both. This penal provision isagain a pointer of the mandatory nature of theproviso to comply with the conditions statedtherein. To put it in another way, the saidconditions being mandatory, are to be satisfiedif an order of discharge or dismissal passedunder Section 33(2)(b) is to be operative. If anemployer desires to take benefit of the saidprovision for passing an order of discharge ordismissal of an employee, he has also to take theburden of discharging the statutory obligationplaced on him in the said proviso. Taking acontrary view that an order of discharge ordismissal passed by an employer in contraventionof the mandatory conditions contained in theproviso does not render such an order inoperativeor void, 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 or superfluous.The proviso cannot be diluted or disobeyed by anemployer. He cannot disobey the mandatoryprovision and then say that the order ofdischarge or dismissal made in contravention ofSection 33(2)(b) is not void or inoperative. Hecannot be permitted to take advantage of his ownwrong. The interpretation of statute must be suchthat it should advance the legislative intent andserve the purpose for which it is made ratherthan to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman tosafeguard his interest and it is a shield againstvictimization and unfair labour practice by theemployer during the pendency of industrialdispute when the relationship between them arealready strained. An employer cannot be permittedto use the provision of Section 33(2)(b) to easeout a workman without complying with theconditions contained in the said proviso for anyalleged misconduct said to be unconnected withthe already pending industrial dispute. Theprotection afforded to a workman under the saidprovision cannot be taken away. If it is to beheld that an order of discharge or dismissal passed by the employer without complying with therequirements of the said proviso is not void orinoperative, 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 approval ofthe action taken by the employer has to examinewhether the order of dismissal or discharge isbona fide; whether it was by way of victimizationor unfair labour practice; whether the conditionscontained in the proviso were complied with ornot, etc. If the authority refuses to grantapproval obviously it follows that the employeecontinues to be in service as if order ofdischarge or dismissal never had been passed. Theorder of dismissal or discharge passed invokingSection 33(2)(b) dismissing or discharging anemployee brings an end of relationship ofemployer and employee from the date of hisdismissal or discharge but that order remainsincomplete and remains inchoate as it is subjectto approval of the authority under the saidprovision. In other words, this relationshipcomes to an end de jure only when the authoritygrants approval. If approval is not given,nothing more is required to be done by theemployee, as it will have to be deemed that theorder of discharge or dismissal had never beenpassed. Consequence of it is that the employee isdeemed to have continued in service entitling himto all the benefits available. This being theposition there is no need of a separate orspecific order for his reinstatement. But on theother hand, if approval is given by the authorityand if the employee is aggrieved by such anapproval, he is entitled to make a complaintunder Section 33-A challenging the order grantingapproval on any of the grounds available to him.Section 33-A is available only to an employee andis intended to save his time and trouble inasmuchas he can straightaway make a complaint beforethe very authority where the industrial disputeis already pending between the partieschallenging the order of approval instead ofmaking efforts to raise an industrial dispute,get a reference and thereafter adjudication. Inthis view, it is not correct to say that eventhough where the order of discharge or dismissal is inoperative for contravention of the mandatoryconditions contained in the proviso or where theapproval is refused, a workman should still makea complaint under Section 33-A and that the orderof dismissal or discharge becomes invalid or voidonly when it is set aside under Section 33-A andthat till such time he should suffer misery ofunemployment in spite of statutory protectiongiven to him by the proviso to Section 33(2)(b).It is not correct to say that where the order ofdischarge or dismissal becomes inoperativebecause of contravention of proviso to Section 33(2)(b), Section 33-A would be meaningless andfutile. The said Section has a definite purposeto serve, as already stated above, enabling anemployee to make a complaint, if aggrieved by theorder of the approval granted.

15. The view that when no application is madeor the one made is withdrawn, there is no orderof refusal of such application on merit and assuch the order of dismissal or discharge does notbecome void or inoperative unless such an orderis set aside under Section 33-A, cannot beaccepted. In our view, not making an applicationunder Section 33(2)(b) seeking approval orwithdrawing an application once made before anyorder is made thereon, is a clear case ofcontravention of the proviso to Section 33(2)(b).An employer who does not make an applicationunder Section 33(2)(b) or withdraws the one made,cannot be rewarded by relieving him of thestatutory obligation created on him to make suchan application. If it is so done, he will behappier or more comfortable than an employer whoobeys the command of law and makes an applicationinviting scrutiny of the authority in the matterof granting approval of the action taken by him.Adherence to and obedience of law should beobvious and necessary in a system governed byrule of law. An employer by design can avoid tomake an application after dismissing ordischarging an employee or file it and withdrawbefore any order is passed on it, on its merits,to take a position that such order is notinoperative or void till it is set aside underSection 33-A notwithstanding the contravention ofSection 33(2)(b) proviso, driving the employee tohave recourse to one or more proceeding by makinga complaint under Section 33-A or to raise another industrial dispute or to make a complaintunder Section 31(1). Such an approach destroysthe protection specifically and expressly givento an employee under the said proviso as againstpossible victimization, unfair labour practice orharassment because of pendency of industrialdispute so that an employee can be saved fromhardship of unemployment."

7. From the above observations of the Supreme Court, it isclear that if the Management fails to discharge the statutoryobligation, then there is no need for an employee to knock atthe Courts of justice to get a dismissal or discharge or anyorder set aside, as non-compliance of the statutory provisionswould make the order non-est in the eye of law.

8. Further, the decision of this Court reported in 2011Writ.L.R. 734 (M/s.Chidambaram Shipcare Pvt. Ltd. Vs. ThePresiding Officer, Principal Labour Court, Chennai and others)is not applicable to the facts of the present case, as in thatcase, the Writ Petition was filed against an order passed in theapproval petition, wherein, this Court has set aside the orderon the ground of non-compliance of mandatory provisions of theStanding Orders and the learned Judge of this Court has observedin paragraphs 55 to 57 as follows:

"55. The Scheme of the Industrial DisputesAct provides utmost importance to the TradeUnions. In fact, it contemplates the industrialdispute under Section 2(K) of the Act, being thedispute raised by the body of workmen, namelyTrade Union. The Act originally enacted did notprovide for individual workman to raise anindustrial dispute even in the case of non-employment of an individual workman. Section 2-Aof the Industrial Disputes Act making disputerelating to dismissal/termination of individualas deeming industrial dispute, was introduced ata later point of time. The Act provides forresolving disputes by way of settlement oradjudication. In both the cases, Trade Unionsassume the most important part. The Actrecognizes the settlement being signed only bythe Trade Union in the case of conditions ofservice of workman. The Act contemplatescollective bargaining. In fact, Section 36 of theAct provides right of Trade Union to represent inthe conciliation proceedings and before theLabour Courts/Industrial Tribunals. Whenever theemployer proposes to bring change in theconditions of service, Section 9-A of the Industrial Disputes Act read with the Rulesframed thereunder contemplates providing ofnotice to the Union. Whenever the workmen go onstrike, the Trade Union should issue notice asper the conditions of service and in the case ofpublic utility service, it is a must for issuingnotice on strike by the Unions. Section 33 of theAct provides protection to the office bearer ofthe Trade Union from being victimised by theemployer, while disputes are pending adjudicationor conciliation. Thus, the Scheme of the Actprovides a pivotal role for Trade Unions.

56. In 1984, as stated above, unfair labourpractice is defined and certain practices of theTrade Unions are now codified as unfair labourpractices, while certain practices of employersare codified as unfair labour practices. The Actprohibits unfair labour practices being committedby employer or Trade Union. Thus, the Scheme oftheIndustrialDisputesActandmoreparticularly, after codification of unfair labourpractices and in particular, clause 5(f) of FifthSchedule of the Industrial Disputes Act, it isincumbent on the employer to provide theassistance of an office bearer of the Trade Unionin the domestic enquiry to which the workman is amember. Therefore, the Central Government hasmade it as conditions of service by incorporatingthe same in rule 14(4)(ba) in the Model StandingOrders framed by them, as stated above. It isrelevant that Section 3 of the Standing OrdersAct read with Section 5 make it mandatory thatwhen the employer submits draft Standing Ordersfor certification, the Certifying Officer shallforward a copy thereof to the Trade Unions and tohear the Trade Unions in the certificationproceedings. Thus, the Trade Union is given aright to be heard, while framing the conditionsof service of the workmen. While submitting draftstanding orders, Section 3 of the Standing OrdersAct contemplates that the draft standing ordersshall be in conformity with the Model StandingOrders. Section 4 of the Act makes it clear thatit is the duty of the Certifying Officer toadjudicate on reasonableness of the provisions ofthe Standing Orders. Hence, while certifying anystanding orders, the Certifying Officer, takinginto account the above principles, should ensurethat the workman is given assistance by the office bearer of the Trade Union in the domesticenquiry, to which the workman is a member.

57. Therefore, I am of the consideredopinion that the Government of Tamil Nadu alsoshould make a provision in the Model StandingOrders, as has been made by the CentralGovernment in the Model Standing Orders framed bythem in rule 14(4)(ba) of the IndustrialEmployment (Standing Orders) Central Rules 1946,taking into account the Scheme of the IndustrialDisputes Act, the Trade Unions Act and theStanding Orders Act and more particularly, thecodification of unfair labour practices in theyear 1984 in the Industrial Disputes Act, asstated above."

9. As the matter between the Management/Union and theworkers with regard to charter demand and misconduct in respectof certain employees are pending, unless and until, the employercommits any violation of the mandatory provision, the employeescannot seek redressal of their grievance before any Court,muchless this Court.

10. In view of the disputed question of fact, the remedyavailable to the workman is only before the Industrial Forum.Section 33(1) of the I.D. Act deals with the conditions ofservice that no employer shall in regard to any matter connectedwith the dispute, alter, to the prejudice of the workmenconcerned in such dispute, the conditions of service applicableto them immediately before the commencement of such proceedings.Apart from that, it also clearly states that for any misconductconnected with the dispute, the employer shall not, withoutpermission, discharge or punish, whether by dismissal orotherwise, any workman concerned in such dispute.

11. Section 33(2) of the I.D. Act also contemplates that theemployer during the pendency of the Industrial dispute may, inaccordance with the standing orders or if there are no standingorders in terms of contract whether express or implied, alterthe service conditions of the workman in regard to any othermatter not connected with the dispute, immediately before thecommencement of the proceedings. It also contemplates that forany misconduct not connected with the dispute, no such workmanshall be discharged or dismissed, unless he has been paid wagesfor one month and an application has been made by the employerto the authority before which the proceeding is pending, forapproval of the action taken by the employer.

12. A conjoint reading of both the above said provisionsmakes it clear that it is independent of each other, whichclearly stipulates that, in case, the employer violates themandatory provisions, then the employee can seek the relief. Theemployees cannot presume that the employer is going to violatethe provisions and seek for an injunction restraining theManagement from proceeding further or a direction not to alterthe service conditions or to direct the Management to complywith the provisions of the Act. If there is no compliance bythe employer, the rights are protected not only in terms of theI.D. Act, but also in view of the Constitution Bench decision inthe case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (citedsupra).

13. Section 33(3) of the I.D. Act clearly states that noemployer shall, during the pendency of any such proceeding inrespect of an industrial dispute, take any action against anyprotected workman concerned in such dispute, by altering, to theprejudice of such protected workman, the conditions of serviceapplicable to him immediately before the commencement of suchproceedings or by discharging or punishing, whether by dismissalor otherwise, such protected workman, with the expresspermission in writing of the authority before which theproceeding is pending.

14. Section 33(4) of the I.D. Act deals with number ofworkmen to be recognised as protected workmen in everyestablishment. In case, the employer violates the mandatoryprovisions of Section 33, the Supreme Court in the case ofPunjab Beverages (P) Ltd. Vs. Suresh Chand (1978 (2) SCC 144)has categorically held that if an employer contravenes theprovisions, the employee can approach the forum by filing apetition under Section 33-A, and the authority will take up thecomplaint under Section 33-A as if it is an industrial dispute,and pass a final award. But the Supreme Court has watered downthe said judgment in the case of Punjab Beverages (P) Ltd.(cited supra) and held that it is bad in law after 25 years inthe year 2002, in the case of Jaipur Zila Sahakari Boomi VikasBank Ltd. (cited supra), wherein, it has been held that if theemployer violates the mandatory provisions and passes any order,the employee need not approach the Labour forum, to get anillegal order set aside to get the benefits, as there would beno such order passed by the employer in the eye of law. Whensuch wide protection is given by the Apex Court, which is stilla law of the land, the employees, cannot by-pass the remedyavailable under the Industrial Disputes Act and seek the presentprayer and this Court cannot direct the Management to complywith the provisions of the Industrial Disputes Act. The rightsof the employees are protected under Section 33 and if there are any violations by an employer, it is open for the employees toapproach the Industrial Forum.

15. As already observed, the issue in this case is a still-born-child. There is no guarantee about the nature of punishmentthat may be imposed, if the charges are established and it isalso not sure as to whether the disciplinary action would becontinued. If the employees commit serious misconduct, there isnothing wrong on the part of the employer showing the doors tothose persons. But what is contemplated is that the Managementshall comply with the provisions of the Industrial Disputes Act,which will come into operation at the final stage and that stagehas not come as on date.

16. Apart from the fact that the Writ Petition is againstthe private Management, there is no iota of evidence that thereis an imminent danger or the situation is monstrous, that thereis violation of statutory provisions of the Act driving thepetitioner-Union to invoke the Writ Jurisdiction of this Courtunder Article 226 of the Constitution of India.

17. The contention of the petitioner-Union is that theemployees have not been given an opportunity to defend in theenquiry, and even though the said request of opportunity israised, the members of the petitioner-Union have not been givena fair chance cannot be gone into in the present Writ Petition.

18. Also, the averment of the petitioner-Union that therehas been unfair labour practice, cannot be accepted at thisstage. An employer can allege that the employees have committedunfair labour practice, and similar allegation can also be madeagainst the Management that the employer had committed unfairlabour practice against the employees. Schedule V to theIndustrial Disputes Act is clear with regard to the unfairlabour practice committed by an employer against the employeesor vice-versa. These are all disputed questions of fact, whichcannot be gone into in the Writ Petition under Article 226 ofthe Constitution of India.

19. Hence, for the reasons stated above, I find no merits inthe Writ Petition and the same is liable to be dismissed.Accordingly, the Writ Petition is dismissed. Though it is a fitcase for imposing costs of not less than Rs.25,000/- on thepetitioner-Union, taking note of the fact that the employees arerepresented by the Union, this Court refrains from imposingcosts. Consequently, connected W.M.P. is closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant RegistrarTo:1. The Secretary, Labour and Employment Department, Fort St.George, Chennai-600 009.2. The Assistant Commissioner of Labour (Conciliation)-2, Kuralagam, Chennai.+2cc to Mr.M. Suresh Sakthi Murugan, Advocate, S.R.No.77SK(CO)md(18/01/2017)W.P.No.44769 of 2016