Research › Search › Judgment

Calcutta High Court · body

2003 DIGILAW 243 (CAL)

YELLAPPA. B. v. STEEL AUTHORITY OF INDIA LTD.

2003-05-15

INDIRA BANERJEE

body2003
INDIRA BANERJEE, J. ( 1 ) THIS writ petition is directed against the action of the Respondent No. 1, hereinafter referred to as respondent SAIL in not reinstating the petitioner in service and paying him his arrear salary and allowances, notwithstanding an order dated passed by the learned Eighth Industrial Tribunal, West Bengal rejecting the application of respondent SAIL under Section 33 (3) (b) of the Industrial Disputes Act, 1947. ( 2 ) THE facts pertaining to this writ application are briefly narrated hereinafter: the petitioner claims to have been a permanent workman of respondent SAIL. According to the petitioner, the petitioner was appointed as a workman of the Bangalore Branch of respondent SAIL on or about August 20, 1971. ( 3 ) THE petitioner has alleged that he was an Office Bearer of the SAIL Employees Association, which according to the petitioner, is the only registered and recognised union in the Bangalore Branch of respondent SAIL. ( 4 ) IT is alleged that in 1991-92, 1531 M. T. of steel materials were misappropriated from the Bangalore Branch of respondent SAIL. It is further alleged that the protests raised by the petitioner, as Office Bearer of the SAIL Employees Association, against such misappropriation of public property, made him incur the wrath of Officers responsible for the management of the said Branch of respondent SAIL. ( 5 ) ACCORDING to the petitioner, on an earlier occasion, the management of respondent SAIL had imposed on the petitioner the punishment of stoppage of three increments and had filed an application under Section 33 (3) (b) of the Industrial Disputes Act, 1947 before the learned Eighth Industrial Tribunal, West Bengal being the Respondent No. 8 and hereinafter referred to as the learned Tribunal. The learned Tribunal by an order dated November 9, 1992 rejected the said application of respondent SAIL inter alia holding that the action of the management was intended to victimise the workman. The said order dated November 9, 1992 of the learned Tribunal was challenged by the respondent SAIL in proceedings under Article 226 of the Constitution of India in this Court. The said proceedings were, however, withdrawn. ( 6 ) THE case of the petitioner is that during the period from May 29, 1992 to June 6, 1992, the petitioner travelled to Calcutta to attend to the proceedings before the learned Tribunal in connection with the case referred to above. The said proceedings were, however, withdrawn. ( 6 ) THE case of the petitioner is that during the period from May 29, 1992 to June 6, 1992, the petitioner travelled to Calcutta to attend to the proceedings before the learned Tribunal in connection with the case referred to above. ( 7 ) IT is alleged that for participation in the hearing, the petitioner was directed to draw Travelling Allowance and Daily Allowance as per the Travelling Allowance Rules of the respondent SAIL. The petitioner accordingly drew Rs. 2612/- as Travelling Allowance allegedly as per the Rules of respondent SAIL for his journey from Bangalore to Howrah and back to Bangalore. ( 8 ) ACCORDING to the petitioner, the decision of the learned Tribunal in the case under Section 33 (3) (b) of the Industrial Disputes Act, 1947, having gone against the respondent SAIL, the management of respondent SAIL became vindictive and laid a trap to victimise the petitioner. Accordingly, a motivated charge-sheet was issued on the basis of allegedly inapplicable Service Rules of Hindustan Steel Limited whereas, according to the petitioner, the petitioner is governed by the SAIL Conduct, Discipline and Appeal Rules, 1977. ( 9 ) A charge-sheet appears to have been issued against the petitioner wherein it had been alleged that the petitioner had not undertaken travel by AC Second Class as per the T. A. Rules of the company. ( 10 ) PURSUANT to the aforesaid charge-sheet, an enquiry was held which, according to the petitioner, was a mere eye wash. The petitioner allegedly had no opportunity to defend the enquiry proceedings fairly. ( 11 ) THE petitioner was dismissed from service of respondent SAIL with effect from October 31, 1994 on the basis of the allegations framed in the charge-sheet and was given a cheque for Rs. 4,503. 73. According to the petitioner the petitioner did not accept the aforesaid cheque, since the amount of the cheque did not cover one full month's full salary as required under the proviso to Section 33 (2) (b) of the Industrial Disputes Act, 1947. ( 12 ) ACCORDING to the petitioner the petitioner was a protected workman as would be evident from the outcome of the proceedings earlier initiated by respondent SAIL under Section 33 (3) (b) of the Industrial Disputes Act, 1947. ( 12 ) ACCORDING to the petitioner the petitioner was a protected workman as would be evident from the outcome of the proceedings earlier initiated by respondent SAIL under Section 33 (3) (b) of the Industrial Disputes Act, 1947. ( 13 ) RESPONDENT SAIL filed another application under Section 33 (3) (b) of the Industrial Disputes Act, 1947 before the learned Tribunal for approval of their action in dismissing the petitioner from service with effect from October 31, 1994. The petitioner appears to have submitted his written objection to the said application on March 29, 1995. A copy of the written objection has been annexed to the writ petition. ( 14 ) THE petitioner also filed a complaint under Section 33-A of the Industrial Disputes Act, 1947 against respondent SAIL before the learned Tribunal for contravention of the provisions of Section 33 of the said Act. The hearing of the said complaint was, however, kept in abeyance till the disposal of the application of the respondent SAIL under Section 33 (3) (b) of the Industrial Disputes Act, 1947. ( 15 ) THE petitioner made an application dated September 22, 1995 before the learned Tribunal for a preliminary decision on the question of whether the mandatory proviso to Section 33 (2) (b) of the Industrial Disputes Act, 1947 had been complied with in dismissing the petitioner. ( 16 ) THE learned Tribunal by an Order No. 33 dated February 4, 1997 held that it was necessary to go into the validity of the domestic enquiry before examining the question of whether there had been compliance of the mandatory proviso to Section 33 (2) (b) of the Industrial Disputes Act, 1947. ( 17 ) THE petitioner moved an application under Article 226 of the Constitution of India in this Court challenging the aforesaid order of the learned Tribunal. By an order dated October 29, 1997 this Court was pleased to set aside the said order dated February 4, 1997 and to direct the learned Tribunal to decide the question of compliance with the proviso to Section 33 (2) (b) of the Industrial Disputes Act, 1947 and the maintainability of the application of respondent SAIL under Section 33 (3) (b) of the said Act as a preliminary issue. ( 18 ) BY an order dated May 29, 1998 the learned Tribunal disapproved the action of respondent SAIL in dismissing the petitioner from service. ( 18 ) BY an order dated May 29, 1998 the learned Tribunal disapproved the action of respondent SAIL in dismissing the petitioner from service. ( 19 ) THE petitioner thereafter, from time to time made representations to the respondent SAIL claiming reinstatement in service and also payment of full back wages from November 1, 1994 but the respondent SAIL did not accede to such request. ( 20 ) THE instant writ application has been filed by the petitioner for orders on respondent SAIL to reinstate the petitioner with back wages in view of the order dated May 29, 1998 of the learned Tribunal. ( 21 ) RESPONDENT SAIL filed an Affidavit-in-opposition denying the allegations levelled by the petitioner against respondent AIL and its officers. Respondent SAIL has contended that refusal to approve an order of dismissal does not in itself make the order of dismissal void but the same has to be challenged by way of proceedings under Section 10 of the Industrial Disputes Act. ( 22 ) THE Court is neither concerned with nor adjudicating the veracity of the allegations and counter allegations levelled by the parties against each other or the merits of the disciplinary proceedings initiated by respondent SAIL against the petitioner. ( 23 ) THE only point involved in this writ application is the effect of rejection of an application for approval under Section 33 (3) (b) of the Industrial Disputes Act, 1947; whether such rejection gives rise to a claim for reinstatement. ( 24 ) THE aforesaid issue is clearly covered by decision of the Supreme Court in the case of M. D. , Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam reported in 2001-I-LLJ-1706 wherein the Supreme Court held has as follows at p. 1710:"15. From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains orders of approval from the Tribunal, The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under Section 33 (2) (b) of the Act on merit the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal's rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in Section 33 (1) irrelevant. " ( 25 ) IN the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. , reported in 2000 (2) SCC 244 : 2002-I-LLJ-834 a 5-Judge Bench overruling the earlier Supreme Court decision in the case of Punjab Beverages Private Limited held that non-approval of the order of dismissal under Section 33 (2) (b) would render the order of dismissal inoperative and/or invalid. The effect of non- approval of the action of dismissal of a protected workman under Section 33 (3) (b) of the Industrial Disputes Act, 1947 is the same as the effect of non-approval of the action of dismissal of a workman under Section 33 (2) (b) of the said Act. ( 26 ) THERE can be no doubt that respondent SAIL being a Government Company within the meaning of Section 617 of the Companies Act, 1956 wholly owned by the Union of India is State within the meaning of Article 12 of the Constitution and amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The issues involved in this writ application are squarely covered by the decisions of the Hon'ble Supreme Court in the cases of M. D. , Tamilnadu State Transport Corporation (supra) and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra ). The petitioner is, therefore, entitled to the reliefs prayed for in this petition. ( 27 ) IN the result the writ application is allowed. The petitioner is, therefore, entitled to the reliefs prayed for in this petition. ( 27 ) IN the result the writ application is allowed. Respondent SAIL shall forthwith reinstate the petitioner provided the petitioner has not attained the age of retirement in the meanwhile. All back wages due and payable to the petitioner shall be released to the petitioner within 60 days from the date of communication of this order to respondent SAIL. ( 28 ) IN the event, the petitioner has attained the age of retirement, in the meanwhile, the petitioner shall be deemed to have been in service, till the date he attained the age of retirement and be paid full salary and allowances till such date, inclusive of normal increments to which the petitioner would have been entitled had he been in continuous service till such dates and shall further be given all retirement benefits due and payable to the petitioner. In computing such retirement benefits the petitioner shall be deemed to have been in continuous service of respondent SAIL till the date he attained his age of retirement.