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2017 DIGILAW 1509 (KER)

Hotel Sudarsan v. Sukesh. S.

2017-12-15

DEVAN RAMACHANDRAN

body2017
JUDGMENT : The provisions of the Industrial Disputes Act, 1947 (herein after referred to as 'the Act' in short) makes very fastidious provisions relating to conditions of service with respect to workmen when a dispute between them and the management is pending before any of the Authorities stipulated under the Act, viz., the Conciliation Officer, Board of conciliation, Labour Court or Tribunal and the National Tribunal. 2. The provisions of Section 33 of the Act makes the requirements statutory and renders it statutorily ineludible that any attempt to alter the conditions of service or to impose any punishment for such workmen during the pendency of such dispute, shall be sanctioned only with the prior permission and approval of the competent Authority. 3. The petitioner in this case is stated to be a firm engaged in the business of running a hotel by the name “Hotel Sudarsan”. The 1st respondent is said to be an assistant cook engaged by them for the last several years. The petitioner alleges that the 1st respondent was habituated to unauthorised absence of different spells, which compelled them to issue Ext.P1 charge sheet dated 16.04.2013. The petitioner asserts that the 1st respondent did not even cause any reply to these allegations which, therefore, constrained them to cause an enquiry, culminating in Ext.P2 report, in which again the 1st respondent did not participate. As per them, the competent disciplinary Authority, thereafter, issued Ext.P3 order, dated 11.10.2013, imposing a punishment of dismissal from service on the 1st respondent. 4. In the meanwhile, when the above disciplinary action was pending against the 1st respondent, it transpires that one of the trade unions had made a charter of demands, a copy of which has been appended to this writ petition as Ext.P4, wherein several demands were raised on behalf of the workmen of the Hotel. One of their demands, namely, Item No.11 related to the 1st respondent which reads as under: “xxxx” (Appoint Sri. S.Sukesh, Assistant Cook, who has been working as a cook for the last twelve years and to give him the salary and benefits of a cook) 5. One of their demands, namely, Item No.11 related to the 1st respondent which reads as under: “xxxx” (Appoint Sri. S.Sukesh, Assistant Cook, who has been working as a cook for the last twelve years and to give him the salary and benefits of a cook) 5. The demand, as is perspicuous from the above, with respect to 1st respondent was that he had been working as an assistant cook for the last 12 years and on the insinuating allegation that he has been denied posting as a cook, to appoint him as such and to pay him the salary and allowances applicable to that post. 6. This charter of the demands was pending conciliation before the Additional Labour Commissioner, Thiruvananthapuram (wrongly shown as Additional Labour Commissioner, Kollam) -the 3rd respondent herein and the petitioner was, therefore, advised to seek his approval in imposing the punishment against the 1st respondent pursuant to Ext.P3 order, in terms of the mandate of Section 33 of the Act. 7. In such circumstances, the petitioner made an application under Section 33(2)(b) of the Act seeking the approval of the 3rd respondent as regards the punishment imposed in the 1st respondent in Ext.P3. The 3rd respondent officer considered the application but concluded that since a dispute was already pending before him with respect to the charter of the demands raised by the trade union, namely Ext.P4, the petitioner ought to have taken his prior permission before imposing the punishment by making an application under Section 33(1)(b) rather than seeking approval for the punishment already imposed under Section 33(2)(b) and thus rejected the application made by the petitioner. The petitioner thereafter filed this writ petition challenging the said order of the 3rd respondent, a copy of which has appended to this writ petition as Ext.P8, raising various contentions. 8. I have heard the learned counsel of the petitioner Shri. Pratap Abraham Varghese, the learned counsel appearing for the 1st and 2nd respondent Shri. Ashok B. Shenoy and the 3rd learned Senior Government Pleader appearing for the respondent. 9. Since the pivotal dispute in this writ petition is as to whether the provisions of Section 33(1) or that of Section 33(2) would apply, I deem it appropriate to extract the said provisions for ease of reference as under: “33. 9. Since the pivotal dispute in this writ petition is as to whether the provisions of Section 33(1) or that of Section 33(2) would apply, I deem it appropriate to extract the said provisions for ease of reference as under: “33. 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 workman 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 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, any 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.” 10. A conjoint reading of the above provisions would render it inescapable that while Section 33(1) provides that during the pendency of any conciliation proceeding or of any other proceeding before an Arbitrator, Labour Court or Tribunal with respect to an Industrial dispute, no employer shall be entitled to punish a workmen through discharge or dismissal, for a misconduct connected with the dispute, save with the express permission in writing of the Authority, before which the said proceeding is pending; while Section 33(2) permits such action by the employer even during the pendency of any such proceeding provided the misconduct is not corrected with the dispute, with a rider that an application be made by the employer to the Authority, before whom the dispute is pending for approval of the action taken. 11. The difference between the above two provisions, though very fine, is very pronounced. Section 33(1) casts an embargo against an employer from altering the service conditions applicable to the workman involved in the dispute and from discharging or punishing them, whether by dismissal or otherwise, except with the express permission of the Authority before which the proceeding is pending. However, the embargo aforementioned is only in relation to a “matter connected with the dispute”. As regards matters which are not connected with the dispute, Section 33(2) provides that the employer may, either in terms of the standing orders if applicable or in terms of the contract between them, alter the conditions of service applicable to the workman before the proceeding commenced and may also discharge or punish, whether by dismissal or otherwise, the workman for the proven misconduct not connected to the dispute. It is luculent, therefore, that while Section 33(1) relates to issues connected with pending disputes, Section 33(2) operates with respect to matters not involved in the pending dispute. 12. Further, while Section 33(1) is couched negatively, casting an embargo on the employer from taking any action against the workman, except with the prior written permission of the Authority; the provisions of Section 33(2) only attaches a post-action restriction on the power of the employer which mandates that he makes an application for approval of such action before the competent Authority. Hence, while Section 33(1) prohibits the employer to take action without the express permission of the authority, Section 33(2) only imposes a restriction on such power and obligates the employer to apply for and obtain approval for the action taken by them. 13. The 3rd respondent, Additional Labour Commissioner appears to have, from the facts presented in this case, entered a conclusion that since Ext.P4 charter of demands was pending before him with respect to the 1st respondent also, any disciplinary punishment could have taken imposed such workman by the petitioner only under the aegis of Section 33 (1), that is to say, only after they had obtained his express permission in writing. 14. Sri. Pratap Abraham Varghese, learned counsel appearing for the petitioner, contends vehemently that the 3rd respondent-commissioner has misdirected himself in issuing Ext.P8 order and he predicates that this misdirection was occasioned because he had not understood the pulieus of the proceedings pending before him correctly. The learned counsel says that in Ext.P4, the trade union had only raised a charter of demands common to all the employees, while conceding that Item No.11 in it, which has been extracted above, is specific to the 1st respondent. He continues to assert that even this being so, it does not mean that the issue regarding the disciplinary action against the 1st respondent was pending before the Commissioner, because Item No.11 in the charter of demands, with respect to the 1st respondent, is that he be posted as a cook and paid the scale of pay applicable to the said post. According to Sri.Pratap Abraham Varghese, the 3rd respondent Commissioner completely missed the fact that the allegation against the 1st respondent, made by the petitioner, was that he was unauthorisedly absent, which led to the disciplinary action. According to him, this was never a matter of dispute, much less an industrial dispute, before the competent Authority. 15. Sri. Ashok. B. Shenoy, learned counsel appearing for respondents 1 and 2 opposed these submissions with equal vehemence pointing out that Ext.P4 charter of demands has been issued in respect of all the workmen, including the 1st respondent. He says that the 1st respondent's claim for being appointed as a cook was specifically raised by them and it is only, therefore, as an alleged counter blast, that the petitioner initiated disciplinary action against him. He says that the 1st respondent's claim for being appointed as a cook was specifically raised by them and it is only, therefore, as an alleged counter blast, that the petitioner initiated disciplinary action against him. On such contention, he avouches that the action of the 3rd respondent, Commissioner in issuing Ext.P8 is forensically beyond fault and that his prior permission ought to have been obtained by the petitioner before initiating action or imposing punishment. 16. The learned senior Government Pleader appearing on behalf of the 3rd respondent supports Ext.P8 on the submission that a dispute was concededly pending before the Commissioner and therefore, that he was justified in holding that the employer ought to have taken his prior permission before imposing any punishment on any workmen in the establishment. 17. I have considered the dialectal contentions of the learned counsel as recorded above. The facts involved are not in dispute in this case. The fact that Ext.P4 charter of demand was raised and that it was pending before the 3rd respondent Commissioner is conceded by all parties. It is also not in contest that in Ext.P4 charter of demands the Union has voiced a concern on behalf of the 1st respondent and that a demand has been made that he be posted as a cook. The only question is whether the punitive action, imposed against the 1st respondent by the petitioner through Ext.P3, was in relation to a matter of “industrial dispute” before the 3rd respondent and therefore, whether, the action initiated by the petitioner would attract the rigour of Section 33 (1) of the Act. 18. The pleadings recorded and the materials available would show that the action proposed against the 1st respondent was on account of his continued unauthorised absence on various dates. It is also unchallenged that he did not even file a reply to Ext.P1 charge sheet. Disciplinary action was thus initiated against him and not withstanding that he refused to participate in it, proceedings were continued and a final order was issued imposing a punishment of dismissal from service. 19. Sri. Ashok.B.Shenoy does not really contest these statements of facts contained in the pleadings. Disciplinary action was thus initiated against him and not withstanding that he refused to participate in it, proceedings were continued and a final order was issued imposing a punishment of dismissal from service. 19. Sri. Ashok.B.Shenoy does not really contest these statements of facts contained in the pleadings. However, he says that since the accusation, made raised against the 1st respondent by the petitioner in Ext.P1 charge sheet, was squarely with regard to the conditions of service applicable to him, it was incumbent upon the petitioner, going by the statutory imperatives, to seek the prior written permission of the 3rd respondent -Commissioner under Section 33 (1) (a) of the Act before any punishment was imposed. 20. I am afraid, as I will explain presently, that the submissions of Sri. Ashok.B.Shenoy may not obtain legal sustenance, because the question of prior express permission to be obtained by the employer would arise only if the punishment proposed is with regard a misconduct connected to the dispute pending before the competent Authority and otherwise the employer is obligated to only act in terms of Section 33 (2) (b) and its proviso, and to apply for approval of the action taken. 21. In the case at hand, what is raised in Ext.P4 charter of demands, with respect to the 1st respondent, is that he be appointed as a cook and granted the pay scale applicable to that post. However, the nature, ambit and confines of the disciplinary action against him is completely on a different footing, where the petitioner alleges that he was unauthorisedly absent while working as an assistant cook. The fact that the 1st respondent did not even bother to file a reply to the charge sheet or to take part in the enquiry proceedings obviously compelled the employer/the petitioner herein to conclude the disciplinary action against him and to issue Ext.P3 order. 22. When the circumstances appearing against the 1st respondent are as such, the question raised for my consideration is whether it was incumbent upon the petitioner to seek prior permission of the 3rd respondent Commissioner, under the prescription of Section 33 (1) of the Act. 22. When the circumstances appearing against the 1st respondent are as such, the question raised for my consideration is whether it was incumbent upon the petitioner to seek prior permission of the 3rd respondent Commissioner, under the prescription of Section 33 (1) of the Act. I am certain that the answer to this question has to be in the negative, because the action initiated and punishment imposed against the 1st respondent is not something that is entwined, interlinked or even connected in any manner to the demand made by the Union in Ext.P4. Only the demands in Ext.P4 is pending consideration before the 3rd respondent Commissioner and not the alleged 1st misconduct of the respondent. The demands made in Ext.P4 charter have nothing to do with the allegation of unauthorised absence against the 1st respondent or to thus construe that it is also a matter which is pending before the Authority as an industrial dispute. I do not think that by any stretch of imagination can this contention be drawn-out to that extent and I find no favour that the allegation of unauthorised absence, now levelled against the 1st respondent, is a matter which is connected to the industrial dispute pending before the 3rd respondent -Commissioner, on account of the charter of demands contained in Ext.P4. 23. Once I thus conclude that the action now proposed against the 1st respondent by the petitioner is not one that arises from a misconduct connected to the dispute pending before the 3rd respondent, Commissioner, the corollary consideration will have to be as to the nature of the approval that will have to be obtained by the petitioner from the 3rd respondent in terms of Section 33 of the Act. The afore discussion makes it irrefragable that the proviso to Section 33 (2) (b) makes it obligatory on the part of the petitioner to apply for approval of the action taken by them against the 1st respondent and, in fact, the pleadings are perspicuous that they have sought for such approval by making Ext.P5 application before the Commissioner. However, the Commissioner dismissed this application holding that the petitioner ought to have obtained prior written permission from him before dismissing the 1st respondent, rather than making a request for approval of the action already taken. 24. However, the Commissioner dismissed this application holding that the petitioner ought to have obtained prior written permission from him before dismissing the 1st respondent, rather than making a request for approval of the action already taken. 24. The issue thus now distills down to the operative compass of Section 32 (2) of the Act and presents the question if, under its proviso, the employer is obligated to apply for and obtain prior written permission before the punishment of discharge or dismissal was imposed and enforced. 25. As I have already noted above, litera scripta Section 33 (1) enjoins the employer to obtain prior permission of the Authority before any action for discharge or dismissal is taken, while Section 33 (2) obligates the employer to seek approval for the punishment/action already imposed against the employee. 26. The courts have spoken on this issue earlier and the precedential guide for me is available in the judgments of the Honourable Supreme Court in Straw Board Mfg. Co. v. Govind [ AIR 1962 SC 1500 ], Tata Iron and Steel Co. Ltd v. S.N. Modak [ AIR 1966 SC 380 ] and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma and Others [ (2002) 2 SCC 244 ]. 27. In Straw Board (Supra) the inescapable declaration of law is contained in Paragraph 8 and 9 therein and the relevant portions of which, for ease of reference, is extracted below. “(8) …..........Further the use of the word “approval” in the proviso also suggests that something has been done by the employer who seeks approval of that from the tribunal. If the intention was that in view of the proviso the employer could not pass the order of dismissal or discharge without first obtaining the approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those in sub-ss. (1) and (3), namely, that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. (1) and (3), namely, that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. The change therefore in the language used in the proviso to sub-s. (2)(b) clearly shows in our opinion that the legislature intended that the employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely, (i) payment of wages for one month and (ii) making of an application to the authority concerned for approval of the action taken. The use of the word “approval” also suggests that what has to be approved has already taken place, though sometimes approval may also be sought of a proposed action. But it seems to us in the context that he approval here is of something done, as otherwise it would have been quite easy for the legislature to use the words “ for approval of the action proposed to be taken” in the proviso. Further sub-s. (5) also suggests when it uses the words “approval of the action taken” that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between sub-s. (1) and sub-s. (2) is therefore that under sub-s. (1) the employer proposes what he intends to do and asks for the express permission of the authority concerned to do it; in sub-s. (2) the employer takes the action and merely asks for the approval of the action taken from the authority concerned by his application. There can therefore be no doubt that sub-s. 2(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him..............” “(9).......As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes the action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction.............” 28. This view and conclusion in Straw Board (Supra) was referred to approvingly by a Constitution Bench of the Honourable Supreme Court in P.H. Kalyani v. Air France, Calcutta [ AIR 1963 SC 1756 ]. 29. In Tata Iron and Steel Co. Ltd (Supra) the Honourable Court reiterated these very principles and its observations in Paragraph 5 of the judgment requires to be read in its full text. I therefore, reproduce it under: “5........... It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law.” 30. The affirmative declarations in Straw Board (Supra) and Tata Iron and Steel Co. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law.” 30. The affirmative declarations in Straw Board (Supra) and Tata Iron and Steel Co. Ltd (Supra) were considered by the Constitution Bench of Honourable Court in the year 2002 in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd (Supra), while answering a reference made to it by a three member bench suspecting conflict with the views therein with that in another judgment of a three member bench in Punjab Beverages (P) Ltd. v. Suresh Chand [ (1978) 2 SCC 144 ]. The conflict noticed was not with reference to the nature of approval under the proviso to Section 33 (2), as is the case herein, but as to the question whether failure of the employer to make an application for approval or the rejection of such application by the competent Authority would render the dismissal of the employee inoperative or if it would only expose the employer to punishment under Section 31 of the Act. The Constitution Bench answered the reference in approval of the conclusion in Straw Board (Supra) and Tata Iron and Steel Co. Ltd (Supra) and held as under: “7. The proviso expressly and specifically states that no 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 clear from the proviso to Section 33(2)(b) that the employer may pass an order of dismissal or discharge and at the same time make an application for approval of the action taken by him.......” “14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed..........” 31. There, therefore, can be no further doubt as to the impact and scope of the requirements of the proviso to Section 33 (2). It does not postulate a pre-action express permission but only warrants an application for approval of the action taken, from the Authority before whom the dispute is pending. Such application for approval of the action taken has to be made either simultaneous to the action, as part of the same transaction, as stated in Straw Board (Supra) or at least within such reasonably short time thereafter to form part of one transaction. Further, as has also be a declared in Straw Board (Supra) the question whether the application was made as part of the same transaction or within a reasonable time thereafter, so as to construe it as a part of the same transaction, is a question of first, impacted by the specific circumstances of each case and to be considered by the competent Authority when the application is considered. 32. In the above view, it makes it unequivocal that Ext.P8 order can obtain no favour in law because the 3rd respondent-Commissioner has concluded therein that no approval under Section 33 (2) of the Act can be granted since the petitioner has already taken action to dismiss the 1st respondent, without obtaining prior written permission from him before taking such action. This order of the 3rd respondent indisputably runs counter to the binding ratio in the precedents above noticed and is, therefore, incapable of legal support or approval. I am thus compelled to quash the said order, which I do hereby. This order of the 3rd respondent indisputably runs counter to the binding ratio in the precedents above noticed and is, therefore, incapable of legal support or approval. I am thus compelled to quash the said order, which I do hereby. The 3rd respondent is consequently directed to reconsider Ext.P5 application made by the petitioner, seeking approval of the action taken by them against the 1st respondent through Ext.P3 order and to consider the same on its merits, adverting to the ratio of the precedents noticed herein as also my observations above and in compliance with all imperative procedural requirements, as are required by the Act and to pass an appropriate order there on, after affording an opportunity of being heard to the 1st respondent as expeditiously as possible but not later than two months from the date of receipt of the copy of this judgment. This writ petition is thus ordered.