Dismissed¶59

The Management v. P Suresh Kumar

Industrial Disputes – Approval under S.33(2)(b) ID Act

Madras HC8 Apr 2025WP/10800/2025

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Case brief

AI extract

What is this about?

Keywords: Section 33(2)(b) Industrial Disputes Act; approval petition; simultaneous filing; 14-day delay; unexplained delay fatal; Lalla Ram AIR 1978 SC 1004 five ingredients; Rule 64(2) Industrial Disputes Rules 1958; C.Iyandhurai W.A. No.1555 of 2022; TNSTC (Kumbakonam) Karaikudi; dismissal of Driver for absence without leave; Special Joint Commissioner of Labour, Chennai; writ dismissed, no costs. Relevant to management-side challenges to rejection of approval petitions for delayed/non-simultaneous filing under S.33(2)(b).

What did the court decide?

None. The writ petition stands dismissed with no costs, and the connected miscellaneous petition (W.M.P.No.12163 of 2025) is closed. ¶59

The Management Vs P Suresh Kumar — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

None. The writ petition stands dismissed with no costs, and the connected miscellaneous petition (W.M.P.No.12163 of 2025) is closed.

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Issue for consideration

Whether the approval petition was filed simultaneously with the order of dismissal as required under Section 33(2)(b) of the Industrial Disputes Act (the Management conceding a 14-day delay and relying on an acknowledgement card regarding Form-C), and whether the Labour Court's rejection of the approval petition was accordingly sustainable.

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Court's answer

From the materials on record (the acknowledgement card not being found in the records of the Special Joint Commissioner of Labour), the approval petition was not filed simultaneously when the order of dismissal came to be passed, and the petitioner itself admits a delay of 14 days.

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Ratio / Principle

Per the consistent view of the Courts, there should be proper explanation for any delay in filing the approval petition and, absent such explanation, even a single day's delay is fatal.

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Key takeaways

Although Lalla Ram permits delay if its reasonableness is explained, in the present case there was no explanation for the 14-day delay, much less any reasonable explanation; consequently the requirement of Section 33(2)(b) of the Industrial Disputes Act was not fulfilled and the approval petition does not merit acceptance.ratio¶53
Appreciating the materials in proper perspective, the Labour Court's rejection of the approval petition cannot be said to be erroneous, and the Division Bench decision in C.Iyandhurai (W.A. No.1555 of 2022) is also in line with this Court's decision.ratio¶53

Detailed headnote1 paragraphs

Industrial Disputes - Approval under S.33(2)(b) ID Act - Management (TNSTC Kumbakonam Ltd.) dismissed Driver P. Sureshkumar on 28.02.2023 after domestic enquiry for absence without prior intimation; approval petition (A.P.No.28 of 2023) filed only on 13.03.2023, i.e., 14 days later and not simultaneously, the Management itself admitting the delay and offering no explanation beyond an acknowledgement card (Form-C pendency) not found in the Commissioner's records. Applying the Lalla Ram v. D.C.M. Chemical Works (AIR 1978 SC 1004) ingredients and the Division Bench ruling in TNSTC (Salem) Ltd. v. C. Iyandhurai (W.A. No.1555 of 2022), M. Dhandapani J. held the S.33(2)(b) requirement unfulfilled - unexplained delay being fatal even for a single day - upheld the Labour Court's rejection of the approval petition (order dt. 27.12.2023) as non-erroneous, and dismissed the writ with no costs, closing the connected miscellaneous petition.

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W.P.No.10800 of 2025

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 08.04.2025

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CORAM

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THE HONOURABLE MR.JUSTICE M.DHANDAPANI

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W.P.No.10800 of 2025 and W.M.P.No.12163 of 2025

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The Management, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Karaikudi Region, Marudhupathi, Managiri, Karaikudi-630 307. ...Petitioner Vs.

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1.P.Sureshkumar

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2.The Special Joint Commissioner of Labour, DMS Campus, Anna Salai, Chennai.

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...Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order dated 27.12.2023 passed by the second respondent in Approval Petition No.28 of 2023 and quash the same, consequently direct the second

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https://www.mhc.tn.gov.in/judis

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W.P.No.10800 of 2025

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respondent to approve the order of the petitioner dated 28.02.2023 dismissing the first respondent from service.

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For Petitioner : Mr.M.Murali Vinodh

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For Respondents : Mr.K.Surendran, AGP, for R2 R1 - Not ready notice

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O R D E R

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This Writ Petition has been filed seeking quashment of the order dated 27.12.2023 made in A.P.No.28 of 2023 by the second respondent.

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Mr.K.Surendran, learned Additional Government Pleader takes notice on behalf of the second respondent. In view of the consent expressed by the learned counsel on either side, this Writ petition is taken up for final disposal at the admission stage itself.

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The case of the petitioner is that the first respondent was working as Driver in the petitioner Corporation and he was absent from duty without prior intimation. Thereby, charge memo was issued to the first respondent and thereafter, domestic enquiry was conducted and the Enquiry officer has submitted a report to the petitioner Corporation, based on which, the first

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respondent was dismissed from service on 28.02.2023. Thereafter, the petitioner Management filed A.P.No.28 of 2023 before the Labour Court on 13.03.2023 and it was rejected vide order dated 27.12.2023. Challenging the same, the petitioner has filed this Writ petition.

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Learned counsel for the petitioner Corporation further submitted that, the second respondent had rejected the approval petition on the ground that there was a delay of 14 days, which is not sustainable, since mere delay of 14 days in filing the approval petition will not vitiate the entire proceedings and has not considered the acknowledgement card submitted by the petitioner with regard to the pendency of Form-C application before the Commissioner of Labour. While so, rejecting the approval petition filed by the petitioner on the ground that, the same was not filed simultaneously before the authority is not sustainable, as the word simultaneous mentioned is not explained either in the Act or in the Rules. Hence, the order of the second respondent is liable to be set aside and accordingly, prayed for appropriate orders.

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Per contra, the learned Additional Government Pleader appearing on behalf of the second respondent submitted that, though the first respondent was dismissed from service on 28.02.2023, however, the petitioner Corporation had filed the approval petition only on 13.03.2023 with a delay of 14 days, which is an incurable defect as per the decision of the Hon'ble Division Bench of this Court in the case of The Management, Tamil Nadu State Transport Corporation (Salem) Limited Vs. C.Iyandhurai and anr. (W.A. No.1555 of 2022) dated 01.08.2022. For better appreciation, the relevant portion of the said order is extracted hereunder:

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“The Writ Appeal has been filed against the order passed by the learned Single Judge refusing to interfere with the order passed by the second respondent-Authority in dismissing the appellant-Management's approval petition under Section 33(2)(b) of the Industrial Disputes Act, 1947. The rejection of the approval petition was on the ground that there was shortfall in payment of one month salary to the first respondent-employee and there was eight days delay in filing the approval petition. The learned Single Judge, while adverting to Section 33(2)(b) of the Industrial Disputes Act, 1947, read with Rule 64(2) of the Industrial Disputes Rules, 1958, observed that an application seeking approval of

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dismissal of an employee needs to be served with the order of punishment and simultaneously, approval application has to be filed before the Authority, and otherwise, the approval petition cannot be entertained and hence, the learned Single Judge observed that the second respondent-authority rightly rejected the approval petition. In view of the above, the learned Single Judge, while not interfering with the order passed by the second respondent-authority in dismissing the approval petition, made it clear that the first respondent-employee would be entitled to all monetary benefits due to him and the appellant-Management was expected to extend the same and the period for compliance was also given by the learned Single Judge. Looking into the order passed by the learned Single Judge, we find no ground made out to entertain the Writ Appeal, which is accordingly dismissed. There shall be no order as to costs. Consequently, the miscellaneous petition is closed.”

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Heard learned counsel on either side and perused the materials available on record.

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In order to ascertain the fact as to whether the approval petition was

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filed simultaneously or not, this Court perused the entire records produced by the learned Additional Government Pleader appearing for the second respondent. On perusal of the same, it reveals that such acknowledgement card as stated by the learned counsel appearing for the petitioner is not available in the records of the Special Joint Commissioner of Labour and the approval petition was not filed simultaneously.

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The ingredients which should be satisfied by the employer while

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filing the approval petition have been spelt out in the decision of the Apex Court in Lalla Ram Vs. D.C.M. Chemical Works Ltd. and Ors ., reported in AIR 1978 SC 1004 , wherein the Supreme Court held thus :-

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''(i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held;

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(ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;

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(iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee;

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(iv) whether the employer has paid or offered to pay

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Wages for one month to the employee; and

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(v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.''

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9. From the materials available on record, it is evident that the approval petition was not filed simultaneously when the order of dismissal had come to be passed. It is even the admitted case of the petitioner that there is a delay of 14 days. It is the consistent view of the Courts that there should be proper explanation for the delay and in the absence of the same, even a single day's delay is fatal. Though in Lalla Ram's case, it has been held that if there is any delay in filing the petition, the reasonableness should be explained. However, in the case on hand, there is no explanation for the delay, much less any explanation, which is reasonable and in such a circumstance, the requirement of Section 33(2)(b) of the Industrial Disputes Act has not been fulfilled and, therefore, the same does not merit acceptance. Appreciating the materials in proper perspective, the Labour Court has rejected the approval petition, which cannot be said to be

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erroneous. Further, the decision of the Division Bench of this Court in

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C.Iyandhurai case (supra) is also in line with the decision of this Court.

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10. For the reasons aforesaid, this Writ petition stands dismissed. No