Dismissed¶55

The Management of v. The Special Deputy commissioner of Labour

Madras HC27 Mar 2025WP/463/2022

Case brief

AI extract

What is this about?

Section 33(2)(b) Industrial Disputes Act 1947 approval of dismissal; delay in filing approval application; simultaneous filing requirement undefined; unexplained delay fatal even a single day; Lalla Ram v. D.C.M. Chemical Works AIR 1978 SC 1005 ingredients for approval; Rule 64(2) Industrial Disputes Rules 1958; TNSTC (Salem) Ltd v. C.Iyandhurai W.A. No.1555 of 2022; Metropolitan Transport Corporation (Chennai) Ltd; dismissal of Reserve Crew driver for continuous absence; Special Deputy Commissioner of Labour rejection upheld; writ of certiorari dismissed; no costs; connected WMPs closed.

What did the court decide?

It is the consistent view of the courts that there should be proper explanation for delay in filing the approval application and, in the absence of such explanation, even a single day's delay is fatal. ¶54

The Management of Vs The Special Deputy commissioner… — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether an approval application under Section 33(2)(b) of the Industrial Disputes Act, 1947, filed about three months after dismissal without any explanation for the delay, satisfies the requirement that it be filed simultaneously with the punishment order or within a reasonably short time forming part of the same transaction, given that the word 'simultaneous' is not defined in the Act or the Rules. +1 more

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Court's answer

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Ratio / Principle

In the case on hand there was no explanation for the delay in filing the approval petition, much less any reasonable explanation; accordingly, the requirement of Section 33(2)(b) of the Industrial Disputes Act, 1947 was not fulfilled and the approval application did not merit acceptance.

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Key takeaways

Appreciating the materials in proper perspective, the Labour Court's rejection of the approval petition cannot be said to be erroneous.ratio¶54
The decision of the Division Bench of this Court in C.Iyandhurai (supra) is in line with the decision of this Court.ratio¶54

Detailed headnote1 paragraphs

High Court of Madras (M. Dhandapani, J.), 27.03.2025: Writ petition by the Management of Metropolitan Transport Corporation (Chennai) Ltd. challenging the order dated 22.10.2021 of the Special Deputy Commissioner of Labour, Chennai (A.P.No.171 of 2013) rejecting its approval application under Section 33(2)(b) of the Industrial Disputes Act, 1947 for the dismissal (order dated 02.05.2013) of workman K.M.Rohit Kannaa, a Reserve Crew driver, for continuous absence from duty in violation of Certified Standing Orders, stands dismissed. The approval petition was filed only on 15.07.2013, about three months after the dismissal, and there was no explanation for the delay, much less a reasonable one; applying the five Lalla Ram ingredients (AIR 1978 SC 1004) and the consistent view of the courts that unexplained delay - even a single day - is fatal, the requirement of Section 33(2)(b) was held unfulfilled, the Authority's rejection was not erroneous, and the result accords with the Division Bench decision in The Management, Tamil Nadu State Transport Corporation (Salem) Ltd. v. C.Iyandhurai, W.A. No.1555 of 2022 (decided 01.08.2022). No costs; connected miscellaneous petitions WMP.Nos.514 of 2022 and 32686 of 2023 closed.

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W.P.No.463 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 27.03.2025

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CORAM

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THE HONOURABLE MR.JUSTICE M.DHANDAPANI

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W.P.No.463 of 2022

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and

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WMP.Nos.514 of 2022 & 32686 of 2023

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The Management of, Metropolitan Transport Corporation (Chennai) Ltd., Pallavan Illam, Anna Salai, Chennai – 600 002.

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...Petitioner

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Vs.

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The Special Deputy Commissioner of Labour, D.M.S. Complex, IV Floor, Teynampet, Chennai – 600 006.

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K.M.Rohit Kannaa ...Respondents

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Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records pertaining to the order passed in A.P.No.171 of 2013 dated 22.10.2021 on the file of the 1^st respondent, Chennai - 6 and quash the same.

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For Petitioner : Mr.R.Balaji

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For Respondents : Mr.K.Surendran, APG, for R1 : No Appearance, for R2 O R D E R

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Though the Miscellaneous petition in WMP.No.32686 of 2023 filed seeking for an interim direction of this Court directing the 1^st respondent therein to pay the salary to the petitioner therein has been listed today, in view of the consent expressed by the learned counsel on either side, the main Writ petition itself is taken up for final disposal.

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The petitioner has come up with the Writ petition seeking

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quashment of the order of the 1^st respondent dated 22.10.2021 made in A.P.No.171 of 2013.

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The case of the petitioner is that the 2^nd respondent/workmen was appointed as a Reserve Crew driver in the petitioner corporation and was posted at Ayanavaram Depot with effect from 03.09.2017 and he was subsequently regularised. While so, as the 2^nd respondent was continuously absent from duty without any prior intimation which is a clear violation of Certified Standing orders of the petitioner corporation, the petitioner corporation issued a charge memo dated 31.01.2012, for which, though the 2^nd respondent sent a reply on 19.03.2012, as the same was not satisfactory,

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the petitioner corporation proceeded with enquiry proceedings and after conducting enquiry by affording appropriate opportunity, as the charges levelled against the 2^nd respondent were proved, the petitioner corporation passed an order of dismissal against the 2^nd respondent on 02.05.2013. Parallelly, the petitioner corporation sought approval before the 1^st respondent under Section 33(2)(b) of the Industrial Disputes Act, 1947 and the same was taken up on file in A.P.No.171 of 2013. However, the 1^st respondent rejected the said approval petition, vide present impugned order dated 22.10.2021. Challenging the same, the petitioner is before this Court.

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Learned counsel for the petitioner corporation submitted that, the 1^st respondent had rejected the approval petition on the ground that there was a delay of two months, which is not sustainable, since mere delay in filing the approval petition will not vitiate the entire proceedings, 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 1^st respondent is liable to be set aside and accordingly, prayed for appropriate orders.

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Per contra, the learned counsel appearing on behalf of the 1^st respondent submitted that, though the 2^nd respondent was dismissed from service on 02.05.2013, however, the petitioner corporation had filed the approval petition only on 15.07.2013 with a delay of about three months, 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 dismissal of an employee needs to be served with the order of

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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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Though the name of Mr.K.Thirumalai, learned counsel has been printed in the cause list on behalf of the 2^nd respondent, none appeared on behalf of the 2^nd respondent today. However, considering the period of pendency of this Writ petition, this Court is inclined to dispose of the same based on the materials available on record.

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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

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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 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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8. From the materials available on record it is evident that the

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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 about three months. 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 reasonable delay, even then 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 circumstances, the requirement of Section 33(2)(b) 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 erroneous. Further, the decision of the Divison Bench of this Court in C.Iyandhurai case (supra) is also in line with the decision of this Court.

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

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costs. Consequently, the connected miscellaneous petitions are closed.

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27.03.2025