A.A. Salim & Abdul Salam vs Labour Court Kollam and Bindu Suresh Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946** **WP(C) NO. 21740 OF 2020** ## **PETITIONERS:** **1 A.A.SALIM, CHAIRMAN, QUILON MEDICAL TRUST, TRAVANCORE MEDICAL COLLEGE HOSPITAL, MEDICITY N.H. BYPASS, UMAYANALLOOR P.O. KOLLAM 691 589.** **2 ABDUL SALAM, SECRETARY QUILON MEDICAL TRUST, TRAVANCORE MEDICAL COLLEGE HOSPITAL, MEDICITY N.H. BYPASS, UMAYANALLOOR P.O. KOLLAM 691 589.** **BY ADVS. P.RAMAKRISHNAN SMT.PREETHI RAMAKRISHNAN (P-212) SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SRI.PRATAP ABRAHAM VARGHESE SMT.ASHA K.SHENOY** ## **RESPONDENTS:** **1 LABOUR COURT KOLLAM VIDYA NAGAR, KOLLAM 69 013. 2 SMT. BINDU SURESH BABU, REPRESENTED BY G. JAYAPRAKASH, GENERAL SECRETARY, PRIVATE HOSPITALS, EMPLOYEES ASSOCIATION OF KERALA INTUC, MUNDAKKAL, KOLLAM 691 001.** **BY ADVS. SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.P.S.GIREESH SRI.RIYAL DEVASSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2024, THE COURT ON 06.06.2024 DELIVERED THE FOLLOWING:** **WP(C) NO. 21740 OF 2020 : 2 :** ## **JUDGMENT** The petitioners are respectively the Chairman and Secretary of the Quilon Medical Trust which runs the Travancore Medical College (hereinafter referred to as 'the Management'). The 2[nd] respondent (hereinafter referred to as 'the worker') was working as Laboratory Assistant in the Medical College Hospital from 02.11.2009. According to the Management, the worker was issued with Exts.P1 and P2 charge memos dated 04.07.2016 and 05.07.2016 alleging serious misconducts. The worker refused to receive the charge sheets and unauthorisedly absented herself from work from 08.07.2016. The charge memos were, therefore, sent to her residential address by registered post. The worker submitted Ext.P3, a reply denying the charges, **WP(C) NO. 21740 OF 2020 : 3 :** stating that she was instructed not to attend work, that she has been denied work, and that she is willing to return to work at any time. She also stated that the Trade Union, of which she is a member, raised the dispute regarding denial of her employment before the Management by registered letter dated 08.07.2016 which the Management received on 11.07.2016. The Trade Union also raised the dispute of denial of her employment before the District Labour Officer by complaint dated 08.07.2016, and the District Labour Officer issued a notice dated 12.07.2016 convening a conciliation conference. 2. The worker was suspended from service pending enquiry with effect from 03.08.2016. She was issued with Ext.P4 charge memo dated 12.08.2016 alleging unauthorised absence and refusal to accept Exts.P1 and P2 charge sheets. **WP(C) NO. 21740 OF 2020 : 4 :** 3. Since the explanation submitted by the worker was not satisfactory, the Management appointed an enquiry officer to enquire into the charges. The enquiry officer initiated a joint enquiry into Exts.P1 and P2 charges and a separate enquiry regarding Ext.P4 charge sheet. The worker was set _ex parte_ , and the enquiry officer found her guilty of the charges. The Management issued Ext. P5 order dated 26.04.2017, imposing the punishment of removal of the worker from service. 4. The Government had, in the meantime, issued G.O.(Rt) No.79/2017/LBR dated 20.01.2017 referring the dispute regarding denial of employment of the worker for adjudication under Section 10(1) C of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'ID Act', for short). The issue referred for adjudication is:- **WP(C) NO. 21740 OF 2020 : 5 :** “Whether the denial of employment to Mrs. Bindu Suresh Babu, Lab Assistant by the Management of Quilon Medical Trust, Travancore Medical College Hospital, Medicity, N.H.By Pass, Umayanalloor-P.O., Kollam is justifiable or not? If not what relief the worker is entitled to?”. 5. The dispute was referred for adjudication to the Labour Court, Kollam as ID No.9/2017. Pursuant to the reference, the Trade Union filed Ext.P6 claim petition. The Management filed Ext.P7 written statement stating that the worker was dismissed from service after domestic enquiry and there is no denial of employment as alleged in the claim petition and praying to pass orders holding that there is no denial of employment to the worker and that she was dismissed from service on proved misconduct and to uphold the domestic enquiry by Management as fair and proper. **WP(C) NO. 21740 OF 2020 : 6 :** 6. The worker filed I.A. No. 66/2018 (Ext.P8) in ID No. 9/2017 on 04.06.2018 under Section 33-A of the ID Act contending that during the pendency of the proceedings before the Labour Court, she was removed from service by the Management without obtaining permission of the Court under Section 33 (1) (b) of the ID Act and praying to set aside Ext.P5 order of removal from service. 7. The Management filed Ext.P9 reply to Ext.P8 stating that the removal of the worker was based on the findings on Exts.P1 and P2 charge memos, on which no conciliation proceedings were pending. 8. As requested by both sides, Ext.P8 interlocutory application filed under Section 33-A was converted to ID No.96/2019. However, the request for joint trial by the Trade Union was rejected. The **WP(C) NO. 21740 OF 2020 : 7 :** Labour Court observed that before taking any decision on the application filed under Section 33(1) (b), it is appropriate and desirable to have a finding whether dismissal of worker was justifiable or not and by Ext. P10 Preliminary Award in ID No.9/2017 found that enquiry report is not valid, proper and legal and the enquiry proceedings were conducted in violation of the principles of natural justice and set aside Ext. M1 series enquiry reports. 9. Ext.P10 Preliminary Award is impugned in the writ petition contending that the Labour Court has gone beyond the issue referred for adjudication and erred in examining the validity of the enquiry in a reference made on allegation of denial of employment. It is contended that the Labour Court ought not to have examined the issue of removal of the worker from service as the same was not an **WP(C) NO. 21740 OF 2020 : 8 :** issue referred for adjudication and had exceeded its jurisdiction. The finding of the Labour Court in Ext.P10 that the enquiry is vitiated is also challenged in the writ petition. Accordingly, the Management has sought to quash Ext.P10 Preliminary Award. 10. This Court, by order dated 14.10.2020, has stayed all proceedings pursuant to Ext.P10 Preliminary Award. 11. Heard Sri. Pratap Abraham Varghese, the learned counsel for the petitioners and Sri. P.S. Gireesh, the learned counsel for the 2[nd] respondent. 12. I.D No.9/2017 is pending adjudication before the Labour Court pursuant to a reference by the Government under Section 10(1) C of the ID Act. The issue referred for adjudication is whether the denial of employment to the worker is justifiable or not. During the pendency of the said dispute, the **WP(C) NO. 21740 OF 2020 : 9 :** worker filed Ext. P8 Interlocutory Application in ID No. 9/2017 under Section 33-A contending that during the pendency of the proceedings before the Labour Court, she was removed from service by the Management without obtaining permission of the Court under Section 33(1)(b) of the ID Act and praying to set aside Ext. P5 order of removal from service. Section 33(1) of the ID Act reads as follows:- “ **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 ## **WP(C) NO. 21740 OF 2020 : 10 :** 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 workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.” Section 33-A of the ID Act deals with adjudication of complaints relating to contravention of Sec.33 and reads as follows:- “ **33A. Special provision for** ## **adjudication as to whether conditions** **of service, etc., changed during pendency of proceedings.** —Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a conciliation officer, ## **WP(C) NO. 21740 OF 2020 : 11 :** Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner,— (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.” Section 33-A of the ID Act enables an employee to **WP(C) NO. 21740 OF 2020 : 12 :** lodge a written complaint to the Labour Court if an employer contravenes the provisions of Section 33 during the pendency of proceedings before the Labour Court and the Labour Court is vested with the jurisdiction to adjudicate upon the complaint in accordance with the provisions of the ID Act, as if it were a dispute referred to under Section 10 of the Act or pending before it. The Hon'ble Supreme Court, in **Kumarhatty Co Ltd** _**v**_ **. Ushnath Pakrashi** [1959 KHC 637: AIR 1959 SC 1399: 1959 (2) LLJ 556], interpreting the language employed in Section 33-A of the ID Act, has held as under:- “3....It is thus clear that a complaint under S.33A of the Act is as good as a reference under S.10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S.10. It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can **WP(C) NO. 21740 OF 2020 : 13 :** make if a dispute is referred to it relating to the dismissal or discharge of a workman. In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore a complaint under S.33A being in the nature of a dispute referred to a tribunal under S.16 of the Act, it is certainly which its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S.33.” Since Section 33-A vests the Labour Court with the jurisdiction to adjudicate upon the complaint, as if it were a dispute referred to under Section 10 of the ID Act, the contention of the petitioners that the Labour Court has exceeded its jurisdiction and gone beyond the issue referred for adjudication, cannot be sustained. Even if the issue of removal from service is not referred for adjudication, the Labour Court can examine the issue on a complaint that the employee has been dismissed or removed in breach of Section **WP(C) NO. 21740 OF 2020 : 14 :** 33(1)(b). 13. In Ext. P10 Preliminary Award, the Labour Court observed that, before taking any decision on the application filed under Section 33(1)(b), it is appropriate and desirable to have a finding whether dismissal of worker was justifiable or not. Accordingly, the Labour Court ventured into the validity of the enquiry leading to the removal of worker from service. In a complaint filed under Section 33-A, the Labour Court has to deal not only with the question of contravention of Section 33(1) (b), but also with the merits of the order of dismissal. 14. Section 33-A provides for adjudication of complaint in accordance with the provisions of the ID Act, as if it were a dispute referred to under Section 10 of the Act. The reasoning behind the special **WP(C) NO. 21740 OF 2020 : 15 :** provision in Section 33-A of the ID Act is to provide speedy remedy to an employee who has been dismissed by the employer in contravention of Section 33, without a reference under Section 10(1). However, the alleged contravention of Section 33 does not make the order of removal or dismissal void thereby entitling the reinstatement of the employee. In other words, merely by a finding that the dismissal or removal from service was without the permission of the Court, the reinstatement is not automatic. The order of dismissal can be interfered with by the Labour Court by passing an award after adjudication of the complaint under Section 33-A, in accordance with the provisions of the ID Act. The scope of Section 33-A was considered by the Hon'ble Supreme Court in **Punjab National Bank Ltd** _**v**_ **. All India Punjab National Bank Employees'** **WP(C) NO. 21740 OF 2020 : 16 :** ## **Federation and another** [AIR 1960 SC 160: 1960 KHC 571: 1959 (2) LLJ 666] wherein the Court held as under: “34. In the present case the impugned orders of dismissal have given rise to an industrial dispute which has been referred to the tribunal by the appropriate Government under S.10. There can be no doubt that if under a complaint filed under S.33A a tribunal has to deal not only with the question of contravention but also with the merits of the order of dismissal, the position cannot be any different when a reference is made to the tribunal like the present under S.10. What is true about the scope of enquiry under S.33A is a fortiori true in the case of an enquiry under S.10. What is referred to the tribunal under S.10 is the industrial dispute between the Bank and its employees. The alleged contravention by the Bank of S.33 is no doubt one of the points which the tribunal has to decide; but the decision on this question does not conclude the enquiry. The tribunal would have also to consider **WP(C) NO. 21740 OF 2020 : 17 :** whether the impugned orders of dismissal are otherwise justified; and whether, in the light of the relevant circumstances of the case, an order of reinstatement should or should not be passed. It is only after all these aspects have been considered by the tribunal that it can adequately deal with the industrial dispute referred to it and make an appropriate award.” In _**v**_ **. Hindusthan General Electrical Corporation Bishwanath Prasad and another** [(1971) 2 SCC 605: AIR 1971 SC 2417: 1971 KHC 592], the Hon'ble Supreme Court considered the scope of Sections 33 and 33-A of the ID Act and held as follows: “9. The scope of S.33 and 33A was examined by this Court in several cases to some of which we shall presently refer. S.33 (1) has obviously no application to the facts of this case. S.33 (2) relates to the dismissal, discharge etc. of a workman for any misconduct not connected with an industrial dispute during the pendency of **WP(C) NO. 21740 OF 2020 : 18 :** any conciliation proceeding before a conciliation officer or a Board etc. unless he had 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. S.33A enables a workman who has been punished by dismissal or discharge etc. to make a complaint in writing to a labour court, tribunal or National Tribunal when an employer contravenes the provisions of S.33 during the pendency of proceedings before Labour Court, Tribunal or National Tribunal etc. If such a complaint is made, the labour court, tribunal etc. is to adjudicate upon the complaint as if it were a dispute referred to or pending before it and in accordance with the provisions of the Act submit its award to the appropriate Government. In other words, when the conditions laid down in S.33A apply a workman who is punished as mentioned therein does not have to wait for a reference of an industrial dispute by an appropriate authority under S.10 of the Act **WP(C) NO. 21740 OF 2020 : 19 :** for adjudication of the dispute but can himself prefer his complaint which is to be treated in the same way as a dispute under S.10. These sections do not lend themselves to the construction that as soon as the Labour Court, Tribunal etc. finds that there has been a violation of S.33 it should award reinstatement. It must go through the proceedings which would have to be taken under S.10 and it would be the duty of the labour court etc. to examine the merits of the case in the light of the principles formulated in the Indian Iron and Steel Co.'s case 1958 SCR 667: AIR 1958 SC 130.” Thus, it is trite that in a complaint filed under Section 33-A, the Labour Court has to deal with the merits of the order of dismissal. It was accordingly that the Labour Court examined the validity of the enquiry and passed Ext. P10 Preliminary Award. There is no jurisdictional error in passing Ext. P10 warranting interference of this Court under Article **WP(C) NO. 21740 OF 2020 : 20 :** 226 of the Constitution of India. As regards the findings of the Labour Court in Ext. P10 Preliminary Award that the enquiry is vitiated, it will be open to the petitioners to challenge the Preliminary Award along with the Final Award of the Labour Court, if aggrieved. It is made clear that this Court has not expressed any opinion on the merits of the Preliminary Award. The Labour Court shall dispose of ID. Nos. 9/2017 and 96/2019 expeditiously, and at any rate within a period of six months from the date of receipt of a copy of this judgment. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al ## **WP(C) NO. 21740 OF 2020 : 21 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF CHARGE MEMO DATED 4/7/2016 ISSUED TO SMT. BINDU SURESH BABU.** **EXHIBIT P2 TRUE COPY OF CHARGE MEMO DATED 5/7/2016 ISSUED TO SMT. BINDU SURESH BABU.** - **EXHIBIT P3 TRUE COPY OF LETTER DATED 30.7.2016 FROM SMT. BINDU SURESH BABU TO TE MANAGEMENT.** **EXHIBIT P4 TRUE COPY OF CHARGE MEMO DATED 12/8/2016 ISSUED TO SMT. BINDU SURESH BABU.** - **EXHIBIT P5 TRUE COPY OF ORDER DATED 26/4/2017 ISSUED BY THE GENERAL MANAGER.** - **EXHIBIT P6 TRUE COPY OF CLAIM, STATEMENT DATED 17/7/2017 SUBMITTED BY THE TRADE UNION.** - **EXHIBIT P7 TRUE COPY OF WRITTEN STATEMENT DATED 18/1/2017 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF APPLICATION DATED 4/6/2018 SUBMITTED BY THE TRADE UNION.** **EXHIBIT P9 TRUE COPY OF COUNTER STATEMENT DATED 22/10/2018 SUBMITTED BY THE MANAGEMENT BEFORE THE LABOUR COURT IN ID NO. 9/2017.** **EXHIBIT TRUE COPY OF PRELIMINARY AWARD DATED 5/8/2020 P10 PASSED BY THE 1ST RESPONDENT LABOUR COURT.**