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A.P. Sankara Wariyar Vs. the North Malabar Dist. Co-op. Supply and Marketing Society Limited and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in1982(II)KLT440
AppellantA.P. Sankara Wariyar
RespondentThe North Malabar Dist. Co-op. Supply and Marketing Society Limited and anr.
Cases ReferredIn Sankaran v. Deputy Registrar of Co
Excerpt:
- - the claim under section 33c(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the (sic) determination which has been assigned to the labour court by sub-section (2)..(emphasis supplied) in paragraph 19 of the judgment, the court took the view that the power under clause c (2) is much wider than that under clause c (1) and the three categories of claims mentioned in clause c(1) also fall under clause c (2) and in that sense clause c (2) can itself be deemed to be a kind of execution proceeding. the government on being satisfied that money is so due, has to issue a certificate for that.....u.l. bhat, j.1. these two writ petitions are filed challenging an order dated 5-1-1980 in c. p. nos. 480 of 1976 and 71 of 1978 passed by the labour court, koz kode under section 33c(2) of the industrial disputes act, 1947 (for short the act).2. the petitioner in o.p. no. 566 of 1980 was working as the manager of the tellicherry branch of the north malabar district co-operative supply and marketing society limited, calicut (for short the 'society') (petitioner in o.p. no. 1117 of 1980 and the first respondent in o.p. no. 566 of 1980). the petitioner in o.p. no. 566 of 1980 and the petitioner in o.p. no. 1117 of 1980 will be referred to herein as the petitioner and the first respondent-society respectively. while so, the first respondent reverted the petitioner as inspector. the petitioner.....
Judgment:

U.L. Bhat, J.

1. These two writ petitions are filed challenging an order dated 5-1-1980 in C. P. Nos. 480 of 1976 and 71 of 1978 passed by the Labour Court, Koz kode under Section 33C(2) of the Industrial Disputes Act, 1947 (for short the Act).

2. The petitioner in O.P. No. 566 of 1980 was working as the Manager of the Tellicherry branch of the North Malabar District Co-operative Supply and Marketing Society Limited, Calicut (for short the 'Society') (Petitioner in O.P. No. 1117 of 1980 and the first respondent in O.P. No. 566 of 1980). The petitioner in O.P. No. 566 of 1980 and the petitioner in O.P. No. 1117 of 1980 will be referred to herein as the petitioner and the first respondent-Society respectively. While so, the first respondent reverted the petitioner as Inspector. The petitioner filed an arbitration case before the Deputy Registrar of Co-operative Societies challenging the order of reversion and obtained an order of stay. On the strength of the stay order he continued in office as Manager. On 11-1-1971 the President of the first respondent again passed an order of reversion reverting the petitioner as Inspector and directing him to report for duty as Inspector at Thariyod Depot, allowing four days joining time. The order was served on 134-1971. The petitioner entered on privilege leave for 13 days. On 19-1-1971 he filed another arbitration case as 7/70-71 before the Deputy Registrar, who passed an order staying the reversion order until the disposal of the case. Apprehending delay in communicating the order of stay on account of strike in the office of the Deputy Registrar, on 22-1-1971 the petitioner sent an affidavit to the Secretary of the first respondent informing the first respondent about the stay order. Meanwhile on 20-1-1971, the first respondent's Secretary issued a memo to the petitioner directing him to join duty at Thariyod Depot on the expiry of the leave. Leave expired on 26-1-1971. In view of the stay order the petitioner did not join duty as Inspector at Thariyod Depot on 27-1-1971. On the other hand, he went to the Tellicherry Branch of the first respondent and marked his attendance there. The first respondent initiated disciplinary proceedings against the petitioner on two charges, viz., he disobeyed the first respondent's order directing him to rejoin duty at Thariyod Depot and in violation of the order he went to the Tellicherry Branch and signed the attendance register. The petitioner submitted an explanation denying the charges. A domestic enquiry was conducted and the same ended in an order dismissing the petitioner from service of the first respondent with effect from 22-2-1971. At that time an industrial dispute was pending between the first respondent and the workmen. The first respondent did not seek approval for the action of dismissal under Section 33(2)(b) of the Act. In view of the non-compliance with this provision of law, the first respondent suo motu cancelled the dismissal order on 10-5-1971 and on the same day, issued a fresh order of dismissal. One month's emoluments of Rs. 530 was sent by Money Order and an application was filed before the Labour Court for approval under Section 33(2)(b) of the Act. On 18-5-1976 the Labour Court passed Ext. P1 order rejecting the request for the approval, holding the dismissal order to be invalid and improper. O.P. No. 3912 of 1976 filed by the first respondent challenging this order was dismissed by this Court (Ext. P2 judgment). In the two arbitration cases filed by the petitioner challenging the two reversion orders, the first respondent raised a contention that the Deputy Registrar has no jurisdiction to decide the disputes. The Deputy Registrar overruled this objection and upheld his jurisdiction. In the appeal filed by the first respondent against that decision before the Co-operative Tribunal, it was held that the Deputy Registrar has no jurisdiction and the two arbitration cases were dismissed. This order was challenged by the petitioner in this Court in O.P. No. 418 of 1979. Though this Court held that the appeal before the Co-operative Tribunal was incompetent, it declined to interfere under Article 226 of the Constitution and dismissed the original petition on the ground that the Deputy Registrar has no jurisdiction to decide the cases. It appears that the petitioner has filed a writ appeal against that decision and the same is pending in this Court.

3. The petitioner filed two claim petitions as C. P. Nos. 480 of 1976 and 71 of 1978 before the Labour Court, Kozhikode under Section 33C(2) of the Act for arrears of salary and other emoluments, treating the dismissal order dated 10-5-1971 as void and ineffective since the Labour Court refused to approve the dismissal under Section 33(2)(b) of the Act. Exhibits, P4 to P9 relate to these cases. The Labour Court passed the impugned order allowing the claims in part. Claim for the period from 11-1-1971 to 10-5-1971 was rejected on the ground that the petitioner has filed a separate application before the Registrar for the same which is pending and that the petitioner has filed a statement before the Labour Court stating that he will pursue his remedy in the other case. The petitioner's claim for salary till the date he completes 58 years of age was rejected and he was held to be entitled to salary only till the date on which he completed 55 years of age on the basis that his age of superannuation is 55 years and not 58 years. These two findings are challenged by the petitioner. The Labour Court further held that since the legality of the reversion orders are pending decision in the proceedings arising from A.R.C. No. 7/70-71, the petitioner will be entitled to claim salary only in his grade as Inspector for the present, subject to the result of the arbitration cases now pending in writ appeal. The petitioner also challenged this conclusion that he will be entitled only to the salary in the cadre of Inspector subject to the result of the arbitration case. The first respondent (Society) has filed O.P. No. 1117 of 1980 challenging the right of the Labour Court to allow the claim to any extent.

4. The learned Counsel for the 1st respondent-society contended that the status of the petitioner as workman as defined in the Act, the validity of the dismissal order, his right to arrears of salary, his age of superannuation and whether he is entitled to salary as Manager or as Inspector are all questions in dispute and the Labour Court exercising jurisdiction under Section 33C(2) of the Act has no jurisdiction to decide these matters. The learned Counsel for the petitioner rebutted these contentions and further contended that the dismissal order is void ab intio and does not require any adjudication at the hands of the Industrial Tribunal under Section 10 of the Act and that other contentions are not bona fide and cannot stand in the way of the Labour Court exercising its jurisdiction. He further contended that the Labour Court committed an error of law apparent on the face of the record in holding that the age of superannuation is 55 years and that the petitioner is entitled to salary only as Inspector. The learned Counsel for the society contended that proceedings before the Labour Court are barred under Section 69 of the Kerala Co-operative Societies Act and this is also rebutted by the learned Counsel for the petitioner.

5. In the counter-affidavit filed by the Society before the Labour Court it was stated that since the petitioner must be deemed to have been functioning as Manager at the time of application for approval, no application under Section 33C(2) of the Act is maintainable. On the basis of the evidence of the petitioner as P.W. 1 and the representative of the society as R.W.1 the Labour Court held that the petitioner I was not discharging functions which are mainly managerial and, therefore, he is a workman as defined in the Act. The Labour Court further held that conduct of the society in setting aside the first order of dismissal for noncompliance with Section 33(2)(b) of the Act and the application filed by it seeking approval of the second dismissal order under this provision of law and the proceedings in O.P. No. 3912 of 1976 would show that the petitioner is a workman. The conduct of the society shows that at the crucial time, viz., at the time of dismissal, it took the definite stand that the petitioner is a workman and therefore, the conditions prescribed in Section 33(2)(b) of the Act must be fulfilled and that was why the society set aside the earlier dismissal order, passed a fresh order and tendered one month's salary and sought the approval of the Labour Court. When the approval was rejected the society pursued the matter in O.P. No. 3912 of 1976. At no stage in those proceedings did the society seek to withdraw the application for approval. Even before this Court in O.P. No. 3912 of 1976, the Society did not raise a contention that the approval was unnecessary. It is clear that the contention regarding the status of the petitioner was raised before the Labour Court without any bona fides and only with a view to show that there is dispute regarding his status. Any dispute raised without bona fides before the Labour Court in proceedings under Section 33C(2) of the Act will not have the effect of shutting out the jurisdiction of the Labour Court.

6. Let us now examine the correctness of the stand taken by the society that since there is a dismissal order, the question whether the order is invalid and unenforceable should have been raised as an industrial dispute under Section 10 of the Act and this dispute falls outside the jurisdiction of the Labour Court to decide under Section 33C(2) of the Act. The leading case on the point is one reported in Central Bank of India Limited v. P.S. Rajagopalan and Ors. 1963-II L.L.J. 89. This is a decision rendered by five Judges of the Supreme Court, the judgment being delivered by Gajendragadkar, J., as he then was. The Court adverted to the legislative background of the various provisions and considered Section 33 and 33A along with Section 33C of the Act and took the view that the object in enacting Section 33C is to provide speedy remedy to the individual workman to enforce or execute his existing rights and therefore, cases which legitimately fall within its purview should not be excluded and at the same time care must be taken to see that cases which fall under Section 10 of the Act are not brought within the scope of Section 33C of the Act. In paragraph 16 of the judgment it is stated as follows:

(16)...in our opinion, on a fair and reasonable construction of Sub-section (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more need to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise...

(emphasis supplied )

Dealing with the argument that Labour Court can exercise jurisdiction only where the claim is admitted, the Supreme Court observed as follows:

Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of he remedy provided by Sub-section (2), because he has merely to raise an objection on the ground that the right of claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the (sic) determination which has been assigned to the Labour Court by Sub-section (2)...

(emphasis supplied)

In paragraph 19 of the judgment, the Court took the view that the power under Clause C (2) is much wider than that under Clause C (1) and the three categories of claims mentioned in Clause C(1) also fall under Clause C (2) and in that sense Clause C (2) can itself be deemed to be a kind of execution proceeding. At the same time the Court observed that the claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under Clause C(2). Illustrating a case which may not fall under Clause C (2), the Court observed as follows:.If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under Section 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under Section 33C(2).

(Emphasis supplied)

7. The decision in U.P. Electric Supply Co. Ltd. v. R.K. Shukla and Ors. 1969-II L.L.J. 728 had to deal with the jurisdiction of the Labour Court to decide a claim for retrenchment compensation under the parallel provisions of the U.P. Industrial Disputes Act. It was held that where the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon on a reference, it would be straining the language of Section 33C(2) to hold that the question whether there has been retrenchment may be decided by the Labour Court, and that where retrenchment is conceded, and the only matter in dispute is that by virtue of Section 25FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question. In R.B. Bansilal Abirckand Mills Co. Pvt. Ltd. v. The Labour Court, Nagpur and Ors. 1972-I L.L.J. 231 he Supreme Court had to deal with the jurisdiction of the Labour Court under Section 33C(2) to decide a claim for compensation for lay-off. The Court held that the Labour Court was competent to go into the question. The Court followed the observations in Central Bank of India case The Court also referred to the observations in U.P. Electric Supply Co. Ltd case to the effect that when the factum of retrenchment is questioned, it is exclusively within the competence of the Tribunal and held that 'these observations cannot be considered binding on us as all the aspects were not placed before the Court then.' Dealing with the dispute whether there was lay-off or not and whether there . was only closure, the Court observed as follows:

As has been said already, the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a layoff. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter VA.

(Emphasis supplied)

In Central Inland Water Transport ) Corporation Ltd. v. The Workmen and Anr. 1975-II L.L.J. 117 the Supreme Court after referring to the observations in the Central Bank of India case, held, that proceedings under Section 33C(2) are analogous to execution proceeding and that the Labour Court cannot decide the disputed questions of the workman's right to leave and the corresponding liability of the defendant as they are not incidental to the proceeding, Referring to an illustrative claim of a workman, who is under order of dismissal, the Court observed as follows :.The workman who has been dismissed would no longer be in the employment of the employer. It may be that an Industrial Tribunal may find on an investigation into the circumstances of the dismissal that the dismissal was unjustified. But when he comes before the Labour Court with his claim for computation of his wages under Section 33C(2) he cannot ask the Labour Court to disregard his dismissal as wrongful and on that basis compute his wages.

16. In such cases, a determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and computation of wages just consequential upon such adjudication. It would be wrong to consider the principal adjudication as 'incidental' to the computation

(emphasis supplied)

8. In Fibre Foam (P) Ltd. v. Kannan Nair (1979) K.L.T. 30), in an application under Section 33C(2) it was contended by the employer that the Labour Court had no jurisdiction since applicants were retired on attaining the age of superannuation and question of retrenchment and payment of compensation did not arise. It was held that the question can be decided only by a reference under Section 10 and it is not a matter for the Labour Court to decide under Section 33C(2). 2 That is a case where 'the basis and foundation of the claim is seriously contested and the determination of the basis factor of the case will involve an elaborate process, the question has to be decided by the Industrial Tribunal and not by the Labour Court under Section 33C(2) of the Act.'

9. In Punjab Beverage Pvt. Ltd. v. Jagadish Singh and Anr. 1978-II L.L.J. 1, also the scope of the proceedings under Section 33C(2) has been considered with reference to the observations in the Central Bank of India Ltd. case and other cases. The Supreme Court had to consider in this decision the effect of contravention of Section 33(2)(b) of the Act and sustainablity of a claim under Section 33C(2) and observed as follows : in paragraph (4) :.It is only if an order of dismissal, passed in contravention of Section 33(2)(b), in null and void, the aggrived workman would be entitled to maintain an application under Section 33C(2) for determination and payment of the amount of wages, due to him on the basis that he continues to be in service despite the order of dismissal. It is now settled, as a result of several decisions of the Court, that a proceeding under Section 33C(2) is a proceeding In the nature of execution proceeding in which the Lobour Court calculates the amount of money due to a workman from his employer, or, if the workman is entitled to any benefit which is capable of being computed in terms money, proceeds to compute the benefit in terms of money- But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman and his employer...The application under Section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio...

(emphasis supplied)

10. In New India Assurance Co. Ltd v. Dalbir Singh Khera 1982-I L.L.J. 39, Madhya Pradesh High Court held that where the order of termination is challenged as unlawful the workman has to have a recourse to the adjudication at the hands of the Industrial Tribunal and if he succeeds, then apply under Section 33C(2) of the Act. That is because, the order of termination cannot be ignored as null and void ab initio,

11. Reliance is also placed on certain other decisions, to which I shall briefly refer. In Bhaskara Menon v. K.S.R.T. Corporation 1979-II L.L.J. 140, the question arose whether Labour Court can go behind an industrial award and in answering the question in the negative, the Court observed as follows:

As in the case of an executing Court it is open to the Tribunal to consider the plea that the award is a nullity on the ground that it was made wholly without jurisdiction; but once it is found that the award is not vitiated by any total lack of jurisdiction, it is not open to the Labour Court to entertain and consider objections concerning the legality or correctness of the award.

In Divisional Superintendent, South Central Railway, Sholapur and Ors. v. M.K. Kulkarni and Anr. 1982-I L.L.J. 64, Bombay High Court had to consider the question whether in an application under Section 33C(2) Labour Court could consider whether the termination of service of the workman at the age of 58 years was justified and whether he must be deemed to be in service till he attained the age of 60 years. The railway authorities had passed an order of retirement on the completion of 58 years. It was held that the correctness or propriety of the order cannot be gone into in an application under Section 33C(2) of the Act and the Labour Court could exercise jurisdiction only after the workman gets rid of the order in an appropriate way.

12. The learned Counsel for the first respondent-society placed reliance on the decision of this Court in Indo Marine Agencies v. Sales Tax Officer, Bombay (1979) K.L.T. 845. In that case, the sales tax officer had passed an order of assessment and in dua course the revenue recovery officer issued a notice of demand and the same was challenged before the High Court under Article 226 of the Constitution. It was argued before the High Court that the order imposing tax was a void order and hence the petitioner could resist recovery on the strength of such order. This contention was repelled by this Court, holding that, an order, although void in law, remains for many purpose effective and operative until it is challenged and its invalidity is declared by a competent body or a court. It is not open to a person to ignore the order made against him by competent authority in the purported exercise of his statutory power solely on the ground that the order is null and void and resist all consequences flowing from it. It is not correct to say that an order which is void in the sense that it has no effect at all. An order may be void ab initio but remains in effect and continues to operate until its invalidity is declared by the Court'. This decision will not apply to the facts of present case. The decision had to deal with the effect of an order passed by a statutory authority under a statute. The court took the view that the assessee cannot ignore the order and resist recovery and it was his duty to have challenged the order in appropriate way. The present case deals not with an order passed by a statutory authority under a statute, but with a dismissal order passed by an employer. The petitioner is also not seeking to resist the consequences flowing from the order. It is the Labour Court which is requested to treat the order as void. Therefore, the above principle cannot apply to the facts of the present case.

13. The position of law in this behalf can be summarised as follows: Section 33C contains legislative recognition of the right of individual workman to a speedy remedy to enforce their existing individual rights, without having to seek recourse to the time consuming process under Section 10 of the Act or without having recourse to depend on their trade union to espouse their cause. Sub-clause (2) is of wider amplitude than Sub-clause (1) Sub-clause (1) gives right to a workman to make an application to the Government for recovery of money due to him from an employer in a settlement or award or under the provisions of Chapter VA or VB of the Act. The Government on being satisfied that money is so due, has to issue a certificate for that amount to the Collector who shall recover the same under the provisions of the Revenue Recovery Act. Sub-clause (2) refers to any workman entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money if any question arises as to the amount of money due or as to the amount at which the benefit should be computed, the i question has to be decided by the Labour Court. The Labour Court may appoint Court. The Labour Court may appoint a commissioner to submit a report and the commissioner can take evidence also. The decision of the Court has to be sent to the Government and any amount found due has to be recovered as provided in Sub-clause (1). The provision contemplates an enquiry into the existence of the right, such an enquiry is only incidental to the main determination which has to be made by the Labour Court. The proceeding is in the nature of execution proceeedings in which the Labour Court decides the amount due or makes the computation. However, under the guise of taking such a decision, Labour Court cannot arrogate to itself the functions of an Industrial Tribunal which is entitled to adjudicate matters covered by Section 10(1)(c) and to decide rights of workman or the existence of liability on the part of the employer. At the same time, a mere assertion by the employer that the applicant has no right or status or that the employer has no liability will not oust the jurisdiction of the Labour Court to take a decision. Labour Court can go into the question of right or status though it may not be able to go into the validity of an order passed by the employer regarding the termination of service or dismissal, discharge, etc. A blank or mala fide denial on the part of the employer of the status or the right of the applicant cannot cost the jurisdiction of the Labour Court; but where the basis and the foundation of the claim is seriously and genuinely disputed and the decision on that factor will involve an elaborate process, it has to be decided by an industrial tribunal on a reference and not by the Labour Court under Section 33C(2) of the Act. If the decision involves an interpretation of an award, settlement or order or a rule, that will be well within the province of the Labour Court to do.

14. If a workman is dismissed by an employer, he may challenge the legality of the dismissal order before the appropriate forum. Unless the correctness and propriety of the order is declared by a competent authority, he cannot claim wages under Section 33C(2) of the Act. It will not be open for him straight away to apply thereunder. As long as the dismissal order stands, it cannot be said that he has an existing right to wages. The Labour Court may not be able to adjudicate on the correctness or propriety of the dismissal order. In such an eventuality, the dispute is not merely a dispute regarding the amount of money due or the amount at which a benefit is to be computed. The dispute relates to the validity of the dismissal order and that can be decided only by an Industrial Tribunal. The position is different in the case of a dismissal order, which is void and ineffective. In such a case, the Labour Court is not called upon to decide on the validity or propriety of a dismissal order. The existence of an order is admitted. What is alleged by the workman is that it is void and ineffective, that is to say it does not exist in the eye of law and that he continues to be workman. In such a case the jurisdiction of the Labour Court under Section 33C(2) is not ousted. A void order can certainly be ignored by the Labour Court. The Labour Court has undoubted jurisdiction to decide if the dismissal order which exists in fact is void and ineffective If it is held to be not void or is effective, the Labour Court cannot decide the propriety or correctness and seek to get over it. If on the other hand, it is found to be a void order, jurisdiction of the Labour Court is ousted.

15. We are concerned in this case with a dismissal order for which approval was sought under Section 33(2)(b) and approval was refused by the competent Labour Court. What is the effect of the dismissal order of the Labour Court refusing to approve it. In The Straw Board v. Govind 1962-I L.L.J. 420, the Supreme Court had to consider the case of dismissal order for which approval was refused by the Labour Court on the ground that the application for approval was submitted only after the order of dismissal was passed. The Supreme Court held that the view taken by the Labour Court was not justified and it is sufficient if as part and parcel of the same transaction the application is filed and no prior approval is necessary. In the course of the discussion in paragraph 8, the Court observed as follows :

It is, however, urged on behalf of the respondent that if the employer dismissed or discharged a workman and then applies for approval of the action taken and the Tribunal refuses to approve of the action, the workman would be left with no remedy as there is no provision for reinstatement in Section 33(2). There, however, shall be no difficulty on this score, if the Tribunal does not approve the action taken by the employer, the result would be that the action taken by him would fall and there upon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the Tribunal not approving the action of the employer, the dismissal or discharge of the workman would be of no effect and the workman concerned would be continued in service as if there was never any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final or conclusive until it is approved by the Tribunal under Section 33(2).

(emphasis supplied).

This reasoning has been followed by this Court in Kannan Devon Hills Produce Co., Ltd., Munnar v. Industrial Tribunal, Ernakulam and Ors. 1962-II L.L.J. 158. In Tata Iron and Steel Company Ltd, v. S.N. Modak 1965-II L.L.J. 128, the employer applied for approval of the order of discharge under Section 33(2)(b) pending certain industrial disputes, pending the application, all the industrial disputes were adjudicated. It was contended before the Tribunal that it has become functus officio and has no jurisdiction to dispose of the application on merits, in view of the fact that industrial disputes were no longer pending. The Tribunal repelled this contention and on merits refused to accord approval. Dealing with the effect of an order granting or refusing approval, the Supreme Court observed as follows in paragraph 5 :

It is also conceded 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 the employer is wholly invalid and 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, an 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.

It was argued before the Supreme Court that even if the application is disposed of on merits, the employer can pass another order of dismissal and need not seek the approval because the Industrial disputes were already over, and, therefore, proceeding with the approval application would be futile. This argument was repelled by the Supreme Court in the following manner :

This argument in our opinion is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employer's right to terminate the service of the respondent according to the terms of the service revives and the bar imposed on the exercise of such power is lifted. But, it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and incohate until the approval is obtained cannot effectively terminate the relationship of the employer and employee between the appellant and the respondent; and so even if the main industrial dispute is finally decided, the question so to the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal the employer would be bound to treat the respondent as its employee and pay is full wages for the period even though the appellant may subsequently proceed to terminate respondent's service.

(emphasis supplied)'.

16. In Punjab Beverages Private Limited case pending industrial dispute, a workman was dismissed and approval was sought under Section 33(2)(b) and later on the application was withdrawn. Thereafter the workman filed an application under Section 33C(2) of the Act for payment of wages. It was contended that the workman continued to be in service on account of the withdrawal of the approval petition. It was held that the withdrawal of the approval petition has the same effect as the management failing to file an approval petition and that was only a contravention of Section 33(2)(b) and such contravention did not have the effect of rendering the order of dismissal void or inoperative, though the workman would have a right to raise an industrial dispute challenging the dismissal order under Section 10(1)(c) or to file a complaint under Section 33A of the Act. On this basis it was further held that an application under Section 33C(2) was not maintainable. In dealing with the question involved in the case, the Supreme Court had occasion to consider the difference between the contravention of Section 33(2)(b) by not applying for approval or withdrawing the approval petition and a case where the approval is sought and the same is either granted or refused. In paragraphs 6 and 7 of the judgment, it has been observed as follow :

If the permission or approval is refused by the Tribunal, the employer will be precluded from discharging or punishing the workman by way of dismissal and the action of dischargs of dismissal already taken would be void. But, the reverse is not true, for even if the permission or approval is granted that would not validate the action of discharge or punishment by way of dismissal taken by the employer. Permission or approval would merely remove the ban so as to enable the employer to make an order of discharge or dismissal and thus avoid incurring the penalty under Section 31(1), but the validity of the order of discharge or dismissal would still be liable to be tested in a reference at the instance of the workman under Section 10.

7. This is the position which arises when the employer makes an application for permission or approval under Section 33 and such permission or approval is granted or refused....

17. The position can, therefore, be summarised thus. A dismissal order passed by the employer pending an industrial dispute is subject to approval by the Labour Court under Section 33(2)(b) of the Act, The employer has to make an application to the Tribunal for grant of approval. The dismissal order is incomplete or incohate and will not take effect till it is approved. Once it is a approved, it becomes final or effective or complete and till its validity is negatived by competent Tribunal on a reference of an industrial dispute, the workman cannot claim wages under Section 33C(2) of the Act. If the approval is refused under Section 33(2)(b), the order which is only incomplete, incohate and ineffective falls to the ground. It does not become complete, final or effective. It is void and inoperative in law. It cannot effectively terminate the relationship of the employer and employee between the parties. The employee would be deemed to be never to have been dismissed and he would continue in service as if there was no dismissal order. No specific order of reinstatement is necessary. The employer is bound to treat the workman as his employee and to pay his wages for the relevant period. That being so, the Labour Court acting under Section 33C(2) of the Act. has jurisdiction to determine the amount of wages or compute the money value of the benefit due to the employee under such circumstances. The present case deals with the dismissal order for which approval was refused. Being a void and ineffective order, even without an order of reinstatement, the petitioner is entitled to be treated as continuing in service of the first respondent and is entitled to claim wages under Section 33C(2) of the Act. There is no error of law committed by the Labour Court in this behalf.

18. On the dispute regarding the correct age of superannuation, whether it is 55 or 58, the Labour Court has held that it is 55 years. According to the byelaws of the first respondent the age of retirement is 58 years. However, Rule 183(2) of the Kerala Co-operative Societies Rules laid down that no employee shall be eligible to continue in service of the society after he attains the age of 55 years. The learned Counsel for the petitioner places reliance on Rule 200 to contend that the benefit under the bye-laws is saved, Relevant portion of Rule 200 reads thus:

200. Savings : Nothing in these Rules or any rules made thereunder shall operate to debar from enjoyment of any person or employee of any right or privilege of emoluments to which he is entitled by the term of any contract or agreement or conditions of service subsisting between such person and a co-operative society on the date on which these rules shall come into force....

The Rules came into force on 21-5-1969. Under the original rules the age of retirement was fixed as 55 years. This was changed as 58 with effect from 15-10-1975. The petitioner attained the age of 55 years on 18-2-1974. Thus the amended rule will not help him. Under the old rule, he had to retire on completion of 55 years. Rule -280. protects only ''right or privilege of emoluments' under the byelaws. The benefit or a higher age of superannuation is not saved under Rule 200.

19. The learned Counsel for the petitioner contended that the expression 'privilege of emoluments' is wrong and the correct expression is 'privilege or emoluments'. If that be so, the right or privilege mentioned in the rule is not restricted to emoluments and could take in other rights and privileges also. Various publications of the Rule-give conflicting versions. Some publications refer to 'privilege of emoluments', while some other publications refer to 'privilege or emoluments'. The rules have been published in the official gazette and the gazette copy mentions 'privilege of emoluments'. The Court can go only by the version given in the official gazette and not in any private publication. Certain emoluments may be drawn as of right and certain others may be drawn by way of privilege. What is saved is only the right or privilege of emoluments and nothing else. Therefore, the correct age superannuation in this case is 55 years and not 58 years. The Labour Court has arrived at the correct conclusion, though on a slightly different reasoning. Though the reasoning arrived at by the Labour Court may be defective, it cannot be said that the conclusion is vitiated by error of law apparent on the face of the record.

20. For wages for the period between 1-1-1971 to 1-5-1971 the petitioner has filed a case before the Registrar of co-operative societies. Before the Labour Court he filed a statement to the effect that he will pursue his remedy before the Registrar. Therefore, the Labour Court did not pass any order for this period. At this stage, it is not open to the petitioner to contend that the Labour Court should have passed an order for the wages for this period also as contended by the learned Counsel for the petitioner.

21. The petitioner claimed wages due in the cadre of Manager. The Labour Court allowed him wages in the cadre of Inspector. It has to be remembered that there are two reversion orders reverting the petitioner from the post of Manager to the post of Inspector and against those orders he filed two arbitration cases, which have been dismissed, but the dismissal is now challenged in writ appeal before this Court and the writ appeal is said to be pending. The Labour Court observed that wages will be calculated subject to the result of the arbitration cases. The petitioner would contend that whatever be the fate of the arbitration cases, he will be entitled to wages as Manager since the reversion orders had been stayed. I do not think, it is necessary for me to decide this dispute at this stage. After the final determination of the arbitration cases, it will be open to the petitioner to approach the Labour Court with a fresh claim in this behalf.

22. The last contention which has to be considered arises under Section 69 of the Kerala Co-operative Societies Act, 1969 (for short the 'Societies Act'). According to the learned Counsel for the first respondent, the present dispute is a dispute which has to be referred to the Registrar for arbitration and, therefore, cannot be decided by the Labour Court under the Act. Section 2(1) of the Societies Act defines 'dispute' as 'any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not.' Relevant portion of Section 69 Clause (1) reads thus :

Notwithstanding anything contained in any law for the time being in force, if a dispute arises-

(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society;

such dispute, shall be referred to the Registrar for decision, and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.

23. I have been referred to certain decisions in this connection and I shall briefly refer to the same. In Malabar Co-operative Central Bank Ltd., Kozhikode v. State of Kerala 1964-I L.L.J. 557, a Division Bench of this Court had to consider the question whether reference to the Industrial Tribunal of a dispute regarding wage rate, allowances, promotion, etc. was barred by Section 51 of the Madras Co-operative Societies Act 1932. The question was answered in the negative by the Bench and the distinction between the two jurisdictions has been very well brought out by M.S. Menon, C.J. (as he then was) in his own inimitable way thus:

Co-operative societies are creatures of Statutes, controlled by their constitution and concerned with their contracts. Industrial disputes stem, not from the subtle refinements of contractual obligations, but from the rougher jurisprudence of social justice and readjustment. The uplands of the Industrial Tribunals are out of bounds to the Registrar of Co-operative Societies.

In Co-operative Central Bank Ltd. and Ors. v. Addl. Industrial Tribunal, Andhra Pradesh 1969-II L.L.J. 698 the Supreme Court had to consider the effect of the arbitration provision in Section 61 of the Andhra Pradesh Co-operative Societies Act, 1964. The dispute in that case related to the alteration of conditions of service and the same was held to be riot touching the business of the society.

24. In Kalloor Vadukkumuri Service Cooperative Society Ltd. v. Asst. Registrar, Mukundapuram and Ors. (1973 K.L.T. 523), a Division Bench of this Court had to consider the question whether a dispute regarding the dismissal of an employee of a society and the question of reinstatement could come under Section 2(1) and Section 69 of the Societies Act. The Court took the view that the real question is not whether the dispute is one touching the business of the society or its management or establishment, but whether it is a dispute within the competence of the Registrar to decide and observed as follows :

The powers of the Labour Court, the second respondent, functioning under the Industrial Disputes Act, 1947 are unaffected by the powers of the Registrar under Section 69 of the Act. A dispute that was resolved by the second respondent by passing Ext. P5 award could not have been dealt with by the Registrar, He was not competent to deal with that question. He cannot grant relief of re-instatement which has been granted by the second respondent. We also hold that this dispute which has been resolved by Ext. P5 award is not falling within the term dispute as defined in Section 2(1) of the Act and not one falling within the competence and jurisdiction of the Registrar functioning under Section 69 thereof.

25. In Sankaran v. Deputy Registrar of Co-operative Societies, Kozhikoae (1975 K.L.T. 861), the Court had to consider a similar question. The Court relying on the decision mentioned above, observed as follows:

If the civil Court cannot grant relief 3 to the petitioner, then, the first respondent also cannot. The alternative provided in Section 69 of the Act is only an alternative to the normal process of the ordinary Courts. The disputes contemplated in Section 69 of the Act are disputes of a nature which could have been decided by civil Court but for that provision. The power that could ; be exercised by an Industrial or Labour Court under the Industrial Disputes Act cannot be exercised by the Registrar.

26. It is possible to argue that a dispute ; regarding the dismissal of an employee of a society is a dispute touching the establishment of the society as referred to in Section 2(1) of the Societies Act. But, then Section 2(1) also states that the dispute must be 'capable of being the subject of litigation'. What is barred under Section 69(1) of the Societies Act is the jurisdiction of the civil Court to entertain a suit or other proceeding in respect of disputes coming under that section. The matter in dispute in the present case is whether the dismissal order is void and inoperative and if so, whether the workman is entitled to claim wages. If the order is void and ineffective, no specific order of reinstatement is necessary; but when the authority holds that the dismissal order is void it involes reinstatement. Ordinarily a civil Court has no power to direct reinstatement or to specifically enforce a contract of service. There is no case for the society that this is an exceptional case which could be brought under the jurisdiction of the civil Court. Therefore, a dispute regarding the dismissal of an employee of the society cannot be treated as a 'dispute' which is capable of being the subject of litigation in an ordinary court of law. Section 69 provides only an alternative to the normal process of an ordinary court. If an ordinary court cannot adjudicate on this dispute, it must follow that the Registrar of Co-operative Societies also cannot adjudicate on it. The dispute regarding dismissal from service squarely falls within ambit of industrial jurisdiction. Industrial Court, unlike an ordinary civil Court, has power to order reinstatement and to pass consequential orders. This extra ordinary power has been granted to Industrial Courts since they are institutions of social justice. Such powers are normally lacking in ordinary civil Courts and wholly lacking in the Registrar of Co-operative Societies. The contention based on Section 69 of the Societies Act must, therefore, fail.

27. It is significant to note that the society did not raise the question of lack of jurisdiction on the part of the Labour Court before the Labour Court itself. This plea is taken for the first time before this Court in proceedings under Article 226 of the Constitution. It is not as if the alleged lack of jurisdiction is patent. At best, it is only latent. The Court exercising jurisdiction under Article 226 of the Constitution is entitled to know what the Labour Court has to say on the question of jurisdiction. The Labour Court was not given an opportunity to decide that it has no jurisdiction, before this Court is called upon to give its decision. The remedy under Article 226 of the Constitution is discretionary. The party who has taken a chance of a decision and was not diligent to urge the lack of jurisdiction of the Labour Court, before the Labour Court, will meet with the refusal by this Court to exercise jurisdiction in his favour. The society has not offered any explanation for not raising the question of jurisdiction before the Labour Court. For this reason also, this Court will refuse to interfere, even if, there is a genuine question of lack of jurisdiction.

28. In the result, the two original petitions are dismissed, but in the circumstances, without costs.


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