The Management vs M.Sivakumar on 3 July, 2026

    0
    7
    ADVERTISEMENT

    Madras High Court

    The Management vs M.Sivakumar on 3 July, 2026

                                                                                        W.P.No.33428 of 2024
                                        IN THE HIGH COURT OF JUDICATURE AT MADRAS
    
                                                      Reserved on: 22/6/2026
    
                                                     Pronounced on:   3/7/2026
    
                                                            CORAM
    
                                         THE HONOURABLE Mr.JUSTICE K. SURENDER
    
                                                  Writ Petition No.33428 of 202 4
                                                                and
                                                    W.M.P.No.36213 of 2024
    
                         The Management
                         Kothari Petrochemicals Limited
                         No.1/2B, 35/5 Sathangadu Village
                         Manali
                         Chennai 600 068.                         …            Petitioner
    
                                                                 Vs
    
                         M.Sivakumar                              …            Respondent
    
    
    
    
                                      Prayer:   Petition filed under Article 226 of the Constitution of
    
                         India praying for the issuance of a writ of certiorari to call for the records
    
                         connected with O.P.No.145 of 2023 on the file of the Presiding Officer,
    
                         Second Additional Labour Court, Chennai.
    
    
    
                         1/20
    
    
    
    
    https://www.mhc.tn.gov.in/judis
                                                                                         W.P.No.33428 of 2024
                                      For petitioner          ...   Mr.Sanjay Mohan
                                                              for M/s.S.Ramasubramaniam & Associates
    
                                      For respondent          ...     Mr.C.D.Sugumar
    
                                                                    -----
    
                                                               ORDER
    

    The petitioner Management is aggrieved by the interim order passed

    in O.P.No.145 of 2023 by the Second Additional Labour Court, Chennai,

    SPONSORED

    directing the petitioner Management to let in evidence to establish their

    stand that the domestic enquiry was conducted properly.

    2. The background of the case is that a complaint was filed against

    the respondent M.Sivakumar for using abusing language and attacking

    another employee, viz., M.Jaison David. The said Jaison David underwent

    treatment in a hospital and also lodged a Police complaint which was

    registered as First Information Report. Considering the grave nature of the

    allegations, respondent was suspended from service, pending domestic

    enquiry.

    2/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    3. The respondent was served with a charge memo dated 9/4/2021

    and four charges were framed for physically assaulting and intimidating the

    said Jaison David using abusive language, amounting to criminal

    misconduct.

    4. The explanation sought for initially was found unsatisfactory, as

    such an external person was appointed as Enquiry Officer to conduct

    domestic enquiry. Witnesses were examined during the domestic enquiry

    and findings of the Enquiry Officer dated 30/8/2021 were sent to the

    respondent to show cause why disciplinary action should not be taken.

    Thereafter, the Management decided to terminate the services of the

    respondent and issued an order of termination dated 16/10/2021.

    5. The Management filed a petition under Section 33 (2) (b) of the

    Industrial Disputes Act (hereinafter referred to as “the Act”) before the

    Deputy Commissioner of Labour (Concilation – II) seeking approval of the

    termination order. Cheque for a sum of Rs.52,255/- was given towards final

    settlement and also a month’s salary.

    3/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    6. The Deputy Commissioner of Labour (Concilation II) after

    conducting enquiry, approved the termination, by his order dated 1/3/2023.

    All through the proceedings, stand of the respondent was one of denial and

    that the domestic enquiry was not conducted in a fair and proper manner,

    violating the principles of natural justice.

    7. Challenging the order of termination, the respondent filed a

    petition under Section 2 A of the Act, before the Deputy Commissioner of

    Labour and since no orders were passed even after a lapse of 45 days, the

    petition was then filed before the Additional Labour Court, and the same was

    numbered as O.P.No.145 of 2023. A memo was filed by the respondent on

    3/7/2024, requesting the labour Court to decide a preliminary issue in

    respect of fairness in domestic enquiry. The labour Court, decided the memo

    and passed orders on 9/10/2024. The Management is aggrieved by the

    orders passed in the memo and the operative portion of the order reads as

    under:-

    “11. This Court is in view that the Deputy
    Commissioner of Labour is only quasi judicial authority
    and not superior to the Labour Court. From the order of
    the quasi judicial authority, this Court understands that
    4/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    both the parties had let in evidence and had subjected
    themselves to the jurisdiction of the quasi judicial
    authority. They have volunteered to let in evidence before
    the quasi judicial authority and they were also cross
    examined. Both the parties have filed their written
    arguments and everything were considered by the quasi
    judicial authority and it has passed an order by giving a
    finding that the domestic enquiry was properly conducted.
    The petitioner should have raised his objection before the
    Deputy Commissioner of Labour. The petitioner should
    have insisted the Deputy Commissioner of Labour only to
    consider the prima facie materials available to decide the
    question of approval and should have restrained himself
    from letting in evidence. Law is well settled that the
    authority shall only consider the existence of prima facie
    material to decide the approval petition and not beyond
    that. The authority has no jurisdiction to give a finding
    regarding the correctness of the domestic inquiry.
    Anything done by any authority beyond its jurisdiction is
    only a nullity. Therefore, the finding given by the Deputy
    Commissioner of Labour regarding the correctness of the
    domestic inquiry has to be treated as nullity and that will
    not bind this Court and the parties. Therefore, this Court
    is of the view that the respondent shall be permitted to let
    in evidence to establish their stand that the domestic
    inquiry was conducted properly.”
    5/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    8. The learned counsel for the petitioner would submit that the

    direction given to the petitioner Management to once again let in evidence

    before the labour Court to prove the fairness of the domestic enquiry is

    incorrect, since the Deputy Commissioner of Labour (Conciliation II) has

    already examined about the fairness of the enquiry in the proceedings and

    passed orders approving the dismissal by the Management.

    9. Counsel further argued that once the Deputy Commissioner of

    Labour has gone into the factum of the fairness of the domestic enquiry, the

    principle of res judicata applies, and as such the labour Court is barred from

    deciding the correctness of the domestic enquiry and erred in asking the

    petitioner Management to let in evidence to establish their stand that the

    domestic enquiry was conducted properly. The fairness of domestic enquiry

    was adjudicated by the Conciliation Officer as such it has attained finality

    and the labour Court cannot once again decide and adjudicate upon a fact

    that was already decided.

    6/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    10. The learned counsel relied on a judgment of the Hon’ble Supreme

    Court in BENGAL BHATDEE COAL CO. LTD Vs. RAM PROBESH

    SINGH AND OTHERS (1963 SCC ONLINE SC 28). In the said decision,

    the Full Bench of the Hon’ble Supreme Court was dealing with regard to a

    dispute that was referred under Section 10 of the Act with reference to

    dismissal of 13 workmen. Initially, an enquiry was held by the Management

    and all 13 workmen were found guilty of the charges framed. 13

    applications were filed before the Tribunal under Section 33 (2) (b) of the

    Act for approval of the action. The Tribunal approved the dismissal.

    Thereafter, a reference was made under Section 10 of the Act by the

    Government. In the said reference made under Section 10 of the Act,

    Tribunal found that it was a case of victimisation of workman. The Hon’ble

    Supreme Court held that once the Tribunal had already approved the

    dismissal of 13 workmen in the allegations made under Section 33 (2) (b) of

    the Industrial Disputes Act, the Tribunal cannot in the reference made under

    Section 10 of the Act come to a different conclusion, since the issue of

    correctness of the enquiry was already decided.

    7/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    11. On the other hand, the learned counsel appearing for the

    respondent would submit that the labour Court was right in asking the

    Management to let in evidence and establish that the domestic enquiry was

    properly conducted. The learned counsel relied on the judgment of the

    Hon’ble Supreme Court in JOHN D’SOUZA Vs. KARNATAKA STATE

    ROAD TRANSPORT CORPORATION (2019) 18 SCC – 47, wherein the

    Hon’ble Supreme Court held that an enquiry under Section 33 (2) (b) of the

    Act is summary in nature and not equivalent to its jurisdiction to adjudicate

    an Industrial Dispute under Section 10 (1) (c) and (d) of the Act. The order

    of approval granted under Section 33 (2) (b) has no binding effect in the

    proceedings under Section 10 (1) (c) and (d) of the Act and therefore,

    correctness of the enquiry can be decided independently.

    12. It is held umpteen times that proceedings under Section 33 (2) (b)

    of the Act are only summary in nature and the Conciliation Officer does not

    decide the legality of the dismissal. The scope of the Conciliation Officer

    during an ‘approval’ consideration is confined to the following, in

    accordance with the judgment of the Hon’ble Supreme Court in LALLA

    8/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    RAM Vs. D.C.M. CHEMICAL WORKS LTD AND ANOTHER (1978) 3

    SCC 1. The Hon’ble Supreme Court at para 12 held as under:-

    “The position that emerges from the above quoted
    decisions of this Court may be stated thus : In proceedings
    under section 33(2)(b) of the Act, the jurisdiction of the
    industrial Tribunal is confined to the enquiry as to (i) whether a
    proper domestic enquiry in accordance with the relevant
    rules/Standing Orders and principles of natural justice has been
    held; (ii) whether a prima facie case for dismissal based on legal
    evidence adduced before the domestic tribunal is made out; (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 regard being had to the position settled by the decisions
    of this Court in Bengal Bhatdee Coal Co, v. Ram Probesh
    Singh
    (1), Titaghur Paper Mills Co. Ltd. v. Ram Naresh
    Kumar(2), Hind Construction & Engineering Co. Ltd. v. Their
    Workmen
    (3), Workmen of Messrs Firestone Tyre & Rubber
    Company of India (P) Ltd. v. Management & Ors
    (4), and Eastern
    Electric and Trading Co. v. Baldev Lal
    (5) that though generally
    speaking the award of punishment for misconduct under the
    Standing Orders is a matter for the management to decide and
    the Tribunal is not required to consider the propriety or adequacy
    of the punishment or whether it is excessive or too severe yet an
    inference of mala fides may in certain cases be drawn from the
    imposition of unduly harsh, severe, unconscionable or shockingly
    9/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    disproportionate punishment; (iv) whether the employer has paid
    or offered to pay wages for one month to the employee and (v)
    whether the employer has simultaneously or within such
    reasonably short time as to form part of the game transaction
    applied to the authority before which the main industrial dispute
    is pending for approval of the action taken by him. If these
    conditions are satisfied, the Industrial Tribunal would grant the
    approval which would relate back to the date from which the
    employer had ordered the dismissal. If however, the domestic
    enquiry suffers from any defect or infirmity, the labour authority
    will have to find out on its own assessment of the evidence
    adduced before it whether there was justification for dismissal
    and if it so finds it will grant approval of the order of dismissal
    which would also relate back to the date when the order was
    passed provided the employer had paid or offered to pay wages
    for one month to the employee and the employer had within the
    time indicated above applied to the authority before which the
    main industrial dispute is pending for approval of the action
    taken by him.”

    13. The findings of the Deputy Commissioner has to be limited to

    grant or refusal of the Approval Application on the basis of the above

    directions of the Hon’ble Supreme Court in Lalla Ram’s case.

    14. In the present case, the impugned order came to be passed on the

    10/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    memo filed by the respondent workman Sivakumar in the main petition filed

    for reinstatement with backwages, continuity of service and all other

    consequential benefits.

    15. The labour Court has found that the Deputy Commissioner of

    Labour is a quasi judicial authority and not superior to the labour Court.

    Further, the Deputy Commissioner has permitted to let in evidence and to

    file written arguments. The labour Court further went on to find that the

    workman ought to have raised an objection before the Deputy Commissioner

    of Labour and ought not to have let in evidence and consequently, directed

    the Management to let in evidence to establish the stand whether the

    domestic enquiry was properly conducted or not as a preliminary issue. The

    labour Court further found that the judgment of the Hon’ble Supreme Court

    in RAJASTHAN STATE ROAD TRANSPORT CORPORATION Vs.

    BHARAT SINGH JHALA (DEAD), S/O. SHRI NATHU SINGH,

    THROUGH LEGAL HEIRS AND ANOTHER (2022 SCC ONLINE SC

    1335) regarding ‘res judicata’ was not applicable, since the Hon’ble

    Supreme Court was dealing with a situation where the labour Court found

    the findings of the Industrial Tribunal to be incorrect when the Industrial

    11/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    Tribunal was superior to the labour Court and Industrial Tribunal had

    decided the application under Section 33 (2) (b) of the Act, whereas the

    Deputy Commissioner of Labour is only a quasi judicial authority and not

    superior to the labour Court.

    16. The Deputy Commissioner of Labour in a petition filed seeking

    approval under Section 33 (2) (b) of the Act has discussed in detail the

    allegations made, nature of evidence adduced and also concluded regarding

    the facts of the case having discussed the evidence elaborately. However,

    contrary to the finding of the labour Court in the impugned order, evidence

    was not adduced. The understanding of the labour Court that both parties

    have let in evidence before the Deputy Commissioner of Labour is incorrect.

    There is no provision under the Act which enables the workman or the

    Management to file an appeal before the Industrial Tribunal questioning the

    refusal or acceptance of an approval application. However, an Industrial

    Dispute can be filed by the workman in case of any punishment imposed by

    employer, including an order of dismissal. The approval granted under 33

    (2) (b) of the Act by the Deputy Commissioner would only ensure

    mandatory compliance of seeking an ‘approval’, however, such

    12/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    determination will not finally conclude about the validity of the dismissal of

    the workman. If ‘approval’ is refused, dismissal would stand ineffective

    from its inception. As already stated, once the dismissal is approved,

    workman can approach the labour Court by filing an Industrial Dispute.

    17. A common preliminary issue before the labour Court in any

    Industrial Dispute would be to look into whether domestic enquiry was fair

    and proper. If the labour Court finds that enquiry was held to be defective,

    the management/employer should be given an opportunity to adduce

    evidence before the labour Court to justify the correctness of the domestic

    enquiry and also the dismissal.

    18. In the State of Tamil Nadu, Amendment Act 5 of 1988, the

    following amendments have been made:-

    Amendment of Section 11, Central Act XIV of 1947
    – for sub-Section (4) of Section 11 of the Principal Act,
    the following sub-Section shall be substituted, namely:-

    13/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    “(4) A conciliation Officer may, if he considers
    that any document or the testimony of any person is
    relevant or necessary for the settlement of an industrial
    dispute or for the purpose of verifying the
    implementation of any award or carrying out any other
    duty imposed on him under this Act, call for an inspect
    such document or summon and examine such person.
    For the aforesaid purposes, the conciliation Officer shall
    have the same powers as are vested in a civil Court while
    trying a suit under the Code of Civil Procedure, 1908
    (Central Act V of 1908), in respect of the following
    matters, namely:-

    (i) summoning and enforcing the attendance of
    any person and examining him on oath;

    (ii) compelling the production of documents;

                                              (iii)    issuing commissions for examination of
                                        witnesses.”
    
    
    
    

    19. It is relevant to extract Section 4 of the Industrial Disputes Act

    and Rule 64 of the Industrial Disputes Act and the same reads as under:-

    14/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    “4. Conciliation Officers:- (1) The appropriate
    Government may, by notification in the Official Gazette,
    appoint such number of persons as it thinks fit, to be
    Conciliation Officers, charged with the duty of mediating in
    and promoting the settlement of industrial disputes…”

    Rule 64 of the Tamil Nadu Industrial Disputes

    Rules, 1958:-

    64. Application to the Conciliation Officer, Board,
    Labour Court or Industrial Tribunal under Section 33

    (1) An application under sub-section (1) or sub-
    section (3) of section 33 shall be in duplicate in Form
    “S” and filed before the Conciliation Officer, Board,
    Labour Court or Tribunal either personally or by
    registered post acknowledgment due. A copy of it shall
    also be served simultaneously either personally or by
    registered post acknowledgment due on the workman or
    the workmen concerned and the fact indicated on copies
    of the application presented to the Conciliation Officer,
    Board, Labour Court or Tribunal, as the case may be.

    (2) An employer seeking the approval of the
    Conciliation Officer, Board, Labour Court or Tribunal,
    as the case may be, of any action taken by him under
    15/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    clause (a) or clause (b) of sub-section (2) of section 33
    shall present an application in Form “T” in duplicate to
    such Conciliation Officer, Board, Labour Court or
    Tribunal either personally or by registered post with
    acknowledgment due. A copy of it shall also be served
    simultaneously either personally or by registered post
    acknowledgment due on the workman or workmen
    concerned and the fact indicated on the copies of the
    application presented to the Conciliation Officer, Board,
    Labour Court or Tribunal, as the case may be. (3) Every
    application under sub-rule (1) or sub-rule (2) shall be
    verified by the employer making it or by some other
    person proved to the satisfaction of the Conciliation
    Officer, Board, Labour Court or Tribunal, as the case
    may be, to be acquainted with the facts of the case.”

    20. A reading of the above state Amendment, Section 4 of the Act and

    also Rule 64 of the Tamil Nadu Industrial Disputes Rules, 1958, it can be

    said that a Conciliation Officer while considering the Approval Petition filed

    under Section 33 (2) (b) of the Act may summon any witness and examine

    and also compel production of documents. However, in so far as the duty

    imposed on the Conciliation Officer regarding the Approval Petition made

    under Section 33 (2) (b) of the Act, powers to examine the witness or cause

    16/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    production of a document can only be confined to the parameters laid down

    by the Supreme Court in Lalaram’s case, as extracted supra. The

    Conciliation Officer in the present case erred in discussing the evidence and

    drawing his own conclusion regarding charges on the basis of the evidence.

    The said procedure adopted is wholly unwarranted and not approved under

    any Statute.

    21. The Conciliation Officer – II, who is an ‘authority’ to determine

    “Approval Application” made under Section 33 (2) (b) can only confine his

    enquiry to examine whether there is legal evidence, whether a prima facie

    case was made out and whether the employer acted bona fide and there was

    no victimisation. The Conciliation Officer – II has not recorded any

    evidence but has re-appreciated the evidence of allegations adduced during

    the course of domestic enquiry, which approach is incorrect. The labour

    Court should recognise that the proceedings before the Conciliation Officer

    – II, though not a judicial proceedings but the Conciliation Officer was

    exercising a valid statutory jurisdiction to grant or refuse approval. The

    labour Court is at liberty to disagree with the conclusions drawn in the

    Approval proceedings however cannot treat such Approval proceedings as

    17/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024
    being without jurisdiction or as nullity.

    22. In view of the discussion made and peculiar circumstances of the

    present case, the labour Court cannot decide the issue regarding the

    correctness of domestic enquiry as though sitting in an appeal against the

    approval by the Conciliation Officer. If the labour Court prima facie finds

    that prejudice was caused to the employee for the reason of domestic enquiry

    not being carried out in accordance with law, grant permission to the

    Management to let in evidence to establish that the domestic enquiry was

    conducted properly.

    23. For the said reason, the impugned order dated 9/10/2024 passed

    by the Presiding Officer, Second Additional Labour Court, Chennai, is set

    aside and the writ petition is allowed. The labour Court shall proceed as

    directed above. No costs. Consequently, connected Miscellaneous Petition

    is closed.

    (K.SURENDER,J)
    3/7/2026
    mvs.

    Index: Yes/No
    Neutral Citation: Yes/No
    18/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    K.SURENDER, J

    mvs.

    To

    The Presiding Officer, Second Additional Labour Court, Chennai.

    Pre-delivery order made in
    Writ Petition No.33428 of 2024

    3/7/2026
    19/20

    https://www.mhc.tn.gov.in/judis
    W.P.No.33428 of 2024

    20/20

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



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here