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.
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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,
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.
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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.
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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
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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.”
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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.
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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.
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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
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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
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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
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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
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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
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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:-
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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:-
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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
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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
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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
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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
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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
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