THE HON'BLE Ms. JUSTICE G. ROHINI AND THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
WRIT APPEAL NOs.1069 OF 2012 and Batch
03.10.2012
(1) Andhra Pradesh State Road Transport Corporation, Musheerabad, Hyderabad,
rep. by its Managing Director, and three others.
Mr. B. Samuel
Counsel for the appellants: Sri C.R. Sridharan
Counsel for respondent: Sri A.G. Satyanarayana Rao
(GIST:
(HEAD NOTE:
? Cases cited:
1 AIR 1968 SC 985
2 (1972) 1 SCC 814
3 AIR 1963 SC 1756
4 2009 (2) ALT 370
5 AIR 1958 SC 300 =1963 SUPP. (1) SCR 229
6 AIR 1986 SC 1168
WRIT APPEAL NOs.1069, 1070 & 1071 OF 2012 AND WRIT PETITION NOs.22369, 22370 &
22382 OF 2012
COMMON JUDGMENT: (Per G. Rohini, J)
W.A.Nos.1069, 1070 & 1071 of 2012 are filed by the respondents in
W.P.Nos.22369, 22370 & 22832 of 2012 (A.P. State Road Transport Corporation)
aggrieved by the common order dated 6.8.2012 passed by a learned Single Judge
granting interim suspension of the orders impugned in the said writ petitions.
Since the issue involved in the writ appeals and the writ petitions is one
and the same and the pleadings in all the writ petitions are complete, we
thought it appropriate to hear and dispose of the writ petitions also along with
the writ appeals. Accordingly, with the consent of the learned counsel for both
the parties, all the writ appeals and writ petitions are being disposed of by
this common judgment.
Brief facts:-
The writ petitioners who are the employees of the A.P. State Road
Transport Corporation (for short, 'Corporation') were placed under suspension
pending enquiry in public interest by separate orders dated 16.7.2012. On
16.7.2012 itself charge-sheets were served on the writ petitioners calling upon
them to submit their explanation within seven days. The charges included that
the writ petitioners, who are the office-bearers of the Employees Union of
Prakasam Region had abused and physically assaulted a Supervisor on duty on
11.07.2012 which constitutes misconduct under Regulation 28 (viii) (ix) of
APSRTC Employees (Conduct) Regulations, 1963.
The orders of suspension dated 16.7.2012 have been assailed in
W.P.Nos.22369, 22370 & 22382 of 2012 contending that the writ petitioners being
the office-bearers of the APSRTC Employees Union are the protected workmen and
therefore they cannot be placed under suspension without seeking the written
permission of the Deputy Commissioner of Labour before whom the conciliation
proceedings pursuant to the strike notice, dated 11.6.2012 issued by the Union
are pending.
The Corporation filed counter-affidavits contending inter alia that
the writ petitioners are not protected workmen and therefore they are not
entitled to the protection under Section 33(3) of the Industrial Disputes Act,
1947 (for short, 'ID Act'). It was also contended that suspension pending
enquiry was not a punishment nor it had affected the conditions of service to
the prejudice of the petitioners and therefore Section 33 was not attracted at
all.
After hearing both the parties, the learned Single Judge by common order
dated 6.8.2012 made in WPMP Nos.28677, 28678 & 28690 of 2012 granted interim
suspension of the impugned orders of suspension, dated 16.7.2012 holding that
the writ petitioners are entitled to the protection under Section 33 (3) of the
I.D. Act and therefore the Corporation should obtain express permission in
writing from the Conciliation Authority before proceeding against the
petitioners.
Aggrieved by the interim suspension so granted by the learned Single Judge
pending W.P.Nos.22369, 22370 & 22382 of 2012, the Corporation preferred
W.A.Nos.1069, 1070 & 1071 of 2012 respectively.
As stated above, having regard to the fact that adjudication of the controversy
involved in the writ appeals is nothing but deciding the main writ petitions,
with the consent of the learned counsel we have called for the writ petitions
also and heard at length Sri A.G. Satyanarayana Rao, the learned counsel for
the writ petitioners and Sri C.R. Sridharan, the learned counsel appearing for
the Corporation.
Admittedly the writ petitioners are the office-bearers of the APSRTC
Employees Union of Prakasam Region, Ongole. It is also a fact that conciliation
proceedings are pending before the Conciliation Officer and Deputy Commissioner
of Labour, Ongole, as provided under Section 12 of the Industrial Disputes Act,
1947 read with Rule 9 of the A.P. Industrial Disputes Rules. The said
proceedings commenced on 13.7.2012 and according to the writ petitioners,
victimisation of the members of the Employees Union by the Depot Manager of
Giddalur is one of the disputes being investigated by the Conciliation Officer.
As noticed supra, the writ petitioners were alleged to have abused and assaulted
a Supervisor on duty on 11.7.2012 and in that connection while initiating
disciplinary proceedings against them under the provisions of APSRTC Employees
(Conduct) Regulations, 1963, the petitioners were placed under suspension
pending enquiry by orders dated 16.7.2012.
According to the writ petitioners, it is mandatory to obtain the express
permission in writing of the conciliation authority as provided under Section 33
(3) of the ID Act before issuing the impugned orders of suspension. Since no
such permission was obtained, it is contended in the writ petitions that the
impugned action of the Corporation in resorting to suspension of the writ
petitioners during the pendency of conciliation proceedings is arbitrary and
illegal.
In the counter-affidavits filed on behalf of the Corporation, the plea of
the writ petitioners that they are protected workmen has been categorically
denied stating that they were never recognized as such by the Corporation in
terms of Rule 63 of A.P. Industrial Dispute Rules, 1958. It is also contended
that the misconduct committed by the writ petitioners is not related to the
dispute pending for conciliation before the Deputy Commissioner of Labour and
moreover suspension pending enquiry is not a punishment and it does not alter
the conditions of service in any manner whatsoever and therefore the protection
under Section 33(3) of the ID Act cannot be extended to the writ petitioners on
that ground also.
For better appreciation of the rival submissions, it is necessary to refer
to the relevant statutory provisions.
Legal position:-
At the outset, it is necessary to notice Section 33 of the Industrial
Disputes Act, 1947:
33. Conditions of service, etc., to remain unchanged under certain circumstances
during pendency of proceedings:-
(1) During the pendency of any conciliation proceeding before a conciliation
officer or a Board or of any proceeding before an arbitrator or a Labour Court
or Tribunal or National Tribunal in respect of an industrial dispute, no
employer shall--
(a) in regard to any matter connected with the dispute, alter, to the
prejudice of the workmen concerned in such dispute, the conditions of service
applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish,
whether by dismissal or otherwise, any workmen concerned in such dispute,
save with the express permission in writing of the authority before which the
proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial
dispute, the employer may, in accordance with the standing orders applicable to
a workman concerned in such dispute or, where there are no such standing orders,
in accordance with the terms of the contract, whether express or implied,
between him and the workman--
(a) alter, in regard to any matter not connected with the dispute, the
conditions of service applicable to that workman immediately before the
commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish,
whether by dismissal or otherwise, that workman :
Provided that no such workman shall be discharged or dismissed, unless he has
been paid wages for one month and an application has been made by the employer
to the authority before which the proceeding is pending for approval of the
action taken by the employer.
(3) Notwithstanding anything contained in sub-section (2), no employer shall,
during the pendency of any such proceeding in respect of an industrial dispute,
take any action against any protected workman concerned in such dispute--
(a) by altering, to the prejudice of such protected workman, the conditions of
service applicable to him immediately before the commencement of such
proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such
protected workman,
save with the express permission in writing of the authority before which the
proceeding is pending.
Explanation:- For the purpose of this sub-section, a "protected workman" in
relation to an establishment, means a workman who, being a member of the
executive or other office bearer of a registered trade union connected with the
establishment, is recognised as such in accordance with rules made in this
behalf.
(4) In every establishment, the number of workmen to be recognised as
protected workmen for the purposes of sub-section (3) shall be one per cent of
the total number of workmen employed therein subject to a minimum number of five
protected workmen and a maximum number of one hundred protected workmen and for
the aforesaid purpose, the appropriate Government may make rules providing for
the distribution of such protected workmen among various trade unions, if any,
connected with the establishment and the manner , in which the workmen may be
chosen and recognised as protected workmen.
(5) Where an employer makes an application to a conciliation officer. Board,
an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso
to sub-section (2) for approval of the action taken by him, the authority
concerned shall, without delay, hear such application and pass, within a period
of three months from the date of receipt of such application such order in
relation thereto as it deems fit :
Provided that where any such authority considers it necessary or expedient so to
do, it may, for reasons to be recorded in writing, extend such period by such
further period as it may think fit :
Provided further that no proceedings before any such authority shall lapse
merely on the ground that any period specified in this sub-section had expired
without such proceedings being completed (emphasis supplied).
A plain reading of the above Section shows that it is aimed at providing a
protection to the workmen concerned in the dispute, which forms the subject-
matter of pending conciliation proceedings against victimisation by the employer
on account of raising such pending dispute and to ensure that the conditions of
service of the workmen are not altered during the pendency of the said
proceedings. In other words, the object of Section 33 is to maintain the status
quo as far as possible during the pendency of any industrial dispute.
As we could see, sub-section (1) of Section 33 which refers to matters
connected with a pending industrial dispute forbids any alteration of conditions
of service to the prejudice of workman concerned in such dispute except with the
express permission of the authority before which the proceeding relating to the
dispute is pending. Sub-section (2) gives power to the employer to alter any
conditions of service or to discharge or to dismiss for any misconduct not
connected with the industrial dispute in respect of which the proceedings are
pending, without approaching at all the authority before which the proceedings
may be pending. However in case of discharge or dismissal the workman concerned
shall be paid wages for one month and the employer has to make an application to
the authority before which the proceeding is pending for approval of the action
taken. Sub-section (3) of Section 33 also deals with a situation where the
employer proposes to take action in regard to any matter not connected with the
industrial dispute pending before a conciliation officer. It provides for
certain workmen who are called 'protected workmen'. The employer shall not take
any action against such protected workmen during the pendency of proceeding in
respect of an industrial dispute by altering the conditions of service to the
prejudice of such protected workmen or by discharging or punishing whether by
dismissal or otherwise except with the express permission in writing of the
authority before which the proceeding is pending.
Sub-section (3) which starts with a non-obstante clause makes it clear that the
freedom which was given to the employer under sub-section (2) with respect to
conditions of service unconnected with the dispute is restricted so far as the
protected workmen are concerned even though the action of the employer may be
unconnected with any matter in dispute before the conciliation authority.
The distinction between sub-section (2) and sub-section (3) of Section 33 has
been explained in P.D. SHARMA v. STATE BANK OF INDIA1 as under:
"Sub-section (2) of Section 33 concerns itself with actions that may be taken by
an employer against his employees in respect of matters not connected with the
industrial dispute. In those cases though the employer can take any of the
actions mentioned in that provision in accordance with the standing orders or
where there are no such standing orders, in accordance with the terms of the
contract, whether express or implied between him and the workmen, on his own
authority, he must in the case of discharging or punishing whether by dismissal
or otherwise a workman, pay him wages for one month and must also make an
application to the authority before which the industrial dispute is pending for
approval of the action taken by him. Sub-section (3) of Section 33 deals with
'protected workman' which expression in relation to an establishment means a
workman who being an officer of a registered trade union connected with the
establishment, is recognized as such in accordance with the rules made in that
behalf. If the employer wants to take any action prejudicial to a protected
workman concerned in an industrial dispute pending before one of the authorities
mentioned earlier he can do so only with the "express permission in writing of
the authority before which the proceeding is pending". On a comparison of sub-
sections (2) and (3) of Section 33 it will be seen that the scope of the two
provisions are wholly different. Taking the case of a worker's discharge or
punishment by dismissal or otherwise in the former the previous permission of
the authority before which the industrial dispute is pending is necessary but
under the latter only a subsequent approval from a competent authority is
needed. Though the application under that provision should be made to the
authority before which the industrial dispute is pending the approval to be
obtained need not be from that authority. Once approval is given it goes back to
the date on which the order in question was made. If the approval asked for is
not accorded then the action taken by the employer becomes ab initio void
and the employee will continue in service and his conditions of service will
also continue without any break as if the order in question had not been made at
all. "
In AIR INDIA CORPORATION v. V.A. REVELLOW2 while observing that Section 33 (3),
imposes an unqualified ban on the employer in regard to action by discharging or
punishing the workman whether by dismissal or otherwise, it is further held:
".. ...In this connection reference by way of contrast may be made to sub-
section (3) of Section 33 which imposes an unqualified ban on the employer in
regard to action by discharging or punishing the workman whether by dismissal or
otherwise. In this sub-section we do not find any restriction such as is
contained in clause (b) of sub-sections (1) and (2). Sub-section (3) protects
"protected workman" and the reason is obvious for the blanket protection of such
a workman. The Legislature in his case appears to be anxious for the interest of
healthy growth and development of trade union movement to ensure for him
complete protection against every kind of order of discharge or punishment
because of his special position as an officer of registered trade union
recognised as such in accordance with the rules made in that behalf. This
explains the restricted protection in sub-sections (1) and (2)."
Who is a protected workman is stated in the Explanation to Section 33 (3). As
per the said Explanation, a protected workman in relation to an establishment
means a workman who being a member of the Executive or other office-bearer of a
registered trade union connected with the establishment is recognised as such in
accordance with Rules made in that behalf.
In exercise of the powers conferred by Section 38 of the Industrial Disputes
Act, 1947 the Governor of Andhra Pradesh made the A.P. Industrial Disputes
Rules, 1958 and Rule 63 of the said Rules provides for the manner in which a
protected workman has to be recognized for the purpose of sub-section (3) of
Section 33 of the ID Act. The said Rule 63 reads as under:
63. Protected workmen:- (1) Every registered trade union connected with an
industrial establishment, to which the Act applies, shall communicate to the
employer before the 30th April every year, the names and addresses of such the
officers of the union who are employed in that establishment and who, in the
opinion of the union should be recognised as "Protected Workmen". Any change
in the incumbency of any such officer shall be communicated to the employer by
the union within fifteen days of such change.
(2) The employer shall subject to sub-section (4) of Section 33, recognise
such workmen to be "protected workmen" for the period of 12 months from the date
of such communication for the purpose of sub-section (3) of the said Section and
communicate to the union, in writing fifteen days the receipt of the names and
addresses under sub-rule (1), the list of workmen recognised as protected
workmen :
(3) Where the total number of names received by the employer under sub-rule
(1) exceeds the maximum number of protected workmen admissible for the
establishment, under sub-section (4) of Section 33, the employer shall recognise
as protected workmen only such maximum number of workmen :
Provided that where there is more than one registered trade union in
the establishment, the maximum number shall be so distributed by the employer
among unions that the number of recognised protected workmen in individual
unions bear roughly the same proportion to one another as the membership figures
of the unions. The employer shall in that case intimate in writing to the
President or the Secretary of the union the number of protected workmen allotted
to it:
Provided further that where the number of protected workmen
allotted to a union under this sub-rule, falls short of the number of officers
of the union seeking protection, the union shall be entitled to select the
officer to be recognised as protected workmen. Such selection shall be made by
the union and communicated to the employer within five days of the receipt of
the employer's letter.
(4) When a dispute arises between an employer and any registered trade
union in any matter connected with the recognition of 'protected workmen' under
this rule, dispute shall be referred to the Labour Court whose decision thereon
shall be final.
As per Rule 63 (1), every Registered Trade Union is required to communicate to
the employer before the 30th April of every year the names and addresses of such
of the officers of the Union who are employed in that establishment and who in
the opinion of the Union should be recognized as protected workmen. As per Rule
63 (2) the employer should communicate in writing to the Union the list of
workmen recognized as protected workmen within 15 days from the receipt of the
names from the Registered Trade Union under sub-rule (1). Sub-rule (2) further
states that the list of workmen recognized by the employer as protected workmen
would be in force for the period of 12 months from the date of communication of
recognition to the Union.
It may be mentioned that Section 33 (4) provides that the number of workmen to
be recognized as protected workmen for the purpose of Section 33 (3) in every
establishment shall be 1% of the total number of workmen employed therein
subject to a minimum number of 5 protected workmen and a maximum number of 100
protected workmen. What should follow in case the total number of names
received by the employer for recognition as protected workmen exceeds the
maximum number of protected workmen provided under Section 33 (4) has been
explained in Rule 63 (3).
Sub-rule (4) of Rule 63 further provides that a dispute between an employer and
any registered trade union in any matter connected with the recognition of
protected workmen under Rule 63 shall be referred to the Labour Court and its
decision thereon shall be final.
Point for consideration:-
In the light of the legal position noticed above, the question that
requires consideration is whether the writ petitioners are the 'protected
workmen' within the meaning of the Explanation to Section 33 (3) of the ID Act
and whether the impugned orders of suspension are vitiated for want of express
permission of the conciliation authority.
In the present case, the APSRTC Employees Union addressed a letter
dated 2.5.2011 to the Regional Manager, APSRTC, Prakasam Region, Ongole,
informing that the Regional Council of Prakasam Region was held on 28.04.2011 at
Ongole and the Committee was reconstituted with the members specified therein
and requesting the Regional Manager to extend his co-operation and afford all
facilities to the members of the committee mentioned therein so as to enable
them to discharge their organisational responsibilities. The names of the
petitioners in W.P.Nos.22369, 22370 & 22382 of 2012 are shown in the said letter
as Vice-President, Joint Secretary and Secretary respectively of the Regional
Committee.
At the outset, it is to be noticed that the letter dated 2.5.2011 addressed by
the Union is a mere intimation of the names and particulars of the members of
the committee reconstituted on 28.04.2011. Moreover, it was not communicated
before 30th April, 2011 as required under Rule 63 (2). Therefore the said
letter does not appear to be a proper communication in compliance with the
mandatory statutory provisions. Even assuming that the said letter, dated
2.5.2011 can be treated as the communication contemplated under Rule 63 (2) of
the A.P. Industrial Disputes Rules, 1958 (for short, 'the Rules'), admittedly
the Corporation did not communicate its recognition to the Union within 15 days
or thereafter.
In the absence of such communication of recognition by the Corporation, whether
the writ petitioners can claim the status of protected workmen is the core
question now requires consideration.
Sri A.G. Satyanarayana Rao, the learned counsel for the writ petitioners
contended that the Corporation is not issuing written communications as required
under Rule 63 (2) of the Rules recognising a particular workman as protected
workman and therefore as per the practice in vogue the writ petitioners are
entitled to claim the status of protected workmen on the basis of the letter
dated 2.5.2011 addressed by the Union. It is further contended that non-
communication from the Corporation amounts to acceptance that they are the
protected workmen.
Refuting the said contention, Sri C.R. Sridharan, the learned counsel appearing
for the Corporation vehemently contended that a positive action on the part of
the employer in regard to the recognition of an employee as a protected workman
is essential to claim the status of protected workman within the meaning of the
Explanation to Section 33 (3) of the Act. In support of the said contention,
the learned counsel relied upon a decision of the Constitution Bench of five
Judges of Apex Court in P.H. KALYANI v. AIR FRANCE3, wherein it is held:
"The labour Court has held that according to the rules framed by the Government
of West Bengal as to the recognition of protected workmen, there must be some
positive action on the part of the employer in regard to the recognition of an
employee as a protected workman before he could claim to be a protected workman
for the purpose of Section 33. nothing has been shown to us against this view.
In the absence therefore of any evidence as to recognition, the Labour Court
rightly held that the appellant was not a protected workman and therefore
previous permission under Section 33(3) of the Act would not be necessary before
his dismissal."
In the said case, the Vice-President of the Union had merely written a letter
to the Manager of the respondent company mentioning the name of the appellant as
a Joint Secretary of the Union and the Manager had been requested to recognize
him along with others mentioned in the letter as protected workman. While
referring to the Rules framed by the Government of West Bengal as to the
recognition of the protected workman, the labour Court held that such a letter
addressed to the Manager of the Company by the Union was not enough and that
there must be some positive action on the part of the employer in regard to the
recognition of an employee as a protected workman before he could claim to be a
protected workman for the purpose of Section 33. Upholding the said view, the
Supreme Court held that the appellant was not a protected workman and therefore
previous permission under Section 33 (3) of the Act would not be necessary
before his dismissal.
Sri C.R. Sridharan would further submit that Rule 63 of the A.P. Industrial
Dispute Rules, 1958 is in pari materia with the Rules framed by the Government
of West Bengal which were interpreted by the Supreme Court in P.H. KALYANI'S
case (3 supra) and therefore a positive action of recognition on the part of
the Corporation is a must.
We find force in the said submission. On a careful analysis of Rule 63 of the
Rules, particularly in the light of the specific provision under sub-rule (2)
prescribing the time limit of 15 days from the date of receipt of list from a
trade union to communicate the recognition as protected workman and the remedy
provided under sub-rule (4) to the trade union to raise a dispute before the
Labour Court in case the employer fails to send the communication as required
under sub-rule (2), we are of the opinion that a positive action of recognition
by the Corporation as provided under sub-rule (2) is mandatory.
It is no doubt true that the APSRTC Employees Union which addressed the letter
dated 2.5.2011 is a registered trade union and the names of the writ petitioners
were shown in the said letter as the office bearers of the said Union. However
all such office bearers of a registered trade union are not automatically
entitled to be the protected workmen within the meaning of the Explanation to
Section 33 (3) of the ID Act. On a combined reading of the Explanation to
Section 33 (3) and Rule 63 of the Rules, it is clear that whereas every
registered trade union connected with an industrial establishment is entitled to
communicate the names of the officers of the Union as provided under sub-rule
(1) of Rule 63, only those officers who are recognized by the employer as
protected workmen and communicated to the Union, are entitled to the protection
under Section 33 (3) of the I.D. Act. Thus it is clear that the communication of
recognition by the employer is mandatory and there cannot be any deemed or
automatic recognition as protected workmen on the expiry of 15 days provided
under sub-rule (2) of Rule 63.
Therefore, the law laid down in P.H. KALYANI'S case (3 supra)
squarely applies to the case on hand and consequently the writ petitioners
cannot claim the status of protected workmen in the absence of recognition by
the Corporation.
The further contention on behalf of the Corporation is that the impugned orders
of suspension pending enquiry have neither altered the service to the prejudice
of the writ petitioners nor put an end to the contract of employment and
therefore there is no need for the prior permission of the conciliation
authority as provided under Section 33 (3) of the ID Act.
In this regard, the learned counsel for the writ petitioners while relying upon
a decision of this Court in A.HANUMANTHA PRASAD V. COAL MINES PROVIDENT FUND
ORGANISATION4 contended that even the act of suspending the protected workmen
would be covered by Section 33 (3) of the ID Act.
On a perusal of the said decision, we found that the question whether the
suspension pending enquiry would amount to altering the conditions of service
was neither argued nor decided by this Court.
In fact, the said issue was considered in detail and the effect of suspension
pending enquiry was explained in KHEM CHAND v. UNION OF INDIA5 as under:
"An order of suspension of a government servant does not put an end to
his service under the Government. He continues to be a member of the service in
spite of the order of suspension ... The real effect of the order of suspension
is that though he continued to be a member of the Government service he was not
permitted to work, and further, during the period of his suspension he was paid
only some allowance - generally called "subsistence allowance" - which is
normally less than his salary - instead of the pay and allowances he would have
been entitled to if he had not been suspended. There is no doubt that the order
of suspension affects a government servant injuriously. There is no basis for
thinking however that because of the order of suspension he ceases to be a
member of the service."
The same has been reiterated in FAKIR BHAI v. PRESIDING OFFICER & ANOTHER6
holding:
"An order of suspension by itself does not put an end to the employment. The
workman continues to be an employee during the period of suspension and it is
for this reason ordinarily the various standing orders in force in several
factories and industrial establishments provide for payment of subsistence
allowance, which is normally less than the usual salary and allowance that are
paid to the workmen concerned. An order of suspension no doubt prevents the
employee from rendering his service but it does not put an end to the
relationship of Master and Servant between the Management and the Workman."
We may also refer to Regulation 18 of APSRTC Employees (Conduct) Regulations
which expressly empowers the appointing authority to place an employee under
suspension pending enquiry.
18. Suspension:
(1) The appointing authority or any authority to which it is subordinate or
any other authority authorized by the Corporation in that behalf by a Resolution
may, subject to such conditions and limitation, if any, as may be specified,
place an employee under suspension from Service:
(a) Pending investigation or enquiry into grave charges, where such
suspension is necessary in the public interest:
(b) Where any criminal offence is under investigation or trial:
Provided that where the order of suspension is made by an authority lower
than the appointing authority, such authority, shall forth with report to the
appointing authority the circumstance, in which the order of suspension was
made.
(2) ... ... ... ... .. ...
... ... ... ... .. ...
In the light of the settled legal position noticed above and having regard to
the express power conferred under Regulation 18 to place a workman alleged to
have committed serious acts of misconduct under suspension pending enquiry in
public interest, we do not find any substance in the contention on behalf of the
writ petitioners that the impugned orders of suspension pending enquiry would
result in altering the conditions of the service to the prejudice of the writ
petitioners.
Conclusion:-
For the aforesaid reasons, we are of the opinion that the impugned action of the
Corporation in placing the writ petitioners under suspension pending enquiry
cannot be held to be illegal for want of prior permission of the conciliating
authority firstly for the reason that the writ petitioners are not the protected
workmen within the meaning of Section 33 (2) read with Rule 63 of the A.P.
Industrial Disputes Rules, 1958. Secondly, the impugned orders of suspension
under no circumstances can be held to be an action altering the conditions of
service of the writ petitioners to their prejudice much less discharging or
punishing them by way of dismissal or otherwise.
Coming to the order dated 6.8.2012 passed by the learned Single Judge which is
impugned in the writ appeals, it is to be noticed that the learned Single Judge
has proceeded on an assumption that by virtue of the letter dated 2.5.2011
addressed by the Union communicating the names of the office bearers of the
Union which has not been rejected by the Corporation, the writ petitioners
enjoyed the status of protected workmen under Section 33 (3) of the Act. We are
unable to agree with the view expressed by the learned Single Judge and we have
already given our reasons while holding that there cannot be any automatic or
deemed sanction under Section 33 (3) of the I.D. Act.
The learned Single Judge has also relied upon the Circular No.PD-51/1999, dated
28.06.1999 issued by the Corporation to the effect that the APSRTC Employees
Union was recognised under clause (6) of the Code of Discipline w.e.f.
30.09.2010 as being operational in Prakasam Region and thus concluded that even
as per their own circular the Corporation was bound to refer the matter to the
concerned Deputy Chief Personal Manager for taking a decision and seeking the
permission of the conciliation authority.
According to us, the reliance on the said circular is misplaced since on the
face of it the said circular deals with a case of termination of the services of
a workman who is related to any of the matters concerning the dispute in the
strike notice.
Here is a case where the writ petitioners were merely placed under suspension
pending enquiry in exercise of the power conferred under the Service Regulations
and their employment with the Corporation was not put to an end. Hence the said
circular is not at all attracted.
As already expressed above, this is a case where the Corporation has not granted
recognition to the writ petitioners as protected workmen. Such recognition
being sine qua non for attracting Section 33 (3) of the ID Act, the writ
petitioners are not entitled to the status of the protected workmen.
Accordingly, the common order dated 6.8.2012 passed by the learned Single Judge
granting interim suspension of the orders impugned in W.P.Nos.22369, 22370 &
22382 of 2012 cannot be sustained. The same is accordingly set aside and all
the Writ Appeals are allowed.
In the light of the reasons stated supra, the Writ Petitions are devoid of any
merit and the same shall stand dismissed. No costs.
_________________
Justice G. Rohini
_________________________
Justice C.Praveen Kumar
Date: 03.10.2012
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