Gaurav Kumar vs Labour Commissioner Haryana And Another

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CWP-36898-2026 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
108 CWP-36898-2026 (O&M)
Date of Decision: 11.11.2026
GAURAV KUMAR
... Petitioner
VS
LABOUR COMMISSIONER, HARYANA AND ANOTHER
... Respondents
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Anil K. Sokal, Advocate
for the petitioner.

KIRTI SINGH , J. (ORAL)
1. The present petition under Articles 226/227 of the Constitution
of India has been filed seeking issuance of a writ in the nature of Certiorari
for quashing the order dated 19.11.2024 (Annexure P-1) passed by the
Labour Commissioner, Haryana, whereby the application filed by
respondent No.2-M/s Bellsonica Auto Component India Pvt. Ltd. under
Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short, 'the Act'),
seeking approval of the petitioner's dismissal from service, was allowed. A
consequential prayer for reinstatement with back wages and continuity of
service has also been made.
2. Briefly stated as per the pleaded facts, the petitioner initially
joined respondent No.2 on 18.06.2012 through a contractor, namely Lord
Varun, and was subsequently taken on the rolls of the management with
ITHLESH KUMAR
effect from 01.03.2013. He was posted in the Weld Shop-2 department as
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CWP-36898-2026 (O&M)
BA-1 (Employee Code A03130025). The petitioner was subjected to two
separate disciplinary proceedings. The first related to the allegation that he
had furnished a false ITI certificate at the time of his appointment. In this
regard, a charge-sheet dated 27.09.2021 was issued to him, alleging that the
ITI certificate bearing No.1968, submitted at the time of appointment, had
been found to be fake by an investigation agency. The management had also
issued charge-sheets to 22 other workmen on similar allegations. A domestic
inquiry was conducted by Sh. Sarjeet Singh Dhankhar, Advocate, appointed
as the Inquiry Officer vide letter dated 12.04.2022. The inquiry proceedings
continued from 19.04.2022 to 01.07.2022, during which two management
witnesses were examined. The Inquiry Officer submitted his report dated
05.07.2022, holding the charges proved. During the inquiry, the petitioner,
vide letter dated 19.05.2022, sought certain documents, including the
notification and newspaper advertisement relating to recruitment and the
policy or notification prescribing the qualifications for recruitment of
permanent workers. The said communication was taken on the inquiry file as
Ex.WA. The petitioner alleges that the documents sought by him were not
supplied. Thereafter, a second show-cause notice dated 05.12.2022
proposing dismissal from service was issued to the petitioner, to which he
submitted his reply dated 07.12.2022. The second disciplinary proceeding
pertained to alleged unauthorised absence from duty for 178 days during the
period from 01.10.2018 to 30.06.2021. A separate charge-sheet dated
30.06.2021 was issued in this regard. The inquiry was conducted by the
same Inquiry Officer, who submitted his report dated 11.04.2022, holding
the charges proved. A second show-cause notice dated 27.06.2022 proposing
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CWP-36898-2026 (O&M)
dismissal was thereafter issued, to which the petitioner submitted his reply
dated 04.07.2022.
3. Eventually, vide a common order dated 23.12.2022, the
management dismissed the petitioner from service on the basis of the
aforesaid two disciplinary proceedings. On the same date, the management
remitted the petitioner's full and final dues amounting to Rs.1,02,953/- along
with one month's gross wages amounting to Rs.39,616/-. The management
also moved an application under Section 33(2)(b) of the Act seeking
approval of the action taken against the petitioner. The application was
founded upon the pendency of a general demand notice stated to have been
raised by the Union. The petitioner contested the application by filing a
detailed reply dated 17.05.2024, raising objections regarding the
applicability of Section 33(2)(b) of the Act, non-compliance with the
mandatory requirements of its proviso, the validity of the domestic inquiries
and the alleged victimisation. The petitioner also relied upon a tripartite
settlement dated 01.06.2023, stated to have been arrived at under Section
12(3) of the Act, whereby efforts were agreed to be made to take back 17
dismissed workmen, including the petitioner, into employment. The Labour
Commissioner, Haryana, vide the impugned order dated 19.11.2024, allowed
the approval application, holding that the requirements of Section 33(2)(b)
of the Act had been complied with and that the domestic inquiry had been
conducted in accordance with the principles of natural justice.
4. Learned counsel for the petitioner assails the impugned order
primarily on the ground that the mandatory requirements of the proviso to
Section 33(2)(b) of the Act were not complied with. It is contended that the
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CWP-36898-2026 (O&M)
management dismissed the petitioner on 23.12.2022, whereas the approval
application was actually filed on 30.12.2022, and, therefore, the requirement
of simultaneity was not fulfilled. It is further contended that the petitioner
was a protected workman and, consequently, the management was required
to seek permission under Section 33(3) of the Act rather than approval under
Section 33(2)(b). Learned counsel also submits that the Labour
Commissioner failed to properly appreciate the tripartite settlement dated
01.06.2023 and the circumstances surrounding the disciplinary proceedings.
It is argued that the domestic inquiries were vitiated on account of denial of
relevant documents, non-examination of the persons allegedly connected
with the misconduct and refusal to permit the petitioner to be represented by
a co-worker. The petitioner also questions the findings recorded by the
Inquiry Officer and alleges that the disciplinary proceedings were part of a
larger exercise of victimisation of union office-bearers. The punishment of
dismissal is also stated to be disproportionate.
5. Reliance has been placed upon Straw Board Manufacturing
Co. Ltd., Saharanpur v. Govind, [1962] Supp. (3) SCR 618; Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, (2002) 2 SCC
244; Lalla Ram v. D.C.M. Chemical Works Ltd., (1978) 3 SCC 1 ; and
Jitendra Singh Rathor v. Shree Baidyanath Ayurved Bhawan Ltd., AIR
1984 SC 976.
6. I have heard learned counsel for the petitioner and perused the
relevant material on record.
7. The principal question which arises for consideration at this
stage is whether the petitioner ought to be relegated to the statutory remedy
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CWP-36898-2026 (O&M)
available under the Act, particularly when the challenge raised by him
involves several disputed questions concerning the disciplinary proceedings
as well as the consequential order of dismissal.
8. It is well settled that proceedings under Section 33(2)(b) of the
Act are intended to ensure that an employer does not, during the pendency of
an industrial dispute, alter the conditions of service to the prejudice of a
workman or discharge or punish him for misconduct connected with such
dispute without obtaining the requisite approval. The authority exercising
jurisdiction under the said provision is required to examine whether the
employer has held a proper domestic inquiry, whether a prima facie case for
dismissal is made out and whether the mandatory conditions stipulated in the
proviso to the provision have been fulfilled.
9. An order granting approval in such proceedings does not, by
itself, foreclose the workman's right to seek adjudication of the legality and
propriety of the order of dismissal in appropriate industrial adjudication
proceedings.
10. In this regard, the statutory scheme of the Act assumes
significance. Section 2A of the Act specifically provides that a dispute
relating to the discharge, dismissal, retrenchment or termination of an
individual workman shall be deemed to be an industrial dispute
notwithstanding that no other workman or trade union is a party to such
dispute. Further, sub-sections (2) and (3) thereof provide a mechanism
enabling an individual workman to approach the Labour Court or Industrial
Tribunal directly, subject to fulfillment of the statutory requirements,
including the prescribed conciliation process and limitation.
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11. The availability of this statutory remedy is particularly relevant
in the present case, where the petitioner seeks to challenge not merely the
order granting approval but also the underlying disciplinary action on
several factual and legal grounds.
12. The petitioner has questioned the very basis of the disciplinary
proceedings, contending that the alleged ITI certificate was never required
by the management at the time of his recruitment and that the findings
recorded by the Inquiry Officer were not supported by reliable evidence. He
has also relied upon his communication dated 19.05.2022, marked as
Ex.WA, to contend that relevant recruitment-related documents were sought
but were not supplied. Similarly, with regard to the charge of unauthorised
absence, the petitioner seeks to justify his absence on various grounds and
questions the manner in which the inquiry was conducted and the findings
recorded therein.
13. The aforesaid contentions would necessarily require
examination of the inquiry proceedings, the evidence led by the parties, the
documents relied upon by the management and the explanation furnished by
the petitioner. The mere fact that the petitioner participated in the domestic
inquiries would not, by itself, conclude the question whether the inquiries
satisfied the requirements of fairness and natural justice. Equally, the
objections raised by the petitioner cannot be conclusively adjudicated merely
on the basis of the pleadings in the present writ petition.
14. The petitioner has also raised a specific objection regarding the
date on which the approval application was presented before the competent
authority. While the management's case, as noticed in the impugned
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CWP-36898-2026 (O&M)
proceedings, is that the application was presented on 23.12.2022 but was
marked subsequently, the petitioner disputes the same and relies upon the
date of 30.12.2022. The question whether the requirement of simultaneous
payment and application under the proviso to Section 33(2)(b) of the Act
stood fulfilled would require examination of the original application and the
relevant office record.
15. The decision in Straw Board Manufacturing Co. Ltd. (supra),
relied upon by learned counsel, underscores the importance of compliance
with the statutory requirements governing simultaneous payment and
seeking of approval. However, the applicability of the said principle to the
facts of the present case would have to be examined upon consideration of
the relevant record.
16. The petitioner has further questioned the decision of the Labour
Commissioner regarding his status as a protected workman. The impugned
order refers to the acceptance of the management's appeal against the grant
of such status vide order dated 08.12.2023. The petitioner's contention,
however, is that the proceedings and the relevant status have not been
correctly appreciated with reference to the date of dismissal.
17. This aspect, too, requires examination in the light of the
relevant proceedings and the applicable provisions of the Act. No final
determination on this issue is called for in the present proceedings.
18. Likewise, the petitioner has placed reliance upon the tripartite
settlement dated 01.06.2023, contending that he was amongst the 17
dismissed workmen in respect of whom efforts were agreed to be made for
reinstatement. The effect of the said settlement, its applicability to the
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CWP-36898-2026 (O&M)
petitioner and the consequences, if any, flowing therefrom are matters which
would require consideration with reference to the actual terms of the
settlement and the material placed by the parties.
19. The allegations of victimisation, the alleged pattern of
disciplinary action against union office-bearers and the proportionality of the
punishment are also matters which cannot appropriately be determined
without examining the relevant evidence and the circumstances in which the
disciplinary action was taken.
20. It is, therefore, evident that the controversy raised by the
petitioner extends beyond the limited question of approval under Section
33(2)(b) of the Act and involves adjudication of the legality and propriety of
the order of dismissal itself. The Act provides a specific statutory
mechanism for adjudication of an individual dispute relating to dismissal.
The petitioner can avail the remedy contemplated under Section 2A of the
Act and raise all permissible grounds available to him, including the
objections concerning the domestic inquiries, the alleged non-compliance
with the proviso to Section 33(2)(b), his status as a protected workman, the
alleged victimisation and the effect of the tripartite settlement.
21. It is well settled that the availability of an alternative statutory
remedy does not constitute an absolute bar to the exercise of jurisdiction
under Article 226 of the Constitution of India. However, the High Court
ordinarily refrains from exercising its extraordinary jurisdiction where an
effective statutory remedy is available, particularly when the controversy
involves disputed questions of fact requiring appreciation of evidence. The
exceptions to the rule of alternative remedy have been recognised by the
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CWP-36898-2026 (O&M)
Hon'ble Supreme Court in Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai, (1998) 8 SCC 1, including cases involving enforcement of
fundamental rights, violation of principles of natural justice, proceedings
wholly without jurisdiction or a challenge to the vires of the statute.
22. In the present case, although the petitioner has alleged violation
of the principles of natural justice, the grievance primarily relates to the
manner in which the domestic inquiries were conducted, the documents
relied upon and the appreciation of evidence. These are issues which can be
effectively examined by the competent industrial adjudicatory forum. The
mere raising of such allegations, in the facts of the present case, does not
warrant bypassing the statutory remedy, particularly when the petitioner has
not demonstrated any circumstance requiring interference by this Court in
exercise of its extraordinary jurisdiction at this stage.
23. Consequently, this Court is not inclined to examine the disputed
questions raised by the petitioner in the present proceedings, particularly
when the statutory forum is competent to adjudicate the individual industrial
dispute and grant appropriate relief in accordance with law.
24. It is clarified that this Court has not expressed any opinion on
the merits of the petitioner's challenge to the order of dismissal or on the
correctness of the findings recorded by the Labour Commissioner. All
questions of fact and law, including those relating to the validity of the
domestic inquiries, compliance with Section 33(2)(b) of the Act, protected-
workman status, the tripartite settlement and the allegation of victimisation,
are left open for consideration by the competent forum.
25. In view of the availability of the aforesaid statutory remedy, the
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CWP-36898-2026 (O&M)
present writ petition is dismissed on the ground of availability of an
alternative efficacious remedy, with liberty to the petitioner to avail the
remedy under Section 2A of the Act, in accordance with law.
26. Pending miscellaneous application(s), if any, also stand
disposed of.
(KIRTI SINGH)
JUDGE
11.11.2026
Ithlesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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