Madras High Court
P.Sundaramoorthy vs The Presiding Officer on 4 July, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.07.2018
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD) Nos.3625 of 2010
and M.P.No.1 of 2010 and
W.P.(MD) No.690 of 2011
W.P.No.3625/2010
P.Sundaramoorthy ... Petitioner
-vs-
1. The Presiding Officer,
Labour Court,
Madurai
2. The Management
The Kasim Bibi Abdul Kader Women's College
Keelakarai
Ramanathapuram .. Respondents
Prayer in W.P.No.3625/2010: Writ Petition filed under Article 226 of the
Constitution of India for issuance of a Writ of Certiorari to call for the order
dated 10.11.2009 made in Industrial Dispute No.146/2004 passed by the
learned labour Court, Madurai, and quash that portion of the order in
denying the reinstatement of the petitioner with back wages and
continuation of service.
For Petitioner Mr.K.Raja Prabakaran
For Respondents: Mr.S.T.Ravichandran for R2
W.P.No.690/2011
The Management
The Kasim Bibi Abdul Kader Women's College
Keelakarai
Ramanathapuram ... Petitioner
-vs-
http://www.judis.nic.in
2
1. The Presiding Officer,
Labour Court,
District Court Complex,
Melur Road, Madurai
2. P.Sundaramoorthy .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari to call for the records of the first
respondent in I.D.No.146/2004 and quash the award dated 10.11.2009
passed in ID No.146/2004.
For Petitioner Mr.S.T.Ravichandran for R2
For Respondents: Mr.K.Raja Prabakaran
COMMON ORDER
The prayer sought for in W.P.(MD) No.3625/2010 is for a writ of Certiorari to call for the order dated 10.11.2009 made in Industrial Dispute No.146/2004 passed by the learned labour Court, Madurai, and quash that portion of the order in denying the reinstatement of the petitioner with back wages and continuation of service.
2. The prayer sought for in W.P.(MD) No.690/2011 is for a Writ of Certiorari to call for the records of the first respondent in I.D.No.146/2004 and quash the award dated 10.11.2009.
3. The petitioner in W.P.(MD) No.3625/2010 is the workman and the http://www.judis.nic.in petitioner in W.P.(MD) No.690/2011 is the Management. For the sake of 3 convenience, the petitioner in W.P.(MD) No.3625/2010, who is the second respondent in W.P.No.690/2011, would be called as Workman and the petitioner in W.P.(MD) No.690/2011, who is the second respondent in W.P.No.3625/2010, would be called as the Management.
4. The Management is the Private Women's College at Keelakarai, Ramanathapuram District. In the Management College, the workman was appointed as Watchman on 15.03.2001 and he has been continuously working in that capacity till 2004. According to the workman, on 01.04.2004, the workman along with some similarly placed workmen were not permitted to continue in duty and abruptly, their services were dispensed with by the Management. As against such dispensing with the services of the workmen, though workman had made request to the Management for reinstatement, the same was not considered. Therefore, the workman referred the issue to the Conciliation Officer, before whom, no conciliation was materialized and in fact, failure report was submitted. Thereafter, the workman raised industrial dispute in ID No.146/2004 on the file of the labour Court, Madurai.
5. The labour Court, Madurai, after having heard the respective case projected by the workman as well as the Management and after having considered the evidences, had concluded that the services of the workman, http://www.judis.nic.in 4 which was dispensed with by the Management, since had subsequently been entrusted to private security service, there was no scope for any reinstatement to the workman and with the result, the labour Court concluded that the workman can be suitably compensated and accordingly, the labour Court awarded compensation of Rs.30,000/- (Rupees thirty thousand only) to the workman by its award dated 10.11.2009. Aggrieved over the said award passed by the labour Court in not ordering reinstatement with continuity of service, the workman filed W.P.(MD) No. 3625/2010 and aggrieved by the said award directing the Management to pay compensation of Rs.30,000/-, the Management filed W.P.(MD) No. 690/2011. This is how both these writ petitions are before this Court.
6. I have heard the learned counsel for the workman and the learned counsel for the Management.
7. The learned counsel for the workman had submitted that the workman was the permanent employer of the Management and in this regard, he relied upon a communication issued by the Superintendent of the College of the Management dated 28.03.2004, where it has been stated as under:
“jpU.Re;ju%h;j;jp – nrf;A+hpl;b mth;fSf;F> fy;Yhhp #g;gpuz;l; njhptpg;gJ vd;dntd;why; ePq;fs; Ntiyapy; Nrh;e;J 3 tUlq;fs; ey;y Kiwapy; hpkhh;f; Nehl;b]; vJTk;
http://www.judis.nic.in
thq;fhky; epue;ju ];lhg; nrf;fpA+hpl;bahf gzpahw;wp
5
cs;sPh;fs;. ,g;nghOJ cq;fshy; nghpa jiytyp
te;Js;sJ. vd;dntd;why; ,uT Neuq;fspy; uTz;l;];
nrd;W ghh;j;J gy tp\aq;fis hpg;Nghh;l; nfhLj;Js;sPh;fs; fy;Yhhpf;Fs; nrd;W CD Nfrl; xd;W nfhLj;Js;sPh;fs;. cq;fshy; eph;thfj;jpw;F gw;gy FyWgbahy; MfpwJ mit ePq;fs; 28.03.2004 Njjpapy; ,Ue;J gfy; L{l;b kl;LNk Nkw;nfhs;s Ntz;Lk;. cq;fs; L{l;b Neuk; 9.30 a.m. to 5.30 p.m. tiu kl;LNk Qhapw;Wf;fpoik tpLKiw ehs;
ePq;fs; vf;fhuzk; nfhz;Lk; ,uT L{l;bf;F tuf;$lhJ. ,J #g;gpuz;l; Mh;lh;.”
8. The learned counsel for the workman further submitted that the employees of the Management including the workman had been subjected to professional tax and thereby, a sum of Rs.60/- was deducted from the workman's salary as professional tax. He further submitted that the Management had given an identity card for the workman stating that his designation is security at the Management College.
9. By relying upon these documents, the learned counsel for the workman would further submit that, since the workman was the permanent employee of the Management and had been continuously working from 15.03.2001 to 31.03.2004, abruptly, the workman's service was dispensed with from 01.04.2004, without even following the mandatory requirement under Section 25(F) of the Industrial Disputes Act (hereinafter referred to as 'the Act').
http://www.judis.nic.in 6
10. The learned counsel for the workman would further submit that, when the termination is illegal, as no plausible reasons had been given for such early termination, insofar as the workman is concerned, that too, without following the procedure contemplated under Section 25(F) of the Act, such illegal termination cannot be sustained and therefore, once it is found by the labour Court that the termination is wrong, the labour Court ought to have made an award directing the Management to reinstate the workman with full back wages and continuity of service.
11. In this regard, the learned counsel for the workmen has relied upon the following decisions:
(i) 2018(II) LLJ 491 (Mad) (A.Manickam v. Commissioner of Milk production and Dairy Development, Madhavaram, Chennai and others)
(ii) 2017(I) LLJ 304 (HP) (Ramesh Chand v. State of H.P.)
(iii) 2017(III) LLJ 406 (PNH) (Balwinder Kumar v. Presiding Officer)
12. Per contra, the learned counsel for the Management would submit that the workman has never been appointed as permanent employee by the Management at its College. The appointment given to the workman as security was purely temporary and on adhoc basis.
13. Not only the workman, but also several persons, like, the http://www.judis.nic.in 7 workman had been engaged as security personnel at the Management College and at one point of time, since the Management had decided to entrust the job of security to a private agency called Vaigai Security service, the Management decided to dispense with the services of all the security personnels including the workman.
14. The learned counsel would further submit that, that apart, since there had been some complaints against the workman, out of which, one complaint was very serious in nature, as the workman had misbehaved with one female worker (Sweeper) and this was noticed by the Management and since the College run by the Management is a women's College, these kind of unlawfulness, if it is noticed against any employee that should be viewed seriously. Since the workman was only an adhoc employee and any time his services could be dispensed with, the Management, instead of initiating any disciplinary proceeding to punish the workman, had simply dispensed with the services of the workman.
15. The learned counsel for the Management would further submit that assuming that before dispensing with the services of the workman, the procedure contemplated under Section 25(F) of the Act should have been followed, even in that case, the workman cannot seek any such compensation, as has been awarded by the labour Court. In this regard, the http://www.judis.nic.in 8 learned counsel would further submit that, the salary paid to the workman, at that time was only Rs.2,100/- per month, therefore, if such salary is taken into account, for the invocation of Section 25(F) of the Act, very meagre amount ought to have been paid to the workman and the Management is ready and willing to make such payment, however, without taking note of these factors, the labour Court has made an award directing the Management to pay compensation of a sum of Rs.30,000/- to the workman, which is on the higher side and therefore, challenging such higher compensation awarded by the labour Court, the Management has filed the writ petition.
16. I have considered the said rival submissions made by both sides.
17. The claim of the workman that he was appointed as Watchman or security personnel on 15.03.2001 and he was working in that capacity at the College of the Management till 31.03.2004 is not in dispute, as the Management has not disputed that factor. The Management also accepted that from 01.04.2004 only the services of the workman has been dispensed with.
18. Even though a reason of complaint had been attributed for the dispensing with the services of the workman, on the side of the http://www.judis.nic.in 9 Management, either before the labour Court or before this Court, no documents or materials had been filed by the Management to substantiate that allegation. Moreover, if any complaints received, that too, a serious complaint against the workman and based on which, if the Management wants to take action, proper enquiry should have been conducted, without which, it cannot be attributed that based on the complaint only, the workman has been terminated or his services had been dispensed with, in that case, it shall be the termination with stigma and therefore, certainly such kind of termination shall not be passed without giving an opportunity of being heard to the workman. Therefore, the said allegation made by the learned counsel for the Management cannot be accepted and therefore, the same is rejected.
19. Insofar as the claim made by the workman for reinstatement with continuity of service and back wages is concerned, the issue has been dealt with by the learned Judge of the labour Court at length. The labour Court also had considered the plea raised by the workman that the Management before terminating or dispensing with the services of the workman had not followed the mandatory requirement contemplated under Section 25(F) of the Act. In this regard, the labour Court has relied upon number of judgments of the Hon'ble Apex Court as well as this Court. The discussion to that effect, as has been made by the labour Court can be usefully http://www.judis.nic.in 10 referred to hereunder:
“(2008) 4 MLJ 105 (SC) In the Supreme Court of India It is evident that the respondents have withheld the best evidence. The wage sheet, the provident fund records and other documents were in their possession. They were statutorily required to maintain some documents. It may be true that the learned labour Court did not draw any adverse inference expressly, but whether such an adverse inference has been drawn or not must be considered upon reading the entire Award. The High Court, in our opinion, has wrongly opined that the award suffers from an error of law and was otherwise based on surmises and conjectures.
Indisputably, the Industrial Court exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefor, were required to be taken into consideration, the nature of appointment, the period of appointment, the availability of the job etc., should weigh with the court for determination of such an issue.
This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a discretion to be reinstated in service in cases of this nature would subserve the ends of justice.
M/s.Laxmi Rattan Cotton Mills Ltd., v. State of U.P & Others. 2009 LAB I.C. 690 (Supreme Court) There cannot be any doubt whatsoever that the Industrial Court in terms of section 11-A of the Industrial Disputes Act, 1947 exercises a wide discretion, But, such http://www.judis.nic.in 11 discretion must be exercised judiciously. All attempts must be made to strike a balance. Even otherwise grant of backwages and that too with retrospective effect may not be appropriate in all situations.”
20. The labour Court has also taken into account the fact that since the security job of the Management College had been entrusted to a private concern called 'Vaigai Security Service', there had been no occasion for the Management to take back or reinstate the private persons, like, the workman as a security personnel. This aspect also has been considered by the labour Court by giving the following finding:
“9.The petitioner's contention that he served for more than three years as watchman was not denied by the respondent. The petitioner also not denied that he served as a temporary Watchman. Similarly the petitioner also admitted that the security work in the respondent Institution was handed over to a private concern called Vaigai Security Service. As such there is no watchman post available with the respondent, considering the above nature of appointment, period of service and non availability of the job along with the above said decisions of the Hon'ble Supreme Court and High Court, it is not a fit case for reinstatement and payment of adequate amount of compensation in the place of a direction for reinstatement would meet the ends of justice. The petitioners, who deposed as WW1 admitted in cross examination that he only prayed for compensation before http://www.judis.nic.in 12 the Labour Officer and in Ex.M.14 and M.15 also petitioner asked for compensation only. In the light of the above discussions and considering three years of service of petitioner with the respondent, it is just and necessary to award a compensation of Rs.30,000/- to the petitioner, by the respondent and I answered the issues accordingly.”
21. Only in that circumstances, the labour Court had come to the conclusion that instead of directing to reinstate the workman, in alternative, the labour Court had chosen to award compensation to the workman, with the result, a compensation of Rs.30,000/- was awarded by the labour Court. In this regard, the plea raised by the workman was that he was the permanent employee and therefore, he shall be entitled to get full back wages, if not reinstatement is permitted and therefore, it runs to several lakhs of rupees and if meagre compensation of Rs.30,000/- awarded by the labour Court, is unjust.
22. It is the claim of the workman that he was appointed on 15.03.2001 as a Watchman or Security personnel and had been working in that capacity till 31.03.2004. Therefore, only three years, the workman had been in service at the Management College. It is the case of the Management that not only the services of the workman, but also similarly placed security personnel services had been dispensed with, because of want of any vacancy, as the Management decided to hand over the security http://www.judis.nic.in service to a private security agency. This factor cannot be disputed, as the 13 same had been taken into account by the labour Court.
23. As has been pointed out by the learned counsel for the workman, the Management before dispensing with the services of the workman has violated the mandatory requirement under Section 25(F) of the Act. Then, what shall be the consequences, especially, to be looked into in this matter. In this regard, for easy reference, Section 25(F) of the Act is extracted hereunder:
“25-F Conditions precedent to retrenchment of workmen – No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days, average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [for such authority as may be specified by the appropriate Government by notification in the official Gazette].” http://www.judis.nic.in 14
24. In this case, as per 25(F) (a) of the Act neither one month notice was given nor salary in lieu of this one month notice was paid. Like that, under Section 25(F)(b), the Management had not paid any 15 days average pay as a compensation for every completed year of service by the workman.
25. If both these requirements under Section 25(F)(a) and 25(F)(b) of the Act, had not been complied with, certainly, the workman is entitled to get the said benefits with interest.
26. At the same time, since there is no definite finding from the labour Court that the termination of service or dispensing with the services of the workman was justifiable, the labour Court merely travelled on the basis of the stand taken by the workman before the labour Court at the time of cross examination. Since the workman in the cross examination stated that he had only prayed for compensation before the labour Officer and under Exs.M14 and M15, the workman had asked only compensation, the labour Court has proceeded to award compensation to the workman in lieu of reinstatement with or without back wages and with or without continuation.
27. In this regard, it is an admitted fact on the side of the workman that from 01.04.2004, the Management had entrusted the security job to a private security service, as this aspect has been admitted by the workman http://www.judis.nic.in 15 in his deposition before the labour Court, where he has stated like this:
“01.04.2004f;F gpwF fy;Yhhp fhtyh;fs; gzpia itif nrf;A+hpl;b rh;tP]; epWtdj;jplk; tpl;L tpl;lhh;fs; vd;why; rhp.”
28. From the evidences adduced before the labour Court, it become clear that the security services of the College run by the Management had subsequently been entrusted to a private security agency and therefore, there was no scope for engaging any individual or private security personnel like the workman any more in the College run by the Management. Yet another fact also has become clear that, the workman has been trying to get compensation instead of reinstatement and in this regard his plea, as has been made before the conciliation Officer and before the labour Court has been specifically pointed out by the labour Court in the impugned award. When that being the position, the workman cannot seek for any reinstatement and therefore, for the said purpose, if the writ petition is filed by the workman, that is liable to be rejected.
29. At the same time, since the Management admittedly had not followed Section 25(F) of the Act and the labour Court has not found that the termination or dispensing with the service of the workman was justifiable, the Management certainly either has to reinstate the workman or in lieu thereof adequate compensation to be paid. Therefore, the writ http://www.judis.nic.in petition, challenging the very nominal compensation of Rs.30,000/- 16 awarded by the labour Court, filed by the Management is liable to be rejected.
30. Therefore, in the given circumstances, in order to meet the ends of justice, as both the workman as well as the Management are before this Court, challenging the very same award passed by the labour Court, which is impugned herein, this Court is inclined to pass the following order:
“(1) that the termination of service or dispensing with the service of the workman from 01.04.2004, without any plausible reason cannot be approved; with the result, the challenge raised by the workman shall be accepted;
(2) Since the workman himself has accepted that the Management had entrusted the security services to a private security agency, after dispensing with the service of the workman and others, the question of reinstatement of the workman does not arise;
(3) It is also the willing of the workman to seek an adequate compensation in lieu of the reinstatement, as has been evidenced through his own evidence or deposition, as has been recorded by the labour Court, the workman shall be entitled to get only compensation and not for any reinstatement;
(4) Insofar as the claim of compensation is concerned, since the workman admittedly had been working for three years at the College run by http://www.judis.nic.in 17 the Management and the termination of his service or dispensing with the service of the workman was not found to be correct by the labour Court, certainly, the workman is entitled to get adequate compensation;
(5) Though there is no direct evidence to show that the workman had been working by way of alternative employment for all these years, this Court can take a judicial notice that the workman could have involved in some job for his earning and livelihood and in this regard, the submission made by the learned counsel for the workman that the workman had been engaging as a labour in a shop from which, he is getting a meagre salary on day-to-day basis shall be taken note of.
(6) At any rate, since the workman is entitled to adequate compensation, this Court, taking into account the services rendered by the workman at the College of the Management and also taking into account the evidences adduced before the labour Court and also further taking into account that under Section 25(F) of the Act has not been followed in this case and Rs.30,000/- compensation awarded by the labour Court through the impugned award also either paid or deposited by the Management, directs that the Management shall pay a sum of Rs.2,00,000/- (Rupees two lakhs only) to the workman as a one time compensation and such amount shall be paid by the Management to the workman within a period of eight weeks from the date of receipt of a copy of this order.
http://www.judis.nic.in 18
31. In the result, W.P.(MD) No.3625/2010 is ordered accordingly and W.P.(MD) No.690/2011 is dismissed. No costs. Consequently connected Miscellaneous Petition is closed.
04.07.2018
Index : Yes
Internet : Yes
RR
To:
The Presiding Officer,
Labour Court,
Madurai
http://www.judis.nic.in
19
R.SURESH KUMAR, J.
RR
W.P.(MD) No.3625 of 2010 and W.P.(MD) 690/2011 and M.P.No.1 of 2010 04.07.2018 http://www.judis.nic.in