Madras High Court
The Kovai Erode Mavatta Thesiya vs The Presiding Officer on 19 July, 2022
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.120 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.07.2022
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Petition No.120 of 2013
The Kovai Erode Mavatta Thesiya
Thozhilalar Sangam,
Rep. by its General Secretary
Mr.S.R.Chinnasamy ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court,
Coimbatore.
2.The Management,
M/s.Bullet Paper Boxes,
Moongil Mara Thottam,
Vellakinar Post,
Coimbatore. … Respondents
Writ Petition filed under Article 226 of Constitution of India, praying for
issuance of Writ of Certiorari, calling for all the records and papers from the
files of the 1st respondent in I.D.No.250 of 2003 and quash impugned Award
made therein dated 11.10.2011 insofar as the 1st respondent has held that
declaration of lockout by the 2nd respondent management with effect from
02.05.2002 was correct and that the workers are not entitled to get any relief.
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W.P.No.120 of 2013
For Petitioner : Mr.K.M.Ramesh
For Respondent 1 : Labour Court
For Respondent 2 : No Appearance
ORDER
The writ petition is filed challenging the award passed by the first respondent in I.D.No.250 of 2003 dated 11.10.2011, declaring the lockout by the second respondent management with effect from 02.05.2002 was correct and that the workers are not entitled to get any relief.
2. The case of the petitioner is that it is a registered trade union and it represents the workmen employed in the 2nd respondent management. In order to get better service conditions, the workmen employed in the 2nd respondent management joined INTUC union and upon its formation, a flag hoisting function was held on 05.12.2011. This was not liked by the 2nd respondent management and in order to break the unity among the workers as they joined a trade union, the 2nd respondent management was treating the workers badly and inhumanly. As soon as the workmen joined the INTUC union, the 2nd respondent management started its vindictive actions against the leading Page No.2 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 members. The workmen resorted to indefinite strike on 24.12.2001 against the vindictive actions unleashed by the management. The second respondent management in order to end the indefinite fast came forward to look into the grievances of the workmen and assured that their needs will be considered. Believing the words of the 2nd respondent management, the workmen returned to work with effect from 14.02.2002. However, the workmen were unhappy over the activities of the INTUC union and hence, they joined the petitioner union on 11.03.2002. The 2 nd respondent has filed O.S.No.505 of 2002 before the District Munsif Court, Coimbatore as against the workmen. The 2nd respondent management instigated the workmen who are loyal to the management to go in for a stay in strike inside the factory premises from 29.04.2002 onwards and citing the same, the 2 nd respondent declared lockout on and from 02.05.2002.
3. As soon as lockout was declared, the 2nd respondent management, removed the machineries from the factory and started a new business under the name and style of M/s.Bullet Paper Inpack at the place called Vellakinar and Page No.3 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 provided employment to the workmen who were favourable to the management. The lockout declared on and from 02.05.2002 was continued indefinitely and the members of the petitioner union were rendered jobless. In such circumstances, the petitioner raised an industrial dispute challenging the illegal lockout declared by the 2nd respondent management. Upon failure of conciliation talks, the Labour & Employment Department of the Government of Tamil Nadu vide G.O.(D) No.420 dated 08.04.2003 referred the Industrial Dispute regarding the illegal lockout for adjudication to the 1st respondent/Labour Court. The 1st respondent/Labour Court took up the said Industrial Dispute on its files as I.D.No.250 of 2003.
4. The learned counsel for the petitioner submitted that while filing statement of claims, the petitioner inadvertently filed the same captioning it as “Claim Petition filed under Section 2-A(2) of the industrial Disputes Act, 1947” and in the prayer portion, instead of praying to declare the lockout as illegal, relief of reinstatement with back wages was sought for the workmen. Subsequently, realizing the mistake that had crept in the Claim Statement, the Page No.4 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 petitioner filed I.A.No.561 of 2006, praying for amendment and the same was dismissed by the 1st respondent by its order dated 13.11.2008. Simultaneously, the petitioner filed another I.A. being I.A.No.751 of 2006 to implead the petitioner as a party. The 1st respondent by its order dated 13.11.2008 dismissed the said I.A. In the Labour Court, on the side of the petitioner, the General Secretary of the petitioner Sangam was examined as W.W.1 and Exhibits W.1 to W.28. On the side of the 2nd respondent management, three witness were examined as M.W.1 to M.W.3 and Exhibits M.1 to M.36 was marked.
5. The learned counsel further contended that the petitioner union are entitled to full wages for the period of the said lockout and the findings of the 1st respondent that the petitioner has not produced any sustainable evidences except the oral evidence is unsustainable and what other material can be produced to prove that the lockout declared by the 2nd respondent management is illegal and the oral evidence let in through W.W.1 is more than sufficient to prove that the lockout is illegal. The prolong lockout by the 2nd respondent Page No.5 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 management is unjustified and the blame cannot be squarely placed on the workmen alone and the same ought to have been apportioned between the management and the workmen. The findings of the 1 st respondent/Labour Court that the petitioner has not produced any sustainable materials to prove the lockout as illegal is again untenable and hence, unsustainable. Moreover, the findings of the 1 st respondent/Labour Court that the statutory authorities had not initiated action against the management for declaring the lockout as illegal. Hence, the same is in accordance with law and unsustainable.
6. The 1st respondent/Labour Court has failed to take judicial notice of the fact that the 2nd respondent management was showing only 43 employees in the attendance register and apart from the said 43 workmen, it was employing causal and temporary workmen and their names were not brought in the attendance register. Merely, because the 2nd respondent management has brought only 43 workmen on its rolls, leaving out causal and temporary workmen, it cannot be said that the 2nd respondent management was employing Page No.6 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 less than 50 workmen and hence, it is not bound by the statutory provisions and one of the findings of the 1st respondent/Labour Court that since, two or three workmen have resigned and settled their accounts by entering into settlement u/s 18 (1) of the I.A. Act, 1947 the Industrial Dispute ceased to exist is unsustainable and contrary to law and no evidence was placed by the 2nd respondent management to show that most of the workmen have settled their claims with the management. The 2nd respondent management has not produced any documents relating to settlement of claims by most of the workmen. Hence, coming to the conclusion that W.W.1 alone is pursuing the industrial dispute is perverse, illegal and hence unsustainable.
7. Heard the learned counsel appearing for the petitioner and none appeared for the second respondent, despite the notice served by this Court and perused the materials available on record.
8. It is not in dispute that the petitioners went on indefinite strike with Page No.7 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 effect from 24.12.2001 and the respondent declared lockout with effect from 02.05.2002. It is pertinent to extract the provision of Section 22 of the Industrial Disputes Act:
“22.Prohibition of strikes and lock-outs._(1) No person employed in a public utility service shall go on strike, in breach of contract -
(a) without giving to the employer notice of strike, a hereinafter provided, within six weeks before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
(2) No employer carrying on any public utility service shall lock-out any of his workmen-
(a) without giving them notice of lock-out as hereinafter provided, within six weeks before locking-out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or Page No.8 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
(3) The notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public utility service, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services.
(4) The notice of strike referred to in sub-section 91) shall be given by such number of persons o such person or persons and in such manner as may be prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be given in such manner as may be prescribed.
(6) If on any day an employer receives from any persons employed by him any such notices as are referred to in sub-
section (1) or gives to any persons employed by him any such notices as are referred to in sub-section (2), he shall within five days, thereof report to the appropriate Government or to such authority as that Government may prescribe the number of such Page No.9 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 notices received or given on that day.” The issue raised in the I.D.No.250 of 2003 is the stay in strike inside the factory premises on 29.04.2002 and 30.04.2002 and due to which the lockout announced by the management with effect from 02.05.2002 is correct or not and if not to what relief, the workmen are entitled to?
9. In paragraph 8 of the award, it is mentioned that the specific defence of the respondent is that the workers involved in illegal strike quiet often and therefore the respondent sustained loss in production and as well as loss in capital, prior to declaration of lock out. Ex.M.32, Ex.M.33 and Ex.M.34 are the copies of the “profit and loss account” for the year endings on 31.03.2001, 31.03.2002 and 31.03.2003 respectively. Ex.M.33 shows the net loss to the tune of Rs.3,06,811/- for the financial year ending on 31.03.2002. Ex.M.34 shows the net loss to the tune of Rs.19,82,710/- for the financial year ending on 31.03.2003. During the pendency of the said conciliation proceedings, the workers observed strike by resorting indefinite fast commencing from 24.12.2001.
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10. The contention of the respondent is that the workers observed stay in strike on 29.04.2002 and on 30.04.2002 and thereby forced the management to declare lock out. W.W.1 has admitted in his cross-examination that the workers observed indefinite fast on and from 24.12.2001 by deposing as below:
“24/12/2001 Kjy; Miyapd; nfl; Kd;ghf eh';fs; cz;zhtpuj nghuhl;lj;jpy; <Lgl;nlhk;/”
11. Ex.M.1 is the copy of the Form ‘P’ and the copy of the statement of reasons submitted by the respondent to the Labour Officer at Coimbatore with regard to declaring of lock out commencing from 02.05.2002. The findings of the Labour Court that after receiving Ex.M.1 and Ex.M.2, the concerned statutory authorities had not initiated any action as against the respondent as admitted by both sides. In the said circumstances, it can be taken that the declaration of lock out by the respondent was in accordance with law and that is why the statutory authorities had not initiated any action as against the respondent for declaring of lock out commencing from 02.05.2002 is not sustainable in law.
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12. The petitioner has not produced any sustainable materials to prove as to how the lock out declared by the respondent is illegal. In the absence of any materials on the side of the petitioner, in the circumstances stated herein before, the only conclusion that can be drawn is that the declaration of lock out by the respondent was only in accordance with law. Even though the petitioner has submitted in the claim statement that 53 employees were worked in the establishment of the respondent and 31 workers out of them are members of the petitioner-union, the petitioner has not produced any materials to substantiate the above contentions. The specific defence of the respondent is that there were only 43 and less than 43 employees engaged by the respondent prior to 02.05.2002. Ex.W.8 is the letter sent by the Inspector of Factories to the petitioner on 11.04.2002. In the said letter, the Inspector of Factories at Coimbatore has submitted that while he inspected the establishment of the respondent on 04.04.2002 there were only 25 women workers and therefore the respondent cannot be directed to provide facility of creche.
13. In the Ex.W.11-copy of the failure report, the conciliation officer has Page No.12 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 submitted that at the time of conciliation of the management of the respondent contended stating that out of total of 42 employees engaged in the establishment of the respondent 26 workers resigned their jobs and received the settled amounts from the respondent. Ex.W.24 is the copy of the letter dated 11.09.2008 sent by the E.S.I. Corporation at Coimbatore to the W.W.1- Mr.N.Damodaraswamy and the copy of the letter dated 11.03.2002 submitted by the Manager of the E.S.I. Corporation, Local Office at Thudialur. In the said letter dated 11.03.2002, it has been submitted that on 07.03.2002 there were only 39 workers actually worked in the respondent company. Further, it has been submitted that as per attendance register there were only 43 employees employed in the establishment of the respondent as on 07.03.2002. Hence, it is clear and evident that from the documents produced by the petitioner, it has been established that only less than 50 employees were engaged by the respondent prior to 02.05.2002.
14. Ex.M.16, Ex.M.17, Ex.M.18 are the copies of the attendance registers for the months of December 2001, January 2002 and Februrary 2002 respectively. The perusal of the same reveals that there were only 43 Page No.13 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 and less than 43 employees engaged by the respondent prior to may 2005. Ex.M.3 to Ex.M.15 are the petitions executed by the workers expressing their withdrawal of industrial disputes in this case, since they settled their disputes with the management by executing a settlement under Section 18(1) of the Industrial Disputes Act, 1947 and since, they received the full and final settlement amount from the respondent. W.W.1-Mr.N.Damodaraswamy and two other workers viz., Mr.N.Suresh and Mr.P.Subramani received the full and final settlement amounts from the respondent. Ex.W.28-notice of closure dated 01.07.2009 is the contention of the respondent. Ex.W.27 is the copy of the letter of closure compensation sent to the W.W.1-Mr.N.Damodaraswamy along with said letter, a cheque for Rs.37,960/- was drawn in the name of W.W.1 and sent to him. After receiving the said letter along with the cheque, W.W.1 enchased the cheque and received the closure compensation amount as evidenced in Ex.M.30.
15. It is also admitted that after receiving the above closure compensation amounts, they submitted letters of protest to the respondent. Page No.14 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 Except these three workers, all other workers accepted the lock out declared by the respondent and received their lawful entitlements from the respondents. In the said circumstances, it can be taken that W.W.1 purused this litigation even after receiving the closure compensation amount, only with some other ulterior motive. Since, majority of the workers have not supported the contentions of the W.W.1, it is concluded that the declaration of lock out by the respondent with effect from 02.05.2002 was in accordance with law and therefore, the erstwhile workers of the respondent are not entitled to any relief in this industrial dispute.
16. The above findings of the first respondent/Labour Court clearly indicate that the workers are equally responsible for the lock out declared by the second respondent. Hence, the second respondent/management cannot be held solely responsible for the lockout. The act of the second respondent/management in announcing lock out is fully justified as per law.
17. It is a well settled law that this Court cannot interfere with the Page No.15 of 18 https://www.mhc.tn.gov.in/judis W.P.No.120 of 2013 findings and the award passed by the Labour Court, unless, it is perverse, error apparent on the face of the record, illegal, arbitrary and unsustainable in law. In this case, the findings are based on the evidence and documents filed before the first respondent/Labour Court.
18. In view of the above findings, reasons of the Labour Court the award dated 11.10.2011, holding that the declaration of lockout by the respondent with effect from 02.05.2002, and therefore workers are not entitled to get any relief in this dispute is legally correct and sustainable in law.
19. Considering the facts and circumstances of the case, this Court do not find any infirmity in the award passed in I.D.No.250 of 2003 dated 11.10.2011 by the Labour Court, Coimbatore and the same is hereby confirmed. Accordingly, the writ petition stands dismissed. No costs.
19.07.2022
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W.P.No.120 of 2013
vm
Index : Yes/No
Speaking Order : Yes/No
J.SATHYA NARAYANA PRASAD,J.
vm
To:
1.The Presiding Officer,
Labour Court,
Coimbatore.
2.The Management,
M/s.Bullet Paper Boxes,
Moongil Mara Thottam,
Vellakinar Post,
Coimbatore.
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W.P.No.120 of 2013
W.P.No.120 of 2013
19.07.2022
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