Madras High Court
The Management Of Tamil Nadu Civil ... vs The Presiding Officer, First ... on 3 July, 1996
Equivalent citations: (1997)1MLJ204
ORDER S.M. Abdul Wahab, J.
1. These writ petitions are filed by the Management of Tamil Nadu Civil Supplies Corporation Limited, represented by its Senior Regional Manager, Thanjavur against its employees, who are second respondent in all the writ petitions. These writ petitions have been filed challenging the orders passed by the Presiding Officer, I Additional Labour Court, City Civil Court Building, Madras-104.
2. W.P. No. 4490 of 1987 is filed for quashing the order passed by the first respondent herein in I.D. No. 329 of 1985 dated, 28.1.1987. W.P. No. 4491 of 1987 is field against the order passed by the first respondent herein in I.D. No. 268 of 1985, dated 4.2.1987. W.P. No. 4492 of 1987 is filed against the order passed by the first respondent herein in I.D. No. 251 of 1985 dated, 4.2.1987. W.P. No. 4493 of 1987 is filed against the order passed by the first respondent herein in I.D. No. 240 of 1985 dated 28.1.1987.
3. In all these four cases, the I Additional Labour Court, after having found that the non-employment of the second respondents herein are justified directed their reinstatement with continuity of service from February, 1987 without back wages. Hence, the management has filed these four writ petitions before this Court.
4. The case of the management is identical in all the four writ petitions. The second respondent in each writ petition was employed by the Tamil Nadu Civil Supplies Corporation Limited, Thanjavur a State Government undertaking purely on a temporary basis for procurement of paddy offered for sale by the farmers during 'Kuruvai' and 'Samba' seasons. When the procurement season ended, the second respondent in each petition was discharged from service. However, he was reemployed as temporary staff for some of the subsequent procurement seasons and ousted from service in terms of the appointment order.
5. In the appointment order issued to the second respondent, it has been clearly stated that the appointment -vas purely on temporary basis and only for a short duration and that they would stand discharged from service at any time without prior notice. The second respondent in each petition has also given undertaking at the time of his joining that he understood that the post for which he was appointed was purely temporary and for a short period only. But unfortunately, after they were discharged from service they raised. Industrial Disputes under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The Government referred their cases to the Labour Court for adjudication.
6. In the claim statement, the second respondent alleged that they worked for more than 240 days a year and hence they were illegally removed and that their termination amounted to retrenchment and hence not valid. Inspite of the counter filed by the petitioner herein setting forth the defence as mentioned above, the Labour Court has passed the orders as mentioned supra.
7. The second respondents in the writ petitions have not filed their counter. They have also not filed independent writ petitions challenging the findings of the Labour Court to the effect that their non-employment was justified.
8. An affidavit has been filed by the second respondent in W.P. No. 4490 of 1987 on behalf of other respondents. In the said affidavit they have stated that all the second respondents were appointed in the Tamil Nadu Civil Supplies Corporation Limited, Thanjavur Region. All of them had worked for more than 240 days of service in a year. However, without following the procedure laid down under Section 25 of the Act, they were retrenched from service. Hence, they have raised Industrial Disputes mainly contending that the provision under Section 25 of the Act was violated. In the said affidavit in para. 4 it is stated that the workmen have also filed a writ petition challenging the award as it has held that the non-payment was justified. But such a writ petition was not brought to the notice of this Court for considering along with these writ petitions. Further, during the argument, learned Counsel for the second respondent Mr. R. Ganesan, stated that they have not filed writ petition challenging the findings, since the order itself were in their favour. In the said affidavit it is also stated that though initially interim stay was granted, the order was modified with a direction to restore the second respondent to the same post subject to the result of the writ petition. Pursuant to the said direction by order dated 10.9.1989, the management appointed the second respondent is service. After restoring them in service, there was again termination when the season was over. Hence, contempt applications were filed, but they were dismissed. Since once again, the second respondent in each petition were restored to service. During the argument it was also brought to the notice of this Court that under a separate settlement, the management agreed to regularise the services of all the temporary employees according to their seniority.
9. Mr. Meenakshisundaram, learned Counsel for the petitioner contended that once the Labour Court found that the non-employment was justified, the Labour Court cannot pass the impugned order granting benefits as if the employees succeeded. Therefore, the order of reinstatement with continuity of services was against the provisions of Section 11-A of the Act. In support of his contention, learned Counsel for the petitioner cited the following decisions Kanyakumari Automobiles (P) Limited v. Natarajan and Anr. 1983 Lab.I.C. 291 in Rambabu v. Maharashtra State Road Transport Corporation (1994) 2 L.L.N. 507 in Escorts Limited (Tractor Division), Faridabad v. Labour Court, Faridabad and two Ors. 69 F.J.R. 273 and in Biological Evans Limited, Azambad v. Labour Court Hyderabad and Ors. 55 F.J.R. 22.
10. In Kanyakumari Automobiles (P) Limited v. Natarajan and Anr. 1983 Lab.I.C 291, it is stated as follows:
Thus, it is clear from the facts of this case that the workman has been properly dismissed from service and the Labour Court has found categorically that the dismissal from services is justified. From the facts of the case, it is clear that the Labour Court, in the absence of a finding to the effect that the discharge or dismissal was not justified, has no power to award a compensation as it has done in this case, treating it as a case of retrenchment. As the order is clearly in violation of Section 11-A of the Act, the management has rightly questioned the power of the Labour Court in giving such an award in spite of the fact that the Labour Court has come to the conclusion that the dismissal was justified.
In Rambabu v. Maharashtra State Road Transport Corporation (1994) 2 L.L.N. 507, a learned single Judge of Bombay High Court (Nagpur Bench) has observed as follows:
It will thus be seen that the powers of the Court or Tribunal are wide enough to grant relief or reliefs to a workman the moment such Court or Tribunal is satisfied that the order of dismissal or discharge is not justified. Those reliefs can be reinstatement with back wages or it may even slice of a part of back wages if it was found that workman was not wholly blameless or circumstances exist that the strike was illegal and unjustified. Even lumpsum compensation could also be awarded in lieu of reinstatement or back-wages. The discretion to grant relief or reliefs wholly vests in the Court or Tribunal, but, as stated above, the discretion can be exercised only if the Court or Tribunal is satisfied that the order of dismissal is not justified. Once the Court or Tribunal draws the conclusion of having been satisfied from the material on record' (words used in the proviso) that the order of dismissal or discharge is justified, the competence to grant relief is not available to that Court or Tribunal and the only option left is to reject the application or reference as the case may be. At least Section 11-A of the Industrial Disputes Act leaves no room for the Court or Tribunal to grant back-wages from the date of the order of dismissal or discharge to the date of the order of award passed by it even though satisfaction is reached that the order of dismissal or discharge was justified on the basis of evidence adduced before it.
In Escorts Limited (Tractor Division), Faridabad v. Labour Court, Faridabad and two Ors. 69 F.J.R. 273, a learned single Judge of the Punjab and Haryana High Court has held that the Labour Court overstepped its jurisdiction in ordering reinstatement of the workman, when his dismissal was fully justified. In Biological Evans Limited, Azambad v. Labour Court, Hyderabad and Ors. 55 F.J.R. 22, a Division Bench of the Andhra Pradesh High Court has considered the scope of Section 11-A of the Act, and held that the Labour Court cannot invoke the powers under Section 11-A of the Act unless it was satisfied the order of discharge and dismissal was not justified.
11. In my view, this understanding of Section 11-A is eminently reasonable and in fact the only construction that is possibly to be placed on it.
12. As against the contentions of the learned Counsel for the petitioner, Mr. R. Ganesan, learned Counsel for the second respondent/workmen argued that the finding of the Labour Court that the non-employment of the workmen was justified is wrong and he would be in a position to establish the same from the evidence and other circumstances of the case.
13. Further learned Counsel for the second respondent contended that Section 11-A of the Act is not applicable to the present case, since these cases are/not of punishment. The main contention of the learned Counsel for the second respondent is that the respondents were discharged on 10.4.1984, the Industrial Disputes Act was amended and Section 2(oo)(bb) was introduced on 18th August, 1984. After the said amendment, the discharge tantamounts to retrenchment within the meaning of Section 2(oo)(bb) of the Act. Hence, the retrenchment must be in conformity with Section 25-F of the Act. According to the learned Counsel for the second respondent in Sub-section (b) of Section 25-F of the Act was not at all in case.
14. The contention of the learned Counsel is that even when an employee is discharged from service on account of the automatic expiry of the period of employment, it will amount to retrenchment, after the amendment mentioned above. In support of his contention, learned Counsel cited a Division Bench decision of this Court in Engineering Construction Corporation Limited, Madras v. Additional Labour Court, Madras and Ors. (1980) 2 L.L.J. 16, following the decision of the Supreme Court in Hindustan Steels Limited v. State of Orissa (1977) 1 L.L.J. 1. The Supreme Court has taken the view that "Termination-for any reason whatsoever, are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is has the employee's service been terminated?.... A termination takes place where a term expires either by the active steps of the master or the running out of the stipulated term.... Termination embraces not merely the act of termination by the employer, but the fact of termination, whatsoever, produced... an employer terminates employment not merely by passing an order as the service runs, he can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision." It may be true that in this case, the retrenchment is there, but with reference to the fulfilment of the conditions required under Section 25-F of the Act, there is some difficulty in this ease. In the order of the first respondent first condition required under the said section is found against the employee. However, there is no discussion with reference to the other requirements viz., compensation as per Sub-section (b) of Section 25-F of the Act. Whether the said point was argued or not, I am not in a position to find. That apart, when the present writ petitions have been filed by the management, it is but fair on the part of the respondent to have filed their counter. No counter-affidavit has been filed. If a counter affidavit had been filed and asserted that the said point was argued and yet the Labour Court has not adverted to, I can understand that. In the absence of the same, I am not in a position to accept the contention of the learned Counsel for the second respondent, that he must be permitted to raise the said point at this juncture. I am also to note that as stated earlier affidavit has been filed on behalf of the workman in support of W.M.P. Nos. 18854 to 18857 of 1990 seeking certain directions from this Court. Even in the said affidavit it is only stated that Section 25-F of the Act has been violated and the Court rejected the claims of the second respondent. With reference to the requirements of Section 25-F of the Act, the second respondent in each petition has not put in continuous service for more than 240 days. The first respondent has repeatedly found that none of the second respondents in these writ petitions worked for more than 240 days continuously. This is a question of fact.
15. Learned Counsel for the petitioner reiterated that the finding of the Labour Court is not correct. As stated above, in the absence of a counter-affidavit, or a separate writ petition, I am not in a position to go into these questions of fact in detail. Rules of Civil Procedure Code which govern the procedure for an appeal is not applicable to the proceedings in the writ petitions. Notwithstanding the fact that the ultimate order is in their favour, the second respondents could have filed writ petitions challenging the findings which are against them and according to them these finding are arbitrary and unsustainable. Section 11-A of the Industrial Disputes Acts as follows:
Powers of Labour Courts, Tribunal and National Tribunal to give appropriate relief in case of discharge or dismissal of workmen. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require; Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
A reading of the said section shows that the section is clearly applicable even when an employee is discharged from service not necessarily by way of punishment as contended by the learned Counsel for the second respondent. Therefore only when discharge is found to be not justified, the Labour Court or Tribunal is empowered or gets jurisdiction to direct reinstatement of the workman on such terms and conditions, if any, it may also give any other relief to the workman including the award of a lesser punishment. But the condition precedent is that the Labour Court or the Tribunal must be satisfied that the discharge or the dismissal was not justified. As already stated, in this case, the discharge was held to be justified. In such circumstances, there is no question of assuming any inherent jurisdiction by the first respondent in this case. In fact, there is no such inherent power given to the Labour Court or Tribunal in the Industrial Disputes Act apart from Section 11-A of the Act.
16. For the foregoing reasons, I am not satisfied with the order of the Labour Court, issuing direction for reinstatement etc., after having found that the discharge of the employees were justified. Therefore, the writ petitions deserve to be allowed, Accordingly, they are allowed. However, there will be no order as to costs.