Madras High Court
Management Of vs The Presiding Officer on 8 April, 2009
2025:MHC:316
WP.No.10501 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 22.01.2025
ORDERS DELIVERED ON : 04.02.2025
Coram:
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P. No.10501 of 2009
and M.P.Nos.1 & 2 of 2010
Management of
Murudeshwar Ceramics Limited
143, Ilayangudy Road
Devamapuram Village
Thirunallar – Commune
Karaikal – 609 607
Rep.by its Managing Director ... Petitioner
Vs.
1.The Presiding Officer
Industrial Tribunal
Puducherry.
2.Murudeshwar Ceramic Tiles Contract
Workers' Union, rep.by its
Secretary, Gnana Jothi Illam, 4th Lane
Kuthulampet Road
Senier Kulam Street
Karaikal – 609 602. ... Respondents
Page No.1/50
https://www.mhc.tn.gov.in/judis
WP.No.10501 of 2009
Prayer: Writ Petition is filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari, to call for the records of the 1st respondent in
I.D.No.15 of 2005 and quash its award dated 08.04.2009 and pass such further or
other orders.
For Petitioner : Mr.Anand Gopalan
for M/s Agam Legal
For Respondents : Mr.V.Govarthanan
for R2
For R1 - Tribunal
ORDER
A.The Writ Petition:
This Writ Petition is filed challenging the award of the Industrial Tribunal, P o n d i c h e r r y , dated 08.04.2009 made in I.D.No.15 of 2005. By the said award, the Labour Court directed the grant of permanent status to the Workmen and that their services be regularised and be granted, but wages on par with the regular workers of the Management, in the fitting category.
B.Case of the Workmen:
2. The case of the Workmen is that 165 Workmen are concerned in the Page No.2/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 present dispute. They are employed by the Management in the factory for about
2 ½ years. All of them are technically qualified being ITI, Diploma holders in various trades. They were employed in the activities of the Management, such as mixing up of raw materials, grinding of ball mill, spray drying, style pressing, glazing line, tiles car loading, kiln firing, polishing, squaring, sorting and packing, carton plant, machine maintenance, turning works, diesel generators maintenance, fitter and operation, kiln maintenance. They were employed in the same manner as that of the other Workmen employed by the Management permanently. All of them have completed 240 days without any break in service. The list of members was given as an annexure to the claim statement. Their qualification, nature of job and dates of initial engagement were also furnished. When the Workmen for regularisation and other demands formed the present Union and they raised some demands on 15.03.2005.
2.1. On 17.03.2005, the Labour Officer called for remarks from the Management. The Management terminated the services of the office bearers attached to the Union. A letter sent by the Labour Officer to the alleged contractors returned with an endorsement of 'no such addressee'. The so-called Page No.3/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 contractors also did not appear before the conciliation officer. On 05.04.2005, the Management filed a reply before the conciliation officer that they had not prevented anybody from attending work. The petitioner-union had filed a detailed rejoinder to the said statement and sought for settlement of the dispute. Even during the conciliation on 24.05.2005, the Management stated that they were ready to take back the workers and also assured that the demands would be looked into. However, pending the conciliation, the Management filed W.P.No.14939 of 2005 seeking police protection, where this Court disposed of the Writ Petition holding that the Workmen can hold only peaceful demonstrations. The Management also filed O.S.No.69 of 2005 before the Principal District Munsif Court, K a r a i k a l , seeking the relief of injunction against the 14 members of the petitioner – Union. Thereafter, when the conciliation officer submitted a failure report, the Government referred the dispute for adjudication vide order dated 10.11.2005 and the reference was on the following terms:-
“A) Whether the claim of Murudeshwar Ceramics Tiles Contract Workers' Union that the Labour Contract of M/s Shivashakthi Associates and M/s Ramashri Associates in the establishment of M/s Murudeshwar Ceramics Limited, Thirunallar, Karaikal is sham is correct ?. If so, to give appropriate directions ?Page No.4/50
https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 B) If yes, whether the charter of demands viz., fixation of wages on par with management of H& R Johnson Tiles, Karaikal and regularisation of all workers, payment of conveyance allowance etc., raised by the Union is justified ? If so, to give appropriate directions ?” 2.2. The members of the petitioner – Union are entitled to the various benefits claimed in the charter of demands that are mentioned in paragraph no.15 of the claim statement. It was therefore, prayed to answer the reference by holding the members of the petitioner as direct employees of the Management and that the contract labour system is a sham and nominal and consequently to regularise the services of the members of the petitioner – Union and grant all the other benefits, including monetary and other attendant benefits. It is further prayed that the other items mentioned in the charter of demands shall also be granted.
C.Case of the Management:
3. The claim was resisted by the Management by filing a detailed counter statement. The respondent – Management, is a Company registered under the Companies Act, 1956 and has manufacturing facilities in H u b l i and K ar a ik a l . Page No.5/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 The unit in K ar a ik a l is fully automated and is manufacturing tiles. Sophisticated imported machineries are installed, which requires technically trained manpower. The Management has engaged different kinds of technically qualified/trained manpower in its regular role. Wherever constant manpower is not required for various miscellaneous operations, it engaged contract workers through independent contractors under the Contract Labour (Regulation and Abolition) Act, 1970. The Management has registered itself as a principal employer under the said Act. The Management engaged the contract workers through two independent contractors, viz., M/s Ra m a s h r i Associates and Shiv a s h a kt h i Associates. The said contractors have also registered themselves as contractors by paying the prescribed license fee to the Labour Department, Government of Pu d u c h e r r y .
3.1. The claim made against the Management is misconceived. The contract is not a sham and nominal. The Claim Petition is filed by the unregistered trade union. As per Section 2 (qq) of the ID Act, only registered trade unions have the right to represent the Workmen. Therefore, the petition is not maintainable. The Management does not have any legal obligation to fulfil Page No.6/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 the demands raised by the Union, which is concerning the contract workers. The relationship between the Management and the Contractors is that of a principal and supplier, and beyond the contractual obligations, the Management cannot be compelled concerning the other reliefs. The quantum of wages paid is more than the amount fixed by the Government. Other than that, the absolute responsibility of appointment, supervision, maintenance of attendance, payment of wages, maintenance of wage registers and other records was only with the contractors. Therefore, it cannot be termed a sham and nominal.
3.2. The Union raised an industrial dispute before the Labour Officer, K ar a ik a l , in March 2005. When the conciliation was pending, they resorted to strike and prevented all the contract workers from entering the factory. Some of the active members also indulged in violence and unlawful activities. They damaged the group operating switch installed and owned by the Electricity Department and sabotaged production for more than six hours.
3.3. The Management was constrained to give a criminal complaint and sought legal remedy restraining them from committing such unlawful activities. Page No.7/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 An interim injunction was also granted by the Civil Court, K a r a i k a l . The Labour Commissioner convened a joint conciliation at K ar a ik a l on 24.04.2005, on the said date, even the Labour Commissioner and the Government Officials along with the Management representatives were held in wrongful confinement by the members of the Union for more than three hours. Under the said circumstances, the Management was constrained to get a direction from this Court. As far as the other claims of fixation of wages are concerned, the present Workmen cannot equate or claim on par with the other employees. Therefore, the entire claim made by the petitioner is unsustainable. With the said pleadings when the Industrial Tribunal took up the matter for enquiry.
D.Proceedings before the Industrial Tribunal:
4. On behalf of the Workman, V.Jothilingam, S.Rengaraj, K.Udayakumar and Ravindiran and Vengadesan were examined as P.W.1 to P.W.5 and Exs A.1 to A.44 were marked. On behalf of the Management, Deepak S.Varote and Arun Gaonkar were examined as R.W.1 and R.W.2 and Exs.B1 to B.13 were marked.
4.1. The Industrial Tribunal thereafter considered the case of the parties. Page No.8/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 The preliminary objection raised by the Management concerning the maintainability of the Claim Petition was overruled on the ground that effectively the status of the Workmen has to be determined and the plea of the Management is only hyper-technical. Concerning the plea that the trade union is unregistered, the Tribunal concluded that there is no total bar for an unregistered union to represent the case and it further held that it is not fair on the part of the Management to raise the above objection especially when both sides have participated and ultimately the Workmen and the Management would be bound by the award that is passed. The Industrial Tribunal held that the contractors were not necessary parties to the dispute.
4.2. The Industrial Tribunal first considered the documents in Ex.A.32 to A.44 which were the communications between the Management and the Employees State Insurance Corporation and the Labour Department, Government of Pu d u c h e r r y etc.,. It is considered the ESI Identity card. The Labour Tribunal found that the name of the employer was mentioned as that of the Management and the employer's Code Number was also given as 55.42010. Thereafter, it considered the evidence of R.W.1 – the representative of the Management and Page No.9/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 R.W.2 -that of the contractor and considered the discrepancy between the two. Further, the Industrial Tribunal considered the statutory registers and forms to be maintained under the Contract Labour (Regulation and Abolition) Act, 1970. It considered the Ex. A.36 where it has been mentioned that no statutory returns and statements relating to Contract Labour Act have been received from the Company, from January 2003 to December 2004. Thereafter, it considered the evidence that was let in on behalf of the Management including Ex.B.3 – the agreement between one of the contractors and the Management. The wage register and the muster roll were exhibited as Exs.B.4 to B.6. The Industrial Tribunal then considered the 17 more documents that were not marked but sought to be relied upon by the Management. It equated that at best from these documents, it can only be seen that the Management has registered itself as a principal employer and the other two concerns have obtained licences and are registered firms. It could be seen that when the Workmen claimed that they were working in the Management from the year 2003, the licence produced by the Management was only from the year 2004. Further, the contract was concerning supply of workers for loading and unloading.
Page No.10/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 4.3. The Management witness – R.W.1 had stated that they supplied labourers for housekeeping. The firm registration certificate of one of the contractors was only on 03.08.2004, whereas Ex.B.3 – the agreement was on 19.08.2003 itself. Some of the original documents were also not produced. In Form-16A, the name and address of the Management were only shown. Therefore, when the Management also has the Concern in H u b l i , it cannot be related to K a r a i k a l . In the absence of other statutory registers and documents, the Industrial Tribunal concluded that the Workmen are direct employees of the Management and that the contract between the alleged contractor is sham and nominal. In view thereof, it considered the demands that are made and the relief that has to be granted and accordingly, directed that the Workmen concerned in the case are the direct employees of the Management and the status of permanent employee has to be given to them and their services has to be regularised and they are entitled wages on par with the regular workers in the Company and in respect of other demands it held that they will be entitled for the demands as per the rules and the Labour Laws in force. Aggrieved thereby, the Management is before this Court.
Page No.11/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 E.Submissions of the Management:
5. M r . A n a n d G o p a l a n , the learned counsel appearing on behalf of the Management would submit that the various findings of the Industrial Tribunal are perverse. Firstly, when the reference was made regarding a particular question, the Industrial Tribunal re-casted the reference itself differently and answered the reference. The same is directly in contravention of the Judgment of the Hon'ble Supreme Court of India in Mahanadi Coalfields Ltd. Vs. Brajrajnagar Coal Mines Workers' Union1. His next contention is that the Claim Petition was filed by an unregistered trade union. After the amendment to the Industrial Disputes Act, by insertion of Section 2 (qq) of the ID Act, an unregistered trade union cannot maintain the dispute. He would submit that the matter is no longer res integ r a and has been decided by the Hon'ble Supreme Court of India in B.Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Association and Others2, more specifically relying upon paragraphs Nos.37 to 39 of the said Judgment.
1 (2024) SCC OnLine SC 270 2 (2006) 11 SCC 731 Page No.12/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 5.1. The next contention of the learned counsel is that admittedly, in this case, the Workmen are not in service. It is the case of the Management that they voluntarily stopped reporting for work by resorting to strike when the Management has filed the Civil Suit. The Workmen never reported for work thereafter.
5.2. Even the case of the Workmen is that they have been terminated from service. No relief is prayed for about the termination. Once the employer-
employee relationship is not in existence, there is no question of the Industrial Tribunal granting the relief of conferment of permanent status to these Workmen. In any event, the permanent status conferred would at best be relatable to the period of work, in which they were working and to date, the non-employment was not questioned by the Workmen before any forum.
5.3. In support of his contention, the learned counsel would rely upon the Judgment of the Hon'ble Supreme Court of India in Oshiar Prasad and Others Vs. Employers in Relation to Management of Sudamdih Coal Washery Page No.13/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 of M/s Bharat Coking Coal Limited, Dhanbad, Jharkand3, more specifically relying upon paragraph No.25 of the Judgment. Further reliance was also made to the Judgment of the Hon'ble Supreme Court in T.N.Civil Supplies Corporation Workers Union Vs. T.N.Civil Supplies Corporation Ltd., and Others4 (2001) 4 SCC 469, more specifically relying upon the paragraph No.10.
5.4. The learned counsel would then submit that even on merits, the Industrial Tribunal erred in finding that the contract was sham and nominal. The factors that are to be taken into consideration while determining whether the Workmen are contract labourers or whether they are the direct employees of the Management, by adopting a sham and nominal contract, in no longer res integ r a . According to him, the Hon'ble Supreme Court of India has elucidated the factors to be considered in the Judgments of International Airport Authority of India Vs. International Air Cargo Workers' Union and Another5 and in Balwant Rai Saluja and Another Vs. Air India Limited and Others6 more specifically in paragraph No.65, the Hon'ble Supreme Court has enumerated the tests to be 3 (2015) 4 SCC 71 4 (2001) 4 SCC 469 5 (2009) 13 SCC 374 6 (2014) 9 SCC 407 Page No.14/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 followed.
5.5. In these matters considering the same, it can be seen that the Workmen have not produced any proof that they were appointed only by the Management. On the contrary, the Management has let in evidence that they are appointed only through the contractors.
5.6. Admittedly, the remuneration was paid only through the contractors and the voucher slips were produced. The supervision of the employees was only by the contractors and not by the Management. In this case, they were only employed for a short period of 2 ½ years and therefore, they cannot even plead that there was continuity in service. Therefore, none of the factors to conclude that the contract is sham and nominal was established by the Workmen.
5.7. On the contrary, the muster roll, the wage register, the agreement between the contractors and the Management and the licences under the Contract Labour (Regulation and Abolition) Act, 1970 were marked before the Industrial Page No.15/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 Tribunal. The payment of Employees State Insurance Corporation's contribution alone cannot result in an employer-employee relationship. The ESI Act has specific provisions fastening liability on the principal employer also and therefore, the principal employer was cautious enough to contribute only in that capacity. The Code Number was not the same and the Management paid contributions to the regular employees with a different Code Number and for the contract labourers with a different Code Number.
5.8. Concerning the finding of the Industrial Tribunal regarding the non- maintenance of certain documents, the learned counsel would submit that it would, at best, result in the prosecution of the management, as the principal employer, and the contractor for failing to maintain such documents. However, it would not, on the contrary, create an employer-employee relationship between the contract labourers and the principal employer. Therefore, the findings of the Industrial Tribunal are liable to be interfered with on the merits of the case.
5.9 He would submit that even leaving the Industrial Tribunal award as such, there was nothing further to be implemented as the Workmen never Page No.16/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 reported for work from 2005 and many of them are in permanent and gainful employment otherwise and the petitioner–Union was not even furnishing the details of who are the persons still interested in conducting the case. Absolutely no relief of restoring the employer-employee relationship can be granted or maintained, now in the year 2025, after 25 years. The very functioning of the petitioner – Union has become defunct. Therefore, the Industrial Tribunal ought to have considered the fact that there was cessation of employment and accordingly decided the same when it came to the issue of grant of relief. Terminations were admittedly made before the initiation of the conciliation proceedings. It is the case of the trade union itself that the employees resorted to a strike only after the termination of the office bearers and from that point onwards, the employees have been considered non-employed.
5.10. The question of pendency of the conciliation proceedings does not arise in this case for two reasons. Firstly, on a careful consideration of the facts, the alleged termination precedes the initiation of conciliation proceedings. The conciliation proceedings can be said to be pending only after the Management received notice of the conciliation proceedings. Before that the obligation to Page No.17/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 approach the conciliation officer for prior permission or approval cannot be expected from the Management. The second reason is that in this case, it is the contention of the Management that they never terminated the services. Even from the pleadings, it can be seen that suspension orders were only sent subsequently to the office bearers and even as per the case of the parties, the Management was all along ready and willing to permit the workers. Therefore, the very question as to whether the Workmen voluntarily abstained from work or they were prevented by the Management has to be decided. If only the Management had orally terminated the services, then only the question as to whether the conciliation was pending or not has to be considered. Even then, the conciliation never started as on that date and therefore, unless and otherwise a separate dispute was raised concerning termination, either by reference under Section 2 (k) of the ID Act or by way of Claim Petitions by the individual Workmen under Section 2 (A) of the ID Act, no relief could have been granted by the Industrial Tribunal. F.Submissions of the Workmen:
6. Per contr a, M r . G o v a r t h a n , the learned counsel appearing on behalf of the Workmen would submit that the Industrial Tribunal had only answered the Page No.18/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 reference and nothing else. It had only addressed the question alternatively and had not exceeded the answer to the reference. Therefore, the first preliminary objection is without any basis. As far as the second preliminary objection relating to the registration of the Union is concerned, the trade union is defined under Section 2 (h) of the Trade Unions Act, 1926. From the reading of the definition, it can be clear that a trade union is not born by way of registration, but would be in existence even otherwise if the Workmen had formed the same. Therefore, even an unregistered trade union can maintain a dispute and the question has been considered by this Court in Indroyal Crafts Private Limited Vs. The State of Tamil Nadu7 and it has been held that the dispute is otherwise also maintainable.
6.1. On the merits of the matter, M r . G o v a r t h a n a n , the learned counsel for the Workmen would submit that the contractors came into existence by way of licence and agreement only subsequently in the years 2004 and 2005. The Workmen were all employed in the year 2003. Therefore, by the same, it stands proved that their employment was only by the Management and not the 7 MANU/TN/4633/2011 Page No.19/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 contractors. Secondly, even as per Ex.B.3 - Contract was only concerning the supply of Workmen for loading and unloading and housekeeping, the nature of the job which was performed by the Workmen in the present dispute was not disputed. All these Workmen are technically qualified and were directly involved in the manufacturing process. Therefore, the alleged contract and the licence etc., which were created as a make-believe affair have nothing to do with the present Workmen. The Workmen were all continuously employed from the inception even before the contractors came into the picture.
6.2. It can further be seen that in the subscription to ESI etc., the Workmen were mentioned only as the direct employees of the Management. Therefore, the Management is trying to take the plea that the contract labourers only as a subterfuge to deny the wages and the lawful benefits. When it is maintaining a particular wage structure and benefits for one set of employees performing the same work, it wants to deprive the majority of the other employees by artificially calling them contract labourers. Therefore, the Industrial Tribunal was right in holding that the alleged contract employment was sham and nominal and that the Workmen were the direct employees of the Management. Once the Workmen are Page No.20/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 the employees under the Management, they have put in more than 240 days every year, they are liable to be treated as permanent Workmen as the nature of the job is perennial and they were in the mainstream production activities of the Management. Once they are treated to be permanent, the Management is liable to give them all the attendant benefits of salary and all the benefits.
6.3. In this case, it can be seen that the Management had only refused employment. The same was done after the commencement of the conciliation proceedings. If the workmen were directly involved in the dispute, which was originally raised, and the issue of non-employment was directly related to that. Therefore, without the prior permission of the conciliation officer, the non- employment could not have been done. The same is directly violative of Section 33 (1) of the ID Act. If the non-employment is violative of Section 33 (1) of the ID Act, then, given the pronouncement of the Hon'ble Supreme Court of India in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Others8 more specifically paragraph Nos.13 to 15 the alleged non-employment would be void ab initio and it is not even necessary for the Workmen to approach any forum to set aside the same and they will be deemed to be continuing in the 8 (2002) 2 SCC 244 Page No.21/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 employment and therefore, once they are deemed to be continuing in employment, the plea on behalf of the Management that they are no more in employment cannot be countenanced. No further relief need be expressly given by the Industrial Tribunal and the Workmen who are deemed to be in service till date can file applications to compute the benefits to be granted to them. Even today, the Management has to reinstate all the Workmen and extract work from them. He contends that 145/167 Workmen are still interested in claiming employment. Therefore, he would pray that the award does not require any interference by this Court.
G.The Questions:
7. Upon consideration of the rival submissions made and perusal of the material records, the following questions arise for determination in the instant case,
(i) Whether the Tribunal exceeded its jurisdiction by travelling beyond the reference in the instant case.
(ii) Whether the Workmen have to be non-suited on the ground that the Claim Petition is filed by an unregistered trade union. Page No.22/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009
(iii) Whether the Workmen are contract labourers or the direct Workmen under the Management?
(iv) Whether relief should be denied to the Workmen on the ground that they were not in employment as of the date of the filing of the Claim Petition or grant of relief by the Industrial Tribunal?
(v) To what relief, the parties are entitled?
H. Question No.(i):
8. In this case, the Workmen claim that they were directly employed by the Management in the main stream production and other activities. Only to deny them the benefits, it was sought to be portrayed as if they were employed through contractors. In that context when the demand was made, two questions were referred by the Government which were extracted supra. Therefore, when the Industrial Tribunal considered the issue, it addressed the same in the following manner:-
“10(b). .................
...................That apart though tin the reference this Tribunal is called upon to adjudicate as to whether labour contractor of the said associates if sham and nominal, the real reference is only to adjudicate the status of the Workmen. ...................” Page No.23/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 8.1. Thus the Industrial Tribunal only mentioned that ultimately, if the question of reference is decided that is, if the claim of the contract is sham and nominal, the status of the Workmen is only being decided, whether they are direct employees or has been supplied by the contractors for work. Therefore, I am not in agreement with the argument of the learned counsel for the Management that the Industrial Tribunal in any manner exceeded the subject matter of reference. The question that was required by the Industrial Tribunal is to decide ‘whether the contract as pleaded by the Management was a sham and nominal. If it is a sham and nominal, then what relief has to be granted? and that is what has been done by the Industrial Tribunal and I accordingly answer the question.
I. Question No.(ii):
9. To answer this question, it is essential to extract Section 2(qq) and Section 36(1) of the ID Act, which read as follows:-
“Section 2 (qq) [ "trade union" means a trade union registered under the Trade Unions Act, 1926 (16 of 1926);] [ Inserted by Act 46 of 1982, Section 2 (w.e.f. 21.8.1984).]” ......
......
Section 36. [ Representation of parties. [Substituted by Act Page No.24/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 48 of 1950, Section 34 and Sch., for Section 36.] (1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by- ]
(a) [Substituted by Act 48 of 1950, Section 34 and Sch., for Section
36. ][any member of the executive or other office bearer] [Substituted by Act 45 of 1971, Section 6, for " an officer" (w.e.f.
15.12.1971). ][of a registered trade union of which he is a member; [Substituted by Act 48 of 1950, Section 34 and Sch., for Section
36. ]
(b) [any member of the executive or other office bearer] [Substituted by Act 45 of 1971, Section 6, for " an officer" (w.e.f. 15.12.1971). ][of a federation of trade unions to which the trade union referred to in clause (a) is affiliated; [Substituted by Act 48 of 1950, Section 34 and Sch., for Section 36. ]
(c) where the worker is not a member of any trade union, by ] [any member of the executive or other office bearer] [Substituted by Act 45 of 1971, Section 6, for " an officer" (w.e.f. 15.12.1971).][of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorised in such manner as may be prescribed. [Substituted by Act 48 of 1950, Section 34 and Sch., for Section 36.]” 9.1. Section 2 (k) of the ID Act reads as follows:-
“Section 2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;” 9.2. Section 2 (h) of the Trade Unions Act, 1926 reads as follows:-
“Section 2(h) “Trade Union” means any combination, whether temporary or permanent, formed primarily for the purpose Page No.25/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions:” 9.3. The further provisions concerning registration are contained in Sections 4 to 8 of the Trade Unions Act, 1926. Section 2 (e) of the Trade Unions Act defines a registered trade union. Because there are two definitions in Section 2 (e) and Section 2 (h) and in the definition of trade union per se it is not mentioned that the trade union itself is born only after the registration but seems to be otherwise. It can be seen that the trade union as such is an entity even before its registration under the Act. For example, a society under the Societies Registration Act, of 1860, though can be formed by 7 or more persons, does not come into existence immediately on formation, but there is also a requirement of filing a memorandum of association with the Registrar.
9.4. At the same time, the provisions of the Trade Unions Act, 1926, if read as a whole define trade union, define registered trade union, prescribe the process of registration, prescribe the right of the Registrars to inspect the Page No.26/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 documents etc.,. In this background, the question has been decided by the Hon'ble Supreme Court of India in B.Srinivasa Reddy's case (cited supra).
Though, decided in the context of maintainability of a Writ Petition, it has been decided as follows in paragraph No.38, which reads as follows:-
“38. In the writ petition filed by Respondents 1 and 2 their locus standi to challenge the appointment of the appellant was asserted in the following words:
“The petitioner Association is a trade union registered under the Trade Unions Act, 1926. The petitioner is the only registered trade union existing in the 2nd respondent Board. The Board has held several negotiations with the petitioner Union with regard to the service conditions of the employees of the 2nd respondent Board since its formation in the year 1986. The Board has entered into several settlements with the petitioner Union with regard to their service conditions. The petitioner which is a recognised trade union is entitled to agitate the matter with regard to the appointment of the 3rd respondent to the Board. The petitioner is concerned about the functioning of the 2nd respondent Board, and as such is entitled to question the appointment of the 3rd respondent as Managing Director on contract basis. Hence, the petitioner has locus standi to file this writ petition.” (emphasis supplied) These averments were established to be false. The registration of the first respondent under the Trade Unions Act had been cancelled as early as on 2-11-1992. It is not a registered and recognised union. In fact, it was pointed out that the one recognised association is the Karnataka Urban Water Supply and Drainage Board Officers' and Employees' Association and the first respondent does not have even a handful of members. The fact of Page No.27/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 cancellation of registration of the first respondent came to the knowledge of the appellant long after the disposal of the earlier Writ Petition No. 44001 of 1995 wherein the Court had given a finding that the first respondent has locus standi to challenge the appointment of the appellant to the post of Managing Director of the Board solely on the ground that it is a registered trade union. In our opinion, the High Court gravely erred in refusing to examine the question of locus standi on the ground that it is decided in the earlier writ petition which operates as res judicata and that the petitioners even otherwise have locus standi. Chapter III of the Trade Unions Act, 1926 sets out rights and liabilities of the registered trade unions. Under the said enactment, an unregistered trade union or a trade union whose registration has been cancelled has no manner of right whatsoever, even the rights available under the ID Act have been limited only to those trade unions which are registered under the Trade Unions Act, 1926 by insertion of clause 2(qq) in the ID Act w.e.f. 21-8-1984 defining a trade union to mean a trade union registered under the Trade Unions Act, 1926.” 9.5. Thus, it can be seen that an unregistered trade union cannot claim any right to represent the Workmen. However, at the same time, it cannot be held that at all times, the claim has to be non-suited. Given Section 2 (k) of the ID Act, which was extracted supra, the Workmen don't need to be represented by a trade union alone. They can be represented by other Workmen also. What is required is only a plurality of workmen, that is, more than one Workman should be there in the dispute. As a matter of fact, in respect of Ta mil Na d u , the rules framed under the Act specifically empower five or more Workmen to join together and raise a dispute. As far as Pu d u c h e r r y is concerned, even though there is no Page No.28/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 specific rule, it can still be seen that more than one Workman can raise a dispute.
If more than one Workmen can raise a dispute by treating the office bearer of the Workmen who has signed and verified the pleading and considering him along with the other Workmen mentioned in the annexure to the list who are involved, it is legally possible to hold that even in a particular scenario if the dispute is raised through an unregistered union, still the relief can be granted.
9.6. This Court considered the said issue in Indroyal Crafts Private Limited's case (cited supra) and held so. Thus, we have to see whether the instant case requires such an extraordinary approach or not. Firstly, it can be seen that when the trade union was sought to be formed, and when it first addressed a communication, immediately, it is alleged that the management plunged into action by terminating the office bearers, stopping all the Workmen, filing a Civil Suit, approaching this Court for police protection etc., on account of which it is seen that the Workmen were non-employed and the very formation of the Union was interfered at the inception. Therefore, when the very genesis of the dispute is alleged concerning the formation of the union, it may give rise to one such occasion, where the Court can hold that it is an extraordinary situation that the Page No.29/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 dispute even though raised in the name of the trade union can be deemed to be collectively raised by the Workmen together and still the relief can be considered on merits. The Industrial Tribunal also took the same approach that when the parties have participated in conciliation and the proceedings, it would not be fair to non-suit the Workmen on such technical grounds. Accordingly, the prayer made on behalf of the Management to dismiss the claim in toto cannot be accepted and the Workmen cannot be non-suited on technical grounds.
9.7. The dispute is deemed to be raised collectively by the 165 Workmen along with the office bearer of the trade union, in his individual capacity. Thus, I hold that this case presents an extraordinary situation where the relief can still be considered on merits even though the trade union was unregistered and accordingly, I answer the question.
J. Question No.(iii):
10. Before adverting to the facts, and as rightly contended by the learned counsel for the management, the legal position regarding the questions that this Court must consider in determining whether the contract employment is sham Page No.30/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 and nominal, where enunciated by the Hon'ble Supreme Court of India in Balwant Rai Saluja's case (cited supra) and paragraph No.65 is extracted hereunder:-
“65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there exists complete control and supervision.
As regards extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635 : (2011) 1 SCC (L&S) 16] , International Airport Authority of India case [International Airport Authority of India v. International Air Cargo Workers' Union, (2009) 13 SCC 374 :
(2010) 1 SCC (L&S) 257] and Nalco case [National Aluminium Co. Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353]” 10.1. Though the said factors are not the only factors and other considerations can also be made, the said factors are to be considered by the Industrial Tribunal or by this Court while determining the issue. In this case, Page No.31/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 while adverting to the first point as to who appointed the workers, it can be seen that on a consideration of the evidence, in this case, the Workmen were employed in the year 2003. The registration of the Management as the principal employer and the licence obtained in the name of the contractors all came into existence only in the year 2004. The Industrial Tribunal had further appreciated the documents and saw that even the registration of the contractor's firm happened subsequently in the year 2004 even though Ex.B.3 – an agreement that was produced was of the year 2003. Therefore, factually it can be seen that the Industrial Tribunal concludes that as of the date of the appointment, the contractors were not in the picture. Thus, the only logical conclusion which can be reached is that these Workmen are appointed by the Management directly.
10.2. The second factor that is taken into consideration is that even as per the licence that is granted in the instant case is the supply of Workmen only for loading and unloading and housekeeping. The same does not form part of the core activity of manufacturing and the same will not be perennial. Only considering the same, the authorities under the Contract Labour (Regulation and Abolition) Act, 1970 have granted the licence. In view thereof, when the Page No.32/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 activities of the workmen are specifically pleaded in the claim statement - activities that are part of the very manufacturing process - and when the same are not expressly denied by the Management, and all the workmen are qualified ITI and diploma holders, it cannot be said that the contract is in any way related to them. This fact is further supported by the documents that are produced on behalf of the Workmen relating to the subscription to the ESI. Even though it is the duty of the principal employer under both the enactments, viz., ESI Act as well as Provident Fund Act, it can be seen that the Industrial Tribunal after appreciating the relevant exhibits has concluded that it was not mentioned so. It has also considered the code number of the Management that is given. There was no separate code number which was existing on behalf of the alleged contractors. Therefore, even though the mere ESI contribution alone will not prove the employer-employee relationship, in this case, when the contract license is for a different field, such as loading, unloading, and housekeeping, and when the workmen, who were all employed in the manufacturing activity, are covered by the ESI directly by the management, it clinches the issue. The plea of the management that these workmen are merely contract labourers is, therefore, nothing but sham and nominal. It can be seen that the Workmen were existent Page No.33/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 even before the present contractors came and after the contractors came also. Therefore, there is a continuity of service till the date of raising the dispute.
10.3. The Workmen have also pleaded that they were working under the control and supervision of the Management engaged in the production activity and there was no control of the contractors about their performance in the work. Therefore, considering the various parameters that are enunciated by the Hon'ble Supreme Court of India, no exception whatsoever can be taken for the various findings of the Industrial Tribunal that are made after appreciation of the various documentary evidence that is on record. Even the unmarked documents have been considered by the Industrial Tribunal to only establish the registration of the Management of the principal employer and a licence has been granted to both the contractors. Even in that position, the only conclusion that can be drawn in the instant case is that the plea of the Management is a sham and nominal, only a subterfuge to deny the benefits that are available to their counterparts who are considered permanent Workmen though, the Workmen were also performing similar works in the core manufacturing activities and accordingly, I answer this question.
Page No.34/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 K. Question No.(iv):
11. In this case, admittedly, the Industrial Tribunal has not expressly considered the non-employment. It proceeded to grant relief to the Workmen, conferring permanent status on them and that they must be paid wages on par with the other regular workers. In this regard, it is true that if there is non- employment, by the pronouncement of the Hon'ble Supreme Court of India in Oshiar Prasad's case (cited supra), the said factor has to be considered. It is essential to extract paragraph No.25 of the Judgment, which reads as follows:-
“25. It is a settled principle of law that absorption and regularisation in service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and the employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.” 11.1. At the same time, the Hon'ble Supreme Court of India in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.'s case (cited supra) in paragraph No.13 held as follows:-
“13. The proviso to Section 33(2)(b), as can be seen from Page No.35/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.” Page No.36/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 11.2. Since it is claimed that the non-employment violates Section 33, it has to be seen as to whether the conciliation was pending as of the date of the action. In this regard, it is first essential to advert to Section 20 of the ID Act, “Section 20.Commencement and conclusion of proceedings.
(1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out under section 22 is received by the conciliation officer or on the date of the order referring the dispute to a Board, as the case may be.
(2) A conciliation proceeding shall be deemed to have concluded--
(a) where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute;
(b) where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be; or
(c) when a reference is made to a Court, 1[Labour Court, Tribunal or National Tribunal] under section 10 during the pendency of conciliation proceedings.
(3) Proceedings 2[before an arbitrator under section 10A or before a Labour Court, Tribunal or National Tribunal] shall be deemed to have commenced on the date or the 3[reference of the dispute for arbitration or adjudication, as the case may be] and such proceedings shall be deemed to have concluded 4[on the date on which the award becomes enforceable under section 17A.]” 11.3. Further, Section 21 of the ID Act reads as follows:-
“Section 21. Certain matters to be kept confidential. There shall not be included in any report or award under this Act any information obtained by a conciliation officer, Board, Court, Page No.37/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 1[Labour Court, Tribunal, Tribunal, National Tribunal or an arbitrator] in the course of any investigation or inquiry as to a trade union or as to any individual business (whether carried on by a person, firm or company) which is not available otherwise than through the evidence given before such officer, Board, Court, 1[Labour Court, Tribunal, National Tribunal or an arbitrator], if the trade union, person, firm or company, in question has made a request in writing to the conciliation officer, Board, Court, 1[Labour Court, Tribunal, National Tribunal or an arbitrator], as the case may be, that such information shall be treated as confidential; nor shall such conciliation officer or any individual member of the Board, 2[or Court or the presiding officer of the Labour Court, Tribunal or National Tribunal or the arbitrator] or any person present at or concerned in the proceedings disclose any such information without the consent in writing of the secretary of the trade union or the person, firm or company in question, as the case may be:
Provided that nothing contained in this section shall apply to a disclosure of any such information for the purposes of a prosecution under section 193 of the Indian Penal Code (45 of 1860).” 11.4. Although the date of commencement and conclusion of the proceedings under the Act is specifically addressed by the Act itself, and the fact that it creates a legal fiction, which must be construed accordingly, is already laid down by the Division Bench of this Court in the judgment rendered in Arasu Viraivu Pokkuvarathu Oozhiyar Sangam v. State Express Transport Corporation, Ltd.9 and it is essential to extract relevant paragraph from the said Judgment:-
“11. ..................
9 2006 SCC OnLine Mad 335 Page No.38/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 ..............................The Supreme Court further observed as follows, in Para. 30, at pages 550 to 552 “We fail to appreciate how this decision can be pressed in service by learned counsel for the appellant while construing S. 20(2) of the I.D. Act. That section, as noted earlier, has created an irrebuttable presumption by way of legal fiction and that presumption covers the very question as to when conciliation proceedings once commenced can be said to have concluded. In other words, when they can be said to have not remained in pending.
As seen earlier, the legal fiction which is created for that purpose by S. 20(2) has to be given its full effect. As it is well-settled while giving effect to the legal fiction for the purpose for which it is created by legislature it has to be given full play for fructifying the said legislative intention. We cannot allow our imagination to boggle on that score. It is, of course, true as laid down by the Constitution Bench of this Court in the case of Bengal Immunity Company, Ltd. v. State of Bihar, [A.I.R. 1955 S.C. 661]. Das, Acting C.J., speaking for the Court in Para. 31 of the report, made the following pertinent observations:
‘Legal fictions are created only for some definite purpose.
x x x a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field.’ However, as noted earlier, legal fiction created by S. 20(2) is for the purpose of laying down as to till what stage conciliation proceedings can be said to be pending and when they can be said to have concluded. On that basis, if it is held that conciliation proceedings once validly started under S. 12(1) of the I.D. Act can by way of an irrevocable presumption be treated to have continued till the failure report reached the appropriate Government, during the inter regnum of necessity such conciliation proceedings have to be treated as pending before the Conciliation Officer. In fact, on these aspects of the matter, we have a decision of this Court in Andheri Marol Kurla Bus Service v. State of Bombay, [A.I.R. 1959 S.C. 841]. In that case, a Bench of two-Judges of this Court had to consider the question as to when conciliation proceedings can be said to have Page No.39/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 concluded under the relevant provisions of this very Act. In that case during the admitted pendency of conciliation proceedings the management had dismissed the workman bus conductor. However, the submission on the part of the management was that such dismissal was after the expiry of statutory period of 14 days within which the conciliation proceedings once started had to be concluded and as 14 days were already over the dismissal did not attract S. 33(1) and consequently, the management could not be penalised under S. 31(1) of the I.D. Act which lays down as under:
‘Any employer who contravenes the provisions of S. 33 shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.'” 11.5. Thus, it can be seen that as far as the commencement of the conciliation, commences from the date on which the strike notice was received by the conciliation officer. In this case, the original proceedings were started on 16.03.2005 by the trade union, after the same, it issued a telegram on 28.03.2005 and also issued two letters on the same day. In this connection, the proceedings of the Labour Officer, Karaikal, who is the conciliation officer read as follows:-
“NOTICE OF ENQUIRY/CONCILIATION Sub:Industrial Disputes, 1947 – Strike Notice issued by the Secretary, Murudeshwar Ceramics Tiles Contract Workers Union – Enquiry – Reg.
Ref:1.Telegram dated 28.03.2005 (Copy enclosed)
2.Letter No.757/2005 – LO(C)/A1, dated 28.03.2005
3.Letter No.758/2005 – LO(C)/A1, dated 28.03.2005.
*** Attention is invited to the Telegram cited under reference on the subject mentioned above. The Conciliation fixed in this regard on 05.04.2005 at 11.00 & 11.30 am. vide reference 2 and 3 Page No.40/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 cited is preponed to 29.03.2005 at 10.30 am. You are hereby directed to attend the enquiry / conciliation on 29.03.2005 at 10.30 am. of the above dispute along with all relevant records without fail.” 11.6. Therefore, from the above, it is clear that firstly, the original notice was received even before 28.03.2005 and already the conciliation officer fixed the conciliation on 05.04.2005. Given the receipt of the telegram and the subsequent letters on 28.03.2005, the conciliation was advanced from 05.04.2005 to 29.03.2005. Thus, it can be seen that the conciliation commenced before 28.03.2005 itself and in any event certainly on 28.03.2005. It can be seen that the alleged non-employment is only on 28.03.2005. Thus, after the commencement of the conciliation proceedings. Thus, in this case, Section 33 is attracted. The second submission which is made on behalf of the learned counsel for the Management is that the Workmen had not expressly pleaded about the termination of service and it is the case of the Management that they did not terminate the Workmen, but only an orders of suspension was issued subsequently. In this regard, paragraph No.3 of the claim statement reads as follows:-
“3.The petitioner submits that though the 1st respondent Page No.41/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 engaged them for its regular production activities they did not pay the workers proper wages and did not extend proper service conditions. As a result, the petitioner union raised a demand on 15.03.05 before the labour officer seeking regularisation and other service benefits. On 17.03.05, the labour officer called for remarks of the 1st respondent management. Once the conciliation process was invoked, the 1st respondent terminated the services of the office bearers attached to the Union. They filed a counter before the labour officer contending that the workers are contract labour and they are not entitled to regularisation. The Labour Officer sent a letter to the alleged contractors but the same was returned with the endorsement 'No such addressee'. The so called contractors did not appear before conciliation officer. On 05.04.05, the Management filed a reply stating that they had not prevented anybody from doing the work but it was the workers who were remaining outside on their own and it amounted to abatement of duty. The petitioner Union filed a detailed rejoinder to the labour officer and sought for settlement of the dispute. On 24.05.05, during conciliation it was stated by the 1st respondent that were ready to take back the workers and also assured that the demands will be looked into.” 11.7. It can be seen from the reply counter submitted by the Management to the Labour Officer vide their letter dated 05.04.2005. They have been taken the following stand, “As regards the contention of the petitioner that the management has not given work to the contract workers we wish to inform you that we have not prevented anybody from doing their work and it is understood that at the instigation of some outsiders they are remaining out for reasons best known to them which tantamount to voluntary abatement of duty.” 11.8. To which on the same day, the trade union submitted a rejoinder Page No.42/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 which reads as follows:-
“But our union submits that some of the contract workers (along with union office bearers) were not allowed to attend for duty on 28.03.2005, the same was intimated by Telegram, to your goodself and the same day, i.e., on 28.03.2005 the dispute was raised against the above said actions and after complaint is also filed under Sec 33 A of ID Act, 1947.
Our union submits that there is a dispute was raised on 15.03.2005 by Telegram and followed by the detailed representations. While the pending conciliation the Managements action is unfair and illegal and the victimisation continues our union without alternative, to protect the members constrained to go on strike from 29.03.2005, accordingly, a strike notice was given through Telegram on 28.03.2005, to the Management copy to the Labour Officer, Karaikal.” 11.9. Further on behalf of the Workmen, they categorically deposed that they were all non-employed by the Management and the relevant portion of the evidence of P.W.5 reads as follows:-
“a{dpad; Muk;gpj;jhy; vd;id ntiyia tpl;L ePf;fptpl;lhh;fs;/ vd;id nghy; 125 ngiu ntiyia tpl;L vLj;Jtpl;lhh;fs;” 11.10. On the contrary, on behalf of the Management, only R.W.1 and RW2 were examined. R.W.1 is the Manager of Shiv a s h a kt h i Associates. R.W.2 is again the Manager from another contractor. Even in the evidence in chief of Page No.43/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 the said witnesses, nothing was mentioned about the fact that the workers absented themselves. Therefore, even though it is the plea of the Management that the workers were absent from duty themselves, the Management did not examine any witness who is the officer or the employee of the Management. It chose to examine only the employees of the two alleged contractors. They have also not deposed anything about the abstention of duty by the Workmen themselves. Therefore, I am not in a position to agree with the learned counsel for the Management that the Workmen had only absented from duty by themselves, especially in the rejoinder itself the Workmen had stated that they were terminated and the said plea was raised in paragraph No.3 of the claim statement. Though the plea of unilateral abstention from duty was taken in reply to the dispute before the conciliation officer, no evidence was let in in support of its claim. Thus, when the non-employment by the Management is proved and that it is after the date of commencement of conciliation, then the contention made on behalf of the Workmen that the same is void ab initio and that there need not be other proceedings questioning the said termination is accepted, and accordingly, the question is answered.Page No.44/50
https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 L. Question No.(v):
12. Coming to the relief that has to be granted to the Workmen, as per the original Claim Petition, 165 Workmen are covered in the dispute and the following factors are taken into consideration:
(a)The Workmen were employed from the year 2003 and if the alleged non-employment is with effect from the year 2005, that is they worked about 2 ½ years and rest of the period where the dispute is pending, i.e., from 2005 to 2025, nearly 25 years.
(b) Out of the 165 Workmen, the following 50 Workmen had only filed affidavits claiming reinstatement with arrears of wages,
1.K.Udayakumar 26.T.Selvaraj
2.V.Muralidaran 27.G.Perumal
3.G.K.Mahendran 28.K.Suresh
4.P.Senthilkumar 29.K.Deviprasath
5.R.Vinothkumar 30.P.Nanthakumar
6.S.Sivakumar 31.R.Prakash
7.K.Rajasekaran 32.F.John David Divy
8.B.Aravindhan 33.Kathiravan
9.B.Sundar 34.M.Karthik
10.S.Baskar 35.K.Kandan
11.G.Ravindran 36.K.Peter Narayanan
12.A.Ariyappan 37.S.Kannan
13.S.Karthikesan 38.R.Radhakrishnan
14.S.Pushpanathan 39.P.Prabakaran
15.V.Packirisamy 40.R.Arivazagan
16.M.Madhavan 41.R.Rajesh Page No.45/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009
17.J.Senthilkumar 42.J.Kandakumar
18.M.Prabhu 43.A.Vincent
19.G.Ramadass 44.R.Senthilkumar
20.B.Sanmugam 45.K.Jayasankar
21.J.Jayaprakash 46.N.Ramalingam
22.S.Poovaragavan 47.K.Balamurugan
23.K.Senthilmurugan 48.K.Kamaraj
24.A.Rabert 49.R.Suresh
25.R.Vengadesan 50.K.Murali
(c) The rest of them have not even filed any affidavit whatsoever concerning not having any other gainful employment etc. 12.1. Given the above, I am of the view that the relief of reinstatement can be claimed only by the said 50 Workmen. Considering the overall facts and circumstances, if the aforesaid 50 Workmen claimed reinstatement, they will be entitled to reinstatement with continuity of service, however without any back wages. In respect of others, because they did not even choose to file an affidavit of not being gainfully employed and given the sheer efflux of time and they were employed only for 2 ½ years, I am of the view that compensation in lieu of reinstatement and back wages and all other claims of gratuity or any other benefits can be granted. Considering the period of service put in by them and the overall facts and circumstances of the case, I am of the view that a sum of Rs.1 Page No.46/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 lakh each would be a fair compensation. Even concerning the aforesaid 50 Workmen, if all or any of them choose not to claim reinstatement they can also opt to claim the compensation of Rs.1 lakh. Accordingly, I answer the question.
M.The Result:
13. In the result, this Writ Petition is disposed of on the following terms,
(i) The award of the Industrial Tribunal, Puducherry dated 08.04.2009 made in I.D.No.15 of 2005 is upheld with a modification to the ultimate relief that is granted to the Workmen;
(ii) The 50 Workmen mentioned in paragraph No.12(b) above shall be entitled to reinstatement, however, without back wages, but with continuity of service, if they choose to claim employment. They shall submit a letter to the Management claiming reinstatement along with a copy of this order, within four weeks from the date of receipt of a copy of the order /website uploaded copy of this order;
(iii) Upon making the claim, they shall be reinstated into service with proper designation considering their present qualification, with continuity of service, however, without back wages;
Page No.47/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009
(iv) Those of the above 50 Workmen who do not want reinstatement can also opt for the payment of lump sum compensation of Rs.1 lakh except the Workmen who are reinstated into service all the other Workmen will be entitled to a compensation of Rs.1 lakh each and the said sum shall be paid to them within twelve weeks from the date of receipt/production of the website uploaded copy of this order, without waiting for the certified copy of this order;
(v) No costs. Consequently, the connected miscellaneous petitions are closed.
04.02.2025 Neutral citation:Yes Jer To The Presiding Officer Industrial Tribunal Puducherry.
Page No.48/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 D.BHARATHA CHAKRAVARTHY, J., Jer Page No.49/50 https://www.mhc.tn.gov.in/judis WP.No.10501 of 2009 W.P. No.10501 of 2009 and M.P.Nos.1 & 2 of 2010 04.02.2025 Page No.50/50 https://www.mhc.tn.gov.in/judis