Madras High Court
The Management vs The Workmen on 4 January, 2016
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 04.01.2016 CORAM: THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN REVIEW APPLICATION No.17 OF 2013 IN M.P.No.1 of 2012 in W.P.No.1160 of 2009 AND WRIT PETITION No.1160 of 2009 The Management, Tamil Nadu Khadi & Village Industries Board, Guindy Unit, No.11 Industrial Estate, Guindy, Chennai 600 032. ... Petitioner in Review Appln. No.17/2013 & W.P.No.1160/2009 -vs- 1. The Workmen, rep. By the Secretary, Industrial Estate General Workers Union, No.11, Lawyer Jaganathan Street, Guindy, Chennai 600 032. 2. The Presiding Officer, Principal Labour Court, Chennai 600 104. ... Respondents in Review Appln.No.17/2013 & W.P.No.1160/2009 Review Application filed under Article 226 of the Constitution of India read with Section 114 and Order XLVII Rule 1 of CPC to review the order, dated 17.12.2012, passed by this Court in M.P.No.1 of 2012 in W.P.No.1160 of 2009. Writ Petition filed under Article 226 of the Constitution of India praying to call for the records in I.D.No.489/2004 dated 25.07.2008 on the file of the 2nd respondent and quash the same as illegal. For Petitioner in Rev.Appln. No.17/2013 : Mr.P.H.Arvindh Pandian, & W.P.No.1160/2009 Addl. Advocate General for Mr.S.K.Bose For 1st Respondent in Rev.Appln. No.17/2013 : Mr.Balan Haridoss & W.P.No.1160/2009 * * * * * * * Judgment Reserved on : 29.10.2015 Judgment Pronounced on : 04.01.2016 * * * * * * * C O M M O N O R D E R
As the facts involved in both the Review Application and the Writ Petition are one and the same, both the Petitions are taken up for disposal by a common order.
2. The Management of the Tamil Nadu Khadi and Village Industries filed the above Writ Petition seeking to quash the Award dated 25.07.2008 passed by the Presiding Officer, Principal Labour Court, Chennai in I.D.No.489 of 2004. This Court, by an order dated 23.01.2009, granted an order of interim stay of the operation of the order passed in I.D.No.489 of 2004. While so, 13 members of the Workmen Union filed M.P.No.2 of 2009 to vacate the said interim order and this Court, by an order dated 19.08.2009, stated that the Management of Tamil Nadu Khadi and Village Industrial Board is injuncted from disengaging the services of the workmen and also stated that it is open to the Management to post them in other units as far as possible, closer to Veerapuram near Avadi.
3. Thereafter, the workmen Union filed M.P.No.1 of 2012 in the above Writ Petition with the grievance that in spite of the said order passed in M.P.No.2 of 2009, no posting order is given and they were also not paid the wages entitled under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, 1947). Taking note of the submissions made by the learned counsel on either side and having regard to the fact that workmen were not employed from August 2010 till the end of November 2012 anywhere and that no proof was produced for their employment elsewhere, this Court, by an order dated 17.12.2012 passed an interim order directing the Management, Tamil Nadu Khadi and Village Industries to calculate the wages under Section 17-B of the Act, 1947, payable to each of the workmen from August 2010 till the end of November 2012 and pay the same before 05.01.2013. Seeking to review the said order, the Management of Tamil Nadu Khadi and Village Industries has come up with the above Review Application.
4. The case on hand is an industrial dispute between the Workmen of Tamil Nadu Khadi and Village Industries Board and their Management. The Workmen Union filed I.D.No.489 of 2004 against their Management seeking permanent status to 20 piece-rate workers on the ground that they are working for more than 10 years as piece-rate workers. According to the Management, all the 20 workers are not qualified carpenters; since they worked only on piece rate basis, there was no necessity for issuing any appointment order and they received wages through voucher payments. On hearing both sides, the Labour Court, vide order dated 25.07.2008 passed the following Award in I.D.No.489 of 2004.
18. ...
Thus, depending upon the circumstances of each case, the date from which the Award shall come into operation has to be fixed. In this case on hand, the petitioner Union has been fighting from 1998 for the rights of the workers and the Management adopted unfair labour practice from 1999 onwards and therefore the petitioner raised the dispute before the Conciliation Officer on 28.01.2002. Considering the entire facts and circumstances of the case, this Court feels that award is to be given effect from the date of the petition filed by the petitioner before the Conciliation Officer namely 28.01.2002. For the aforesaid reasons, this Court holds that that demand of the petitioner Union seeking conferment of permanent status to the workers (excepting Serial No.8. T.Dhandapani) listed out in the reference is justifiable and the respondent is to be directed to confer permanent status to the said employees from 28.01.2002 and these points are answered accordingly.
19. In the result, award is passed directing the respondent to confer permanent status to all the workers excepting Serial No.8 T.Dhandapani listed out in the reference, from 28.01.2002, the date of raising the dispute before the Conciliation Officer with all benefits and this Industrial Dispute is ordered accordingly. No costs.
5. Seeking to quash the said Award, the Management of Khadi Board would state that the Workmen were not appointed through proper channel, i.e. Employment Exchange sponsorship or any other recruitment selection process and that the contention of the Workmen that they are entitled for regularisation of service as they have worked for more than 240 days/480 days in the Khadi Board will not help them in view of the Supreme Court ruling in Uma Devi's case [Secretary, State of Karnataka and others v. Umadevi and others, 2006 (4) SCC 1]. According to the Khadi Board, the workmen were gainfully employed somewhere else and that is why they had willfully abstained from work. Further, he would submit that the Unit where the workmen worked was shifted only in the month of February 2011 and not from August 2010. At the time of shifting the Unit, the Management informed all the workmen who were working in the Unit and also pasted circular in the Notice Board of the Unit. Citing references of a few workmen, namely, Palani, Sundar, Venkatesan and Sagadevan, the Management of Khadi Board would state the said workmen had been getting regular contract work and are earning well. In this regard, the Management would further submit that a person who earns more than Two Lakhs per month or year as a Contractor cannot be held to be a workman who is entitled to receive wages under Section 17-B of the Act, 1947.
6. On behalf of the Workmen, one T.Palani, has filed a counter affidavit, wherein, he has stated that 20 workers including him have been working in the Khadi Board/Management's carpentry unit for more than 15 years. They were employed as Carpenters and Polishers for manufacturing and repairing furniture. The Khadi Board chose to employ them on piece rate basis without granting regularisation and consequential benefits. Aggrieved by the Board's action, an Industrial Dispute was raised by the Union in I.D.No.499 of 2004 on behalf of 20 workers employed in the carpentry unit of the Board situated in Guindy. The Labour Court, after hearing both sides, by an Award dated 25.07.2008 held that all the 20 workers are entitled to permanent status with effect from 28.01.2002 with all benefits. The Khadi Board challenged the said Award in W.P.No.1160 of 2009. As the workmen were not given employment by the Khadi Board even pursuant to the order of interim injunction restraining the Board from disengaging the services of the workmen, they were constrained to move this Court seeking payment of wages under Section 17-B of the Act, 1947 in M.P.No.1 of 2012. Further, it is the case of the workmen that only after filing the said petition, the Board, by its proceedings dated 10.12.2012, called for carpentry and Blacksmith workers including the workers concerned in the Writ Petition to get involved in manufacturing works on piece rate basis and obtain wages. And, in order to perform the work as per the said order dated 10.12.2012, the workers were orally told that they should invest a minimum sum of Rs.2 lakhs to a maximum of Rs.4 lakhs to purchase wood and other accessories. As none of the workmen were able to invest a lumpsum to perform their work since they were out of employment for two years, they sent a representation dated 17.12.2012 to the Khadi Board to give them employment without any obligation for investment.
7. It is further stated in the counter that though the Khadi Board/Management has mentioned the names of four workers as gainfully employed and sought a review of the order dated 17.12.2014, there is no material evidence in the Review Petition to substantiate their claim that nine other workers excluding six workers who died/retired, are also gainfully employed elsewhere.
8. Learned counsel for the Review Applicant/Management would contend that the wages payable under Section 17-B of the Act, 1947, which are awarded to the workmen are in the nature of non-refundable subsistence allowance and that the equities have to be balanced. It is his strenuous contention that the workmen had wilfully abstained from work and left the Management in lurch.
9. Learned counsel appearing for the Workmen would contend that the sole object of the Review Application is to delay the payment of the wages under Section 17-B of the Act, 1947, to all the other nine workers, about whom there is no specific mention in the Review Application. In support of his case, he has relied on the following decisions:
(i) a Division Bench judgment of this Court in the case of R.Lakshmi v. The Chief Engineer (Personnel), TNEB [2012 (3) LLN 681 (Mad.)] "36. We also hold that even in the absence of any enquiry conducted by the Inspector under the Act, the right conferred upon the petitioner's husband to claim the benefit of permanent status could not be denied by any means because of the simple fact that Section 3(1) of the Act imposes an obligation upon the respondents/Electricity Board Authorities to confer permanent status of the petitioner's husband, who had rendered 480 days of work continuously in a period of 24 calender months and on that basis, we hold that the petitioner's husband deceased S.Raju is entitled to be made permanent by the respondents/Tamil Nadu Electricity Board Authorities and once, in law, he was entitled to the benefit of conferment of permanent status, the resultant benefit could not be deprived to the petitioner (wife) notwithstanding the fact that during his lifetime no such permanency was conferred on him. Viewed in that perspective, we hold that a Workman, who had completed 480 days of continuous service in a period of 24 calender months, would become automatically a permanent employee under the employer, even, if an employer had not conferred him with the permanent status or even if, no direction was issued by the Competent Authority in this regard under the Act, 1981 or the Rules framed thereunder. Accordingly, we answer the Reference."
(ii) another judgment of this Court in the case of Hindustan Petroleum Corporation Ltd. and another v. The Presiding Officer, Central Government Labour Court cum Industrial Tribunal, Chennai and another [2008 (4) CTC 819] 51. But, while ordering the regularisation only from the date of retrenchment, the CGIT did not keep in mind the relevant legal provisions, viz., the effect of the Tamil Nadu Act 46 of 1981, which guarantees permanency if a workman completes 480 days of service within a period of 24 calendar months. Pending the adjudication of the regularisation issue, the HPCL could not have dispensed with the service of the workmen without getting prior approval from the CGIT under Section 33(2)(b) of the I.D.Act. Such violation by the HPCL will clearly make their non-employment void ab initio and the position of law in this regard has been well-settled by a Constitution Bench judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others, 2002 (2) SCC 244. In that case, the Supreme Court has held in paragraph 14 that the workman need not challenge such a dispensation from service with any independent proceedings.
(iii) a Supreme Court judgment in Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmchari Sanghatana [(2009) 8 SCC 556] "32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
36. Umadevi (3) [State of Karnataka v. Umadevi, (2006) 4 SCC 1] does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3) cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.
(iv) yet another judgment of this Court in the case of Oil and Natural Gas Corporation Limited, Pondicherry v. Petroleum Coal Labour Union, Chennai and others [2011-III-LLJ 497 (Mad.)] 37. A reading of the above would make it clear that the Hon'ble Supreme Court was aware of the fact that the employees concerned in that case were also not appointed as per the procedures laid down in the Standing Orders pertaining to Maharashtra State Road Transport Corporation. But, the Hon'ble Supreme Court, after having taken note of the law laid down by the Hon'ble Supreme Court in Secretary, State of Karnataka and Others v. Uma Devi (supra) case and having taken a particular note of the fact that the workmen therein were not appointed as per the procedures laid down in the Standing Orders, held that they are entitled for permanency. The Hon'ble Supreme Court was of the view that denial of permanency to such workmen would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. In this case also, as I have already stated, since these workmen are all the victims of unfair labour practice for several years though they were not appointed by following the procedures laid down by the ONGC still, they are entitled for regularisation as their appointment cannot be stated to be illegal.
(v) yet another Supreme Court judgment in the case of Hari Nandan Prasad & another v. Employer I/R to Management of FCI and another [2014 (2) LLN 564 (SC)] 23. For a detailed discussion on this aspect, we proceed to discuss the ratio in Maharashtra SRTC. In that case the respondent Karamchari Union had filed two complaints before the Industrial Court, Bombay alleging that the appellant Corporation had indulged in unfair labour practice qua certain employees who were engaged by the appellant as casual labourers for cleaning the buses between the years 1980-1985. It was stated in the complaints that these employees were made to work everyday at least for eight hours at the depot concerned of the Corporation; the work done by them was of permanent nature but they were being paid a paltry amount; and even when the post of sweepers/cleaners was available in the Corporation, these employees had been kept on casual and temporary basis for years together denying them the benefit of permanency. After adjudication, the Industrial Court held that the Corporation had committed unfair labour practice under Items 5 and 9 of Schedule IV to the MRTU and PULP Act. As a consequence, it directed the Corporation to pay equal wages to the employees concerned which was being paid to Swachhaks and also pay arrears of wages to them. In the second complaint, the Industrial Court returned the finding that the Corporation was indulging in unfair labour practice under Item 6 of Schedule IV, by continuing these employees on temporary/casual/daily-wage basis for years together and thereby depriving them the benefits of permanency. The direction in this complaint was to cease and desist from the unfair labour practice by giving them the status, wages and all other benefits of permanency applicable to the post of cleaners w.e.f. 3-8-1982. The Corporation challenged these two orders of the Industrial Court before the High Court of Judicature of Bombay in five separate writ petitions. These were disposed of by the learned Single Judge vide common judgment dated 2-8-2001 holding that complaints were maintainable and the finding of the Industrial Court that the Corporation had indulged in unfair labour practice was also correct. The Corporation challenged the decision of the learned Single Judge by filing LPAs which were dismissed by the Division Bench on 6-5-2005. This is how the matter came before the Supreme Court. One of the contentions raised by the appellants before this Court in Maharashtra SRTC case was that there could not have been a direction by the Industrial Court to give these employees status, wages and other benefits of permanency applicable to the post of cleaners as this direction was contrary to the ratio laid down by the Constitution Bench of this Court in Umadevi (3). The Court while considering this argument went into the scheme of the MRTU and PULP Act. It was, inter alia, noticed that complaints relating to unfair labour practice could be filed before the Industrial Court. The Court noted that Section 28 of that Act provides for the procedure for dealing with such complaints and Section 30 enumerates the powers given to the Industrial and Labour Courts to decide the matters before it including those relating to unfair labour practice. On the reading of this section, the Court held that it gives specific power to the Industrial/Labour Courts to declare that an unfair labour practice has been engaged and to direct those persons not only to cease and desist from such unfair labour practice but also to take affirmative action. ...
29. A close scrutiny of the two cases, thus, would reveal that the law laid down in those cases is not contradictory to each other. In U.P. Power Corpn., this Court has recognised the powers of the Labour Court and at the same time emphasised that the Labour Court is to keep in mind that there should not be any direction of regularisation if this offends the provisions of Article 14 of the Constitution on which the judgment in Umadevi (3) is primarily founded. On the other hand, in Bhonde case, the Court has recognised the principle that having regard to the statutory powers conferred upon the Labour Court/Industrial Court to grant certain reliefs to the workmen, which includes the relief of giving the status of permanency to the contract employees, such statutory power does not get denuded by the judgment in Umadevi (3) case. It is clear from the reading of this judgment that such a power is to be exercised when the employer has indulged in unfair labour practice by not filling up permanent posts even when available and continuing to employ workers on temporary/daily-wage basis and taking the same work from them and making them do some purpose which was being performed by the regular workers but paying them much less wages. It is only when a particular practice is found to be unfair labour practice, as enumerated in Schedule IV of the MRTP and PULP Act, and it necessitates giving direction under Section 30 of the said Act, that the court would give such a direction.
30. We are conscious of the fact that the aforesaid judgment is rendered under the MRTP and PULP Act and the specific provisions of that Act were considered to ascertain the powers conferred upon the Industrial Tribunal/Labour Court by the said Act. At the same time, it also hardly needs to be emphasised that the powers of the industrial adjudicator under the Industrial Disputes Act are equally wide. The Act deals with industrial disputes, provides for conciliation, adjudication and settlements, and regulates the rights of the parties and the enforcement of the awards and settlements. Thus, by empowering the adjudicator authorities under the Act to give reliefs such as reinstatement of wrongfully dismissed or discharged workmen, which may not be permissible in common law or justified under the terms of the contract between the employer and such workmen, the legislature has attempted to frustrate the unfair labour practices and secure the policy of collective bargaining as a road to industrial peace.
10. It is seen that the prayer in the Miscellaneous Petition seeking wages under Section 17-B of the Act, 1947, is inartistically worded. Section 17-B of the Industrial Disputes Act would read thus:
17-B. Payment of Full wages to workman pending proceedings in Higher Courts: Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this Section for such period of part, as the case may be.
11. Section 17-B of the I.D. Act would be applicable in a case where the order of reinstatement is passed by the Tribunal or the Labour Court. In this case, there is no order for reinstatement as the employees were in service and the reference is only for regularisation/conferment of permanent status to the workmen. When there are two enactments which empower the employees to recourse for permanent status, viz. Industrial Disputes Act, 1947 and Conferment of Permanent Status Act, 1981, it is open to the employees to choose any one of the forum as laid down by the Apex Court in the case of Nirchiliya and Others v. Management of Safire Theatre [1991 (1) LLJ 111]. That apart, prior to the legislation of the 1981 Act, claim of permanent status under the employer is not a bar in an industrial dispute more particularly, when clause 10 of the I.D. Act clearly states that continuing to employ workmen for years together is an unfair labour practice. The Management's contention that the workmen cannot invoke wages invoking Section 17-B of the I.D. Act, in the present case, though may have force, this Court is entitled to mould the relief and grant wages.
12. In V.C.Vadivel vs. The Government of Tamil Nadu reported in 2014 (III) LLJ 558, this Court directed the respondents therein to confer permanent status to the first two petitioners, as they have completed 480 days of continuous service in the Management. Relevant portion of the order is extracted hereunder:
11. Following the decision of this Court in A.PALANIVEL AND OTHERS V. TAMIL NADU KHADI AND VILLAGE INDUSTRIES BOARD AND OTHERS cited supra, the writ petition is allowed. The first two petitioners have completed 480 days of continuous service in a period of 24 calender months and the same could be seen from the service records produced by the petitioner. Since there is no Attendance Register with regard to the other two petitioners and they have been absorbed in the service as early as in the year 1985 dehors the permanent status Act and all the petitioners have completed 480 days in a period of 24 calender months, as could be seen from the Service Register that was prepared in 1989, I direct the respondents to confer permanent status to the first two petitioners, namely, V.C.Vadivel and B.Ravi, from the year 1985 and for other two petitioners, namely, R.Kumar and E.Pakkiri, on completion of two years from the date of entering into service and grant all the other benefits available to the petitioners in view of conferment of permanent status as the petitioners are deemed to have attained permanent status in terms of 1981 Act. A letter dated 27.6.2011, sent by the Executive Officer, Pammal Municipality to the Commissioner, Municipal Administration, Chennai, clearly gives the details of the four persons and their date of joining. Hence, they are entitled to permanent status on completion of 480 days. To avoid multiplicity of litigations, the respondents are directed to regularise the services of B.Ravi with effect from 6.8.1985, V.C.Vadivel with effect from 28.8.1985, E.Pakkiri with effect from 26.12.1985 and R.Kumar with effect from 30.6.1986. Since the petitioners have approached this Court only in the year 2013, the petitioners are entitled to get the back wages only from the date of filing of the writ petition. The respondents 1 and 2 are directed to complete the whole exercise within a period of two weeks from the date of receipt of a copy of this order.
13. As regards the power under Article 226 of the Constitution of India in the grant of an interim order, a Division Bench of this Court in M.P.Nos.1 to 3 of 2013 in W.A.No.332 of 2012, while passing an interim order on 13.08.2012, held as under:
8. The power under Article 226 of the Constitution of India is wider in the grant of interim relief, but such power should be exercised cautiously by duly taking into consideration of the facts of the individual case. In the grant of interim relief, no precise formula can be adopted nor cast iron rule can be laid down in that regard. In fact, the approach of the Court must not be rigid or mechanical, but flexible and realistic, especially when it is dealing with the case of an employee. The direction for payment of wages must be independent of the question as to the entitlement for reinstatement. ...
14. Though in the above case, the Division Bench of this Court held that the powers of the High Court in exercising the powers under Article 226 of the Constitution of India cannot be curtailed on technical grounds and that the employer cannot contend that the employee would not be entitled to wages, that was a case where the employee was dismissed from service and the award was modified into one of reinstatement without backwages vide order dated 24.11.2011 in W.P.No.4715 of 2007. The Management has contended in M.P.Nos.1 to 3 of 2013 in W.A.No.332 of 2012 that wages under Section 17-B could be awarded only if there is an award of reinstatement by the Tribunal. But, in the case on hand, the Tribunal has not awarded reinstatement and it only pertains to conferment of permanent status to the workmen. In the said case, this Court, while disagreeing with the contention of the Management/BSNL, held that the award of the Labour Court gets substituted by the judgment of this Court in W.P.No.4715 of 2007 and that the workmen are entitled to wages under Section 17-B of the Act. Even assuming that the workmen cannot invoke Section 17-B to claim wages, the powers of the High Court cannot be curtailed.
15. Whenever a judgment is passed by the High Court modifying the award of the Lower Court, the award of the Lower Court gets substituted and it is open to the Government to initiate action under Section 29 of the I.D. Act, 1947 or the employee is entitled to initiate claim under Section 33C(2) of the I.D. Act, as if it is an award. In this case, by filing a review, the Management has successfully not paid even a single pie to the workmen, which they should have paid as a model employer without standing on technicalities.
16. The Apex Court in the case of Bhavnagar Municipality v. Alibhai Karimbhai [(1977) 2 SCC 350] has held as under:
14. The character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition of employment, however, insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be altered to their prejudice by putting an end to that temporary condition. This could have been done only with the express permission of the Tribunal. It goes without saying that the respondents were directly concerned in the pending industrial dispute. No one can also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case. To permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of Section 33 which is principally directed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication. We are, therefore, clearly of opinion that the appellant has contravened the provisions of Section 33(1)(a) of the Act and the complaint under Section 33-A, at the instance of the respondents, is maintainable. The submission of Mr Parekh to the contrary cannot be accepted. In the said case, the employees demanded permanent status and they were granted the same by an award of the Labour Court. The Apex Court observed therein that the action of the Management in trying to deprive temporary employment when the employees have sought permanent status would amount to alteration of service. In the case on hand, the employees have been granted the benefit of permanent status by the award of the Labour Court. In such an event, the employees should not have been disengaged from service during the pendency of the Writ Petition.
17. The case of the Management/Khadi Board is that piece-rated employees are not entitled to permanency. Neither the Industrial Disputes Act nor the Conferment of Permanent Status Act has excluded piece-rated employees from the provisions of the aforesaid enactments. Even assuming for the sake of argument the Managements contention is correct, piece-rated workers is only a nomenclature to deprive permanent status to the employees in a dubious manner, as could be seen from the evidence adduced before the Labour Court that the employees have been regularly employed and performing the work of Carpenter and Blacksmith.
18. The Supreme Court, in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others [2002 (2) SCC 244], has held that when a dispute is pending before the appropriate authority or the Labour Court, the Management will have to take proper approval or permission, failing which the employees are deemed to be in service. It does not mean that when the Writ Petition is pending before the High Court, they can disengage the employees, thereby defeating the very purpose of the Award. Relevant portion of the said judgment is extracted hereunder:
13. The proviso to Section 33(2)(b), as can be seen from 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.
14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted.
15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.
16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33-A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33-A. There is nothing in Sections 31, 33 and 33-A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes.
19. There is force in the arguments of the Management that Section 17-B of the I.D. Act is not applicable to the facts of the case. Payment of wages under Section 17-B is mandatory in a case where an award is passed by the Labour Court ordering reinstatement of the employees. But, the present case deals with conferring of permanent status to the employees. Powers under Article 226 are wider to grant any relief when the employees have got the benefit of an award. It does not mean that this Court has no powers to extend the benefit of wages without invoking Section 17-B of the I.D. Act, 1947, payable to the workmen. It is true, wages under Section 17-B would be made applicable in a case of reinstatement, where an award has been passed setting aside the order of dismissal or non-employment of the workmen. In this case, the employees will be entitled to much more than the last drawn wages and they are entitled to the present wages on par with their counterparts. The employer should have extended the payment of wages to the workmen during the pendency of the Writ Petition, thereby enabling them to maintain their livelihood. In order to give the relief to the workmen during the pendency of the Writ Petition, this Court has directed the Management to pay the last drawn wages. Therefore, as stated supra, as the employees who have already been in service were in service at the time of industrial dispute and there is no dispute under Section 2A or a reference under Section 2k of the I.D. Act with regard to divesting of their duties, mere referring to the provisions of Section 17-B of the I.D. Act in the order cannot be a ground to make the employees starve. An employee who has been suspended is entitled to subsistence allowance. The workmen in the case on hand are on a better footing than the employees under suspension, so also than the person who had the benefit of an award of reinstatement, as in this case, the workmen have been directed to be conferred permanent status. Moreover, the workmen in this case are not seasonal employees.
20. Since in the present case the Management has intentionally not complied with the order of payment of wages and that the power of this Court to grant wages is not taken away and that any disengagement of the workmen during the pendency of the Writ Petition is not correct and more particularly, it is too bad when the employees had the benefit of the award, the action of the Management is inhumane.
21. An industrial forum has got more powers than that of a Civil Court. An industrial forum can extend a contract/agreement and also substitute a new one in the place of an old one. In the case on hand, the Labour Court, taking note of the factual aspects that the employees have been working for several years and that one of the employees have been paid gratuity and also taking note of the evidence of two witnesses of the workmen and disagreeing with the statements of the Management, came to a conclusion that the workmen are entitled to permanent status. These employees who have been working as Carpenters/Blacksmiths in the Khadi Board for a long time clearly fortify the need for this post which has been answered in favour of the workmen. Such factual finding cannot be said to be perverse. Even in the great epic Ramayana, Rama went back to Ayodhya after 14 years, but, in the case on hand, the employees are yet to get any relief from the Management/Khadi Board, even after struggling for nearly 14 years.
22. In Madhusudans case reported in 2003 (102) FJR 310, the Punjab & Haryana High Court held that the Bank is bound to produce the records failing which the reference should be answered in favour of the workman. In the case on hand, entire documents have not been produced by the Management and the Labour Court was right in drawing adverse inference against the Management. Relevant portion of the said judgment is extracted hereunder:
A party seeking equitable relief from the courts has a bounden duty to disclose all material facts and documents which may have a bearing on the decision of the case. The party, be it the petitioner or the respondent, is not allowed to omit certain documents, which if disclosed, would perhaps lead to an unfavourable order being passed against that party. If by not disclosing such a document any favourable order is taken from the court, the same is liable to be rescinded / vacated on the correct facts being brought to the notice of the court.
23. The Apex Court in the case of Agnani v. Badridass (1963 (1) LLJ 684) at page 689, has held as under:
The Tribunal took the view that this resolution clearly showed that the enquiry had to be held about the incident which took place on November 16, 1959 and it thought that the reference to his previous conduct was incidental and may have been necessary for determining the question of sentence, but it was not intended to be the subject-matter of the enquiry. The High Court has taken a different view. Apart from the correctness of one view or another, it seems to us plain that in a matter of this kind, if the Tribunal put one interpretation upon the resolution and the High Court thought it better to put another, that cannot be said to introduce an error apparent on the face of the record in the order of the Tribunal. If it can be said that the view taken by the Tribunal is not even reasonably possible, perhaps an argument may be urged that the error is apparent on the face of the record; but, in our opinion, it would not be possible to accept Mr Setalvad's argument that the construction placed by the Tribunal is an impossible construction. On the other hand, while conceding that the view taken by the High Court may be reasonably possible, we are inclined to think that the construction put upon the resolution by the Tribunal is also reasonably possible; in fact, if we had to deal with the matter ourselves, we would have preferred the view of the Tribunal to the view of the High Court. The enquiry contemplated by para 2 is an enquiry into the conduct specifically mentioned in para 1, and so, the Tribunal was justified in holding that charges 1-8 which had nothing to do with the incident of November 16, 1959, were not entrusted to the enquiry committee. Apart from this aspect of the matter, we are satisfied that the High Court should not have entertained this argument under Article 226 of the Constitution.
24. The Kerala High Court in the case of Instrumentation Employees Union v. Labour Court, Kozhikode (1993 (1) LLN 75), in paragraph 16 of its order, referring to Syed Yakoobs case has held as under:
16. As pointed out by the Supreme Court in Syed Yakoob v. K.S.Radhakrishnan [AIR 1964 SC 477], the jurisdiction of the High Court to issue to writ of certiorari or direction under Article 226 or Article 227 of the Constitution of India is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. Findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal has erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which had influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari under Article 226 or Article 227 of the Constitution of India. It is further pointed out by the Supreme Court in Syed Yakoob case [AIR 1960 SC 477] that a finding of fact recorded by a Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court, under Article 226 or Article 227 of the Constitution of India. In Harbans Lal v. Jagmohan Saran [1985 4 SCC 333] also, the above principles have been reiterated by the Supreme Court. It was held that the findings by the authorities rested on evidence and there was no warrant for disturbing the finding of fact in writ proceedings.
25. Therefore, taking note of the facts and circumstances of the case, this Court is left with no other option but to come to the rescue of the needy (Workmen) and not the greedy (Management). As stated supra, in this case, the prayer is sought for wages under Section 17-B of the Act, 1947 and the learned Judge granting the said wages is nothing but exercise of power under Article 226 of the Constitution of India and not otherwise. Admittedly, the Management has evaded payment of wages to the workmen. Since the prayer sought for by the workmen claiming wages is only under Section 17-B of the I.D. Act and that the said provision is not applicable to the facts of this case, this Court has no other option except to allow the Review Petition only on technicalities and not otherwise. If the order under review is allowed to stand, the employees who have raised dispute under Section 2(k) through the Union for various issues like charter of demand (other than categories mentioned in Section 2A), may come up with a prayer invoking Section 17-B of the I.D. Act, which is not permissible in law. In view of the above, the Review Application filed by the Management/Khadi Board is allowed.
26. The origin of the Khadi Board has much relevance to the Father of the Nation, Mahatma Gandhiji, who practiced and preached 'Ahimsa. The word 'Khadi' is renowned all over the nation, for providing employment to large number of persons and also for the use of its crafted items, affordable for all citizens. According to Gandhiji, Khadi delivers the poor from the bonds of the rich and creates a moral and spiritual bond between the classes and the masses. It restores to the poor somewhat of what the rich have taken from them. That being the position, in the case on hand, the employer/Management, viz. Khadi Board has committed an act of 'Himsa' to its employees/workmen, by not paying any amount, thereby driving the workmen and their families to starvation death.
27. As regards the Writ Petition, I find no force in the arguments of the Management/Khadi Board challenging the award of the Labour Court and hence, the Writ Petition is dismissed with costs. Accordingly, the Khadi Board is imposed with costs of a sum of Rs.20,000/- (Rupees Twenty Thousand only), of which, it is directed to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) to Vidya Sagar (Formerly The Spastics Society of India), No.1, Ranjit Road, Kotturpuram, Chennai-600 085 and a sum of Rs.10,000/- (Rupees Ten Thousand only) to YRG Centre for AIDS Research and Education, Chennai, within a period of four (4) weeks from the date of receipt of a copy of this order. As the award passed by the Labour Court in I.D.No.489/2004 dated 25.07.2008 is confirmed by this Court, the employees are entitled to full wages and all other benefits. The Management is directed to implement the award of the Labour Court within a period of six weeks from the date of receipt of a copy of this order.
28. As the award of the Labour Court has been affirmed and that the Labour Court has answered the reference in favour of the workers, the employees would be entitled to permanent status on completion of 480 days, in a period of 24 calendar months from the date of their respective initial date of engagement. The employees are deemed to be reinstated into service as permanent employees. Those who are alive and those who have attained the age of superannuation are entitled to backwages and in the case of those who have passed away, their legal heirs are entitled to backwages till the date of death of those employees. As the money value has gone down, the employees covered under the Industrial Dispute are entitled to interest at 12% p.a. on the backwages from the date of reference of the industrial dispute.
29. Accordingly, taking note of the guidelines laid down by the Apex Court in Jaipur Zilla case and the decision of the Supreme Court in Fabril Gasosa Case v. Labour Commissioner and others [1997 (3) SCC 150], the Management/Khadi Board is directed to pay the employees/legal heirs of the employees entire backwages based on the last drawn wages, as this Court is of the view that at this distant point of time relegating them to invoke the remedy under Section 33-C(1) of the I.D. Act, 1947 is not going to help anyone and the last drawn wages cannot be a dispute at all. Also, it is open to the employees to invoke Section 33-C(2) of the I.D. Act to claim revision of wages, if any and Section 29 for prosecution. In case, the award of the Labour Court is not implemented by the Management, the Government will have to sanction prosecution against the erring officials falling under Section 32 of the I.D. Act, 1947, taking note of the principles laid down by the Apex Court in the case of Raj Kumar Gupta v. Lt. Governor, Delhi and another (1997 (1) LLJ 994), authorizing a person identified by the Union to initiate a complaint before the appropriate Criminal Court to bring the issue to a logical conclusion.
30. Before parting with the judgment, I would like to register my views on the issue of sanction for an employee to prosecute an industrial dispute. The Industrial Disputes Act was enacted in the year 1947 and now, it is almost 70 years and the moot question is whether there is speedy redressal to industrial disputes or not. When there was no provision for the individual workman to approach the Labour Court, the Supreme Court in the case of The Krishna District Co-operative Marketing Society Limited, Vijayawada v. N.V.Purnachandra Rao and others (AIR 1987 SC 1960), while expressing its views with regard to the amendment of the Central Act to simplify the law and also for re-consideration of the Appellate Tribunal, has observed as follows:
11. We may incidentally observe that the Central Act itself should be suitably amended making it possible to an individual workman to seek redress in an appropriate forum regard- ing illegal termination of service which may take the form of dismissal, discharge, retrenchment etc. or modification of punishment imposed in a domestic enquiry. An amendment of the Central Act introducing such provisions will make the law simpler and also will reduce the delay in the adjudication of industrial disputes. Many learned authors of books on industrial law have also been urging for such an amend- ment. The State Act in the instant case has to some extent met the above demand by enacting section 41 providing for a machinery for settling disputes arising out of termination of service which can be resorted to by an individual work- man. In this connection we have one more suggestion to make. The nation remembers with gratitude the services rendered by the former Labour Appellate Tribunal which was manned by some of our eminent Judges by evolving great legal principles in the field of labour law, in particular with regard to domestic enquiry, bonus, gratuity, fair wages, industrial adjudication etc. The Industrial Disputes (Appellate Tribunal) Act, 1950 which provided for an all-India appellate body with powers to hear appeals against the orders and awards of Industrial Tribunals and Labour Courts in India was repealed in haste. If it had continued by now the labour jurisprudence would have developed perhaps on much more satisfactory lines than what it is today. There is a great need today to revive and to bring into existence an all- India Labour Appellate Tribunal with powers to hear appeals against the decisions of all Labour Courts, Industrial Tribunals and even of authorities constituted under several labour laws enacted by the States so that a body of uniform and sound principles of Labour law may be evolved for the benefit of both industry and labour throughout India. Such an appellate authority can become a very efficient body on account of specialisation. There is a demand for the revival of such an appellate body even from some workers' organisations. This suggestion is worth considering. All this we are saying because we sincerely feel that the Central Act passed forty years ago needs a second look and requires a comprehensive amendment.
31. It is seen that the implementation of the award passed by the Presiding Officers, who are none other than District Judges is being scrutinized by the bureaucrats in a snail-paced manner for sanctioning the prosecution. In fact, the decision of the Government Officials are being reviewed by the Courts. That being the situation, the Government should think of amending Sections 29 and 34 of the Act, 1947 and entrust the power of prosecution to the respective Labour Court or Tribunal, which passed the award, so that, the employees are not driven from pillar to post to get redressal and in many cases, the award passed by the Labour Court or Tribunal is only a posthumous award. The purpose of the statute is to enable the parties to get proper relief during their lifetime. Now the order passed under various Labour enactments are only posthumous. If the power vested with the Government under Section 29 of the Industrial Disputes Act is taken away and given to the respective Labour Courts or Tribunals for punishment of non-implementation of the award, definitely, the Industrial Disputes Act will be a workable legislation. At the time of enacting the Industrial Disputes Act, everyone thought it was prudent to give the Government certain administrative powers and quasi-judicial powers. Now, the time has come for reversal and the powers should be given only to the respective Labour Courts and Tribunals. In this case, the Management/Khadi Board is a wing of the Government and the employees will have to face lot of hurdles for getting sanction for prosecution from the Government, in case the award is not implemented.
Henceforth, I hope that the Management will act as a Model employer.
04.01.2016 Index : Yes Internet: Yes aeb To:
1. The Secretary, Industrial Estate General Workers Union, No.11, Lawyer Jaganathan Street, Guindy, Chennai 600 032.
2. The Presiding Officer, Principal Labour Court, Chennai 600 104.
S.VAIDYANATHAN,J.
Aeb REVIEW APPLICATION No.17 OF 2013 IN M.P.No.1 of 2012 in W.P.No.1160 of 2009 AND WRIT PETITION No.1160 of 2009 Dated: 04.01.2016