Madras High Court
J.Abraham vs State Of Tamil Nadu on 8 December, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2014
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.No.12884 of 2006
J.Abraham ... Petitioner
Vs.
1. State of Tamil Nadu
Rep. by the Divisional Engineer
(Highways and Rural Works)
Tanjore.
2. The Presiding Officer,
Labour Court,
Cuddalore. ... Respondents
* * *
Prayer : Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to quash the proceedings dated 18.10.2005 of the second respondent in I.D.No.76 of 1998 and to direct the first respondent to reinstate the petitioner with backwages and other benefits.
* * *
For Petitioner : Mr.D.Nelliappan
For Respondents : Mr.R.Govindasamy
Addl. Govt. Pleader
ORDER
The petitioner was employed in the Highways Department of the Tamil Nadu Government as a Road Mazdoor (NMR) in the office of the Assistant Divisional Engineer, Highways Department, Tanjore, for road works from 02.07.1985 to 02.07.1989 for a period of four years. He was denied employment abruptly from 02.07.1989. He took up the matter relating to his non-employment on 26.08.1991 before the Labour Officer, Tanjore, who was the Conciliation Officer under the Industrial Disputes Act (hereinafter referred to as the I.D. Act). The Department filed a counter-statement before the Conciliation Officer stating that the Highways Department is not an industry under the I.D. Act and also the petitioner is not a workman under the I.D. Act. In view of such a stand, the conciliatory efforts failed and the Labour Officer gave the failure report dated 06.11.1991 under Section 12(4) of the I.D. Act.
2. Hence, the petitioner has filed a claim statement before the second respondent Labour Court in the year 1998 under Section 2(A)(2) of the I.D. Act. The same was taken on file by the Labour Court in I.D.No.76 of 1998. The petitioner stated in the claim statement in detail as to why there was a delay of seven years after getting failure report. He has stated that his poverty condition is the reason for not approaching the Court in time and he approached the Legal Aid Centre, Thiruthuraipoondi. Thereafter, he was directed to contact the Legal Aid Centre at the High Court, Chennai. He came to Chennai twice to meet the Advocate appointed by the Legal Aid Centre, but he could not meet the Advocate. Again, he repeatedly went to the Legal Aid Centre, Thiruthuraipoondi. Ultimately, in the year 1996, the counsel appointed by the Legal Aid Centre at High Court stated that the bundles were handed over to the Centre and that the petitioner could seek remedy only in the Labour Court at Cuddalore. Thereafter, he filed the application before the Labour Court.
3. The first respondent filed counter-statement before the Labour Court admitting that the petitioner was employed as a NMR on daily wages basis for doing labour work in the roads. He was not issued any appointment order. His engagement was as temporary daily wage coolie. Since no appointment order was issued, it was not necessary to issue termination order assigning reasons for termination. Since the petitioner was employed on daily wage basis, he has no right to claim appointment, when he was stopped after completion of work, for which he was employed. Since he was not a regular workman, the procedure contemplated under Section 25-F of the I.D. Act for retrenchment would not be applicable for his termination.
4. Before the Labour Court, the petitioner/workman got examined himself as a witness and he was cross-examined. The petitioner workman also examined his co-worker and he was cross-examined. A document, namely, Identity Card issued to the co-worker was marked as exhibit. The first respondent neither marked documents as exhibits on their side nor let-in any oral evidence before the Labour Court.
5. The petitioner/workman has stated that he worked for two years under one Mr.Kasturi Rangan, Junior Engineer, and he worked for one year under one Mr.Krishnan, Assistant Engineer and thereafter, for one year he worked under the Assistant Engineer one Mr.Ramakrishnan. The petitioner also filed an interim application for production of documents maintained by the first respondent relating to the work of NMR staff for the years 1985 to 1989. However, the first respondent did not produce any document and a memo was filed by the learned Government Pleader to the following effect :
It is respectfully submitted that the petitioner herein has caused notice to produce documents pertaining to the years 1985 to 1989. The respondent is attempting to trace the documents. The respondent therefore, submits that they will file available documents in two weeks time. However, no documents were filed.
6. Ultimately, the second respondent Labour Court passed an award dated 16.10.2005 rejecting the industrial dispute. It was dismissed on two grounds, namely, (i) that the workman failed to establish about his employment with the respondent; and (ii) the workman belatedly approached the Labour Court and no explanation was given for such delay.
7. A counter-affidavit has been filed by the first respondent reiterating the stand, that was taken before the Labour Court.
8. Heard both sides.
9. I have perused the original records that are submitted to this Court, pursuant to the issuance of the Rule NISI.
10. One of the reasons given by the Labour Court for rejecting the industrial dispute is that the workman did not produce any written document to establish the service particulars that he worked for four years from 02.07.1985 to 02.07.1989. The relevant passage from paragraph 6 of the impugned Award dated 18.10.2005 is extracted hereunder, in this regard :
6. kDjhuh; jug;gpy; vt;tpjkhd vGj;J K:y rhd;whtzKk; ,y;yhj epiyapy;. mtuJ rhl;rpaj;ij kl;Lk; itj;Jf;bfhz;L. kDjhuUf;F Mjuthf ,k;kDtpidj; jPh;khdk; bra;a KoahJ/
11. I am not able to appreciate the reasoning given by the Labour court for rejecting the industrial dispute. It is admitted by the first respondent that no appointment order was given. The same is not in dispute. The workman examined the co-workman as W.W.2 and he deposed that the petitioner was engaged from 1985 and he worked for 5 years. The said version was not controverted during the cross-examination of W.W.2. The relevant portion of the deposition of W.W.2, the co-worker, during the cross-examination is extracted hereunder :
1985?Mk; Mz;Ljhd; kDjhuh; Kjd;Kjypy; rhiyg;gzpahsuhf gzpapy; nrh;e;jhh;/ kDjhuUf;F gzpepakd cj;jut[ fpilahJ/ ehd; kDjhuUld; gzpbra;jjhf TWtJ jtW vd;whYk;. mt;thW ntiy bra;jjhf bgha;rhl;rpak; mspf;fpnwd; vd;whYk; mJ rhpay;y/ W.W.2 was a serving workman, who could not give a false evidence against the first respondent.
12. Further, the petitioner/workman also got examined himself as as W.W.1 and he deposed that he was engaged regularly without break and he was not engaged only for the urgent works based on requirement. He further deposed that he was paid monthly wages based on daily wage and he was not paid daily on completion of the work. The relevant portion of the cross-examination of the workman/W.W.1 is extracted hereunder :
vt;tg;bghGJ ntiycs;snjh mg;nghJjhd; eph;thfk; vdf;F ntiybfhLf;Fk; vd;W brhd;dhy; mJ rhpay;y/ vdf;F jpdKk; rk;gsk; tH';fg;gLtjpy;iy/ khjKotpy; jhd; rk;gsk; U:/255-? tH';fg;gLk;/ khjk; KGtJk; vdf;F ntiybfhLf;fg;gLtJ ,y;iybad;whYk; ntiyapUf;Fk; fhyj;jpy; kl;Lk; jpdf;Typahf eph;thfk; vd;id itj;jpUe;jJ vd;whYk; mJ rhpay;y/
13. The statement made by the workman as well as his witness, W.W.2, during the chief-examination are totally in favour of the workman. Further, the cross-examination also reveals that the first respondent was not able to establish anything in their favour. Therefore, the Labour Court cannot reject the evidence of W.Ws.1 and 2, when there was no evidence let-in by the management and no documents were produced, more particularly, when the workman also filed an application to produce the records relating to the years 1985 to 1989 to establish the services rendered by him.
14. In fact, he has stated in paragraph 1 of his claim statement that he was employed under one Mr.Kasturi Rangan, Junior Engineer, for two years, under one Mr.Krishnan for one year and under one Mr.Ramakrishnan for one more year. The same was not disputed by the first respondent in the counter-affidavit.
15. Furthermore, the workman has filed an interim application seeking for the production of documents and the Government Pleader, who conducted the case for the first respondent, filed a memo stating that the petitioner herein has caused notice to produce documents pertaining to the years 1985 to 1989 on them and the respondent was attempting to trace the documents and therefore, the respondent submitted that they will file available documents in two weeks time, but no documents were produced. The following passage from paragraph 6 of the impugned award is extracted hereunder in this regard :
vjph;kDjhuh; jug;gpy; thjpl;l fw;wwpe;j tHf;fwp"u; kDjhuh; vjpu;kDjhuh; eph;thfj;jpy; gzp bra;Js;shu; vd;gjw;F Mjuthf eph;thfk; bghWg;gpy; cs;s rpy Mtz';fis ePjpkd;wj;jpy; jhf;fy; bra;af;nfhhpa[k;. eph;thfk; ve;jtpjkhd Mtz';fisa[k; jhf;fy; bra;atpy;iy vd;Wk;. Vjph;kDjhuh; eph;thfj;jpy; kDjhuh; ntiy bra;jhh; vd;gij kiwg;gjw;fhfnt mt;thW thjpl;Ls;shh; vd;Wk;. vdnt eph;thfk; nkw;Twpa Mtz';fis jhf;fy; bra;ahj fhuzj;jpdhy; ,f;Tw;W kDjhuUf;F Mjuthfnt jPh;khdk; bra;ag;gl ntz;Lk; vd;W thjplg;gl;lJ/ ehk; Vw;bfdnt Muha;e;jJnghy;. vjph;kDjhu; eph;thfk;. kDjhuh; kDtpy; nfhhpa[s;s rhd;whtz';fs; vJt[k; j';fs; if trk; ,y;iy vd;Wk;. Vdnt me;j Mtz';fisj; jhf;fy; bra;a mtrpak; Vw;gltpy;iy vd;Wk; thjplg;gl;lJ Vw;g[ilajhfnt cs;sJ/
16. The Labour Court did not find fault with the employer for not producing the records. The learned Government Pleader stated that they would trace the documents and produce the documents. It was not their case that they did not maintain any record. It was also not their case that the name of the petitioner does not find place in their records. There are records relating to engagement of NMR daily wage basis workman and payment of wages to those workmen. On the other hand, they did not produce the document in spite of the efforts taken by the petitioner/workman. It is a different matter if the petitioner failed to seek production of the records relating to his employment. In those circumstances, the Labour Court erred in holding that the workman did not produce any documents to substantiate his claim, as the documents were only with the respondent. Further it is also the categorical case of the respondent employer that the petitioner was neither given appointment order nor the termination order, as he was a NMR workman. Hence, I am of the view that the workman has established that he worked for four years continuously, by letting in oral evidence (i.e.) by examining himself and also a co-workman, while the respondent employer failed to let in any evidence, oral or documentary, besides not providing the documents, which the petitioner sought for to establish his version. Hence it has to be interfered that the workman rendered continuous service for four years before termination or at the least, he served 240 days every year, before termination. Furthermore, it is not the case of the respondent employer that the petitioner was not at all employed. On the other hand, employment of the petitioner with the respondent Department was accepted. It was their only contention that he was a NMR workman. It is categorically held by the Apex Court in more than one judgment that NMR Workman is also a workman under Section 2(s) of the I.D. Act.
17. The Labout Court observed that the I.D. Card of the co-worker alone was produced and the I.D. Card relating to W.W.1 was not produced, while rejecting the industrial dispute. In my view, those reasoning has no merit, particularly, when employment is not in dispute.
18. Since the respondent failed to prove the pleadings made by them in their counter statement before the Labour Court in I.D.No.76 of 1998, as the respondent did not let in any evidence, oral or documentary, the Labour Court ought to have held that the petitioner worked continuously for four years till his termination, in view of the oral evidence of the petitioner and his co-workman. While the respondent took a categorical stand in their pleadings before the Labour Court that the petitioner was denied employment, on completion of the work, it was incumbent on them to prove their pleadings. But they miserably failed to prove their pleadings in this regard. At this juncture, it is useful to refer to the judgment of the Apex Court in Shankar Chakravarti V. Britannia Biscuit Co. Ltd. And Another, (1979) 3 SCC 371, wherein, the Apex Court categorically held that in the adversary system, the parties shall plead and prove what they pleaded in the manner known to law. In this case, the respondent employer made a categorical pleading that the petitioner was denied employment on the completion of work, But no evidence was let in to prove the said pleading. Hence, the Labour Court should have decided the industrial dispute in favour of the workman. It is useful to extract the following passages in paragraphs 29, 31 and 31 of the said judgment in this regard :
29. ..... The system adopted by these Tribunals is an adversary system, a word as understood in contradistinction to inquisitorial system. This also becomes clear from rule 10B(l) of the Industrial Disputes (Central) Rules, 1957, which provides that when a reference is made to the Labour Court or Industrial Tribunal, with- in two weeks of the date of receipt of the order of reference the parties representing workmen and the employer involved in the dispute shall file with the Labour Court or the Industrial Tribunal a statement of demands relying only upon issues which are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the dispute. .....
31. ..... Parties have to lead evidence. Section 11-C confers power of a civil court under the Code of Civil Procedure on the Labour Court or Industrial Tribunal in respect of matters therein specified. The Labour Court or Tribunal would then; proceed to decide the lis between the parties. lt has to decide the lis an the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is nontheless a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. lt would not be open to it to decide the lis on any extraneous considerations. ....
32. If such be the duties' and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make claim or demur the claim of the other side and when there is a burden upon it to prove or establish The fact so as to invite a decision in its favour, if it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do of omit to do. Obligation to lead evidence or establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. .... A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and it entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such tribunals have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in tin Printers (Private) Ltd. V. Industrial Tribunal, (1967) 2 LLJ 677, commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. .....
19. I have no hesitation to come to the conclusion that the Labour Court erred in holding that the petitioner failed to prove his employment by way of producing documents. Based on the oral evidence of the petitioner and also of his co-workman and in the absence of any evidence, oral or documentary, being produced before the Labour Court by the respondent employer, the Labour Court should have recorded a finding that the petitioner proved his continuous employment with the respondent from 1984 to 1989. Hence, I am of the considered view that the findings of the Labour court in t his regards is totally perverse. More importantly, the petitioner also discharged his burden of proof by filing necessary application to produce the records before the Labour Court and the respondent employer, having failed to produce any documents relating to NMR employment, the Labour Court should have drawn adverse inference. At his juncture, it is also useful to take note of the fact that while the respondent admitted the employment of the petitioner, took a stand that neither appointment order was issued nor termination order was issued to the petitioner. Hence, I am inclined to hold that the petitioner established his continuous employment from 1984 to 1989. If it is so, he worked for 240 days in every year and thereby he is entitled to protection under Section 25-F of the I.D.Act.
20.1. Since I have held that the petitioner established his continuous employment from 1984 to 1989 and also I have held that the petitioner is a workman under Section 2(s) of the I.D. Act, the termination of the petitioner amounts to retrenchment under Section 2(oo) of I.D. Act and non-compliance of the mandatory conditions stipulated under Section 25-F of I.D.Act would render the termination void ab initio. The respondent employer sought to take a plea that since the petitioner was not a regular workmen, Section 25-F of I.D. Act could not be applied to him. Though the plea was taken before the Labour Officer that the respondent is not an industry, no such plea was taken before the Labour Court. On the other hand, the plea was that Section 25-F of I.D. Act, could not be attracted in the case of the petitioner, being a NMR workman. But the Apex Court categorically held that even in the case of NMR Workmen, they are workmen under Section 2(s) of the I.D.Act and Section 25-F of I.D. Act could be attracted in the case of termination of those workmen.
20.2. In this context, it is relevant to refer the judgment of the Apex Court in Devinder Singh V Municipal Council, Sanuar, reported in AIR 2011 SC 2532, wherein, the Apex Court after referring to its earlier judgments, held as hereunder :
12.Section 2(s) contains an exhaustive definition of the term 'workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term ' workman'.
20.3. It is also useful to refer to paragraph 19 of the said judgment of the Apex Court in Devinder Singh's case (cited supra) wherein, the Apex Court has held that Section 25-F couched in a negative form and it imposed a restriction on the employers right to retrench the workman. Paragraph 19 of the said judgment is also extracted hereunder :
19. Section 25 couched in negative form. It imposes a restriction on the employer's right to retrench workman and lays down that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched until he has been given one month notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment compensation equivalent to fifteen days' average pay for every completed year of continuous service . .. any part thereof in excess of six months and notice in the prescribed manner has been served upon appropriate Government or the authority as may be specified by the appropriate Government notification in the Official Gazette. 20.4. The Apex Court in Devinder Singh's case (cited supra), cataloged the earlier judgments and elaborately held that the provisions contained under Section 25-F (a) and (b) are mandatory. It is relevant to extract paragraph 20 of the said judgment in this regard :
20. This Court has repeatedly held that the provisions contained in Section 25F (a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative -- State of Bombay V. Hospital Mazdoor Sabha, AIR 1960 SC 610, Bombay Union of Journalists V. State of Bombay, AIR 1964 SC 1617, State Bank of India V. N.Sundara Money, (supra), Santosh Gupta V. State Bank of Patiala, (1980) 3 SCC 340, Mohan Lal V. Bharat Electronics Ltd., (1981) 3 SCC 225, L.Robert D'Souza V. Southern Railway (supra), Surendra Kumar Verma V. Central Government Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Dass (1984) 1 SCC 509, Gurmail Singh V. State of Punjab, (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. 20.5. A Division Bench of this Court in The President, Srirangam Co-operative Urban Bank Limited, Srirangam, Tiruchy V. The Presiding Officer, Labour Court and K.Nagarajan, reported in 1996-II-LLJ-216 (Mad) held that even if there is invalid appointment of a daily wage workman, Section 25-F of the I.D.Act shall be complied with.
20.6. Since admittedly the first respondent failed to comply with the mandatory conditions imposed under Section 25-F of the I.D. Act. I have no hesitation to hold that the termination of the petitioner is illegal, particularly, in view of the judgment of the Apex Court in Devinder Singh case's and other judgments of the Apex Court referred to therein.
21.1. The other reason given by the Labour Court for dismissing the industrial dispute is that there was a delay in approaching the Laour Court.
21.2. The workman/W.W1 explained as to why there was a delay in approaching the Labour Court in the year 1998, while the failure report was given in the year 1991. The petitioner stated that due to poverty, he could not approach the Court in time and at first, he approached the Legal Aid Centre, Thiruthuraipoondi. He was directed to contact the Legal Aid Centre at the High Court, Chennai. He came to Chennai twice to meet the Advocate appointed by the Legal Aid Centre, but he could not meet the Advocate. Again, he used to go to the Legal Aid Centre, Thiruthuraipoondi, frequently. Ultimately, in the year 1996, the counsel appointed by the Legal Aid Centre at High Court stated that the bundles were handed over to the Centre and that the petitioner could seek remedy only in the Labour Court at Cuddalore. Thereafter, he filed the application before the Labour Court. Paragraphs 4 and 5 of the Claim Statement are extracted hereunder, in this regard :
4. rkur Kwpt[ mwpf;if fpilj;j gpd;g[ nkw;bfhz;L tHf;Fg;nghl kDjhuUf;F bghUs; trjpapd;ikahy; kDjhuh; jpUj;Jiwg;g{z;o ,ytr rl;l cjtp ikaj;ij mQqfpdhh;/ kDjhuhpd; Mtz';fis ghpnrhjpj;j ,ytrr; rl;l cjtp ika tHf;fwp"u; kDjhuh; cah;ePjpkd;wj;jpy; jhd; tHf;F jhf;fy; bra;a ntz;Lk; vd Twpajhy; nkw;go rl;l cjtp mYtyfk; kDjhuhpd; Mtz';fis brd;id cah;ePjpkd;w ,ytr rl;l cjtp ikaj;jpw;F mDg;gp itj;jJ/ mjd; gpwF. cah;ePjpkd;w ,ytr rl;l cjtp ikak; tHf;fwp"h; xUtiu epakpj;J. mJ gw;wpa jftiy kDjhuUf;F mDg;gp itj;jJ/ kDjhuh; ,uz;L Kiw brd;id brd;w nghJ nkw;go tHf;fwp"iu re;jpf;f Koatpy;iy/ kDjhuUf;F bghUs; trjpapd;ikahy;. kPz;Lk; brd;id bry;y ,aytpy;iy/ ,Ug;gpDk; kDjhuh; jpUj;Jiwg;g{z;o rl;l cjtp ikaj;jpw;F mt;tg;nghJ brd;W te;jhh;/ mth; m';F brd;w nghbjy;yhk;. eP brd;id bry;y ntz;oajpy;iy. cah;ePjpkd;wj;jpy; ,ytr rl;l cjtp tHf;fwp"h; ? V kDjhf;fy; bra;J tpLthh; vd m';fpUe;jth;fs; Twpdhh;fs;/ ,Ug;gpDk; jfty; VJk; tuhjjhy;. kDjhuh; ,Wjpahf 1996?k; Mz;L. Vg;uy; khjk; brd;id brd;W ,ytr rl;l cjtp ikak; epakpj;j tHf;fwp"iur; re;jpj;jhh;/ mg;nghJ mth; kDjhuh; te;J re;jpf;fhjjhy;. ckJ fl;il ,ytr rl;l cjtp ikaj;jpy; jpUg;gp xg;gilj;Jtpl;nld;/ nkYk;. eP bjhHpy;jfuhW rl;lj;jpy; kDr;bra;Js;sjhy;. eP nygh; nfhh;l;oy; kDg; nghl ntz;Lk; vd mwpt[iu vGjp ,ytr rl;l cjtp ikaj;jpy; bfhLj;Jtpl;nld; vd;whh;/ 5/ mjd;gpwF cah;ePjpkd;w ,ytr rl;l cjtp ikaj;jpy; brd;W nfl;lnghJ. tHf;F fl;L. tHf;fwp"hplkpUe;J tutpy;iy vdf; Twpdhh;fs;/ mjdhy;. kPz;Lk; tHf;fwp"iur; re;jpj;j nghJ. mth; tHf;F fl;il ,ytr; rl;l cjtp ikaj;jplk; xg;gilj;J tpl;ljhff; Twpdhh;/ mtnu mth; mYtyfj;jpypUe;j fl;Lfis kDjhuh; ghh;f;Fk;go mDkjpj;jhh;/ kDjhuh; njog;ghh;j;jnghJ. mth; tHf;Ff; fl;L mthplk; ,y;iy vd;gJ bjhpa te;jJ/ mjd;gpwF. kPz;Lk; ,ytr rl;l cjtp ikaj;jplk; te;J nfl;l nghJ. njog;ghh;j;J jUfpd;nwhk; vd xt;bthU Kiwa[k; Twp te;jdh;/ ,Wjpahf ,ytr rl;l cjtp ikaj;jpy; njog; ghh;f;ifapy; kDjhuh; jpUj;Jiwg;g{z;o ,ytr rl;l cjtp fHfj;jpy; ,Ue;J mDg;gp itj;j Mtz';fs; (lhf;Fbkz;Lfs;) jtwp tpl;lJ vd;gJ v';fs; (kDjhuh;) ftdj;jpw;F bjhpa te;jJ/ ,e;epiyapy; kDjhuh; ,e;j kDit jhf;fy; bra;jpUf;fpd;whh;/ kDjhuh; rkh;g;gpg;gjhtJ ahbjdpy;. ,k;kDit rkh;g;gpg;gjpy; Vw;gl;l fhy jhkjj;jpw;fhd fhuzk; kDjhuhpd; myl;rpankh. ftdf;Fiwnth my;y/ nkw;fz;l epfH;t[fs; jhd; fhuzk;/ kDjhuh; ,k;kDit jhf;fy; bra;tjpy; myl;rpak; bra;atpy;iy/ kDjhuUf;F fpilj;j rkur Kwpt[[ mwpf;ifapd; xhp$pdy; ,ytr rl;l cjtp ikaj;jpy; bfhLj;J. fpilf;fhky; nghdjhy;. b$uhf;!; efiy jhf;fy; bra;fpd;whh;/ Mfnt. kDjhuh; fdk; nfhh;l;lhh; mth;fs; ,k;kDit KGikahf tprhuiz bra;J. kDjhuUf;F epthuzk; tH';f gpuhh;j;jpUf;fpd;whh;/ 21.3. The aforesaid version was not disputed in the counter-statement filed before the Labour Court.
21.4. When the petitioner herein/workman was cross-examined by the first respondent, he has categorically stated as hereunder :
1993 $%iy khjk; jpUj;Jiwg;g{z;o ,ytr rl;l cjtp ikaj;jpy; ehd; kD bfhLj;jjhf TWtJ jtW vd;whYk;. 1998Mk; Mz;L tiu ehd; eltof;if VJk; vLf;ftpy;iybad;whYk; mJ rhpay;y/ 21.5. The Road Mazdoor, who was under poverty condition, approached the legal aid centre and wanted to get relief. But the Labour Court failed to appreciate the aforesaid admitted facts and rejected the industrial dispute on the ground that there was a delay.
21.6. Furthermore, in the facts and circumstances of the case, particularly, taking into account that the petitioner is a NMR workman belonging to downtrodden section of the society and I am inclined to accept the explanation for the delay in approaching the Labour Court. He categorically stated as to how he approached the Legal Aid Centers and in that process, there was a delay. He made categorical pleading in this regard but the same was not disputed in the counter-statement. He also gave evidence in this regard, but there is no contra evidence let in by the respondent. Hence, I am of the view that the delay was properly explained.
21.7. For the aforesaid reasons, I am of the view that the Labour court was not correct in dismissing the industrial dispute on the ground of delay.
22.1. In any event, I am of the considered view that in the facts and circumstances of the case, the Labour Court is not correct in rejecting the industrial dispute on the ground of delay. The I.D. Act did not prescribe any time limit for raising an industrial dispute. I do not suggest that the workman could raise the industrial dispute at any time, according to his whims and fancies. What I like to state is that the I.D. Act did not prescribe limitation consciously. The limitation was introduced only in the year 2011 by way of amendment. But the law at the time of the adjudication of the industrial dispute of the petitioner was decided is that there was no limitation prescribed.
22.2. At this juncture, it is useful to refer to the judgment of the Apex Court in Ajaib Singh V. Sirhind Co-op Marketing-cum-Processing Service Society Limited, (1999) 6 SCC 82, wherein, the Apex Court overruled a Full Bench judgment of the Punjab and Haryana High Court in Chander Morya v. State of Haryana (1999) 1 SCT 141 holding that five years period could be taken as limitation, while there is no limitation prescribed under the I.D. Act. The Apex Court held that since the I.D. Act did not prescribe any limitation, the industrial dispute ultimately could not be dismissed on the ground of delay and the Labour Court could mould the relief, taking into account the issue relating to delay, but the Labour Court could not dismiss the industrial dispute on the ground of delay. It is useful to extract paragraph 10 of the judgment in (1999) 6 SCC 82 in this regard:
10. It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned counsel for the respondent management on the Full Bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana (1999) 1 SCT 141 is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases. However, it went on further to say that reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay.
We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 33-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act. 22.3. At this juncture, it is also relevant to note that the respondent employer did not state in the counter-statement that the petitioner approached the Labour Court belatedly. Therefore, the Labour Court is not correct in rejecting the industrial dispute on the ground of delay. It is useful to extract paragraph 11 of the said judgment in (1999) 6 SCC 82 in this regard :
11. In the instant case, the respondent management is not shown to have taken any plea regarding delay as is evident from the issues framed by the Labour Court. The only plea raised in defence was that the Labour Court had no jurisdiction to adjudicate the reference and the termination of the services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea was not sustainable after the reference was made by the Government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The findings of facts returned by the High Court in writ proceedings, even without pleadings were, therefore, unjustified. The High Court was also not justified in holding that the courts were bound to render an even-handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the Act. Even after noticing that it is true that a fight between the workman and the management is not a just fight between equals, the Court was not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment. The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on the technicalities of law. The High Court appears to have substituted its opinion for the opinion of the Labour Court which was not permissible in proceedings under Articles 226/227 of the Constitution. 22.4. In view of the aforesaid judgment, the impugned award passed by the Labour Court rejecting the industrial dispute on the ground of delay is liable to be interfered with.
22.5. view of the aforesaid reasons, I am of the view that the petitioner could be deprived of wages until he approached the Labour Court. Thus, he could not get wages from the date of termination to the date of approaching the Labour Court in 1998.
23. In the result, the writ petition is allowed and the impugned award is set aside and a direction is issued to the first respondent to reinstate the petitioner with continuity of serice and attendant benefits and to pay backwages from the date of filing of the application before the second respondent Labour Court till his reinstatement. It is made clear that the petitioner would be entitled to wages as NMR Workman with periodical increase that were given to the NMR Workman in the first respondent establishment towards backwages from the date of filing of the application before the Labour court till his reinstatement, as per the decision of the Division Bench of this Court in 1996-II-LLJ 216 (Mad). The first respondent is directed to comply with the aforesaid direction within a period of six weeks from the date of receipt of a copy of this order. No costs.
08.12.2014
Index : Yes
Internet: Yes
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To
1. The Divisional Engineer
Highways and Rural Works,
Government of Tamil Nadu,
Tanjore.
2. The Presiding Officer,
Labour Court,
Cuddalore.
D.HARIPARANTHAMAN, J.
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Order in
W.P.No.12884 of 2006
08.12.2014