Madras High Court
M/S.T.Abdul Wahid & Co vs The Labour Court on 9 February, 2023
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.29968 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2023
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Petition No.29968 of 2005
and W.P.M.P.No.18672 of 2006
M/s.T.Abdul Wahid & Co.,
Foot Wear Division,
Represented by its Partner,
Mr.H.Mahmood Akthar ... Petitioner
Vs.
1.The Labour Court,
Vellore.
2.G.Nethaji … Respondents
Writ Petition filed under Article 226 of Constitution of India, praying
for issuance of Writ of Certiorarified Mandamus calling for the records of the
first respondent in I.D.No.217 of 2001, quash the impugned proceedings
dated 03.11.2004 and further direct the first respondent to examine the case
in light of the law declared by the Apex Court in (2002) I LLJ 1053, afresh
and thereafter pass orders in accordance with the provisions of the Industrial
Disputes Act, 1947.
For Petitioner : Mr.V.Sundareswaran
For Respondent 1 : Court
Page No.1 of 16
https://www.mhc.tn.gov.in/judis
W.P.No.29968 of 2005
For Respondent 2 : Mr.E.Srinivasan
ORDER
The relief sought by the petitioner in this writ petition is to call for the records of the first respondent in I.D.No.217 of 2001, quash the impugned proceedings dated 03.11.2004 and further direct the first respondent to examine the case in light of the law declared by the Apex Court in (2002) I LLJ 1053, afresh and thereafter pass orders in accordance with the provisions of the Industrial Disputes Act, 1947.
2. The facts of the case in a nutshell:
The case of the petitioner is that the second respondent viz., G.Nethaji never worked with the petitioner company, which was started in the year 1987, employing more than 100 workers. However, the petitioner company received a notice in Na.Ka.No.362 of 2000 dated 10.05.2000 from the Labour Officer-II, Vellore, regarding the alleged termination of the employment of the second respondent. Since the conciliation proceedings failed, immediately, the second respondent filed an Industrial Dispute in I.D.No.217 Page No.2 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 of 2001 before the first respondent / Labour Court by producing a bogus document viz., the duty pass and the gate pass to substantiate his claim. Thereafter, the first respondent / Labour Court has passed an award dated
03.11.2004 by directing the petitioner company to reinstate the second respondent along with the backwages and continuity of service. Aggrieved by this, the petitioner company has come forward with the present writ petition.
3. Learned counsel for the petitioner would submit that the second respondent never worked under the petitioner’s company and as per section 25(D) of the Industrial dispute Act, 1947, the petitioner had maintained the muster roll and the same was filed before the Labour Court and marked as Ex.M.6 but the Labour Court did not consider the same with proper perspective and allowed the I.D. filed by the second respondent without any legal basis. Moreover, the petitioner has filed a Salary Register, Allowance Register, 16 months of E.P.F. Return and 15 Months of E.S.I. Returns before the Labour Court and the same were also marked as Ex.M.7 to Ex.M.10, however, the Labour Court has failed to consider the same, while passing the Page No.3 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 award dated 03.11.2004 in I.D.No.217 of 2001.
4. The learned counsel for the petitioner further submitted that the second respondent did not produce any piece of evidence to prove that he has worked under the petitioner company. The petitioner side witnesses viz., one B.N.Madhin Ahamed (M.W.1) and 2.Somanickam (M.W.2) never accepted that the second respondent worked under the petitioner company and these evidence were not taken into consideration properly and the same was misconstrued by the Labour Court. It is pertinent to note that the second respondent has not filed any single evidence to prove that the he has worked more than 240 days under the petitioner company and hence onus burden lies on the second respondent and he miserably failed to establish his case.
5. The learned counsel for the petitioner contended that the second respondent had produce the bogus attendance record in the Form-F prescribed under the Tamil Nadu Shop and Establishment Act but the petitioner’s factory is governed by the Factories Act. According to Ex.Nos.M.6 to M.10, there was no employer employee relationship between Page No.4 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 the petitioner and the second respondent. Hence, the petitioner has no locus standi to file a 2(A) petition. The petitioner company never issued any duty pass to the second respondent and he produced the fabricated documents before the Labour Court. The labour officer written a letter dated 10.05.2000 in Na.Ka.No.362 of 2000, regarding the alleged termination of the second respondent, for which, the petitioner company has replied vide its letter dated 07.06.2000 and it clearly stated that the second respondent was not employed in the footware division of the petitioner company.
6. Learned counsel further contended that in reply to the copy of the petition filed with annexures by the second respondent dated 18.07.2000, the petitioner company has written a reply dated 25.07.2000, which has been marked as Ex.M.4, wherein, it stated that the second respondent has produced attendance records for the month of February and March 2000 in Form-F, prescribed under the Tamil Nadu Shops and Establishment Act, whilst the petitioner’s factory is governed by the Factories Act and the Tamil Nadu Factory Rules. Moreover, the petitioner company has maintained muster roll for all the workers in combined Form No.12 and 25(A). Since the Page No.5 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 petitioner’s factory is governed by the Factories Act and Tamil Nadu Factories Rules, there is no need for the Management to maintain Attendance Register in Form-F which is prescribed in an altogether different statute and whose provisions are not applicable to the petitioner's factory. Therefore, the attendance record, duty pass produced by the second respondent is a false and fabricated one and the second respondent was not in the employment of the petitioner company. Hence, the petition under section 2A has to be rejected. Further, there was no claim for E.P.F. or E.S.I. by the second respondent and no complaint before the competent authority regarding non-payment/denial of E.P.F. and E.S.I. payment. Hence, he prayed for allowing this writ petition by quashing the award passed by the Labour Court.
7. Per contra, learned counsel for the second respondent submitted that there was no reply for the letter dated 21.04.2000 written by the second respondent, wherein it was stated by the second respondent that he joined the petitioner company in the year 1999 and worked in C-Unit, fourth conveyer section along with 38 workers in that section and was drawing a sum of Rs.1000/- towards salary and Rs.900/- as Dearness Allowance and House Page No.6 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 Rent Allowance of a sum of Rs.70/- and also stated that he was terminated from service on 17.04.2000 without conducting any proper enquiry and it is against the principle of natural justice and illegal before the eye of law.
8. Learned counsel drew the attention of this Court to the document Ex.P.1 - Duty Pass bearing No.4625 dated 16.04.2000, which clearly shows the name of the second respondent, unit name, the signature of the manager along with the time and purpose. The learned counsel further submitted that section 25(N) of the Industrial Dispute Act, 1947 was not complied with by the petitioner company before retrenching the second respondent from the company. Moreover, E.S.I., E.P.F. benefits were also not paid to him, which leads to unfair trade practice and the retrenchment of the second respondent, it is a clear case of victimization. The learned counsel drew the attention of this Court to the findings of the Labour Court which is extracted hereunder:
“kDjhuu; gzp g[hpe;jij fhl;l L:lo; gh!;
bfhLf;fg;gl;ljhf Twp nkw;fz;l L:lo; gh!; efy;
jhf;fy; bra;ag;gl;L mit bjh/j/rh/M/1Mf FwpaPL bra;ag;gl;Ls;sJ/ 30/03/2000 kw;Wk; 16/04/2000y; L:lo; gh!; tH';fg;gl;ljhf FwpaPL bra;ag;gl;Ls;sJ/ nkw;fz;l Mtz';fspd; mog;gilapy; kDjhuu;.
Page No.7 of 16https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 vjph;kDjhuu; eph;thfj;jpy; gzp bra;J te;jhh; vd;gij mwpayhk; vd;Wk; kDjhuu; jug;gpy; thJiu bra;ag;gLfpd;wJ/ nkw;fz;l Mtz';fs; vjph;kDjhuu; epWtdj;jhy; tH';fg;gltpy;iy vd vjph;kDjhuuhy; kWf;fg;gltpy;iy/ epj/rh/1 jd;Dila tha;bkhHp rhl;rpaj;jpd; FWf;F tprhuizapd; nghJ. L:l;o gh!; vd;gJk;. nfl; gh!; vd;gJk; xd;Wjhd; vd;Wk;.
bjh/j/rh/M/1y; rpj;jpf; vd;gth; ifbaGj;J nghl;Ls;shh; vd;Wk;. nejh$p vd;gth; ntiy njo btspapypUe;J cs;ns te;jpUf;fyhk; vd;Wk;. mtru ntiy fhuzkhf btspapy; bry;tjhf vGjg;gl;Ls;sJ vd;Wk;. bjh/k/rh/M/1y; ,d;rhh;$; nknd$h; vd ahh; ifbaGj;J nghl;Ls;sdh; vd;W bjhpahJ vd;Wk;
Twpa[s;shh;/ vdnt vjph;kDjhuu; eph;thfj;ij nrh;e;j mjpfhhpfs; ifbaGj;J nghl;Ls;shh; vd;gij mwpa KofpwJ/ ntiy njo te;jpUf;fyhk; vd;W Cfj;jpd; mog;gilapy; gjpy; brhy;tij Vw;Wf;
bfhs;st[k; ,ayhJ/ bjh/j/rh/M/1 ,e;j tHf;fpw;fhf cUthf;fg;gl;lJ vd vjph;kDjhuu; jug;gpy;
Twg;gLtjpy; vjph;kDjhuu; epWtdj;ij rhh;e;j mjpfhhpfs; ifbaGj;jpl;Ls;s epiyapy; ,e;j tHf;fpw;fhf jahhpf;fg;gl;lJ vd;W TWtij ve;j mog;gilapYk; Vw;f ,ayhJ/ bjh/j/rh/M/1I ghprPypj;J ghh;f;Fk;nghJ kUj;Jtkid bray;tjw;fhf vd Fwpg;gplg;gl;Ls;sJ/ nkYk; mtru ntiy vd;Wk; Fwpg;gplg;gl;Ls;sJ/ mt;thW Fwpg;gplg;gLk; epiyapy; ntiy njo tUgth;fSf;nfh. ntW ntiyf;fhf cs;ns tUgth;fSf;nfh nkw;fz;l gh!;
tH';fg;gl;Ls;sjhf mwpa ,ayhJ/ gzpapy;
,Ug;gth;fSf;Fj; jhd; nkw;fz;l gh!; tH';fg;gLk; vd mwpa Toa epiyapy; kDjhuu;. vjph;kDjhuu;
eph;thfj;jpy; gzp bra;atpy;iy vd;W TWk; Tw;W Page No.8 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 ve;j mog;gilapYk; ek;gf;Toajhf ,y;iy bjh/j/rh/M/1d; gona vjph;kDjhuu; eph;thfj;jpy; kDjhuu; gzp bra;Js;shh; vd;gij mwpa Kofpd;wJ/ vjph;kDjhuu; eph;thfj;jpd; guhkhpf;fg;gLk;
gjpntLfspy; kDjhuu; bgah; ,y;iy vd;gjw;fhf kDjhuu;. vjph;kDjhuu; eph;thfj;jpnana gzp bra;atpy;iy vd Kot[ vLf;f ,ayhJ/ kDjhuu;.
vjph;kDjhuu; eph;thfj;jpy; gzp bra;Js;shh; vd;gij fhl;l VnjDk; xU Mtzk; jhf;fy; bra;a[k; epiyapy; kDjhuu; gzp bra;Js;sjhfnt fUj ,aYk;/ vdnt ,t;thwhd epiyapy; vjph; kDjhuu; eph;thfj;jpy;
guhkhpf;fg;gLk; gjpntLfspy; kDjhuu; bgah;
fhzg;gltpy;iy vd;whYk;. Vjph;kDjhuu; eph;thfj;jpy; gzp bra;jij mwpa kDjhuu; jug;gpy; Mtz';fs;
jhf;fy; bra;Js;s epiyapy; nkw;fz;l vjph;kDjhuu; eph;thfj;jpy; gzp bra;jij mwpa kDjhuu; jug;gpy; Mtz';fs; jhf;fy; bra;Js;s epiyapy; nkw;fz;l vjph;kDjhuu; eph;thfj;jpy; nkw;fz;l gjpntLfs;
Kiwahf guhkhpf;ftpy;iy vd;Wk;. midj;J
bjhHpyhsh;fspd; bgaUk; gjpntLfspy; bfhz;L
tug;gltpy;iy vd;nw fUj ,aYk;/ kDjhuu;.
vjph;kDjhuu; eph;thfj;jpy; gzp bra;atpy;iy vd;W TWk; Tw;W Kw;wpYk; bgha;ahf Twg;gl;Ls;sJ vd;gij bjh/j/rh/M/1y; ,Ue;nj mwpaKofpd;wJ/ vjph;kDjhuu; eph;thfj;jpy;. kDjhuu; gzpna bra;atpy;iy vd;W TWk; Tw;W bgha; vd fUJk;
epiyapy; kDjhuu; kDtpy; Twpa[s;s Tw;Wf;fs;
midj;Jk; cz;ikahf ,Uf;f tha;g;g[s;sJ vd;Wk;.
me;j mog;gilapnyna kDjhuUf;F gzpkWf;fg;gl;lJ rl;ltpnuhjkhdJ vd;gija[k; mwpayhk;/ vjph;kDjhuu; jug;gpy;. kDjhuu; gzpapy; ,Ue;jhh; vd;gija[k;. 240 ehl;fSf;F nky; gzp bra;J te;jhh; vd;gija[k;. 240 Page No.9 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 ehl;fis epU:gpf;Fk; bghWg;g[ kDjhuiu rhh;e;jJ vd;Wk;. mt;thW ,e;j kDtpy; epU:gdk;bra;atpy;iy vd;Wk;. thJiu bra;J jd;Dila thJiuf;F Mjuthf.
“Range Forest Officer – Vs. - S.T.Hadimani,
(2002, I.L.L.J. Page 1053)
vd;w tHf;fpy; cr;rePjpkd;wj;jpy;
gpwg;gpf;fg;gl;Ls;s jPh;g;gpid Rl;of;fhl;odhh;fs;/ ,e;j tHf;if bghWj;jtiu vjph;kDjhuu; jug;gpy;. kDjhuu;. vjph;kDjhuu; eph;thfj;jpy; gzp bra;jij xg;g[f; bfhz;L. mnjrkaj;jpy; 240 ehl;fSf;F Fiwthfnt gzp bra;Js;shh; vd;W TwpapUe;jjhy;. 240 ehl;fSf;F nky; gzp bra;Js;shh; vd;w Tw;iw epU:gpf;Fk; bghWg;g[ kDjhuiu rhh;e;jJ vd Kot[ bra;a ,aYk;. Mdhy; ,e;j kDit bghWj;jtiu kDjhuu;. vjph;kDjhuu; eph;thfj;jpd; gzpna bra;atpy;iy vd xl;Lbkhj;jkhf kWj;J Twpa[s;s epiyapy; nkw;fz;l Tw;W bgha; vd epU:gzk;
bra;ag;gl;L; s;s epiyapy;. kDjhuu; $dthp 1999y; gzpapy; nrh;e;J Vg;uy; 2000y; gzpkWf;fg;gl;ljhf TWk; Tw;W ek;gf;Toajhf cs;sbjd;nw Kot[ bra;a ,aYk;. 240 ehl;fSf;F nky; gzp bra;jjhfnt fUj ,aYk;/”
9. Learned counsel further submitted that in view of the above categorical finding of the Labour Court, it is true and evident that the second respondent has worked with the petitioner company and the duty pass and Page No.10 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 gate pass submitted by the second respondent was issued only by the petitioner company, which was not fabricated documents as alleged by the petitioner. Hence, he prays for dismissal of the above writ petition by confirming the award passed in I.D.No.217 of 2001.
10. Heard the learned counsel on either side and perused the materials placed on record.
11. In this case, on perusal of the records, it can be seen that in regard to the letter dated 21.04.2000, written by the second respondent to the petitioner company, seeking job with continuity of service, the petitioner company has failed to give any reply to that letter. The duty pass which has been marked as Ex.P.1 clearly shows that it was issued by the petitioner company, duly signed by the Manager of the company and it also contains the name of the second respondent along with his working unit and the petitioner company has also not denied that the above mentioned gate pass was not issued by them.
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12. During the cross examination, M.W.1 viz., B.N.Madhin Ahamed, in his evidence has stated that the duty pass and the gate pass are one and the same. It is pertinent to note that, one Siddiq has signed in the gate pass, who is one of the officers of the petitioner company. Hence, the Labour Court has rightly arrived a conclusion that the duty pass dated 16.04.2000 marked as Ex.P.1 was issued by the officer of the petitioner company and the same is not fabricated or false document as alleged by the petitioner company and on perusal of the Ex.P.1 (duty pass) it is mentioned as “going to hospital”. Hence, the contention by the petitioner company that the duty pass is issued only to the person, who is coming in search of job cannot be accepted and the same has been rightly rejected by the labour Court. Therefore, the contention of the petitioner that the second respondent did not work with the petitioner company is not believable and the same is rightly rejected by the Labour Court, since the second respondent's name was not mentioned in any of the records submitted by the petitioner company, it cannot be presumed or concluded that the second respondent was not worked in the petitioner company.
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13. It is pertinent to note the categorical findings of the Labour Court that the petitioner company has failed to maintain the records properly and apart from this, the register containing all the names of the workmen were not produced before the Labour Court. In view of the above clear and categorical finding by the Labour Court and Ex.P.1-Duty Pass, filed by the second respondent, the contention of the petitioner that the second respondent never worked with the petitioner company is unsustainable and untenable. Moreover, the denial of job and continuity of service by the petitioner to the second respondent is illegal.
14. Hence the Labour Court has rightly held that the second respondent worked with the petitioner from January 1999 and worked till April 2000 and it can be presumed that he has been worked for more than 240 days. Further, the Labour Court has rightly held that there was more than 100 workers working with the petitioner company and the retrenchment without prior permission of the government is not in accordance with law. So, the termination/retrenchment of the second respondent is in clear violation of Page No.13 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 Section 25(N) of the Industrial Disputes Act, 1947 and the same is not valid and proper in the eyes of law.
15. It is well settled law that this Court cannot interfere with the findings, award passed by the Labour Court under Article 226 of constitution of India unless it is perverse or arbitrary and in the present case, the findings of the Labour Court is based on the material documents submitted by both the parties.
16. In view of the above factum of the case, this Court is not inclined to interfere with the award passed by the first respondent/Labour Court, vellore in I.D.No.217 of 2001 dated 03.11.2004 and the same is hereby confirmed.
17. In the result, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Page No.14 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 09.02.2023 vm Index : Yes/No Speaking Order : Yes/No Page No.15 of 16 https://www.mhc.tn.gov.in/judis W.P.No.29968 of 2005 J.SATHYA NARAYANA PRASAD,J. vm To: 1.The Labour Court, Vellore. W.P.No.29968 of 2005 09.02.2023 Page No.16 of 16 https://www.mhc.tn.gov.in/judis