Madras High Court
Kumaragiri Textiles vs The Presiding Officer on 29 January, 2013
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2013 CORAM THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.18582 of 2003 Kumaragiri Textiles P.M.P.Nagar, Thokkampatti Post, Dharmapuri 636 705. ... Petitioner -Vs- 1. The Presiding Officer, Labour Court, Salem. 2.T.Paramasivam ... Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the records of the order of the first respondent in I.A.No.170 and 171 of 2003 in I.D.No.251 of 1999 dated 23.06.2003, quash the same and consequently direct the first respondent to allow the said applications and permit the petitioner to let in evidence and file additional counter statements. For Petitioner : Mr.R.Parthiban For Respondents : No appearance O R D E R
Heard Mr.R.Parthiban, learned counsel for the petitioner. Though the second respondent has entered appearance through counsel, there was no representation on behalf of the second respondent for the past three occasions and even today. Therefore, this Court is constrained to consider the merits of the matter based on the available records including the counter affidavit filed by the second respondent.
2. The petitioner is a textile mill and has challenged the order passed by the Labour Court, Salem, in I.A.No.170 and 171 of 2003 in I.D.No.251 of 1999 dated 23.06.2003 and for a consequential direction to permit the petitioner to let in evidence and file additional counter statement. The second respondent was a permanent worker in the petitioner management and it is alleged that the second respondent absented himself from work on and from 01.05.1996 and thereafter, he purchased a tractor and was doing agricultural operations in his lands in and around Dharmapuri. It is further stated that after about one year the second respondent addressed the petitioner alleging that he was denied employment by the management. Thereafter, the second respondent raised a dispute before the Labour Officer and the petitioner management appeared before the Labour Officer and submitted that the second respondent continued to be in employment and no point of time he was denied employment and the petitioner management had made it clear that the second respondent was at liberty to join duty at any time. In view of such stand taken by the petitioner management, the Labour Officer closed the conciliation proceedings.
3. It is stated that the second respondent joined duty on 14.09.1997 and thereafter, disciplinary action was taken for his absence from 01.05.1996 to 13.09.1997 and ultimately, the second respondent was dismissed from service by order dated 17.04.1998. The second respondent raised a dispute before the Labour Officer and since there was no settlement, the second respondent raised a dispute before the Labour Court under Section 2A(2) of the Industrial Disputes Act, 1947. The claim petition was taken on file as I.D.No.251 of 1999. Before the Labour Court, a preliminary issue was raised as to whether the domestic enquiry conducted was fair and proper and the findings rendered by the enquiry officer was acceptable. The Labour Court by its preliminary order dated 21.11.2002 held that the domestic enquiry conducted was fair and proper and the findings rendered by the enquiry officer was acceptable. Thereafter, the matter was posted for final arguments. It was at that stage, the petitioner management filed interlocutory applications in I.A.Nos.170 and 171 of 2003 praying for an order to accept the additional counter statement and to permit the petitioner management to lead additional evidence regarding the plea that the second respondent was gainfully employed after the dismissal from service by the management. It was submitted before the Labour Court that the charge against the second respondent was that during the period of absence, he was engaged himself in business and the petitioner management had reliable witness to the activities of the second respondent after the dismissal from service. Therefore, it is submitted that grave prejudice would be caused to the petitioner management if the evidence is shut out.
4. From the records, it appears that the second respondent did not file any counter to the interlocutory applications filed by the petitioner management. Thereafter, the Labour Court took the applications for consideration and made an observation that no person can be expected to starve after he was dismissed from service and person who was engaging himself in agricultural operation cannot be said to be gainfully employed after his dismissal. Further, the Labour Court observed that only when an order of reinstatement is passed, the question of payment of back wages would arise and it is only at that stage, it is required to see whether the second respondent workman was gainfully employed. Further, the Labour Court observed that the applications has been belatedly filed in order to drag the matter. With the above finding the Labour Court by a common order dated 23.06.2003 dismissed both the applications. Challenging the same, this writ petition has been filed.
5. This Court by order dated 04.07.2003 while admitting the writ petition granted an order of interim stay. Subsequently, this Court by order dated 24.09.2003 made the stay absolute. As observed earlier from 2011 onwards, there has been no representation for the second respondent.
6. Learned counsel for the petitioner submitted that the impugned order is wholly unsustainable and the Labour Court having held that the domestic enquiry conducted was fair and proper, the only question which remains for consideration is the quantum of punishment to be awarded and whether the second respondent is guilty of charges framed against him and when granting relief the question of back wages also has to be considered and therefore, the management cannot be foreclosed from leading evidence on the aspect as to whether the workmen was gainfully employed.
7. In support of his contention, learned counsel for the petitioner relied on the decision of the Honourable Supreme Court in North East Karnataka Road Transport Corporation vs. M.Nagangouda [2007 (2) MLJ 452 (SC)] and the decision of this Court in Hindustan Petroleum Corporation Ltd., Madras (by Deputy General Manager) vs. Third Additional Labour Court, Madras and another [1985 II LLN 787].
8. The second respondent has filed a counter affidavit disputing the factual averments made in the writ petition. It is stated that the second respondent was out of employment from 1998 and he was constrained to sell his house and lands to pay his accumulated debts. Further, in the counter affidavit in paragraph No.13, it is admitted by the second respondent that he does not dispute the legal position of the decision in Hindustan Petroleum Corporation Ltd., Madras (by Deputy General Manager) vs. Third Additional Labour Court, Madras and another [1985 II LLN 787]. However, in order to avoid duplication, the Labour Court was fully justified in passing the impugned order. From the facts stated above, it is clear that the Labour Court has already held that the domestic enquiry conducted was fair and proper and that the findings of the enquiry officer could be accepted. Therefore, the only question which remains to be considered by the Labour Court is the quantum of penalty or as to whether the second respondent was guilty of charges framed against him. In the decision of the Honourable Supreme Court in North East Karnataka Road Transport Corporation vs. M.Nagangouda [2007 (2) MLJ 452 (SC)], the question what is gainful employment came up for consideration among several other questions. In the said case, the Labour Court rendered a finding that gainful employment would not include such income from agriculture. The appellant/management before the Honourable Supreme Court submitted that income from any source, whether from employment in an establishment or from self-employment would have to be treated as income for the purpose of deciding whether the respondent would be entitled to receive full back wages. On the said question, the Honourable Supreme Court has held as follows:
"17. On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment", would also include self-employment, wherefrom income is generated. Income, either from employment in an establishment or from self-employment, merely differentiates the sources from which income is generated, the end use being the same. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment".
9. Thus, in view of the law laid down by the Honourable Supreme Court in the aforementioned decision, gainful employment would also include self-employment. Therefore, for such purpose, the petitioner management ought not to have been prevented from leading evidence and if the application filed by the petitioner had been allowed by the Labour Court fixing a specific time frame, the appeal could have been avoided and either party would have known the result. However, as a result of the impugned order, the matter is pending before this Court since 2003 and the second respondent has not been able to get any relief from the Labour Court. The decision of this Court in Hindustan Petroleum Corporation Ltd., Madras (by Deputy General Manager) vs. Third Additional Labour Court, Madras and another [1985 II LLN 787] also considered the aspect whether the parties could be permitted to amend or modify the pleadings when the proceedings are pending before the Labour Court. While considering the said question, this Court by placing reliance on the various decision of the Honourable Supreme Court held that when the proceedings are pending before the Labour Court, the amendment of the petition should not be rejected on technical grounds and, to avoid protraction of proceedings and to prevent miscarriage of justice, this should be liberally looked upon. However, a word of caution was also made that bonafides in institution of petition, the circumstances which had prevented from such a petition being filed earlier could also be gone into by the Labour Court. In the instant case, the Labour Court has made an observation that the fact which they seek to plead in the additional counter statement would not tantamount to gainful employment. The finding of the Labour Court is uncalled for since the proceedings are pending before the Labour Court for final adjudication. Hence, this Court is of the view that the impugned order calls for interference.
10. In the result, this Writ Petition is allowed and the impugned order is set aside. The Labour Court is directed to accept the additional counter statement and permit the petitioner management to lead evidence. It is open to the respondents to cross-examine the management witness. Thereafter, the Labour Court shall proceed to adjudicate the industrial disputes and pass an award on merits and in accordance with law without in any manner being influenced by the observations made in the order dated 23.06.2003. Since the claim petition is pending from 1999, the Labour Court is directed to expeditiously dispose of the same and the petitioner management is also directed to co-operate for the earliest conclusion of the proceedings. No costs.
gm To The Presiding Officer Labour Court Salem