Madras High Court
Thozhillalar Munnetra Sangam vs The Management Of on 8 February, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2012 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.30952 of 2008 Thozhillalar Munnetra Sangam M.R.K.Cooperative Sugar Mills by its General Secretary Mr.S.Ramachandran Sethiathope Cuddalore District ...Petitioner vs 1.The Management of M.R.K.Cooperative Sugar Mills Sethiathope, Cuddalore Dt. 2.The Presiding Officer Labour Court Cuddalore ...Respondents Prayer:-Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorari to call for the records of the impugned order dated 02.04.2007 made in I.D.No.136 of 2000 on the file of the second respondent and quash the same. For petitioner : Mr.R.Muralidharan For respondents : Ms.G.Thilagavathi for R1 O R D E R
The petitioner is a trade union. In this writ petition, they have come forward to challenge the award passed by the Labour Court, Cuddalore in I.D.No.136/2000. By the impugned award, the Labour Court rejected the industrial dispute raised by the petitioner trade union and declined to grant relief.
2. The writ petition was admitted on 06.1.2009. On notice from this Court, Mrs.G.Thilakavathy, learned counsel is appearing for the first respondent.
3. Heard R.Muralidharan, learned counsel for the trade union and Mrs.G.Thilakavathy, learned counsel for the first respondent Management.
4. It is seen from the records that the petitioner union espoused the cause of its members with reference to not granting pay on par with similarly placed workers. Initially, the workman approached the Labour Court with a petition under Section 33(c)(2) of the Industrial Disputes Act, 1947. Before the Labour court, they withdrew their petition with liberty to file fresh petition. The petitioner trade union took up their case before the Labour Officer under section 2(k) of the Industrial disputes Act. On notice from the Conciliation Officer, the management filed an objection statement dated 24.06.1999. They objected to the contention of the workmen that the workers, whose cause was exposed by the union. The contention of the trade union that they were given lesser basic pay was not accepted. There was no discrimination between the persons, who come from other sugar mills as well as persons working in the same sugar mill.
5. The sugar mill started crushing operation on 28.05.1990. At that time they recruited persons from all the cooperative and public sector mills. The pay scale that was given to them was the same scale as was given to 13 workers, whose cause was projected. At the starting of the crushing operation, the mill gave incentive to the workers considering the harduous job. That was given to all the workers at the time of starting of the mill. Thereafter, the mill paid 15% as special allowance not as part of the basic pay. As regards the contention raised by the union, that 15% must be added to the basic pay cannot be considered.
6. The petitioner union filed rejoinder to the statement made by the management to which a further counter was filed by the management. The Conciliation Officer, as he could not bring about mediation between the parties sent a failure report dated 20.12.1999 to the State Government. The State Government after obtaining the opinion of the Labour Commissioner passed an order in G.O.(D).No.601 Labour and Employment dated 11.08.2010 and referred the dispute under Section 10(1)(c) of the Industrial Disputes Act for adjudication by the Labour Court, Cuddalore. The reference made by the said order was that whether the action of the management while recruiting employees for the mill and granted same appointment order was justified in giving wage of 15% to one set of workers and denying the same in respect of 13 persons, whose names are set out in the order of reference. The names are as under:-
Ezhilan, Crane Operator ; Pakkirisamy, Fitter ; Krishnamoorthy, Fitter ; Ravichandran, cadre not disclosed ; Vedagiri, Supervisor ; Ananthakrishnan, Watchman ; Baskaran, Clarification Attender ; Ilangovan, Junior Assistant ; A.Kuppusamy, Junior Assistant ; Muniraj, Junior Assistant ; R.Karunanidhi, Junior Assistant ; S.Ramanathan, Junior Assistant ; Soundararajan, Junior Assistant.
7. On the reference being received by the Labour Court, it registered as I.D.No.136/00 and issued notice to the parties. The petitioner union filed a claim statement dated 24.10.2000. The Management filed counter statement dated Nil. In the counter statement, in paragraph 4, they have set out the names of the petitioners and the date of joining and the basic pay as well as special allowance given to them. The petitioner union filed rejoinder to the said statement on 14.03.2001.
8. Before the Labour Court, on behalf of the union, one Ezhilan, who was one of the workmen concerned was examined as W.W.1, another Ramachandran, an office bearer of the union was examined as W.W.2. On the side of the management, one Karunakaran was examined as M.W.1. The worker filed four documents which are marked as W.1 to W.4. Ex.W.1, Ex.W.2 and Ex.W.3 related to pay fixation given to R.Vijayan, fitter, Grade 3, which was shown as the basic document for the management showing discrimination.
9. The Labour Court, upon evidence let in before it (both oral and documentary) came to the conclusion that there was inordinate delay in the workers raising the dispute. Secondly there was no discrimination as the workman themselves accepted successive wage revision without protest. Therefore, claiming extra wage is not proper. The Labour court accepted the defence taken by the management that the question of adding 15% basic pay will not arise as that was given to the workers, when the crushing operation was originally started and with a view to give them incentive. The said component was made as a special allowance. The said order dated 02.04.2007 was challenged in this writ petition.
10. Mr.R.Muralidharan, learned counsel for the petitioner submitted that the question of delay will not arise as the industrial dispute under Section 2(k) of the I.D.Act was raised before the Labour Court and the Labour court was wrong in holding that there was delay of 10 years. On the other hand, the fact that the workman moved the Labour court with a claim petition in C.P.76 of 1994 and only when the claim petition came up for final hearing on 10.03.1999, they withdrew the claim petition with liberty to move the appropriate forum. Hence, there was no delay.
11. This contention is well founded. To that extent, the Labour Court was wrong in stating that there was delay. With reference to the dispute, it must be noted that in the case of any discrimination between the workmen and others, it is for the trade union to produce appropriate materials before the Labour Court. If no materials are available, they should get such materials from the management to put forth their case that their case is same to that of the persons drawing 15% pay as additional basic pay together with other allowance. No attempt was made to link W1, W2 and W3 to their case. Secondly, there was no explanation that when the successive wage revisions were taken place, the workman have received those amount without protest. Thereafter, they cannot turn back and contend that earlier batches have got certain amounts as basic pay, which was not granted to them. The employees, who were brought from outside due to there being surplus in those sugar mills also carried the last pay and in order to protect their pay and salary drawn at their parent Mill, it may so happen in some of the cases that persons having same grade drawing higher scale on the basis of the last pay certificate from the parent sugar mill. Such a direction was issued by the Committee constituted to go into the working condition of the sugar mills. In the absence of the petitioner union and the interested workmen proving to the satisfaction of the Labour court that there was real injustice done to them and there was gross inequality between the two identical set of workmen, the court cannot interfere with the award of the Labour Court.
12. Mr.R.Muralidharan, learned counsel for the petitioner union placed reliance upon the judgment in the case of Bhagwan Dass and others Vs. State of Haryana and others reported in 1998 Vol.1 L.L.N. 1 for contending that in case of discrimination in the scale of pay, constitutional principle enunciated in Article 39-D will apply. Therefore, the Labour Court was wrong in rejecting their case.
13. First of all, in the claim statement made by the petitioner union, no such constitutional right has been claimed. Even otherwise, the principle under Article 39-D will apply only in case of the State or State instrumentality under Article 12 of the Constitution. This Court already held by a Larger Bench of this Court reported in 2006 (4) CTC 689 (Marappan, K. -vs- The Deputy Registrar of Co-operative Societies, Namakkal) that the Cooperative society is neither the state nor was instrumentality of the State. In fact in the absence of any statutory obligation, the Larger Bench has held that the writ petition itself will not be maintainable. Even in the absence of the right under Article 39-D of the Constitution read with Article 14, the Labour court has power to go into the fairness in the treatment of two set of workers. But in the absence of materials, the Labour court cannot take up the role of granting relief to the workers. Further the judgment in the case of Bhagwan Dass (cited supra) came to be reversed by the subsequent judgment of the Supreme court and the Supreme court in more than one decision has held that there cannot be arithmetic precision in the matter of fixation of pay. Therefore, there cannot be any mechanical application in such concepts.
14. Though the petitioner union had the opportunity to prove their case, they failed to do so. In the counter affidavit filed by the first respondent, in paragraph 4, it was averred as follows:-
" The petitioner-Sangam did not choose to file any document but had examined 2 witnesses on its behalf viz., the employees of the Sugar Mills who were the members of the petitioner Sangam. On the other hand, the management had filed 4 Exhibits on its behalf to bring on record the fixation of pay to its employees were justified and one witness was examined on behalf of the management to speak about the correctness of the proceedings issued by the management. Elaborate consideration of evidence let in by the petitioner's witness was made and by a clear consideration of the exhibits filed by the management the Hon'ble Court arrived at a categorical finding that the fixation of pay granted to the said R.Vijayan was certainly different for the reason that had joined the service much earlier than the petitioner-Sangam members and had further held that after fixation of pay, the members of the petitioner-Sangam had chosen to receive the salary without any dispute for the last 10 years and hence held that the objection raised in the present dispute was not a bonafide one and held that factually and legally the alleged claim of difference in pay did not exist for similar employees executing similar works." This contention is well merited.
15. Under the said circumstances, this Court do not think any case made out to interfere with the award of the Labour Court. Accordingly, the writ petition stands dismissed. No costs.
nvsri To
1.The Management of M.R.K.Cooperative Sugar Mills Sethiathope, Cuddalore Dt.
2.The Presiding Officer Labour Court Cuddalore