Madras High Court
The Management Of Tamil Nadu vs The Presiding Officer on 13 September, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.09.2011 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.12371 of 2005 and Cont.P.No.1210 of 2011 WPMP No.584 of 2010 & WVMP No.63 of 2010 W.P.No.12371/2005: The Management of Tamil Nadu Coop.Milk Producers Association Ltd., Madhavaram, Chennai 51 .. Petitioner in W.P.No.12371 of 2005 Vs. 1. The Presiding Officer I Additional Labour Court Chennai 600 104 2. J.Ravi .. Respondents in W.P.No.12371/2005 Cont.P.No.1210/2011: J.Ravi .. petitioner in Cont.P.No.1210/2011 vs. Mr.Apoorva Varma, I.A.S. Managing Director Tamil Nadu Milk Producers Federation Ltd., Madhavaram Milk Colony, Chennai 51 .. Respondent in Cont.P.No.1210/2011 Prayer in W.P.No.12371/2005 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling of this records pertaining to award passed in I.D.No.585 of 1999 passed by the Presiding Officer, I Additional Labour Court, Chennai 104 on 23.3.2004 and quash the same. Prayer in Cont.P.No.1210/2011: Contempt filed under Section 11 of the Contempt of Courts Act to punish the respondent for willfully and deliberately violating the direction issued in WPMP NO.13531 of 2005 in W.P.No.12371 of 2005 dated 24.9.2010 and award costs. For Petitioner in W.P.No.12371/2005 & for respondent in Cont.P.No.1210/2011 :: Mr.P.Naryanamoorthi For 2nd Respondent in W.P.No.12371/2005 & For petitioner in Cont.P.No.1210/2011 :: Mr.Balan Haridas COMMON O R D E R
This Writ Petition is filed by the management of Tamil Nadu Cooperative Milk Producers Federation challenging the award passed by the 1st respondent Labour Court in I.D.No.585 of 1999 dated 23.3.2004. By the impugned award, the Labour Court directed reinstatement of the petitioner with continuity of service and without backwages and without other attendant benefits. Challenging the said award dated 23.3.2004, the petitioner filed the Writ Petition after a period of one year, namely, on 7.4.2005.
2. The Writ Petition was admitted on 15.4.2005. Pending the Writ Petition, this Court granted an interim stay. It was at that stage, the contesting 2nd respondent workman filed two applications, one in WPMP No.584 of 2010 seeking for a direction to pay the last drawn wages and WVMP No.63 of 2010 seeking to vacate the interim order.
3. The management filed a reply affidavit dated 30.8.2010. Except for stating that the applications were filed belatedly, they have not given any valid reasons for rejecting the applications.
4. A learned Judge of this Court after hearing the parties passed a common order dated 24.9.2010. While this Court held that the payment of wages under Section 17-B of the Industrial Disputes Act is in the nature of subsistence allowance, this Court directed the management to pay Rs.2455/- being the last drawn wages from April 2005 within 8 weeks and continue to pay the same till the disposal of the Writ Petition. There is no order passed in the vacate stay application.
5. Instead of complying with the order directing payment of wages under Section 17-B, which is in the nature of subsistence allowance, the petitioner management inordinately delayed in complying with the order, which necessitated the workman to file Contempt Petition being C.P.No.1210 of 2011.
6. When the Contempt Petition came up before this Court on 22.8.2011, on finding that the main Writ Petition itself was pending for the last 6 years and it was also desirable that the disposal of the main Writ Petition will solve the dispute between the parties, this Court directed the main Writ Petition to be listed for hearing. Accordingly, the main Writ Petition was taken up with the consent of the parties.
7. The facts leading to the filing of the Writ Petition are as follows:
(7.i) The 2nd respondent workman was engaged as Heavy Vehicle Driver in the Transport Department of the petitioner management from March 1986. He had absented himself from duty and therefore a memo was given to the workman on 18.10.1994, 222.1995 and 16.8.1995. The 2nd respondent by a letter dated 25.7.1995 informed the management that he has become addicted to liquor and he has reformed himself and because of this reason, he could not come to work and he has assured that in future he will not take unauthorized leave. He had also stated that in future if there is any recurrence of such consumption of liquor, he can be removed from service. He also sent a letter dated 10.7.1996 stating that he was deprived and he also had taken leave without advance intimation. Therefore, he regretted for his conduct and requested to allow him to report for work.
(7.ii) Notwithstanding his communication, a charge memo dated 6.10.1995 was given to the petitioner. Subsequently, domestic enquiry was conducted and the enquiry officer gave a report dated 6.12.1996 and further show cause notice was given to him on 18.11.1997. The 2nd respondent submitted his explanation on 12.2.1997. Not satisfied with the explanation, he was dismissed from service on 9.11.1998. It was thereafter the 2nd respondent raised an industrial dispute before the Conciliation Officer and as he could not bring about the mediation, the Conciliation Officer gave a failure report. On the strength of the failure report, the 2nd respondent filed a claim statement dated 9.7.1999 before the 1st respondent Labour Court.
(7.iii). The Labour Court took up the dispute as I.D.No.585 of 1999 and ordered notice to the petitioner management. The petitioner management filed a counter statement dated 28.6.2000. Before the Labour Court, no oral evidence was let in by the parties. The domestic enquiry proceedings was filed by the petitioner management and they were marked as Ex.M.1 to M.14.
(7.iv) On the basis of these materials, the Labour Court framed 3 issues. The first issue was whether the charges dated 6.10.1995 framed against the petitioner were proved and if so, whether the punishment of removal from service is proportionate to the charges. The second issue was whether the 2nd respondent was entitled to reinstatement with continuity of service and other attendant benefits. The third issue was to what relief the 2nd respondent is entitled to.
(7.v) The Labour Court found that the enquiry conducted against the workman was in accordance with the principles of natural justice and there was no ground to interfere with the findings recorded by the enquiry officer. But on the question of penalty imposed on the 2nd respondent, the Labour Court found that in Ex.M.13, namely, the explanation submitted to the second show cause notice, the workman had stated that he had given medical certificate for the period of absence. But the Medical Board did not give any opinion as the said Certificates were given belatedly. Therefore, the Labour Court found that this was not a case of deliberate absence and for imposing major penalty of removal, it was clearly disproportionate. The Labour Court also held that no doubt the absence may disrupt the activities of the Federation. In the absence of clear cut proof that the petitioner's absence had actually disrupted any damage to the activities of the Federation, the Court exercising its power under Section 11-A of the Industrial Disputes Act interfered with the penalty. But, at the same time for raising the dispute, on the question of unauthorised absence, the Labour Court was not willing to offer backwages from the date of dismissal, namely on 9.11.1998 till the date of passing of the award dated 23.3.2004.
(7.vi) It is in that view of the matter, the Labour Court passed the award for the reinstatement of the workman without backwages and without attendant benefits but with continuity of service.
8. The Labour Court held that in case of proved misconduct, there is no question of interference with the penalty under Section 11-A of the Industrial Disputes Act. However, the Labour Court placed reliance upon the judgment of this Court in T.Muthusamy vs. Presiding Officer, Labour Court, Coimbatore and another reported in 1991 (2) LLJ 405 for holding that ultimately the power under Section 11-A of the Industrial Disputes Act will have to be exercised by the adjudicating authority and if the power is exercised properly, then the question of interfering with the same in sitting a jurisdiction under Article 226 of the Constitution may not arise.
9. In the present case, the Labour Court had taken note of all the relevant facts and exercised its power. It is not a case of involvement of moral turpitude or case of dishonest conduct in the business of the employer. The 2nd respondent workman in his reply to the second show cause notice in Ex.M.13 had clearly provided the Medical Certificate, which the employer is bound to consider, notwithstanding the fact that the Medical Board did not give any opinion.
10. Further, the Labour Court also held that there was no clear case of any actual disruption proved due to the 2nd respondent's absence. Further, the 2nd respondent's explanation submitted as Ex.M.4 and Ex.M.6 clearly shows the remorse in his earlier conduct. Therefore, the management instead of doing retributive justice, should have accepted the explanation of the 2nd respondent, who had promised to turn a new life by giving up his addiction to liquor.
11. In any event, since the Labour Court considered all the relevant facts and exercised the jurisdiction and also deprived the backwages for the period form November 1998 to April 2004, for a period of 6 years, this Court is not inclined to interfere with the impugned award. The Writ Petition deserves to be dismissed.
12. Before the dismissal, one other fact should be pointed out that the management unreasonably refused to implement the direction for grant of last drawn wages in terms of Section 17-B of the Industrial Disputes Act. This was despite the fact that this Court in the interim order dated 24.9.2010 referred to the provisions of Section 17-B and also referred to the judgment of the Supreme Court in Dena Bank vs. Ghansyham reported in (2001) 5 SCC 169. The Supreme Court took pains to explain the object behind Section 17-B of the Industrial Disputes Act and also held that the payment under Section 17-B is in the form of subsistence allowance and the court must adopt a realistic approach in the grant of wages under Section 17-B.
13. The learned counsel for the petitioner submitted that subsequent to the order passed by this Court, the Federation engaged the Vigilance Department to make a discreet enquiry to find out as to what the 2nd respondent was doing. According to the so-called Vigilance Report, it was found that he was working as a Laundry Assistant on daily wages basis in the address at No.7/134, 54th Street, 'A' type Sidco Nagar, Villivakkam, Chennai 49. Though the report had stated that he was working as a Laundry Assistant, it was only for a period of 14 years. So, it was presumed that all the 14 years he was employed.
14. It must be noted that the 2nd respondent workman filed an application in W.P.M.P .No.584 of 2010 supported by a counter affidavit dated 27.3.2010. He had stated that he was ready and willing to work in the petitioner Federation. He was without any employment since the date of his non-employment. The petitioner Federation filed a counter statement on 30.8.2010 and this fact of the 2nd respondent's non-employment was not denied. The only contention raised was that the application for payment under Section 17-B was belated. This Court rejected the case of the petitioner Federation and ordered payment under Section 17-B of the Industrial Disputes Act. This Court also referred to the legal provision under Section 17-B. The proviso to Section 17-B extracted in the order would have shown the management that in case the workman was employed and was receiving adequate remuneration during the period of non-employment, the Court shall order no wages under Section 17-B. Since no such defence was taken before this Court and no application for modification was made till date and even after filing of the Contempt Petition, the Federation has not moved any such application, this Court has no hesitation to reject the stand of the Federation about the so-called gainful employment of the 2nd respondent.
15. It must be noted that since the year 1998 till the date of passing of the award in the year 2004, one is not expected to live with air and water and if one has to live, he has to keep body and soul for fighting the right for employment. Even after filing of the Writ Petition, when the 2nd respondent has sworn to an affidavit that he was not employed elsewhere, it means that he was not in any gainful employment. Even in the matters under section 17-B of the Industrial Disputes Act, this Court and the Supreme Court on several times pointed out that engaging in some petty avenues such as working as a milk man or as a tea-shop Assistant cannot be held to be gainfully employed so as to deprive the backwages payable to the workman.
16. However this Court is not inclined to punish the petitioner Federation for willfully disobeying the order of this Court especially in view of the fact that the main Writ Petition itself is disposed of today. Hence, this Contempt Petition is closed without any further orders.
17. But at the same time, without driving the 2nd respondent for any further computation, this Court itself decides the fixation of backwages payable to the 2nd respondent. Since the workman never filed any cross Writ Petition, the backwages payable is only from April 2004 till September 2011 for a period of 90 months. If the backwages are calculated at the rate of his last drawn wages, namely Rs.2455/-, the backwages works out to Rs.2,20,950/-. Since the last drawn wages are only taken into account and the Labour Court has deprived the attendant benefits, this Court is not inclined to interfere with the same.
18. Therefore, while dismissing the Writ Petition and confirming the award, this Court directs the petitioner Federation to pay a sum of Rupees two Lakhs as backwages to the 2nd respondent. It shall be paid within 12 weeks from the date of receipt of a copy of this order. The calculation of backwages was made so that the worker need not be driven to another forum especially considering that his non-employment had lasted for 13 years. However, the parties are allowed to bear their own costs. The connected Miscellaneous Petitions are closed.
19. In the result, the Writ Petition is dismissed with the above directions. The contempt Petition stands dismissed.
ajr To
1. The Presiding Officer I Additional Labour Court Chennai 600 104