Madras High Court
T.Selvan vs Labour Court on 13 February, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.02.2012 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.Nos.13038 to 13054 of 2004 and 25700 of 2007 W.P.No.13038 OF 2004 T.Selvan .. Petitioner Vs. 1. Labour Court Coimbatore 2. The Management of Coimbatore Pioneer Mills Ltd., Unit II Jothipuram Post Periyanaickenpalayam Coimbatore 641 047 .. Respondents Prayer in W.P.No.13038 of 2004: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records from the file of 1st respondent in I.D.No.349 of 1999 dated 6.10.2003 and quash the same and further direct the 2nd respondent to reinstate the petitioner with continuity of service and back wages. For Petitioner :: Mr.Su.Srinivasan for Ms.Vanathi Srinivasan For Respondent-2 :: Mr.D.Balaraman COMMON ORDER
In all these Writ Petitions, the petitioners were workers employed by the 2nd respondent Coimbatore Pioneer Mills Limited, Unit II at Periyanaickenpalayam. The Writ Petitioners have challenged a common award passed by the Labour Court, Coimbatore in I.D.No.349, 438, 459, 412, 364, 441, 445, 443, 469, 429, 414, 458, 446, 386, 409, 378 and 377 of 1999 dated 6.10.2003. Though the Common Award referred to non-employment of 126 workers, only 79 petitioners are before this Court. The first batch of Writ Petitions were admitted on 30.4.2004. Subsequently, in 2007 one V.Palanisamy and 61 other workers have filed W.P.No.25700 of 2007. When that Writ Petition came up for hearing, this Court having found the earlier batch of Writ Petitions and are still pending, directed all the connected Writ Petitions to be posted before this Court to be heard along with that Writ Petition. Accordingly, all the Writ Petitions were grouped together and a common order is passed.
2. For the sake of convenience, the parties are referred to workmen or the management as the case may be.
3. The circumstances that led to raising of the dispute are as follows:
Admittedly the management employed over 300 workers as Apprentices to the 2nd respondent in the Textile Industry. The management became the sick industry and the matter was referred to BIFR for framing the rehabilitation scheme. According to the management, no production took place from February 1998, as revealed from the letter of the Assistant Commissioner of Labour dated 8.9.1998 marked as Ex.M.8 before the Labour Court. The content of the management before the Conciliation Officer was that due to suspension of operation of the machineries, apprentice trainees were also affected. Even the permanent employees were given no work on the principle of 'no work no pay'. It was subsequent to the normalization of the situation, when the Mill was opened, the apprentice trainees never reported for training.
4. It transpires that an industrial dispute was raised by the trade Union under Section 2(k) of the Industrial Disputes Act representing 233 apprentices. According to the management, 80 of those apprentices have come back for training and even though there was work, they underwent training. But, in respect of the 126 workers covered by the impugned award, their stand was that subsequent to the suspension of operation, they never reported for work and the question of terminating their service does not arise, as they themselves have stopped from work.
5. The stand of the workmen before the Conciliation Officer was that it was wrong on the part of the management to state that they were absent. In fact, with effect from 7.05.1998, they have not been given any work and they were orally informed that their services are no longer required. When they asked for written letter to that effect, the management did not give any such letter to any one of the workers and it was wrong to contend that they were trainee apprentices.
6. In fact, when the advice was given by the Conciliation Officer, even during the pendency of the dispute, when the workmen went for work, they were denied employment and they were also informed that they were no longer required for the service of the management. Even though they raised a dispute immediately, the Conciliation Officer deliberately with the understanding of the management delayed in conducting conciliation. The workers have been earlier given a promise at the time of their training that they will be taken in the regular employment.
7. Apart from the industrial dispute, another trade union, comprising the present workers raised an industrial dispute under Section 2-A(2) of the Industrial Disputes Act before the Assistant Commissioner of Labour-II, Coimbatore. The Conciliation Officer, as he could not bring about mediation, gave a failure report during March 1999. On the strength of the failure report, at once the workers filed a Claim Statement before the Labour Court, Coimbatore. The Dispute was taken on file as I.D.No.345 OF 1999 etc., batch of cases.
8. Notices were issued to the management. The management filed a counter statement stating that the workmen did not come to work for 24 days in a month and their work was unsatisfactory. During the period of suspension of operation, due to financial crisis, no training was permissible. But, after 7.5.1998, they did not come to work. The proceedings before BIFR were still continuing and the management started to give work to the permanent workers and even the trainees came to work. It is only because they refused to come to work, the situation arose and hence there was no case for any non-employment.
9. Before the Labour Court, all the disputes were grouped together and joint trail was conducted. In the joint trial, on behalf of the workmen, one Chandrasekaran was examined as W.W.1 and Muthukumarasamy was examined as W.W.2. On the side of the workmen, 17 documents were filed and marked as Ex.M.1 to Ex.M.17. On the side of the management, M/s.Jeyaprakash and D.Mahesh were examined as M.W.1 and M.W.2 and 18 documents were filed and marked as Ex.M.1 to Ex.M.18.
10. Before the Labour Court, a major attempt was taken by the management to prove that subsequent to their not coming to work, they have indulged in number of illegal and criminal activities including obstructing the willing apprentices from coming into mills, which led to filing of a criminal case before the police.
11. The Labour Court instead of finding as to whether the workers have stopped from coming to work with effect from 7.5.1998 or whether the employment denied employment from joining their duty and without considering as to what relief the workers are entitled to, went off on a tangent and found that stand of the management that they have never stopped the workers from coming to work, was acceptable and their subsequent indulgement in criminal activities. One of the labourers by name Kandasamy has given a letter of undertaking that he will not indulge in any such activities, which was marked as Ex.M.15. Therefore, not only the workers are not terminated from service, but it is only because the workmen's conduct in not coming to work despite notices were issued to them, which were marked as Ex.M.14, Ex.M.16 and Ex.M.16 to escape no,-employment of the workers. It is in that view of the matter, the Labour Court held that the workers are not entitled for any relief.
12. There is nothing on record to show that there was a promise that subsequently they would be taken as permanent workers. Hence they can not demand any employment after the training period is over. The contention of the workers that since they have joined the Bharathiya Mazdoor Sangam, they were victimized, was also proved. The letter written by the Union addressed to the management itself shows that they were happy to inform the management and no union will represent in such letter expressing happiness on the management in the particular event that the workers also subsequently stopped the other willing workers to report for work. The Subsequent act, it appears that as narrated by the management, will also disentitle the workers from claiming any relief. Hence, in that view of the Labour Court recorded a finding that there is no material to warrant that the workmen have been terminated from service with effect from 7.5.1998 and hence the workmen are not entitled for any relief. Challenging this common award, the Writ Petitions came to be filed by these workers.
13. The contention raised by the workmen was that the workmen sent letters through the trade union on 18.6.1998, 16.9.1998, 5.4.1999 and 10.5.1999, requesting the management to allow the workers to report for work. However, the management selectively sent letters to few workers to report for work. Thus, the letters dated 4.31999, 16.3.199, 17.4.1999 and 20.5.1999 were addressed to the workers. The workers through their trade union also undertook hunger fast demanding job for all the terminated workers. In the letter referred to by the management, the trade union casually started in a formal way of addressing that they were happy to inform the management that number of workers, if they are willing to join, may be taken and that the union was in the habit of relationship with the management. The Labour Court has erroneously construed the said letter and no trade union in any letter addressed to the management can ever offer to use a harsh language and formal language was found in the said letter. No significance can be attributed to the usage of term "happy to announce". It is also contended that when their life and death are at stake, it can never be indifferent to report for work. Even the management have prevented the workers from coming to work.
14. In the common counter affidavit filed by the management dated 12.2.2012, it was stated that during the period of suspension of operation, there was denial of training, as found in paragraph 16, which is as follows:
"16. I submit that suspension of operations of the machineries was the root cause for our inability to provide training and that has been cashed in on by the petitioners alleging the same as our refusal to provide training, when factually, there was no refusal to provide training or punitive action by the 2nd respondent."
15. The question is that subsequent to the suspension operation, whether all the workers in these Writ Petitions were addressed by the management to come for duty. On the other hand, a perusal of the documents shows that there was no such communication sent to the present petitioners when the situation has been made and therefore the workmen can come back for their alleged work. It is immaterial that subsequent to the apprentice period, whether they have been given any assurance of their employment as that arose in this dispute regarding the non-employment of the individual dispute by Section 2-A(2) of the Industrial Disputes Act. The termination of the workmen as evidenced under Section 2(s) of the Industrial Disputes Act includes even the apprentice. Therefore, there is no dispute that the workmen are covered by the provisions of the Industrial Disputes Act. In this case, the only issue before the Labour Court was that whether on 7.5.1998 the workers denied employment or from 7.5.1998, the management stopped them from coming to work.
16. Admittedly, the management is covered by the provisions of Chapter V-B of the Industrial Disputes Act in which case they could lay-off or retrenchment or closure, which requires prior permission of the appropriate authority constituted under the State Government. In this case, the suspension of operation was followed by the rehabilitation of BIFR scheme, at the same time that the mill, which is having around 300 apprentices, was likely to stop them to work. Therefore, what is extracted in paragraph 16 of the counter clearly shows the starting point that subsequent to the suspension of operation of the mill, the workmen were given training even assuming that they were apprentices. Once, according to the management, the situation has arisen, the management ought to have informed each of the workers that there is likelihood of resumption of work and they should report for work. On the other hand, the Labour Court merely referred to four Exhibits addressed to four individuals as a proof of requesting them to come to work.
17. The contention raised in the affidavit that all the workers are not asked to come to work, only shows that selective invitation was made by the management for coming to work. In the said circumstances, the fact that subsequent to their denial of employment, there were certain activities, which are not likely to the management, cannot be a ground to deny the relief to the workmen, though such things can have some bearing on the nature of relief to be given. In this case, the Labour Court was fully clouded with fact of the subsequent event and the Labour Court must improve on the point, which was the root cause for the non-employment of the workers. Even subsequent to their non-employment, if there is any criminal activity, the Labour Court should have given the finding specifically as to which of the workers who are responsible for such activities, which disabled them from claiming any relief.
18. The Supreme Court vide its judgment in Gujarat Steel Tubes Ltd., vs. Gujarat Steel Tubes reported in AIR 1980 SC 1896 has held that there cannot be any collective misconduct and the misconduct has to be individual.
19. In the pleading filed before the Labour Court, there was no such pleading that as to which of the worker, who was responsible for any criminal intimidation. On the other hand, even the criminal case filed against six workers lead by one S.Saravanan ended in acquittal. If it is once held that the denial of employment was due to the action of the management, certainly the workers are entitled for appropriate relief.
20. In the present case, both sides have admitted that the Unit No.2 has been closed. In fact, this Court had an occasion to consider the claim made by the Provident Fund Department as against Unit-II, wherein the Mill management agreed to sell away the machineries attached to Unit No.II to satisfy the claim made by the Provident Fund Department. When subsequently some of the workers represented by Union, questioned the same, that application was rejected by stating that the Mill management has agreed to employ the regular workers from Unit No.2 to Unit No.1 and that affidavit of undertaking was also recorded by the Court. Therefore, this Court do not think, in view of the subsequent development, that the matter should be remanded to the Labour Court for fresh disposal, since there are serious flaws in the Award passed by the Labour Court, Coimbatore. But, at the same time, if the factum of closure is coming to prove, the question of the workers being taken on employment either as Apprentice or in regular capacity will not arise. The Labour Court in this case had recorded that there was no material to prove that there was any promise of regular employment to the workers.
21. Even under the background of these facts, what nature of relief is to be given to the workers. However, on account of suspension of operation, the petitioners have not been given training and thereafter there was no direction to the workers to resume duty or for apprentice or in what capacity, it has to be presumed. In fact, there was a termination and the termination was not preceded by any notice for any reasonable cause or for any any punishment given for any kind of misconduct. Even all other events listed out came subsequent to the non-employment and for which there was no specific overt act attributed against any of the workers involved in the criminal activities.
22. Under the circumstances, this Court presumed that on 7.5.1998 the workers were denied employment and it will amount to termination and that they are eligible for appropriate retrenchment compensation under Section 25-F of the Industrial Disputes Act. Instead of further directing the workers to move the Labour Court to compute the amount, in order to fulfill the demand of the workers, it is hereby ordered that each of the workers covered by the industrial dispute are entitled to six months wages, considering that they have worked for three years as apprentices approximately. Hence, the impugned award stand set aside in respect of these petitioners and the 2nd respondent management is directed to pay each one of the workers covered in these Writ Petitions, six months wages as compensation, in view of their names involved in the dispute. All the Writ Petitions are disposed of accordingly. No costs.
13.02.2012 Index:Yes Internet:Yes ajr To
1. Labour Court Coimbatore K.CHANDRU,J ajr W.P.Nos.13038 to 13054 of 2004 and 25700 of 2007 13.02.2012