Madras High Court
A. Pichai Nadar vs The Presiding Officer Labour Court, ... on 22 February, 2002
Equivalent citations: [2002(94)FLR182]
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioner joined as unskilled labour on 26.11.81 in the second respondent management, Khadi and Village Industries, Nagercoil, Kanyakumari District on a monthly salary of Rs.750/- plus Rs.90/- as Dearness Allowance. When the petitioner reported duty on 3.2.87, he was denied employment without any reason. Hence, the petitioner raised an industrial dispute against his non-employment which was adjudicated by the Labour Court, Madurai in I.D.No.539 of 1991 which was later transferred to the Labour Court, Tirunelveli in I.D.No.496 of 1992. The Labour Court framed the following issues for its consideration:-
1.Whether the Khadi and Village Industries is an "Industry" under the Industrial Disputes Act? and
2.Whether the non-employment of the petitioner from 3.2.87 was justified, and if not, what relief the petitioner was entitled to?
2. Insofar as the second issue is concerned, the Labour Court on merits came to the conclusion that the non-employment of the petitioner was illegal and consequently held that the petitioner was entitled to be reinstated with back-wages and other benefits. However, the Labour Court did not pass an award for reinstatement of the petitioner on the ground that the Khadi and Village Industries is not an "Industry" as defined under Section 2(j) of the Industrial Disputes Act, 1947. It is against this award of the Labour Court holding that the Khadi and Village Industries is not an "Industry", the present writ petition has been filed by the employee.
3. Learned counsel for the petitioner brought to my notice that the said conclusion was arrived by the Labour Court that Khadi and Village Industries is not an "Industry" based only on the definition of Section 2(j)(5) of the Industrial Disputes Act as amended by Amendment Act 46 of 1982. The said amendment has not come into force even today much less the date of the award. Therefore, the learned counsel submitted that the finding of the Labour Court that Khadi and Village Industries is not an "Industry" as the same has been excluded by the above amended section is not correct. In support of the said submission, the learned counsel brought to my notice the observation of the Supreme Court made in the judgment reported in "1998 (I) LLJ 817 (ALL INDIA RADIO v. SHRI SANTOSH KUMAR AND OTHERS)" wherein the Supreme Court had also an occasion to consider as to whether the amended Act 46 of 1982 has come into force or not and held that the amendment to Section 2(j) has not come into force and so long as the amending definition has not come into force, it must be held that the appellants (viz., All India Radio) therein are industries within the meaning of Section 2(j). The learned counsel also brought to my notice a similar observation made by a learned single Judge of this Court in the judgment reported in "1996 (I) LLJ 20 (THE MANAGEMENT OF STATE FARMS CORPORATION OF INDIA LTD., MELCHENGAM WEST POST, MELPALLIPATTU v. THE PRESIDING OFFICER, SECOND ADDL. COURT, MADRAS AND OTHERS)". The learned Judge in paragraph 9 of the said judgment has observed that the said amendment Act 46 of 1982 has not come into force. The learned counsel submitted that once it is held that the amendment has not come into force, the second respondent has to be considered as "Industry" within the definition of Section 2(j) of "the Act" and the petitioner is entitled to be reinstated into service with back-wages as held in the award.
4. The learned counsel for second respondent on the other hand, would contend that the respondent Khadi and Village Industries is not an "Industry" by virtue of the exclusion by amendment to Section 2(j) of Act 46 of 1982. Therefore, the finding of the Labour Court is assailable.
5. I have given my due consideration to the respective submissions of the learned counsel. After considering the observations made by the Supreme Court and the learned single Judge of this Court in the judgments referred to above, it is clear that the amendment has not been notified and has not come into force on the date when the dispute was raised and when the award was passed on 24.1.97. The learned counsel for the second respondent is also not in a position to substantiate the stand that the said amendment has come into force. When the respondent Khadi and Village Industries was not excluded from the definition of Section 2(j) of the Act, reliance placed on Section 2(j) as amended under Amendment Act 46 of 1982 which has not come into force, is erroneous and such finding cannot be sustained in the eye of law. Therefore, the finding of the Labour Court that the respondent Khadi and Village Industries is excluded from the definition of Section 2(j) of the Industrial Disputes Act as the same has been excluded by amendment Act 46 of 1982 cannot be sustained and accordingly, the said finding is set aside.
6. Once the said finding is set aside, it is to be now seen as to what relief the petitioner is entitled to. While dealing with the second issue framed by the Labour Court as to whether the non-employment of the petitioner was justified or not, the Labour Court had in fact taken into note of the fact that in the event the award is challenged by way of writ petition in the High Court, and in the event the High Court comes to the conclusion that the Khadi and Village Industries is also an "Industry" as defined under Section 2(j) of the Industrial Disputes Act, to avoid the matter being remanded, the matter could be decided on merits. In view of the above, the Labour Court went into the merits of the case and finally had come to the conclusion that the non-employment of the petitioner was bad and he was entitled to reinstatement. The said portion of the award has not been challenged by the Khadi and Village Industries, the second respondent herein by way of any writ D. Murugesan, J.
petition and therefore, the said finding has become final. In view of the same, there is no purpose in once again remanding the matter only for the purpose of formal issue of award by the Labour Court. To render substantial justice, this Court by exercise of the powers under Article 226 of the Constitution of India can issue suitable directions which would be in conformity with the award instead of remanding the matter again to the Labour Court only for issue of formal award. In that view of the matter, the petitioner is entitled to the benefit of the award of reinstatement with continuity of service along with back-wages and other benefits. Accordingly, there will be a direction to the second respondent Khadi and Village Industries to reinstate the petitioner with back-wages, continuity of service and other benefits from the date when the petitioner was refused employment i.e. from 3.2.97. With the above direction, the writ petition is allowed. No costs.