Disposed

M.Ponnusamy, v. the Presiding Officer

Madras HC29 Jun 2017WP/27593/2010

Case brief

AI extract

What is this about?

Disengaged canteen workers sought reinstatement and backwages on parity with co-workers. The Court declined identical relief but modified the Labour Court award to enhance compensation for each petitioner, deducting compensation already received and directing payment within twelve weeks.

What did the court decide?

Enhanced compensation to each petitioner, less compensation already received, payable within twelve weeks of receipt of the order; Labour Court award modified.

M.Ponnusamy, Vs the Presiding Officer — Labour and Industrial Disputes | Madras HC (2017)

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Order Reserved on : 02.12.2016

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Order Delivered on :29.6.2017

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 29.6..2017

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CORAM :

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THE HONOURABLE MR. JUSTICE R.SURESH KUMAR

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W.P.NOs.27593, 27735, 27878, 29100

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and 29157 of 2010

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M.Ponnusamy .. Petitioner in W.P.No.27593 of 2010
2. L. Rathinam .. Petitioner in W.P.No.27735 of 2010
3. K.Raghunathan .. Petitioner in W.P.No.27878 of 2010
4. P.Velu .. Petitioner in W.P.No.29100 of 2010
5. P.Sekar .. Petitioner in W.P.No.29157 of 2010
Vs.
1. The Presiding Officer,
Labour court,
Salem – 636 007.
2. The Management of
Tamil Nadu State Transport Corporation Ltd.,
Rep. By its Managing Director,
Ramakrishna Road,
Salem 636 007.

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... Respondents in all Writ Petitions

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Prayer in W.P.No.27593 of 2010 : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, after calling for the records relating to the common award passed in I.D.No.45 of 1999 dated 16.02.2005 on the file of Labour Court, Salem and quash that portion of the said Award dated 16.02.2005 which denies the normal relief of reinstatement with continuity of service and backwages and attendant benefits in so far as it relates to I.D.No.45/1999 of the petitioner and consequently direct the 2^nd respondent to reinstate the petitioner in service with continuity of service and other benefits and award costs.

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Prayer in W.P.No.27735 of 2010 : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, after calling for the records relating to the common award passed in I.D.No.40 of 1999 dated 16.02.2005 on the file of Labour Court, Salem and quash that portion of the said Award dated 16.02.2005 which denies the normal relief of reinstatement with continuity of service and backwages and attendant benefits in so far as it relates to I.D.No.40/1999 of the petitioner and consequently direct the 2^nd respondent to reinstate the petitioner in service with continuity of service and other attendant benefits and award costs.

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Prayer in W.P.No.27878 of 2010 : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, after calling for the records relating to the common award passed in I.D.No.43 of 1999 dated 16.02.2005 on the file of Labour Court, Salem and quash that portion of the said Award dated 16.02.2005 which denies the normal relief of reinstatement with continuity of service and backwages and attendant benefits in so far as it relates to I.D.No.43/1999 of the petitioner and consequently direct the 2^nd respondent to reinstate the petitioner in service with continuity of service and other attendant benefits and award costs.

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Prayer in W.P.No.29100 of 2010 : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, after calling for the records relating to the common award passed in I.D.No.44 of 1999 dated 16.02.2005 on the file of Labour Court, Salem and quash that portion of the said Award dated 16.02.2005 which denies the normal relief of reinstatement with continuity of service and backwages and attendant benefits in so far as it relates to I.D.No.44/1999 of the petitioner and consequently direct the 2^nd respondent to reinstate the petitioner in service with continuity of service and other attendant benefits and award costs.

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Prayer in W.P.No.29157 of 2010 : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, after calling for the records relating to the common award passed in I.D.No.55 of 1999 dated 16.02.2005 on the file of Labour Court, Salem and quash that portion of the said Award dated 16.02.2005 which denies the normal relief of reinstatement with continuity of service and backwages and attendant benefits in so far as it relates to I.D.No.55/1999 of the petitioner and consequently direct the 2^nd

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respondent to reinstate the petitioner in service with continuity of service and other attendant benefits and award costs.

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For Petitioners in all W.P.'s : Mr.S.Ayyadurai

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For Respondents : Mr.P.Paramasivadoss In W.P.Nos.27593, 27878, 29100 & 29157 of 2010

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Mr.R.K.Gandhi In W.P.No.27735 of 2010

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O R D E R

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All these five writ petitions are arising out of the common award dated 16.2.2005, given by the first respondent / Labour Court. Since the petitioners in these writ petitions have challenged the said award of the first respondent and the prayer herein are also one and the same, these writ petitions were grouped together and heard as a batch of petitions and being disposed of by this common order.

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The common factors of all these cases, as culled out from the respective affidavits filed in support of the writ petitions, are as follows:

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(i) That the second respondent had been running canteens for its employees at the Head Office at Salem and in Attur, Johnsonpet, Rasipuram, Erumapalayam, Namakkal, Tiruchengode, Edappadi and Mettur.

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(ii) There were about 125 employees engaged by the second respondent to work in these canteens which include the petitioners herein. These petitioners had joined in service as canteen employees between the year 1983 and 1987. Initially, a monthly consolidated wage at the rate of Rs.5 per day was fixed and paid to these petitioners.

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(iii) Though these petitioners had been working for some years ranging from 3 to 6 years, the second respondent, though the services of the petitioners were very much required, had not come forward to make these petitioners as the permanent employees. In other words, the services of the petitioners, though required to continue at the canteens run by the second respondent, the services had not been regularised for several years.

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(iv) In this regard, the further case of the petitioners is that, even though, there was a 12(3) settlement under the Industrial Dispute Act (hereinafter referred to as I.D. Act), dated 28.9.1989, to which, the second respondent is also a party, and by thus, the second respondent had been committed to confirming the services of the unconfirmed canteen employees retrospectively from the year 1986 or from the date of their initial engagement, the second respondent continued to practice the unfair labour practice by not confirming the services of the petitioners.

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(v) While so, to the utter shock and dismay of the petitioners, the second respondent abruptly had disengaged from 01.3.1990, the services of the petitioners. Though the petitioners had completed more than 480 days of continuous service in the given period, without confirming their services, such abrupt disengagement was made. Further, before terminating the services of the petitioners, the second respondent Management did not comply with the mandatory requirement under Section 25 F and 25 N of the I.D. Act.

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(vi) As the said provisions of the Act require the Management to give prior notice to the workmen and to get the permission of the appropriate Government and for payment of compensation, nothing had been followed by the second respondent and when this action on the part of the second respondent was questioned by the petitioners, no fruitful reply had come from the second respondent / Management.

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(vii) Thereafter, though these petitioners had sent individual request to the second respondent / Management to take them back for the jobs at the canteens run by them, the said request of the petitioners had not been considered or acceded to.

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(viii) Having aggrieved by the said inaction on the part of the second respondent / Management, the petitioners having found no alternative option, had approached this Court by filing writ petitions in the year 1990. Those writ petitions were dismissed by the order of this Court dated 20.1.1998 on the ground, that the petitioner's can seek remedy under the I.D. Act, by raising appropriate industrial dispute.

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(ix) Pursuant to the said dismissal of the writ petitions, these petitioners had approached the first respondent / Labour court by raising industrial dispute, after conciliation proceedings ended in failure. Along with these petitioners, some more similarly placed workmen also raised similar ID before the first respondent. There were 23 workers including the petitioners, who had raised separate IDs and all those industrial dispute cases were heard together and decided by a

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common award dated 16.2.2005, passed by the first respondent.

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(x) In the said common award, the first respondent, though found that the termination or disengagement of the services of the petitioners were not in consonance with the provisions of the ID Act, instead of ordering reinstatement with backwages to the petitioners, had directed the second respondent / Management to pay a lumpsum compensation of Rs.25,000/- to each of the petitioners.

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(xi) Aggrieved by the said award of the first respondent, some of the workmen numbering 14, had filed second round of writ petitions in W.P.No.12048 of 2006. The said writ petition was finally decided by the order of the learned Judge of this Court, dated 28.7.2010. In the said order, the learned Judge after having considered the claim and counter claim of the parties and also after considering the merit of the issue, had ultimately, passed the following order:

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“ For the forgoing reasons, this writ petition is ordered in the following terms:-

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''i. The respondent is directed to give reinstatement to the petitioners, with continuity of service, however without backwages from the date of disengagement, within a period of eight weeks from the date of receipt of a copy of this order.

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ii. It is made clear that the petitioners are entitled to get backwages only from 30.10.2009.

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iii. The compensation amount paid at the rate of Rs.25,000/- to each of the petitioners can be adjusted from the arrears of backwages payable from 30.10.2009.

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iv. Consequently, connected W.V.M.P.No.8 of 2010 is closed.''

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(xii) In the meanwhile, insofar as these petitioners are concerned, since they have received a letter, dated 23.11.2005 from the second respondent, which of course pursuant to the common impugned award passed by the first respondent / Labour Court, whereby the second respondent has sent a cheque for Rs.25,000/- to each of the petitioners, as awarded by the first respondent / Labour Court. On receipt of the same and in response to the said payment along with the letter dated

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23.11.2005 from the second respondent, these petitioners had sent separate reply / communication to the second respondent stating that these petitioners have received the cheques for Rs.25,000/- each, without prejudice to their rights to file appeal against the impugned award passed by the first respondent / Labour Court. The contents of the said reply of the petitioners is extracted hereunder for better understanding:

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''Iah>

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nryk; bjhHpyhsh; ePjpkd;wk; vd;Dila tHf;fpy; mspj;j jPh;g;gpy; vdf;F U:gha; 25000/- U:gha; ,Ugj;ije;jhapuk; ecO;l <L tH';FkhW ,dp Vw;gLk; fhypapl';fspy; Kd;Dupikaspj;J ntiy mspf;FkhWk; Twpas;sJ. nkw;fz;l jPh;g;ig Vw;W jh';fs; ghh;itapy; fz;l foj;Jld; U:gha; 25000/- U:gha; ,Ugj;ije;jhapuj;Jf;fhd fhnrhiy mDg;gpapUe;jPh;fs;. Mdhy; nkw;fz;l fojj;jpy; vdf;F ntiy mspg;gJ gw;wp vJt[k; fojj;jpy; Fwpg;gplg;gltpy;iy.

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ehd; gzpe;J rkh;gpg;gJ ahnjdpy; bjhHpyhsh; ePjpkd;wk; tH';fpa jPh;g;gpy; ehd; nfhupa vdf;F cupa epahak; tH';fg;gltpy;iy. Mfnt vdf;F cupa epahak; fpilf;f nky;KiwaPL bra;a vz;zpapUe;j neuj;jpy; j';fSila fojKk; mj;Jld; ,izf;fg;gl;l fhnrhiy fpilj;jJ. ehd; ntiyapy;yhky; fcO;lg;gLtjhYk; fld; bjhy;iyfis Fiwf;f ntz;oapUe;jhYk; ehd; nkw;go fhnrhiyia vd;Dila tHf;fpy; nky;KiwaPL bra;tjw;F cupikf;F ghjfk; ,y;yhky; bgw;Wf; bfhz;nld; vd;gij gzpt[ld; bjuptpj;Jf; bfhs;fpnwd;.

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,g;gbf;F

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(xiii) Though such a right of filing appeal against the impugned award was reserved by the petitioners, while they were receiving the cheque for Rs.25,000/- from the second respondent, these petitioners had not immediately, filed any appeal by way of writ petitions, challenging the impugned award. However, after the order passed by the learned Judge in the relative writ petition filed by 14 out of the 23 workmen, who were covered under the said impugned award, these petitioners had sent a request to the second respondent / Management sometime in September and October 2010 requesting the second respondent / Management to give reinstatement to these petitioners in the line of the Judgment given by this Court in W.P.No.12048 of 2006 dated 28.7.2010 (cited supra).

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(xiv) However, the second respondent / Management, inspite of such request made by the petitioners, had given the following reply dated 15.10.2010:

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''ghh;itapy; fz;l tpz;zg;gk; bjhlh;ghf fPH;fz;l tpgu';fs; bjuptpf;fg;gLfpwJ.

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jpUthsh;fs; vk.bghd;Drhkp gp.nrfh; , gp.ntY kw;Wk; uFehjd; cs;spl;l 23 egh;fs; njhopyhsH ePjpkd;wk; nryk; Kd; bjhlh;e;j bjhHpw;jhthf;fspy; ePjpkd;wk; 16.02.2005 ehspl;l jPh;g;gpy; kDjhuh;fSf;F ,Hg;gPlhf U:gha; 25000- I tH';FkhWk; tU';fhy';fspy; cztfj;jpy; Vw;gLk; fhypg;gzpapl';fSf;F neh;Kfj; njh;t[ elj;Jk;nghJ kDjhuh;fSf;F mjpy; fye;J bfhs;s jfty; mspj;J Kd;Dupik mspf;FkhWk; cj;jutpl;lJ. mjd;go kDjhuh;fSf;F jyh U:gha; 25000/- tH';fg;gl;lJ. cztf';fspy; fhypapl';fs; Vjk; Vw;glhjjhy; gzpepakdk; bra;ag;gltpy;iy. kDjhuh;fs; kDtpy; bjuptpj;Js;sJ nghy 30.10.2009 y; 30 egh;fSf;F nfz;odpy; gzp epakdk; VJk; bfhLf;fg;gltpy;iy. hpl; kD vz; 12048/2006 d; 28.07.2010 jPh;g;g[g;go gzp tH';FkhW kDtpy; nfhug;gl;Ls;sJ . nkw;fz;l kDjhuh;fs; hpl; kD vz;: 12048 /2006 d; kDjhuh;fs; ,y;iy vd;gijj; bjuptpj;Jf; bfhs;fpnwhk;.

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(xv) In fact aggrieved by the said order of the learned single Judge in W.P.No.12048 of 2006 dated 28.7.2010 the second respondent/management had filed intra-court appeal in W.A. No.420 of 2011.

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(xvi) The said writ appeal, having been considered by the Division Bench of this Court was finally dismissed by order dated 06.08.2012. The Division Bench, while dismissing the said writ appeal filed by the second respondent, by confirming the order of the learned Judge dated 28.7.2010, has made the following observations, which is reproduced hereinunder, for better appreciation of the issue:

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“Challenging the said award, the respondents filed W.P.No.12048 of 2006 before this Court contending that similar award, ordering reinstatement without backwages passed by the

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Labour court in respect of canteen workers, was challenged by the Management by filing W.P.Nos.7830 and 8931 of 1998 and the said award was confirmed by this Court by order dated 5.6.2007. Thereafter, the said Workmen viz., T.Shanmugam and P. Ramalingam were given appointment orders on 19.7.2010 by implementing the said award. It is also contended that though the Labour Court directed the Management to give preference to the respondents, the same was not implemented by the Management. However, the Management appointed 30 persons in the canteen as Helpers with effect from 30.10.2009.

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Learned single Judge, after considering the facts and circumstances of the case, passed an order dated 28.7.2010, as follows:

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For the foregoing reasons, this writ petition is ordered in the following terms:-

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i. The respondent is directed to give reinstatement to the petitioners, with continuity of service, however without backwages from the date of disengagement, within a period of eight weeks from the date of receipt of a copy of this order.

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ii. It is also made clear that the petitioners are entitled to get backwages only from 30.10.2009.

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iii. The compensation amount paid at the rate of Rs.25,000/- to each of the petitioners can be adjusted from the arrears of backwages payable from 30.10.2009.

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iv. Consequently, connected W.V.M.P. No.8 of 2010 is closed.

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v. No costs.

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Challenging the same, the present writ appeal has been filed by the appellant-Management.

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Heard the learned counsel appearing for the appellant.

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It is not in dispute that similarly placed employees were reinstated by the appellant-Management. However, the respondents were not considered while making fresh appointment of thirty persons on 30.10.2009. Learned single Judge was of the view that the Labour Court has not considered the matter properly and granted the relief referred to above. We are in entire agreement with the view taken by the learned single judge. The Writ appeal fails and the same is dismissed. Consequently, the connected M.P. is also dismissed. However, there shall be no order as to costs.”

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(xvii) It is informed by the learned counsel for the petitioners that, as against the said Judgment of the Division Bench (cited supra), no further appeal has been preferred and therefore, the said order of the learned Judge, dated 28.07.2010 as confirmed by the Division Bench by its order, dated 06.08.2012, has attained the finality.

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(xviii) These petitioners' request for reinstatement was not considered by the second respondent and in fact, they have given a reply that, in the light of the earlier order, dated 28.7.2010 made in W.P.No.12048 of 2006 covering only 14 workmen and these petitioners since were not covered in the said order, such a relief of reinstatement, as has been sought for by these petitioners, cannot be granted. In view of the said developments, as the request of the petitioners have not been considered, since the petitioners have already reserved the right of filing the appeal against the impugned award of the first respondent dated 06.02.2005, these petitioners have filed these present set of writ petitions challenging the award, dated 06.02.2005 and seeking for a reinstatement with backwages. That is how, these batch of writ petitions came to be filed.

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Mr.S.Ayyadurai, the learned counsel for the petitioners would submit that, even though the second respondent Management denied the appointment as well as employment of the petitioners at the canteens run by the second respondent / Management at various places (as stated supra), on evidence, the first respondent / Labour Court found that these petitioners had been

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working at the canteens run by the second respondent / Management and therefore, the abrupt termination or dispensing with the services of the petitioners, without making them permanent, was totally opposing to the provisions of the ID Act. The learned counsel would further submit that the abrupt termination / retrenchment within the meaning of section 2 (oo) of ID Act without following the mandatory procedure under section 25 F and 25 N of the ID Act, is not only unlawful but also unjustifiable and therefore, the petitioners would be entitled to get reinstatement with full back wages.

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The learned counsel would further submit that, since the Labour Court found that the termination of services of the petitioners were not in consonance with the ID Act and also it is being an unjustifiable one, the Labour Court ought to have given an award of reinstatement with backwages to the petitioners. Instead, the Labour Court has passed an award, giving a direction to the second respondent / Management to pay a lumpsum compensation of Rs.25000/- to each of the petitioners, which, according to the learned counsel for the petitioner, is neither adequate nor in commensurate with the services of the petitioner.

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The learned counsel would also submit that, since there was a 12 (3) settlement, between the second respondent / Management and workers' union, these petitioners' services, as each of the petitioners have completed required number of days of continued service i.e. 480 days and more, ought to have been regularized / confirmed. Since the canteens run by the second respondent / Management were essential services from the point of view of the second respondent / Management, as, such a welfare measure is very much required for number of employees working under the second respondent, the job of the petitioners as canteen Assistant / employee are very much required and therefore, they should have been confirmed or regularized in their respective services.

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The learned counsel would also submit that in that circumstances, the Labour Court ought to have awarded for reinstatement with back wages to the petitioners. Therefore, the present impugned award giving a paltry sum of Rs.25000/- as a lumpsum compensation is absolutely unjustifiable. Therefore, the learned counsel would submit that, the petitioners would be entitled to get reinstatement with back wages.

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The learned counsel for the petitioner would also submit that, out of total 23 employees, who were covered under the impugned award of the Labour court, 14 have already approached this Court and have obtained an order in the aforesaid writ petition dated 28.7.2010, which has been confirmed by the

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Division Bench of this Court by its order dated 6.8.2012, and the same has also been implemented. In this regard, the learned counsel for the petitioner would invite the attention of this Court on the proceedings of the second respondent dated 21.1.2013, by which, one of the petitioner covered under the said order of the learned Judge, as confirmed by the Division Bench, (cited supra), has been given reinstatement / appointment . The relevant portion of the said order is extracted hereunder for easy reference:

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“,f;fofj;jpy; jw;fhypf cztf cjtpahs; gjtpapy; gzpg[upe;J gzpepWj;jk; bra;ag;gl;l jpU.Mh; .kzpkhwd; vd;gtUf;F ghh;it xd;W kw;Wk; ,uz;oy; fz;l brd;id cah;ePjpkd;wk; tH';fpa jPh;tk; kw;Wk; ghh;it K:d;wpy; fz;l ,af;Fdh; FGk Tl;lj;jPh;khdk; Mfpatw;wpd; mog;ggilapy; cztf cjtpahsh; gjtpapy; Kd;gzp bjhlh;r;rpa[lDk; gpd;rk;gsk; kw;Wk; ,ju rYiffSlDk; kWgzp epakdk; tH';fp cj;jputplg;gLfpwJ. mtUf;F tH';fg;gl ntz;oa rk;gsk; Fwpj;J gpd;dh; jdpna cj;jut[ tH';fg;gLk;

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By citing all these documents, the learned counsel for the petitioners would submit that, since the issue raised by these petitioners along with other co-workers has been concluded by the said proceedings of this Court, where the orders of this Court has been complied with and reinstatement orders has also been given to the co-workers, the very same benefit should also have been extended to these petitioners. When such gesture was expected from the second respondent, since the same has not been extended to them, as the communication of the second respondent / Management would state that these petitioners have not been covered under the said order of this Court referred to above, the petitioners having no other option, filed separate writ petitions. Therefore, the learned counsel for the petitioners would submit that, the issue, since already been concluded by the said decisions of this court, and the same has been accepted and acted upon by the second respondent, the similar relief sought for by these petitioners, in these batch of writ petitions, may also be accepted and allowed.

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On the other hand, Mr. P. Paramasivadoss, the learned counsel for the second respondent would submit that, these petitioners have never been engaged or appointed by the second respondent / Management, as no appointment order was ever been issued to them. The sporadic engagement of these petitioners, in the canteens, as casual employees on daily wage basis, that too intermittently, cannot confer any right on these petitioners, either to seek continuation of the job or to get absorption on permanent basis.

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The learned counsel would further submit that inspite of these factors, the Labour Court has given an award to pay a lumpsum compensation of Rs.25,000/- to each of the petitioners herein. Accepting the said award, the said compensation has already been paid to these petitioners which these petitioners, have received.

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The learned counsel would submit that, since the entire compensation as directed by the Labour Court, has been paid to these petitioners, which has been received by them, they cannot seek any further claim. If at all, the petitioners had any grievance out of the award of the Labour Court, they could have well challenged the said award in the year 2005 itself. Instead, these petitioners, having received a lumpsum compensation from the second respondent, as awarded by the Labour Court, and after having waited for several years, only after the Judgment of this Court in W.P.No.12048 of 2006 dated 28.7.2010, turned around and raised the issue once again, by sending communications / requests to the second respondent, seeking the relief of reinstatement, pursuant to the orders passed by this Court referred to above, in respect of the writ petition filed by other 14 co-workers.

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The learned counsel would further add that, though the second respondent / Management filed appeal against the order of the learned Judge, it has lost the writ appeal and only in that context, since the Division Bench also confirmed the order of the learned Judge, the second respondent / Management decided to implement the said orders and by thus, the order of appointment and reinstatement had been given only to those petitioners(14 workers), who had been covered in the said order, as confirmed by the Division Bench.

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The learned counsel would further submit that, insofar as these petitioners are concerned, on receipt of the lumpsum compensation of Rs.25,000/- as awarded by the Labour Court, the issue has been concluded. Moreover, none of these petitioners had agitated the issue as that of the other 14 co-workers, as these petitioners having received the compensation, has left the matter. When that being so, all of a sudden, these writ petitions have filed these writ petitions as an after thought. Therefore, the learned counsel for the second respondent would submit that, these petitioners are not entitled to claim any benefit, as has been directed to be given to other 14 co-workers covered in the said proceedings, wherein orders were passed by this Court as referred to above.

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In this context, the learned counsel for the second respondent would rely upon the following Judgments:

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2006 2 SCC 794 2005 8 SCC 481.

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(i) Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others [(1997) 4 SCC 391]

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(ii) Madhya Pradesh Administration Vs. Tribhuban [(2007) 9 SCC 748].

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(iii) Ishwar Dutt Vs. Land Acquisition collector and another [(2005) 7 SCC 190].

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(iv). Ghaziabad Development Authority and another Vs. Ashok Kumar and another [(2008) 4 SCC 261].

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(v) Haryana State Agricultural Marketing Board Vs. Subhash Chand and Another [(2006) 2 SCC 794].

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(vi) Batala Coop. Sugar Mills Ltd., Vs. Sowaran Singh [(2005) 8 SCC 481].

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By citing the said decisions, the learned counsel for the second respondent would submit that, the termination of the services of the petitioner or their disengagement, as has been found by the Labour Court, through the impugned award, cannot be termed as retrenchment within the meaning of Section 2(oo) of the ID Act. Assuming that the second respondent has not followed the mandatory requirement as contemplated under Section 25 F and 25 N of the ID Act, the award of the Labour Court ordering

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lumpsum compensation of Rs.25,000/- to each of the petitioners, would serve the purpose. Therefore, these petitioners, since have not been engaged permanently by the second respondent / Management, nor have been regularized or confirmed in any of the sanctioned or approved post at the second respondent / Management, they would not be entitled to seek any reinstatement and therefore, the present prayer sought for by the petitioners, in these batch of writ petitions, are liable to be dismissed.

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This Court has considered the said rival submissions made by both sides as well as the materials placed before this Court for its perusal and consideration.

¶104

These five writ petitioners along with other similarly placed co-workers totally 23 persons seem to have been engaged by the second respondent / Management as employees / workers at the canteens run by the second respondent / Management at various centres. There were about 125 employees working at these canteens including these petitioners for several years. Though there was a 12(3) settlement under ID Act, the grievance of these petitioners was that they have not been permanently absorbed. After having extracted work from these petitioners, for some years ranging from 3 to 6 years, these petitioners have abruptly been disengaged or terminated by the second respondent / Management. Though these factors have been denied by the second respondent, the Labour Court has found that these petitioners were engaged by the second respondent / Management and most of them along with these petitioners have completed the required number of working days i.e., 480 days and above in the given period. Even after such a fact finding was made by the Labour Court, while passing the award, the Labour Court thought it fit to pass an award by directing the second respondent to pay a lumpsum compensation of Rs.25,000/- to each of the petitioners. At the same time, the Labour Court has given a further direction that, if any selection is made for the vacancies in the canteen maintained by the second respondent, the petitioners must be given preference and an opportunity to participate in the selection also be given, after sending notice to them, according to their seniority and experience.

¶105

Therefore, the Labour Court factually, has found that, these petitioners for sometime atleast, were engaged by the second respondent / Management and their terminations amount to retrenchment, however, without complying with the requirement of Section 25 F and 25 N of ID Act.

¶106

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¶107

Only with these background, the learned Judge, in the said writ petition in W.P.No.12048 of 2006 dated 28.7.2010, has given the set of directions at paragraph 7 of the said order, which has already been extracted herein above. The learned Judge, since has found that the second respondent on 30.10.2009 has made fresh appointments of 30 persons to work in the canteens run by the second respondent, invoking the second portion of the impugned award, where a preemptive right was given to these petitioners, to give priority to them at the time of selection, had directed that, those petitioners in the said writ petition, had to be reengaged or reinstated, however, without backwages. But backwages was given only from the said date of 30.10.2009, the date on which 30 new persons had been appointed.

¶108

This said conclusion of the learned Judge was quite possible because, as against the second portion of the impugned award, giving a preemptive right to those 23 workers, the second respondent/ Management had not filed any appeal. In fact the impugned award in toto has been accepted by the second respondent i.e, the reason why to comply with the first portion of the award, lumpsum compensation of Rs.25,000/- was paid to all these workers, including the petitioners herein, and as far as the second portion of the award is concerned, no appeal has been filed. These factors would establish that the second respondent was ready and willing to give preference to these workers, at the time of any new appointment to fill up the vacancy arising in future by giving priority to these workers.

¶109

However, though such a priority was directed to be given to these workers, and the same has been accepted by the second respondent, in deviation of the second directive issued in the impugned award of the Labour Court, the second respondent seems to have engaged 30 new people on 30.10.2009. The said action on the part of the second respondent, in the opinion of this Court, is a violation of the second part of the impugned award. Only in that circumstances, the learned Judge allowed the said writ petition filed by the 14 workers out of the total 23.

¶110

Though an appeal was preferred against the said order of the learned Judge, the second respondent suffered with an order at the hands of the Division Bench of this Court in W.A.No.420

¶111

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¶112

of 2011 by order dated 06.8.2012. As has been rightly pointed out by the learned counsel appearing for the petitioner, the said order of the learned Judge, as confirmed by the Division Bench, has been complied with as one of the appointment order given to a co-worker, by the proceedings of the second respondent dated 21.1.2013, was filed in the additional typed set of papers of the petitioners. Therefore, the issue has reached its finality insofar as the 14 workers covered by the order dated 28.7.2010 made in W.P.No.12048 of 2006.

¶113

In these circumstances and context, whether these five petitioners, who have not chosen to file writ petitions immediately, after the award passed in the year 2005, as has been done by other 14 co-workers, would be entitled to get the very same relief of reinstatement, is the issue, to be decided in this batch of cases. These petitioners also would be entitled challenge the impugned award whereby the prayer of these workers for reinstatement was denied in fact, and only a lumpsum compensation was directed to be given. Even though the preemptive right was conferred by the Labour Court that in case of any future vacancies arises at the second respondent's office or canteen, that could not be treated on par with an order for reinstatement. However, these petitioners have not chosen to file the writ petitions immediately, though they have right to do so at the time of receipt of the lumpsum compensation of Rs.25,000/. However, after the outcome of the writ petition i.e., subsequent only to the order dated 28.7.2010 of the learned Judge, these petitioners have written to the second respondent, seeking to extend the similar benefit, as has been allowed by the learned Judge in respect of other 14 co-workers, in the said writ petition. However, in response to the said request made by these petitioners, the second respondent by letter dated 15.10.2010 had stated that these petitioners were not covered by the said order of the learned Judge, and the portion of the said letter dated 15.10.2010 has already been extracted herein above. On 18.10.2010, the second respondent has also issued a letter stating that with regard to the preemptive right or preference over fresh candidates in respect of the future vacancy, the respondent would act upon as per the directive issued in the second portion of the impugned award whenever vacancy arises. The contention of the said letter dated 18.10.2010 is also extracted hereunder for further understanding of the issue:

¶114

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¶115

''kDjhuh; mtUf;F 16.02.2005 ehspl;l bjhHpyhsh; ePjpkd;w jPh;g;gpd;go gzp tH;';FkhW nfhupa[s;shh; Mdhy; mtUk; kw;Wk; 22 egh;fSk; j';fSf;F ntiy tha;g;g[ tH';FkhW nfhupa[s;shh; Mdhy; mtUk; kw;Wk; 22 egh;fSk; j';fSf;F ntiy

¶116

tha;g;g[ tH';FkhW nryk; bjHpyhsh; ePjpkd;wj;jpy; tHf;F bjhlh;e;J mt;tHf;fpd; 16.02.2005 ehspl;l jPHg;gpy; fPo;f;fz;lthW jPh;tk; gpwg;gpf;fg;gl;Ls;sJ.

¶117

bjhHpyhsh; ePjpkd;wk; mth;fSf;F ,Hg;gPl;Lj; bjhifahf U: 25000/- (U:gha; ,Ugj;ije;jhapuk; kl;Lk;) I tH';FkhWk; nkYk; cztfj;jpy; fhyp gzpapl';fs; g{h;j;jp bra;ag;gLk;nghJ neh;Kfj; njh;tpy; fye;J bfhs;s mtUf;F jfty; mspf;fg;gl;L Kd;Dupik tH';FkhW jPh;tk; gpwg;gpf;fg;gl;Ls;sJ. kDjhuUf;F U:.25000/- tH';fg;gl;Ltpl;lJ

¶118

nkYk; ,f;fHf cztfj;jpy; gzpapl';fs; jw;nghJ fhypnaJkpy;iy. gzpaplk; fhypnaw;gLk; bghGJ ePjpkd;w cj;jutpd;go eltof;if nkw;nfhs;sg;gLk;

¶119

All these proceedings would go to show that the engagement of the petitioners at the canteen run by the second respondent for some years between 1983 and 1990 had been confirmed. It was also found by the Labour Court that the sudden disengagement of the petitioners is unfair and therefore, they should be adequately compensated, instead of giving reinstatement. The Labour Court has also awarded that, whenever vacancy arises, priority should be given to these petitioners along with other co-workers, who had been covered under the said impugned award. However, though 30 vacancies were available in the year 1990 which were in fact filled up by them, no priority as has been directed by the Labour Court, has been given to any of these workers including the petitioners herein. Only in that context, the learned single Judge found the issue completely in favour of the workers and therefore, reinstatement was directed with backwages from 30.10.2009, the date on which 30 new persons were engaged by the second respondent. The said issue, since has been confirmed by the Division Bench, and the second respondent

¶120

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¶121

also acted upon by giving reinstatement / appointment for those persons covered in the said order, the respondents cannot now make any contra submissions that these petitioners would not be entitled to get any such relief as the one which has been given to other 14 co-workers.

¶122

The only difference between these 5 petitioners and other 14 co-workers, who were covered under the orders of the learned Judge dated 20.07.2010 in W.P.No.12048 of 2006, is, those 14 workers had immediately approached this Court, by filing writ petition in the year 2006 itself, challenging the impugned award. Whereas these petitioners have not approached this Court and after having waited for nearly four years and above, they have filed these batch of writ petitions, of course after the outcome of the said writ petitions i.e., by order dated 28.7.2010.

¶123

As those 14 co-workers since had approached this Court in time and also obtained order in their favour in the year 2010 itself which has been confirmed by the Division Bench as stated supra in the year 2012 itself, they have been given the relief of reinstatement by the second respondent in 2013 itself. Whereas these petitioners filed writ petitions belatedly, in the year 2010 only.

¶124

These writ petitioners filed these writ petitions at the age of 40 and above at the time of filing the writ petition and by this time they would have reached around 50 years and more. Therefore, if at all the petitioners are directed to be reinstated or reengaged, at this length of time, of course subject to the availability of the job, their services would be, in the rest of the period, very minimum. Moreover, it is the consistent case of the second respondent, that the canteens originally run by the Management of the second respondent, have now been leased out to run by the private parties on contract basis and therefore, as of now, the second respondent has no vacancy to have a direct engagement of these workers as canteen employees or otherwise.

¶125

The learned Judge in the said order dated 28.7.2010 has heavily relied upon a Judgment of this Court reported in 2010 (5) MLJ 548 in the matter of "Management of TNSTC represented by its MD and others Vs. Presiding Officer, Labour Court, Madurai and others.''

¶126

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¶127

In the said Judgment, a learned Judge of this Court in a similar circumstance has held as follows:

¶128

"16. Once it is found that the workmen are employees of the Transport Corporation, the finding that they have worked for more than 240 days which have been established before the Labour Court both by oral and documentary evidence, that finding cannot be disturbed. Once it is held that the workmen have put in more than one year of service and the employer had not dispensed with their service, in the manner known to law and the condition precedent under Section 25-F were fulfilled then, the workmen are entitled to get reinstatement. In the present case, the Labour Court had precisely held that for the infraction of Section 25F of the Industrial Disputes Act they are eligible for reinstatement. In that view of the matter the labour Court directed reinstatement but denied the backwages.

¶129

In view of the above, the impugned Award does not suffer from any infirmity and the writ petitions filed by the Management in W.P.No.19353 to 19358 of 2000 will stand dismissed.

¶130

Coming to the case of the workmen claiming full wages, it must be noted that in the present case, the workmen were engaged on a daily wages though there is a paper arrangement. Though they had completed beyond one year of service, it cannot be said to be long service. Secondly, with reference to the payment of backwages, it must be noted that even in cases of violation of Section 25F of the Industrial Disputes Act, it is not necessary the entire wages can be ordered.

¶131

It is a settled proposition that whenever Labour court found in ID matters that the termination or disengagement of workman is found to be unlawful then the natural corollary would be an award to reinstatement of the worker with back wages. However, the said general principal in the recent past has been changed to considerable extent depending upon the facts of each of the case as to whether reinstatement should be ordered in all the cases and even if reinstatement is ordered whether or not full back wages should be given to the workers.

¶132

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¶133

In this regard, the following judgment of the Honb'le Apex Court can be usefully referred to : 2008 13 SCC 248 "Rajastan Lalith Kala Acadamy Vs. Radhey Shyam." In the above cited judgment the Honb'le Apex Court, has given the following observations which may be usefully extracted hereunder:

¶134

"18. The question which now survives for consideration is whether on facts in hand, relief of reinstatement with continuity of service and 25% back-wages should have been granted to the respondent?

¶135

Once the termination of service of an employee is held to be illegal, the relief of reinstatement is ordinarily available to the employee. But the relief of reinstatement with full back-wages need not be granted automatically in every case where the Labour Court/Industrial Tribunal records the finding that the termination of services of a workman was in violation of the provisions of the Act. For this purpose, 11 several factors, like the manner and method of selection; nature of appointment—ad hoc, daily-wage, temporary or permanent etc., period for which the workman had worked and the delay in raising industrial dispute, are required to be taken into consideration.

¶136

On this aspect, in General Manager, Haryana Roadways case (supra), a three-Judge Bench of this Court has observed thus:

¶137

“8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable 12 period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a

¶138

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¶139

position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year.”

¶140

It appears to us that in the present case there has not been due application of mind either by the Labour Court or the High Court on the question of reinstatement and payment of 25% back-wages. The only ground on which reinstatement and continuity of service has been ordered is because the order of termination has been held to be unlawful. Similarly, 25% back-wages have been awarded for the reason that the services of the petitioner were terminated with immediate effect but no specific reason as 13 such has been assigned for the award of the said backwages. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. A host of other factors, a few enumerated above, are required to be taken into consideration before issuing directions in that behalf. Therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent-workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue.

¶141

In the light of the observations referred to supra and having regard to the nature and the period of services rendered by the respondent and the fact that his services were terminated initially on 4th April, 1981 and then on 31st January, 1985 and the vicissitudes of long-drawn litigation, the respondent has undergone for over 27 years, interest of justice would be met if instead and in place of direction for reinstatement and back-wages—a sum Rs.3 lakhs is directed to be paid to 14 the respondent by way of compensation. We direct accordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest @ 9% per annum from the date of this judgment till the date of actual payment.”

¶142

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¶143

In the said line of decision as cited supra, the Honb'le Apex Court in a recent decision reported in 2016 1 SCC 521 "Lucknow University Vs. Akhilesh Kumar Khare" has taken a similar view. The relevant portion of the Judgment, cited supra, can also be usefully extracted hereunder:

¶144

"18. In considering the violation of Section 25F of the Industrial Disputes Act, 1947 in Incharge Officer & Anr. vs. Shankar Shetty (2010) 9 SCC 126 and after referring to the various decisions, this Court held that the relief by way of back wages is not automatic and compensation instead of reinstatement has been held to meet the ends of justice and it reads as under:-

¶145

“2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short “the ID Act”)? The course of the decisions of this Court in recent years has been uniform on the above question.

¶146

In Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, Uttaranchal Forest Development Corpn. v. M.C. Joshi, (2007) 9 SCC 353, State of M.P. v. Lalit Kumar Verma (2007) 1 SCC 575, M.P. Admn. v. Tribhuban (2007) 9 SCC 748, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75, Jaipur Development Authority v. Ramsahai (2006) 11 SCC 684, GDA v. Ashok Kumar (2008) 4 SCC 261 and Mahboob Deepak v. Nagar Panchayat, Gajraula (2008) 1 SCC 575 and stated as follows: (Jagbir Singh case (2009) 15 SCC 327, SCC pp. 330 & 335, paras 7 & 14)

¶147

“7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long 11 Page 12 line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages

¶148

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¶149

is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

¶150

¶151

It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.”

¶152

Jagbir Singh (2009) 15 SCC 327 has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court stated: (SCC p. 777, para 11)

¶153

“11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.”

¶154

In the light of the above discussion, the impugned judgment of the High Court is modified and keeping in view the fact that the respondents are facing hardship on account of pending litigation for more than two decades and the fact that some of the respondents are over aged and thus have lost the opportunity to get a job elsewhere, interest of justice would be met by directing the appellantuniversity to pay compensation of rupees four lakhs to each of the respondents. By order dated 11.07.2011, this Court directed the appellant to comply with the requirements of Section 17B of the Industrial Disputes Act, 1947 and it is stated that the 12 Page 13 same is being complied with. The appellant-university is directed to pay the respondents rupees four lakhs each within four months from the date of receipt of this judgment. The payment of rupees four lakhs shall be in addition to

¶155

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¶156

wages paid under Section 17B of the Industrial Disputes Act, 1947."

¶157

In view of the said Judgments of the Honb'le Apex Court, in the given circumstances of the present batch of cases, whether the petitioners would be entitled to get an order of reinstatement including backwages or a lumpsum compensation in lieu of such reinstatement with or without backwages is to be looked into.

¶158

As has been discussed above, these petitioners had never been engaged on permanent basis in a sanctioned post attached with the second respondent / Management. Assuming that these petitioners had been engaged along with the other co-workers in canteens run by the second respondent / Management, their services were disengaged long back i.e in the year 1990 itself. Though, a priority was directed to be given to these petitioners, in the second portion of impugned award, by the Labour court, such a priority was not given to them including these petitioners in the year 2009 where, the second respondent has appointed 30 fresh candidates. This aspect since was found in favour of the workers, and that is the reason why, the learned Judge has allowed the said writ petition filed by 14 coworkers of these petitioners in the year 2010 itself, directing reinstatement. The said order since has been confirmed by the Division Bench of this Court, it was acted upon and reinstatement orders were issued to those 14 workers by the second respondent.

¶159

However, insofar as these five petitioners are concerned, though they were also similarly placed that of the other co-workers, these petitioners have not chosen to file any writ petition at the first instance, even though they suffered with the award in the year 2005 whereby their request of reinstatement was denied to them by the impugned award of the Labour court .

¶160

Even though these writ petitioners have reserved the right of challenging the award at the time of receipt of lumpsum compensation of Rs.25000/- as directed by the Labour Court, they have not filed any writ petitions, till the outcome of the writ petition filed by the other 14 co-workers. Had these petitioners also approached this Court at the earliest point of time assailing the impugned award, a similar relief would have

¶161

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¶162

been given to them as early as in the year 2010 or even prior to that. This delay on the part of the petitioners, certainly, pushed back these five writ petitioners slightly from the pedestal, where, those 14 co-workers are placed .

¶163

However, the factor that these petitioners also were similarly placed as of the 14 co-workers, in all other respects, cannot be lost sight off.

¶164

As indicated above, these petitioners, since have belatedly approached this Court, and as of now these petitioners have reached 50 plus, their remaining part of the services is very minimal, that too subject to the availability of the situations, at the second respondent office.

¶165

In this context the stand taken by the second respondent that the canteens originally run by them are now given to the third parties by way of contract and therefore, there is no question of any direct engagement of canteen workers at this juncture, shall also be kept in mind. However, these factors would not relegate the petitioners from getting the same benefit, or atleast equal benefit as has been availed by the other co-workers, especially, the 14 co-workers covered by the earlier order of this court. Since these petitioners, have admittedly, been out of service from 1990 onwards and it has taken all the 27 years to conclude this legal battle between these 5 petitioners and the second respondent / Management and out of these 27 years, atleast 4 to 5 years delay is because of the inaction on the part of these petitioners, as admittedly, they have not approached this Court in time as has been done by other 14 co-workers, this Court, is of the considered view that, though these 5 petitioners are also eligible or entitled to get some relief as the one given to other 14 co-workers, is also of the view that, exactly, the very same benefit of reinstatement with backwages from 30.9.2010, cannot be granted to these petitioners.

¶166

However, considering the pendency of litigations for long years and also considering the similarity these petitioners are having along with other co-workers, who have been given the maximum benefit of reinstatement with backwages from 2010 onwards, this Court feels that, inorder to give complete justice to these writ petitioners, some adequate compensation can be ordered to be given to them.

¶167

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¶168

Therefore, in the given facts and circumstances of these cases, by following the dictum of the Honb'le Apex Court in the two Judgments in 2008 13 SCC 248 "Rajastan Lalith Kala Acadamy Vs. Radhey Shyam." and 2016 1 SCC 521 "Lucknow University Vs.Akhilesh Kumar Khare" (cited supra), if some adequate compensation is directed to be given to these writ petitioners, that would subserve the purpose and it will protect the interest of these writ petitioners.

¶169

In the result, these writ petitions are disposed off with the following directions:

¶170

(i) The impugned award of the first respondent / Labour Court dated 16.02.2005 is modified to the extent that these writ petitioners shall be given an adequate compensation, which in the given circumstances of the case, is quantified by this Court as Rs.4,00,000/- (Rupees Four Lakhs) to each of these writ petitioners.

¶171

(ii) Since the petitioners have already received Rs.25,000/each as lumpsum compensation, as directed by the Labour Court, through the impugned award, the same can be deducted and the remaining amount of Rs.3,75,000/- shall be paid by the second respondent to each of these petitioners, within a period of 12 weeks from the date of receipt of copy of this order.

¶172

With these directions, these writ petitions are ordered. Consequently, M.P.No.2 of 2010 in W.P.No. 27593 of 2010, M.P.No.2 of 2010 in W.P.No.27735 of 2010, M.P.No.2 of 2010 in W.P. No.27878 of 2010, M.P.No.1 of 2010 in W.P.No.29100 of 2010 and M.P.No.1 of 2010 in W.P.No.29157 of 2010 are closed. There shall be no order as to cost.

¶173

Assistant Registrar(CS VIII)

¶174

//True Copy// Sub Assistant Registrar

¶175

kua

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¶177

¶178

The Presiding Officer,
Labour court,
Salem – 636 007.
2. The Managing Director,Management of
Tamil Nadu State Transport Corporation Ltd.,
Ramakrishna Road,
Salem 636 007.
+5 ccs to M/s.S.Ayyathurai Advocate sr 45245
+4 ccs to M/s.V.Paramasivadoss Advocate sr 45663,
45665,45666 & 45667
W.P.NOs.27593, 27735, 27878,
29100 and 29157/10
rsk(co)
aa07/07/2017

¶179

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M.Ponnusamy, v. the Presiding Officer

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M.Ponnusamy, v. the Presiding Officer

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