The Management of Vs Mahesh

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W.P.No.214 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 03.04.2025

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CORAM :

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THE HONOURABLE MR. JUSTICE M. DHANDAPANI

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W.P.No.214 of 2019 and WMP.No.234 of 2019

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The Management of Birla Carbon India Pvt. Limited, Formerly known as Hi-Tech Carbon Ltd., Sipcot Industrial Complex, Pappankuppam Village, Guymmidipoondi – 601 201, Rep. by its Authorised Signatory ...Petitioner

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Vs.

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Mahesh

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The Management of M/s. Kutty Brothers, Rep. by its Manager, No.11/562, Vanagaram, Ambattur, Chennai – 600 052. ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records of the First Additional Labour Court, Chennai, in I.D.No.99 of 2012 and quash its Award dated 31.08.2018.

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https://www.mhc.tn.gov.in/judis

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W.P.No.214 of 2019

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For Petitioner : Mr.Anand Gopalan for M/s.Agam Legal Advocates For Respondents : Mr.S.Gopi, for R1 : Mr.O.Raman, for R2

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O R D E R

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This Writ petition has been filed seeking quashment of the award of

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the First Additional Labour Court, Chennai dated 31.08.2018 made in I.D.No.99 of 2011, ordering for reinstatement of the 1^st respondent with

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continuity of service, backwages and all other attendant benefits

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It is the case of the petitioner that it is a company registered under

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the Contract Labour (Regulation and Appeal) Act as a principal employer and engaged in the manufacture of Carbon Block and power generation. Apart from having around 200 permanent employees, the petitioner used to engage independent contractors for certain activities like housekeeping, gardening, loading, unloading and fabrication. The petitioner utilized the services of one M/s.Quality Engineering Fabricators for maintenance work. The 1^st respondent was one of the contract labourers who was deployed in

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https://www.mhc.tn.gov.in/judis

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the premises of the petitioner by the said Quality Engineering Fabricators. The petitioner, as a principal employer, paid the ESI Contributions in respect of the 1^st respondent, and the petitioner used to deduct the payment made towards the contributions from the bill payable to the Quality Engineering Fabricators. On 31.07.2004, the contract with the Quality Engineering Fabricators came to an end and all the employees including the 1^st respondent were disengaged. Thereafter, in the year 2006, the 2^nd respondent was awarded with the contract for maintenance activities after the contract awarded to the Quality Engineering Fabricators came to an end. It is the further case of the petitioner that, during November, 2006, the 1^st respondent approached the 2^nd respondent and requested them to engage him in the maintenance activities with the petitioner factory as he was conversant with the same. Accordingly, the 2^nd respondent engaged the 1^st respondent and he was deployed again in the premises of the petitioner company. The 1^st respondent was paid ESI and PF by the 2^nd respondent and he was also borne on the rolls of the 2^nd respondent. While so, the petitioner came to understand from the 2^nd respondent that the 1^st respondent did not offer himself for work from January, 2011, without any intimation. While

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so, the 1^st respondent raised a conciliation proceedings before the Assistant Commissioner of Labour (Conciliation) alleging that he was denied employment by the petitioner and the 2^nd respondent from April, 2011 and that the denial would amount to oral termination. On the failure of conciliation, the 1^st respondent raised an Industrial Dispute in I.D.No.99 of 2012 before the I Additional Labour Court, Chennai alleging that he was appointed in the petitioner concern as Welder in the year 1998, however, all of a sudden, the services of the 1^st respondent was transferred to the 2^nd respondent concern without any prior notice and that when the 1^st respondent objected to the transfer and expressed his non-willingness to work for the 2^nd respondent company, the petitioner assured to take back the 1^st respondent in future and also assured that his service will be protected and he will be promoted and that the 1^st respondent was working for the 2^nd respondent as a Fitter from the year 2006, however, in April, 2011, the 1^st respondent was denied access to the factory and he was informed that he had been removed from service. The Labour Court, after examination of oral and documentary evidence on record, by Award dated 31.08.2018, held that the 1^st respondent was in continuous employment in the precincts of the

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petitioner and accordingly, directed reinstatement of the 1^st respondent with continuity of service and to pay backwages and all other attendant benefits from the date of termination of service till the date of reinstatement. Challenging the same, the petitioner company has filed this writ petition.

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Learned counsel for the petitioner submitted that the 1^st respondent was employed with the 2^nd respondent and the 1^st respondent himself has admitted in the cross-examination that he was paid wages by the 2^nd respondent and statutory compliances were also made by the 2^nd respondent and that the 1^st respondent was not interested to report for duty under the 2^nd respondent. Learned counsel further submitted that a contract labourer deployed in the petitioner's premises cannot claim employment against the petitioner. He further submitted that, merely because the contract between the petitioner and the 2^nd respondent was for many years, that does not entitle the 1^st respondent to doubt the bona fides of the contract itself. Though the 1^st respondent claims that he was denied employment in April, 2011, the dispute was raised only in August, 2011, and there is no proper explanation for the delay. Learned counsel also submitted that the Labour

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Court has failed to appreciate the evidence on the side of the petitioner and hence, prayed for setting aside the Award. Learned counsel, in support of his contentions, relied upon the judgment of Hon'ble Supreme Court in Bharat Heavy Electricals Ltd., vs. Anil and others reported in (2007) 1 SCC 610 and a judgment of this Court in the case of V.Kesavan and another v. The Presiding Officer, II Additional Labour Court, Chennai, and others [W.P.Nos.35842 & 35843 of 2007, dated 05.06.2012].

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Per contra, the learned counsel appearing on behalf of the 1^st

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respondent, by producing a copy of the ESI Card and the Attendance Register, submitted that the ESI Card of the 1^st respondent has been attested by the petitioner and that the 1^st respondent was employed with the petitioner as per the Attendance Register. Learned counsel further submitted that the alleged contract between the petitioner and the 2^nd respondent is sham and nominal and not bona fide . He further submitted that the Labour Court has rightly sat over the issue and held that the petitioner and 2^nd respondent have not produced sufficient evidence to prove their bona fides in engaging contractual labourers. Learned counsel also submitted that the

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1^st respondent was continuously employed under the petitioner and the Labour Court has rightly appreciated the evidence produced by the 1^st respondent and directed reinstatement of the petitioner, vide impugned order and the same does not warrants interference of this Court. Accordingly, he prayed for dismissal of this writ petition.

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Heard learned counsel on either side and perused the materials

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available on record.

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On a perusal of the materials available on record particularly the impugned award, it is evident that the 1^st respondent/workman himself in his deposition before the Labour court had admitted that, the 2^nd respondent was ready to provide employment to the 1^st respondent and it is the 1^st respondent who was not ready to report duty due to certain health ailments. When such a statement has been given by the 1^st respondent/workman himself, ordering for reinstatement that too with continuity of service, backwages and all other attendant benefits is not sustainable.

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7. At the same time, considering the issue involved and also considering the fact that the 1 st respondent-workman had rendered almost 14 years of service and that the 1 st respondent/workman had reached the age of superannuation and cannot also be reinstated in view of his age of superannuation, this Court, in exercise of its powers, is inclined to direct the petitioner Management to pay a lumpsum towards full quit as settlement in lieu of reinstatement as ordered by the labour court, vide impugned order dated 31.08.2018 made in I.D.No.99 of 2012.

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8. Accordingly, this Court directs the petitioner-management to pay a sum of Rs.75,000/-(Rupees Seventy Five Thousand only) as settlement, in full quit in favour of the 1 st respondent within a period of four weeks from the date of receipt of a copy of this order.

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