The Management Vs The Presidigng Officer

2.The Secretary, Attur Velanmai Urpathiyalargal Kooturavu Virpanai Sangathin Anna Godown Kalasi Loading Unloading Param Thookum Pudupettai Pudupettai, Attur, Salem District.

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... Respondents

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Prayer:

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Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records in I.D.No.21 of 2011 on the file of Labour Court, Salem the first respondent herein, quash the award dated 23.12.2014 passed therein (communicated through letter

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

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W.P.No.23094 of 2015

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dated 16.03.2015).

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For Petitioner : M/s.M.R.Raghavan For Respondents : R1 – Court Mr.R.M.D.Nazarullah for R2

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O R D E R

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The petitioner has filed this writ petition seeking issuance of Writ of Certiorari to call for the records in I.D.No.21 of 2011 on the file of Labour Court, Salem, quash the award dated 23.12.2014.

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2.The learned counsel appearing for the petitioner submitted that the petitioner is a society constituted in accordance with the provisions of the Tamil Nadu Co-operative Societies Act. The members of the petitioner are Agriculturists and they bring their produce to the society and the society assists them in sale and auction of the produce. The employees are engaged at the instance of producers and purchasers for the purpose of loading and unloading the produce brought by the members of the society. Seeking confirmation of their services the loaders preferred application before the Authority under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act and the Authority vide order dated 05.05.2004 directed the petitioner to confer permanent status on them.

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W.P.No.23094 of 2015

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3.The learned counsel appearing for the petitioner further submitted that challenging the order dated 05.05.2004, the petitioner filed W.P.No.17355 of 2005 and the said writ petition was dismissed on 27.11.2012 and aggrieved by the same, the petitioner preferred W.A.No.1460 of 2013 and the said writ appeal was also dismissed as against which, the petitioner preferred Special Leave Petition in S.L.P.(C) No.2543 of 2022 before the Hon'ble Apex Court and the same is pending. In the meanwhile, the second respondent raised I.D.No.21 of 2011 under Section 2k of the Industrial Disputes Act claiming 20% bonus and 20% exgratia amount to the loaders for the year 2006 – 2007 and the same was allowed in their favour by the first respondent.

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4.The learned counsel appearing for the petitioner further submitted that while deciding the industrial dispute under Section 2k of the Industrial Disputes Act, the Labour Court has to see whether the society is in profit or not in profit and exgratia amount is the wish of the Government and the same cannot be claimed as a matter of right and without considering the same, the first respondent passed the

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W.P.No.23094 of 2015

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impugned order. The learned counsel further submitted that without prejudice to the rights and contentions of the petitioner society in the special leave petition pending before the Hon'ble Apex Court, the petitioner is ready to pay 8.33% bonus to the loaders.

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5.The learned counsel appearing for the second respondent submitted that the members of the second respondent union are permanent employees of the petitioner society and permanent employees are entitled to claim bonus and exgratia amount as per 12(3) settlement. The said issue was rightly appreciated by the Labour Court and hence the impugned order warrants no interference.

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6.Heard the arguments advanced on either side and perused the materials available on record.

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7.The facts of the case is not in dispute. The members of the second respondent/ the loaders engaged by the petitioner society preferred application before the Authority under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act seeking confirmation of their services and the Authority vide order dated 05.05.2004 directed the petitioner to confer permanent status

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

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W.P.No.23094 of 2015

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on them. Challenging the order dated 05.05.2004, the petitioner filed W.P.No.17355 of 2005 and the said writ petition was dismissed on 27.11.2012 and aggrieved by the same, the petitioner preferred W.A.No.1460 of 2013 and the said writ appeal was also dismissed as against which, the petitioner preferred Special Leave Petition in S.L.P.(C) No.2543 of 2022 before the Hon'ble Apex Court and the same is pending.

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8.The present dispute is that the second respondent raised I.D.No.21 of 2011 under Section 2k of the Industrial Disputes Act claiming 20% bonus and 20% exgratia amount to the loaders for the year 2006 – 2007 and the same was allowed in their favour by the first respondent, however, the fact remains that while deciding the industrial dispute under Section 2k of the Industrial Disputes Act, the Labour Court has to see whether the society is in profit or not in profit. If the petitioner society is in profit, then the Labour Court can award bonus as claimed by the second respondent, even if there is no profit, the petitioner society has to pay 8.33% bonus to the workman. In respect of exgratia amount, it can be given only on the basis of the wish of the employer. If the employer does not wish to give exgratia amount, the Labour Court cannot insist the employer to give exgratia

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W.P.No.23094 of 2015

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amount unless there is accrued right by way of 12 (3) settlement or 18 settlement. In the present case, the 12 (3) settlement has been marked before the Labour Court and there is nothing about exgratia amount. In the absence of any rights, granting exgratia amount is not sustainable one.

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9.In view of the above, there shall be a direction to the petitioner society to pay 8.33% bonus to the workmen for the relevant period, without prejudice to their rights and contentions in the special leave petition pending before the Hon'ble Apex Court, within a period of four weeks from the date of receipt of a copy of this order.

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10.The writ petition is disposed of with the above directions. No costs. Consequently, connected miscellaneous petition is closed.

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03.04.2025

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pri

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Index: Yes/ No Speaking Order: Yes/ No NCC: Yes/ No

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To

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