IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19.01.2009 Coram THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.17372 of 1999 R.Kandasamy ...Petitioner Vs. 1.The Presiding Officer, Labour Court, Tiruchirapalli. 2.The Management, Sri Arya Bhavan, T.V.S., Tollgate, Tiruchirapalli. ...Respondents WRIT PETITION filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified mandamus, to call for the records on the file of the first respondent herein pertaining to the above I.D.No.4 of 1997 dated 01.02.1999 and quash the same and consequently direct the second respondent herein to reinstate the petitioner with continuity of service and backwages and all attendant benefits. For Petitioner : Ms.C.N.G.Ezhil Arasi For Respondents : Mr.N.Balasubramanian for R2 O R D E R The petitioner aggrieved by the award of the Labour Court in I.D.No.4 of 1997 dated 01.02.1999 has filed the present writ petition. By the impugned award, the labour Court declined to grant any relief to the petitioner. 2. The writ petition was admitted on 27.10.1999. The case of the petitioner was that he was employed as a Dosa Master in the second respondent hotel and he had worked for more than 6 ½ years. He was also actively associated with the trade union for the hotel workers. The Management aggrieved by the conduct of the petitioner stopped him from work without any justification. 3. The petitioner raised an Industrial Dispute before the Government Labour Officer and on the strength of the failure report given, he moved the Labour Court. The Labour Court took up the dispute as I.D.No.4 of 1997 and issued notice to the second respondent. The second respondent filed a counter statement. The https://hcservices.ecourts.gov.in/hcservices/ second respondent did not agree with the contention that the petitioner was regularly engaged by them and whenever any exigency in the work, he was engaged on daily wages and the contention that he had worked 6 ½ years was not accepted by them. 4. Before the Labour Court, the petitioner examined himself and two other workers by name Arumugam and Jeyaraj as W.W.2 and W.W.3. On the side of the second respondent, two witnesses were examined, namely, Sankaranarayanan and S.Kuppusamy as M.W.1 and M.W.2. The petitioner had filed four documents and they were marked Exs.W1 to W4. On the side of the second respondent, six documents were filed and marked as Exs.M1 to M6. 5. The Labour Court on the basis of the materials placed before it came to the conclusion that at the maximum, the worker would have worked for not more than three months in terms of Exs.W1 to W3. Since his name is not found in Ex.M1, Salary Register for January 1992, the Labour Court did not believe that he would have been continuously engaged from the year 1990-1996. Unfortunately, the Labour Court rejected the workman's arguments to draw adverse inference since the wage registers for the year 1990-1996 were not produced and the management had produced only selective registers for few months. The Labour Court also disbelieved the evidence of W.W.1 and W.W.2 on the ground that they were workmen who were terminated from service by the second respondent and therefore, their evidence cannot be relied upon. The Labour Court also held that the bonafide certificate by the management dated 06.02.1996 marked as W1 may be genuine but that cannot speak for the service rendered by the workman for the entire six years. The Labour Court also believed Ex.W1 series which are letters received by the workman in the address of the second respondent management. The second respondent management contention that he was running a small street shop and given their address for correspondence purpose and that he was not their workman was disbelieved. In any event, even as per the Labour Court's finding that though the workman may not worked for 6 ½ years, he has certainly worked for more than four months as per the evidence adduced before the Labour Court. Therefore, the Labour Court was wrong in rejecting the case of the workman. In this context, it is necessary to refer to Section 19 of the Tamil Nadu Catering Establishments Act, 1958, wherein, a service of a workman cannot be dispensed if he had put in 120 days of service within a period of 6 months except for a reasonable cause and that giving such employee one months' notice or wages. Such notice is not contemplated if the workman was dismissed for misconduct supported by satisfactory evidence recorded in an enquiry held for the purpose. 6. In the present case, admittedly the petitioner's service was not dismissed for any misconduct. Therefore, he comes within the first limb of Section 19. When there is a statutory right for a workman from being sent out of service, the Labour Court ought to have looked into the relevant legal provisions. Though Mr.N.Balasubramanian, learned counsel for the second respondent Management contended that such a plea was not taken before the Labour Court. It must be stated that when the worker is enjoying a https://hcservices.ecourts.gov.in/hcservices/ statutory right that need not be specifically pleaded. Infact the right given by the Tamil Nadu Catering Establishments Act can also be urged before the forum provided under the Industrial Disputes Act. Therefore, the Labour Court ought to have considered the case of the workman in the light of valid principles of legislation made by the State. If that is taken into account, the workman is entitled for some relief under Section 19(2)(b). The Appellate Authority notified under the Section is entitled to order reinstatement or direct compensation without reinstatement. If the petitioner had gone before the authority, he would have got either one of the relief and not a total denial of relief as done by the Labour Court. In the light of the same, the award of the Tribunal requires interference. 7. Accordingly, the writ petition stands allowed. The impugned Award of the Labour Court will stand set aside. With reference to the relief to be given to the petitioner, it must be stated that his service has been found to have not more than six months and hence, he is eligible for one month notice pay and two months compensation altogether. The second respondent is directed to pay three months wages as compensation in lieu of reinstatement and all other claims. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Presiding Officer, Labour Court, Tiruchirapalli. 2.The Management, Sri Arya Bhavan, T.V.S., Tollgate, Tiruchirapalli. 1 cc To Mr.N.Balasubramanian, Advocate, SR.2073 W.P.No.17372 of 1999 GG(CO) SRA(02/02/2009) https://hcservices.ecourts.gov.in/hcservices/