IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 9..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 14612 of 1998 The Management India Pistons Limited A4 Industrial Estate Maraimalai Nagar Kancheepuram District .. Petitioner vs. 1. Presiding Officer II Additional, Labour Court, Madras. 2. M. Amalraj .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent relating to order dated 30.3.1998, which was received on 11.8.1998 passed in I.D. No. 890 of 1990 and quash the same. For Petitioner : Mr. S. Jayaraman For Respondent 2: Mr. Ajay Ghose O R D E R Heard the arguments of the learned counsel for the parties and perused the records including the original records summoned from the Labour Court. 2. This writ petition is directed against the Award of the first respondent Labour Court dated 30.3.1998 made in I.D. No. 890 of 1990. 3. The petitioner is the Management. Parties in this writ petition are referred to as the Management and workman respectively. 4. The brief facts leading to the industrial dispute are as follows: 4.1. The second respondent was employed by the petitioner Management from 20.11.1986 and he was working as an Operator w.e.f. 20.5.1987. Though it was stated in the appointment order that he has to work as a trainee, he was not imparted with any training because he had gained sufficient experience when he was working as a Casual https://hcservices.ecourts.gov.in/hcservices/ Worker. During the so-called training period, he was actually involved in direct manufacturing process. In fact, the entire work force was described as trainees and this will show the hollow claim made by the Management. 4.2. The workmen joined a Trade Union affiliated to CITU. All the workmen observed "go-slow" w.e.f. 24.7.1989. Thereafter, the workmen were denied employment and driven out of the factory. The workmen went on a relay hunger fast w.e.f. 25.7.1989. During the struggle period, the Management extended the so-called training period by one year and also invited the workmen to rejoin duty. The workmen did not join duty because the Management was doing divide and rule. The Management also refused to negotiate the demand and for grant of permanency. 4.3. Subsequently, the Management created a new Union and took back 27 workers. 33 other workers were arrested by the Police and the Management insisted that if they join the INTUC Trade Union, they will be taken back to work. Accordingly, the workmen joined the INTUC Union and another 25 workmen were taken for work. In respect of the remaining workmen, it was stated the Management will give compensation in lieu of reinstatement and for three workers, they took the stand that they will conduct domestic enquiry and depending upon the outcome of the enquiry, they will be reinstated. As against the said dismissal, the workman raised an industrial dispute. 5. The matter was taken on file by the first respondent Labour Court as I.D. No. 890 of 1990. The workman filed 13 documents and they were marked as Exs. W.1 to W.13. The Management filed six documents and they were marked as Ex. M.1 to M.6. Both sides had let in oral evidence. The Labour Court, after an analysis of the evidence (both oral and documentary) passed the Award dated 30.3.1998 which is impugned in this writ petition. By the impugned Award, the second respondent was directed to be reinstated with continuity of service, full backwages and all other attendant benefits. 6. Pending the writ petition, this Court directed the petitioner Management to deposit Rs.1,15,000/- and out of which, the workman was allowed to withdraw Rs.15,000/- and the balance of Rs.1 lakh was directed to be invested in a Fixed Deposit with the State Bank of India, Egmore Branch and the workman was allowed to withdraw quarterly interest. Further, commencing from 01.12.1989, the Management was directed to pay Rs.800/- every month to the worker in terms of Section 17B of the Industrial Disputes Act, 1947 [for short, 'I.D. Act']. It is now stated that the Management had complied with the said order. 7. Mr. S. Jayaraman, learned counsel for the Management, contended that the findings of the Labour Court were not proper and that despite opportunity being granted, it was the workman who had not come forward to join duty and the acceptance by the workmen that they had gone on "go-slow" is an admission of a serious misconduct and it https://hcservices.ecourts.gov.in/hcservices/ should be treated as abandonment of service. 8. The Labour Court rejected these contentions and held that when the workmen are on agitation, it cannot be construed as an abandonment as held by the Supreme Court G.T. Lad v. Chemicals and Fibres of India [1979 (1) L.L.J. 257]. It also placed reliance upon another Supreme Court judgment in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha [1980 (1) L.L.J. 137]. The Labour Court also held that since the petitioner Management is not having any certified Standing Orders, the Model Standing Orders will apply. Under the Model Standing Order 2(b), a worker is deemed to have become permanent after three months of probation and since the worker had already worked as Operator for two years, he is also deemed to have become permanent in terms of Section 3 of the Tamil Nadu Act 46 of 1991. 9. The Labour Court also held that under the Model Standing Order 14(3), habitual absence without leave for more than ten days is provided as a misconduct and since the Management had not conducted any enquiry, their action is covered by the judgment of the Supreme Court in D.K. Yadav v. JMA Industries Ltd. [1993 (2) L.L.J. 296]. In that view of the matter, the Labour Court directed reinstatement of the second respondent workman with all backwages. 10. The appointment order dated 09.7.1987 marked as Ex. W.6 clearly states that since the workman had completed six months as a Casual worker, he was appointed as an Operator. Though it is stated that it is on temporary basis for a period of two years, such a clause is in violation of 2(b) of the Model Standing Orders. While the pay- slip Ex. W.7 dated 03.4.1989 describes the second respondent as an Operator, the pay-slip for the month of March 1989, describes him as a trainee. Therefore, when the workman was given an extension letter Ex. W.9 granting extension of training as per Ex. W.9, such a power is not available to the Management. 11. The Supreme Court in Western India Match Co. Ltd. v. Workmen [(1974) 3 SCC 330] has held that no contract can be read into a Standing Order and the Standing Orders will override the terms of contract. The relevant passages found in paragraphs 10 and 11 of the said judgment may be usefully extracted:- Para 10: "In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belied their faith. Later generations discovered that the workman did not possess adequate bargaining strength to secure fair terms and conditions of service. https://hcservices.ecourts.gov.in/hcservices/ When the workmen also made this discovery, they organised, themselves in trade unions and insisted on collective bargaining with the employer. The advent of trade unions and collective bargaining created new problems of maintaining industrial peace and production for the society. It was therefore considered that the society has also an interest in the settlement of the terms of employment of industrial labour. While formerly there were two parties at the negotiating table — the employer and the workman, it is now thought that there should also be present a third party, the State, as representing the interest of the society. The Act gives effect to this new thinking. By Section 4 the Officer certifying the Standing Order is directed to adjudicate upon “the fairness or reasonableness” of the provisions of the Standing Order. The Certifying Officer is the statutory representative of the society. It seems to us that while adjudging the fairness or reasonableness of any Standing Order, the Certifying Officer should consider and weigh the social interest in the claims of the employer and the social interest in the demands of the workmen. Section 10 provides the mode of modifying the Standing Orders The employer or the workman may apply to the Certifying Officer in the prescribed manner for the modification of the Standing Orders Section 13 (2) provides that an employer who does any act in contravention of the Standing Order shall be punishable with fine which may extend to one hundred rupees. It also provides for the imposition of a further fine in the case of a continuing offence. The fine may extend to twenty-five rupees for every day after the first during which the offence continues. Para 11: "The special agreement, in so far as it provides for additional four months of probation, is an act in contravention of the Standing Order. We have already held that. It plainly follows from Sections 4, 10 and 13 (2) that the inconsistent part of the special agreement cannot prevail over the Standing Order. As long as the Standing Order is in force, it is binding on the Company as well as the workmen. To uphold the special agreement would mean giving a go-by to the Act’s principle of three-party participation in the settlement of terms of employment. So we are of opinion that the inconsistent part of the special agreement is in effect live and unenforceable." 12. In the light of the above judgment, reliance placed upon Exs. W.6 and W.9 is impermissible. Once it is held that the workman is a permanent workman, it is not open to the Management to alter his status by any method and the Labour Court was correct in holding that https://hcservices.ecourts.gov.in/hcservices/ the workman having become permanent and there being no Standing Orders, providing for automatic removal of the name from the rolls, it is incumbent upon the Management to have conducted an enquiry. Therefore, the impugned Award of the Labour Court does not suffer from any infirmity or illegality. 13. In view of the above, the writ petition fails and is accordingly dismissed. However, there will be no order as to costs. In view of the dismissal of the writ petition, the workman is permitted to withdraw the amount lying in deposit with the Labour Court, which has been invested in a Nationalised Bank. The petitioner Management is directed to comply with the Award passed by the Labour Court within a period of eight weeks from the date of receipt of a copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To Presiding Officer II Additional Labour Court Madras. 1 CC To Mr.D.Hariparanthaman, Advocate, SR NO.27735 1 CC To Mr.S.Jayaraman, Advocate, SR NO.27570Delivery Order in W.P. No. 14612 of 1998 RA(CO) rvr 16/06/08 https://hcservices.ecourts.gov.in/hcservices/