IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 9..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 1264 of 1998 The Management of Madras Fertilizers Limited Manali Chennai .. Petitioner vs. 1. Presiding Officer Principal Labour Court Chennai 2. The Workmen Rep. by the General Secretary Madras Fertilizers Staff Union No.6 Kachaleeswarar Agraharam Chennai .. 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 the impugned order dated 27.5.1997 published in Tamil Nadu Government Gazette dated 10.9.1997 passed in I.D. No. 1034 of 1989 and quash the same. For Petitioner : Mr. R. Arumugam for M/s Aiyar & Dolia For Respondent 2: Mr. K.M. Ramesh O R D E R Heard the arguments of the learned counsel for the parties and perused the records. 2. This writ petition is directed against the Award of the first respondent Labour Court dated 27.5.1997 made in I.D. No. 1034 of 1989. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner is the Management of Madras Fertilizers Ltd. Parties in this writ petition are referred to as the Management and Trade Union as the case may be. 4. The brief facts leading to the industrial dispute are as follows: 4.1. The second respondent Trade Union represented the majority of the workmen in the petitioner Management. In the present dispute, the three workmen involved were founder members and office bearers of the Trade Union and they were working as Stenographers with Rs.600/- as monthly salary. The Trade Union was registered on 26.3.1972 and within one week of its formation, Mr. V. Krishnamurthy, who was its General Secretary, was threatened with dire consequences. It was duly communicated to the Labour Department. The Union was recognised by the Management after 2-1/2 months. 4.2. There were large scale malpractices in the factory. The Management also started engaging nearly 600 contract workers though the permanent strength of the workers was only 525. These were highlighted by the second respondent Union. From the beginning, there were lot of disputes between the Trade Union and the Management. A ballot was conducted on 28.7.1972 to got for a strike action. The management, utilising that opportunity, suspended one committee member which provoked the workers to go on strike for 11-1/2 days. The Management refused to participate in any of the negotiations and the strike was given up on 08.8.1972. 4.3. The union leaders were charge-sheeted by the Management and nine leading office bearers were subjected to disciplinary action. They were also suspended from service. After conducting an enquiry, they were dismissed from service on 12.12.1972. Since conciliation proceedings were pending, Approval Petitions were filed before the Conciliation Officer and approval was granted on 17.5.1973. 4.4. Thereafter, the workers raised individual dispute in June 1973. The conciliation ended in a failure in the dispute raised by the Union on 17.11.1973 and the Government, by an order dated 13.6.1974 in G.O. Rt. No. 1077, declined to refer the dispute for adjudication. The petition for reconsideration filed by the Union was also refused on 14.5.1975 by the Government. The Union filed a writ petition being W.P. No. 108 of 1976 challenged the order declining reference. The writ petition was dismissed by an order dated 21.02.1977 as against the same, a writ appeal was filed and the same was also dismissed on 27.4.1978. https://hcservices.ecourts.gov.in/hcservices/ 4.5. Thereafter, the Union filed a reconsideration petition to the Government and subsequently, several letters were addressed to the Government by the Union. Since all of them failed, the Union filed a writ petition being W.P. No. 3299 of 1983 and sought to quash the order dated 05.5.1981 declining to reconsider the reference issue. The Division Bench, by a judgment dated 16.8.1989, directed the Government to make a reference. It was, thereafter, the Government by G.O. Ms. No. 1843 Labour and Employment Department dated 20.10.1989 referred the non-employments of M/s V. Gurumurthy, V. Sampathkumar and V.Krishnamurthy for adjudication by the Labour Court. 5. The matter was taken on file by the first respondent Labour Court as I.D. No. 1034 of 1989. The preliminary issue was held against the Management. The Trade Union filed 139 documents and they were marked as Exs. W.1 to W.139. The Management filed 44 documents and they were marked as Ex. M.1 to M.44. Both sides let in oral evidence. The Labour Court, on an analysis of the evidence (both oral and documentary) passed the Award dated 27.5.1997, which is impugned in this writ petition. By the said Award, the Labour Court directed the reinstatement of M/s V. Gurumurthy and V. Sampathkumar with continuity of service, full backwages and all other attendant benefits. In respect of the claim made on behalf of V.Krishnamurthy, the I.D. was dismissed as not pressed. 6. Pending the writ petition, this Court directed the petitioner Management to deposit a sum of Rs.5,50,331/- with the Labour Court and out of which, the workman V. Sampathkumar was permitted to withdraw Rs. 50,000/- and the balance was directed to be invested in a Fixed Deposit with the Indian Bank, Adyar Branch. Liberty was granted to the workman to withdraw interest every month. Further, the Management was directed to pay Rs.750/- every month to the worker Sampathkumar starting from 10th May 1998 every month in terms of Section 17B of the I.D. Act pending disposal of the writ petition. 7. At present, the issue is confined to the case of V.Sampathkumar alone. The case of the workman V.Krishnamurthy was not pursued before the Labour Court and the dispute against his non- employment was dismissed as not pressed. Though the workman V. Gurumurthy had the benefit of the Award, he gave up his claim for reinstatement and backwages so as to enable the petitioner Management to take a positive decision in favour workman V. Sampathkumar. 8. But, however, the petitioner Management filed this writ petition challenging the relief granted in favour of V. Sampathkumar. In fact, due to the prolonged litigation, even the workman V. Sampathkumar had reached the age of superannuation, ie., 58 years, https://hcservices.ecourts.gov.in/hcservices/ during March 2002. In this writ petition, the enquiry conducted by the Management was held to be not fair and proper by a preliminary order dated 09.5.1994. Thereafter, the Management let in fresh evidence as noted already. 9. The charge against the workman was that on 26.7.1972 around 1.20 pm, he left his work place without sufficient cause and entered other Departments without permission. The workman gave an explanation (Ex. W.13) that the charge was vague. The Labour Court also agreed with the said submission and held that the details of other Departments entered by Sampathkumar were not specified. It was also proved that Sampathkumar took an out pass from his superior and went out of the Company for his personal work. He was not charge-sheeted unlike other workers for going out without permission. The charge No. 3 relates to his inciting other workers to participate in an illegal strike and also he intimidated and threatened one maintenance mechanic to stop work and join in the strike. There was no written complaint about the alleged incitement. While the charges 1 and 2 pertain to the incident dated 26.7.1992 and the charges 4 and 5 pertained to the incidents dated 03.8.1992, no such details were given in respect of the third charge and no Management witness gave evidence in respect of the said charge. 10. Likewise, the fourth charges relates to shouting of abusive and vulgar slogans on 03.8.1972 prejudicial to the reputation of the Company and its officers. Once again, the said charge had lacked details including the nature of abusive words and vulgar slogans. Similarly, the fifth charge relates to the workman obstructing and detaining the bus carrying Company's officers, supervisors and other employees outside the northern gate of the company. No details of the buses detained by the worker including its duration was given. Charge No. 6 was a general charge relating to instigating the previous misconducts. 11. The Labour Court found several contradictions in the deposition of witnesses made before the Court. The Labour Court also found that the details of the first charge were not produced by the Management inspite of demand made by the workman. It also found that the second charge was not proved. The evidence of M.W. 1 in respect of charges 2 and 3 were also not proved to the satisfaction of the Labour Court. In respect of the fourth charge, the Labour Court recorded as follows:- "Further, it is seen from the evidence of the Management witnesses that not only delinquents but also other employees including contract workers were there in the place of occurrence. But the Management has not stated as to why the charge has been levelled only against Sampathkumar and Gurumoorthy alone. As https://hcservices.ecourts.gov.in/hcservices/ rightly contended by the learned counsel appearing for the petitioners, the said charge amounts to discrimination." 12. The Labour Court also found that it is the contract workers who were squatting in front of the bus and it also found that the allegation of stone throwing was true. It held that the number of police personnel would not have allowed the buses to stand one behind the other. It also gave a finding that the so-called overt act attributed to workman Sampathkumar was not proved. 13. Once the enquiry held by the Management is found to be vitiated, then the matter is at large before the Labour Court. The Labour Court is entitled to go into the evidence let in before it for the first time and can render a finding that the evidence was not satisfactory to come to the conclusion that the workman was guilty of charges. In the present case, the Labour Court, as a matter of fact, found the workman not guilty of the charges and he was entitled for the normal relief of reinstatement with backwages. Even on the question of grant of backwages, the workman Sampathkumar had examined himself as W.W.2 and had filed Ex. W.135 series to disclose voluntarily the earnings made by him during the period of non- employment. 14. A Division Bench of this Court in W.P. No. 3299 of 1983, vide its order dated 16.8.1989, while ordering the reference of this dispute with reference to the claim for backwages, observed in paragraph 15 as follows:- ".... Hence, if it be held that that termination is illegal, it is absolutely essential on the part of the Labour Court to apply its mind to find out as to how far the workmen are entitled to backwages, if they have been otherwise gainfully employed. If it is found that they have uttered falsehood, a serious note of the same must be taken into account. It is rather better for themselves to come out with a true statement of what they have been doing hitherto which is the elementary requirement of a litigant to do in a Court of law. Misguiding a Court, uttering falsehoods to secure double advantage, etc., must always be deprecated. If not put down, it would not then be a question of helping the weaker section, and it will result in weakening the Judiciary if unjust claims are allowed to be ordered...." 15. Conscious of this direction, the workman Sampathkumar had filed Ex.W.135 series and also admitted his intermittent employment from the period 1973 to 1994 which earnings worked out Rs.3,38,000/- whereas his total wages from the date of his termination till the date https://hcservices.ecourts.gov.in/hcservices/ of superannuation, will work out to more than 15 lakhs. He also filed a petition under Section 17-B of the I.D. Act for payment in W.M.P. No. 5964 of 1998 supported by an affidavit, which was also ordered by this Court from May 1998 at the rate of Rs.750/- pm. 16. It must be stated that in industrial law, the concept of mitigation of loss caused to the employer is not available while challenging the illegal termination and it is only relevant in civil laws while claiming damages for wrongful termination. However, after the introduction of Section 17-B into the I.D. Act, which disentitles a workman, in case of gainfully employment, from claiming monthly wages till the disposal of the writ petition. By this statutory requirement, the observation made by the Division Bench assumes importance and it may now be a relevant factor in determining the quantum of backwages to be awarded in case the termination was found to be invalid. 17. In the present case, the Labour Court was conscious of such legal position and based on the materials produced before it, granted the relief of reinstatement with full backwages considering that the amount earned by the concerned workman can have no bearing on the quantum to be paid to him. 18. Mr. Arumugam, learned counsel for the petitioner contended that though the termination was made as early as 15.12.1972, the order of reference in the present case, was issued by the Government only on 20.12.1989. Therefore, the Management should not be held responsible for the delay in getting reference and should not be mulcted with backwages for over a period of 17 years. 19. In the present case, the reference was made in the year 1989 and the preliminary order was passed on 09.5.1994. Thereafter, fresh evidence was let in and final Award was passed in the year 1997. Though the argument of the learned counsel for the petitioner may be reasonable with reference to denial of wages if there was delay in getting reference, but the workman cannot be held responsible for the delay in disposal of the reference by the Labour Court. 20. The learned counsel referred to the judgment of the Allahabad High Court in Regional Manager, State Bank of India, Region – III, Kanpur v. Presiding Officer, Central Government Industrial Tribunal – cum – Labour Court, Kanpur [2006 (3) L.L.N. 213] and relied upon the following passages found in paragraphs 19 and 22, which read as follows: Para 19: "It is well-settled that back-wages is not natural consequence in every case of reinstatement. More so, in view of the fact that neither the workman has been able to make a case that he is not gainfully employed https://hcservices.ecourts.gov.in/hcservices/ nor there is any discussion with regard to this nor any specific pleading or proof has been made in this regard." Para 22: "Thus, the sum and substance of the matter is that it is not the absolute consequence of reinstatement that in every case, full back-wages are to be granted, but that the issue of grant of back-wages must be gone into and the grant, if any, of back-wages must be given proper consideration which shall of course vary from case to case." 21. He further relied upon the judgment of the Supreme Court in U.P. SRTC v. Mitthu Singh [(2006) 7 SCC 180] and relied upon the following passage found in paragraph 16:- Para 16: "Thus, entitlement of a workman to get reinstatement does not necessarily result in payment of back wages which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate court/tribunal." 22. In the present case, these factors were very much weighed with the Labour Court when it granted the relief of reinstatement with full backwages. It was the Management which, by filing the writ petition, successfully prevented the workman from being in employment from the date of the Award till 31.3.2002, ie., the date of his superannuation, and he would have worked with full salary for the said period. But what he got as payment under Section 17-B of the I.D. Act at the rate of Rs.750/- and from May 1998 till date, would have got him about Rs.98,000/-. Besides that he was also getting monthly interest on the amount of Rs.5,00,331/- lying in deposit apart from the lump sum payment of Rs.50,000/-. 23. In the light of the above, it must be stated that the impugned Award of the Labour Court does not suffer from any infirmity or illegality and the writ petition is liable to dismissed on that ground. 24. However, with reference to backwages, since there was a delay of 17 years in getting the reference from the Government, the Management need not be mulcted with financial liability for that period. But, for the rest of the period from 1974 to 1994, the workman had admitted intermittent employment and earned some amounts as per Ex. W. 135 series. During the pendency of the writ petition, the workman was also receiving monthly payment of the last drawn wages along with monthly interest from the Bank deposit. Therefore, in https://hcservices.ecourts.gov.in/hcservices/ order to give a quietus to the entire issue, the workman (V. Sampathkumar) is allowed to withdraw the amount of money lying in deposit with the Indian Bank, Adyar Branch, to the credit of I.D. No. 1034 of 1989 as a full and final settlement of all his claims. 25. The writ petition is dismissed with the above directions. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To Presiding Officer Principal Labour Court Chennai 1 cc To Mr.R.Arumugam, Advocate, SR.27602. 1 cc To Mr.K.M.Ramesh, Advocate, SR.27556. W.P. No. 1264 of 1998 SSN(CO) RVL 13.06.2008 https://hcservices.ecourts.gov.in/hcservices/