IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.02.2009 Coram The Honourable Mr.Justice K.CHANDRU W.P.Nos.2307 to 2315 of 2000 The Management of Madurai District Central Co-operative Bank Limited 187, Northveli Street, Madurai 625 001 ...Petitioner in all WPs 2307 to 2315/2000 -vs- 1. The Presiding Officer Labour Court Madurai 625 001. ..1st Respondent in all WPs 2307 to 2315/2000 G.Raghuraman ...Respondent in WP 2307/2000 G.Chellapandi ...Respondent in WP 2308/2000 A.Balakrishnan ...Respondent in WP 2309/2000 K.Chellapandian ...Respondent in WP 2310/2000 A.Premkumar ...Respondent in WP 2311/2000 P.Muniandi ...Respondent in WP 2312/2000 G.Muruganandam ...Respondent in WP 2313/2000 S.Nagarajan ...Respondent in WP 2314/2000 P.Kannan ...Respondent in WP 2315/2000 Petition under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records of the first respondent in his award in I.D.No. 73/91 dated 21.4.99,in WP No.2307/2000, ID No.79/91 dated 21.4.99 in WP 2308/2000,ID No.81/91 dated 21.4.99 in WP No.2309/2000, I.D.No.82/91 dated 21.4.99 in WP 2310/2000, ID No.89/91 dated 21.4.1999 in WP https://hcservices.ecourts.gov.in/hcservices/ No.2311/2000,I.D.No.91/91 dated 21.4.1999 in WP 2312/2000,I.D.No.92/91 dated 21.4.99 in WP 2313/2000,I.D.No.128/91 dated 17.2.1999 in WP 2314/2000, I.D.No.256/91 dated 17.2.99 in WP 2315/2000 quash the same. For Petitioner : Mr.R.Parthiban For Respondents : Mr.J.Ravikumar for R2 COMMON ORDER The petitioner in all these writ petitions is the Management of Madurai District Central Co-operative Bank Limited, (herein after referred to as 'the management'). Aggrieved by different awards made by the first respondent Labour Court dated 17.2.1999 and 21.4.1999 respectively, the present writ petitions have been filed. 2. In each of the award, the first respondent Labour Court directed reinstatement of the contesting second respondent with service continuity but without backwages. The writ petitions were admitted on 9.2.2000 and notice was ordered to the contesting respondents. Pending the writ petitions, this Court passed the following order, "There will be interim stay on condition that the writ petitioner deposits the entire backwages payable as on the date of the award to the credit of the respective I.D. within 12 weeks from the date of this order and also the petitioner complies with Section 17-B of the Industrial Disputes Act subject to condition that the second respondent files an affidavit of declaration to the effect that he is not gainfully employed anywhere else. Petition has to comply with section 17-B of the Industrial Disputes Act commencing from first of March 2000. Failing compliance with any one of the conditions, the order of interim stay will stand vacated automatically. " 3. Pursuant to the aforesaid interim order, each of the second respondent filed affidavits before this Court dated 20th July 2000 stating that they were not gainfully employed anywhere. The payment under Section 17B of the Act is a statutory direction given by the Parliament to pay monthly wages to the workmen in case if there was an award directing their reinstatement. This was on the ground that such payment will be akin to subsistence allowance, so that the workman can defend himself before the High Court. However, contrary to the directions issued by this Court, the petitioner management had not paid the said amount so far. https://hcservices.ecourts.gov.in/hcservices/ 4. Once again, the contesting respondents took out applications before this court in WPMP.Nos. 2768 to 2776 of 2007 asking for positive direction to pay monthly wages in terms of Section 17B of the Act. Even in the affidavits dated 28th September 2007, the contesting respondents have made averments that they have not been employed elsewhere. When the matter came up before this Court on 31.1.2008, a lame excuse was made by the counsel for the management by stating that though affidavits were filed into this Court in the year 2000, copies were not served on the management and hence, they were not obliged to make the payment. 5. The direction given under Section 17B of the Act is mandatory and there is no option for the management to wriggle out that obligation. Even the order dated 31.1.2008 is yet to be implemented by the petitioner management. When the Industrial Disputes Act mandates the management to make payments pending a challenge to the award for reinstatement, there is no option to the management, except to comply with the same. In the present case, this Court had given a positive direction in favour of the workmen once during the year February 2000 and the second time during January 2008. If the managements are allowed to flout the orders with such impugnity, the courts will have to come down heavily on such managements. The writ petitions are liable to be rejected solely on the ground that the management had not complied with the mandatory condition precedent for hearing such writ petitions. 6. A perusal of the impugned awards clearly shows that the contesting second respondents have deposed before the Labour Court as WW1 in each of the Industrial Disputes about the number of days worked by them. It is in evidence that these workmen were continuously engaged. Though they were daily rated, but were paid on monthly basis. The workmen also have filed documents before the Labour Court which were marked as exhibits on the their side. 7. The only contention raised by the management before the Labour Court and before this Court was with reference to non sponsorship of the workmen through the employment exchange. The Labour Court rejected the said contention and held that since the mandatory condition precedent under Section 25 F of the Industrial Disputes Act have not been followed, the workmen are entitled to get reinstatement and in such cases, the retrenchments were void abinitio. 8. It was stated that the Government of Tamilnadu issued G.O.Ms. No. 86, Co-operation, Food and Consumer Protection Department dated 12.3.2001 regularising employees who were recruited by various Co- operative Societies during the period from 9.7.1980 to 11.3.2001. When the said G.O. was sought to be enforced, the State resisted the enforcement of the said G.O. The said matter was dealt with by a https://hcservices.ecourts.gov.in/hcservices/ Division bench of this Court in the case of JUSTINE.L v. THE REGISTRAR O COOP. SOCIETIES, reported in 2002 (4) CTC 385. The Division Bench in para 19(i) has held as follows:- "(i) that G.O.Ms.No. 86, Cooperation, Food and Consumer Protection Department dated 12.3.2001, has got the effect of only authorising the regularisation of the employees recruited by the cooperative societies for the period from 9.7.1980 to 11.3.2001 exempting the intervention of employment exchange." 9. Therefore, the contention of the management that the workmen cannot be reinstated as they have not come through the employment exchange cannot hold water. The Government Order can be construed as exempting those employees from getting routed through employment exchange before the date of the Government Order viz., 12.3.2001. In the said judgement, though this Court has held that unless there are sanctioned posts, regularisation cannot be considered in terms of the G.O.Ms. No. 86, in the present case, the workmen did not claim their right of regularisation in terms of that Government Order. On the contrary, they placed reliance on Chapter VA of the Industrial Disputes Act. The contention made in the affidavit that the engagement of the workmen was on contingency basis and no appointment orders were issued so as to enable the workmen to seek protection from the purview of Chapter VA of the Industrial Disputes Act also does not have any merit. It is rather too late for the management to contend that there was no master and servant relationship with the contesting respondent. The attempt by the management to contend that since there is no specific order of appointment, the question of termination does not arise cannot be accepted since, Section 25J(2) has a non obstante clause and overrides contracts to the contrary. The further attempt of the management to contend that this would not amount to a retrenchment in terms of Section 2(oo)(bb) of the Industrial Disputes Act, cannot also be accepted, because there is no fixed contract and in some cases, workers have worked for more than a decade. 10. The contention that the contesting respondents have not discharged their onus of proof in proving their continuity also cannot be accepted because in each of the case, the workmen had gone to the box and deposed about the length of service by them and there was no denial by way of any contra evidence. Learned counsel for the petitioner also placed reliance on the judgement of this Court relating to PRESIDENT, SRIRANGAM CO-OPERATIVE URBAN BANK LIMITED v. PRESIDING OFFICER, LABOUR COURT, MAURAI, K.NAGARAJ reported in 1996(2) LLJ 216. In similar circumstance, the award passed by a Labour Court was upheld by the Division Bench of this Court. 11. Further, In any event, the Supreme Court vide its judgement https://hcservices.ecourts.gov.in/hcservices/ reported in AIR 1976 SC 1111, STATE BANK OF INDIA v. SUNDARMONEY has categorically held that an infraction of 25F of the Industrial Disputes Act must enure to the benefit of the workmen's reinstatement with full backwages last drawn by him. In the present case, the Labour Court had not granted backwages and the workmen have also not come up against that portion of the award denying the backwages. 12. Considering the obstinate stand of the management in not implementing the earlier orders of this Court and also the fact that the award which are under challenge in all the writ petitions did not suffer from infirmity or illegality, all the writ petitions will stand dismissed. In each of the writ petitions, the petitioner management is directed to pay cost of Rs.1000/- to the counsel for the second respondent towards counsel fee. The petitioner management is directed to implement the award within a period of eight weeks from the date of receipt of copy of this order. Further, the petitioner is also directed to comply with the interim order passed by this Court on 9.2.2000 within the same time of eight weeks. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar bg To The Presiding Officer, Labour Court, Madurai. +7ccs to Mr.R.Parthiban, Advocate Sr 5749,5752 to 5757 +9ccs to Mr.J.Ravikumar,Advocate Sr 5583 to 5591 SGL(CO) km/27.2. W.P.Nos.2307 to 2315 of 2000 https://hcservices.ecourts.gov.in/hcservices/