IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.07.2011 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.10593 to 10598 OF 2011 and M.P.Nos.1 to 1 and 2 to 2 of 2011 M/s Dhanalakshmi Mills Ltd., 130 B.S.Sundaram Road Tirupur 641 601 rep. by its Manager S.Krishnan ...Petitioner in all W.Ps. Vs. 1.The Presiding Officer, Labour Court, Coimbatore. ...1st respondent in all W.Ps. K.Saminathan ...2nd respdt. in W.P.No.10593/11 Karunamoorthy ...2nd respdt. in W.P.No.10594/11 P.Kamalasekaran ...2nd respdt. in W.P.No.10595/11 R.Dhandapani ...2nd respdt. in W.P.No.10596/11 G.Veeraswamy ...2nd respdt. in W.P.No.10597/11 P.Natarajan ...2nd respdt. in W.P.No.10598/11 Petitions filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records and quash the common order dated 21.1.2011 passed in C.P.No.291,293,296,297,292 and 295 of 2008 on the file of the first respondent, Presiding Officer, Labour Court, Coimbatore. For Petitioner in all W.Ps:Mr.S.Ravi for M/s Gupta & Ravi For Respondent No.2 in W.P.No.10595/11 : No Appearance For Respondent No.2 in W.P.No.10593, 10594, 10596, 10597 and 10598/2011 :Mr.K.M.Ramesh O R D E R Heard Mr.Ravi appearing for M/s Gupta and Ravi and Mr.K.M.Ramesh appearing for the contesting respondents. 2. All these writ petitions were filed by the petitioner- Management seeking to challenge the common order dated 21.01.2011 https://hcservices.ecourts.gov.in/hcservices/ passed by the first respondent-Labour Court, Coimbatore in Claim Petition Nos.291 to 293 and 295 to 297 of 2008. 3. Notice of motion was ordered in these writ petitions on 26.11.2011. Pending notice, interim stay was granted. On such notice, the workers are represented through counsel. 4. The facts leading to this case are as follows: The contesting-second respondents in these writ petitions filed claim petitions before the first respondent-Labour Court under Section 33-C(2) of the Industrial Disputes Act (In short as I.D.Act). The claim petitions were filed separately by each of the contesting respondents- workmen claiming wags for the period from 15.04.2006, the date on which they were terminated from service prematurely till the date on which they have actually terminated from the services of the petitioner-Mill. 5. On receipt of the claim petitions, notice was ordered to the petitioner-Mill. They have filed a counter statement dated 27.01.2009 in each of the claim petitions. All the claim petitions are grouped together and a joint trial was conducted before the Labour Court. 6. Before the Labour Court, on behalf of the petitioner- workmen, eight documents were filed and marked as Exs.W1 to W8. On the side of the workmen, one P.Natarajan, petitioner in C.P.No.295 of 2008 and the second respondent in W.P.No.10598 of 2011 was examined as WW1. Curiously, on the said of the Mill, no documents were filed and no witnesses were examined. They rest contended with the counter statement filed by them objecting to the maintainability of the claim petitions filed under Section 33C(2) of the I.D.Act. 7. The contention raised by the petitioners before the Labour Court was that at the time of their joining in service, they produced necessary records in support of their date of birth and the the same has been duly entered in their Service records. Since the workmen were also covered under the provisions of the ESI Act, they were given Identify Card which also contains the actual date of birth of the workers. While that is so, the workmen in these writ petitions were unnecessarily asked by the Management to appear for medical examination by the Medical Board by a communication dated 24.02.2006, within a period of three days and the letters requesting them to appear before the Medical Board, were marked as Ex.W1 (series). The workmen proceeded against the direction to go before the Medical Board by their replies dated 27.02.2006 except the one Karunamoorthy (Second respondent in W.P.NO.10954 of 2011)which are marked as Ex.W2 (series). The Trade Union which represented their cause also sent a reply dated 28.02.2006 to the management against the unique stand taken by them. Since the contesting respondents have not appeared before the Medical Board, the petitioner-management issued orders of https://hcservices.ecourts.gov.in/hcservices/ retirement to the workers by communications dated 13.04.2006 which are marked as Ex.W6 (series) and in that communication, the management informed the workmen that despite opportunity was given to them to appear before the Medical Board, they have not done so, and therefore it was presumed that each of the workmen have completed 58 years of age and therefore, they being superannuated from service. The workmen contended before the Labour Court that the orders in Ex.W6 (series) would not amount to retrenchment as defined in Section 2 (oo)of the I.D.Act and since the petitioner-mill is governed by the provision of Chapter V-B of I.D.Act, more particularly, under Section 25N of the I.D Act which requires prior permission before effecting retrenchment and they being prematurely sent out of service, the protection under Section 25N will apply to them and inasmuch as no prior approval was obtained for effecting retrenchment they are entitled to wages, as if they have never been retrenched from service. 8. Under Section 25-N(7), if no application for permission is made by the Management under Section 25-N(1) or if the application is made and it is refused by the competent authority, retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workmen and the workmen shall be entitled to all the benefits under any law for the time being in force, as if no notice had been given to them. They had also additionally submitted that since the dispute is pending before the Special Industrial Tribunal, no prior approval was obtained for terminating them from service and their termination was void ab initio, in view of the contravention of Section 33(2)(b) of the I.D.Act and in this context, they also referred to a Judgment of the Constitution Bench of Supreme Court in Jaipur Zila Sahakri Bhoomi Vikas Bank Ltd., Vs. Ram Gopal Sharma and others reported in 2002 (1) LLN 639. In response to their allegation in the counter statement, the petitioner management contended that the claim of this nature cannot be decided in a petition under Section 33C(2) of the I.D.Act. If the contesting respondents have been sent out illegally, they should raise a dispute for a proper adjudication and in respect of the claim under Section 25N(7)of the I.D.Act, it was contended that it is not retrenchment within the meaning of Section 2(oo) of the I.D.Act. Since it is not the case of dismissal for any misconduct, the provision of 33(2)(b) of the I.D.Act is not attracted and the question of prior approval will not arise. 9. Before the Labour Court, W.W.1, Natarajan, the petitioner in C.P.No.295/2008 also marked as Ex.W8 (series), a copy of the SSLC book containing the Date of birth in respect him and in respect of Karunamoorthy, petitioner in C.P.No.293/2008 also, a copy of S.S.L.C. Mark sheet concerning the petitioner Mr.Veeraswamy and copies of Identity cards issued by the ESI Corporation in respect of six workmen and all the documents were marked as Ex.W8 series. The Labour Court on an analysis of the evidence ((both oral and documentary) came to the conclusion that the termination of second https://hcservices.ecourts.gov.in/hcservices/ respondent workmen will amount to retrenchment under Section 2(oo) of I.D.Act and since no prior approval under Section 25-N(1)of the I.D.Act was obtained, they are entitled for the wages from the date on which they were terminated from service prematurely till the date on which they have actually terminated from the services of the petitioner-Mill, as per the records kept by the petitioner management. The Labour Court also held that since there is a provision under Section 33 (2)(b) of the I.D.Act, their termination is void-ab-initio. However, it is unnecessary to go into the said finding and the question that Section 33(2)(b) of the I.D.Act attracts will arise, only if there is a dismissal for any misconduct and therefore, in the present case, it is not the stand of both sides that the contesting respondents were sent on any ground of misconduct, but it is suffice that the claim of the contesting respondents workmen can be justified on the basis that they were illegally retrenched and since the petitioner mill is covered by the provisions of Chapter V-B and inasmuch no prior approval was obtained, the workmen are entitled to claim wages, as if they were now retrenched and Section 25N(7) of the I.D.Act gives them right to claim wages. 10. Mr.Ravi, learned counsel for the petitioner placing reliance upon the Judgment of the Supreme Court in NILPUR TEA ESTATE VS. STATE OF ASSAM AND OTHERS reported in (1996) 1 SCC 60 and would contend that without challenging the order of termination, the question of claiming wages under Section 33-C(2) of I.D.Act will not arise. He also referred to the Judgment of the Supreme Court in State of Uttar Pradesh and another Vs. Brijpal Singh reported in 2005 (4) L.L.N.338 and contended that unless the order of dismissal is declared as unlawful, Section 33-C(2) is not maintainable. He further referred to the decision of this Court, in P.R.Viswambaram and others Vs. Presiding Officer & another reported in 2008(4) L.L.N.597 wherein this Court negatived the claim under Section 33C(2) of the I.D.Act with reference to the claim for wages in the lock out period. But it is not clear as to how these decisions would assist the case of the petitioner-management. 11. On the contrary, if a claim is based upon a V-B of the I.D.Act, the Supreme Court in Fabril Gasosa Vs. Labour Commissioner and others reported in (1997) 3 SCC 150 held that in such case, even the worker can ask for the issuance of recovery certificate before the appropriate competent authority. In paragraphs 19 to 21, it was observed as follows: 19. Section 33-C is in the nature of execution proceedings designed to recover the dues to the workmen. Vide Sections 33-C(1) and (2), the legislature has provided a speedy remedy to the workmen to have the benefits of a settlement or award which are due to them and are capable of being computed in terms of money, be https://hcservices.ecourts.gov.in/hcservices/ recovered through the proceedings under those sub- sections. The distinction between sub-section (1) and sub-section (2) of Section 33-C lies mainly in the procedural aspect and not with any substantive rights of workmen as conferred by these two sub-sections. Sub- section (1) comes into play when on the application of a workman himself or any other person assigned by him in writing in this behalf or his assignee or heirs in case of his death, the appropriate Government is satisfied that the amounts so claimed are due and payable to that workman. On that satisfaction being arrived at, the Government can initiate action under this sub-section for recovery of the amount provided the amount is a determined one and requires no “adjudication”. The appropriate Government does not have the power to determine the amount due to any workman under sub- section (1) and that determination can only be done by the labour court under sub-section (2) or in a reference under Section 10(1) of the Act. Even after the determination is made by the labour court under sub- section (2) the amount so determined by the labour court, can be recovered through the summary and speedy procedure provided by sub-section (1). Sub-section (1) does not control or affect the ambit and operation of sub-section (2) which is wider in scope than sub-section (1). Besides the rights conferred under Section 33-C(2) exist in addition to any other mode of recovery which the workman has under the law. An analysis of the scheme of Sections 33-C(1) and 33-C(2) shows that the difference between the two sub-sections is quite obvious. While the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or V-B, sub-section (2) deals with cases where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. Thus, where the amount due to the workmen, flowing from the obligations under a settlement, is predetermined and ascertained or can be arrived at by any arithmetical calculation or simpliciter verification and the only inquiry that is required to be made is whether it is due to the workmen or not, recourse to the summary proceedings under Section 33-C(1) of the Act is not only appropriate but also desirable to prevent harassment to the workmen. Sub-section (1) of Section 33-C entitles the workmen to apply to the appropriate Government for issuance of a certificate of recovery for any money due to them under an award or a settlement or under the provisions of Chapter V-A and the Government, if satisfied, that a https://hcservices.ecourts.gov.in/hcservices/ specific sum is due to the workmen, is obliged to issue a certificate for the recovery of the amount due. After the requisite certificate is issued by the Government to the Collector, the Collector is under a statutory duty to recover the amounts due under the certificate issued to him. The procedure is aimed at providing a speedy, cheap and summary manner of recovery of the amount due, which the employer has wrongfully withheld. It, therefore, follows that where money due is on the basis of some amount predetermined like the VDA, the rate of which stands determined in terms of the settlement, an award or under Chapter V-A or V-B, and the period for which the arrears are claimed is also known, the case would be covered by sub-section (1) as only a calculation of the amount is required to be made. 20. A Constitution Bench of this Court in Kays Construction Co. (P) Ltd. v. State of U.P.1 while considering the scope of Section 6-H(1) and (2) of the U.P. Industrial Disputes Act, 1947, which provisions are in pari materia with Sections 33-C(1) and (2) opined: “The contrast in the two sub-sections between ‘money due’ under the first sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes ‘money due’ under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the ‘amount due’ and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between ‘money due’ and a ‘benefit which must be computed in terms of money’ still remains, for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit.” 21. The law laid down by the Constitution Bench applies with full force to the facts of the instant case and in view of the established facts and circumstances of this case, recourse to the proceedings under Section 33-C(1) of the Act by the Union was just and proper. https://hcservices.ecourts.gov.in/hcservices/ 12. When the worker can directly seek for issuance of recovery certificate and there is no dispute regarding their right, all the more reason that the petition under Section 33-C(2) of the I.D.Act, is maintainable. 13. The right of the workmen as guaranteed by Section 25-N(7) of the I.D.Act. Mr.K.M.Ramesh, learned counsel for the workmen contended that there was no admission that the provision of Chapter V will apply to the management. Even this contention is misconceived, because the workmen in their claim petition, in Paragraph 4, had categorically stated that the petitioner really employed more than 200 workers and Chapter V-B applies to them. In their counter statement, there is no specific denial of the said paragraph and on the contrary, in Paragraph 4(b), the only legal ground was raised to the effect that the termination of the services of the workmen would not amount to retrenchment as defined under Section 2(oo) of the I.D, Act. In the present case, the date of birth has already been noted in the service register and they are having identify cards issued by the E.S.I. Corporation and in two cases, School Leaving certificates showing their age were also filed. Merely because they did not appear before the Medical Board for a fresh examination, no presumption of their date of birth can be made. Therefore, when the employer seek to alter the service record without any proper material, it can be safely presumed that such an action of the employer would amount to termination and coming within the wide power definitely under Section 2(oo) of the I.D.Act. The true meaning of the term 'retrenchment', came to be considered in several judgments of the Supreme Court. The first among the same is the The State Bank of India Vs. N.Sundara Money reported in AIR 1976 SC 1111. Therefore, this Court has no hesitation in holding that the action of the employer in issuing Ex.W6 (series) will amount to 'termination' coming within the definition of 2(oo) of the I.D.Act, which directly attracts the protection under Chapter V-B of the I.D.Act. Therefore, the second objection also stands overruled. 14. The third contention raised is that since the petitioner management is disputing the rights of the workmen and therefore, the petitions filed under Section 33-C(2) of the I.D.Act is not maintainable. The said issue is no longer res integra. The Division Bench of this Court in (Ramakrishna Ramnath Vs The State of Maharashtra ) reported in 1975 LAB I.C. 1561 held that if the claim under Chapter V-A of the I.D.Act, merely because the employer disputes the retrenchment, that does not oust the jurisdiction of the Labour Court. In paragraph11 of the said judgment, it was observed as follows: 11. ....."The decision, therefore, is clearly an authority for the proposition that where the claim is founded on the statutory provisions such as Section 25-F https://hcservices.ecourts.gov.in/hcservices/ or Section 25-FFF and that claim is contested on the ground that there was no retrenchment or that there was no closure, then merely on such a plea the jurisdiction of the Labour Court cannot be ousted and the Labour Court was competent to go into the question firstly, whether there was a retrenchment or not or closure or not; and in case the finding was in favour of the employee, then to proceed further to compute the benefit in terms of rights given in Chapter V-A of the Act. The present case falls squarely within the dictum of the Supreme Court in R.B.Bansilal Abirchand Mills Co.Case (1972 Lab IC 285)" 15. However, in the present case, the petitioner management has miserably failed to equip itself to lead any evidence before the Labour Court in not filing the documents to contradict the factual disputes raised in all the cases. Under the circumstances, there is no case made out to interfere with the well considered order passed by the Labour Court. All the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar VJY To 1.The Presiding Officer, Labour Court, Coimbatore. 6 cc to M/s Gupta & Ravi , Advocate, Sr.No.41085 to 41090. 1 cc to Mr.K.M.Ramesh , Advocate, Sr.No.40997 W.P.NO.10593 to 10598 OF 2011 and connected M.Ps. gr(co) pmk.26.7.2011 https://hcservices.ecourts.gov.in/hcservices/