IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :25.06.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.3303 of 2010 and M.P.Nos.2 & 1 2010 The Management of M/s. Sumangala Steel (P) Ltd, PIPDIC Industrial Estate, Mettupalayam, Puducherry. ...Petitioner Vs. 1.The Presiding Officer, Labour Court, Puducherry. 2.M.Ravichandran ...Respondents Prayer : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records of the first respondent in I.a.No.14/2002 in I.D. No.17/2000 and quash its order dated 15.04.2003. For Petitioner : Mr.Ravindran for M/s.T.S.Gopalan & Co. For Respondents : Mr.N.S.Sivakumar & Mr.A.Karthikeyan for R-2 O R D E R By consent, the main writ petition itself is taken up for disposal. 2. The prayer in the writ petition is for issuance of a writ of Certiorari to quash the order passed by the Labour Court, Puducherry in I.A.No.14/2002 in I.D.No.17/2000, dated 15.04.2003. 3. The Management of M/s. Sumangala Steel (P) Ltd is the petitioner. The case of the petitioner is that it faced severe financial crisis during 1997 and the petitioner put up a notice on 04.12.1999 exempting all the workmen and executives from reporting for duty until further orders, thereby the petitioner suspended the https://hcservices.ecourts.gov.in/hcservices/ manufacturing operations. An Industrial Dispute was raised by the workmen of the unit and the same was referred to the first respondent for adjudication, by an order of reference dated 27.07.2000. The dispute was taken on file as ID No.17/2000 and in the reference, list of names of 61 employees were given including the second respondent. The second respondent was an electrician and pending the Industrial Dispute was able to secure an employment in Sri Lanka and left on 30.05.2000. In the meantime, the petitioner and the recognized Union arrived at a settlement under Section 18(1) of the Industrial Dispute Act, during June 2001 in which, it was agreed that out of 61 workers mentioned in the order of reference, only 16 workmen are under the direct payment of the company and out of the 16 workmen, Ravichandran (second respondent herein) is not residing in India and employed in abroad and therefore, the Union is not pressing the claim of the second respondent, however, he can make his claim on his return. The copy of the settlement under Section 18(1) was filed before the first respondent and an award was passed in terms of the settlement. Thereafter, the second respondent returned from Sri Lanka and he filed an application in I.A.No.14 of 2002 to set aside the award. The said Interlocutory Application was allowed and the first respondent by order dated 15.04.2003 held that the Industrial Dispute could be reopened only in so far as the second respondent. Aggrieved by such order, the petitioner Management has filed the present writ petition. 4. Mr. S.Ravindiran, learned counsel appearing for the petitioner would contend that the award having attained a finality, the first respondent does not have jurisdiction to reopen the same and the only option open to the second respondent is to challenge the award or in the alternative, the second respondent has to raise an independent dispute under Section 2A of the Industrial Disputes Act and the first respondent erroneously has telescoped the claim of the second respondent in justifying the order of re-opening. It is further submitted that the recognized trade union entered into the settlement with the management and the union alone can reopen and when the order of reference itself has been made at the instance of the union, the present order of reopening the proceedings amounts to tampering with the order of reference made by the Government. It is further contended that though the petitioner had filed the writ petition, only in 2010, since the order passed by the first respondent is an illegal order, mere passage of time cannot wipe out the illegality and therefore the Writ Petition is not hit by laches. 5. Mr.N.S.Sivakumar, learned counsel appearing for the respondent would contend that there is no error in the order passed by the first respondent and the facts and circumstances clearly establish that the order was fully justified and within the frame work of the law. It is submitted that even, when the settlement was entered into between the recognized Union and the Management under Section 18(1) of the Industrial Disputes Act, it was specifically https://hcservices.ecourts.gov.in/hcservices/ recorded that the Union is not pressing the claim of the second respondent, however he can make a claim on his return. This condition No.3 in the settlement was accepted by the management. It is further submitted that the second respondent filed I.A.No.14/2002 in I.D.No.17/2000 for reopening the proceedings and the same was allowed by the impugned order dated 15.04.2003. Thereafter, the Industrial Dispute was reopened by the first respondent and the second respondent has filed his claim petition on 08.08.2003 and the petitioner management has filed their counter on 06.10.2003. Subsequently, the second respondent filed a Interlocutory Application for production of documents and after contest, the Interlocutory Application was disposed of on merits and the second respondent was examined in chief on 21.06.2006 and Exhibits P1 to P4 were marked and the second respondent was elaborately cross examined by the petitioner management on 26.07.2006. Subsequently, the second respondent filed I.A.No.62/2009 to summon official witnesses and the management filed counter to the said application and the same was disposed of on merits by order dated 03.12.2009 and the second respondent examined the official witnesses on 04.02.2010 and the Exhibits X1 to X2 were marked. The official witnesses were also cross examined and the matter was adjourned for evidence of the management on 18.02.2010 and at that stage the present writ petition was filed on 16.02.2010 and interim stay was also granted. Therefore, the learned counsel appearing for the second respondent would submit that the writ petitioner having acquiesced themselves of the proceedings and having effectively participated in the proceedings cannot now challenge such order, after a period of 7 years and prayed for dismissal of the writ Petition. 6. I have carefully considered the submissions made by the parties and perused the materials available on record. 7. Two issues, which arises for consideration in the present writ petition are:- i)Whether the second respondent is entitled to reopen the Industrial Dispute, which culminated in an award dated 27.06.2000 and if the answer to such question is "no" then what is the remedy available to the second respondent ? ii)Whether the writ petitioner was justified in approaching this Court after a period of seven years, from the date of the impugned order in I.A.No.14/2002, ordering for reopening in the proceedings after having effectively participated in the trail? 8. It is seen that the petitioner management by notice dated 04.12.1999, suspended its operations and this resulted in an Industrial Dispute and the Union took up the cause of the workmen and the Government of Pondicherry by G.O.RT.No.94, Labour Department dated 27.07.2000, referred the matter for adjudication before the first respondent. The terms of reference are as hereunder:- https://hcservices.ecourts.gov.in/hcservices/ a) Whether the suspension of the Operation of Sumangala Steels Ltd., Mettupalayam, Pondicherry with effect from 04.12.09 by its Management is justified or not? If not, to give appropriate directions. b)Whether the non-employment of the workmen mentioned hereunder by the management of M/s.Sumangala Steels Ltd., Mettupalayam, Pondicherry is justified or not? 9. When the Industrial Dispute was pending, the Employees Union represented that a settlement has been arrived at before the Assistant Commissioner of Labour Department under Section 18(1) of the Industrial Disputes Act and requested that recording such settlement, the industrial dispute may be closed. For the purpose of the present writ petition, clause 3 of the settlement would be relevant, which reads as follows:- "It is also agreed that out of 61 workmen mentioned in the order of reference in I.D.No.17/2000, only 16 workmen are alone direct permanent workmen of the company and out of the 16 workmen, Ravichandran is not residing in India and employed abroad for his betterments. The Union is not pressing the claim of workman Mr.Ravichandran. However, he can make his claim on his return." 10. Though the Union represented all the workmen and the name of the second respondent also found place in the list of workmen, due to his absence, the Union did not press the claim of the second respondent. However, both the petitioner Management and the Union consciously agreed that the second respondent could make his claim on his return. Thus, the rights of the second respondent stood preserved even under the terms of the settlement, which formed part of the award dated 27.09.2001. On returning to India from Sri Lanka, the petitioner filed an application for reopening the proceedings and in the cause title in I.A.No.14/2002, the petitioner is referred to by his name and mentioned as member of Sumangala Steels Uzhiargal Sangam. This application was contested on merits and the first respondent by order dated 15.04.2003, directed that the industrial dispute could be allowed to be reopened only in so far as it relates to the second respondent. The contention of the petitioner is that such award cannot be reopened that too at the instance of the second respondent since the dispute was raised by the Union. In my view such contention is not tenable for more than one reason. Firstly, the rights of the second respondent was not foreclosed and stood preserved in terms of the settlement entered into the petitioner Management and the Employees Union. These terms also formed part of the award dated 27.09.2001. https://hcservices.ecourts.gov.in/hcservices/ 11. In Clause 10 of the terms of settlement, it has been agreed to as follows:- 10. Since all the outstanding issues are settled and both the permanent and contract workmen are paid full and final settlement including compensation, Sumangala Steel Uzhiargal Sangam shall be dissolved and it is agreed that Sumangala Steel Uzhiargar Sangam shall not make any claim in future either for employment or for any monitory benefits for any of the workmen against the management of Sumangala Steel Limited or the contractor. 12. Thus, in view of the agreement arrived at in Clause 10, the recognized Employees Union stood dissolved and the Union agreed not to make in any claim in future. However, it is to be noted that the Union did not press for the claim relating to the second respondent, but however left the right of the second respondent open giving liberty to him to agitate his claim on his return. Therefore, the procedure adopted by the second respondent in seeking to reopen the proceedings cannot be faulted. Admittedly, there is no award in favour of the second respondent and the claim of the second respondent was left open to be adjudicated separately. The management was a party to such settlement and agreed that the second respondent could agitate the matter separately. Further the Union having been dissolved as per clause 10, referred supra, obviously a petition at the instance of Union cannot be maintained. Therefore, the contention that the award has attained the finality and only remedy open to the second respondent is challenged, the award is not well founded. 13.On the second question, it is to be noted that the petitioner management effectively participated in the proceedings before the first respondent and the following dates would amply establish the same. I.A.No.14/2002 was filed by the second respondent for reopening and the same was allowed on 15.04.2003. The second respondent filed a claim petition dated 08.08.2003 and the writ petitioner filed their counter on 06.10.2003 and thereafter, the second respondent was examined in chief on 21.06.2006 and Exhibits P1 to P4 were marked and the second respondent was also cross examined on 26.07.2006, thereafter, the petitioner filed I.A.No.62/2009 to summon official witnesses. This Application was contested by the writ petitioner and order was passed on merits on 03.12.2009 and the official witnesses were examined in chief on 04.02.2010 and Exhibits X1 and X2 were marked and the official witnesses were cross examined by the writ petitioner and the matter was adjourned to 08.02.2010 for production of evidence on the side of the management. At that stage, the writ petitioner has been filed the petition on 16.02.2010. Thus a perusal of the above dates and events clearly reveals that the petitioner acquiesced themselves and accepted the order passed by the Tribunal and effectively participated in the proceedings and filing https://hcservices.ecourts.gov.in/hcservices/ the present writ petition to set aside the order dated 15.04.2003, after a period of seven years is undoubtedly an after thought and liable to be rejected on the ground of inordinate delay and acquiescence. Since, question No.1 has already been answered against the petitioner, and this Court having found that there is no error in the impugned order, the petitioner is dis-entitled to any relief in the present writ petition on account of delay. 14. The first respondent also considered the contention as to whether, the petitioner should be directed to raise an independent dispute under Section 2A and observed that it is a trite proposition of law that as contained in Section 2 A of Industrial Disputes Act, the non employment of the workmen would be deemed to be an Industrial Dispute and already the Industrial Disputes including the non- employment of the second respondent has been referred to the Labour Court and in the settlement also, there is a reservation clause stating that the second respondent can peruse the matter independently and in such circumstances, it would be unfair to drive the second respondent to approach the Government for seeking a fresh reference. The finding rendered by the first respondent is fully justified bearing in mind the object behind enacting the Industrial Disputes Act coupled with the agreement between the parties preserving the rights of the second respondent. 15. Hence, for all the above reasons, the writ petition is devoid of merits and its liable to be dismissed and accordingly, the same is dismissed. Consequently, connected miscellaneous petitions are closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To The Presiding Officer, Labour Court, Puducherry. 1 cc To Mr.N.S.Sivakumar, Advocate, SR.45547 1 cc To M/s.T.S.Gopalan, Advocate, SR.45614 W.P.No.3303 of 2010 MRD(CO) sra 05/07/2010 https://hcservices.ecourts.gov.in/hcservices/