IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.1949 and 7558 of 2010 1.S.Gunasekarana1 2.K.M.Ramesh Secretary, Labour Law Practitioners' Association 157,Additional Law Chambers, High Court Buildings, Chennai-600 104. .. Petitioners in W.P.No.1949 of 2010 R.Chandaran .. Petitioner in W.P.No.7558 of 2010 Vs. 1.The Government of Tamil Nadu, rep by its Secretary to Government, Labour and Employment Department, Fort St. George, Chennai-600 009. 2.The Secretary to Government, Law Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 3.The Presiding Officer, Principal Labour Court, High Court Buildings, Chennai-600 104. .. Respondents in W.P.No.1949 of 2010 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Management of Lower Kothagiri Industrial Cooperative Tea Factory, Bazzar Post, Kothagiri, Nilgiris. .. Respondents in W.P.No.7558 of 2010 W.P.No.1949 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents 1 and 2 to create sufficient infrastructure for effective implementation/enforcement of the https://hcservices.ecourts.gov.in/hcservices/ Awards and orders passed by the Labour Courts and Industrial Tribunal as per Section 11-B of the industrial Disputes, Act 1947 introduced vide Tamil Nadu Act 45 of 2008 with effect from 07.11.2008 within a time frame. W.P.No.7558 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to number the execution petition in C.F.R.No.3853 of 2009 under Section 11-B of the I.D. Act, take it on file and dispose of the same in accordance with law. For Petitioners : Mr.Balan Haridoss in W.P.No.1949 of 2010 Mr.G.B.Saravana Bhavan in W.P.No.7558 of 2010 For Respondents : Mr.Senthilkumar, AGP and Mr.R.Murali, GA for RR1 and 2 in W.P.No.1949 of 2010 COMMON ORDER These two writ petitions came to be posted before this court on being specially ordered by the Hon'ble Chief Justice vide his order dated 13.4.2010. 2.In the first writ petition, the first petitioner is the workmen, who was an employee of Tamil Nadu Civil Service Corporation and covered by the Award in I.D.No.359 of 1979 passed by the Labour Court, which was upheld by this court in the writ petition as well as in a writ appeal. He sought for the execution of the Award by filing an application under Section 11-B of the Industrial Disputes Act on 08.12.2009. Since the Labour Court do not have any infrastructure pursuant to the State amendment to the Industrial Disputes Act, the second petitioner Association took up the cause and filed the first writ petition seeking for a direction to first and second respondents to create sufficient infrastructure for the effective implementation of the Award or order passed by the Labour Court and Industrial Tribunal as per Section 11-B of the I.D. Act introduced by Tamil Nadu Act 45/2008 with effect from 7.11.2008 within a time frame. In that writ petition, notice of motion was ordered on 03.12.2010. 3.In the meanwhile, the second writ petition came to be filed. The petitioner in that writ petition is a workman covered by I.D.No.484 of 1999, dated 8.7.2002, wherein and by which he was given the relief of reinstatement with service continuity but without backwages. Since the said award was not implemented, he filed a petition under Section 33C(2) of the ID Act being C.P.No.509 of 2003 before the Labour Court, Coimbatore. In that computation petition, the Labour Court had computed a sum of Rs.83,329/- as due and payable to the petitioner. It was at that stage, the Tamil Nadu Act 45 of 2008 was enacted, wherein the Labour Courts were specifically empowered with power to execute its own award as a decree of the civil court by introducing Section 11- https://hcservices.ecourts.gov.in/hcservices/ B of the ID Act. The said amendment was brought into force with effect from 07.11.2008. Therefore, the petitioner filed an execution petition before the Labour Court in an unnumbered E.P. in the year 2009. The Presiding Officer of the Labour Court had returned the papers by stating that there were no Government orders issued granting the power to the Labour Court. Even though the petitioner several times represented his petition, the Labour Court repeatedly returned the application by stating that since no Government order was issued, the application cannot be taken on file. It was a rather unfortunate situation made by the Labour Court which forced the petitioner to come to this court seeking for a direction to the Labour Court to entertain his execution petition filed under Section 11-B of the Act and to deal with the same. When that writ petition came up on 15.4.2010, it was directed to be posted along with the first writ petition. 4.Since the issue involved in both the writ petitions are common, they were heard together. It must be noted that the Industrial Disputes Act, 1947 (Central Act 14/1947) was enacted with effect from 11.3.1947. The Act was intended to make provisions for investigation and settlement of the industrial disputes and for settling certain other issues. The Labour Courts were created under Section 7 of the said Act for adjudication of disputes relating to matters specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act. Under Section 7A, similarly Industrial Tribunals were created for the very same purpose and for adjudicating the disputes relating to matters specified in the Second and Third Schedules and also to perform such other functions as may be assigned to them. The powers of Labour Courts are conferred under Section 11. Under section 11 (3), the Labour Courts and Industrial Tribunals were granted same powers as are vested with the Civil Courts under the Code of Civil Procedure, 1908 when trying the suit in respect of enforcement of attendance of any person, examining witnesses on oath, compelling production of documents and material objects, issuing commission for examination of witnesses and in respect of other matters as may be prescribed. Normally, the Labour Court gets its power of adjudication on reference made by an appropriate Government under Section 10(1). But however in the State of Tamil Nadu by the introduction of Section 2A(2), routing the disputes by getting orders from the State Government was dispensed with and it was enough if the workmen who is non employed to go before a Conciliation Officer. After the failure of conciliation, if he files the claim statement along with the failure report it will be considered as a deemed reference of the industrial dispute. 5.After the introduction of Section 2A in the year 1965, number of disputes brought to the Labour Courts have increased by several folds. This was because an individual dispute need not be sponsored by a trade Union. The workmen have been given power to approach the Labour Courts directly in case of his non employment. The Labour Court after the adjudication of a dispute passes an Award. Such an Award is published in terms of Section 17 of the ID Act. Once an Award is published, it becomes operational within 30 https://hcservices.ecourts.gov.in/hcservices/ days from the date of publication of the Award. In case, if the employer did not implement the award which is favourable to the workman, two courses are open to the workman. One is to prosecute the employer under Section 29 of the ID Act or in alternative seek for the computation of monetary benefits arising out of such award in terms of Section 33C(2) of the I.D. Act. If the award itself quantifies the monetary benefits or after computation of monetary benefits of Award by the Labour Court under Section 33C(2) of the ID Act, if amounts are not paid by an employer, Section 33C(1) of the ID Act provides for recovery of money dues by an employer on a certificate issued by the appropriate Government to collect or recover amounts as if it is an arrear of land revenue. 6.Therefore, the Government from the time when the ID Act was enacted was utilizing the power under Section 33C(1) to recover the amounts as an arrear of land revenue. It involves a cumbersome process. The workmen approaching the State Government for a certificate will have to produce proof for his monetary entitlement and thereafter, the Government after making an enquiry and giving show cause notice to the employer will issue an order in the form of the Government Order directing the concerned District Collector to recover the amount. The District Collector concerned thereafter directs his subordinate Tahsildar in-charge of the Taluk to recover the amount from the concerned employer as arrear of land revenue. Many occasions, the workmen got dissatisfied with the procedures because subordinate revenue officials never made any effort to recover amounts earnestly either because the employer was a powerful person in that area or their arms were greased for not taking an action. This had resulted the workmen approaching this Court by way of proceedings under Article 226 of the Constitution for directing the District Collector to make efforts to recovery the amount. Thereafter, some efforts were taken by the revenue officials to implement the order of the State Government. In this process, many times the employer get disappeared from the scene or the properties were altered or alienated. 7.When this Court gave a direction to furnish the number of certificates issued under Section 33C(1), the learned Additional Government Pleader produced the following details in respect of the certificates issued under Section 33C(1) for the last years which reads as follows: Sl.No. Year No. of certificates issued 1 2008 103 2 2009 88 3 2010 46 ------- Total 237 ------- 8.It was because of the unsatisfactory nature of the execution machinery, the Labour Advisory Board and many trade unions were sought for conferment of execution power to the Labour Courts themselves. The State Government after accepting such pleas had brought a legislation and amended the Industrial Dispute Act by Tamil Nadu Act 45 of 2008. The amendment Act reads as follows: https://hcservices.ecourts.gov.in/hcservices/ 1.(1)This Act may be called the Industrial Disputes (Tamil Nadu Amendment) Act, 2008. (2)It extends to the whole of the State of Tamil Nadu. (3)It shall come into force on such date as the State Government may, by notification, appoint. 2.After section 11-A of the Industrial Disputes Act, 1947, the following section shall be inserted, namely:- "11-B.Power of a Labour Court or Tribunal to execute its award by decree.-A Labour Court or a Tribunal shall have the power of a civil court to execute its own award as a decree of a civil court and also to execute any settlement as defined in clause (p) of section 2 as a decree." (Emphasis added) 9.The amendment also received the assent of the President of India on 18.09.2008. As required under Section 1(3) of the Amendment Act, the State Government had issued G.O.Ms.No.134, Labour and Employment Department, dated 07.11.2008 and notified the amendment. The said notification was published in the Tamil Nadu Government Gazette Extraordinary in Part II Section 2, dated 7.11.2008. The notification reads as follows: "In exercise of the powers conferred by sub-section (3) of Section 1 of the Industrial Disputes (Tamil Nadu Amendment) Act, 2008 (Tamil Nadu Act 45 of 2008), the Governor of Tamil Nadu hereby appoints the 7th November 2008 as the date on which the said Act shall come into force." 10.Notwithstanding bringing into force of the amendment, the Labour Courts were unable to take up such applications in the absence of necessary infrastructures, i.e., additional staff required for executing the Award and settlements. Therefore, complaints were received as in the case of the two writ petitioners and request for creating infrastructures for the Labour Courts in the State of Tamil Nadu. The following courts are functioning under Sections 7 and 7A of the Industrial Disputes Act constituted by the State Government. i)Industrial Tribunal, Chennai. ii)Principal Labour Court, Chennai. Iii) I Additional Labour Court, Chennai. iv) II Additional Labour Court, Chennai. v) III Additional Labour Court, Chennai. vi)Labour Court, Coimbatore. Vii)Labour Court, Madurai. Viii)Labour Court, Salem. ix)LAbour Court, Tiruchirappalli. x)Labour Court, Tirunelveli. xi)Labour Court, Cuddalore. Xii)Labour Court, Vellore xiii)Additional Labour Court, Vellore. https://hcservices.ecourts.gov.in/hcservices/ Thus there are 12 Labour Courts and one Industrial Tribunal for the 30 Revenue Districts in Tamil Nadu. There is only one Labour Court for each 3 Revenue Districts. By the said amendment, the Labour Court is not only expected to execute its own Awards, but also settlements signed between the parties. The term "settlement" is defined under Section 2(p) of the I.D. Act which means settlement arrived at in the course of conciliation proceedings and also the written agreement between the employer and workmen arrived at otherwise then in the course of conciliation proceedings. Therefore, the Labour Court by amendment is not only expected to execute its Awards and the orders passed under Section 33C(2), but also settlements between the employer and the workmen either bipartite (Section 18(1)) or tripartite (S.12(3) read with S.18 (3)). This will create enormous work for the Labour Courts and without necessary supporting staff, it will be unthinkable that the Labour Court can execute such execution petitions as required under law. 11.In the first writ petition, the Labour Law Practitioners' Association also sent a representation to the State Government on 21.12.2009. Therefore, when the matter came up on 16.4.2010, this Court in view of the important issues raised and the urgency pleaded, had directed the Secretary to the Government, Labour Department, (first and second respondents herein) to file a proposal for sanctioning additional staff and infrastructure in view of the introduction of Section 11B. Obviously, the Government did not have an idea about the additional supporting staff and infrastructure required for bringing into force the amendment. Therefore, the Government by its letter dated 22.4.2010 sent a reply. The operative portion of the reply reads as follows: "While the proposal for insertion of a proviso to section 11-B in order to enable the creation of posts of bailiffs to Labour Courts/Industrial Tribunals, is under the consideration of the Government, the Hon'ble High Court of Madras have issued the direction to file proposal to sanction additional staff and infrastructure in view of the introduction of section 11-B in the Industrial Disputes Act by Tamil Nadu Amendment Act 45 of 2008 and the consequential Government Order issued in G.O.No.134, Labour and Employment Department dated 7.11.2008. In this connection, in compliance with the directions of the High Court, I am to request the Registrar General, High Court to send necessary proposals to provide one Head Bailiff and a junior Bailiff along with infrastructure to each of the 12 labour courts and Industrial Tribunal functioning in the State of Tamilnadu, in view of the introduction of section 11-B in the Industrial Disputes by Tamil Nadu Amendment Act 45 of 2008 and the consequential Government Order issued in G.O.No.134, Labour and Employment Department dated 7.11.2008 so as to enable the Government to accord sanction for the same and to comply with the directions of the Honourable High Court of Madras." https://hcservices.ecourts.gov.in/hcservices/ (Emphasis added) 12.Thereafter, pursuant to the direction issued by this court on 16.4.2010, a status report was sent on 22.4.2010. In that report, it was stated as follows: "In this connection, in compliance with the directions of the High Court, the Government have requested the Registrar General to send necessary proposals to appoint required number of Bailiffs and to provide infrastructure to labour courts and Industrial Tribunal functioning in the State of Tamilnadu, in view of the introduction of section 11- B in the Industrial Disputes Act by Tamil Nadu Amendment Act 45 of 2008 and the consequential Government Order issued in G.O.No.134, Labour and Employment Department dated 7.11.2008, so as to enable the Government to accord sanction for the same and comply with the directions of the Honourable High Court of Madras." 13.Pursuant to the request made by the State Government, the Registrar General of this Court sent a proposal after consulting with the Labour judiciary giving details of the total number of staff, pay scales as well as expenditure towards recurring as well as non recurring expenditures including infrastructures and additional accommodation that was required. The operative portion of that letter reads as follows: "I am, therefore, to request that necessary orders of the Government for the sanction of 34 posts along with infrastructure for the creation of Nazareth establishment to each Labour Courts functioning ie. 8 units in the state of Tamil Nadu, may kindly be obtained and communicated to the High Court, immediately." 14.After the receipt of the proposal sent by the High Court, the Government had submitted a status report on 6.8.2010. In page 4 of the Status Report, it was stated as follows: "It is submitted that for the sanction the Non recurring and Recurring expenditure the consent of Finance Department has to be obtained. For creation 34 posts in each Labour Courts, the consent of Home, Finance and P & AR Department and then the approval of Staff Committee is required. After obtaining the consent from both the Advisory Department the file has to be circulated and order in circulation has to be obtained. As these administrative procedure are mandatory and to followed scrupulously, it will take some more time to finalise the issue. It is submitted that complying https://hcservices.ecourts.gov.in/hcservices/ the order of this Hon'ble Court, it will take some more time. Hence, it is just and necessary to grant extension of time to comply fully the order of this Hon'ble Court. It is also submitted that if the extension of time is not granted, the Respondents will be put into much hardship. In view of the facts and circumstances as stated above, it is humbly prayed that this Hon'ble Court may be pleased to grant extension of time for a period of 3 months to comply with the order dated 16.04.2010 in W.P.No.1949 of 2010 and thus render justice." (Emphasis added) 15.Thereafter, the Government sent letters asking for further particulars regarding details of the staff available, existing infrastructure available and the financial commitments involved. Apparently, these two letters were not signed by the Secretary, but by the Additional Secretary. Even though in the earlier letters sent and reflected in the status report, all the details were made available, attempts were made to delay the issue intentionally. The Government had its own reservation about sanctioning such amounts which may work out to Rs.4.5 Crores per annum with additional amounts towards creation of infrastructure. However suddenly there was an volte face by the Government. The first respondent sent a reply dated 02.11.2010 to the Registrar General. The operative portion of the reply found in paragraphs 4 and 5 reads as follows: "4.Now the Government of India, has amended the Industrial Disputes Act 1947, Section 11 as follows. In section 11 of the Principal Act, after sub section (8), the following sub sections shall be inserted, namely:- "Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree of a civil court under Order 21 of the code of civil procedure, 1908. The Labour Court or Tribunal or National Tribunal, as the case may be shall transmit any award, order or settlement to a civil court having jurisdiction and such civil courts shall execute the award, order or settlements as if it were a decree passed by it" https://hcservices.ecourts.gov.in/hcservices/ 5)In the light of the above amendment made by Government of India, I am directed to request you to offer your opinion to Government urgently." (Emphasis added) 16.As noted, the Parliament had enacted Central Act 24/2010 and amended the Industrial Disputes Act. Section 7 of the Amending Act reads as follows: 7.In section 11 of the principal Act, after sub- section (8), the following sub-sections shall be inserted, namely:- "(9)Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree of a Civil Court under order 21 of the Code of Civil Procedure, 1908. (10)The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it." 17.The said amendment was brought into force with effect from 15.9.2010 and the same was notified in the Gazette of India, dated 15.09.2010 in Part II Section 3(ii). Immediately on receipt of the said reply, the Registrar General sent a detailed reply stating that the State amendment continues to be valid and is in operation. Therefore, the Government should sanction necessary infrastructure so as to make execution machinery attached to the Labour Court effective. Notwithstanding the request of the High Court, the first respondent State sent a letter dated 4.2.2011 enclosing a status report. After setting out the previous history, in paragraph 13, it was stated as follows: "13.....it is clear that the provisions of sub- sections (9) and (10) of section 11 of the Industrial Disputes Act, 1947, as inserted by the Parliament in Central Act 24 of 2010, shall prevail over the provisions of section 11-B of the said Act, as inserted by Tamil Nadu Act 45 of 2008 and after coming into force of the said Central Act 24/2010, the Civil Court alone is competent to execute the award, or order or settlement of the Labour Court or Tribunal. Hence, question of providing any infrastructure for the Labour Court consequent on introduction of section 11-B does not arise." (Emphasis added) 18.In view of the stand taken by the State, this Court directed the State Government to file a counter affidavit. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, a counter affidavit, dated Nil (2011) was filed on behalf of first and second respondents. The second petitioner Association also filed an objection statement dated 14.3.2011. 19.In view of the rival contentions, it has to be seen whether the prayer of the petitioners can be granted by this Court? 20.The dispute revolve around a short campus. Whether in view of the Central amendment Act 24/2010, dated 18.8.2010, the Tamil Nadu amendment Act 45/2008 (introducing Section 11-B) stood eclipsed in the light of the Article 254(1) of the Constitution and Whether the State Amendment was repugnant to the amendment made by the Central Act and that the Central law will prevail over the State law? 21.Reliance was placed upon a judgment of the Supreme Court in T. Barai v. Henry Ah Hoe reported in (1983) 1 SCC 177 by the learned Additional Government Pleader. He referred to paragraph 15 of the said judgment, which reads as follows: "15.There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is “repugnant” to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and