IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.11.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.29415 of 2008 and M.P.No.1 of 2008 The Management of Together Textile Mills India Private Ltd., Rep. By its Chairman ...Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.The State of Tamil Nadu Rep. By its Deputy Secretary, Labour and Employment (D1) Department, Fort St.George, Chennai - 600 009. 3.D.Thilakkumar 4.A.Jayabal 5.A.M.Pandian 6.S.Angusamy 7.R.Bharathi 8.A.Bharathidass 9.V.Rameshkumar 10.R.Sureshkumar 11.A.Thangamuthu 12.B.Sivakumar ...Respondents Writ Petition preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the first respondent in C.P.Nos.131/03 to 140/03 and quash its common order dated 02.12.2005. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan and Co For Respondents : Mr.RM.Muthukumar, G.A. For R2 Mr.G.B.Saravana Bhavan for R3 to R12 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is the Management of Textile Mill. They filed the present writ petition, seeking to challenge a common order passed by the Labour Court in C.P.Nos.131 to 140 of 2003 dated 02.12.2005. By the impugned order, the Labour Court calculated the monetary benefits in favour of respondents 3 to 12 and computed that each one of those respondent were entitled for certain sums which are set out in paragraph 28 of the said order. Aggrieved by the said common order, the writ petition came to be filed. 2. The writ petition was admitted on 12.12.2008. Pending the writ petition, an interim stay was granted. 3. On notice from this court, the contesting respondent workmen have filed a counter affidavit sworn to by R.Bharathi, the 7th respondent herein, dated 15.09.2011 together with typed set of papers. The petitioner Management has also filed a reply affidavit dated 25.09.2011 with an additional typed set of papers. 4. For the sake of convenience, the petitioner is referred to as the Management and the contesting respondents are referred to as the workmen. The second respondent is referred to as the State of Tamil Nadu. 5. It is seen from the records that pursuant to the order passed by the Labour Court dated 02.12.2005, as the Management did not comply with the order, the workmen have approached the State Government for recovering the amount as arrears of land revenue and sought for a certificate under Section 33-C(1) of the Industrial Disputes Act, 1947 (for short I.D.Act). The State Government issued G.O.(D) No.453 Labour and Employment Department, dated 30.10.2008 and directed the District Collector, Coimbatore to recover the amounts from the Management in respect of each workmen and the total amount worked out to Rs.2,48,366/-. The workmen in those cases claimed wages due for the period from 13.06.2002 to 31.11.2002 contending that since the Management did not comply with the mandatory provision of Section 33(1) and 33(2) of the I.D.Act, 1947 and inasmuch as they did not seek approval from the Conciliation Officer (Assistant Commissioner of Labour (II)), the order of dismissal was void and the workmen were eligible for wages as if there was no dismissal. 6. It was stated that the workmen were members of the Thamizhaga Panchalai Thozhilalar Sangam affiliated to Bharathiya Mazdoor Sangh. The Management dismissed the workmen on charges vide dismissal order dated 13.06.2002. The petitioner Management is a Pubic Utility Service and hence, a strike notice dated 10.06.2002 was issued to the Management https://hcservices.ecourts.gov.in/hcservices/ under Section 22(1)(c) of the I.D.Act. The conciliation Officer initiated conciliation on the same day and issued summons on 10.06.2002. Therefore, the conciliation is deemed to have begun in respect of the strike notice by the Conciliation Officer on 10.06.2002 in terms of Section 20(1) of the ID Act. During the conciliation proceedings, the Management cannot effect any change in the service conditions except by complying with Section 33 of the I.D.Act. Therefore, when the Management dismissed the workers on 13.06.2002 without complying with Section 33 of the I.D.Act and no approval petition under Section 33-2(b) of the I.D.Act was filed before the Conciliation Officer, the workmen are eligible for wages. When the workmen filed individual claim statement, they were assigned different numbers starting from C.P.No.131 of 2003 to C.P.No.140 of 2003 and notice was issued to the Management. It was also stated that cancelling the termination order, the workmen were directed to report for duty on 24.04.2006. 7. The Management filed a counter statement stating that the workmen were engaged in a supervisory capacity and their acts were subversive. A Show cause notice cum suspension order was given to them on 11.04.2002 based on the complaint. Specific charges were framed and a domestic enquiry was held after giving reasonable opportunity to the workmen. In the enquiry, 8 witnesses were examined on the side of the Management. On the basis of the enquiry report holding them guilty, a further show cause notice was given and thereafter, they were dismissed from service. It is only to prevent the workmen from being dismissed, the Union gave a notice to the Assistant Commissioner of Labour by giving a charter of demands and the Management itself had received the copy of the notice on 15.06.2002, 5 days after the dismissal of the workmen. The Assistant Commissioner of Labour recorded a failure report under Section 12(4) of the I.D.Act as he could not reach an amicable settlement between the parties. 8. A joint memo was filed before the Labour Court and all the claim petitions were tried together. Before the Labour Court, on behalf of the workmen, 35 documents were filed and marked as Exs.W1 to W35. On the side of the Management, 18 documents were filed and marked as Exs.M1 to M18. The workmen examined one worker R.Bharathi, the petitioner in C.P.No.135 of 2003 as W.W.1. On the side of the Management, M/s.Krishna Bharathi and Vijayakumar were examined as M.W.1 and M.W.2. 9. The Labour Court framed six issues. The second issue related to the question as to whether the Assistant Commissioner of Labour (II) (ACL.II) is the jurisdictional Conciliation Officer in respect of the dispute and Issue No.3 is whether as on the date of the order of the dismissal was https://hcservices.ecourts.gov.in/hcservices/ the conciliation proceedings were pending. With reference to the supervisory nature of work done by the workmen, it held that it was not proved that they were doing supervisory work. With reference to the jurisdiction of the Conciliation Officer, it held that Assistant Commissioner of Labour II, Coimbatore has got jurisdiction to entertain the strike notice and that the Management is a Public Utility Service. With reference to the third issue, it held that since the strike notice was given as per Ex.M10 addressed to the ACL.II, he had received the notice on 10.06.2002 and therefore, the conciliation is deemed to have begun on the date when the Conciliation Officer has received the notice. It also referred to the evidence of M.W.2, wherein he had stated that notice was served on 11.06.2002 but kept pending with the postman and thereafter only on 14.06.2002 it was received by them. It also referred to the evidence of M.W.2 stating that the Tapal section was authorised to receive all Tapals and even for some reason the watchman had refused to receive the notice in Ex.M10, it cannot be a ground that there was no notice. After referring to Section 20(1) of the I.D.Act, the Labour Court held that Conciliation is deemed to have begun on the date when the Conciliation Officer received a strike notice in a Public Utility Service. 10. With reference to the workers' right to get wages, in case of violation of Section 33 of the I.D.Act, the Labour Court referred to the judgment of the Supreme Court reported in 2002(1) L.L.N 639 = (2002) 2 SCC 244 [Jaipur Zila Sahakari Boomi Vikas Bank Ltd v. Ram Gopal Sharma and others]. Therefore, it held that inasmuch as there was deemed conciliation before the Conciliation Officer, the dismissal order passed without approval from the Conciliation Officer was illegal. 11. In the counter affidavit filed by the workmen, it was contended that under Section 2(n) of the I.D.Act, the Management is 100% export oriented unit and therefore, covered by the notification declaring them as a Public Utility Service. With reference to the deemed conciliation, reference was made to the judgment of the Supreme Court in The Workers of the Industry Colliery v. The Management of the Industry Colliery reported in AIR 1953 SC 88 and Lokmat News Papers Pvt. Ltd, v. Shankar Prasad reported in 1999-II-LLJ 600. 12. In the reply affidavit filed by the Management, it was contended that the petitioner Unit at Coimbatore is not a Spinning Mill and also not a composite mill of spinning and weaving. As it is not a 100% export oriented unit approved by the Government of India, it cannot be held to be a Public Utility Service. The strike notice given under Section 22 of the I.D.Act under the belief that it is a Public Utility Service was not valid and therefore, there cannot be a deemed conciliation. A reference was also made to conciliation https://hcservices.ecourts.gov.in/hcservices/ failure report sent on 24.01.2003 regarding the strike notice given for the charter of demands in which compliant made by the 10 workers was also referred to and second failure report in respect of strike notice issued by the Union. 13. Pursuant to the conciliation notice, the State Government issued G.O.(D)No.88, Labour and Employment Department, dated 08.02.2006, in which they have referred the demand Nos.2,4,6,7,10 and 11 for adjudication by the Industrial Tribunal regarding the charter of demands. In G.O. (D)No.89 in respect of the dismissal of 10 workers, a complaint has been enquired into under Section 33A of the I.D.Act and a failure report has been sent and no action has been taken against the same. 14. There is no difficulty in holding that ACL- II, Coimbatore is the Conciliation Officer in respect of the industry concerned and he has jurisdiction over the entire Coimbatore District. On the issue as to whether the Management is a Public Utility Service, a reference was made to G.O.Rt.No.161 Labour and Employment Department, dated 22.03.2002 declaring a 100% export oriented Units approved by the Government of India and unit set up in the export processing Zone established with the approval of the Government have been declared as Public Utility Service for the purpose of Section 2(n) of the I.D.Act. 15. The said notification reads as follows:- "G.O.R.No.161, Labour and Employment (D2), 22nd March, 2002 No.II(2)/LE/377/2002.- Whereas the 100% Export Oriented Units approved by the Government of India and Units set up in the Export Processing Zone established with the approval of the Government of India has been declared to be a public utility service for the purpose of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), for a period of six months upto and inclusive of the 14th February, 2002 in the Labour and Employment Department Notification No.II (2)/LE/618/2001, dated the 15th August, 2001 published at page 310 of Part II - Section 2 of the Tamil Nadu Government Gazette, dated the 15th August, 2001. And, whereas, the Governor of Tamil Nadu is of opinion that public interest requires the extension of the said person for a further period of six months; Now, therefore, in exercise of powers conferred by sub-clause (vi) of clause (n) of Section read with the proviso thereto of the said Act, the Governor of Tamil Nadu hereby https://hcservices.ecourts.gov.in/hcservices/ extends the period specified above for a further period of six months commencing from the date of publication of the Notification in the Tamil Nadu Government Gazette." 16. If it is held to be not a Public Utility Service, then the question of strike notice under Section 22 of the I.D.Act given to jurisdictional Conciliation Officer resulting in a deemed conciliation will not arise and. Once there is no deemed conciliation, the question of infraction of the condition of service under Section 33 of the I.D.Act will not arise. Only in case of valid conciliation notice and the commencement of the conciliation as per law, the Employer is bound to comply Section 33 of the I.D.Act. 17. In the present case, except producing the Government Order in G.O.R.No.161 L & E Department, dated 22.03.2002, before this Court showing it is a public utility service as it is an 100% export oriented unit approved by Government of India, and it was an unit set up in the export processing zone established with the approval of Government of India, no attempt was made to prove that the said notification will apply to the activities of the petitioner Management. On the contrary, it is the stand of the Management that Ex.M8 which is Apparel Export Promotion Council Certificate shows that the company product is used to be exported against orders procured by that company. In the absence of proving that the petitioner Mill is either 100% export oriented Unit or a unit set up under Special Economic Zone, the Court cannot presume that it was a Public Utility Service, in which if strike notice is issued by the Trade Union it will automatically result in deemed conciliation. 18. In order to appreciate as to whether a particular unit is an unit coming under Special Economic Zone Act, it is necessary to refer to certain definitions given under the said Act, which are as follows:- "(k) “existing Special Economic Zone” means every Special Economic Zone which is in existence on or before the commencement of this Act; (m) “export” means – (i) taking goods, or providing services, out of India, from a Special Economic Zone, by land, sea or air or by any other mode, whether physical or otherwise; or (ii) supplying goods, or providing services, from the Domestic Tariff Area to a Unit or Developer; or (iii) supplying goods, or providing services, from one Unit to another Unit or Developer, in the same or different Special Economic Zone; https://hcservices.ecourts.gov.in/hcservices/ (zc) "Unit" means a Unit set up by an entrepreneur in a Special Economic Zone and includes an existing Unit, an Offshore Banking Unit and a Unit in an International Financial Services Centre, whether established before or established after commencement of this Act; " Hence, these ingredients were not proved before this Court. 19. Mr.S.Ravindran, learned counsel appearing for the Management referred to a judgment of a Division Bench of this Court in State Bank's Staff Union (Madras Circle) v. The State Bank of India reported in 1991 (1) LLJ 163 and referred to the following passage found in paragraph 12: "12. ...We are not able to subscribe our support to the theory of the learned counsel for the bank that on the bare issuance of a strike notice and receipt of the same by the Conciliation Officer, the Conciliation Officer assumes the jurisdiction to hold or prosecute conciliation proceedings within the meaning of the Act. The strike notice must have relevance to an industrial dispute existing or apprehended. The resort to strike and the issuance of the strike notice could be the reaction of the labour in very many contingencies, which we need not visualise and set down. But, unless the strike notice relates to an industrial dispute, existing or apprehended, prosecution of any proceedings by the Conciliation Officer will not fit in with the concept of prosecution of conciliation proceedings within the meaning of the Act. The pendency of conciliation proceedings with reference to working out the rights and obligations of the parties and penalising them for acting in contravention of certain provisions of the Act in such a contingency, are of much legal significance and consequence. We cannot afford to water down the legitimate construction to be put on the provisions of the Act with reference to that crucial aspect, which may prove decisive in very many situations." Therefore, he submitted that not every notice will ipso facto result in conciliation. 20. He also referred to the judgment of the Supreme court in Essorpe Mills Limited v. Presiding Officer, Labour Court and others reported in (2008) 7 SCC 594. In that case, the Supreme Court dealt with the case relating to issuance of notice under Section 22 in respect of a Public Utility Service. In that context, the Supreme Court after referring https://hcservices.ecourts.gov.in/hcservices/ to the provisions and the Rules framed by the State Government including the form prescribed and held that the notice, if it is not in confirmity with the provisions of the Act, then the Jaipur Zila case will have no application. In paragraph 22, it was observed as follows:- "22. ...The inevitable conclusion is that the notice cannot be treated to be one under Section 22. Jaipur Zila Case has no application if the notice given is not in accordance with law. If no notice is given to the employer, the effect of it is that he is not aware of the proceedings. Obviously, the conciliation proceedings must be one meeting the requirements of law. Here, no notice in terms of Section 22 of the Act was there." 21. In view of the above, this Court is of the opinion that since the contesting workmen have not established that the petitioner Mill is a Public Utility Service, the consequential notice to the jurisdictional Conciliation Officer and the deemed conciliation provided under Section 20 (1) of the I.D.Act will not be attracted. Therefore, the question of invoking the ratio in Jaipur Zila case for claiming wages under the premises that there was violation of Section 33(1) will not arise. 22. Hence, this Court is obliged to interfere with the impugned order passed by the Labour court. The Common order passed by the Labour Court in C.P.Nos.131 to 140 of 2003 dated 02.12.2005 stands set aside. Since this Court found that there was no conciliation in the eye of law due to a strike notice as the petitioner was not proved to be public utility service, the question of remanding the matter for further decision will not arise. But at the same time, since already the workmen have made complaint regarding their non-employment which has also been forwarded to the State Government for appropriate action as reflected in G.O.Ms.No.89 Labour and Employment Department, dated 08.02.2006, the workmen will have to pursue their claim for getting a proper reference regarding their non-employment for specific acts of misconduct. 23. The writ petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Deputy Secretary, The State of Tamil Nadu Labour and Employment (D1) Department, Fort St.George, Chennai - 600 009. +1 cc to M/s.T.S.Gopalan & co., SR 67834. +1 cc to Mr.G.B.Saravanathanan, Advocate SR 67885. W.P.No.29415 of 2008 SP(CO) dd 28/11/2011 https://hcservices.ecourts.gov.in/hcservices/