IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.19923 and 19930 of 2000 and 8920 and 8921 of 2001 1. The Management rep. by the Managing Director Nilgiri District Co-operation Milk Producers' Union Udhagamandalam Nilgiri District. ..Petitioner in WP.Nos.19923 and 19930/2000 2.R.Kishore Kumar ..Petitioner in WP.No.8920/2001 3.A.Shankar ..Petitioner in WP.No.8921/2001 Vs 1. A.Shankar ..1st Respondent in WP.No.19923/2000 2. R.Kishore Kumar ..1st Respondent in WP.No.19930/2000 3. The Management rep. by its Managing Director Nilgiri District Co-operation Milk Producers' Union Udhagamandalam Nilgiri District. ..1st Respondent in WP.Nos.8920 and 8921/2001 4. The Presiding Officer Labour Court Coimbatore. ..2nd Respondent in all the WPs. Common Prayer in W.P.Nos.19923 and 19930 of 2000: Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari or any other appropriate Writ or Order or Direction in the nature of a Writ calling for the https://hcservices.ecourts.gov.in/hcservices/ records of the second respondent dated 07.09.2000 and made in I.D.No.208/97 and 105/97 on the file of Labour Court, Coimbatore and quash the same. Common Prayer in W.P.Nos.8920 and 8921 of 2001: Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari or any other writ or order or direction in the nature of a writ calling for the records relating to the award dated 07.09.2000 in I.D.No.105/97 and 208/97, on the file of the second respondent, quash the same in so far as it denies back wages to the petitioner. For Petitioners : Mr.G.Muniratnam in W.P.Nos.19923 and 19930/2000 Mr.R.N.Amarnath in W.P.Nos.8920 and 8921/2001 For Respondents : Mr.R.N.Amarnath for R1 in W.P.Nos.19923 and 19930/2000 R2-Court in all the WPs. R1-Mr.G.Muniratnam in W.P.Nos.8920 and 8921/2001 COMMON ORDER W.P.Nos.19923 and 19930 of 2000 are filed by the management, Nilgiri District Cooperative Milk Producers Union against the Award in I.D.Nos.208/97 and 105/97 dated 7.9.2000. By the impugned Award, the 2nd respondent Labour Court, Coimbatore directed the reinstatement of the 1st respondent with service continuity but without backwages. Aggrieved by the said Award, the two Writ Petitions have been filed. 2. Both the Writ Petitions were admitted on 28.11.2000 and interim stay was granted. On application taken out by the contesting 1st respondents, this Court by an order dated 13.3.2001 directed the payment of monthly salary to the workmen in terms of Section 17-B of the Industrial Disputes Act. This Court directed that each of the workmen shall be paid Rs.750/- per month being the last drawn salary commencing from 1.4.2001. It is stated by the learned counsel for the petitioner that the said order has been given effect to. 3. Aggrieved by the other portion of the Award in not granting backwages, the two workmen also have filed two separate Writ Petitions in W.P.Nos.8920 and 8921 of 2001 challenging the very same award, insofar as it denied them backwages. In view of the interconnectivity between the four Writ Petitions, they were heard together and a common order is passed. https://hcservices.ecourts.gov.in/hcservices/ 4. In the Writ Petitions filed by the workmen, the management have filed a counter affidavit dated 21.8.2001. 5. The brief facts leading to passing of the Award are as follows: (i) The workmen, who are temporarily employees of the petitioner Milk Society were engaged on temporary basis. On 20.10.1994, the services of the workmen were abruptly stopped. Thereafter, they raised a dispute before the Government Labour Officer and on the strength of the failure report given by the Special Officer dated 23.4.1997, they filed a claim statement before the Labour Court. Each claim statement was taken on file and assigned different I.D.Numbers. (ii) In the case of Mr. Shankar, (I.D.No.208 of 1997) and in the case of Mr.R.Kishore Kumar (I.D.No.105 of 1997), on notice from the Labour Court, the District Milk Cooperative Producers Society, namely, the first two Writ Petitioners filed claim statements dated 24.7.1998. In the counter statement, the contention of the management was that they were engaged as casual labourers in their civil section and other sections. They were engaged on NMR basis. They were paid daily wages and their work was casual and temporary in nature. After June 1992, they did not approach the management even for casual work. There was no non-employment in the eye of law. (iii) The allegation that their service was terminated during October 1994 was denied. There was also enormous delay in raising an industrial dispute before the Labour Court. Each of the workman have filed documents and examined themselves as W.W.1. On the side of the management, M/s.Thiagarajan and Udayakumar were examined as M.W.1 and M.W.2. (iv) The Labour Court on an analysis of the materials placed before it came to the conclusion that the workmen though employed on a temporary basis, their work was a continuous nature. Even from the evidence of M.W.1 Thiagarajan, who was working as an Assistant in the society for more than 30 years, has admitted the employment of the workmen from July 1990 to June 1992. He also stated that the society functions on three shifts on 24 hour basis. Though there are documents to show the number of days worked by the workmen, those documents were not filed before the Labour Court. There was also no allegation that the workmen did not complete 240 days. If the allegation that the workmen have stopped from work on their own, the management would have taken appropriate legal steps. But, no steps were taken by them. Therefore, their statement that the workmen had unilaterally stopped from work cannot be believed. The Labour Court also came to the conclusion that since the workmen had completed more than 240 days' of service, they are entitled for protection under section 25-F of the Industrial Disputes Act. Once the termination is https://hcservices.ecourts.gov.in/hcservices/ held to be a retrenchment and the condition precedent found under the said Section has not been followed, the workmen are eligible for reinstatement. Further, the Labour Court held that the petitioner society is a Cooperative Milk Producers Society and has been established for the purpose of increasing per capita income of the rural agriculturists. Therefore, grant of backwages will be an additional burden and therefore no backwages shall be paid to them. 6. It is the workmen in their affidavit filed in support of the Writ Petitions filed by them stated that the reasons given by the Labour Court regarding denial of backwages is not a legal reason and therefore they are entitled for full wages. 7. In the light of the Writ Petitions filed by the management and the counter Writ Petitions filed by the workmen, it has to be seen whether the impugned Award is liable for any interference. 8. In the present case, there is a tangible evidence that the workmen were engaged though on temporary basis, but nevertheless they have completed more than 240 days' of service. This fact has also been proved to the satisfaction of the Labour Court. Even the management's witnesses have admitted in their cross-examination. The further admission that though they have in possession of the documents, but have not filed them before the court also was taken into account. In such circumstances, in case of invalid termination, the workmen are entitled for the relief of reinstatement. Though the management before the Labour Court contended that there was a delay in approaching the Labour Court, such delay will have only bearing on the question of backwages that has be awarded, but that cannot deter the Labour Court from deciding the legality of the termination. 9. The Supreme Court vide its judgment in Rajasthan Lalit Kala Academy v. Radhey Shyam reported in 2008 (3) SCC 248 has held that once it is proved that there was a violation of Section 25-F of the Act and Section 2 (oo) of the Industrial Disputes Act, the termination is invalid and the workmen are eligible for reinstatement. Though reinstatement with backwages is a normal rule, the Labour Court can take into account several factors, namely non- employment, being adhoc employee, daily wages. Even the delay in raising the dispute must also be considered. 10. However, the Supreme Court in Karan Singh v. Haryana State Marketing Board reported in 2007 (14) SCC 291, held that the Labour Court cannot go into the question of delay in raising the dispute and it cannot invalidate the reference. 11. The Supreme Court in the latest judgment in Laxmi Rattan Cotton Mills Ltd. v. State of U.P., reported in 2009 (1) SCC 695 has also held that in the matter of grant of backwages, all attempts must be taken by the court to strike a balance. https://hcservices.ecourts.gov.in/hcservices/ 12. In the present case, the Labour Court held that the denial of backwages on the ground that it is a a Cooperative Society meant to increase the per capita of agriculturists. But that reason may not be a reason having nexus to the case on hand. But, yet the fact that the workmen were engaged only on casual and temporary basis and paid daily wages was not denied. 13. Therefore, in the light of the above precedence, the denial of backwages also cannot be found fault with. Hence, all the four Writ Petitions stand dismissed. No costs. However, the petitioner management is directed to implement the impugned Award without fail, in any event, within 8 weeks from the date of receipt of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Presiding Officer, Labour Court, Coimbatore. 2. The Managing Director, Nilgiri District Co-operation Milk Producers' Union, Udhagamandalam, Nilgiri District. + 4 c.cs. to Mr. R.N. Amarnath, Advocate. S.R.No.14910. + 4 c.cs. to Mr. G. Muniratnam, Advocate. S.R.No.15084. W.P.Nos.19923 and 19930 of 2000 and 8920 and 8921 of 2001 VSV (CO) GSK 12.03.2010. https://hcservices.ecourts.gov.in/hcservices/