IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.01.2011 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.Nos.957 of 2003 and 14393 of 2003 and W.P.M.P.Nos.18010 of 2003 and 11351 of 2004 W.P.No.957 of 2003: Management of Cambodia Mills, Post Box No.3504, Ondipudur Post, Coimbatore - 641 016. ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.N.Selvaraj 3.K.Ramaswamy 4.K.Aruputhaswamy 5.K.Arumugam 6.R.Subramanian 7.A.Vadivelu 8.K.Ponnuswamy 9.E.Ramaswamy 10.K.Thangavelu 11.V.Gowri 12.N.Tamilselvan 13.K.Boopathy 14.S.Dhandapani 15.A.Rajamani 16.A.Natarajan 17.S.Gunasekaran 18.V.Parameswaran C/o. The General Secretary, Coimbatore District Annai Indira Desiya Panchalai Thohilalar Sangam, N.I.T.U.C., Coimbatore 641 018. https://hcservices.ecourts.gov.in/hcservices/ Prayer: Petition 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 Claim Petition Nos.446 to 462 of 2000 dated 07.02.2002 and quash the same. For Petitioner : Mr.R.Parthiban For Respondents : Mrs.Rita Chandrasekar for M/s.Aiyar and Dolia for R.2 to R.18 R1 - Court. W.P.No.14393 of 2003: Management of Kaleeswarar Mills, Post Box No.2427, Ram Nagar Post, Coimbatore - 641 009. represented by the General Manager ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.K.Kanagaraj 3.Thangavelu 4.Ponmudi 5.G.Radhakrishnan 6.R.Rajendran 7.N.Sundarajan 8.P.Mani 9.R.Arumugam 10.S.Chinnakutty 11.P.Balasubramaniam 12.T.Rajendran 13.K.Vijayakumar 14.M.Viswanathan 15.S.Ramaswamy 16.C.Selvaraj 17.C.Mounaswamy 18.A.Murugesan 19.V.Thangavel 20.M.Duraiswamy 21.N.Muralidas https://hcservices.ecourts.gov.in/hcservices/ 22.S.Jayaraj 23.P.Ramaraj 24.K.Boopathy 25.P.Arulmani 26.M.Antony Ubaraj 27.S.Maruthachalam 28.A.Mariyaluisrajan 29.K.Paramasivam 30.K.Somasundram 31.N.Vellaiangiri 32.S.Chandrasekar 33.K.Palaniswamy 34.R.Marimuthu 35.D.Rangaraj 36.K.Rajendran 37.S.K.Raveendran 38.N.Nagarajan 39.D.Sivasanmugam 40.C.Kandaswamy 41.C.Baskaran 42.R.Kumaraswamy 43.R.Manivasagam 44.K.Mohan 45.A.Arputhavalan 46.F.Peter Amalraj 47.A.Padhmanaban 48.C.K.Velayudhan 49.D.Durairaj 50.R.Krishnaswamy 51.R.Mahendran 52.L.Arulraj 53.K.Shanmugavadivel 54.M.Charles Brito Devaraj 55.M.Ramaswamy 56.C.Duraiswamy 57.P.Marimuthu 58.S.Fathima Mary 59.D.Saiyammal 60.F.Madhalai Mary 61.K.Balasubramanian 62.C.Thennarasu 63.V.Jothimani 64.P.Loganathan 65.A.Nagaraj 66.P.Lakshmanan 67.C.Raghunathan 68.M.Balakrishnan 69.V.Jagadeesan 70.I.Nagimunisa 71.V.R.Chinnaswamy https://hcservices.ecourts.gov.in/hcservices/ 72.K.Kalimuthu 73.M.Nagappan 74.K.Anandhan 75.R.Nallamuthu 76.K.Kalimuthu 77.M.Nagappan 78.V.R.Chinnaswamy 79.I.Nagimunisa 80.F.Madalai Mary 81.R.Saiammal 82.M.Deivanai 83.S.Fathima Mary 84.K.Duraiswamy 85.C.Duraiswamy 86.M.Ramaswamy 87.M.Charles Brito Devaraj 88.K.Shanmugavadivel 89.L.Arulraj 90.K.Vijayanandham 91.R.Mahendran 92.R.Krishnaswamy 93.T.Durairaj 94.C.K.Velayutham 95.A.Padhmanaban 96.F.Peter Amulraj 97.A.Arputhavalan 98.K.Mohan 99.R.Manivasagam 100.V.Somasundram 101.V.Vijayan 102.C.Soundrarajan 103.N.Vellaiangiri 104.S.Chandrasekaran 105.K.Palaniswamy 106.R.Marimuthu 107.T.Rangaraj 108.K.Rajendran 109.S.K.Raveendran 110.N.Nagarajan 111.T.Sivashanmugam 112.C.Kandaswamy 113.C.Baskaran 114.R.Kumaraswamy 115.A.Maria Luis Rajan 116.M.Jayaraj 117.S.Maruthachalam 118.M.Antony Pushparaj 119.P.Arulmani 120.P.Ramaraj 121.S.Jayaraj https://hcservices.ecourts.gov.in/hcservices/ 122.N.Muralidass 123.M.Duraiswamy 124.V.Thangavel 125.A.Neelamegam 126.A.Murugesan 127.C.Mounaswamy 128.P.Subramanian 129.C.Selvaraj 130.S.Ramaswamy 131.K.Balasubramanian 132.C.Raghunathan 133.M.Balakrishnan 134.V.Jagadeesan 135.P.Balasubramaniam 136.P.Rajendran 137.K.Vijayakumar 138.M.Viswanathan 139.S.Chinnakutty 140.K.Balasubramanian 141.C.Thennarasu 142.V.Jothimani 143.K.Venugopal 144.S.Thamaraiselvi 145.R.Ravi 146.P.Nachimuthu 147.G.Pushpagaran 148.A.Nagarajan 149.A.Thangavelu 150.K.Kanagaraj 151.M.Ponnmudi 152.R.Rajendran 153.P.Mani 154.V.Rajamani 155.R.Arumugam 156.P.M.Lakshmanan ... Respondents Prayer: Petition 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 Claim Petition Nos.292 to 363 of 2000 and 217 to 299 of 2001 dated 07.02.2002 and quash the same. For Petitioner : Mr.R.Parthiban For Respondents : Mrs.Rita Chandrasekar for M/s.Aiyar and Dolia for R.2 to R.156 R1 - Court. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioner/Mills in W.P.No.957 of 2003, has filed the writ petition seeking a Writ of Certiorari in calling for the records of the first respondent in Claim Petition Nos.446 to 462 of 2000 dated 07.02.2002 and to quash the same. 2. The petitioner/Mills in W.P.No.14393 of 2003, has filed the writ petition seeking a Writ of Certiorari in calling for the records of the first respondent in Claim Petition Nos.292 to 363 of 2000 and 217 to 299 of 2001 dated 07.02.2002 and to quash the same. 3. According to the learned Counsel for the petitioner/Mills (in W.P.No.957 of 2003), in respect of the period between April 1998 and September 1999, there have been power failure on number of days and because of the power cut imposed by the Government, the operation of the Mills has to be stopped during that period when the power has not been made available and as such, the petitioner/Mills has not been in a position to provide work to the workmen. 4. It is the contention of the learned Counsel for the petitioner/Mills that the petitioner/Mills has to necessarily lay off the workmen and when a workman is laid off on account of the power failure, an employer need not obtain prior permission as per Section 25M(1) of the Industrial Disputes Act, 1947. 5. Likewise, it is the contention of the learned Counsel for the petitioner/Mills (in W.P.No.14393 of 2003), that in respect of the period between April 1998 and September 1999, there have been power failure on number of days because of the power cut imposed by the Government and the operation of the Mills has to be stopped during that period when the power has not been made available and as such, the petitioner/Mills has not been in a position to provide work to the workmen. 6. It is the submission of the learned Counsel for the petitioner/Mills that the petitioner/Mills has to necessarily lay off the workmen and when a workman is laid off on account of power failure, an employer need not obtain prior permission as per Section 25M(1) of the Industrial Disputes Act, 1947. 7. The learned Counsel for the petitioners/Mills (in both the writ petitions) relies on Clause 11 of the Standing Order (certified by the Joint Commissioner of Labour under the Industrial Employment Standing Orders Act), which runs as follows: "(1) The Management/General Manager may at any time, in the event of fire, catastrophe, break-down of machinery or stoppage of power supply, epidemic, civil commotion or other causes beyond his control, stop https://hcservices.ecourts.gov.in/hcservices/ working any machine or close any department or departments wholly or partially for any period or periods. (2) In the event of any such stoppages or closure during working hours, the workmen affected shall be notified by notices put upon the Notice Boards in the departments concerned and at the Time Keeper's Office as soon as practicable about the closure of department or departments and the exact day and time when work will be resumed and whether they are to remain in or leave the Factory. Thus, in accordance with the Standing Order Provisions, the management is empowered to declare lay-off." 8. A plea is raised on behalf of the writ petitioners/Mills that as per the aforesaid Clause 11 of the said Standing Order, the petitioners/Mills are empowered to declare a lay-off. 9. Admittedly, the respondents/workmen (in both the writ petitions) have filed the Claim Petitions under Section 33-C(2) of the Industrial Disputes Act, 1947, claiming full wages for the lay- off period on the basis that no prior permission of the Government has been obtained by the petitioners/Mills for declaring the lay-off. However, it is the evidence of M.W.1 that during April to June 1999, because of power cut, lay-off has not been given to the employees. 10. The petitioners/Mills filed a counter statement by raising a plea that the matter cannot be decided in a claim proceedings under Section 33-C(2) of the Industrial Disputes Act, 1947 and that the same has been decided by means of a regular reference of a dispute for adjudication. Also, the petitioners/Mills have taken a stand that one of the major Trade Unions in both the Mills has raised a dispute before the Assistant Commissioner of Labour. However, the first respondent/Labour Court by means of the impugned order dated 07.02.2002 in the Claim Petitions filed by the respondents/workmen, has held that the petitioners/Mills are liable to pay the balance amount for the lay-off period and allowed the Claim Petitions. 11. The learned Counsel for the petitioners/Mills submits that the impugned order of the Labour Court on 07.02.2002 in all the Claim Petitions is an erroneous one besides the same being contrary to law and moreover, the first respondent/Labour Court has no jurisdiction to entertain a claim petition as per Section 33-C(2) of the Industrial Disputes Act, 1947 when there is no pre-determined right in the present case on hand. https://hcservices.ecourts.gov.in/hcservices/ 12. Advancing his arguments, it is the contention of the learned Counsel for the petitioners/Mills that even the lay-off caused by the failure of power supply can only be decided in a proceedings under Section 10 of the Industrial Disputes Act, 1947, but this aspect of the matter has not been adverted to by the first respondent/Labour Court, Coimbatore, in a proper legal perspective which has resulted in a miscarriage of justice. 13. The core contention projected by the learned Counsel for the petitioners/Mills is that the power of the first respondent/Labour Court as per Section 33-C(2) of the Industrial Disputes Act, 1947, is only akin to that of an Executing Court and the first respondent/Labour Court has to, first of all, come to the conclusion that the respondents/workmen are entitled to the claim which they seek for and then only to proceed to compute the benefits under Section 33-C(2) of the Industrial Disputes Act, 1947. 14. The learned Counsel for the petitioners/Mills contends that the General Manager of the petitioners/Mills have powers to announce the lay-off because of the power cut during the relevant period which is beyond their control. It is also represented on behalf of the petitioners/Mills that during the lay-off period, for the workmen in the sister concern of the petitioners/Mills, alternative jobs have been provided to them, but the respondents/workmen have not accepted the same. 15. Expatiating his arguments, the learned Counsel for the petitioners/Mills submits that the workmen of the Mills received the lay-off compensation without murmur or protest and that the workmen are bound by the principle of estoppel. 16. The learned Counsel for the petitioners cites the decision of the Honourable Supreme Court in Municipal Corporation of Delhi v. Ganesh Razak and another reported in (1995) 1 Supreme Court Cases 235, wherein it is laid down as follows: "Where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some https://hcservices.ecourts.gov.in/hcservices/ ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. The power of the Labour Cout under Section 33-C(2) extends to interpretation of the award or settlement on which the workman's right rests." 17. In response, it is the contention of the learned Counsel for the respondents/workmen that when the petitioners/Mills/respondents have not assigned the reasons prior to the announcement of the lay- off and in fact, when the Chapter V B of the Industrial Disputes Act, 1947, applies to the petitioners/Mills, then the Mills/Management/respondents ought to have adhered to the procedures envisaged as per Section 25M of the Industrial Disputes Act, 1947. But, the petitioners/Mills have not acted accordingly and therefore, the petitioners/Mills are liable to pay the amounts claimed by the respondents/workmen in the respective claim petitions along with the salary arrears and other benefits together with 18% p.a. with costs. 18. Countering the submissions of the learned Counsel for the respondents/workmen/petitioners, it is the contention of the learned Counsel for the petitioners/Mills that the petitioners/Mills/respondents have acted in terms of the provisions of the Standing Orders and also in conformity with the Chapter V B of the Industrial Disputes Act, 1947 and it has paid a compensation to the respondents/workmen who have received the same without any prejudice. 19. Added further, it is the contention of the learned Counsel for the respondents/workmen that if the respondents/workmen are entitled to compensation as per Section 25M(8) of the Industrial Disputes Act, 1947, the same cannot be decided in the claim petitions filed under Section 33-C(2) of the Industrial Disputes Act, 1947. 20. The learned Counsel for the respondents/workmen cites the order of this Court dated 20.03.2001 in W.P.No.1852 of 1993, wherein at paragraph 6, it is inter alia observed as follows: "6. If the petitioners' claim that the lay off was due to shortage of power was true, the relevant documents would have been the lay off notices which would have shown the reason for the lay off. Unfortunately, for the reason best known to the petitioner, the basic documents were not placed before the first respondent. Further, as held by the first respondent, the petitioner failed to establish with acceptable documentary evidence that Ex.M1 series related to the petitioner, though the name, as found in those documents, referred to Eltex Engineering https://hcservices.ecourts.gov.in/hcservices/ Corporation. Therefore, in the absence of such proof, there is no scope to rely upon Ex.M.1 series. Looked at from any angle, the order of the first respondent cannot be interfered with." 21. It is to be pointed out that in W.P.No.1852 of 1993, the respondents 2 to 5 therein have made a claim in Claim Petition No.189 of 1991 for payment of balance 50% of wages for the period of alleged illegal lay-off between 17.07.1990 and 15.11.1990 in a sum of Rs.41,173.58. The said claim has been resisted by the writ petitioner/Company on the ground that during the relevant period, the lay-off has been resorted due to the shortage of power and whatever compensation payable having been duly paid, no further sum need be paid as claimed by the respondents 2 to 5. 22. In effect, in the instant cases on hand, the submission of the learned Counsel for the petitioners/ Mills is that the order passed by this Court in W.P.No.1852 of 1993 dated 20.03.2001 between Eltex Rudy Limited, Coimbatore by its Administrative Director, Ganapathy v. The Presiding Officer, Labour Court, Coimbatore, and 14 others, clearly applies to the facts of the present case and therefore, prays for dismissing the present writ petitions filed by the petitioners/Mills. 23. It is to be borne in mind that Chapter V B of the Industrial Disputes Act, 1947, speaks of special provisions relating to lay-off, retrenchment, closure in certain establishments. 24. At this stage, this Court usefully refers to Section 25M of the Industrial Disputes Act, 1947, under the caption "Prohibition of Lay-off" which runs as follows: "25M. Prohibition of Lay-off:- (1) No workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment to which this chapter applies shall be laid-off by his employer except (with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority), obtained on an application made in this behalf, unless such lay-off is due to shortage of power or to natural calamity, and in the case of a mine, such lay-off is due also to fire, flood, excess of inflammable gas or explosion). https://hcservices.ecourts.gov.in/hcservices/ (2) An application for permission under sub-section (1) shall be made by 25M. Prohibition of Lay-off:- (1) No workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment to which this chapter applies shall be laid-off by his employer except (with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority), obtained on an application made in this behalf, unless such lay-off is due to shortage of power or to natural calamity, and in the case of a mine, such lay-off is due also to fire, flood, excess of inflammable gas or explosion). (2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended lay- off and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner. (3) Where the workmen (other than badli workmen or casual workmen) of an industrial establishment, being a mine, have been laid-off under sub-section (1) for reasons of fire, flood or excess of inflammable gas or explosion, the employer, in relation to such establishment, shall, within a period of thirty days from the date of commencement of such lay-off, apply, in the prescribed manner, to the appropriate Government or the specified authority for permission to continue the lay-off. (4) Where an application for permission under sub- section (1) or sub-section (3) has been made, the appropriate Government or the specified authority, after making such inquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such lay-off, may, having regard to the genuineness and adequacy of the reasons for such lay-off, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. https://hcservices.ecourts.gov.in/hcservices/ (5) Where and application for permission under sub- section (1) or sub-section (3) has been made and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. (6) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub- section(7), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order. (7) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section(4) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference. (8) Where no application for permission under sub- section(1) is made, or where no application for permission under sub-section(3) is made within the period specified therein, or where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen had been laid-off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off. (9) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section(1), or, as the case may be, https://hcservices.ecourts.gov.in/hcservices/ sub-section(3) shall not apply in relation to such establishment for such period as may be specified in the order). (10) The provisions of section 25C (other than the second proviso thereto) shall apply to cases of lay-off referred to in this section. Explanation- For the purposes of this section, a workman shall not be deemed to be laid-off by an employer if such employer offers any alternative employment (which in the opinion of the employer does not call for any special skill or previous experience and can be done by the workman) in the same establishment from which he has been laid-off or in any other establishment belonging to the same employer, situate in the same town or village, or situate within such distance from the establishment to which he belongs that the transfer will not involve undue hardship to the workman having regard to the facts and circumstances of his case, provided that the wages which would normally have been paid to the workman are offered for the alternative appointment also." 25. It is to be noted that financial stringency is not a cause for which lay-off can be declared. 26. As per Section 25M(8) of the Industrial Disputes Act, 1947, the commencement or continuance of the 'lay-off' is illegal where: "(a) no application for permission to 'lay-off' under sub-s(1) has been made within the specified period; (b) no application for permission to continue 'lay- off' after the commencement under sub-s(2) has been made within the period specified therein; or (c) the permission for such commencement or continuance of lay-off has been refused." 27. A reading of Section 25M(2) of the Industrial Disputes Act, 1947, clearly indicates that the application for permission as per sub-section(1) is to be in the prescribed manner in and by which the employer has to clearly specify the reasons for the intended lay-off. Furthermore, the employer is required to serve a copy of the application simultaneously on the workman concerned. 28. Of course, an appropriate Government or the specified authority as per Section 25M(4) of the Industrial Disputes Act, 1947, is enjoined with the power to grant or refuse permission to the employer to 'lay-off' the workmen. But, before taking a decision to https://hcservices.ecourts.gov.in/hcservices/ grant or refuse the permission, the appropriate Government or the specified authority is required to do the following: "(a) to make such inquiry in the matter of lay-off as it may think fit; (b) to give a reasonable opportunity to the employer, the workmen concerned and the persons interested in such lay-off to be heard; and (c) then to consider- (i) the genuineness and adequacy of the reasons for the 'lay-off', (ii) the interests of the workmen, and (iii) all other relevant factors; (d) to record its reasons, for its decision, in writing in the order granting or refusing permission; and (e) to communicate the order to the employer and the workmen." 29. The pith and substance of the contention of the learned Counsel for the petitioners/Mills is that only if the lay-off is announced, then only the petitioners/Mills must obtain prior permission from the State Government and when the lay-off is due to shortage of electricity/power, then it is not necessary for the petitioners/Mills to obtain permission from the Government. Also, when the Clause 11 of the Standing Order (certified by the Joint Commissioner of Labour under the Industrial Employment Standing Orders Act) empowers the petitioners/ Management/Mills to declare lay-off, then there is no necessity for the petitioners/Mills to obtain permission from the Government. 30. This Court points out that earlier there has been no provision in the Industrial Disputes Act, 1947, which made the 'lay- off' as an illegal one. However, the ingredients of Section 25M(8) of the Industrial Disputes Act, clearly visualises that an application for permission under sub-section (1) of Section 25M of the Industrial Disputes Act, will have to be made by the employer even for the intended lay-off assigning the reasons etc., and also that the application for permission to continue the lay-off after the commencement as per sub-section (2), will have to be made within the period mentioned therein and if the permission for such commencement or continuance of lay-off is refused, then the commencement or continuance of lay-off is an illegal one, in the considered opinion of this Court. 31. This Court aptly makes the point clear that sub-section (1) of Section 33-C(2) of the Industrial Disputes Act, which speaks of 'recovery of money due from an employer' is in the nature of execution proceedings and further, if any money is due to a workman, as per the settlement or an award or under the provisions of Chapter V A or V B of the Industrial Disputes Act, 1947, is not forced to https://hcservices.ecourts.gov.in/hcservices/ take the recourse to the general mode of execution in a civil Court, but he may adopt a summary procedure prescribed by the Section as per the decisions of the Honourable Apex Court in Central Bank