IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2011 CORAM: THE HONOURABLE MR. JUSTICE T.RAJA WP.Nos.26883 and 26884 of 2010 A.Lakshmipathy .. Petitioner in W.P.No.26883/2010 I.Inbakumar .. Petitioner in W.P.No.26884/2010 Vs. 1. The Management of India Pistons ltd., Huzur Gardens, Sembiam, Chennai-11. 2.The Presiding Officer, III Additional Labour Court, Chennai. .. Respondents in both petitions Prayer in both petitions: Writ petitions filed under Article 226 of the Constitution of India praying for the issuance of Writ of certiorarified mandamus to call for the records in connection with the orders in I.A.Nos.112 of 2010 in I.D.No.771 of 2009 and I.A.No.113 of 2010 in I.D.No.772 of 2009 respectively dated 19.08.2010 pronounced by the 2nd respondent and quash the same, further direct the 1st respondent to pay to the petitioner at the rate of 50% of wages last drawn with effect from the date of filing of I.A.No.112 of 2010 and I.A.No.113 of 2010 pending disposal of I.D.No.771 of 2009 and I.D.No.772 of 2009 respectively. For Petitioner : Mr.V.Prakash, SC for K.Sudalai Kannu in both petitions For respondents : Ms.Samuktha for M/s.S.Ramasubramaniam and Associates for R1 in W.P.No.26883/10 Mr.C.Mohan for M/s.Kingand Patridge in W.P.No.26884/10 R2-Court in both petitions. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER As the facts involved in both the writ petitions are identical, they are disposed of by this common order. 2. For better appreciation, the facts involved in one of the writ petitions i.e., W.P.No.26884 of 2010, are briefly stated hereunder:- The petitioner after his appointment as temporary worker w.e.f. 26.05.1980, was confirmed on 01.07.1984 and after 10 years, he was promoted as Attender w.e.f. 01.01.1994 and later as Junior Store Keeper. While so, he was working as Junior Store keeper, he has involved in serious misconduct for which he was placed under suspension pending enquiry on 30.10.2008. The 1st respondent Management framed charges against him and thereafter called upon him to submit his explanation. On 15.11.2008, the petitioner submitted his explanation denying all the charges levelled against him. The management having found not satisfactory with the explanation, conducted an enquiry and the enquiry officer, on completion of the enquiry, submitted his report holding him guilty of the charges levelled against him. Finally, he was dismissed from service with effect from 12.11.2008, from the date of suspension vide reference No.W/29/MA/202d dated 11.03.2009. 3. Aggrieved by the said order, the petitioner preferred conciliation proceedings and on failure of the conciliation proceedings, the petitioner raised I.D.No.772 of 2009 and during the pendency of the Industrial Dispute, he has also moved an application in I.A.No.113 of 2010 seeking interim relief under section 10(4) of the I.D. Act, 1947 for a direction to the first respondent management to pay 50% of the wages last drawn pending disposal of the I.D. The 2nd respondent/III Additional Labour Court, Chennai rejected the application on the ground that there is no prima facie case made out for grant of interim direction for payment of 50% of wages last drawn. Hence, the present writ petition before this court. 4. Mr.V.Prakash, learned Senior Counsel appearing for the petitioner challenging the interim order passed by the III Additional Labour Court, Chennai in I.A.No. 113 of 2010, contended that the Labour Court has denied the interim relief on the ground that the petitioner's wife is employed as nurse and also on the two other vital aspects that the petitioner has got college going children and his family is also residing in Metropolitan city like Chennai. He added further that the reasons given by the Labour Court, while rejecting the interim relief for payment of 50% of last drawn wages works out to only Rs.4,725/- per month have completely over looked a vital fact that the first respondent management is enjoying more than Rs.1000 crores of turn over with the huge profit. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned senior counsel appearing for the petitioner, in support of his submission, relied upon the judgments in the case of V.Paramasivam V. Management of Madras Rubber Factory and another reported in (2001) III LLJ 1021 Madras for the legal proposition that when the petitioner wanted an interim relief which would not only enable him to survive and but also help him to conduct the proceedings before the Labour Court, the non granting of interim relief till the disposal of the matter will seriously prejudice the petitioner who is already thrown out of employment. Further, elaborating his submission, the learned senior counsel has also brought to the notice of this Court another unreported judgment in W.A.No.437 of 2000 dated 24.01.2005 wherein, a Division Bench of this Court while upholding the order passed by the single judge, has observed that the learned single judge has arrived at a conclusion in respect of the relief, in which they were not able to find out any factual or legal inconsistency or infirmity i.e., the Division Bench has held that during the pendency of the main dispute before the Labour Court, it has got power to grant interim relief under Section 10(4) of the Act, provided the Labour Court is convinced of a strong prima facie case in favour of the workman to succeed in setting aside the order of dismissal. The learned Senior counsel also relied upon another judgment of the Apex court reported in (1960) 1 SCR 476 in Management of Hotel Imperial, New Delhi and others V. Hotel Workers' Union for the similar proposition to impress upon this court in granting the interim relief till the disposal of the I.D. by the Labour Court. 6. In reply, the learned counsel appearing for the first respondent submitted that the writ petitioner suffers the order of dismissal from the service of the management/1st respondent herein w.e.f. 11.03.2008 from the date of his suspension by the order dated 11.03.2009. Aggrieved by the said order and after conciliation proceedings, he raised I.D.No.772 of 2009. During the pendency of the I.D., he has moved I.A.113 of 2010 seeking interim relief under section 10(4) of the I.D. Act for payment of 50% of wages last drawn. The Labour Court, having seen that no employer and employee relationship existing between the petitioner and the respondent consequent upon the dismissal of the petitioner, held that there is no strong prima facie case involving serious questions to be tried available. When the petitioner has failed to make any ground for grant of any interim relief and also failed to balance of convenience in his favour in view of the charges levelled and proved against him and no irreparable loss or injury is caused to the petitioner, the Labour Court has rightly decided that there is neither a balance of convenience nor a prima facie case in favour of the petitioner for grant of interim relief under Section 10(4) of the Act. Thus, the said prayer was rightly dismissed by the Labour Court for three reasons: Firstly, the fact that the petitioner's wife is employed as Health Supervisor in an hospital, is not weighed by the Labour Court https://hcservices.ecourts.gov.in/hcservices/ in considering the interim relief for payment of 50% of wages last drawn. This has been even supported by one more consideration that the dismissal order was also passed after holding a proper enquiry. Therefore, the Labour Court has rightly rejected the case of the petitioner stating that no prima facie case was made out by the petitioner. Secondly, the relief sought for is not automatic, but it is purely discretionary remedy. Since the Labour Court has considered the balance of convenience in favour of the management/1st respondent that no irreparable damage will be caused to the petitioner by not granting the relief. It is not open to the petitioner to say that the labour court has gone wrong in rejecting the written statement made by the petitioner seeking for payment of 50% of wages last drawn, when he was dismissed from service by the 1st respondent. Thirdly, by taking frequently unnecessary adjournments from the Labour Court on various dates, the petitioner cannot come to this court by challenging the impugned order without cooperating with the management in disposing of his I.D. which is pending before the Labour Court for adjudication. 7. In reply to the arguments advanced by the learned senior counsel for the petitioner by citing the above mentioned judgments passed by both the learned single judge as well as the Hon'ble Supreme Court, the learned counsel for the first respondent further submitted that the same cannot be relied on by this court for the reasons that the facts and circumstances of the case involved before the single judge in the case of V.Paramasivam V. Management of Madras Rubber Factory and another reported in (2001) III LLJ 1021 Madras are that there was a finding by the High Court the workman writ petitioner therein was thrown out of employment without affording reasonable opportunity, therefore, the learned single judge came to the conclusion aht the workman made out of a prima facie case to grant interim relief and on that basis, the interim relief was entertained for payment of 50% of last drawn salary till the disposal of the I.D. But in the present case, the 1st respondent/management has conducted proper and detailed enquiry. Therefore, the said judgment cannot be made applicable to the present case. On that basis, he prays for dismissal of the writ petition. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. It is well settled by the judgment of the Hon'ble Apex Court in the case of Management of Hotel Imperial Vs. Hotel Workers Union ((1960) 1 SCR 476) that the Tribunal has got the power to grant such an interim relief under Section 10(4) of the Act, during the pendency of the industrial dispute. Though there is no provision in the Act empowering the Tribunal to make an order granting relief to a discharged workman except by way of making an interim award, which can be made according to the decision of the Supreme Court under https://hcservices.ecourts.gov.in/hcservices/ Section 10(4) of the Act, yet it has been decided by the Supreme in the said case that the Tribunal must determine that there is a good prima facie case in favour of the workman for a final adjudication and, therefore, on the facts of a particular case, granting of interim relief by the interim award is necessary. In absence of such an adjudication, it was held that the Tribunal is not competent to grant interim relief to the discharged workman. Therefore, there can be no doubt that the Tribunal has got the power under Section 10(4) of the Act to grant interim award during the pendency of the main dispute in favour of the workman including, issuing a direction to pay 50% of the wages last drawn pending disposal of the I.D. But to decide that as to whether the petitioner is really deserved to get 50% of the wages last drawn during the pendency of the ID, the following issues to be seen by the Labour Court. Whether a prima facie case is made out in favour of the workman for final adjudication, so as to grant interim relief. In the present case, the Labour Court has rejected the prayer for grant of interim relief on three grounds. Firstly, the petitioner's wife is employed as a nurse and getting sufficient income to meet out his family expenses. Secondly, it has also gone into the charges levelled against the petitioner and the fact that a proper enquiry was conducted and only after the enquiry in accordance with the principles of natural justice, he was dismissed from service. Thirdly, the impugned order passed by the Labour Court also states that the respondent management would be put to irreparable loss and hardships in realizing the interim relief amount from the petitioner if the award is ultimately going to be in their favour. On that basis, by seeing the balance of convenience in favour of the respondent management, further held that the punishment of dismissal was imposed only after conducting an enquiry. 10. Assailing the above said order, the contentions of the learned Senior counsel for the petitioner that the order passed by the Labour Court refusing to grant interim relief under Section 10(4) of the Act and failure to issue a direction to the management for payment of 50% of the wages last drawn pending disposal of the dispute on the ground that since the petitioner's wife is serving as a nurse and thereby the family would be good enough to meet the daily expenses, cannot stand to legal and logical reasoning. In other words, his contentions that by appreciating the fact that the petitioner's family is residing in the Metropolitan City, Chennai and his family is consisting of wife and two college going children, the Labour Court ought to have granted 50% of the wages last drawn by the petitioner and in such an event, any order from the Labour Court, the respondent management would not be put to any prejudice, since the turn over in the business involves more than Rs.1000 crores with huge profit every year, also does not merit consideration. The reason being that the Apex Court has ruled in the case of Hotel Imperial (cited supra) to find out a good prima facie case in favour of the https://hcservices.ecourts.gov.in/hcservices/ workman to ensure whether he has got a fair case, so as to consider the grant of interim relief during the pendency of the industrial dispute. 11. In fact, in line with the principles laid down by the Apex Court in the case of Hotel Imperial (cited supra), if the case of the petitioner is looked at, the petitioner's wife is employed as a nurse, therefore, the reason given by the Labour Court for dismissing the interim relief holding that the petitioner would not be put to irreparable loss in the event of refusal of interim relief, cannot be found fault with. Secondly, when the Labour Court has also come to the conclusion that the interim impugned order, pending final adjudication before the Labour Court, came to be passed only after the domestic enquiry, the correctness of the impugned order passed by the Labour Court does not warrant interference by this Court and on that basis, I find no reason in the writ petitions filed by the petitioners. 12. Accordingly, for the reasons stated above, the present writ petitions stand dismissed. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. tsh/rkm To 1. The Presiding Officer, III Additional Labour Court, Chennai. 2. The Section Officer VR Section, High Court, Madras 1 cc to M/s. Ramasubramaniam, Assocaites, Sr. 30111 1 cc to Mr.K. Sundaliakannu, Advocate, sr. 30032 1 cc to M/s. King and PAtridge, Advocate, sr. 30171 WP.Nos.26883 and 26884 of 2010 LA (CO) kk 12/5 https://hcservices.ecourts.gov.in/hcservices/