IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.03.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.21908 and 21909 of 2010 & M.P.No.1 of 2010 1 RANGASAMY .. PETITIONER in W.P.No.21908/2010 1 M.P.MANIKANDAN .. PETITIONER in W.P.No.21909/2010 Vs 1 THE PRESIDING OFFICER LABOUR COURT COIMBATORE. 2 THE MANAGEMENT OF JANARDHANA MILLS LTD REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR SINGANALLUR COIMBATORE-15. .. RESPONDENTS in both W.Ps Prayer in W.P.No.21908 of 2010: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the entire records pertaining to the order of the Labour Court in Interlocutory Petition No.298/2009 in Computation Petition No.1/2005 dated 3.8.2010 and quash the same so far as the petitioner is concerned consequently direct the 1st respondent to permit the petitioner to carryout the amendment as prayed by him in Interlocutory Petition No.298/2009 in Computation Petition No.1/2005. Prayer in W.P.No.21909 of 2010: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the entire records pertaining to the order of the Labour Court in Interlocutory Petition No.297/2009 in Computation Petition No.1231/2004 dated 3.8.2010 and quash the same so far as the petitioner is concerned consequently direct the 1st respondent to permit the petitioner to carryout the amendment as prayed by him in Interlocutory Petition No.297/2009 in Computation Petition No.1231/2004. For Petitioner in both W.Ps :: Mr.R.Selvakumar For Respondents in both W.Ps :: R1- court Mr.Vijay Narayan, Sr.counsel for Mr.R.Parthiban for R2 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER Heard the arguments of Mr.R.Selvakumar, learned counsel for the petitioner and Mr.Vijay Narayan, learned senior counsel appearing for Mr.R.Parthiban, learned counsel for the 2nd respondent management. 2. These two Writ Petitions were filed against the order passed by the 1st respondent Labour Court in I.P.Nos.298/2009 and 297 of 2009 made in C.P.Nos.1 of 2005 and 1231 of 2004 dated 3.8.2010. The two petitioners herein along 68 other workers, who were ex- employees of the 2nd respondent Mill filed a Claim Statement under Section 33-C (5) read with 33-C (2) of the Industrial Disputes Act before the Labour Court claiming certain amounts towards lay off compensation on the plea that the 2nd respondent management did not get prior approval for laying-off of the workmen. Therefore, in terms of Section 25-M (8) of the Industrial Disputes Act, they are entitled to get wages. 3. On notice from the Tribunal, the 2nd respondent management filed a counter statement resisting the claim made by the workmen. In the counter statement dated 11.2.2005, it was contended that for the period from 4.10.1998 to 19.10.2002, the Mill suspended the operation. Subsequently the settlement was signed on 19.10.2002 under which the terms were agreed between the trade unions of the workers and the management. The dispute which was pending before the Special Tribunal was dismissed as withdrawn. Pursuant to the notice, the workmen were directed to give resignation letter, which the petitioners and other 68 workmen had also given. As per the terms of the settlement, the amounts to which they are entitled were settled. Notwithstanding the same, the petitioners filed the Claim Petition as noted above. 4. After seeing the counter affidavit filed by the 2nd respondent management, the workmen filed an application in I.A.Nos.298 and 297 of 2009 seeking for amendment of the claim made by them. Instead of lay-off relief, they wanted to claim that the mill was under the closure for the relevant period and therefore in the light of the prior approval under Section 25-O of the Act and the management not obtained any relief in the form of approval from the competent authority, the workmen were continued to be in service and hence they are entitled to be paid monthly wages in terms of Section 25-O (6) of the Industrial Disputes Act. This amendment was sought to be resisted by the 2nd respondent by filing a counter. https://hcservices.ecourts.gov.in/hcservices/ 5. The Labour Court after hearing the workmen on the interim application held that the workmen cannot come up with the new plea and the amendments were vague and they cannot bring into the concept of 'closure' at this belated stage. Having taking such a stand, the Labour Court dismissed the application. Though in the said application, there were 70 workers, only 2 workers have come forward to challenge this identical order passed by the Labour Court. 6. Before the Labour Court, no oral evidence was let in and no documents were produced in this interim application. It is surprising that the Labour Court dismissed the amendment application without any evidence being let in on the said issue. The observation made by the Labour Court that the workmen cannot raise a new plea or alter the item of the claim is misconceived. Unlike the Civil Court, the Labour Court under Section 33-C (2) of the Industrial Disputes Act is not trapped by any law of limitation. By the amendment, no prejudice would be caused to the employer. 7. In the normal circumstances, this court would have set aside these two impugned orders and remand the matter for fresh trial on the basis of new averment. But merely remanding the matter for fresh trial without there being any live on the issue before the Labour court is unnecessary and waste of time for the Labour Court. Therefore, this Court directed the parties to address the competency of the Labour Court to go into their entitlement issue as well as the beneficiary of the settlement and resignation letters given by the workmen. 8. It is needless to state that the claim under Section 33-C (2) of the Industrial Disputes Act must be based upon an existing right. In the present case, the definite stand of the management is that there was the suspension of the operation. If the workmen wanted to dispute that it was not the suspension of operation but it was only a lay off, they ought to have raised a dispute under Section 2(k) of the Industrial Disputes Act and such disputed question cannot be gone into an application under Section 33-C(2) of the Act. Assuming that the 2nd respondent Mill was closed contrary to law, the workmen themselves have entered into a settlement and given a resignation letter, in which case the workmen have not really questioned the closure in the manner known to law and when they have compromised the matter by agreeing to finally leave the company by accepting the terminal benefits, the workmen cannot contend at this juncture that the resignations were obtained by coercion. In any event, such type of dispute cannot be decided in a petition under Section 33-C (2) of the Industrial Disputes Act. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel for the workmen in support of their contention produced an order of this court in W.P.No.4177 of 2005 dated 3.3.2011 holding that the claim under Section 25-M of the I.D.Act can be made before the Labour Court and the employer cannot contend that there must be a pre-exiting right. In that case, it was observed that the Chapter V-B gives a right to the workmen to claim wages. That was not a case where the workmen have compromised their claim before the management and thereafter moved the Labour Court for a claim based upon a different right. The case cited by the learned counsel for the petitioners is not proper for this case. Considering the fact that 68 other workmen have not moved this Court and only two workers have come to this Court, the findings rendered by the Labour Court in respect of the others will operate as res judicata against the petitioners. Therefore, there is no inclination to order remand even though the order of the Labour court may not be legally valid. Hence, both the Writ Petitions stand dismissed. No costs. The connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1 THE PRESIDING OFFICER LABOUR COURT COIMBATORE. 1 cc To Mr.R.Selvakumar, Advocate, SR.21880. 1 cc To Mr.R.Parthiban, Advocate, SR.21940. W.P.Nos.21908 and 21909 of 2010 NM(CO) RVL 12.04.2011 https://hcservices.ecourts.gov.in/hcservices/