IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :07.04.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition Nos.23155, 37730 and 37731 of 2005 The Management of Pentasia Chemicals Limited (Now knows as Asian Paints Ltd Penta Division) Sipcot Industrial Estate, Cuddalore 607 005 ... Petitioner in W.P.No.23155 of 2005 Pentasia Pattali Thozhir Sangam, 123, Pillayar Koil Street, Sandrorpalayam, Cuddalore. ... Petitioner in W.P.Nos.37730 & 37731 of 2005 Vs. 1.The Presiding Officer, Labour Court, Cuddalore 607 003. ... 1st and 2nd respondent in all W.Ps. 2.Pentasia Pattali Thozhir Sangam, 123, Pillayar Koil Street, Sandrorpalayam, Cuddalore. ... 2nd respondent in W.P.No.23155/2005 3.The Management Pentasia Chemicals Ltd., SIPCOT Complex, Cuddalore .. 1st respondent in W.P.Nos.37730 & 37731 of 2005 4.Pentasia Anna Thozhilalar Sangam SIPCOT Industrial Complex, Cuddalore  3. ... 3rd respondent in W.P.No.37730 of 2005 PRAYER in W.P.No.23155 of 2005: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari, calling for the records and to quash the award dated 13.04.2005 passed by the first respondent in I.D.No.81 of 1994. PRAYER in W.P.No.37730 of 2005: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari, calling for the records of the second respondent in I.D.No.82 of 1994 dated 13.04.2005 and quash the same and consequently order full payment of wages for the lock out period. PRAYER in W.P.No.37731 of 2005: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari, calling for the records of the second respondent relating to the proceedings in I.D.No.81 of 1994, dated 13.04.2005 and quash the same and consequently direct the first respondent to reinstate the worker V.Prabhu represented by the petitioner Trade Union with backwages and attendant benefits. For Petitioner :Mr.R.Krishnamoorthy (in W.P.No.23155 of 2005 & S.C. For 1st respondent in W.P.Nos. Mr.Meenakshisundaram 37730 and 37731 of 2005) For Petitioner (in W.P.Nos.37730&37731 of 2005:Mr.R.Muralidharan and 2nd respondent in W.P.No.23155 of 2005) O R D E R These writ petitions are filed against the award of the Labour Court in I.D.Nos.81 and I.D.No.82 of 1994, dated 13.04.2005. While W.P.No.23155 of 2005 is filed by the management against the award in I.D.No.81 of 1994 and other two writ petitions are filed by the workers union against the award in I.D.Nos.81 and 82 of 1994. 2.Brief facts leading to the filing of the writ petitions are as follows: a)The management which is having a factory at the SIPCOT Industrial Estate Cuddalore is known as Asian Paints (India) Limited (Penta Division). In respect of the six workmen by settlements, dated 22.04.1993 and 10.05.1993 entered under Section 12(3) of the Industrial Disputes Act (hereinafter referred to as 'the Act') before the Special Deputy Commissioner of Labour, Madras, the management and the union have agreed to refer for adjudication apart from the validity of grant of special increments to three staff and the justifiability of lock out. b)The application was made to the Government under Section 10(2) of the Act on 18.06.1993. Since reference was not made, the union has filed W.P.No.7852 of 1994 and thereafter, the dispute was referred by the Government as per the G.O.(D)No.392, Labour and Employment, dated 12.05.1994 to the first respondent/Labour Court. The following disputes were referred: "Whether the Management in fact violated the terms of the Settlement dated 8th May 1991 in giving special increments to three of the workmen Tvl.S.Sampathkumar, S.S.Kumaravelu and L.D.Samuelson on the evaluation of their performance. Whether the termination of the services of Tvl.M.K.Radhakrishnan, G.Logadasan and S.Lakshmanan, is valid and, if not, the relief that they are entitled to. Whether the termination of the services of Tvl.K.Kasinathan, V.Govindarajulu and V.Prabhu, is valid and, if not, the relief that they are entitled to". c)It is stated that among the said employees M/s.Lakshmanan and Govindarajulu were dismissed on proven charges and were settled the accounts with the result the reference was restricted for adjudication in respect of the other four workmen and that was taken up in I.D.No.81 of 1994 by the Labour Court. d)The issue relating to justifiability of lockout of the management was referred by the Government in G.O.(D).No.393, Labour and Employment, dated 12.05.1994 to the first respondent Labour Court and in the award, dated 13.04.2005, the Labour Court has held that the lockout is illegal. That was in I.D.No.82 of 1994 against which the Union has filed W.P.No.37730 of 2005. e)The Labour Court in I.D.No.81 of 1994 relating to the said employees has held as follows: "i)that in respect of Thiruvalargal S.Sampathkumar, S.Kumaravel and L.D.Samuelson, the Management violated the terms and conditions of settlement, dated 08.05.1991 by giving special increments to them. ii)that the Management has to either withdraw the special increment granted to them or grant such increment to other workers also. iii)that the termination of services of Tvl.M.K.Radhakrishnan, G.Logadasan and K.Kasinathan are held to be not valid and directed reinstatement with continuity of services and backwages". It is in respect of that portion of the award passed by the Labour Court in I.D.No.81 of 1994, the management has filed W.P.No.23155 of 2005. In I.D.No.81 of 1994, the Labour Court has held that termination of V.Prabhu as valid. It is as against that portion of the impugned award, the union has filed W.P.No.37731 of 2005. It is stated that the workmen had originally formed Union in 1988 and thereafter, the workmen switched over allegiance to the Pentasia Pattali Thozhir Sangam namely, the union. The union has raised charter of demand, dated 27.10.1990 and when the discussions were on, the union has called off direct negotiations and went to the Deputy Commissioner of Labour for discussion. f)It is the case of the management that when the discussion was pending with the Deputy Commissioner of Labour, on 25.01.1991, on the same day, the union has issued a strike notice supported by a political party. Therefore, according to the management, the efforts of the union was not bona fide and there has been an act of indiscipline and sabotage after the strike notice on 25.01.1991 was given and the Union went on strike from 01.02.1991 as notified. It is stated that due to certain untoward incidents, the management approached the local Civil Court and for police protection. The Deputy Commissioner of Labour has failed to bring about settlement. However, at the instance of the Collector, a settlement was reached on 08.05.1991 which was valid upto 03.05.1994 by which the Union has agreed for normalcy and it is stated that the Union has agreed not to raise any dispute involving any financial burden on the management during the subsistence of the settlement. However, it is stated by the management that on 07.09.1991, the Union has raised a demand for ex-gratia payment for each of the workmen and after discussion it was agreed to pay an advance amount of Rs.1,250/- of which Rs.700/- would be recoverable. The Union further demanded in October 1991 for sweets during Deepavali demanding 1Kg instead of 1/2Kg and when that was denied, resorted to strike on 05.11.1991. g)It is stated by the management that in 1992 February, the Union has made 14 demands including an interim relief and some of the demands were accepted to be considered stating that there was substantial decline in production efficiency. It is stated that in May 1992, an additional special increment was granted to three clerical staff on evaluation of their performance and that was objected to by the Union by demanding additional increment to all workmen. Subsequently, there was some agitation and the management has decided to sustain the processing operations to protect the chemical equilibrium in the system and notice was issued on 17.6.1992. It is stated that the workmen have engaged in disrupting the work by threatening the Executives and Engineers and there was a danger on the noxious chemicals which are stored. It is stated that various workmen were involved in threatening the officials obstructing the co-employees preventing electricians from working, preventing utility department from carrying out the maintenance work using abusive and vulgar languages etc., h)It is stated that various suggestions made by the Deputy Commissioner of Labour to put an end to the unrest has not worked. Again when the Collector and Sub Collector of the South Arcot District intervened, there was an agreement on 23.07.1992 before the Sub Collector by which normalcy was agreed to be restored and joint reference of dispute for adjudication was accepted to be made under Section 10(2) of the Act. It is stated that since the workmen have not resorted to normalcy, the management has notified the various acts of indiscipline and informed the same to the Deputy Commissioner of Labour on 12.08.1992 and show cause notices were issued. It is stated that Thiru.Radhakrishnan and Thiru.Kasinathan apart from Thiru.G.Logadasan and others have insisted for withdrawal of show cause notice and order of suspension and also served a notice of stay in strike on 15.08.1992. It is stated that in order to safeguard the industry, the management has declared lock out of the factory on and from 15.08.1992. Since there was an order of suspension against one of the workmen, the Union has commenced the stay in strike and thereafter, after declaring the lock out, the management has issued charge sheets to the office bearers of the Union. i)In the proceedings before the Labour Court, it was the case of the management that grant of additional increment to three employees is not in violation of settlement; that the reference made under Section 10(2) of the Act is to be adjudicated; that there has been violation of agreement by the union; that the production levels had substantially come down; that there has been confrontation instead of conciliation; that the stay in strike by the Union has resulted in shut down procedures endangering the plant and machinery; that the termination of four workmen was after observing all the principles of natural justice etc., j)It has been the case of the Union that the agreement before the District Collector is not valid in law since under the Act it is only Labour Officer who can act as conciliator and that the strike resorted to from 15.08.1992 pursuant to the notice dated 25.05.1992 is legal. It is stated that before the first respondent/Labour Court, no oral evidence was adduced by both the side, while the management has marked 229 documents, the Union marked 30 documents. However, the Union has issued notice for production of various documents. On the basis of the oral and written submissions before the Labour Court, the Labour Court after extensively dealing with the contentions has held that the grant of special increment to three persons is not justified by referring to various exhibits especially Exs.M.153 and 169 and therefore, the act of the management comes under 9 of the 5th Schedule of the Act as unfair labour practice. k)In respect of termination of M/s. M.K.Radhakrishnan and G.Logathasan, it was held that they are protected workmen since they are the President and Executive Member of the Union and acted in accordance with the resolution of the general body and therefore, was held to be not equated to an act of an individual worker. Holding so, the said two persons were directed to be reinstated with continuity of service and backwages and other benefits. 3.The award of the Labour Court is challenged by the management insofar as it relates to the finding regarding the special increments granted to Thiruvalargal S.Sampathkumar, S.Kumaravel and L.D.Samuelson holding the same as violative of the terms of the settlement and setting aside the termination of service of M.K.Radhakrishnan and G.Logathasan and directing reinstatement with continuity of service, on the legal grounds, that the Labour Court has gone beyond the jurisdiction vested under Section 10(2) of the Act; that the grant of special increments to three of the workmen was on the evaluation of the performance which is well within the powers of the employer; that even it was the case of the Union that while six persons have worked during the strike period in February 1991, the management has chosen only three and the grant of increment to three should have been held to be discriminatory; that the management has issued such increments during the period of strike earlier that has been lost sight of by the Labour Court that the Labour court has traversed beyond the scope of reference; that in Ex.M.170, the management has explained the reason for granting such increments to such three workmen; that in respect of termination of two employees, the Labour Court, has failed to give a finding that the Enquiry Officer finding is perverse and inspite of the direction given by the Labour Court permitting the parties to let in evidence, the Union has not taken any steps. In such circumstances, the Enquiry Officer finding must be held not perverse as per the judgment of this Court reported in 1992 1 LLJ 9 (S.Ramaiah Mudaliar Bros & others Vs.Industrial Tribunal, Madras); that the workmen have not tendered any explanation for the charge at any point of time and therefore, there has been an uncontroverted evidence of the management witness; that the Labour Court having found that simply because the two workmen are the office bearers of the Union they can be considered as protected workmen and because of the status of office bearers of the Union it does not mean that they can involve any unlawful activities has nevertheless held wrongly that their termination is not valid; that the Labour Court has failed to consider the significance of the term "protected workmen" under Section 33(3) of the Act and also Rule 65 of the Rules framed under the said Act; that the Labour Court itself having found that there was misconduct on the part of the said workmen but has justified the same on the ground that the misconduct was resorted to because of the conferment of the said increments to three workers failing to note the decision of the Supreme Court reported in 2001 3 LLN 832 (Chandra Vilash Rai Vs. State of Bihar) holding that such action would not exonerate the delinquent from the liabilities for irregularities committed; that as per various judgments of the High Courts, a workmen cannot be termed to indulge in unlawful activities by using the term "protected workmen", that the enquiry having been held fairly by the Enquiry Officer, the Labour Court ought not have interfered in that regard; that there was no inordinate delay on the part of the management in taking action against the erring workmen, that the Labour Court has failed to appreciate the various factual matters and various exhibits filed on the side of the management in their proper perspective and the award has been passed contrary to the evidence let in and that the impugned award of reinstatement with backwages is not valid in the absence of any pleading of the workmen in not having been gainfully employed and in the absence of any finding that the workmen are not gainfully employed and the same would be bad as per the judgment reported in 1982 (3)SCC 385 (Durg District Metal & Engg.Worker Union Vs. Bhilai Construction Company). 4.On the other hand, in respect of the portion of the impugned award of the Labour Court holding that the termination of service of V.Prabhu is valid, the Union has challenged the same on the ground that the Labour Court ought not have accepted the evidence of the management witness P.Karthikeyan; that the Labour Court has erred in referring Ex.M.14 shift log book as corroborating evidence of P.Karthikeyan; that the Labour Court ought to have held that there is no evidence that V.Prabhu was sleeping; that the Labour Court ought to have considered the charge framed against the said V.Prabhu that he has refused to increase feed rates from 170 volts to 180 volts has not been proved; that the Labour Court has failed to appreciate the charge No.2 that the said B.Prabhu has deliberately increased the feed rates and the said allegations stood not proved and the allegation that the said V.Prabhu was found sleeping making false entries also stood not proved and inspite of it, the Labour Court has confirmed the termination and in any event, the Labour Court ought to have taken note of the fact that the termination is grossly improportionate to the charges. 5.Again in respect of the decision of the Labour Court in justifying the lock out of the management, the Union has challenged the said award passed in I.A.No.82 of 1994 on the ground that the allegation of strike resorted by the Union on 15.08.1992 is against Ex.M.42 and against Section 22(1) (a) of the Act; that the allegation of loss of production or damage of the plant and machinery was not substantiated with any evidence; that the finding of the Labour Court that under Section 22(2)(a) of the Act, there was no necessity on the part of the employer to give advance notice to lock out is erroneous; that the finding of the Labour Court that the management has complied with the requirement of Section 22(6) of the Act is not sustainable; that the finding of the Labour Court on the lock out declared by the management is justifiable is not sustainable in law; that in respect of the information by the Collector that management is likely to resort to lock out, the Labour officer has taken steps to conciliate pursuant to a settlement arrived at in the presence of the District collector and the workmen have joined duty after 22.07.1992 and inspite of it, the management has resorted to victimization and that the allegation of stay in strike is against Ex.M.41 and therefore, in that regard is not valid in law. 6.It is the contention of Mr.R.Krishnamurthy, learned Senior counsel for the management that the Union has never pleaded protection under the "protected workmen" before the domestic enquiry and it is submitted that under Section 33(3) explanation, there is no protection given to the protected workmen and as per Rule 65 of the Tamil Nadu Industrial Disputes Rules for the office bearers of the union who are referred to as protected workmen certain privileges are given and that is not a protection against the unfair practice and therefore, it is his submission that when there is a factual finding that misconduct has been committed, according to the learned Senior Counsel, the Labour Court ought not to have directed reinstatement. He would also reiterate that the award of the Labour court is beyond the scope of reference and the Labour Court has not adverted to various materials on record which are filed and marked as documents. 7.On the other hand, it is the contention of Mr.R.Muraleedharan, learned counsel for the union that the special increment granted to three of the employees is unfair labour practice and he would also refer to Ex.W.18 and it is submitted that when the Labour Court has found that there is no provision under the settlement arrived at under Section 12(3) of the Act for payment of special increment, such payment made to three workmen should be treated as unfair labour practice. He would also reiterate that the protected workmen concept applies to the office bearers of the union and as per the collective decision of the union, if the office bearers act based on the resolution such action sought to be protected and such conduct cannot be the basis either for disciplinary proceedings or termination of service. It is his submission that the mere inaction on the part of the management for a period of four months would create a presumption that it has taken note of the fact that the said two workmen are protected workmen and therefore has decided to exonerate them and the subsequent action is only an after thought. It is submitted that the management ought to have explained the delay in taking disciplinary action against protected workmen. He would also rely upon the following judgments: "i)Mavji C Lakum Vs. Central Bank of India reported in 2008 7 Scale 32 ii)Management of Essorpe Mills (P) Ltd., Coimbatore Vs. Presiding Officer, Labour Court, Coimbatore and another reported in 1998 II LLJ 1998 iii)P.Palanisamy Vs.Regiional Manager, Tamil Nadu Forest Plantation Corporation Ltd., Indira Nagar, Machuvadi, Pudukkottai and 2 others reported in 2008 3 L.W 1000 iv)S.Ramaiah Mudaliar Bros and Others Vs.Presiding Officer, Industrial Tribunal, Madras and another reported in 1992 I LLJ 1992" 8.In respect of the portion of the award relating to the workman V.Prabhu justifying the termination, it is his submission that even assuming that the charges against the said V.Prabhu are proved, considering the nature of charges framed against the said workman termination is disproportionate and that aspect has not been considered by the Labour Court. He would also rely upon a judgment reported in AIR 2009 SC 2458(Jagdish Singh Vs. Punjab Engineering College & others). 9.Again while assailing the award by the Labour Court justifying the lock out, the learned counsel would submit that the Labour Court has failed to consider the reasons for such lock out and also the circumstances when the lock out was declared. It is his specific submission that inasmuch as it remains a fact that the management is involved in public utility service, the Labour Court ought to have considered the evidence and he would rely upon the judgment reported in 2009(1) LLN 806 (Roop Singh Negi Vs. Punjab National Bank and others). 10.In that regard, it is the submission of Mr.R.Krishnamurthy, leaned Senior Counsel appearing for the management that the lock out was a necessary consequence of the various undesirable conducts of the union and that was to protect the sensitive manufacturing process. That apart, the learned Senior counsel for the management and union have taken me to the portions of the domestic enquiry as well as the documents which were filed and marked before the Labour Court to substantiate their respective contentions. 11.I have considered the rival submissions of the respective counsels and referred to the various documents filed in the form of the typed set of papers and given my anxious thought to the issues involved in these cases. 12.In these writ petitions based on the awards of the Labour Court in I.D.Nos.81 and 82 of 1994 challenged by the management and the union, broadly speaking the issues to be decided are: "i)relating to M/s.M.K.Radhakrishnan and G.Logathasan and K.Kasinathan and their termination made by the management having been set aside and the Labour Court directed reinstatement with continuity of services and backwages. Incidentally to decide as to whether the grant of special increments to S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson are against the terms of settlement and they are the unfair labour practice as held by the Labour Court. The above said issues to be decided in the writ petition filed by the management. ii)relating to the termination of service of Mr.V.Prabhu held to be valid by the Labour Court in its award in I.D.No.81 of 1994 and iii)relating to the lock out declared by the management held to be valid as per the award passed by the Labour Court in I.D.No.82 of 1994. The above issues are to be decided in the writ petitions filed by the union". 13.The scope of reference made by the Government under Section 10(2) of the Act concerning the award in I.D.No.81 of 1994 as given in the annexure to the Government Order in G.O.Ms.No.(D)392 Labour and Employment Department, dated 12.05.1994 is as follows: "1.Whether Management infact, violated the terms and conditions, of the settlement dated 8th May'91 in giving special increments to three of the workers Tvl.S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson on the evaluation of their performance. If so, to what relief they are entitled to. 2.Whether the termination of the services of Tvl.M.K.Radhakrishnan and G.Logadasan is valid and if not what relief they are entitled to. 3.Whether the termination of the services of Tvl.K.Kasinathan and V.Prabhu is valid and, if not to what relief they are entitled