IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.07.2008 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.5930 of 1999 The General Manager Tamil Nadu Cooperative Milk Producers' Federation Limited 29-30, Industrial Estate Ambattur Chennai 600 098 .. Petitioner -Vs- 1. The Presiding Officer First Additional Labour Court Chennai-104 2. P.Nagarajan 3. The State of Tamil nadu rep.by its Secretary to Government Labour and Employment Department Fort St.George Chennai-9 .. Respondents Petition filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the proceedings in I.D.No.291 of 1991 on the file of the First Additional Labour Court, Chennai and quash the order passed therein dated 22.7.1997 and published in supplement to part II Section 2 of the Tamil Nadu Government Gazette dated 12.11.1997 and printed at pages 2 to 6 therein. For Petitioner :: Mr.S.Subbiah For Respondents :: Mr.K.V.Ananthakrishnan for R2 Mrs.C.K.Vishnupriya Addl. Government Pleader for R3, R1 Court ORDER The petitioner, which is a Cooperative Milk Producers Federation, aggrieved by the award of the first respondent-Labour Court in directing reinstatement of the second respondent with full backwages, has filed the present writ petition. 2. When the writ petition was admitted on 9.4.99, this Court by an order dated 11.8.2000 permitted the worker to be reinstated https://hcservices.ecourts.gov.in/hcservices/ without prejudice to the contention of both sides. It was also stated that for the conditional stay granted by this Court, the petitioner-Management should deposit Rs.1,41,900/- to the credit of I.D.No.291 of 1991 with the Labour Court and on such deposit, an amount of Rs.31,900/- was to be paid to the second respondent and the balance of Rs.1,10,000/- should be deposited in the Tamil Nadu State Apex Cooperative Bank, Chennai-1 for a period of four years. Subsequently, by a further order dated 31.8.2001, this Court permitted the second respondent to withdraw the quarterly interest accrued to the deposit made before the bank. 3. Mr.S.Subbiah, learned counsel for the petitioner submitted that the second respondent was only a temporary driver and in the appointment order dated 23.5.88 given to the second respondent this fact was also clearly indicated. And it was also indicated that he was only appointed for a period of six months and he can be ousted at any time. He was also aggrieved by the findings of the Labour Court that after the expiry of six months period, the Labour Court held that the workman must have been made permanent. The learned counsel submitted that neither under the term of contract nor in the service regulations, there is any provision for automatic confirmation and since the second respondent was only a temporary employee and also committed an accident within the temporary period, he is not eligible for any relief. 4. But before the Labour Court, on the side of the second respondent-workman, Ex.W-1 dated 19.11.90 was marked, which is a judgment given by the Special Judicial Magistrate, Tiruvottiyur in C.C.No.21 of 1990 acquitting the second respondent from the charge of rash and negligent driving. It was in that context the Labour Court held that even though the workman was acquitted, but his services were abruptly terminated without any show cause notice and any enquiry. 5. Even before the Labour Court, the petitioner-Federation did not produce any material to show that his termination was due to the misconduct alleged against him. The said conduct was to be proved to the satisfaction of the Labour Court. In that view of the matter, the Labour Court directed his reinstatement with service continuity and backwages. The learned counsel also submitted that in a case of temporary employee who was also out of service, the question of grant of backwages that too, full backwages may not arise. He also submitted that when the second respondent was appointed, he did not give the community certificate in original and there was a variation between his school certificate and the original community certificate and therefore he ought not to have been reinstated. 6. It must be stated that the community certificate produced by him is from the Tahsildar, who is the competent authority, and unless the said certificate is cancelled or suspended, the question of doubting the said certificate may not arise. https://hcservices.ecourts.gov.in/hcservices/ 7. However, per contra, Mr.K.V.Ananthakrishnan, learned counsel for the second respondent submitted that the petitioner has been in employment from August, 2000 and he has not been given proper fixation of pay, inspite of that fact, he has worked for the last eight years. He also submitted that in the absence of the management producing to the satisfaction of the Labour Court any material, the question of any misconduct being committed by the workman does not arise. He also submitted that once the termination is for any misconduct, then whether the workman is temporary or permanent is immaterial so long as the management does not prove to the satisfaction of the Court any misconduct committed by the workman. 8. It is seen from the records that even though the management had claimed that the second respondent was only a temporary employee and he is not eligible for any relief, the management has not proved to the satisfaction of the Labour Court the alleged misconduct committed by him namely, driving the vehicle in a rash and negligent manner and causing loss to the Federation. In that view of the matter, no fault can be found with the award passed by the Labour Court. 9. However, with reference to the backwages, it must be stated that the Labour Court has not given any reason for granting full backwages even though, admittedly, the workman was only a temporary workman and not eligible for reinstatement as a normal rule. In this case, even pending the writ petition, the workman was reinstated in service, but the question of grant of 100% backwages may not arise. In such circumstances and the Supreme Court in its recent judgment in St.Michael's Teacher Training Institute v. V.M.Karpaga Mary & others reported in 2008 (5) JT 646 had referred to the line of reasoning provided under Section 11A of the I.D.Act in grant of backwages by the Labour Court and restricted the backwages to that of 75%. 10. In the light of the same, the award of the Labour Court is upheld. But, however, it is modified with reference to the backwages, which will be restricted to 75%. The petitioner- management is directed to compute the 75% of backwages and pay it to the second respondent. They are permitted to withdraw the deposit lying in the Labour Court. This exercise shall be undertaken by the management within a period of eight weeks from the date of receipt of a copy of this order. The writ petition stands disposed of with the aforesaid direction. No costs. Ss Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Presiding Officer First Additional Labour Court Chennai 600 104 2. The Secretary to Government of Tamil Nadu Labour and Employment Department Fort St.George Chennai 600 009 Copy to:- The Record Keeper, VR Section, High Court, Madras 104. + 1 cc to Mr. S. Subbaiah, Advocate, SR No.37173 + 1 cc to Mr. K. V. AnanthaKrishnan, Advocate, SR No.37337 + 1 cc to the Government Pleader, SR No.37808 W.P.No.5930 of 1999 DM(CO) SR/23.7.2008 https://hcservices.ecourts.gov.in/hcservices/