IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 03-11-2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.807 of 2003 M.Radhakrishnan .. Petitioner. Versus 1.The Management of Marshall Sons & Co. (Mfg.) Ltd. represented by its Chairman and Managing Director Regd. Office: No.3, N.S.Road, Calcutta 700 001. 2.The Executive Director Marshall Sons & Co. (Mfg.) Ltd. 33 & 34, Ambattur Industrial Estate Chennai 600 058. 3.The Management of Marshall Sons & Co. (India) Ltd. represented by its Chairman and Managing Director Regd. Office:No.3, N.S. Road Calcutta 700 001. .. Respondents. Prayer: Petition filed seeking for a writ of Declaration, declaring that the petitioner is entitled to full salary, and consequently, that letters of the petitioner of 15.11.2002, and the subsequent order of Transfer 9.12.2002 are not to be acted upon. For Petitioner : Mr.V.Prakash Senior Advocate for Ms.Sudha Anilkumar For Respondents : No Appearance O R D E R Heard the learned counsel appearing for the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2. This writ petition has been filed for a writ of declaration, declaring that the petitioner is entitled to full salary and that the letters of 15.11.2002 and the subsequent order of transfer, dated 9.12.2002, are not to be acted upon. 3. It has been submitted that the petitioner had joined the services of the first respondent Company, in the Ambattur Plant, on 11.2.1971, as an Attendar in the Stores Department. Later, he was employed as Commercial Assistant Grade-II, under the second respondent. The petitioner is a workman under Section 2(s) of the Industrial Disputes Act, 1947, as he was carrying on the work which is clerical in nature. Since the respondent is an industry, under Section 2(j) of the Industrial Disputes Act, 1947, the provisions of the said Act shall apply to the petitioner. Since the petitioner had been transferred to work in the first respondent Company at Calcutta without paying the wages due to him, the petitioner has filed the present writ petition, being aggrieved by the impugned proceedings, before this Court, under Article 226 of the Constitution of India. 4. It has been stated by the learned counsel appearing on behalf of the respondents that due to severe financial constraints, the respondents have not been able to make the payments of wages to its employees in time. Since there is no public duty or function attached to the business of the respondents, no writ petition is maintainable against the respondent company. 5. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the petitioner had relied on a decision of the Full Bench of this Court in P.Pitchumani, etc. Vs. The Management of Sri Chakra Tyres Ltd., rep. by its Managing Director. (2004(3) CTC(1). Paragraph-14 of the order passed by the Division Bench reads as follows: 14. In view of what is stated supra, we hold that (i) only such violations under I.D.Act, which involve public duties, are amenable to Writ jurisdiction under Article 226 of the Constitution of India; (ii) dismissals, transfers and other matters concerning the service conditions of employees governed by I.D.Act, have to be adjudicated only by the forums created under the said statute and not otherwise; (iii) it is needless to mention that the disputes relating to matters not governed by I.D.Act have to be resolved only by common law Courts; (iv) the transfers effected in these cases do not involve any public duties and involve the disputed questions of fact and they should be resolved only before the forums under the I.D.Act; (v) the appellants/petitioners-employees shall be https://hcservices.ecourts.gov.in/hcservices/ entitled to seek for reference by filing application under Section 10 of the I.D.Act within two weeks from the date of receipt of a copy of this order; (vi) if any industrial disputes are raised, then the concerned forums, be it Labour Court or Industrial Tribunal, shall dispose of the same within four months from the date of receipt of the reference, after affording opportunity to either party; (vii) without prejudice to the contentions of the appellants/petitioners-employees, one week time from the date of receipt of a copy of this order is given to the employees to join at the transferred places and in respect to such of those dismissed employees, for non- joining at the transferred places, the delay is condoned if they join as stipulated above and in that event, dismissal orders passed against them disappear automatically; and (viii) the respondents-managements shall sympathetically consider the payments of wages/salaries to the appellants/petitioners-employees so as to maintain the industrial peace and harmony." 6. The learned counsel appearing on behalf of the petitioner had prayed that this Court may be pleased to pass an order in view of Clause (v) of Paragraph-14 of the decision of the Division Bench cited supra, which states that the petitioner shall be entitled to seek for reference by filing an application under Section 10 of the Industrial Disputes Act, 1947, within a specified period. 7. No objection has been raised on behalf of the respondents, either in person or through their counsels appearing on behalf of them. 8. In such circumstances, the writ petition stands closed, observing that the petitioner shall be entitled to seek for reference by filing an application, under Section 10 of the Industrial Disputes Act, 1947, within a period of two weeks from the date of receipt of a copy of this order. No costs. Csh Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Chairman and Managing Director M/s MarshallSons & Co. (Mfg.) Ltd. Regd. Office: No.3, N.S.Road, Calcutta 700 001. 2.The Executive Director Marshall Sons & Co. (Mfg.) Ltd. 33 & 34, Ambattur Industrial Estate Chennai 600 058. 3.The Chairman and Managing Director M/s. Marshall Sons & Co. (India) Ltd. Regd. Office:No.3, N.S. Road Calcutta 700 001. • 1 cc to M/s. Sudha Anil Kumar, Advocate SR No. 61280 JSV(CO) SR/7.11.2008 W.P.No.807 of 2003 https://hcservices.ecourts.gov.in/hcservices/