IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.04.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.22452 and 21807 of 2001 1.The Chief General Manager, Chennai Telephones, 78,Purasawalkam High Road, Chennai – 600 010. 2.The Divisional Engineer, Anna Road Telephone Exchange, Chennai Telephones, Chennai – 600 002. ... Petitioner in W.P.No.22452/2001 K.Dharmalingam ... Petitioner in W.P.No.21807/2001 Vs 1.K.Dharmalingam 2.The Presiding Officer, Central Government Industrial Tribunal- cum- Labour Court, Shastri Bhavan, Chennai – 600 006. ...Respondents in W.P.No.22452/2001 1.The Presiding Officer, Central Government Industrial Tribunal- cum- Labour Court, Shastri Bhavan, Haddows Road, Chennai – 600 006. 2.The Chief General Manager, Chennai Telephones, 78,Purasawalkam High Road, Chennai – 600 010. 3.The Divisional Engineer, Anna Road Telephone Exchange, Chennai – 600 002. ...Respondents in W.P.No.21807 of 2001 W.P.No.22452/2001 Prayer:Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records of the second respondent herein made in I.D.No.436 of 2001 dated 21.08.2001 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.21807/2001 Prayer:Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records from the files of the first respondent in I.D.No.436 of 2001 and quash the impugned Award passed by the first respondent dated 21.08.2001 in I.D.No.436 of 2001 insofar as it has negatived the claim of the petitioner for reinstatement in service, with continuity of service, with back wages and with all other attendant and consequential benefits. For Petitioner W.P.No.22452/2001 : Mr.S.Udayakumar,ACGSC W.P.No.21807/2001 : Mr.K.M.Ramesh For Respondents W.P.No.22452/2001 : Mr.K.M.Ramesh for R1 W.P.No.21807/2001 : Mr.S.Udayakumar,ACGSC for R2 and R3 C O M M O N O R D E R The first writ petition (W.P.No.22452 of 2001) was filed by the Chief General manager, Chennai Telephones together with Divisional Engineer,Anna Road Telephone Exchange (hereinafter referred to as Management) against the Award passed by the second respondent Central Government Industrial Tribunal-cum-Labour Court (for short CGIT) in I.D.No.436 of 2001 dated 21.08.2001. By the said Award, the CGIT directed the Management to pay the first respondent/Workman a sum of Rs.1,50,000/- within three months failing which the amount to be paid with 12% interest per annum from the date of the Award till the date of payment. Though the workman initially moved the Central Administrative Tribunal in O.A.No.201 of 1995 however, the Tribunal dismissed the OA and directed the workman to have recourse to the provisions of the I.D.Act. 2. The first respondent/Workman raised a dispute regarding his non-employment before the Central Government Labour Department. On a failure report being sent to the Central Government, the Government of India, Ministry of Labour by the exercise of its power under Section 10(1)(d) of the Industrial Disputes Act, 1947 (for short I.D.Act) referred the industrial dispute vide order dated 09.07.1997 for adjudication by the Industrial Tribunal at Chennai. The reference order stated "Whether the Management of Madras Telephones, Madras -10 in terminating the service of the first respondent with effect from 23.02.95 was justified or not? If not, to what relief the workman was entitled to?". 3. On receipt of the said reference, the State Industrial Tribunal sent notices to the parties and took up the dispute as I.D.No.45/97. When the matter was pending, the Central Government constituted the CGIT and therefore, the matters were directed to be https://hcservices.ecourts.gov.in/hcservices/ transferred to the second respondent/Tribunal. The second respondent/Tribunal on such transfer re-numbered the dispute as I.D.NO.436 of 2001. 4. Before the CGIT, the Workman examined himself as W.W.1 and on the side of the Management one K.Sethuganesan was examined as M.W.1. The Workman had filed 10 documents and they were marked as Exs.W1 to W10. On the side of the Management, 6 documents were filed and they were marked as Exs.M1 to M6. Ex.M6 was a document showing the number of days during which the workman was engaged by the Management on monthlywise. It was found by the CGIT that though the canteen was initially run by the Canteen Management Committee, subsequently it became a departmental canteen from 05.05.1983. The workmen who were engaged on causal basis were granted temporary status as per regularisation scheme, which was marked as Ex.M1. Though the Management contended that such a temporary status was granted erroneously, the same was not accepted by the Tribunal. The Tribunal also referred to Ex.W3 sent by the second petitioner to one T.E.Krishnasamy regarding decasualisation of temporary status of the workman. It was pursuant to the decasualisation, the order of discharge came to be made on 23.01.1995. 5. The CGIT also found that the termination of the workman was contrary to Section 25-F of the I.D.Act and since condition precedent prescribed therein was not followed, the termination is void ab initio. But at the same time, as per Ex.W4 one month notice has been given and the Accounts Officer was directed to settle the accounts of the Workman. But in the counter statement, there was no whisper that there was an offer of retrenchment compensation. Therefore, the CGIT rejected the stand of the Management that they had complied with the condition precedent under Section 25-F of the I.D.Act, atleast in regard to the retrenchment compensation. With reference to the argument that the petitioner was engaged by the Canteen Management Committee and not by the Department of Telephones, the CGIT found that it was only a local arrangement for temporary work in the canteen, whereas the payment of the workman was paid out of the sale proceeds of the canteen. The CGIT further held that as per the instructions of the Department of Telecommunications, the Workman was discharged from service. Even going by the oral evidence, (wherein the second petitioner was examined as M.W.1), it was found that the employees who were utilising Anna Road Exchange complex departmental canteen did not decrease and the work done by the workman was still available after his retrenchment. The workman was earlier attending to work like grinding, vegetable cutting and coffee, tea making which were still continued in the canteen. 6. However, in the present case, the CGIT held that though it was a case of violation of Section 25-F of the I.D.Act, the workman will not be restored to service but in lieu of reinstatement, he will be paid a sum of Rs.1,50,000/-, failing which the said amount shall be paid with 12% interest per annum from the date of Award https://hcservices.ecourts.gov.in/hcservices/ till the date of payment. It is this portion of the Award which is challenged by the petitioners in W.P.No.22452/2001. 7. Even before the Management could file the writ petition, the workman had filed W.P.No.21807/2001 challenging that portion of the Award denying the relief of reinstatement with backwages. When the petition filed by the Management came up for hearing, the same was directed to be posted along with the writ petition filed by the workman. In the writ petition filed by the Management, an interim stay was granted initially for three weeks. Subsequently, when the matter came up on 02.08.2002, this Court directed the defects in the miscellaneous petition to be complied with, failing the petition was to be dismissed without further reference to this Court. 8. The workman in his writ petition filed a miscellaneous petition and sought for a direction to pay the amount of Rs.1,50,000/- as awarded by the CGIT. In that application, this Court initially ordered notice. Subsequently, when it came up on 03.01.2003, this Court directed to post the main writ petitions for final disposal. 9. It is admitted by Mr.Udhayakumar, learned Additional Central Government Standing Counsel that the amounts are yet to be paid. It is the case where both the Management as well as the Workman were aggrieved by the Award. A perusal of the impugned Award shows that the Labour Court had taken into account the relevant materials in arriving at the conclusion that the termination of the workman was in violation of Section 25-F of the I.D.Act. Even in such case whether any relief of reinstatement has to be granted came to be considered by the Supreme Court vide its judgment in Rajasthan Lalit Kala Academy v. Radhey Shyam reported in (2008) 13 SCC 248. In that case, the Supreme Court held that infraction of Section 25-F of the I.D.Act may make a termination invalid and in normal circumstances, the relief of reinstatement and backwages must be ordered. But while doing so, it must be taken into account several factors like the manner and method of selection, nature of appointment (ad hoc, daily wages, temporary, permanent etc.) period of service, delay in raising industrial dispute etc., must also be taken into account. 10. With reference to the power of this Court in interfering with an Award granting compensation in lieu of reinstatement, it is necessary to refer to the decision of the Supreme Court in Madhya Pradesh Admn. v. Tribhuban,(2007) 9 SCC 748. In paragraph 12, it was observed as follows:- "12. In this case, the Industrial Court exercised its discretionary jurisdiction under Section 11-A of the Industrial Disputes Act. It merely directed the amount of compensation to which the respondent was entitled had the provisions of Section 25-F been complied with should be sufficient to meet the ends of justice. We are not suggesting that the High Court could not https://hcservices.ecourts.gov.in/hcservices/ interfere with the said order, but the discretionary jurisdiction exercised by the Industrial Court, in our opinion, should have been taken into consideration for determination of the question as to what relief should be granted in the peculiar facts and circumstances of this case. Each case is required to be dealt with in the fact situation obtaining therein." 11. Therefore, if it is seen in the light of above facts, this is not a fit case where this Court can interfere either with the relief of compensation or on the basis of workman's assertion to direct his reinstatement. 12. In view of the above, no case is made out in both the writ petitions. Accordingly, both the writ petitions will stand dismissed. No costs. The Management is directed to implement the Award and pay the Workman the amount of Rs.1,50,000/- together with interest as ordered by the Tribunal within 12 weeks from the date of receipt of a copy of this Order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Presiding Officer, Central Government Industrial Tribunal- cum- Labour Court, Shastri Bhavan, Haddows Road, Chennai – 600 006. 2.The Chief General Manager, Chennai Telephones, 78,Purasawalkam High Road, Chennai – 600 010. 3.The Divisional Engineer, Anna Road Telephone Exchange, Chennai – 600 002. 2 ccs To Mr.S.Udayakumar, Sr.CGSC, SR.Nos.22421 & 22422 W.P.Nos.22452 and 21807 of 2001 KU(CO) sra 20/04/2010 https://hcservices.ecourts.gov.in/hcservices/