IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.6.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.11080 to 11083, 11024, 11539, 11860, 12169, 11648 and 13068 of 2006 The Management of Best and Crompton Engineering Limited rep. by the Group General Manager (HR & Admn.), 39, Industrial Estate (North) Ambattur, Chennai – 600 096. .. Petitioner in WP.Nos.11080 to 11083, 11024, 11539, 11860, 11648 and 13068 of 2006 The Management of Best and Crompton Engineering Limited rep. by the Deputy General Manager, (Legal) 39, Industrial Estate (North) Ambattur, Chennai – 600 096. .. Petitioner in WP.12169/06. Vs. A.M.Sekar .. 1st Respondent in WP.No.11080/06 P.G. Ranganathan .. 1st Respondent in WP.No.11081/06 N.Sukumaran .. 1st Respondent in WP.No.11082/06 B.Subbuvenkatraman .. 1st Respondent in WP.No.11083/06 R.Srinivasan .. 1st Respondent in WP.No.11204/06 K.V. Suresh Kumar .. 1st Respondent in WP.No.11539/06 C. Sumathi .. 1st Respondent in WP.No.11860/06 P.Lokesh .. 1st Respondent in WP.No.12169/06 M. Sankaran .. 1st Respondent in WP.No.11648/06 S.N.Shyam Sunder .. 1st Respondent in WP.No.13068/06 The Presiding Officer I Additional Labour Court Chennai. .. 2nd Respondent in all WPs PRAYER: Petitions under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records relating to the impugned awards dated 7.12.2005 of the I Additional Labour Court, Chennai, the second respondent in I.D.Nos.739, 738, 737, 734, 632, 630, 633, 736, 735 and 631 of 2002 and quash the same (in all the petitioners) https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.K.V.Ananthakrishnan For Respondents: Mr.V.Prakash, Sr.Counsel M/s.Ramapriya Gopalakrishnan for 1st respondents in all WPs. ORDER In all these writ petitions, the petitioner/respondent before the Labour Court (hereinafter referred to as "the Management") has challenged the awards of the Labour Court in the industrial disputes raised by the first respondents/petitioners before the Labour Court (hereinafter referred to as "the employee(s)") under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, "the Act") directing the Management to reinstate the employees in service with full back-wages, continuity of service and all other attendant benefits. 2. By virtue of the judgment of the Hon'ble First Bench of this Court in W.A.Nos.1438 of 2008, etc. batch, dated 5.11.2008, it is informed that the employee in W.P.No.11860 of 2006 (G.Sumathi – I.D.No.633 of 2002), the employee in W.P.No.11539 of 2006 (K.U.Suresh Kumar – I.D.No.630 of 2002) and the employee in W.P.No.11204 of 2006 (R.Srinivasan – I.D.No.632 of 2002) were reinstated on 9.4.2009. 3. It is also brought to the notice of this Court that the employee in W.P.No.11648 of 2006 (M.Sankaran – I.D.No.735 of 2002), the employee in W.P.No.11081 of 2006 (P.G.Ranganathan – I.D.No.738 of 2002), the employee in W.P.No.11082 of 2006 (N.Sukumaran – I.D.No.737 of 2002) and the employee in W.P.No.11080 of 2006 (A.M.Sekar – I.D.No.739 of 2002) have retired on attaining superannuation in June, 2009, April, 2009, May, 2009 and October, 2008 respectively. 4. It is informed by the learned counsel for the Management that the employee in W.P.No.12169 of 2006 (P.Lokesh (Bangalore) – I.D.No.736 of 2002) has been offered employment, but he is not attending. It is also informed that while the employee in W.P.No.13068 of 2006 (S.N.Shyam Sundar – I.D.No.631 of 2002) is being paid salary under Section 17B of the Act, the employee in W.P.No.11083 of 2006 (B.Subbu Venkatraman – I.D.No.734 of 2002) is neither offered employment nor paid wages under Section 17-B of the Act. 5.1. The company, which is engaged in the manufacture of industrial motors and pumps, was incorporated in the year 1911 as Best and Co., and amalgamated with Crompton Engineering in the year 1971. The company is having units both at Chennai and Bangalore with total strength of all staff around 200 and its administrative office is at No.39, Industrial Estate, North Ambattur, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 5.2. It is stated that the company has incurred huge financial loss due to recession and decided to retrench 48 employees, viz., 13 employees from the administrative office and 35 employees from various units, on payment of compensation. It is stated that out of 48 employees, 35 employees have accepted the offer of cessation of service, while 13 employees raised industrial disputes before the Conciliation Officer on the termination notice dated 14.2.2002 issued by the Management and the conciliation ended in failure and the 13 employees raised industrial disputes. It is stated that out of the 13 employees, 3 employees have settled the dispute and the remaining 10 employees have proceeded with the petitions filed before the Labour Court. W.P.No.11080 of 2006: 6.1. The employee in W.P.No.11080 of 2006, who has filed I.D.No.739 of 2002, has joined the services of the Management on 4.5.1981 as a Clerical apprentice and subsequently, he was promoted to Managerial Grade II Level on 1.4.2000. However, according to him, he is a workman as per Section 2(s) of the Act and his responsibilities were preparation of monthly operational results, maintenance of debtors, creditors and stores ledgers, verification of purchase order, supplier bill and payment vouchers, product costing and preparation of schedules for statutory tax audit. 6.2. The employee was placed in the Foundry Division of Ambattur Factory and in respect of all procurements made he was maintaining accounts. It is stated that even though the Management has introduced voluntary retirement scheme in various years, including 1998 and 1999, no such application was given to him, since the Management required his services. However, on 14.2.2002, the Management has issued a statutory order stating that the employee need not report for work for a period of three months and he will be paid salary and other benefits and that he can use the said period to find an alternate job and whether or not he finds an alternate job, he would cease to be an employee from 15.5.2002. 6.3. The impugned order of termination, according to the employee, amounts to retrenchment and no retrenchment compensation has been paid and the procedure contemplated under Section 25-N of the Act has not been followed and his juniors are still working in the company. It is stated that the conciliation efforts have failed. Even though in the report of the Conciliation Officer dated 7.6.2002, it is stated that the employee did not press for reinstatement and was primarily interested only in the quantum of compensation, the same was denied and the said conciliation report was challenged. 6.4. It is stated that the Management has given effect to the order of termination without applying for permission under Section 33 of the Act and according to the employee, his last drawn wage was ` https://hcservices.ecourts.gov.in/hcservices/ 9,950/-. It is also denied that the Management is incurring heavy loss for the past few years. Therefore, the employee has raised industrial dispute seeking reinstatement in service with full back- wages, continuity of service and all other attendant benefits. 7.1. It has been the case of the Management, which is the respondent in I.D.No.739 of 2002, that the employee has joined on 4.5.1981 and was designated as a Clerk and he has accepted promotion from the non management cadre to the management cadre. It is stated that the employee was promoted as Officer in the year 1989 and Senior Officer in the year 1993 and Deputy Manager in the year 1995 and promoted as Manager in the year 2000. 7.2. The Management has stated in the counter affidavit before the Labour Court that the employee was responsible for the accounts and finance of the foundry, management of information systems of the Madras Foundry, preparation and finalization of the annual budget, apart from approval of payments to sundry creditors, and therefore, according to the Management, the employee was not a "workman" as per Section 2(s) of the Act and hence, the applicability of the provisions of Chapter VA and VB does not arise. 7.3. It has been the case of the Management before the Labour Court that the employee was aware of the position of the Management which has issued the letter on 14.2.2002 and the employee was not singled out. Even though the Management could have dispensed with the services of the employee by giving notice as per the terms of the appointment, the compensation package has been offered. 7.4. It was also stated that Section 2(oo) of the Act is not applicable and therefore, there is no question of giving any opportunity to the employee. It is also stated that Section 25-N of the Act is not applicable. The employee not being a workman, according to the Management, the principle of "first come last go" is not applicable. It was also the case of the Management before the Labour Court that the employee sought higher compensation than what was offered by the Management. According to the Management, Section 33 or Section 25F are not applicable to the case on hand. W.P.No.11081 of 2006: 8.1. The employee in W.P.No.11081 of 2006, who has filed I.D.No.738 of 2002, has joined the services of the Management on 19.2.1973 and at the time of termination from service, he was designated as Senior Accountant. However, according to him, he is a workman as per Section 2(s) of the Act and his responsibilities were maintaining electrical machines factory accounts, administration department accounts and pay roll section, apart from the responsibilities of attending to reconciliation of general ledger accounts, creditors ledgers, debtors ledgers and stores ledgers, preparation of journal entries, checking cash and bank payment https://hcservices.ecourts.gov.in/hcservices/ vouchers and bill accounting payment vouchers, preparation of MIS reports and scheduling for auditing, and he was not having power to appoint or suspend or take disciplinary action against any employee or to sanction leave or to enter into contract on behalf of the company and therefore, he was neither having managerial duties nor supervisory duties. According to the employee, the Management is an industry within the meaning of Section 2(j) of the Act. 8.2. It is stated that, on 14.2.2002, the Management has issued a statutory order stating that the employee need not report for work for a period of three months and he will be paid salary and other benefits and that he can use the said period to find an alternate job and whether or not he finds an alternate job, he would cease to be an employee from 15.5.2002. 8.3. The impugned order of termination, according to the employee, amounts to retrenchment and no retrenchment compensation has been paid and the procedure contemplated under Section 25-N of the Act has not been followed and his juniors are still working in the company. It is stated that the conciliation efforts have failed. Even though in the report of the Conciliation Officer dated 7.6.2002, it is stated that the employee did not press for reinstatement and was primarily interested only in the quantum of compensation, the same was denied and the said conciliation report was challenged. 8.4. It is stated that the Management has given effect to the order of termination without applying for permission under Section 33 of the Act and according to the employee, his last drawn wage was ` 7,950/-. It is also denied that the Management is incurring heavy loss for the past few years. Therefore, the employee has raised industrial dispute seeking reinstatement in service with full back- wages, continuity of service and all other attendant benefits. 9.1. It has been the case of the Management, which is the respondent in I.D.No.738 of 2002, that the employee concerned has joined on 19.2.1973 and was promoted as Officer in Grade V in the year 1975 and was further promoted as Senior Officer in Grade IV in the year 1991. 9.2. The Management has stated in the counter affidavit before the Labour Court that the employee was responsible for preparation and finalization of MIS reports, authorization of payment vouchers, authorization of journal entries, preparation and finalization of the Accounts for EMF, and therefore, according to the Management, the employee was not a "workman" as per Section 2(s) of the Act and hence, the applicability of the provisions of Chapter VA and VB does not arise. 9.3. It has been the case of the Management before the Labour Court that the employee was aware of the position of the Management https://hcservices.ecourts.gov.in/hcservices/ which has issued the letter on 14.2.2002 and the employee was not singled out. Even though the Management could have dispensed with the services of the employee by giving notice as per the terms of the appointment, the compensation package has been offered. 9.4. It was also stated that Section 2(oo) of the Act is not applicable and therefore, there is no question of giving any opportunity to the employee. It is also stated that Section 25-N of the Act is not applicable. The employee not being a workman, according to the Management, the principle of "first come last go" is not applicable. It was also the case of the Management before the Labour Court that the employee sought higher compensation than what was offered by the Management. According to the Management, Section 33 or Section 25F are not applicable to the case on hand. W.P.No.11082 of 2006: 10.1. The employee in W.P.No.11082 of 2006, who has filed I.D.No.737 of 2002, has joined the services of the Management on 1.8.1974 as a Clerical apprentice and he was promoted as Managerial M5 level (Grade III) on 1.4.2000. However, according to the employee, he is a workman as per Section 2(s) of the Act and his responsibilities were preparation of monthly operational results, maintenance of general ledger, debtors, creditors and stores ledger, verification of purchase order, supplier bill and payment vouchers, product costing, preparation of cash flow statements, and preparation of schedules for statutory tax audit with respect to automotive product division. He was placed in the Corporate Office and in respect of all procurements made he was maintaining accounts. It is stated that even though the Management has introduced voluntary retirement scheme in various years, including 1998 and 1999, no such application was given to him, since the Management required his services. 10.2. It is stated that, on 14.2.2002, the Management has issued a statutory order stating that the employee need not report for work for a period of three months and he will be paid salary and other benefits and that he can use the said period to find an alternate job and whether or not he finds an alternate job, he would cease to be an employee from 15.5.2002. 10.3. The impugned order of termination, according to the employee in W.P.No.11082 of 2006, amounts to retrenchment and no retrenchment compensation has been paid and the procedure contemplated under Section 25-N of the Act has not been followed and his juniors are still working in the company. It is stated that the conciliation efforts have failed. Even though in the report of the Conciliation Officer dated 7.6.2002, it is stated that the employee did not press for reinstatement and was primarily interested only in the quantum of compensation, the same was denied and the said conciliation report was challenged. https://hcservices.ecourts.gov.in/hcservices/ 10.4. It is stated that the Management has given effect to the order of termination without applying for permission under Section 33 of the Act and according to the employee, his last drawn wage was ` 9,750/-. It is also denied that the Management is incurring heavy loss for the past few years. Therefore, the employee has raised industrial dispute seeking reinstatement in service with full back- wages, continuity of service and all other attendant benefits. 11.1. It has been the case of the Management, which is the respondent in I.D.No.737 of 2002, that the employee concerned has joined on 1.8.1974 and was promoted as Officer in the year 1989, as Senior Officer in Grade IV in the year 1996 and as Deputy Manager in the year 2000. 11.2. The Management has stated in the counter affidavit before the Labour Court that the employee was responsible for the accounts and finance of the automotive ancillary division and for preparation of cash flow for the division and therefore, according to the Management, the employee was not a "workman" as per Section 2(s) of the Act and hence, the applicability of the provisions of Chapter VA and VB does not arise. It is stated that the employee has only power to recommend leave and he does not sanction any leave and he has no power to sign any contract on behalf of the company. 11.3. It has been the case of the Management before the Labour Court that the employee was aware of the position of the Management which has issued the letter on 14.2.2002 and the employee was not singled out. Even though the Management could have dispensed with the services of the employee by giving notice as per the terms of the appointment, the compensation package has been offered. 11.4. It was also stated that Section 2(oo) of the Act is not applicable and therefore, there is no question of giving any opportunity to the employee. It is also stated that Section 25-N of the Act is not applicable. The employee not being a workman, according to the Management, the principle of "first come last go" is not applicable. It was also the case of the Management before the Labour Court that the employee sought higher compensation than what was offered by the management. According to the Management, Section 33 or Section 25F are not applicable to the case on hand. W.P.No.11083 of 2006: 12.1. The employee in W.P.No.11083 of 2006, who has filed I.D.No.734 of 2002, has joined the services of the Management on 1.6.1989 and he was designated as Senior Officer. However, according to him, he is a workman as per Section 2(s) of the Act and his responsibilities were purchase and sales accounting, maintenance of ledgers and MIS reports, preparation of journals, and he was not having power to appoint or suspend or take disciplinary action https://hcservices.ecourts.gov.in/hcservices/ against any employee or to sanction leave or to enter into contract on behalf of the company and therefore, he was neither having managerial duties nor supervisory duties. According to the employee, the Management is an industry within the meaning of Section 2(j) of the Act. 12.2. It is stated that, on 14.2.2002, the Management has issued a statutory order stating that the employee need not report for work for a period of three months and he will be paid salary and other benefits and that he can use the said period to find an alternate job and whether or not he finds an alternate job, he would cease to be an employee from 15.5.2002. 12.3. The impugned order of termination, according to the employee, amounts to retrenchment and no retrenchment compensation has been paid and the procedure contemplated under Section 25-N of the Act has not been followed and it is stated that his juniors are still working in the company. It is stated that the conciliation efforts have failed. Even though in the report of the Conciliation Officer dated 7.6.2002, it is stated that the employee did not press for reinstatement and was primarily interested only in the quantum of compensation, the same was denied and the said conciliation report was challenged. 12.4. It is stated that the Management has given effect to the order of termination without applying for permission under Section 33 of the Act and according to the employee, his last drawn wage was ` 6,650/-. It is also denied that the Management is incurring heavy loss for the past few years. Therefore, the employee has raised industrial dispute seeking reinstatement in service with full back- wages, continuity of service and all other attendant benefits. 13.1. It has been the case of the Management, which is the respondent in I.D.No.734 of 2002, that the employee concerned has joined on 1.6.1989 and was promoted as Officer in Grade V in the year 1990 and was further promoted as Senior Officer in Grade IV in the year 2000. 13.2. The Management has stated in the counter affidavit before the Labour Court that the employee was responsible for preparation and filing of returns for the States Orissa, West Bengal, Bihar and Madhya Pradesh, preparation, compilation of turnover consolidation statements in respect of the States which he was coordinating, and therefore, according to the Management, the employee was not a workman as per Section 2(s) of the Act and hence, the applicability of the provisions of Chapter VA and VB does not arise. 13.3. It has been the case of the Management before the Labour Court that the employee was aware of the position of the Management which has issued the letter on 14.2.2002 and the employee was not https://hcservices.ecourts.gov.in/hcservices/ singled out. Even though the Management could have dispensed with the services of the employee by giving notice as per the terms of the appointment, the compensation package has been offered. 13.4. It was also stated that Section 2(oo) of the Act is not applicable and therefore, there is no question of giving any opportunity to the employee. It is also stated that Section 25-N of the Act is not applicable. The employee not being a workman, according to the Management, the principle of "first come last go" is not applicable. It was also the case of the Management before the Labour Court that the employee sought higher compensation than what was offered by the Management. According to the Management, Section 33 or Section 25F are not applicable to the case on hand. W.P.No.11204 of 2006: 14.1. The employee in W.P.No.11204 of 2006, who has filed I.D.No.632 of 2002, has joined the services of the Management on 14.6.1989 and at the time of termination from service, he was designated as Senior Officer. However, according to him, he is a workman as per Section 2(s) of the Act and his responsibilities were furnishing monthly operational result, complete control of debtors and creditors, verification of purchase order, supplier's bills and payment orders, etc., and he was not having power to appoint or suspend or take disciplinary action against any employee or to sanction leave or to enter into contract on behalf of the company and therefore, he was neither having managerial duties nor supervisory duties. According to the employee, the Management is an industry within the meaning of Section 2(j) of the Act. 14.2. It is stated that, on 14.2.2002, the Management has issued a statutory order stating that the employee need not report for work for a period of three months and he will be paid salary and other benefits and that he can use the said period to find an alternate job and whether or not he finds an alternate job, he would cease to be an employee from 15.5.2002. 14.3. The impugned order of termination, according to the employee, amounts to retrenchment and no retrenchment compensation has been paid and the procedure contemplated under Section 25-N of the Act has not been followed and it is stated that his juniors are still working in the company. It is stated that the conciliation efforts have failed. Even though in the report of the Conciliation Officer dated 7.6.2002, it is stated that the employee did not press for reinstatement and was primarily interested only in the quantum of compensation, the same was denied and the said conciliation report was challenged. 14.4. It is stated that the Management has given effect to the order of termination without applying for permission under Section 33 of the Act and according to the employee, his last drawn wage was ` https://hcservices.ecourts.gov.in/hcservices/ 6,550/-. It is also denied that the Management is incurring heavy loss for the past few years. Therefore, the employee has raised industrial dispute seeking reinstatement in service with full back- wages, continuity of service and all other attendant benefits. 15.1. It has been the case of the Management, which is the respondent in I.D.No.632 of 2002, that the employee concerned has joined on 14.6.1989 and was promoted to Officer cadre and was working as a Senior Officer. 15.2. The Management has stated in the counter affidavit before the Labour Court that the employee