IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2009 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA and THE HONOURABLE MR. JUSTICE M. DURAISWAMY W.A.No.3991 of 2004 & W.A.M.P.No.7494 of 2004 The Chairman, Karur Vysya Bank Limited, Erode Road, Karur 639 002. .. Appellant/Petitioner vs 1.The Presiding Officer, Industrial Tribunal, Madras. 2.The Workman, Rep. By the President, Tamil Nadu Bank Deposits Collectors Union, 55, Armenian Street, Madras – 600 001. .. Respondents/Respondents Writ Appeal filed under Clause 15 of Letters Patent against order of the learned single Judge made in W.P.No.1490 of 1997 dated 01.10.2004. Presented under Article 226 of the constitution of India to issue a writ of Certiorari calling for the records of the 1st respondent in I.D.No.27 of 1985 and quash its award dated 2.8.1986. For Appellant : Mr.V.Karthik for M/s.T.S.Gopalan For Respondents : Mr.A.R.Suresh – for R2 **** J U D G E M E N T (Judgement of the Court was delivered by M. DURAISWAMY,J) The above Writ Appeal arises against the order of the learned single Judge made in W.P.No. 1490 of 1997 https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner in the writ petition is the appellant in the above writ appeal and the respondents are the respondents in the writ petition. 3. The writ petitioner filed W.P.No.1490 of 1997 for the issuance of a writ of Certiorari calling for the records of the first respondent in I.D.No.27 of 1985 and quash the same. 4. The brief facts which lead to the filing of the writ petition is as follows: (i) The second respondent union raised an industrial dispute contending that one K.Vaidyanathan, who joined on 22.11.1974 as Honey Bee Deposit Organizer, returned from absence about eight months in July 1982 and he was not permitted to resume duty. The petitioner contended that the said refusal would amount to termination of service and that the said termination was bad and therefore he should be allowed to resume duty as Honey Bee Deposit Organizer. (ii) The dispute was taken up in conciliation which ended in failure. By order dated 26.4.1985, the issue was referred to the first respondent for adjudication in I.D.No.27 of 1985. On 23.3.1989, the first respondent passed an award holding that K.Vaidyanathan was not in the employment of the petitioner and on that ground rejected the claim of the second respondent. (iii) Against the award of the first respondent, W.P.No.8139 of 1992 was filed. On 14.12.1993, this court disposed of the said writ petition holding that it could not be said that the said Honey Bee Deposit Organizer was not in the employment of the bank and the award of the first respondent was set aside and the matter was remitted to the first respondent to go into that question afresh. The writ appeal filed against the order of the learned single judge was also dismissed on 7.9.1994 (iv) On remand, the first respondent passed an award dated 2.8.1996 holding that K.Vaidyanathan fell ill and did not report for work between September 1981 and July 1982 and that for his absence, he had sent a written representation along with a medical certificate; that after recovering from the illness, he wanted to join as a organizer of Honey Bee Deposit scheme; that the petitioner refused to grant such permission, that as he was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, and further he had worked from 22.11.1974 to September 1981, his services could not be terminated in such a manner; that the refusal on the part of the petitioner to grant permission to join duty amounts to termination of service and that the refusal was not in accordance with law. On this reasoning, the first respondent directed the petitioner to reinstate K.Vaidhyanathan with continuity of service and back wages at the rate of Rs.750/- per month from the date of refusal to permit him to resume his duties. (v) Aggrieved over the award passed by the first respondent, https://hcservices.ecourts.gov.in/hcservices/ the petitioner/management, challenged the said award in W.P.No.1490 of 1997. (vi) During the pendency of the writ petition, the petitioner also deposited Rs.50,000/- to the credit of the first respondent and pursuant to the order of this court, the first respondent has permitted the employee to withdraw Rs.50,000/-. 5. The learned single judge after taking into consideration the materials available on record and the submissions made by both the learned counsel, held that non employment of the second respondent was illegal and unjustified. With regard to the back wages, the learned single Judge modified the award to the effect that the second respondent would be entitled only to Rs.350/- per month and that he could withdraw Rs.50,000/- deposited with the first respondent. 6. Aggrieved over the order of the learned single Judge, the petitioner has filed the above writ appeal. 7. Heard Mr.V.Karthik, learned counsel appearing for the appellant and Mr.A.R.Suresh learned counsel appearing for the second respondent. 8. Learned counsel appearing for the appellant submitted that the non employment of K.Vaidyanathan was valid and justified for the reason that due to continued absence for over a period of seven months, the Honey Bee Deposit scheme in the Alandur Brach was discontinued from October 1981 itself; that the second respondent could not be treated as a workman for the purpose of section 2(s) of the Industrial Disputes Act for maintaining the industrial dispute; that he was not an employee of the appellant and therefore, he was not governed by any rules and regulations which could be invoked by him on his non engagement from July 1982; that the appellant is not at all responsible for the long drawn litigation and therefore, the appellant is not liable to pay Rs.350/- per month to the second respondent during the said period. 9. Countering the submissions made by the learned counsel appearing for the appellant, learned counsel appearing for the second respondent submitted that the order of the learned single Judge is just and proper and does not warrant any interference. 10. On a careful consideration of the materials available on record and the submissions made by both the learned counsel, it could be seen that the Industrial Tribunal in its award dated 2.8.1996 refused to accept the contentions of the appellant/Management and held that even though the employee, K.Vaidhyanathan failed to act as Honey Bee Deposit Organizer from September 1981 to July 1982, since he had explained in his letter dated 27.7.1982 that he was ill during that period, the appellant/Management ought to have held an enquiry and passed an order before holding that he had abandoned the service, therefore, directed the appellant/ management to reinstate K.Vaidyanathan with https://hcservices.ecourts.gov.in/hcservices/ continuity of service and back wages. The Industrial Tribunal also awarded a sum of Rs.750/- per month as wage. 11. It is a settled law that awarding of back wages is not a matter of course, as the Industrial Tribunal is duty bound to consider whether in the circumstances of the case, the workman is entitled to back wages or otherwise. It is also settled principle of law that no decision must be taken which will affect the right of any person without being put on notice of the case and giving him an opportunity of putting forward his case. The person concerned must be informed of the case, the evidence in support thereof supplied to him and must be given a fair opportunity to him. If the same is not followed, it will amount to violation of principal of natural justice. The Industrial Tribunal and the learned single Judge came to the conclusion that non employment of K.Vaidyanathan on the ground that he has abandoned the service is illegal and unjustified. So far as the back wages is concerned, the tribunal fixed the the back wages at Rs.750/- per month for the Honey Bee Deposit Organizers even though they are not regular employees. 12. The learned single Judge reduced the back wages from Rs.750/- per month to Rs.350/- per month, since the employee had not raised any deposits during the period of his non employment. The learned single Judge modified the award passed by the first respondent to the effect that the workman K.Vaidyanathan shall be reinstated with back wages at the rate of Rs.350/- per month from the date of his non employment till his reinstatement in the service of the appellant/ management and that he shall be entitled to withdraw a sum of Rs.50,000/- already deposited to the credit of I.D.No.27/1985. 13. Since the learned single Judge had already reduced the back wages from Rs.750/- per month awarded by the first respondent to Rs.350/- per month, we are of the considered view that the further reduction in the back wages is not justifiable. The back wages at Rs.350/- per month is just and proper. 14. In these circumstances, we find no ground to interfere with the order of the learned single Judge. Therefore, the writ appeal is liable to be dismissed. Accordingly, the writ appeal is dismissed. Consequently, connected miscellaneous petition is closed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rj https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Industrial Tribunal, Madras. +1cc to M/s.T.S.Gopaan, Advocate Sr 60321 KSK(CO) km/19.11. W.A.No.3991 of 2004 https://hcservices.ecourts.gov.in/hcservices/