IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09..4..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 10793 and 13613 of 1999 W.P. No. 10793 of 1999:- P.N. Perumal .. Petitioner Vs. 1. The Presiding Officer Labour Court Salem 2. The Management of Paragon Polymar Products (Pvt.) Ltd. Kanagakri Kakapalayam Post Salem District .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records pertaining to I.D. No. 73 of 1996 and quash the award dated 19.12.1997 passed therein and further direct the second respondent to reinstate the petitioner in service with continuity of service, backwages and all attendant benefits. W.P.No. 13613 of 1999:- The Management of Paragon Polymar Products (Pvt.) Ltd. Kanagakri Kakapalayam Post Salem District .. Petitioner Vs. 1. The Presiding Officer Labour Court Salem 2. P.N. Perumal .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records pertaining to Award dated 19.12.1997 made in I.D. No. 73 of 1996 passed by the first respondent Labour Court and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For workman : Mr. Nazirulla for Mr. K.V. Shanmuganathan For Management : Mr. Ananthakrishnan for M/s T.S. Gopalan & Co. COMMON ORDER W.P. No. 10793 of 1999 is filed by the workman challenging the Award dated 19.12.1997 passed by the Labour Court, Salem in I.D. No. 73 of 1996 in so far as it denied the relief of reinstatement and confined the relief only for payment of compensation. W.P. No. 13613 of 1999 is filed by the Management against the very same Award in so far as it granted compensation of Rs. 50,000/- in lieu of relief to the workman. 2. When the second writ petition was admitted, the said writ petition was directed to be posted along with the first writ petition. But, however, by way of interim order dated 11.8.1999, the amount of Rs.50,000/- was directed to be deposited. Subsequently, on 30.12.2002, the interim order was made absolute. But the same was directed to be deposited in a Nationalised Bank initially for a period of three years under re-investment scheme. 3. In view of the interconnectivity between the two writ petitions, they are heard together and a common order is passed. 4. Heard the arguments of Mr. Nazirulla appearing for Mr. K.V.Shanmuganathan, learned counsel appearing for the workman and Mr. Ananthakriahnan, representing M/s T.S.Gopalan & Co., learned counsel appearing for the Management and have perused the records. 5. Before the Labour Court, it was contended by the workman that he was retrenched from service and since the condition precedent under Section 25 F of the Industrial Disputes Act [for short, 'I.D. Act'] was not followed, he is liable to get the normal relief of reinstatement with backwages. Before the Labour Court, the workman examined himself as W.W.1 and on the side of the Management, one Manoharan was examined as M.W.1. While the workman had filed thirteen documents marked as Exs. W.1 to W.13, on the side of the Management, 19 documents were filed and they were marked as Exs. M.1 to M.19. 6. The stand of the Management was that there was an illegal strike and consequent upon the same, the Management made a police complaint regarding the illegal activities of some of the workmen and in that complaint, the name of present petitioner / workman's name was not mentioned. But, however, when he was asked to come back to work, he did not return for the same. But, on the contrary, he came to the work place on 03.11.1995 and took the wages for the month of October 1995 after giving full and final settlement. Therefore, he was not interested in his employment. https://hcservices.ecourts.gov.in/hcservices/ It was further submitted that he was only a fitter trainee and employed on casual basis and there was no proof that he had worked for 240 days in each of the year in which he claimed to have worked. But, it is the stand of the workman that though he has been working in the establishment from 30.4.1994, but on 26.10.1995, without any written order, his services were stopped on an oral direction. At the time of dispensation of his service, he was drawing a sum of Rs. 1543/- pm. 7. Before the Labour Court, the Attendance Registers have been filed and the Labour Court in paragraph 6 of the impugned Award, after referring to Exs. W.7 to W.13 and Exs. M.7 and M.12, held that that the workman had worked for 246-1/2 days in a period of 12 calendar months and, therefore, he is eligible for protection under Section 25 F of I.D. Act. But, however, on the question of relief, the Labour Court held that even though there was an infraction of the condition precedent under Section 25 F of the I.D. Act and the termination was illegal, but this is not a case where the workman to be reinstated since there was a strained relationship between the Management and the workman and once he goes back to work, the Management may indulge in some other action and some how, dispense with the services of the workman and, therefore, it would be advisable to grant a lump sum compensation in lieu of reinstatement. The Labour Court held that the workman was eligible for 32 months' wages which works out to a sum of Rs. 49,400/- and by rounding it off, directed Rs.50,000/- to be paid to the workman. 8. The learned counsel appearing for the Management submitted that even if there was infraction of Section 25 F of the I.D. Act, all that the Labour Court should have done was only payment of retrenchment compensation together with notice pay and in as much as he had signed in Ex. M.18 on 03.11.1995 after recording full and final settlement, it must be presumed that he was not interested in employment. 9. A perusal of Ex. M. 18 shows that the workman had received wages for 18 days in the month of October 1995. In column No. 14 he has signed on the Revenue Stamp and in column Nos. 12 and 13, it is written "full and final settlement on 03.11.1995". But, however, those columns are meant for entering details regarding advance loan deduction, other deductions and total deductions to be made from the salary of a worker. It is not clear as to why the Management had written therein as it is full and final settlement. In any event, drawing salary for the month for which he had worked and signing the same will not make any acquiescence on the part of the workman unless it is shown that some extra amount had been paid with reference to the other claims of the workman and the workman had consciously signed by giving a go-by to his other rights. The Register of Wages is not the place where such an endorsement can be made. In any event, the Labour Court refused to agree the evidenciary value of Ex. M.18 in https://hcservices.ecourts.gov.in/hcservices/ so far as the said endorsement is concerned. 10. In the present case, the finding of the Labour Court was that the services of the workman were dispensed with in contravention of Section 25 F of the I.D. Act and in so far as that finding of fact is on record, the question of any acquiescence or estoppel of waiver will not arise whereas such a waiver or estoppel or acquiescence is totally prohibited in terms of Section 25 J(2) of the I.D. Act. 11. However, Mr. Nazirulla, learned counsel appearing for the workman, strenuously contended that having found the mandatory condition precedent of Section 25 F of the I.D. Act has been violated, the normal rule is relief of reinstatement and that has not been done in this case and, therefore, the workman had also filed writ petition in the earlier point of time. 12. It is not a thumb rule in every case where there is violation of Section 25 F of the I.D. Act, there must be an automatic reinstatement with backwages. The Supreme Court has held in more than one case that the Labour Court has got power to mould the relief even in case where there is a violation of Section 25 F of the I.D. Act. In the present case, the workman had put in only two years of service and the Labour Court recorded a finding that there is a strained relationship between the Management and the workman and if he is once more put back in service, there will be further victimisation. The Labour Court was also liberal in granting compensation in as much as it had awarded compensation of Rs. 50,000/-, which, even as per the finding of the Labour Court, represents 32 months' wages. 13. Under the above circumstances, neither the finding of the Labour Court nor the relief ordered by the impugned Award call for any interference for exercising power under Article 226 of the Constitution. In view of the same, both the writ petitions fail and they will stand dismissed. Since the writ petitions are dismissed, it is open to the workman P.N. Perumal to withdraw the amount lying in deposit to the credit of I.D. No. 73 of 1996. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer Labour Court Salem + 1 CC To M/s.T.S.Gopalan & Co. Advocate SR NO.19817 W.P. Nos. 10793 and 13613 of 1999 ssv[co] gp/13.5. https://hcservices.ecourts.gov.in/hcservices/