IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.12198 and 16005 of 2001 THE TAMILNADU STATE TRANSPORT CORPORATION COIMBATORE DIVISION I LTD REPRESENTED BY ITS MANAGING DIRECTOR. COIMBATORE PETITIONER IN W.P.NO.12198/01 K.SUBRAMANIAN PETITIONER IN W.P.16005/01 VS 1 THE PRESIDING OFFICER LABOUR COURT COIMBATORE 1ST RESPONDENT IN BOTH WPS 2 K. SUBRAMANIAN 2ND RESPONDENT IN W.P.NO.12198/01 3. THE MANAGING DIRECTOR THE TAMILNADU STATE TRANSPORT CORPORATION (COIMBATORE DIVISION I) LTD 37, METTUPALAYAM ROAD, COIMBATORE 2ND RESPONDENT WP.16005/01 Prayer : Petition No.12198 of 2001 under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records of the award made in I.D.No.278 of 1997 dated 30.11.2000 on the file of the I respondent and quash the same. Petition No.16005 of 2001 under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus to call for the records relating to the award made in I.D.No.278 of 1997 dated 30.11.2000 passed by the I respondent and quash that portion of the award denying the petitioner backwages and consequently to direct the 2nd respondent to pay the petitioner backwages and other attendant benefits. For Petitioner in W.P.16005/01 and Respondent 2 in WP.12198/01 :: Mr.V.Ajoy Khose For Petitioner in W.P.12198/01 and Respondent 2 in WP.16005/01 :: Mr.T.Chandrasekaran https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard both sides. 2. Both the writ petitions challenge the same award of the Labour Court, Coimbatore made in I.D.No.278 of 1997, dated 30.11.2000. 3. In the first writ petition in W.P.No.12198 of 2001, the petitioner is the Management which is a State Owned Transport Corporation. They were aggrieved by the award in so far as it had directed reinstatement of the 2nd respondent workman with service continuity but without backwages. The first writ petition was admitted on 04.07.2001. Pending the writ petition, on 04.07.2001, this Court ordered that stay will be against the grant of continuity of service since the Court was informed that the workman was already reinstated without prejudice to the case pending in this writ petition. 4. Subsequently, the workman complained that though there was restoration to service, but it was not on par with the same salary payable to other similarly placed workmen. On the basis of the said complaint, this Court by an order dated 09.11.2001 directed that the workman should be paid current wages without prejudice to the rights of both parties. The difference of amount payable from 31.03.2001 to October 2001 was also directed to be paid to the workman. 5. In the meanwhile the workman also filed the other writ petition in W.P.No.16005 of 2001 seeking to challenge that portion of the award denying backwages. He prayed for setting aside that portion and sought for a direction to grant full backwages and other attendant benefits. When W.P.No.16005 of 2001 came up on 04.09.2001, the said writ petition was directed to be heard along with the previous writ petition filed by the Management. Subsequently in June 2008, applications were filed for early hearing of the writ petitions. Accordingly they were directed to be heard early. Though such a direction was given, the matters were not listed. For convenience sake, the parties are referred to as the Management and the workman. 6. It is seen from the records that the workman was employed as a conductor. On account of his absence, he was given a show cause notice dated 17.07.1996. After his explanation, an enquiry was https://hcservices.ecourts.gov.in/hcservices/ conducted and the Enquiry Officer submitted his report on 24.12.1996. Based on the Enquiry report, a second show cause notice was given to the workman on 02.01.1997. After getting the workman's explanation, his services were terminated on 22.01.1997. The workman raised an industrial dispute under Section 2-A(2) of the Industrial Disputes Act before the Conciliation Officer. On the strength of the failure report given by the Officer, he filed a claim statement before the Labour Court, Coimbatore. The Labour Court, Coimbatore took up the dispute as I.D.No.278 of 1995 and issued notice to the Management. 7. The Management filed a counter statement dated Nil. The stand taken by the Management before the Labour Court was that the workman was absent continuously from 21.05.1996. In the enquiry, he admitted his absence. Though it was admitted, the workman had requested for grant of leave. But he did not specify his leave period. Even the medical certificate produced by the workman dated 29.07.1996, it merely stated that he required bed rest for six months, from the date on which the workman had absented himself. The recommended period suggested by the medical Doctor came to an end on 20.11.1996. In the normal course, he should have reported for work on 21.11.1996. Even thereafter, he absented for one more month. Even on the extended date of leave viz., 02.01.1997, the workman did not join duty and hence a show cause notice was issued to him. In the show cause notice, it was stated that Standing Order No.6(A) provided for removal for such continuous absence for more than 8 days. They also stated that the workman was not eligible for any indulgence by the Labour Court. It was only thereafter he reported for work. 8. Before the Labour Court, on the side of the workman two documents were filed and marked as Exs.W.1 and W.2. On the side of the Management 14 documents were filed and they were marked as Exs.M.1 to M.14. 9. The Management contended that as per the Standing Order No.6 (A), the workman is deemed to have left the service on account of his continuous absence for eight consecutive days and the dispute is not maintainable. The Labour Court rejected the preliminary objection and held that in the light of the Judgments reported in 1982 1 LLJ 330 and 1998 1 LLJ 186, the dispute is maintainable. 10. But in so far as the enquiry conducted against the workman is concerned, the labour Court held that it was valid and the allegation that he was victimized was rejected. On the question of his absence, the labour Court held that his contention that due to medical ground he did not come to work was not acceptable. https://hcservices.ecourts.gov.in/hcservices/ 11. Further, the labour Court held that instead of taking action on the basis of the enquiry report, the Management had resorted to the Standing Order 6(A). Therefore, it is not a case of dismissal for a misconduct, but case of simple termination and such termination will come within the meaning of Section 2(oo) of the Industrial Disputes Act. Since no retrenchment is permissible, without compliance of Section 25-F of the Industrial Disputes Act, the termination was illegal. 12. In this context, the labour Court also placed reliance upon the two Judgments referred to above. In that view of the matter, the labour Court held that he is entitled for reinstatement with continuity of service. But with reference to backwages, the labour Court held that since after due notification by the Management, it is the workman who had absented himself. There was also allegation that he was conducting a finance company along with his brother in law. This statement was made by the Management, which was also not denied. It is on that ground, the backwages were denied. 13. It merely stated that the Management had contended before it about the workman's gainful employment. The plea of gainful employment has to be properly raised with sufficient materials and it cannot be done with bald allegations. A perusal of the award impugned in both the writ petitions shows that the Labour Court's finding that since the employer had resorted to termination under the cover of Standing Order 6(A) would amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act and therefore, non compliance of the mandatory provision precedent under Section 25-F will make the order void abinitio. Therefore, the Labour Court was correct in granting the relief of reinstatement without backwages. 14. On the question of denial of backwages, it must be noted that the Supreme Court in Laxmi Rattan Cotton Mills Limited vs. State of Uttar Pradesh and others reported in (2009) 1 SCC 695 has held that the Labour Court has wide discretion in the matter of grant of backwages. But such a discretion must be exercised judiciously and all attempts must be made to strike a balance. 15. On the plea of gainful employment, the burden always shifts on the workman, if such plea is raised. In case where the employer makes such an allegation in the pleadings, certainly the burden is upon the workman to prove that he was not employed anywhere. In such circumstances, discussing the scope of Evidence Act under Section 106, the Supreme Court held in Novartis India Limited vs. https://hcservices.ecourts.gov.in/hcservices/ State of West Bengal and others reported in (2009) 3 SCC 124 that burden shifts on the workman in case of a positive stand taken by the Management. Though in the present case, it is claimed that in paragraph 7 of the counter that Management has raised such a plea, no other proof is forthcoming. But the labour Court has drawn adverse inference on the non denial of this allegation by the Management. 16. In any event, even in cases of infraction of Section 25-F of the Industrial Disputes Act read with Section 2(oo), an invalid termination may lead to the relief of reinstatement and backwages which is in the normal rule, but while granting such relief, the Court will have to take into account several factors as held by the Supreme Court in the case of Rajasthan Lalit Kala Academy vs. Radhey Shyam reported in (2008) 13 SCC 248. 17. It must also be noted that subsequent to the writ petition, the workman was employed and he had also reached the age of superannuation on 31.05.2009. Under such circumstances, this Court is not inclined to interfere with the impugned award and it is a well considered award. 18. Hence, both the writ petitions will stand dismissed. However, there will be no order as to costs. 19. Mr.Ajay Khose, learned counsel appearing for the workman states that in view of the pendency of the writ petition, though the workman was allowed to retire, his terminal benefits have not been settled. If it is so, considering the fact that this Court has upheld the award and the workman had also retired more than ten months back, the Management is directed to settle all the terminal benefits due to the workman within a period of eight weeks from the date of receipt of a copy of this order. rg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.THE MANAGING DIRECTOR THE TAMILNADU STATE TRANSPORT CORPORATION COIMBATORE DIVISION I LTD, COIMBATOIRE 2.THE PRESIDING OFFICER LABOUR COURT, COIMBATORE + 1 cc to Mr. V.Ajoy Khose, Advocate SR No.18873 + 1 cc to Mr. T. Chandrasekaran, Advocate SR No.18949 VSV(CO) SR/29.3.2010 W.P.Nos.12198 and 16005 of 2001 https://hcservices.ecourts.gov.in/hcservices/