IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 08.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.5716 of 2009 and W.P.No.166 of 2010 M.P.Nos.1 and 2 of 2010 B.Gunasekaran ...Petitioner in W.P.No.5716 of 2009 E.2043,Veeraperumanallur Primary Agricultural Co-operative Credit Society Ltd., Rep. By its Special Officer, Veeraperumanallur Panruti Taluk, Cuddalore District. ...Petitioner in W.P.No.166 of 2010 Vs. 1.Deputy Registrar, Office of Registration of Co-operative Societies, Cuddalore District. 2.Special Officer, Veeraperumanallur Primary Agricultural Bank Ltd., No.2043, Veeraperumanallur, Panruti Taluk, Cuddalore District. ... Respondents in W.P.No.5716 of 2009 1.The Presiding Officer, The Labour Court, Cuddalore. 2.N.Pannerselvam Former Special Officer, Veeraperumanallur Primary Agricultural Co-operative Credit Society Ltd., O/o. Deputy Registrar of Co-operative Societies, Cuddalore Circle, Cuddalore. 3.B.Gunasekaran ... Respondents in W.P.No.166 of 2010 https://hcservices.ecourts.gov.in/hcservices/ W.P.No.5716 of 2009 PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of mandamus, directing the respondents to pay all backwages, pay fixation and all promotional service benefits in conformity with the award dated 20.12.2005 passed in I.D.O.P.No.124 of 2000, Labour Court, Cuddalore to the petitioner, in pursuant to the petitioner's representation dated 24.11.2008. W.P.No.166 of 2010 PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorari, calling for the records of the first respondent in pursuant to the award passed in I.D.No.124 of 2000 dated 20.12.2005 quash the same. For Petitioner in W.P.No.5716 of 2009 : Mr.P.Hari Babu in W.P.No.166 of 2010 : Mr.M.S.Palaniswamy For Respondents in W.P.No.5716 of 2009 : Mrs.C.K.Vishnupriya,A.G.P. C O M M O N O R D E R While W.P.No.166 of 2010 is filed by the Management of Primary Agricultural Co-operative Credit Society, W.P.No.5716 of 2009 is filed by the third respondent workman. For the sake of convenience the parties are referred as Management and Workman. 2. The Management in W.P.No.166 of 2010 challenged the award of the Labour Court, Cuddalore in I.D.No.124 of 2000 dated 20.12.2005. By the said award, the Labour Court set aside the dismissal order dated 04.11.1995 and directed the reinstatement of the workman with service continuity but without backwages for the period from 1996 to 1999. The Management did not challenge the award within a reasonable time. It is only when the workman filed the writ petition in W.P.No.5716 of 2009, seeking for implementation of the award and after this Court ordered notice of motion on 06.04.2009, the Management on receipt of the said notice decided to file the present writ petition being W.P.No.166 of 2010. 3. Heard Mr.M.S.Palaniswamy, learned counsel appearing for the Management and Mr.P.Hari Babu,learned counsel appearing for the workman. 4. The writ petition (W.P.No.166 of 2010) is liable to be dismissed on the short ground that the writ petition was not filed within a reasonable period and it has been filed after prolonged delay of four years. Such a delay had not been satisfactorily https://hcservices.ecourts.gov.in/hcservices/ explained by the Management in the affidavit filed in support of the writ petition. 5. However, Mr.M.S.Palaniswamy, learned counsel submitted that it was due to the conspiracy of the previous Special Officer, matters were allowed to go for default before the Labour Court and that the Society should not be put to any jeopardy. But a perusal of the documents filed in the typed set clearly shows subsequent to the award, the matter was referred to the Deputy Registrar, Cuddalore and he was also informed of the said proceedings. The Society on 01.05.2006 passed a resolution deciding to implement the award by the society. In that resolution, there was no reservation about a writ petition subsequently being filed with reference to the legality or otherwise of the Award. Pursuant to the resolution, the workman had been reinstated. Therefore, in the absence of the Management reserving its rights to challenge the Award, the present attempt to challenge the Award after its implementation and after reinstatement of the workman cannot be entertained. The Management is estopped from challenging the award. Though Mr.Palanichamy stated that the reinstatement was made without prejudice to its challenge to the award in respect of backwages, a perusal of the resolution dated 01.05.2006 does not indicate any such qualification made by the Management of the Society. 6. This Court also went through the Award to find out whether there was a prima facie case for the Management to challenge the award. It is seen from the award that before the Labour Court, the validity or otherwise of the enquiry was decided as a preliminary issue. During the course of the said preliminary issue, the documents relating to domestic enquiry was filed by the Management. The Labour Court by its preliminary order (referred to in paragraph 9) held the issue against the Management. But in view of the alternative pleadings made in their counter statement seeking for a fresh opportunity, the Labour Court gave liberty to the Management to lead fresh evidence. But instead of utilising the said opportunity for which reservation has been made in their written statement, the Management neither examined any witness nor filed any documents. 7. Is is now contended by the Management that no opportunity was given and documents were not filed. Such a contention is contrary to the findings recorded by the Labour Court. Whatever documents filed during the course of preliminary issue cannot be relied if the preliminary issue was held against the Management. In paragraph 9, the Labour Court held that despite opportunities being given to the Management, the Management did not make any attempt to prove its charges levelled against the workman. In view of the same, reinstatement came to be passed. The Labour Court had even safeguarded the interest of the Management by depriving the workman of his salary for the period of two years. Therefore, it cannot be said that the award of the Labour Court suffers from any material https://hcservices.ecourts.gov.in/hcservices/ irregularity or illegality as urged by the Management at present. See : Neeta Kaplish v. Labour Court and another (1999 (1) C.L.R.219. 8. Under such circumstances, there is no case made out to entertain the writ petition. Hence, W.P.No.166 of 2010 is liable to be dismissed. 9. The writ petition (W.P.No.5716 of 2009) filed by the workman is only for enforcing the award. Though under the provisions of the Industrial Disputes Act, there is a machinery for computation of the backwages or even executing the award by virtue of Section 11-B introduced by the State legislature, this Court is not inclined to direct the workman to pursue his remedy before the Labour Court as the workman was already reinstated in service. The only question that is left is the quantum of backwages to be paid to him. Therefore, the Management is hereby directed to compute the backwages due to the workman in terms of the Award and pay it to him within a period of 12 weeks from the date of receipt of a copy of this order. 10. However, Mr.Palaniswamy learned counsel for the Management contended that a writ for enforcement of the Award is not maintainable. In case an award is sought to be executed, the Management can defend by satisfying the appropriate Court about the gainful employment of the workman during the period of non- employment and hence, no such direction should be given. The question of grant of backwages is an issue which is directly covered by the main reference. Nowhere in the counter statement filed by the Society, there is any pleading that the workman was gainfully employed during the period of unemployment. On the contrary, the Labour Court on its own had deprived the workman his wages for two years without giving any reasons. If at all it is the workman who should have been aggrieved by the denial of bakcwages for two years. Even if the workman files a petition for claiming backwages, the Labour Court in a proceeding under Section 33-C(2) cannot go behind the Award as held by this Court in Voltas Ltd. vs. V.M.Demello reported in 1971 (2) L.L.J. 307. 11. Even otherwise as already found by this Court that the Management of the Society had never reserved its right to challenge the award on a subsequent date after the reinstatement of the workman. Regarding the quantum of backwages the resolution passed by the Society clearly shows that the Society without any reservation wanted to implement the award. Further under Article 226 of the Constitution, this Court has wide power and cannot plead helplessness when a workman who had secured an award and when it came to be challenged before this Court and fails, the workman can come to this Court for the enforcement of the award. Therefore, the present direction issued by this Court to compute the backwages and make the payment to the workman is perfectly in order. https://hcservices.ecourts.gov.in/hcservices/ 12. In the result, while W.P.No.5716 of 2009 is disposed of with the above directions, W.P.No.166 of 2010 will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. svki To 1.The Deputy Registrar, Office of Registration of Co-operative Societies, Cuddalore District. 2.Special Officer, Veeraperumanallur Primary Agricultural Bank Ltd., No.2043, Veeraperumanallur, Panruti Taluk, Cuddalore District. 3.The Presiding Officer, The Labour Court, Cuddalore. 1 CC To Mr.K.Sarbathali, Advocate, SR.No.1983 2 CCs To Government Pleader, SR.No.2053 and 2084 W.P.Nos.5716 of 2009 and W.P.No.166 of 2010 NSM (CO) SS (27.01.2010) https://hcservices.ecourts.gov.in/hcservices/