1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.01.2011 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Writ Appeal (MD)No.21 of 2011 and M.P.(MD)No.1 of 2011 The Management, Sivakumar Spinning Mills (P) Ltd., Madurai Road, Sankar Nagar-627 357, Tirunelveli District. : Appellant/ Petitioner Vs. 1.The Labour Court, Court Buildings, Tirunelveli. 2.M.Arumugam : Respondents/ Respondents Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 22.09.2010, made in W.P.(MD)No.4999 of 2005. Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records relating to the proceedings of the Labour Court, Tirunelveli in ID No. 124 of 2001, dated 27.10.2004 and quash the same. For Appellant : Mr.V.O.S.Kalaiselvam For Respondent-2 : Mr.N.Elanchezhian JUDMGNET [Judgment of the Court was delivered BY R.SUBBIAH, J] This writ appeal is directed against the order, dated 22.09.2010, made in W.P.(MD)No.4999 of 2005, whereby the learned Single Judge dismissed the writ petition filed by the appellant/management challenging the award passed by the Labour Court, Tirunelvi, in I.D.No.124 of 2001, dated 27.10.2004, directing the appellant/management to reinstate the 2nd respondent/employee with all backwages and continuity of service. 2.The brief facts which are necessary to decide the issue involved in this writ appeal are as follows: (a)The 2nd respondent joined in the appellant Mill as a Reeler on 25.12.1977. Subsequently, according to the 2nd respondent, he became a permanent employee of the Mill and he also completed 24 years of https://hcservices.ecourts.gov.in/hcservices/ 2 service in the appellant's Spinning Mill. While so, on 20.02.2001, without holding any enquiry whatsoever, the appellant Management terminated the services of the appellant orally. Though the 2nd respondent had approached the appellant on several times with a request to allow him to continue in employment, the same was not considered by the appellant Management. Hence the 2nd respondent raised an industrial dispute before the Labour Officer (Conciliation) under Section 2-A of the Industrial Disputes Act. (b)The case of the 2nd respondent was resisted by the Management stating that the 2nd respondent was working only as a Reeler in the Reeling Department. Since there was no regular Reeling Maistry in the Mill, the 2nd respondent was engaged as Acting Reeling Maistry then and therefore in the absence of regular maistry. The 2nd respondent, who was engaged intermittently as Reeling Maistry, was not allowed to work as Reeling Maistry continuously and when he was allowed to work as reeler, he refused to work as a reeler and voluntarily left the Mill from 24.02.2001. The wages of the 2nd respondent was also fixed to his capacity as reeler and no wage revision was made as and when he worked as acting reeling maistry. The 2nd respondent neither applied for leave nor obtained prior permission. On the other hand, he absented himself from duty continuously. Therefore, the petition filed by him under Section 2-A of the Industrial Disputes Act was not maintainable. (c)The Labour Officer (Conciliation) filed a Failure Report on 10.0.2001. Thereafter, the 2nd respondent filed I.D.No.124 of 2001 before the Labour Court, Tirunelveli. The Labour Court, after enquiry, has passed an award directing the appellant management to reinstate the 2nd respondent in service with backwages and continuity of service. Aggrieved over the same, the Management filed W.P.(MD)No.4999 of 2005. The learned Single Judge, upon hearing the submissions on either side, dismissed the writ petition. Hence this appeal. 3.Heard the submissions made on either side and perused the materials available on record. On a careful scrutiny of the award passed by the labour court, we find that the labour court, by deeply analysing the evidence adduced on either side, has come to the conclusion that the oral termination of the services of the 2nd respondent was not sustainable and thereby directed the appellant/Management to reinstate the 2nd respondent in service with continuity of service with backwages. We do not find any perversity in the order passed by the labour court insofar as reinstatement is concerned. The learned Single Judge was also right in confirming the said findings of the labour Court . However, in our considered opinion, the order of the labour court directing the appellant Management to pay backwages to the 2nd respondent is not proper, particularly in the circumstances when there is no pleading by the 2nd respondent to the effect that he was not gainfully employed while he was out of employment. 4.It is well settled legal principle that payment of backwages is not automatic, unless it is pleaded and established by the employee that he was not gainfully employed during the period while he was out of service. It was not pleaded by the 2nd respondent before the Labour Court that he was not employed elsewhere. The Supreme Court in https://hcservices.ecourts.gov.in/hcservices/ 3 the decisions reported in 2009(1) Supreme 315 : (2009) 2 SCC 681 - Andhra Pradesh State Road Transport Corporation v. P.Jayaram Reddy and 2009(7) MLJ 922 (SC) - Metropolitan Transport Corpn. v. V.Venkatesan held that payment of backwages cannot be ordered automatically and the party should prove that he was not gainfully employed. Applying the said judgments, we are of the view that the direction given by the labour court with regard to payment of backwages is liable to be set aside. 5.Accordingly, while confirming the order of the learned Single Judge in dismissing the writ petition, the award of the labour court insofar as directing the appellant/management to pay backwages to the 2nd respondent is set aside. However, the 2nd respondent is entitled for the salary from the date of award till his date of retirement. The period during which he was out of employment should be taken into consideration for continuity of service for fixing retirement benefits. The appellant is directed to calculate and pay the retirement benefits payable to the 2nd respondent within four weeks. 6.The writ appeal is partly allowed and stands disposed of accordingly. No costs. Connected M.P.(MD)No.1 of 2011 is closed. SD/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To: The Presiding Officer, Labour Court, Court Buildings, Tirunelveli. +1 CC TO MR. V.O.S.KALAISELVAM, ADVOCATE S.R NO. 2183 +1 CC TO MR. M . ELANCHEZHIAN, ADVOCATE S.R NO. 2232 JUDGMENT IN W.As.(MD)No.21/2011 and MP(MD)No.1/2011 Dated:20.01.2011 gb PAM 10.02.2011/4C/3P https://hcservices.ecourts.gov.in/hcservices/