In the High Court of Judicature at Madras Dated: 13.8.2008 Coram: The Honourable Mr.Justice S.J.Mukhopadhaya and The Honourable Mr.Justice V.Dhanapalan Writ Appeal Nos.1935 and 1936 of 2001 N.Kumaresan .. Appellant in both W.As. vs. 1. The Presiding Officer, Labour Court, Coimbatore. 2. The Management of South India Viscose Ltd., Trichy Road, Coimbatore-5. 3. The Official Liquidator, High Court, Madras. (Respondent No.3 impleaded -- vide order of Court dated 7.8.2008 in W.A.Nos.1935 and 1936 of 2001) .. Respondents in both W.As. Writ Appeal No.1935 of 2001 filed under Clause 15 of the Letters patent Act against the order dated 25.10.2000 passed by this Court in W.P.No.12374 of 1994 Petition filed under Art 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the concerned records relating to the award of the I Respondent Labour Court dated 23.4.1993 in I.D.NO.433 of 1989 in the Tamilnadu Gazette dated 24.11.1993 part II Section 2 at page 45 and quash the portion of the Award in so far as it has held that the petitioner was not a workman and his termination is valid and consequently direct the 2nd respondent to reinstate the petitioner with continuity of service backwages and all other consequential benefits together with costs. Writ Appeal No.1936 of 2001 filed under clause 15 of the Letters patent Act against the order dated 25.10.2000 passed by this Court in W.P.No.15898 of 1994 Petition filed under Art 226 of the Constitution of India praying to issue a writ of certiorari to call for the records in I.D.NO.433 of 1990 on the file of the first respondent and to quash the Award dated 23.4.1993. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.N.G.R.Prasad for M/s.Row & Reddy For respondent No.3 : Mr.A.P.Babu for Official Liquidator Judgment (The Judgment of the Court was delivered by S.J.Mukhopadhaya,J) The appellant-N.Kumaresan (Writ Petitioner in W.P.No.12374 of 1994) was initially appointed as Supervisor on 1.1.1974 in the second respondent-South India Viscose Limited, Coimbatore (hereinafter referred to as 'the Company') and subsequently, he was appointed as Junior Engineer on 1.4.1974. According to the appellant, as his wife underwent a major operation, he applied for leave, vide letter dated 13.8.1983 for the period from 5.8.1983 to 15.9.1983, which was sanctioned by the Company. By a subsequent letter dated 14.9.1983, he requested the Company to extend the leave for another one month. It further appears that subsequently, the appellant did not join the Company on the ground that he was suffering from Jaundice. He applied for Medical Leave, which was extended from time to time, but finally, his services were terminated by the letter dated 12.2.1985 of the Company, accompanying a Demand Draft dated 12.2.1985 for a sum of Rs.1,906/-. The appellant refused to accept the order of termination and the Demand Draft and finally, he moved before the first respondent-Labour Court, Coimbatore in I.D.No.433 of 1990. The Labour Court, by its Award dated 23.4.1993, held that the appellant does not fall within the definition of 'workman' as defined under Section 2(s) of the Industrial Disputes Act, 1947. However, a sum of Rs.25,000/- was granted in favour of the appellant as "Ex-gratia". While the Company preferred Writ Petition No.15898 of 1994 challenging the Award of the Labour Court, dated 23.4.1993, in regard to payment of Ex-gratia amount, the appellant preferred W.P.No.12374 of 1994 as the order of termination passed by the Company had not been declared illegal by the Labour Court. Both these Writ Petitions were disposed of by a common order dated 25.10.2000 passed by the learned single Judge, giving rise to the present Writ Appeals. 2. The learned single Judge, by the impugned order dated 25.10.2000, while dismissing W.P.No.12374 of 1994 preferred by the appellant, holding that the finding of the Labour Court relating to https://hcservices.ecourts.gov.in/hcservices/ the appellant that he is not a 'workman', is incorrect, allowed W.P.No.15898 of 1994 preferred by the Company, holding that the Award regarding payment of Rs.25,000/- by way of Ex-gratia is unjustified. 3. During the pendency of these Writ Appeals, winding up proceedings were initiated against the Company and by the order of Court dated 25.8.2004, the winding up process has been going on and hence, this Court impleaded the Official Liquidator as third respondent in both the Writ Appeals. 4. Learned counsel appearing on behalf of the appellant submitted that the appellant having been declared as a 'workman' by the Labour Court, his case should have been considered on merits, to find out the legality and propriety of the order of termination. The provisions of Section 25-F of the I.D. Act having not been complied with, by providing three months' notice or pay in lieu of such notice and as only one month's wages was forwarded to the appellant, the order of termination should have been declared as illegal. 5. On behalf of the Official Liquidator, it was submitted that the order of winding up of the second respondent-Company having been passed, the appellant cannot be reinstated at this stage. 6. Faced with the aforesaid situation, learned counsel appearing on behalf of the appellant-workman submitted that the appellant-N.Kumaresan will be happy if the order of termination is declared illegal and the appellant is provided with Gratuity and other terminal benefits, to which the other workmen of the Company are entitled to, on winding up of the Company. Further, in lieu of the arrears of wages, at least Rs.25,000/- being Ex-gratia as was allowed by the first respondent-Labour Court, should be paid. 7. We have heard the learned counsel appearing for the appellant and the learned counsel appearing on behalf of the third respondent-Official Liquidator and noticed their rival contentions. 8. From the subsequent order passed in W.P.Nos.12374 and 15898 of 1994, dated 31.10.2000, it appears that the counsel for the Company mentioned the case before the learned single Judge for refund of Rs.25,000/-, along with accrued interest (which was lying to the credit of I.D.No.433 of 1990), to the Company on production of a copy of this Court's order and the same was ordered to be refunded to the Company, by the said order dated 31.10.2000. https://hcservices.ecourts.gov.in/hcservices/ By the said order dated 31.10.2000, the learned single Judge also observed that there should be no impediment for the second respondent-Company in settling the terminal benefits of the appellant-workman. 9. From the findings of the learned single Judge, it would be evident that the appellant has been declared as a 'workman'. We find no ground made out to differ with such a finding. In such a case, we are of the view that the learned single Judge should have decided the question of legality and propriety of the order of termination passed by the Company, in the light of the provisions of Section 25- F of the I.D. Act, particularly when it was alleged that only one month's wages was paid and not three months' wages, in lieu of notice. 10. In the present case, as we find that the Company is under the process of winding up and the Official Liquidator has been appointed, except for a declaration that the order of termination was illegal, we are not inclined to reinstate the appellant. In the place of back-wages, we allow a sum of Rs.25,000/- as Ex-gratia payment, as was allowed by the first respondent-Labour Court. 11. We also declare that the appellant-workman shall be entitled to all the benefits to which the other workmen of the Company are entitled to, which can be paid by the Official Liquidator at appropriate stage, as and when the case of the other workmen of the Company for grant of such benefits, is taken up. 12. Both the Writ Appeals stand disposed of with the aforesaid observations/directions. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. cs https://hcservices.ecourts.gov.in/hcservices/ To 1. The Presiding Officer, Labour Court, Coimbatore. 2. The Official Liquidator, High Court, Madras. 1 cc to M/s. Row and Reddy, Advocate, SR. 45041 Writ Appeal Nos.1935 & 1936 of 2001 PA (CO) kk 25/8 https://hcservices.ecourts.gov.in/hcservices/