IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.6940 of 2000 and 21570 of 2009 The Group Manager, Wood Briar Estate Ltd., Devarshola-643 207 The Nilgiris. .. Petitioner in W.P.No.6940/2000 S.Narasimhan .. Petitioner in W.P.No.21570/2009 Vs. 1.The Presiding Officer, Labour Court, Coimbatore. .. 1st respondent in both the petitions 2.S.Narasimhan .. 2nd Respondent in W.P.No.6940/2000 The Group Manager, Wood Brior Estate Limited, Devarshola, The Nilgiris. .. 2nd respondent in W.P.No.21570/2009 W.P.No.6940 of 2000 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the award dated 22.11.1999 passed in I.D.No.197 of 1996 on the file of the Labour Court, Coimbatore, first respondent herein and to quash the same and consequently, restore the order of dismissal passed in the domestic enquiry. W.P.No.21570 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that the petitioner is entitled to claim full backwages from the second respondent herein with effect from 25.3.1996 consequent to the order of reinstatement passed by the first respondent in I.D.No.197 of 1996, dated 22.11.1999. For Petitioners : Mr.J.Sivanandraj in W.P.No.6940 of 2000 Mr.S.Narasimhan (party in person) in W.P.No.21570 of 2009 https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.S.Narasimhan (R2)(Party in Person) in W.P.No.6940 of 2000 Mr.J.Sivanandraj for R2 in W.P.No.21570 of 2009 Labour Court - R1 in both WPs - - - - COMMON ORDER The first writ petition is filed by the management of Wood Briar Estate Ltd., challenging the Award passed by the Labour Court, Coimbtore in I.D.No.197 of 1996, dated 22.11.1999. By the impugned Award, the Labour Court directed reinstatement of the second respondent Workman with continuity of service and 40% of backwages with effect from 25.3.1996 together with cost of Rs.250/-. The writ petition was admitted on 19.4.2000. Pending the writ petition, this court directed the petitioner management to comply with Section 17-B of the Industrial Disputes Act by paying last drawn wages to the second respondent workman with effect from 1.5.2000. A further direction was given to deposit the arrears of wages as awarded by the Labour court within 12 weeks. By an order, dated 09.11.2000, when an application for time extension came, the time was extended. It was ordered that the workman is permitted to withdraw 50% of the amount and remaining 50% should be deposited in a Fixed Deposit in a nationalised bank. The interest accrued interest from such deposit was also directed to be paid on quarterly basis. Subsequently when the matter came up on 11.12.2003, this court recorded that the management has deposited Rs.80000/- on 30.11.2000, but not within the time limited prescribed by the court. However, the miscellaneous petition was closed with liberty to workman to take out an appropriate application. Subsequently, on an application being taken by the workman to fix an early date, the main writ petition was directed to be posted. 2.In the meanwhile, the workman has come forward to file a writ petition being W.P.No.21570 of 2009, challenging the very same Award insofar as it denied 60% of backwages. The writ petition was admitted and directed to be posted along with the earlier writ petition. The interim application for payment of 50% of backwages was rejected by this court. Subsequently, the second respondent workman removed his counsel and expressed his intention to appear as party in person. 3.In view of the interconnectivity, both the writ petitions were heard together and a common order is passed. For the sake of convenience, the parties are referred to as management and workman as the case may be in the respective writ petitions. This court is not inclined to entertain the second writ petition, which was filed after nine years after the Award even though there were several opportunities given for the workman to challenge the denial of backwages of 60%. Hence on the short ground of delay, the writ petition filed by the workman is liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ 4.In the writ petition filed by the management, three contentions were raised. The first contention was that the workman is not a "workman" within a meaning of Section 2(s) of the ID Act. The second contention was that once enquiry held by the management was held to be intact, unless there was perversity in the findings, the Labour Court cannot come to a different conclusion. Thirdly, Section 11A has been improperly exercised in the present case. 5.Apart from that, an additional affidavit dated 21.4.2010 was filed at the time of argument, stating that when a contempt petition was filed in C.P.No.368 of 2002, there was a direction to provide employment to the workman. Therefore, on 21.2.2003, the management called upon the workman to report for duty vide their offer, dated 25.4.2003. It was also stated that the factory has been closed for insufficient space and machinery. The workmen were sent to an another factory by name Sussex factory. When the workman was offered employment in that factory with accommodation in the quarters, he did not accept the same and also not surrendered the present factory quarters. He also refused to accept the new employment stating that the factory is too far. The other persons who worked along with the workman were still in the same quarters. 6.The workman filed a counter affidavit, dated 29.4.2010. It is stated that the workman was asked to work under the new Electrical supervisor as helper though he is willing to accept the new employment. With reference to the accommodation, it is stated that he was residing in the old quarters earlier and in respect of key of the old quarters, they feigned ignorance. When he went to the estate, he found that it was under total ruination and all his articles were blocked inside the quarters. However, it is suffice to state that the workman is presently 61 years old. Therefore, the question of reinstatement may not arise. 7.Taking the first contention that the workman is not a "workman" within the meaning of Section 2(s) of the ID Act, that he was employed as Electrical Supervisor and therefore, he is not a workman cannot be accepted. In the counter statement filed before the Labour court, dated 7.1.1997, no such plea was taken. Therefore, there was no occasion for the Labour Court to frame any such issue. The plea that whether a person is "workman" or not is a mixed question of facts and law. Even before going into the legal issue, there must be factual background for deciding such matter. In the absence of the management raising such issue before the Labour Court and inviting findings, this court is not inclined to entertain such plea for the first time before this court. The courts have consistently held that it is not nomenclature that matters, but it is the nature of duties attached to the post. Merely because the workman is described as electrical supervisor, he will not be ceased to be a workman. He also submitted that he has been working like any other workman and he does not have any supervisory work. Hence that objection is overruled. 8.With reference to the enquiry conducted by the management, before the Labour Court the workman conceded that he is not https://hcservices.ecourts.gov.in/hcservices/ attacking the enquiry. Therefore, the Labour court confined itself only to go into the materials placed before the labour court and also the findings of the enquiry officer. The labour court upon appreciation of the materials came to the conclusion that in respect of first charge, there was breach of standing instructions and there was act of subversive of discipline. With reference to the second charge that he behaved in a rude manner and shouted at the Factory Manager and used abusive language, there was no material to hold him guilty. The labour court found that only three charges were proved and in other respects, the findings of the enquiry officer was not supportable by materials. It is in that view of the matter, the labour court exercised its jurisdiction and considering the nature of misconduct and partly proven charges and considering his past service, held that it requires interference under Section 11A of the ID Act and therefore, he was deprived of 60% of backwages and was granted 40% backwages together with reinstatement and the other attendant benefits. 9.The counsel for the management placed reliance upon the judgment of the Supreme Court in M/s.Indian Iron & Steel Co. Ltd. Vs. Their Workmen reported in AIR 1958 SC 130. In that case, the Supreme Court held that the Labour Court cannot act as a court of appeal and substitute its own judgment for that of the management. It is only in case of want of good faith or victimisation or unfair labour practice or violation of principle of natural justice or when the findings are baseless or perverse, the court can interfere. It is surprising that how reliance can be placed upon the said judgment especially when Section 11A was introduced in the ID Act (with effect from 15.12.1971) by the Parliament with a view to specifically overrule the legal basis of the Indian Iron & Steel Co. case and also to clothe power on the labour courts with that of an appellate forum. The position of law after Section 11A was succinctly brought out by the Supreme Court vide its judgment in Workman of M/s. Firestone tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management reported in 1973 (1) SCC 813. Therefore, the objection is overruled. 10.In respect of the contention that the charge requires severe penalty, the learned counsel for the management relied on the following judgments: a)John Joseph Khokar Vs. B.S.Bhadange & Others (1998 (2) Bom CR 174). b)The Union Carbide (India) Ltd. Vs. Ramesh Kumbla & others (1999 (1) Bom CR 705. c)U.P. State Road Transport Corporation Vs. Subhash Chandra Sharma and others (2000) 3 SCC 324. d)U.P. State Road Transport Corporation, Dehradun Vs. Suresh Pal (2006) 8 SCC 108. 11.But, however, in the present case, the labour court found only a portion of the charge was not proved and it chose to interfere under Section 11A after taking into account the relevant https://hcservices.ecourts.gov.in/hcservices/ factors. Though power under Section 11A is very much available, this court is not inclined to interfere with the impugned Award. The labour court has applied its mid and considered all relevant aspects and had exercised its jurisdiction properly. Therefore, this court under Article 226 of the Constitution cannot substitute its views to that of the labour court. 12.In the light of the above, both the writ petitions will stand dismissed. No costs. In view of the dismissal of the writ petitions and considering the fact that the workman had reached the age of superannuation, no relief of reinstatement is available. Therefore, the workman is entitled to withdraw the amount lying in deposit of the labour court and for the balance amount, the management is directed to pay the same to the workman after calculating the same and without driving the workman to further process under law. This exercise shall be undertaken by the management within a period of eight weeks from the date of receipt of copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To The Presiding Officer, Labour Court,Coimbatore. Copy to: The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.Sivam Sivanandraj, Advocate, SR.29585 W.P.NOs.6940 of 2000 and 21570 of 2009 DM(CO) sra 06/05/2010 https://hcservices.ecourts.gov.in/hcservices/