IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.18372 & 18373 of 2001 The Management, A.1721, Theni Co-operative Urban Bank Limited, 12-A, Mel Madi, Periyakulam Road, Theni rep. by its Special Officer. .. Petitioner in both the Wps. vs 1. The Presiding Officer, Labour Court, Madurai. .. 1st respondent in WP.18372/2001 and WP.18373/2001 2. M.Ramesh Kumar, S/o P.Malayandi, Dharmapuri Post, Kamatchipuram Via., Periyakulam Taluk, Theni District ..2nd Respondent in WP.18372/2001 3. S.Senthil Kumar S/o K.Subbian, T.Kallipatti, Periyakulam Taluk, Theni District. ..2nd Respondent in WP.18373/2001 Writ petitions filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records in pursuant to the award dated 25.6.2001 in I.D.No.161/2001 and I.D.No.162/2001 respectively on the file of the Labour Court, Madurai and quash the same. For Petitioner : Mr.Subburaj for Mr.S.M.Subramaniam For Respondents : R1-Court Mr.S.Jayaraman for R2. COMMON ORDER Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 2. Both the writ petitions are filed by the Management of the Co-operative Societies running the Cooperative Urban Bank at Theni. Aggrieved by the award passed by the first respondent Labour Court in I.D.Nos.161 of 2001 and 162 of 2001 dated 25.6.2001, the present writ petitions have been filed. 3. The writ petitions were admitted on 5.10.2001. Pending writ petitions, this Court granted an interim stay. Both the contesting second respondent took out application in W.P.M.P.Nos. 36798, 36799, 36800 and 36801/2001 seeking to vacate the interim order as well as direction to pay the last drawn wages. This Court, by a common order dated 18.4.2002, directed the petitioner Bank to deposit Rs.35,000/- to the credit of each dispute. Further direction was given that the contesting respondent will be permitted to withdraw Rs.15,000/- from such deposit. The balance amount was directed to be invested in a nationalised bank by the Labour Court. Further direction was also given to pay Rs.4,200/- as arrears arising out of the payment under 17-B of the Industrial Disputes Act and the Management is also directed to pay the last drawn wage of Rs.700/- to the workmen commencing from May 2002. 4. The learned counsel appearing for the second respondent stated that the Management had not complied with the interim order. Though in the interim order itself it is stated that non-compliance will result in vacating of the order but it will have bearing only on the deposit and not on the direction to pay the last drawn wages. The counsel appearing for the petitioner has no explanation to offer on the disobeyance of the order passed by this Court. The order itself came to be passed only because of the statutory direction provided in the Industrial Dispute Act. The idea being that the workmen must have subsistence allowance to survive and the petitioner Bank cannot flout the interim order. No attempt was made by the Bank even to seek for any modification. They have now come forward to argue the final hearing as if nothing had happened in the meanwhile. This attitude of the Management must be strongly contemned. 5. On the merits of the case, it is seen from the records, the contesting second respondents were appointed after getting their names sponsored through the Employment Exchange and after conducting of an interview, they were selected and appointed as Junior Assistants. The contesting respondents have also joined duty during April 1987 and have paid the monthly salary for the said period. Subsequent to their joining duty, within four months, they were removed from service on the ground that their employment do not come within the staff strength fixed under Rule 149. Therefore, there is no post to hold. In that view of the matter, the termination came to be passed. Aggrieved by the stand taken by the Management, the workmen raised dispute before the Labour Officer and as no conciliation was possible, they have filed conciliation failure report before the Labour Court along with their claim statements. It was taken up as I.D.Nos.161 and 162 of 2001 and https://hcservices.ecourts.gov.in/hcservices/ notices were ordered. 6. The petitioner bank filed counter statement reiterating the same contention. However, the Labour Court, by award dated 25.6.2001 held that so long as the entry of the workmen is not through backdoor and they have gone through proper selection. Therefore, their termination was illegal. The Labour Court drew inspiration from the order passed by the Division Bench of this Court in N.L.C. Employees' Co-operative Thrift and Credit Society Ltd vs. Presiding Officer, Labour Court reported in 2000(3) L.L.N. 991. The Labour Court held that the termination was illegal and they are eligible for reinstatement and backwages. 7. The counsel for the Management contended that though the termination might have been erroneous for not giving notice, but the statutory Rule requires that any appointment must be according to the staff norms prescribed therein. Therefore, the Labour Court was wrong in ordering reinstatement without going into the merits of the issue raised. 8. Considering the fact that the workmen have worked only for four months, the Labour Court may not be proper to order reinstatement, especially, when the stand taken by the Management was that they do not come within the staff strength fixed by the Society under Rule 149. Instead of remitting it back for fresh disposal, this Court is of the view that since the termination is invalid on the ground of non-issuance of notice, due compensation may be paid to them and the same can also be quantified by this Court. 9. The judgment of the Division Bench of this Court in N.L.C. Employees' Co-operative Thrift and Credit Society Ltd vs. Presiding Officer, Labour Court reported in 2000(3) L.L.N. 991 referred to by Labour Court may not have a direct application. In that case, the Court dealt with infraction of Section 25F of the Industrial Disputes Act. Therefore, the normal relief of backwages was granted. But in the present case, since they were in service only for a period of four months, the workmen were not eligible for coverage under Section 25F of the Industrial Disputes Act. 9. Though the termination was invalid on the ground of non- issuance of notice and the workmen were not aware of the staff strength. They, having been sponsored through the Employment Exchange, attended an interview and got selected. Therefore, both the writ petitions stands disposed of by modifying the Awards passed by the Labour Court in the following terms: 11. Since the payment under Section 17-B is directed to be paid from October 2001 till the date of the writ petitions, there cannot be any waiver of the Management for not fulfilling the statutory obligation cast upon them while challenging the Award of this nature. Therefore, the management must pay the last drawn wages at the rate of Rs.700/- from October 2001 till March 2010 to https://hcservices.ecourts.gov.in/hcservices/ each of the contesting respondents as part of the direction issued by this Court dated 18.4.2002. The Supreme Court has already held that such a payment is non-recoverable and it is in the nature of subsistence allowance. Apart from the payment under Section 17-B, each of the workmen is entitled for compensation which is quantified at the rate of Rs.35,000/- which will be in lieu of reinstatement and all other dues will be paid by the Society. 12. The aforesaid payments along with the arrears under section 17-B should be paid within a period of eight weeks from the date of receipt of a copy of the order. Accordingly, both the writ petitions are allowed to the extent indicated above. No costs. Sd/- Assistant Registrar /True Copy/ Sub Asst.Registrar vsi To The Presiding Officer, Labour Court, Madurai. +Two Ccs to Mr.S.Jayaraman, Advocate SR.Nos.18977, 18978 MBS(CO) DRL : 01/04/2010 K.CHANDRU,J. Vsi https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.18372 & 18373 of 2001 23.3.2010 https://hcservices.ecourts.gov.in/hcservices/