IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.01.2010 CORAM; THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.26083/2009, 5987/2008 and 9466/2008 M.P.No.1/2008 in W.P.No.5987/2008, M.P.Nos.1,2 and 3/2008 in W.P.No.9466/2008 W.P.No.26083/2009 The Workmen rep.by General Secretary Mr.G.Jayapalan Rane Brake Linings Employees Union 33,Nehru Theru 1st Cross Poonamallee Road, Avadi Chennai 600 054 ..Petitioner vs 1.The Presiding Officer Industrial Tribunal Chennai 600 104 2.The Management Rane Brake Linings Limited Plot No.30, Industrial Estate Ambattur Chennai 600 058 ..Respondents W.P.No.5987/2008 M/s Rane Brake Linings Ltd Plot No.30, II Main Road, Industrial Estate Ambattur, Chennai 600 058 ..Petitioner vs 1.Government of Tamil Nadu Department of Labour & Employment Fort St.George, Chennai 600 009 2.The Asst.Commissioner of Labour-II Dept. of Labour & Employment III Floor, Kuralagam Prakasam Salai, Chennai 600 108 https://hcservices.ecourts.gov.in/hcservices/ 3.Rane Brake Linings Employees Union (Regd.No.MDS/461) through its General Secretary R.Sundar Plot No.30, II Main Road Industrial Estate, Ambattur Chennai 600 058 4.G.Jayapalan S/o Lt.N.Gopal 33,Nehru Street, I Cross Poonamallee Road, Avadi Chennai 600 054 ..Respondents W.P.No.9466/2008 Rane Brake Linings Employees Union Rep. by its General Secretary R.Sundar Plot No.30, Industrial Estate Ambattur Chennai 600 058 ..Petitioner vs 1.G.Jayapalan Former General Secretary Rane Brake Linings Employees Union 33,Nehru Street 1st Cross P.H.Road, Avadi,Chennai 600 054 2.Government of Tamil Nadu Rep. by Secretary Department of Labour and Employment(A2) Fort St.George Chennai 600 009 3.Management of Rane Brake Linings Ltd., Plot No.30, Industrial Estate Ambattur, Chennai 600 058 ..Respondents W.P.No.26083/2009 is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarifiled Mandamus calling for the records pertaining to I.D.No.10/2008 and quash the order dated 11.7.2008 passed by the 1st respondent herein dismissing the same for default and direct the 1st respondent to restore the same file. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.5987/2008 is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari to call for the records and quash G.O.(D)No.886, dated 28.12.2007 issued by the 1st respondent, Government of Tamil Nadu, Department of Labour & Employment, Fort St.George, Chennai 600 009 represented by its Additional Secretary. W.P.No.9466/2008 is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari calling for the records of the first respondent in connection with G.O.(D).No.886, dated 28.12.2007 of the Department of Labour and Employment issued by the 2nd respondent and quash the same. for petitioners : Mr.R.Govindaraj (for petitioner in W.P.No.26083/2009) : Mr.A.L.Somayajee Senior Counsel for M/s Gupta and Ravi (for petitioner in W.P.No.5987/2008) for petitioner : Mr.R.Sundar (for petitioner in W.P.No.9466/2008) for respondents : Mrs.C.K.Vishnupriya (for R1 in W.P.No.26083/2009) for R1 and R2 in W.P.No.5987/2008 for R2 in W.P.No.9466/2008) Mr.M.Ramamoorthi (for R4 in W.P.No.5987/2008) Mr.K.V.Shanmughanathan (for R1 in W.P.No.9466/2008) M/s Gupta Ravi (for R3 in W.P.No.9466/2008) COMMON ORDER In W.P.No.26083/2009 the petitioner is one G.Jayapalan, General Secretary of Rane Brake Linings Employees Union. He has come forward to file the present Writ Petition seeking to set aside the award dated 11.7.2008 made in I.D.No.10/2008. 2. It is seen from the award that the first respondent- Industrial Tribunal, Chennai dismissed the dispute for want of https://hcservices.ecourts.gov.in/hcservices/ prosecution by the workmen. The State Government by G.O.(D).No.886, Labour and Employment Department, dated 28.12.2007 referred the dispute raised by the workmen regarding their service conditions including confirmation of temporary workers, permanency of the canteen workers, revision of Dearness Allowance, revision of scale of pay, service weightage, revision of other allowances, linking the production incentive along with the wages, performance incentive, production incentive, supply of uniform, revision of stitching charges and supply of footwear, supply of food allowances on the days when the canteens were not functioning, supply of towels, supply of soaps and Horlicks, payment of lumpsum amount at the time of V.R.S., seniority fixation and employment for the legal heirs on compassionate ground. When the reference reached the Tribunal, the Tribunal took up the reference as I.D.No.10/2008 and issued notice, but neither the petitioner workmen nor the respondent management appeared before the Tribunal. This is perhaps due to the fact that the respondent management itself has filed W.P.No.5987/2008 before this Court challenging the order of reference on certain grounds. This Court admitted the said Writ Petition on 10.3.2008 and in M.P.No.1/2008 granted interim stay of the reference. Perhaps due to the fact that the Tribunal was not made a party in that Writ Petition and no memo was filed before the Tribunal regarding the stay granted, the parties would not have appeared before the Tribunal even after summons. That may be the reason why the Tribunal has dismissed the reference for want of appearance of parties. It is not clear as to why the respondent management who also received the notice did not file any memo before the Tribunal along with the stay order granted by this Court. Therefore, the petitioner union filed the present Writ Petition. 3. This Court directed the other Writ Petition also to be listed. Accordingly, the Writ Petition filed by the management in W.P.No.5987/2008 was also listed. There is also another Writ Petition filed by one R.Sundar claiming to be the General Secretary of Rane Brake Linings Employees Union who has also filed W.P.No.9466/2008 challenging the very same reference and that Writ Petition was admitted on 22.4.2008 and interim stay was also granted in M.P.No.2/2008. 4. Since all the necessary parties are before this Court in W.P.Nos.5987/2008 and 9466/2008, this Court felt that there are no separate notice to be given in the present Writ Petition. Further, since the Tribunal dismissed the reference when there is a stay order is in operation and it is not expected that parties will appear before the Tribunal and the matter is seized by this Court, this Court is of the view that the dismissal of the reference by the Industrial Tribunal, Chennai dated 11.7.2008 cannot be permitted. When the service dispute regarding several service conditions of the https://hcservices.ecourts.gov.in/hcservices/ workmen is pending, such a dismissal for default cannot be permitted even under the normal circumstances. Under Rule 48 of the Tamil Nadu Industrial Disputes Rules 1958 when a reference is received by the Tribunal it has to pass award as if that party is present there. The Tribunal should have received a statement from the management without waiting for any claim statement by the workmen and should have passed orders on merits of the dispute. In the present case on the teeth of the interim order by this Court in the order passed by the Tribunal is non-est in law. 5. Therefore, W.P.No.26083/2009 stands allowed. The impugned order dated 11.7.2008 will stand set aside. The matter stands restored to the Tribunal with a direction to the Tribunal to issue notice to the parties concerned and to proceed with the reference. 6. In W.P.No.5987/2008 the management challenged the reference on the ground that there was a settlement signed between the parties under Section 12(3) of the Industrial Disputes Act in which the Rane Brake Linings Employees Union represented by the General Secretary, R.Sundar was also a party. In that Writ Petition, G.Jayapalan who is now the petitioner in W.P.No.26083/2009 was also a party 4th respondent. The contention raised by the petitioner was that apart from the settlement there is also internecine quarrel between the leaders of the union and therefore, the reference passed by the State Government is incompetent and majority of the workers were represented by R.Sundar, General Secretary. Similarly, in W.P.No.9466/2008, the attack against the reference was identical. 7. Whether the reference is covered by the settlement or whether the union which raised the dispute is having substantial falling and the reference was properly raised is an issue which has to be gone into only on evidence and reference cannot be thrashed without adjudication by filing Writ Petition under Article 226 of the Constitution. Even if a reference is made with the consent of parties, the Tribunal will have to decide the competency of the reference including the locus-standi of the union which has raised the dispute. A Division Bench of this Court vide its judgment in VALLAMALAI ESTATE, VALPARAI V. WORKERS OF VALLAMALAI ESTATE, VALPARAI AND ANOTHER reported in 1973 (1) LLJ 273 has held that parties cannot consent jurisdiction on the Tribunal and on such reference, after appropriate issues, the Tribunal will have to decide the reference on the merits as a preliminary issue and thereafter, to go into the merits of the claims made by the workmen. In these circumstances, the challenge made to the order of reference in G.O.(D).No.886, Labour and Employment Department, dated 28.12.2007 cannot be countenanced by this Court. It is for the parties to lead appropriate evidence before the Tribunal to either question the locus standi of the union which raised the dispute as to the leadership of https://hcservices.ecourts.gov.in/hcservices/ the union as between G.Jayapalan and R.Sundar or in the alternative, issue notice to the workmen directly and thereafter, decide the issue. It is needless to state that once a valid dispute is referred for adjudication by the Tribunal, subsequently, whether the workmen have subsequently withdrawn the espousal of the cause need not be gone into as held by the Supreme Court by the judgment in Ram Prasad Viswakarma V. Industrial Tribunal reported in 1961 (1) LLJ 504. In these circumstances, both the Writ Petitions are liable to be rejected. 8. In the result, W.P.No.26083/2009 will stand allowed. W.P.Nos.5987/2008 and 9466/2008 will stand dismissed. 9. The Industrial Tribunal, Chennai, is hereby directed to issue notice on I.D.No.10/2008 to the management as well as to the workmen as well as to both the factions of the Union represented by G.Jayapalan and R.Sundar and then proceed to answer the reference in accordance with law. The contentions raised by the parties in these Writ Petitions are not gone into as it will prejudice the outcome of the award. All issues including the validity of the reference and the locus standi of the union will have to be gone into by the Tribunal. 10. No costs. Consequently, connected pending Miscellaneous Petitions stand closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sal To 1.The Presiding Officer Industrial Tribunal Chennai 600 104 2.The Secretary to Government, Government of Tamil Nadu Department of Labour & Employment Fort St.George, Chennai 600 009 https://hcservices.ecourts.gov.in/hcservices/ 3.The Asst.Commissioner of Labour-II Dept. of Labour & Employment III Floor, Kuralagam Prakasam Salai, Chennai 600 108 1 cc to Government Pleader, Sr.No.4783 to 4785 2 cc to M/s.Gupta & Ravi, Advocate, Sr.No.4580, 4581 1 cc to Mr.K.V.Shanmuganathan, Advocate, Sr.No.4541 1 cc to Mr.K.Sudalaikannu, Advocate, Sr.No.4531 W.P.NOs.26083/2009, 5987/2008&9466/2008 M.P.No.1/2008 in W.P.No.5987/2008, M.P.Nos.1,2 and 3/2008 in W.P.No.9466/2008 RL {CO} TP/5.2.2010. https://hcservices.ecourts.gov.in/hcservices/