IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.03.2010 CORAM : THE HONOURABLE Mrs. JUSTICE R.BANUMATHI and THE HONOURABLE Mr. JUSTICE M.VENUGOPAL Writ Appeal Nos.2115 to 2134 of 2000 W.A.No.2115 of 2000: The Management of City Knitting Company No.2/6, Padmavathipuram, Angeripalayam Road, Tiruppur-638 603. ..Appellant in W.A.No.2115/2000/3rd Respondent vs. 1. K.K.Selvaraj 2. M.Rangasamy 3. S.Thangamani 4. J.Moorthy 5. R.Murugesan 6. P.Jothisankar 7. V.R.Shanmugam 8. K.Thirumalaisamy 9. Kondappan 10. R.Chinnamuthu 11. M.Revathy 12. R.Marimuthu 13. M.Eswari 14. S.Palanisamy 15. P.Murari 16. S.Elango 17. P.Palanisamy 18. K.V.Ravi 19. R.Annadurai ..Respondents/Petitioners & RR1 & 2 20. The Appellate Authority under the Tamil Nadu Payment of Subsistence Allowance Act (Deputy Commissioner of Labour), Coimbatore-641 012. https://hcservices.ecourts.gov.in/hcservices/ 21. The Controlling Authority under the Tamil Nadu Payment of Subsistence Allowance Act, Assistant Commissioner of Labour, Coimbatore-641 012. ..Respondents in W.A.No.2115/2000/RR1 & 2 W.A.Nos.2116 to 2134 of 2000: The Management of City Knitting Company No.2/6, Padmavathipuram, Angeripalayam Road, Tiruppur-638 603. ..Appellants in W.A.Nos. 2116 to 2134/2000/2nd Respondent vs. K.K.Selvaraj ..1st Respondent in W.A.No.2116/2000/Petitioner R.Annadurai ..1st Respondent in W.A.No.2117/2000/Petitioner R.Murugesan ..1st Respondent in W.A.No.2118/2000/Petitioner K.Thirumalaisamy ..1st Respondent in W.A.No.2119/2000/Petitioner S.Elango ..1st Respondent in W.A.No.2120/2000/Petitioner S.Thangamani ..1st Respondent in W.A.No.2121/2000/Petitioner S.Palanisamy ..1st Respondent in W.A.No.2122/2000/Petitioner M.Rangasamy ..1st Respondent in W.A.No.2123/2000/Petitioner R.Chinnamuthu ..1st Respondent in W.A.No.2124/2000/Petitioner J.Moorthy ..1st Respondent in W.A.No.2125/2000/Petitioner R.Marimuthu ..1st Respondent in W.A.No.2126/2000/Petitioner https://hcservices.ecourts.gov.in/hcservices/ P.Palanisamy ..1st Respondent in W.A.No.2127/2000/Petitioner M.Kondappan ..1st Respondent in W.A.No.2128/2000/Petitioner P.Jothikumar ..1st Respondent in W.A.No.2129/2000/Petitioner K.V.Ravi ..1st Respondent in W.A.No.2130/2000/Petitioner M. Revathi ..1st Respondent in W.A.No.2131/2000/Petitioner M.Eswari ..1st Respondent in W.A.No.2132/2000/Petitioner V.R.Shanmugham ..1st Respondent in W.A.No.2133/2000/Petitioner P.Murari ..1st Respondent in W.A.No.2134/2000/Petitioner The Presiding Officer, Labour Court, Coimbatore-641 018. ..2nd Respondent in all Appeals./1st Respondent Prayer: W.A.No.2115 of 2000 filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.No.13365 of 1992 dated 28.07.2000. W.P.No.13365 of 1992: Writ of Certiorari filed mandamus calling for the records from the file of the first respondent pertaining to the proceedings in ref. APSA 1/91 to 57/91 quash the order dated 31.03.1992 and consequently direct the 3rd respondent to pay the petitioners their subsistence allowance in accordance with the TNPSA Act 1981 with effect from 08.12.1988 to 07.09.1989, together with interest at 12% p.a. award costs; Prayer: W.A.Nos.2116 to 2134 of 2000 filed under Clause 15 of the Letters Patent against the common order of the learned single Judge made in W.P.Nos. 20860, 20957 to 20962, 21036 to 21041 and 21098 to 21103 of 1993 dated 28.07.2000. W.P.Nos. 20860, 20957 to 20962, 21036 to 21041 and 21098 to 21103 of 1993 : Writ of certiorarifed Mandamus after calling for the records from the file of the 1st respondent Labour Court pertaining to https://hcservices.ecourts.gov.in/hcservices/ I.D.Nos.1. 93/91; 2. 92/91; 3. 87/91; 4. 89/91; 5. 88/91; 6. 90/91; 7. 86/91; 8.94/91; 9. 96/91; 10. 91/91; 11. 95/91; 12. 98/91; 13. 97/91; 14. 100/91; 15.102/91; 16. 99/91; 17. 320/91; 18. 101/91 & 321/91 respectively and quash the award dated 13.04.1993 in so far as it denies the relief of reinstatement of the petitioner together with backwages and consequently direct the 2nd respondent to reinstatement of the petitioner in service, together with backwages, continuity of service and other attendant benefits, award costs. For Appellants : Mr.R.Gandhi in all appeals Senior Counsel for Mr.R.G.Narendhiran For R1 to 4, 6 to 19 in W.A.No.2115/2000 and 1st Respondent : Mr.V.Ajoy Khose in W.A.Nos. 2116 to 2134/2000 For 20 & 21 Respondents : Mr.A.Arumugham, in W.A.No.2115/2000 Spl. Government Pleader (W) For R2 in W.A.Nos.2116 to 2134 of 2000 : Labour Court COMMON JUDGMENT R.BANUMATHI,J These Writ Appeals arise out of the common order of the learned single Judge in W.P.Nos.20860, 20957 to 20962, 21036 to 21041 and 21098 to 21103 of 1993 quashing the Award of the Labour Court and ordering reinstatement of workmen with back wages. W.A.No.2115/2000 has been filed agianst the order of learned single Judge in W.P.No.13365/1992 dated 28.07.2000. Management is the Appellant in these Appeals. Since, the issue involved in these Batch of Writ Appeals are one and the same, all the Writ Appeals were taken up together and disposed of by this common Judgment. 2. The case of Workmen is that they are the permanent employees of Appellant Management – City Knitting Company, Tiruppur and they are the active members of Banian and Pothu Thozhilalar Sangam affiliated to CITU. Further case of Workmen is that over the dispute of distribution of bonus, Appellant Management refused work to the Respondents Workmen with effect from 11.11.1988 which resulted in raising of Industrial Dispute before the Labour Officer on 01.12.1988 requesting for restoration of work. The Labour Officer advised the Appellant Management to restore the Respondents Workmen to duty. But in the mean time, on 07.12.1988, the Management suspended the Respondents Workmen and issued show cause notice by https://hcservices.ecourts.gov.in/hcservices/ levelling some charges and enquiry was fixed on 28.04.1989. According to Respondents Workmen, no enquiry was held on that date and again the date was fixed on 04.05.1989. Even on that date, no enquiry was held and it was adjourned. Case of Respondents Workmen is that there was no notice with regard to the enquiry. In the mean time, the Appellant Management sent an intimation on 11.10.1989 to the Respondents Workmen that their services were terminated by discharge simpliciter, that too, with retrospective effect from 11.11.1988. Thereafter, Respondents Workmen approached Conciliation Officer for mediation. Since conciliation failed, Respondents Workmen have filed Claim Petitions before the Labour Court. 3. In the Labour Court, Appellant Management appeared and contested the claim contending that the Respondents Workmen were on strike from 11.11.1988 and on 07.12.1988, the workmen entered into the premises and created indiscipline disorder and notice was issued to them on 07.12.1988 stating that they should not enter into the premises of Appellant company. Further case of Appellant Management is that inspite of such notice, Respondents Workmen stayed inside the premises of the factory without doing any work and it is only after the intervention of the Police, Respondents Workmen left the premises of the factory. Further case of Management is that after issuing show cause notice, enquiry was initiated, but the enquiry could not be completed because of the lack of co-operation by the striking workers. According to the Appellant Management, because of the strike considerable loss has been caused to the Appellant company and they lost valuable Export orders. Case of Management is that taking all these factors into consideration, it was decided to terminate the services of the Respondents Workmen by order dated 11.10.1989 and the Respondents Workmen were paid a month's wages in lieu of notice and also compensation in accordance with law and therefore the discharge simpliciter is justified. 4. In the Labour Court, onbehalf of Respondents Workmen one Rangasamy was examined as WW1 and Exs.W1 to W13 were marked. Onbehalf of the Management one of the partner by name Balasubramaniam was examined as MW1 and Exs.M1 to M21 were marked as Management documents. Upon consideration of evidence, Labour Court dismissed the Claim Petitions holding that the orders of discharge simpliciter were justified on the ground that due to their illegal strike, the Appellant Management has lost about Rs.45,00,000/-. Labour Court further directed the Appellant Management to make payment of their due entitlement in lieu of termination and also directed the Management to make payment of Rs.5000/- each to the workers who have put in more than five years of service and Rs.2500/- each for the workmen who have put out in less than five years of service. 5. Challenging the order of the Labour Court, Respondents Workmen filed the Writ Petitions contending that the term 'discharge simpliciter' is misnomer and Labour Court failed to see that it was a https://hcservices.ecourts.gov.in/hcservices/ case of dismissal for misconduct even as per the showing of the Management. The Appellant Management entered appearance in the Writ Petitions and contested the Writ Petitions. 6. By the common order dated 28.07.2000, the learned single Judge held that the surrounding circumstances do not indicate that the workmen have abstained from work from 11.11.1988 and only on service of suspension order dated 07.12.1988 to workmen persisted by sending letters to the Management for subsistence allowance and till then the workmen were trying their best to resume work by approaching both Labour Officer and Management. Learned single Judge further held that without any material, Labour Court arrived at a wrong conclusion that there was a strike. Learned single Judge also observed that when there was accusation that from 11.11.1988, the workmen did not attend the work and that they have misconducted themselves on 07.12.1988, Labour Court should have gone into that aspect in order to find out whether actually the workmen voluntarily abstained from work from 11.11.1988 and acted unlawfully on 07.12.1988 infront of the factory premises. Observing that there was no proper exercise of the discretion vested in the Labour Court under Sec.11-A of the I.D.Act, the learned single Judge quashed the order of Labour Court and allowed the Writ Petitions directing reinstatement with back wages. The order of learned single Judge directing reinstatement with back wages is challenged in these Writ Appeals. 7. Onbehalf of the Appellant Management Mr.R.Gandhi, learned Senior Counsel contended that the workmen were non-cooperative and struck work and left with no other option, terminated the services simpliciter. It was further argued that the Labour Court has gone into the evidence and analysed the matter and while so, the learned single Judge was not right in substituting its own views. It was further argued that there was a loss to the Mill to the tune of Rs.45,00,000/- which is based upon the evidence. While so, the learned single Judge was not right in saying that the loss was not a relevant issue. Learned Senior Counsel for Appellant Management would further submit that unless the Labour Court ignored material evidence or its finding based upon no evidence, the High Court can interfere with the factual findings recorded by the Labour Court. 8. Drawing our attention to the order of the learned single Judge, Mr.Ajoy Khose, learned counsel for Respondents workmen submitted that there is perversity in the order of the Labour Court and while so, the learned single Judge rightly interfered with the order. It was further argued that termination order dated 11.10.1989 even though termed as 'termination simpliciter', it was actually punitive. It was further argued that the only person examined before the Labour Court is MW1 and no other witness was examined and no vital documents were marked on the side of the Appellant Management https://hcservices.ecourts.gov.in/hcservices/ and while so, the Labour Court erred in accepting the plea of Management that it was only 'termination simpliciter'. 9. The 2nd Respondent/Labour Court found that termination simpliciter is not wrongful and is bonafide and justified and not a measure of unfair labour practice. Whether the award of Labour Court suffers from perversity justifying interference by the High Court is the point falling for consideration in these Batch of Writ Appeals. 10. Before dealing with the contentions canvassed, we may remind ourselves the well settled principles. Tribunal/Labour Court's wide power to make appropriate award is not ordinarily open to interference by the High Court. In (1998) 9 SCC 220 [UPSRTC and other v. Har Narain Singh and others], the Supreme Court held that exercising jurisdiction under Article 226 of Constitution of India, the High Court is not sitting in appeal over the findings of disciplinary authority/Labour Court. Considering the scope of interference under Article 227 of Constitution, in (1984) 3 SCC 5 [Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhavan Limited and another], the Supreme Court held as under:- "4. Under Section 11-A of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well-accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. ......" 11. In (2006) 13 SCC 32 [State of Haryana and others v. Devi Dutt and others], the Supreme Court laid down the legal principles/circumstances under which the High Court can interfere with the findings of fact as under:- "8. The High Court ordinarily should not have interfered with the said finding of fact. We, although, do not mean to suggest that the findings of fact cannot be interfered with by the superior courts in exercise of their jurisdiction under Article 226 of the Constitution of India, but the same should be done upon application of the well-known legal principles such as (1) when it is https://hcservices.ecourts.gov.in/hcservices/ perverse; (2) when wrong legal principles have been applied; (3) when wrong questions were posed; (4) when relevant facts have not been taken into consideration; or (5) the findings have been arrived at on the basis of the irrelevant facts or on extraneous consideration." 12. Contending that the High Court cannot interfere with the findings of Labour Court, the learned Senior Counsel placed reliance upon (2006) 6 SCCC 325 [Amrrit Vanaspati Company Limited v. Khem Chand and another] wherein the Supreme Court held as under:- "9. ..... In our opinion, the High Court while exercising powers under writ jurisdiction cannot deal with aspects like whether the quantum of punishment meted out by the management to a workman for a particular misconduct is sufficient or not. This apart, the High Court while exercising powers under the writ jurisdiction cannot interfere with the factual findings of the Labour Court which are based on appreciation of facts adduced before it by leading evidence. In our opinion, the High Court has gravely erred in holding that the evidence of Respondent 1 was not considered by the Labour Court and had returned the finding that the evidence of Respondent 1 did not inspire any confidence. We are of the opinion that the High Court is not right in interfering with the well-considered order passed by the Labour Court confirming the order of dismissal." 13. It is fairly well settled that scope of interference by the High Court is limited. But if the order of Labour Court is vitiated by fundamental flaws, absence of legal evidence, perverse, misreading of facts, serious errors of law on the order, jurisdictional failure and the like, the High Court can certainly interfere. 14. Ofcourse, the High Court is not entitled to act as an Appellate Court. But nevertheless, such finding also may be amenable to judicial review if the Tribunal had (i) erroneously refused to admit admissible and material evidence, or (ii) erroneously admitted inadmissible evidence which has influenced the impugned finding, or (iii) if the finding of fact is based on 'no evidence'; that would be regarded as an error of law which can be corrected by a writ of certiorari. The Writ Court does not function as an Appellate Authority and cannot set aside or quash the finding of fact on the basis of assessment of evidence, unless it is a case of 'no evidence'. It cannot go into the question of sufficiency or credibility of evidence. The questions of adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from such evidence are within the exclusive jurisdiction of the tribunal. In other words, a finding of fact may be interfered with by a reviewing court where it is either based on 'no evidence' or it is of https://hcservices.ecourts.gov.in/hcservices/ such a nature as no reasonable person could have arrived at on the basis of the material before it. But 'no evidence' does not necessarily mean a complete absence of evidence. The question is whether the evidence, taken as a whole, is reasonably capable of supporting the finding. In other words, the test for determining the question whether there is 'no evidence' at all or the evidence is 'sufficient or adequate' is to see whether the evidence on record as a whole is 'reasonably capable of supporting the conclusion'. Exercising jurisdiction under Article 227 of Constitution whenever the finding is based on 'no evidence' or 'findings suffered from infirmity', the High Court certainly interfere. 15. Bearing the above principles in mind, we have considered the order of the learned single Judge and the rival submissions made on either side. The learned single Judge has chronologically referred to the facts and events and it is not necessary for us to elaborate the facts in detail. The workers in the Appellant Company affiliated to several political parties. Respondents/Workmen are the members of Banian Pothu Thozhilalar Sangam affiliated to CITU. On 25.1.1988, all the workmen belong to various Unions agitated against the Appellant Management demanding for making 15 temporary workmen as permanent workmen. Ultimately, after conciliation, all the workmen were resumed work from 05.4.1988 and Deepavali bonus was distributed on 11.11.1988. Since the exact amount fixed for bonus was not disbursed to the Respondents/Workmen, they refused to receive the said sum, which resulted the Appellant Management refused to give work to the Respondents Workmen. Consequently, the Respondents Workmen raised an industrial dispute before the Labour Court on 01.12.1988 requesting for a direction for restoration of the duty. In respect of industrial disputes before the Labour Officer, conciliation notice was sent on 02.12.1988 calling upon the Management to appear for enquiry on 06.12.1988. The representative of Appellant Management appeared for enquiry and took adjournment and the conciliation proceedings was adjourned to 09.02.1988. 16. When the conciliation proceedings was pending so before the Labour Officer, on 07.12.1988 Appellant Management issued a charge memo to the workmen with reference to the alleged misconduct in the factory premises on 07.12.1988 alleging misconduct of trespass into the premises and prevent the entry of the vehicles into the premises and also attempted to obstruct the other workers. In the said charge memo, Appellant Management directed the workmen not to come to the factory to attend the work till the enquiry for the above said charge was over. On 07.12.1988, Appellant Management also passed an order suspending the services of the workmen. In view of the stand taken by the Management levelling charge against the workmen pending enquiry, Labour Officer closed his file. After show cause notice, Appellant Management terminated the services of the workmen on 11.10.1989 by terming it as 'discharge simpliciter'. https://hcservices.ecourts.gov.in/hcservices/ 17. Learned Senior Counsel for Appellant Management submitted that the workmen were not permanent employees and were only piece rate workers and that when there was no work in the Appellant factory, they will be working in other industries on their own and engaged in other work. Contention of the Appellant Management is that the workmen never worked continuously for 240 days in a year. The above contention does not merit acceptance. In the Award, the Labour Court has clearly recorded the finding of fact that Respondents Workmen are permanent workmen and all of them who are working in the Appellant Company for more than 9 years and some of them for 4 – 5 years. In its order the Labour Court has recorded clear finding that all the workmen excepting one Thangamani, Moorthy and Revathi were paid Rs.192/- per week. Thangamani and Moorthy were paid Rs.144/- per week and Revathi was paid Rs.96/- per week. Labour Court has also pointed out that apart from regular weekly wages, for cutting, ironing and packing, the Respondents Workmen were also paid on piece rate basis and the workmen were getting about Rs.100/- to Rs.150/- as incentive for the work done by them on piece rate. Having regard to the findings of fact by Labour Court, in our considered view that there is no substance in the contention of the Appellant Management that the Respondents Workmen were not permanent employees. 18. The Managing Partner of Appellant company was examined as MW1. Previously there was a strike from 25.01.1988 to 05.4.1988 demanding permanent status of about 15 workmen and thereafter the workmen resumed work. In his evidence, MW1 has stated that because of the illegal strike, Appellant Company suffered loss to the tune of Rs.45,00,000/- and that the export orders were cancelled. In his evidence, one of the workman Rangasamy who was examined as WW1 has stated that since the period from 25.1.1988 to 05.4.1988 was not included for calculating the bonus, they insisted for taking that period to be taken into account for calculating the bonus. In his evidence, WW1 has further stated that they refused to receive the bonus and stated that they would receive bonus after the talks and that MW1 insisted to receive the bonus. In his evidence, WW1 has further stated that the Management insisted them to receive the bonus and if they do not receive the bonus asking them to go out of the premises and it was only thereafter, they made an application before the Labour Officer for conciliation for resumption of work. 19. Per contra, in his evidence MW1 has stated that after talks with various Unions, the bonus amount was disbursed and the same was received by all the workers. But only the Respondents Workmen refused to receive the bonus amount, since the amount for the strike period was deducted. MW1 has further stated that the workmen refused to receive the bonus amount and struck the work and without getting bonus amount, Respondents Workmen left to the factory on 11.11.1988 and subsequently they never resumed work. MW1 has further stated that on 07.12.1988, Respondents Workmen trespassed into the factory https://hcservices.ecourts.gov.in/hcservices/ premises and created the situation causing breach of peace and preventing entry of vehicles carrying the stocks into the factory premises. Management brought the police for intervention and only after intervention of the police, the illegal activities of the workmen were thwarted. 20. In his evidence, MW1 has stated that because of the illegal strike, Appellant company could not meet out their export commitment in time and thereby the export orders were cancelled which resulted in not only incurring loss to the tune of Rs.45,00,000/- and reputation of the Appellant also eroded in the export market. Labour Court found that non-employment or termination through 'discharge simpliciter' is justified on the ground that there was illegal strike by the employees due to which there was loss to the tune of Rs.45,00,000/-. As pointed out by the learned single Judge, the finding of Labour Court that termination is justified since there was loss to the tune of Rs.45,00,000/- due to illegal strike is wrong. As pointed out by the learned single Judge, strike by the workers was for the period from 25.1.1988 to 05.4.1988. Strike during that period was not at all the subject matter of this proceeding, since the subject matter relates to the occurrence on 11.11.1988 and the alleged misconduct on 07.12.1988. It is not the case of the Appellant Management that any loss was caused to the Management after 11.11.1988. The Labour Court has taken into account the extraneous matter which was not connected to the termination to justify the dismissal of the Respondents Workmen. In our considered view, the learned single Judge was right in holding that it was an error committed by the Labour Court as it was not the subject matter of termination. 21. In any event, the strike between 25.01.1988 and 05.04.1988 the entire Workmen in the factory who are said to have participated and all the Workmen including the Respondents were allowed to resume work after 05.04.1988 pursuant to a compromise between the Unions and the Management. When no action was taken against the other Workmen either for going on strike during the above period or for