Madras High Court
The Management vs The Presiding Officer on 5 February, 2021
W.P.(MD)Nos.5862 of 2010,etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.02.2021
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P(MD)Nos.5862, 6089, 6119, 15015 and 15016 of 2010
and 374 of 2011
and
M.P(MD)Nos.1,2 and 2 of 2020 and 1, 1 and1 of 2012
W.P(MD)Nos.5862, 6089 and 6119 of 2010
The Management ... Petitioner in W.P(MD)Nos.
5862, 6089 and 6119 of 2010
Vs.
1.The Presiding Officer,
Labour Court,
Madurai.
2.G.Manoharan ... 2nd Respondent in W.P(MD)No.5862 of
2.M.Mohan ... 2nd Respondent in W.P(MD)No.6089 of
2.A.Muthanan ... 2nd Respondent in W.P(MD)No.6119 of
Prayer in W.P(MD)Nos.5862, 6089 and 6119 of 2010: Writ Petitions
are filed under Article 226 of the Constitution of India, for issuance of a
writ of certiorari to call for the records in relating to the award passed by
the 1st respondent in I.D.Nos.84 of 1995, 41 of 2002 and 72 of 1995
dated 29.04.2009 and to quash the same.
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W.P.(MD)Nos.5862 of 2010,etc., batch
For Petitioner : Mr.P.Chandrabose
Respondent No.1 : Labour Court
For Respondent : Mr.S.Arunachalam
No.2
in W.P(MD)Nos.5862, 6089 and 6119 of 2010
W.P(MD)Nos.15015 and 15016 of 2010 and 374 of 2011
G.Manoharan ... Petitioner in
W.P(MD)No.15015of 2010
M.Mohan ... Petitioner in
W.P(MD)No.15016 of 2010
A.Muthanan ... Petitioner in
W.P(MD)No.374 of 2011
Vs.
1.The Presiding Officer,
Labour Court, Madurai.
2.The Management,
Madurai Sugars,
Pandiaraja Puram,
Vadipatty Taluk,
Madurai District,
represented through its
Chief Executive ... Respondents 1 and 2 in
W.P(MD)Nos.15015 and 15016 of 2010
and 374 of 2011
3.Tamil Nadu Sugar Corporation
690, Anna Salai,
Chennai through its Chairman
... Respondent 3 in
W.P(MD)Nos.15016 of 2010
and 374 of 2011
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W.P.(MD)Nos.5862 of 2010,etc., batch
Prayer in W.P(MD)Nos.15015 and 374 of 2011: Writ Petitions are filed
under Article 226 of the Constitution of India, for issuance of a writ of
certiorarified mandamus calling for the records relating to the award of
the Labour Court, Madurai in I.D.Nos.84 of 1995 and 72 of 1995 dated
29.04.2009 respectively and quash the same insofar as it relates to denial
of back wages to the petitioners are concerned consequently, directing
the 2nd and 3rd respondents management to pay full back wages to the
petitioners.
Prayer In W.P(MD)No.15016 of 2010: Writ Petition is filed under
Article 226 of the Constitution of India, for issuance of a writ of
certiorarified mandamus, calling for the records relating to the impugned
award of the 1st respondent Labour Court, Madurai in I.D.No.41 of 2002
dated 29.04.2009, quash the same insofar as not directing the 2nd and 3rd
respondents to treat the petitioner to have attained permanent status from
01.04.1989 and to pay him back wages by notionally reinstating him with
continuity of service and all attendant benefits and consequently, direct
the 2nd and 3rd respondents to treat him to have attained permanent status
with effect from 01.04.1989 as per the settlement dated 11.05.1985 and
to pay him back wages for the period from 15.12.1984 to the date of
closure of the 2nd respondent Mills by notionally reinstating him in
service with continuity of service with attendant benefits, apart from
paying other benefits such as compensation, etc., as given to other
workers on roll at the time of closure of the 2nd respondent Mill.
[Prayer amended vide order dated 05.02.2021
in W.M.P(MD)No.429 of 2021]
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W.P.(MD)Nos.5862 of 2010,etc., batch
For Petitioner : Mr.S.Arunachalam
For Respondent : Labour Court
No.1
Respondent : Mr.P.Chandrabose
No.2
in W.P(MD)Nos.15015 and 15016 of 2010
and 374 of 2011
COMMON ORDER
The petitioner in W.P(MD)Nos.5862, 6089 and 6119 of 2010
is the Chief Executive of Madura Sugars, Pandiarajapuram, Vadipatty
Taluk, Madurai District, hereinafter will be referred to as 'the
Management' and the petitioner in W.P(MD)Nos.15015 and 15016 of
2010 and 374 of 2011 is the worker of the said Management, hereinafter
will be referred to as 'the Employees/ the Employee'.
2.Since all these writ petitions are interconnected and are
arising out of the Industrial Dispute raised by the Employees in I.D.Nos.
84 of 1995, 41 of 2002 and 72 of 1995 dated 29.04.2009 before the
Labour Court, Madurai, these writ petitions are heard together and
disposed of by way of this common order.
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W.P.(MD)Nos.5862 of 2010,etc., batch
3.The Management challenges the award of the Labour Court
passed in favour of the Employees, directing the Management to pay the
compensation, gratuity and other monetary benefits, as provided to other
employees, by treating the Employees as the Employees of the
Management till the closure of the Sugar Mill. The Employees challenge
the award of the Labour Court for not awarding backwages.
4.The case of the Management in brief is as follows:
(i) The Management owned Madura Sugar Mills at
Pandiarajapuram, Madurai District. From the year 1991 the Sugar Mill
incurred heavy loss and was not in a position to run the Mill in full
capacity, which resulted in further loss to the Management. However,
during the year 2002-2003, the Mill stopped its functioning and it
announced temporary closure. While being so, the Government of Tamil
Nadu vide G.O.(Ms)No.99, Industrial Department Dated, 27.11.2004
permitted the Management to implement Voluntary Retirement Scheme
[VRS] and all the workers, who were working in the Mill at the relevant
point of time had opted for Voluntary Retirement Scheme and as such,
they all where relieved from service with effect from 28.02.2005 and
subsequently, the said Mill was closed permanently.
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W.P.(MD)Nos.5862 of 2010,etc., batch
(ii) The Employee [petitioner in W.P(MD)No.15015 of 2010]
herein worked as a Cane Assistant in the Cane Department, in the Mill
when it was functioning and his duties and responsibilities were to
approach the sugarcane growers and get supply of 60 tones of sugarcanes
daily during cane crushing season. But he was able to get the supply of
only 170 tones of sugarcane against his target of 360 tones. He received a
sum of Rs.10,000/- from the sugarcane growers, for reaping the
sugarcane and misappropriated the same for his personal use. From
02.01.1992 till 21.06.1993, the Employee was continuously absent for
duty on various days. Further, he did not participate in the meetings of
the Sugarcane Officer held on 09.01.1993 and 11.01.1993, despite
direction issued to him. Therefore, for the above misconduct and
misappropriation of money, the Employee was issued with a charge
memo, dated 21.06.1993 and his explanation was received by the
Management on 16.07.1993. Since the explanation offered by the
Employee was unsatisfactory, initially he was terminated from service
and subsequently, he was reinstated into service and placed under
suspension on 28.07.1993. Further domestic enquiry was also ordered
and in the domestic enquiry it was found the charges levelled against the
Employee were proved. Subsequently, the Employee was issued with a
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W.P.(MD)Nos.5862 of 2010,etc., batch
show cause notice, for which the Employee also submitted his
explanation and as the explanation was not satisfactory the same was
rejected. Further it was concluded that the charges framed against the
Employee were proved and based on the enquiry report, the Employee
was dismissed from service on 13.07.1988. His past service records also
revealed that he was imposed with a punishment of one year increment
cut for his earlier misconduct.
(iii) The Employee [petitioner in W.P(MD)No.15016 of 2010]
was engaged by the Management as NMR Employee and he was engaged
only during the crushing season and he is not entitled for any retaining
allowance or the lay off compensation during off season or lay off
period. This Employee was subsequently engaged for welding works by
the Management. While so, the Management recruited Welders by
conducting interview, though this Employee applied and took part in the
interview, he was not selected. On 15.12.1994, the NMR employees were
called for to work by the Management, but this Employee has not
attended the duty. His service was not at all regularised and he is not a
permanent employee of the management. But after a period of eight years
he has raised a dispute before the Labour Court, as if the Management
dismissed him from his employment.
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W.P.(MD)Nos.5862 of 2010,etc., batch
(iv) The Employee [petitioner in W.P(MD)No.374 of 2010]
was engaged by the management as Cane Yard Mazdoor. On 21.03.1994,
during the work, the Shift Engineer, directed this Employee to place the
canes in the cane carrier, but this Employee refused to obey his superior's
order and left the Mill without permission and did not turn up to duty.
Hence on 28.03.1994 this employee was issued with a memo. However,
he did not turn up to duty, but submitted his explanation on 23.06.1994.
Since the explanation offered by the Employee was unsatisfactory,
domestic enquiry was also ordered and in the domestic enquiry it was
found the charges levelled against the Employee were proved.
Subsequently, the Employee was issued with a show cause notice, for
which the Employee also submitted his explanation and as the
explanation was not satisfactory the same was rejected. Further it was
concluded that the charges framed against the Employee were proved and
based on the enquiry report, the Employee was dismissed from service on
07.12.1994. His past service records also revealed that he was imposed
with a punishment of one year increment cut for his earlier misconduct.
5.As against the order of dismissal from service, the Employees
raised Industrial Disputes in I.D.Nos.84 of 1995, 41 of 2002 and 72 of
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W.P.(MD)Nos.5862 of 2010,etc., batch
1995 dated 29.04.2009 respectively before the Labour Court, Madurai
and the dispute was tried independently and oral and documentary
evidence were placed by the Management as well as the Employees.
6.After analysing oral and documentary evidence, the Labour
Court held that the charges levelled against the Employees were not
proved and therefore, the Labour Court passed an award directing the
Management to pay the compensation, gratuity and other monetary
benefits, as provided to other employees, by treating the Employees as
the Employees of the Management till the closure of the Sugar Mill.
As against the award of the Labour Court, the Management and the
Employees have filed these writ petitions as stated in paragraph No.3.
7.The learned Counsel appearing for the Management would
submit that though the Employer raised an Industrial Dispute before the
Labour Court, the preliminary issue whether such a dispute is
maintainable or not, was not at all decided and without deciding the
preliminary issue passing award in favour of the Employees is
unsustainable. Based on the proven charges, the Employees were
dismissed from service. The Management, before the Labour Court had
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W.P.(MD)Nos.5862 of 2010,etc., batch
established that the charges levelled against the Employees were proved,
by producing exhibits and therefore, the dismissal of the Employees from
service was just and sustainable in the eye of law. However, the Labour
Court failed to consider the whether there is any infirmity or illegality in
dismissing the Employees from service and without considering the oral
and documentary evidence placed on the side of the Management before
the Labour Court, it had passed award in favour of the Employees, which
needs interference of this Court.Therefore, the learned Counsel prayed
for allowing the writ petitions filed by the Management.
8.The learned Counsel appearing for the Employees would
contend that the Labour Court, after examining the oral and documentary
evidence held that the Management was not at all able to establish the
charges levelled against the Employees by producing evidence. Further
the Labour Court held that only because of the conduct of the Employees
the Mill incurred heavy loss leading to permanent closure of the Mill.
Though the Management and Employees were not examined with regard
to the gainful employment of the Employees, there is discretion to the
Labour Court to decide the same. However, the Labour Court failed to
award any back wages to the Employees. The learned Counsel appearing
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W.P.(MD)Nos.5862 of 2010,etc., batch
for the Employees further submitted that the Employees had not involved
in any gainful employment in the interregnum period and the
management did not establish that the Employees were gainfully
employed and in the absence of any evidence to prove that the
Employees were gainfully employed, denying back wages to the
Employees is not sustainable in the eye of law and therefore, the learned
Counsel prayed for allowing the writ petitions filed by the Employees
and thereby ordering for back wages.
9.Heard the learned Counsel on either side and carefully
perused the materials placed on record.
10.Before this Court ventures into the merits of the contention
raised on either side, it would be first necessary to bear in mind the scope
and jurisdiction of this Court under Article 226 of the Constitution of
India, while examining the correctness of the award of the Labour Court.
The Hon'ble Supreme Court in a catena of decisions has held that
normally a Writ Court should not interfere with the award of the Labour
Court, unless the award is perverse. It has been further held that if the
award is not irrational or perverse, the High Court should not interfere
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W.P.(MD)Nos.5862 of 2010,etc., batch
with the reasons in the award. Further, it has been held that this Court
should not re-appreciate the evidence placed before the Labour Court and
substitute its own conclusions, merely because this Court is of the
opinion that a different conclusion could have been arrived at on the
available evidence. Bearing this legal principle in mind, this Court
proceeds to examine the correctness of the impugned award. First, it has
to be seen, whether the Management was able to exactly establish the
alleged misdeed by Employees and whether there was evidence to show
that the Employees concerned are responsible for the loss caused to the
Management.
11.Admittedly, the Employees were working under the
Management in various categories and were issued with a charge memo
for their misconduct and misappropriation and subsequently, were
dismissed from service based on the proven minutes in the domestic
enquiry. The main contention of the management is that the Employees
are the cause for the heavy loss incurred by the Management, because of
their misconduct and non performance and the said loss lead to
permanent closure of the Mill.
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W.P.(MD)Nos.5862 of 2010,etc., batch
12.This leads us to a question as to whether the Labour Court
would be justified in exercising its discretion under Section 11-A of the
Industrial Disputes Act, 1947 to modify the punishment of dismissal
imposed by the Management. While considering the scope of judicial
review in respect of a punishment imposed by the disciplinary authority,
it has been now well settled by the judgment of the Supreme Court in
Government of India and another V. George Philip, AIR 2007 SC, 705,
where the Hon'ble Supreme Court, in paragraph No.9 of the Judgment,
has held as follows:
“9.It is trite that the Tribunal or the High Court
exercising jurisdiction under Article 226 of the
Constitution are not hearing an appeal against the decision
of the disciplinary authority imposing punishment upon the
delinquent employee. The jurisdiction exercised by the
Tribunal or the High Court is a limited one and while
exercising the power of judicial review, they cannot set
aside the punishment altogether or impose some other
penalty unless they find that here has been a substantial
non-compliance of the rules of procedure or a gross
violation of rules of natural justice, which has caused
prejudice to the employee and has resulted in miscarriage
of justice or the punishment is shockingly disproportionate
to the gravamen of the charges.”
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W.P.(MD)Nos.5862 of 2010,etc., batch
13.In fact in the above judgment, the Hon'ble Supreme Court
had quoted with approval the following judgments in B.C.Chaturvedi Vs
Union of India, (1995) 6 SCC 749, Om Kumar Vs Union of India (2001)
2 SCC 386 and Damoh Panna Sagar Rural Regional Bank and another Vs
Munna Lal, (2005) 10 SCC 84.
14.The Labour Court has elaborately considered and discussed
the issue and held that there were other workers, whose performance
were also not upto the mark and therefore, it cannot be said that these
Employees alone are the reason for the loss caused to the Management
and the reasons assigned by the management were not accepted by the
Labour Court in this regard and further held that the charges levelled
against the employees were not proved and therefore, passed the award in
favour of the Employees to pay them the benefits by treating them as
employees of the management till the closure of the Mill. Therefore, this
Court does not find any infirmity or illegality in the award passed by the
Labour Court.
15.The main contention of the Employees is that the employees
have not gainfully employed during the suspension and the Management
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W.P.(MD)Nos.5862 of 2010,etc., batch
has also failed to establish that the Employees were in gainful
employment. It is for the Employees to prove that they were not in
gainful employment in the interregnum period, but they have failed to
prove the same.
16.Therefore, this Court is of the view that in the absence of
any evidence placed by the Management, before the Labour Court to
show that this Employees alone are responsible for the loss caused to the
Management, leading to permanent closure of the Mill, the award to pay
the compensation, gratuity and other monetary benefits, as provided to
other employees, by treating the Employees as the Employees of the
Management till the closure of the Sugar Mill by the Labour Court
cannot be interfered with and in the absence of the Employees proving by
letting in evidence that they had not involved in any gainful employment
during the interregnum period, the issue cannot be decided by this Court
under Article 226 of the Constitution of India and therefore, the non
awarding of back wages by the Labour Court also cannot be interfered
with.
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W.P.(MD)Nos.5862 of 2010,etc., batch
17.In the light of the above discussion, I am not inclined to
interfere with the order of the Labour Court, Madurai passed in
I.D.Nos.84 of 1995, 41 of 2002 and 72 of 1995 dated 29.04.2009 and
therefore, all these writ petitions are dismissed. However, the Employee
[petitioner in W.P(MD)No.15016 of 2010] is permitted to file documents
before the management claiming permanent status and the permanent
status aspect shall be considered by the Management as claimed by the
said Employee and the benefits as awarded by the Labour Court shall be
paid. No costs. Consequently, connected miscellaneous petitions are also
dismissed.
05.02.2021
Index : Yes / No
dsk
To:-
1.The Presiding Officer,
Labour Court,
Madurai.
2.The Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd,
Karaikudi Region,
Karaikudi.
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W.P.(MD)Nos.5862 of 2010,etc., batch
M.DHANDAPANI,J.
dsk
W.P(MD)Nos.5862, 6089, 6119, 15015
and 15016 of 2010
and 374 of 2011
05.02.2021
http://www.judis.nic.in
