Madras High Court
D.Sagayadoss vs The Management on 8 March, 2022
Writ Appeal No.483 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08.03.2022
Coram:
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
and
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Writ Appeal No.483 of 2022
D.Sagayadoss .. Appellant
Versus
1.The Management,
Toshniwal Instruments (Madras) Private Ltd.,
P-16, Ambattur Industrial Esatate,
Chennai – 600 058.
2.The Presiding Officer,
Principal Labour Court,
Chennai. .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 23.03.2020 passed by the learned Single Judge in
W.P.No.13113 of 2004 on the file of this Court, by setting aside the award
of Re-instatement of the Appellant with continuity of services, backwages
and all attendant benefits by the second respondent/Principal Labour Court.
For appellant : Mr.A. Amalraj
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D.BHARTHA CHAKRAVARTHY, J.
On 17.04.1997, the appellant/workman, namely, D.Sagayadoss, raised
an industrial dispute before the Assistant Commissioner of the Labour
(Conciliation -2), Chennai – 108 complaining non-employment by the first
respondent/Management. After conducting conciliation proceedings, a
failure report dated 03.09.1997 in proceedings bearing M.M.No.609 of 1997
was rendered by the Assistant Commissioner (Conciliation – 2). Thereafter,
on 17.11.1997 the appellant filed a claim petition under Section 2(A) (2) of
the Industrial Dispute Act, 1947, to declare that his non-employment is
unjustified and to reinstate him with back-wages and all other benefits. The
same was taken on file as I.D.No.706 of 1997 by the Principal Labour
Court, Chennai.
2.The case of the appellant before the Labour Court was that he
joined the service of the first respondent/Management in the production
division with effect from 01.01.1978. Since the appellant continued to be a
member of a Trade Union which was de-recognized by the respondent,
malafide action was taken against him by laying him off between
07.04.1995 to 11.04.1995 and 07.08.1995 to 05.09.1995, without even
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payment of lay off compensation. Thereafter from 08.08.1996, the appellant
was laid off without even mentioning the period of lay off. Therefore, the
appellant raised an industrial dispute under Section 2 (K) of the Industrial
Disputes Act, 1947. Without any amicable settlement, the respondent/
Management simply denied employment to the appellant. Therefore, he had
raised the present industrial dispute and in the Conciliation proceedings, he
was offered promotion to the post of Supervisor, which he had lawfully
refused to join. It is the right of the workman to refuse promotion and non-
employment in the original post only because he refused promotion would
amount to retrenchment as per Section 2(oo) of the Industrial Dispute Act.
The said retrenchment is violative of Section 25-F as no compensation is
paid and hence non-employment is unjustified and therefore, the claim to
reinstate with back-wages.
3.The first respondent/management resisted the claim of the workman
by filing a counter statement. It is engaged in the production of vacuum
pumps. The appellant was working as an assistant in service department.
Finding it difficult and uneconomical to attend to service complaints, it had
outsourced servicing to local area dealers which resulted in closure of the
entire service department and as a matter of fact, the Juniors of the appellant
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were retrenched from service. As far as the appellant is concerned, though
situation warranted retrenchment, he was laid off and without complying the
condition of laying off, the appellant raised industrial dispute under Section
2(K), which was contested by the first respondent/Management on the
ground that it is not maintainable and accordingly the said dispute was
closed. Thus, thereafter, without reporting for employment or without
accepting an alternate posting instead of lay off that too of higher post of the
supervisor with higher emoluments, the appellant raised an industrial
dispute by simply abstaining from his work. The appellant was neither
retrenched nor terminated, therefore, the provision under Section 2(oo) or
25 (F) are not attracted.
4.On the basis of the said pleadings, the workman examined himself
as W.W.1 and Exs.W.1 to W.23 were marked. On behalf of the first
respondent/Management one, V. Sethuraman, working as Accounts Officer
was examined as M.W.1 and Exs. M.1 to M.13 were marked.
5.The Labour Court in its Award dated 24.11.2003, extracts the
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pleadings of the parties in Paragraphs Nos.1 to 3 of the Award. It framed the
point for consideration in Paragraph No.4. It again extracted the oral and
documentary evidence in Paragraphs 6 to 10. In Paragraphs Nos.11 and 12,
Section 2(A) (2) and 25 (F) of the Industrial Disputes Act are extracted. In
Paragraph No.13 it is found that the respondent/ Management did not
produce any document to show that the appellant is the Junior most. After
extracting the answers of M.W.1 in cross-examination in Paragraph No.14,
the Labour Court found in Paragraph No.15 that from the admissions in
cross-examination of M.W.1, the respondent/Management retrenched the
appellant due to some motive and therefore, passed an award holding that
the non-employment of the appellant is unjustified and ordered
reinstatement with continuity of service, back-wages and all other attendant
benefits.
6.The respondent/Management challenged the award by filing
W.P.No.13113 of 2004 and by Judgment dated 23.03.2020, the learned
Judge, considering the Award of the Labour Court, which is based only on
the solitary finding on the evidence of M.W.1, found that the conclusion by
the Labour Court that the answers given by M.W.1 in the cross-
examination, would amount to admission of retrenchment is perverse. It is
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also found that the management all along having been offering the post of
supervisor both prior to raising of the dispute and also in the Conciliation
proceedings, which offer was consistently and unreasonably spurned by the
workman. The learned Judge had also reasoned that back-wages is not a
matter of right and when the management was consistently offering
employment and the workman failed to avail the opportunity, he is not
entitled to back-wages. The learned Judge further found that when lay off
was not properly questioned by the workman and thereafter when he has
also refused to take up the offer of work, the same should be construed as
abandonment of service and therefore held that the workman is not entitled
to reinstatement with backwages and set aside the Award. Aggrieved by the
same, the present Writ Appeal is filed before this Court.
7.Heard Mr.A.Amalraj, learned counsel appearing on behalf of the
appellant and perused the entire materials on record. The contention of the
learned counsel for the appellant is that when the appellant all along worked
only as 'Service Assistant', the Management high handedly transferred him
to the production department. Even then, when the appellant was working,
only to deprive him of the benefits under Labour Laws, promoted him to
the post of Supervisor and it was well within the right of the workman to
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refuse promotion. For the mere refusal of promotion, the appellant was
unjustly non-employed. Therefore, the non-employment which is neither by
payment of appropriate compensation by complying the provisions of
Sections 25(F) nor by way of any disciplinary or other proceedings, cannot
be justified and the Labour Court has rightly passed the Award in favour of
the workman. The learned Judge erred in setting aside the Award and
interfering with the findings of the Labour Court. He would further submit
that even though the appellant/workman is presently aged 64 years,
upholding the Award of the Labour Court would entitle him the benefit of
back-wages as the appellant was sustaining himself and his family by
intermittent and casual work and there was no proof let in by Management
of any alternate employment availed by the appellant.
8.We have given our anxious consideration to the submissions made
on behalf of the appellant. We are unable to agree with the learned counsel
for the appellant for the following reasons:-
a) A careful perusal of the award of the Labour Court would reveal
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that the Labour Court had granted the relief solely based on its conclusion
in Paragraph No.15 that from the admissions of M.W.1 in the cross-
examination it can be concluded that the appellant was retrenched. The
following is the relevant portion of the evidence of M.W.1 in the cross-
examination.
" I do not know as to whether there is Model Standing Order
or proof standing order; that it is correct to state that the
workers have the right to refuse promotion and if it is asked
whether there is a complusory rule to accept promotion,
there is no such rule; the averment that the promotion to the
Supervisor post, as a worker, relief cannot be found out as
per law, is correct and it is correct to state that since he
refused to accept the promotion given by us, we have not
given him the previous job. As he did not accept his previous
job given by us, we have not given any compensation; that
we gave him promotion based on the goodwill; the averment
that the petitioner was ready and willing to do his previous
work, we have not given him work, is not correct"
(emphasis supplied)
Therefore, the plain reading of the answers of M.W.1 clearly demonstrates
that M.W.1 has denied that the workman is willing to do even his previous
work and that the management did not give him that work. Therefore,
finding of the Labour Court, based on which the award was passed, is
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factually incorrect.
b) This apart even considering the documentary evidence on record, it
is clear that promotion was offered to him on 29.06.1996 and he refused it
on the same day. Thereafter, on 07.08.1996, he was laid off with effect from
08.08.1996, citing that there was no work in the service department. The
said lay off was not accepted by the appellant and without complying with
the provisions of Section 2 (K), he raised a defective industrial dispute and
therefore, the same was closed. Thereafter, without raising proper dispute
by including other co-workmen, or reporting for duty either in the previous
post or joining in the alternate employment, the workman raised the present
dispute under Section 2(A)(2) of the Industrial Dispute Act. Therefore, no
exception can be taken for the finding of the learned Judge that there was
neither any termination nor any retrenchment, but the workman abandoned
the work voluntarily. Therefore, the learned Judge has rightly interfered
with the award.
9.Even otherwise the workman is presently aged 64 years and there is
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no question of any reinstatement into service. At the earliest point of time
itself, the management has taken a stand that he continued to be gainfully
employed elsewhere. In the teeth of the said contention, the Labour Court
ordered back-wages without even any finding about the gainful employment
or otherwise of the workman. The learned Judge has relied upon the
Judgment of the Bombay High Court Sonal Garments vs. Trimbak
Shankar Karve, 2003 (1) L.L.N 91 and the Judgment in Suja Agencies Vs.
Uday Sing B.Rawat, 2003 (4) L.L.N 1218 to hold that when there is
tangible evidence to show that the management's positive action in
repeatedly offering employment and the workman, without even taking up
the same even without prejudice to his rights, he cannot be permitted to
claim back-wages. We are in agreement with the said finding of the learned
Judge, especially upon considering the adamant attitude of the workman in
continuously spurning the offer of the alternate employment as Supervisor,
based on his unilateral assumption that he would cease to be a workman
upon accepting the said offer. Therefore, when there is no scope for either
reinstatement or back-wages practically there is no reason for interference
by this Court in the otherwise well reasoned order of the learned Judge in
the Writ Petition filed by the respondent/Management.
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10.Accordingly, finding no merits in the present Writ Appeal, we
dismiss the same, however, there shall be no order as to costs.
(M.N.B., CJ) (D.B.C.J)
08.03.2022
Index : Yes/no
Speaking/ Non-Speaking Order: Yes/no
klt
To
The Presiding Officer,
Principal Labour Court,
Chennai.
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THE HONOURABLE CHIEF JUSTICE
and
D.BHARATHA CHAKRAVARTHY, J
klt
Writ Appeal No.483 of 2022
08.03.2022
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