Madras High Court
The Director vs The Presiding Officer on 30 November, 2022
W.A.No.18 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
W.A.No.18 of 2020
The Director,
BCG Vaccine Laboratory,
Guindy, Chennai. ...Appellant
Vs.
M.Mallikarjuna (Deceased)
1.The Presiding Officer,
Central Government Industrial Tribunal,
Cum- Labour Court, Chennai – 03.
2.M.Sivakami
3.M.Udhaya Kumar
4.M.Bhuvaneswari
5.M.Saranya
6.Ragamma ...Respondents
1/8
https://www.mhc.tn.gov.in/judis
W.A.No.18 of 2020
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act, to
allow this Writ Appeal by setting aside the order dated 21.03.2019 in
W.P.No.27192 of 2004, thereby the order of the 2nd respondent in I.D.No.60
of 2001 dated 10.03.2004.
For Appellant : Mr.N.Ramesh
For Respondents : Mr.V.Ajay Khose for R2, R4 and R5
R1 – Tribunal
R3 and R6 - died
JUDGMENT
(Judgment was made by R.SUBRAMANIAN, J.)
Aggrieved by the direction for payment of all pensionary benefits
to the legal heirs of the employee, the appellant/ employer is before us.
2. The employee one Mallikarjuna (Deceased) moved the Regional
Labour Commissioner under Section 2(A) of the Industrial Disputes Act
challenging his oral termination. He claimed that he was in employment
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W.A.No.18 of 2020
with the 2nd respondent/ appellant herein from 1982 as a Casual Labourer
and he was appointed on a ad hoc basis as a Safaiwala from 31.03.1989.
This appointment was periodically renewed. On 30.11.1990 the employer
paid salary for the month of November and informed him that his services
were no longer required. Claiming that such termination is illegal, the
deceased employee sought to raise Industrial Dispute.
3. Since conciliation failed, the matter was referred to the
Industrial Tribunal. The Industrial Tribunal while rejecting the claim for
regularization, having found that the workman has not proved his claim that
his juniors were regularized, directed reinstatement with 50% back wages
since it found that the provisions of Section 25F of the Industrial Disputes
Act was not complied with by the employer. While the workman accepted
the award, the employer challenged it.
4. From the order of the writ Court we find that the only
contention that was raised before the writ Court was that the employer was
not an Industry and therefore the question of applicability of Section 25F
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W.A.No.18 of 2020
will not arise. We do not find any other point having been urged before the
writ Court.
5. The Writ Court relying upon the judgments of the Hon'ble
Supreme Court in Bangalore Water Supply Vs. Rajappa reported in 1978
(2) SCC 213 and General Manager, Telecom Vs. A.Srinivasa reported in
1997 (8) SCC 767 concluded that the employer is an Industry. The Writ
Court also took into account the death of the workman during the pendency
of the writ petition and directed payment of pensionary benefits to the legal
representatives, who were impleaded.
6. Mr.N.Ramesh, learned counsel appearing for the appellant /
employer would reiterate his submission that the employer is not an
Industry. He would also make an attempt to canvass the issue relating to
retrenchment.
7. We do not think we can accept the second contention addressed
by the counsel, in as much as the same was not put in issue before the writ
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W.A.No.18 of 2020
Court. As regards the contention that the appellant is not an Industry, we
are unable to fault the writ Court for having come to such a conclusion as
the judgmnet in Bangalore Water Supply Vs. Rajappa still holds good. In
General Manager, Telecom Vs. A.Srinivasa the Hon'ble Supreme Court has
reiterated that once the employer satisfies the three tests laid down in
Bangalore Water Supply Vs. Rajappa it would be an Industry.
8. We however find that the direction that was issued to pay
pensionary benefits to the legal heirs of the workman cannot be sustained,
inasmuch as the Tribunal has rendered a specific finding that the workman
is not entitled to regularization and such finding has not been challenged by
the workman in the manner known to law.
9. We therefore allow the writ appeal in part and a direction to
pay pensionary benefits will stand deleted. The award of the Industrial
Tribunal will stand confirmed. We are informed that the employer has
deposited 50% of the back wages till the date of award with the Industrial
Tribunal and the legal representatives of the workman who are alive are
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W.A.No.18 of 2020
permitted to withdraw the same. It is open to the legal representatives to
workout their rights in the manner known to law. No costs.
(R.S.M., J.) (K.B., J.)
30.11.2022
dsa
Internet :No
Index :Yes
Speaking order
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W.A.No.18 of 2020
To
1.The Presiding Officer,
Central Government Industrial Tribunal,
Cum- Labour Court, Chennai – 03.
2.The Director,
BCG Vaccine Laboratory,
Guindy, Chennai.
Cum- Labour Court, Chennai – 03.
https://www.mhc.tn.gov.in/judis
W.A.No.18 of 2020
R.SUBRAMANIAN, J.
and
K.KUMARESH BABU, J.
dsa
W.A.No.18 of 2020
30.11.2022
https://www.mhc.tn.gov.in/judis
