Madras High Court
P. Kumar vs The Management on 22 December, 2023
Author: S. Vaidyanathan
Bench: S. Vaidyanathan
W.A. No. 3541 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.12.2023
CORAM
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HON'BLE MR.JUSTICE K. RAJASEKAR
W.A. No. 3541 of 2023
&
C.M.P. No. 28945 of 2023
P. Kumar ..Appellant
Vs.
The Management,
Tamil Nadu State Transport,
Corporation (Salem) Ltd.,
Dharmapuri Region,
Bharathipuram,
Salem Main Road,
Dharmapuri – 5. ..Respondent
Prayer: Writ Appeal as against the order dated 31.10.2023 in W.P. No.
2229 of 2019.
For Petitioner :: Ms.R. Hemalatha
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W.A. No. 3541 of 2023
For Respondent :: Mr.M. Aswin
Standing Counsel
JUDGMENT
(Delivered by S. Vaidyanathan,J.)
The writ appeal has been filed by the workman as against the order
dated 31.10.2023 passed in W.P. No. 2229 of 2019 in and by which the
award dated 19.10.2016 passed in I.D. No. 136 of 2012 has been confirmed.
2. The employee, who was employed as a Conductor in the
respondent Corporation at Salem was terminated from service on
30.12.2007. According to the employee, he had served in the respondent
Corporation for more than 240 days in a calendar year and his verbal
termination is in contravention of Sections 25F and 25G of the Industrial
Disputes Act, 1947 ("I.D.Act" in short). It is his further case that there was
a mass recruitment of Conductors and he was not given any priority in
employment, which is in violation Section 25H of the I.D. Act, 1947. The
employee, after a lapse of 5 years from the date of dismissal, raised an
industrial dispute on failure of conciliation. The said industrial dispute was
taken up by Labour Court, Salem and two issues were framed, namely,
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(i) whether the industrial dispute was barred by limitation and (ii) whether
the workman would be entitled to reinstatement with continuity of service,
backwages and other attendant benefits. The Labour Court, on
consideration of the materials placed before it, rejected the case of the
employee, which has also been confirmed by the learned Single Judge, more
so, the learned Single Judge has observed that there was a delay on the part
of the employee in raising the industrial dispute. Aggrieved by the
dismissal of the writ petition, the present writ appeal has been filed.
3. Heard both sides.
4. As far as the first issue is concerned, ie. with regard to delay in
raising the industrial dispute, we are of the view that the finding of the
Labour Court is erroneous. The employee was dismissed from service in the
year 2007. During 2010, there was an amendment to Section 2-A of the I.D.
Act, 1947, which took effect from 15.09.2010 and the period of limitation
for raising an industrial dispute was fixed as 3 years. However, the said
amendment can have only prospective effect and cannot be applied
retrospectively. Assuming for the sake of argument that the amendment will
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have retrospective effect, in that event as well, the employee will have three
years time prior to 15.09.2010 and he had raised the dispute well within
three years from the date of amendment. As stated supra, as the employee
was dismissed from service prior to 2010, the amendment will not apply and
the question of delay cannot be put against the employee. Therefore, the
finding of the Labour Court qua the delay in raising the dispute, is perverse.
5. However, on facts, the Labour Court had come to the
conclusion that the employee had not established that he had rendered
continuous service of 240 days preceding the date of termination. Even
though Ex.W4 was filed, the Labour Court did not agree with the plea of the
employee. It is true that the employer had accepted that the employee was
engaged as a temporary staff/Conductor, but that acceptance alone would
not be sufficient to hold that the employee had rendered 240 days of
continuous service preceding the date of termination. On that score, the
award of the Labour Court is perfectly valid.
6. For the foregoing reasons, even though there was no delay in
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raising the industrial dispute and the delay cannot be put against the
employee, we are of the view that on merits, as the employee had failed to
establish his case that he had rendered 240 days of continuous service
preceding the date of termination, the order under challenge confirming the
S. VAIDYANATHAN,J.
AND
K. RAJASEKAR,J.
nv
award of the Labour Court warrants no interference. Hence, the writ appeal
stands dismissed. No costs. Connected C.M.P. is closed.
(S.V.N.J.) (K.R.S.J.)
nv 22.12.2023
To
The Management,
Tamil Nadu State Transport,
Corporation (Salem) Ltd.,
Dharmapuri Region,
Bharathipuram,
Salem Main Road,
Dharmapuri – 5.
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