Madras High Court
C.Chandran vs Presiding Officer on 24 November, 2023
Author: D.Nagarjun
Bench: D.Nagarjun
W.P.Nos.36725 and 1447 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.11.2023
PRONOUNCED ON : 24. 11.2023
CORAM:
THE HON'BLE Dr.JUSTICE D.NAGARJUN
W.P.Nos.36725 of 2015 and 1447 of 2016
C.Chandran ...Petitioner in W.P.No.36725 of 2015
The Management of Karadiyur Estate,
Rep., by its Proprietor Alfred Swaminathan,
Karadiyur Post,
Yercaud-636 602 ...Petitioner in W.P.No.1447 of 2016
vs.
1.Presiding Officer,
Labour Court, Salem.
2. The Management of Karadiyur Estate,
Karadiyur Post,
Yercaud-636 602. ..Respondents in W.P.No.36725 of 2015
1.Presiding Officer,
Labour Court, Salem.
2.C.Chandran ..Respondents in W.P.No.1447 of 2016
1/12
https://www.mhc.tn.gov.in/judis
W.P.Nos.36725 and 1447 of 2016
Prayer in W.P.No.36725 of 2015: This Writ petition has been filed
under Article 226 of the Constitution of India, praying to issue a Writ of
Certiorarifed Mandamus calling for the records of the first respondent
pertaining to the common award passed by the first respondent dated
15.05.2014 in I.D.No.68 of 2003 and quash the same in for as denial of
70% backwages to the petitioner herein and consequently direct the
second respondent to pay the 70% backwages and other attendant
benefits.
Prayer in W.P.No.1447 of 2016: This Writ petition has been filed under
Article 226 of the Constitution of India, praying to issue a Writ of
certiorari calling for the records of the 1st respondent in I.D.No.68 of
2003 and quash its award dated 15.05.2014.
In W.P.No.36725 of 2015:
For Petitioner : M/s.C.S.Monica
For Respondents : M/s.S.Ravindran, Senior Advocate
for Mr.S.Bazeer Ahmed for R2
In W.P.No.1447 of 2016:
For Petitioner : M/s.S.Ravindran, Senior Advocate
for Mr.S.Bazeer Ahmed
For Respondents : M/s.C.S.Monica for R2
2/12
https://www.mhc.tn.gov.in/judis
W.P.Nos.36725 and 1447 of 2016
COMMON ORDER
The petitioner has filed this Writ Petition No.36725 of 2015 to
quash the order passed by the first respondent insofar as I.D.No.68 of
2003 dated 15.05.2014 and to issue a direction to the respondent to pay
70% backwages and other attendant benefits and the
petitioner/Management in W.P.No.1447 of 2016 has filed writ petition to
quash the award passed by the first respondent in I.D.NO.68 of 2003.
2. Since two writ petitions are filed questioning the common award
passed in I.D.No.68 of 2003 dated 15.05.2014, these writ petitions are
being disposed of by way of common order.
3. For the sake of convenience, during the course of discussion the
parties are been referred to as mentioned in W.P.No.1447 of 2016 i.e.,
the petitioner is the management where the second respondent is
workman.
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W.P.Nos.36725 and 1447 of 2016
4. The petitioner is the proprietor of Karadiyur Estate and grows
coffee seeds. Apart from regular employees who are engaged throughout
the year, based on exigencies, the petitioner also engages casual
workmen on daily basis to whom wages will be paid weekly. The second
respondent is one of the casual workmen. The second respondent and
other workmen were not given work everyday and whenever there is a
work, their services will be utilized and whenever there was no work, the
work will not be given to the casual workers.
5. According to the learned counsel for the second respondent, on
10.09.1992, the petitioner has orally terminated the second respondent
and other workmen from service. Whereas, according to the petitioner
the workers were not terminated, they were only informed that there is no
work.
6. The respondent workmen has raised an industrial dispute in
I.D.No.68 of 2003 for reinstatement with backwages, continuity of
service and other attendant benefits and the same was allowed as per the
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W.P.Nos.36725 and 1447 of 2016
award dated 15.05.2014.
7. The petitioner has challenged the award on the ground that
finding of the Labour Court that the second respondent was terminated is
erroneous as the second respondent has failed to produce any material
before the Tribunal to show that the petitioner has terminated the second
respondent. However, it is submitted by the learned counsel for the
second respondent that denial of work amounts to termination of
employee. The Labour Court, has concluded that the second respondent
and other workmen were terminated and thereby directed to
reinstatement of the second respondent and others workmen along with
back wages of 30%.
8. Learned counsel for the petitioner submitted that the second
respondent has sent a representation to the petitioner mentioning that the
workmen were terminated by the petitioner. However the representation
of the respondent No.2 will not substitute the evidence required to prove
that the second respondent and other workmen were terminated, by the
petitioner.
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W.P.Nos.36725 and 1447 of 2016
9. Insofar as the taking back of the second respondent and other
workmen by the petitioner is concerned, the learned Senior Counsel
Mr.S.Ravindran has submitted that petitioner has not terminated the
respondent No.2 and since there was no work in the petitioner's estate,
they could not provide the work and that they are ready to take services
of the second respondent and other workmen, at any time whenever there
is a work. Therefore, precisely learned Senior Counsel for the petitioner
has submitted that the petitioner has no objection to take the second
respondent and other workmen back into the work thereby the petitioner
is prepared to implement part of the award.
10. Insofar as the second limb of the award that the petitioner is
directed to pay the 30% backwages is concerned. In order to order for
back wages, a finding has to be recorded basing on the evidence that the
petitioner has terminated the second respondent and other workmen. Not
only that the second respondent and other work men must mention in the
petition placed before the Labour Court that the second respondent was
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W.P.Nos.36725 and 1447 of 2016
not gainfully employed subsequent to alleged termination only then the
Labour Court can consider grant of backwages. There is no averment or
evidence placed before the Tribunal that the second respondent that he
was not gainfully employed
11. Learned counsel for the petitioner has in support of his
contention has cited a judgment Management of Regional Chief
Engineer, Public Health and Engineering Department versus Their
Workmern, reported in 2019(18) SCC 814, Hon'ble Apex Court had held
as follows:
“12. In some cases, the Court may decline to award the
back wages in its entirety whereas in some cases, it may
award partial depending upon the facts of each case by
exercising its judicial discretion in the light of the facts and
evidence. The questions, how the back wages are required
to be decided, what are the factors to be taken into
consideration awarding back wages, on whom the initial
burden lies, etc. were elaborately discussed in several cases
by this Court wherein the law on these questions has been
settled. Indeed, it is no longer res integra. These cases are,
M.P. SEB v. Jarina Bee [M.P. SEB v. Jarina Bee, (2003) 6
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W.P.Nos.36725 and 1447 of 2016
SCC 141 : 2003 SCC (L&S) 833] , Haryana Roadways
v.Rudhan Singh[Haryana Roadwaysv.Rudhan Singh,
(2005) 5 SCC 591 : 2005 SCC (L&S) 716] ,U.P. State
Brassware Corpn. Ltd.v.Uday Narain Pandey[U.P. State
Brassware Corpn. Ltd.v.Uday Narain Pandey, (2006) 1
SCC 479 : 2006 SCC (L&S) 250] ,J.K. Synthetics
Ltd.v.K.P. Agrawal[J.K. Synthetics Ltd.v.K.P. Agrawal,
(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651]
,Metropolitan Transport Corpn.v.V.
Venkatesan[Metropolitan Transport Corpn.v.V.
Venkatesan, (2009) 9 SCC 601 : (2009) 2 SCC (L&S) 719]
,Jagbir Singhv.Haryana State Agriculture Mktg.
Board[Jagbir Singhv.Haryana State Agriculture Mktg.
Board, (2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545]
andDeepali Gundu Surwasev.Kranti Junior Adhyapak
Mahavidyalaya[Deepali Gundu Surwasev.Kranti Junior
Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2
SCC (L&S) 184] .
13.The Court is, therefore, required to keep in consideration
several factors, which are set out in the aforementioned
cases, and then to record a finding as to whether it is a fit
case for award of the back wages and, if so, to what extent.”
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W.P.Nos.36725 and 1447 of 2016
12. Further in P.Karupaiah versus General Manager,
Thiruvalluvar Transport Corporation Limited, reported in 2018 (12)
SCC 663, the Hon'ble Apex Court had held as follows:
“11.Indeed, the employee in order to claim the relief of
back wages along with the relief of reinstatement is
required to prove with the aid of evidence that from the
date of his dismissal order till the date of his rejoining, he
was not gainfully employed anywhere. The employer too
has a right to adduce evidence to show otherwise that an
employee concerned was gainfully employed during the
relevant period and hence not entitled to claim any relief
of back wages.
12.On proving such facts to the satisfaction of the Court,
the back wages are accordingly awarded either in full or
part or may even be declined as the case may be while
passing the order of reinstatement. The courts have also
applied in appropriate cases the principle of “no work no
pay” while declining to award back wages and confining
the relief only to the extent of grant of reinstatement
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W.P.Nos.36725 and 1447 of 2016
along with grant of some consequential reliefs by
awarding some benefits notionally, if any, in exercise of
discretionary powers depending upon the facts of each
case.”
13. Further, back wages cannot be granted randomly. In the case
on hand, the first respondent Labour Court has granted 30% backwages
and there is no clarity as to on what basis or on what formula or on what
approach the first respondent/ Labour Court has granted 30% of
backwages.
14. In view of the above, finding of the first respondent/ Labour
Court that the petitioner has orally terminated the second respondent and
other work men, cannot be accepted and consequently, the finding of the
first respondent/ Labour Court, directing the petitioner to pay 30%
backwages is not sustainable.
15. In the result, W.P.No.1447 of 2016 is disposed of in part,
confirming the impugned orders of first respondent insofar as directing
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W.P.Nos.36725 and 1447 of 2016
the petitioner to reinstate the second respondent. Consequently,
W.P.No.36725 of 2015 seeking for a direction to the second respondent
to pay 70% of backwages and other attendant benefits is dismissed.
24.11.2023
Index : Yes / No
Internet : Yes/ No
Speaking/Non-speaking Order
jai
To
1.The Presiding Officer,
Labour Court, Salem.
2. The Management of Karadiyur Estate,
Karadiyur Post,
Yercaud-636 602.
https://www.mhc.tn.gov.in/judis
W.P.Nos.36725 and 1447 of 2016
Dr.D.NAGARJUN, J.
jai
W.P.Nos.36725 of 2015 and 1447 of 2016
24.11.2023
https://www.mhc.tn.gov.in/judis
