Madras High Court
R.Kariamal vs The Management Of Raj T.V.Network Ltd on 28 February, 2025
W.P.No. 2955 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.02.2025
Pronounced on : 28.02.2025
CORAM
THE HON’BLE DR. JUSTICE A.D. MARIA CLETE
W.P.No. 2955 of 2020
R.Kariamal,
S/o. Ramasamy,
6th Ward, 209A, West Street,
Govindanagaram,
Theni – 625 517. … Petitioner
Vs.
The Management of Raj T.V.Network Ltd,
No.32, Poes Road II Street,
Teynampet,
Chennai – 600018. … Respondent
Prayer in W.P.No.2955 of 2020
To issue writ, order or direction and in particular a Writ of Certiorarified
Mandamus calling for the records relating to the Award dated 04.12.2019 made
in I.D.No. 92 of 2018 with I.A.No.3 of 2019 passed by the Hon’ble
st
1 Additional Labour Court, Chennai and quashing the same, consequently
directing the Respondent herein to reinstate the Petitioner with continuity of
service, back wages and all other attendant benefits and to pass such further or
other orders as this Hon’ble Court may deem fit.
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1/44
W.P.No. 2955 of 2020
Appearance of Parties:
For Petitioner : Mr.K.Elango
For Respondent : M/s. K.Harishankar
JUDGMENT
Heard.
2. The petitioner, a workman, has filed this writ petition challenging the
award passed by the First Additional Labour Court, Chennai, in ID No. 92/2018
dated 04.12.2019, as well as the order in I.A. No. 3/2019 issued on the same
date. The award was decided against the workman, and his application in
I.A. No. 3/2019, seeking to summon documents from the respondent
management, was also dismissed. Upon filing of the writ petition, notice was
issued to the respondent on 07.02.2020. In response, the respondent
management has entered an appearance through counsel.
3. The workman’s case is that he was employed as a driver, having
joined service on 27.09.1999. His services was terminated illegally on
18.07.2005. This termination was subsequently adjudicated by the Labour Court
in I.D. No. 15/2007. By an award dated 12.06.2013, the Labour Court held that
the termination was arbitrary and illegal, directing the workman’s reinstatement
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with continuity of service and 50% back wages. Following the award, the
petitioner repeatedly sought reinstatement. However, after some
correspondence, the respondent, instead of reinstating him in Chennai, issued an
order dated 05.05.2014, directing him to report for duty at their branch office in
Dadar, Mumbai, purportedly in compliance with the award, while also stating
that the awarded sum of Rs.3,48,500/- would be provided to him.
4. On 05.05.2014, the workman sent a letter stating that the amount
offered by the respondent was not in accordance with the benefits granted under
the award. He also sought clarification on whether accommodation would be
provided to him in Mumbai. Upon reaching Mumbai, he discovered that no
employment was actually offered to him and that the transfer was merely a
punitive measure. He proceeded to Mumbai solely without prejudice to his legal
rights to challenge the management’s action.
5. Subsequently, the workman filed a claim statement in C.P. No. 403
of 2014 before the Labour Court, seeking back wages as per the award, along
with wages accrued thereafter, totalling Rs.8,11,500/-. In response, the
management filed a counter statement, contending that the workman had
remained absent without intimation and, despite being directed to report for
duty, had not done so. He was not employed anymore, and he had voluntarily
abandoned his employment. In response to these allegations, the workman was
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compelled to send a letter dated 25.05.2016, stating that he was not given
employment in Mumbai as there was no vehicle available there and that the
officers had instructed him to return to Chennai. He had also previously written
a letter on 15.05.2014, requesting employment either in Chennai or at any
location within Tamil Nadu.
6. Subsequently, the workman raised an industrial dispute under Section
2A through his letter dated 03.05.2017. In response, the respondent submitted a
reply on 17.07.2017. The substance of the management’s reply, as presented
before the Labour Officer, were summarized in the failure report issued by the
officer on 07.12.2017, which stated as follows:
"எத ரமனத ரர ந ரவ கம மனத ரர கறம பலவவற கறறகள
மறபபத கவம மனத ரர எத ரமனத ரர ந றவனதத ல மமளபய ல ஓடட
நர க பண ய ல வ!ரநதவடன மனபணம க ர. 4,250/- மன கடடவய
வய !மப ததத ளகய க அனற ட த!லவ னஙகள வநர த!யததக ள
தக டககபபடடத கவம அதன ப ன ந0த மனற உததரவ பட அவரகக
ர.3,49,500/- வஙக க வ! ளலய க தக டககபபடடத . மனத ரர
வமறத! னன தத ளகய ளன தபறறகதக ணட ப னப மனத ரர அவர த
னத பண ய லரநதம தப றபபக ல இரநதம கடநத 16.05.2014 ம
தல எவவ த தகவலம இனற அவர தளலமளறவ க இரநதத கவம ஆகவவ
வவ மனத ர ன தவற ன நடதளதகக எத ர க கடநத 24.05.2014 ஒர
கறறச! டட வழகக வழஙகபபடடத கவம மனத ரர அநத கறறச! டடக
க எநதவ த மனன பபம வக ரவ லளல எனறம எனவவ மனத ரர கற ய க
க ரணஙகள எதவ க இரபப னம அவர தனன சள!ய க தனத பண ய லரந
நத ந னற வ டட ர எனறம எனவவ மனத ரர தனன சள!ய க பண ய ளன
ளன வ டடவ டடத லத ன ந ரவ கம அவளர கடநத 16.05.2014 ந0க
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கறவ த!யதத கவம எனவவ மனத ர ன மனவ ளன தளளபட த!யயம
ற ந ரவ கம தனத பத லளரய ல தத வ ததள த. ”
7. Meanwhile, the Labour Court, by its order dated 30.01.2018, allowed
the claim petition in C.P. No. 403/2014. The court awarded a sum of
Rs.5,10,910/-, and after deducting the amount already paid, determined that the
workman was entitled to receive the balance amount of Rs.1,61,410/-. The
Labour Court limited its scope to computing the amount in accordance with the
benefits granted under the earlier award. In paragraph 11 of its order, it observed
as follows:
“11......... The question of the petitioner voluntarily abstained
from attending duty once again from 16.5.2014 as adverted on the side of
the respondent, in Ex.P11 and he was in alternative employment are all
the issues to be rake up before the court in any industrial dispute to be
instituted by the petitioner for his necessary relief on reinstatement.”
8. Subsequently, based on the failure report, the workman filed a claim
statement dated 20.04.2018 before the Labour Court, which was registered as
I.D. No. 92/2018, and notice was issued to the respondent. The respondent
entered an appearance and filed a counter statement on 10.07.2018. During the
proceedings, the workman examined himself as PW1 and produced
21 documents, marked as Ex.W1 to Ex.W21. However, the management neither
presented any witnesses nor submitted any documents in support of its case.
Relying on the replies sent by the management, which were marked as evidence
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by the workman, the Labour Court concluded that the case did not involve
termination but rather voluntary abandonment of service. On this basis, the
Labour Court issued an award dated 11.09.2018, dismissing the industrial
dispute.
9. Aggrieved by the award, the workman filed a writ petition before this
Court in W.P. No. 27033 of 2018, challenging the decision of the Labour Court.
After issuing notice to the respondent, this Court allowed the writ petition. By
an order dated 20.02.2019, the Court quashed the award and remitted the matter
for fresh consideration. In doing so, the Court observed as follows:
“8. …... When the petitioner was present with his counsel on
the previous occasions and the Management was set exparte on
05.09.2018 and the matter was posted for orders on 11.09.2018, the
Labour Court ought to have heard the petitioner before passing the
award. Unfortunately, from the Daily Status, this Court is unable to
discern as to why the Labour Court has hurriedly passed the award
without hearing the petitioner. Nothing is stated in the Daily Status
about the absence of counsel or the petitioner himself, on 11.09.2018.
In the absence of such details, this Court has come to an irresistible
conclusion that the First Additional Labour Court has passed an
award in violation of the established procedure, by not hearing the
petitioner, when the petitioner has been diligently prosecuting the case.
9.When the Labour Court has particularly chosen to pass an
adverse award, it ought to have provided opportunity of hearing to the
petitioner before taking a decision. Unfortunately, the Labour Court
has passed an award as if the petitioner was absent and he need not
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require to be heard. Such a procedure adopted by the Labour Court is
per se violative of the established principles of natural justice and
therefore, the award passed by the First Additional Labour Court
cannot be sustained even for a second.
10.In view of the above, the impugned award passed by the
First Additional Labour Court, Chennai, dated 11.09.2018, in
I.D.No.92 of 2018, is hereby set aside. The matter is remanded back to
the First Additional Labour Court for fresh consideration. The First
Additional Labour Court is directed to pass an award after giving due
and reasonable opportunity to the petitioner. The First Additional
Labour Court is also directed to expeditiously dispose of the I.D.No.92
of 2018, but not later than six months from the date of receipt of copy
of this order. It is made clear that in case, the Management wants to
file any application seeking to set aside the ex-parte order, the same
may be considered by the Labour Court on its merits and in
accordance with law.”
10. Following the remand by this Court, when the matter was taken up
for reconsideration, the respondent examined MW1, S. Suresh, Manager-
Administration, as their witness. During his cross-examination, he stated that
the Mumbai office had 5 to 6 vehicles, whereas the workman had maintained
that there were no vehicles at the Mumbai office. In light of this contradiction,
the workman was compelled to file an application in I.A. No. 3/2019, seeking a
direction for the respondent to produce copies of the registration certificates of
all vehicles owned by them at their Mumbai office as of May 2014. In response,
the respondent filed a counter affidavit dated 12.10.2019 and submitted three
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documents. In paragraphs 2 and 3 of the counter affidavit, it was stated as
follows:
“2. I state that in May 2014 the Respondent Company owned a
vehicle in Mumbai office in MMV category: Its registration
number is TN07 AC 2332. The Registration Certificate of the said
vehicle is filed as Document 1. The said Vehicle’s body was built
in Silvassa and was used by Respondent Company’s Mumbai
office. The invoice issued by the company which built the body of
the vehicle TN07 AC 2332 is filed as Document 2.
3. I state that Mr.Ishwar Ramasami has joined the Respondent’s
Company in the year 2009, and is still in service. He is working
as Vice President (Sale and Marketing) in the Respondent
Company’s Mumbai office. He was owning a car since 2010
having registration number MH04 EQ 8461. The Registration
Certificate of the said vehicle is filed as Document 3. The
Respondent Company provides him with a driver as a part of
arrangement between them.”
11. The workman filed a reply affidavit dated 23.10.2019, contending
that the three documents submitted by the respondent were irrelevant to the
case. He stated that the vehicle registration numbers mentioned in Documents
No. 1 and 2 belonged to vehicles registered in Tamil Nadu, which could not
have been legally operated in Mumbai without a change of registration.
Regarding the third document, the workman asserted that it was fabricated, as it
lacked the signature of both the owner and the registering authority.
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Furthermore, although the management claimed that Vice President Eshwar
Ramaswamy at the Mumbai office commuted by electric train and did not use a
car—citing that the cost of using a car from Thane West to Dadar West would
amount to Rs. 300 per day for petrol—the workman contended that this
statement was implausible and unconvincing.
12. Notably, the Labour Court did not pass any order on the I.A. The
workman submitted his written arguments on 19.11.2019, while the respondent
filed their written arguments in December 2019. The primary contention raised
by the management was that the dispute was time-barred under Section 2A(3) of
the Industrial Disputes Act. The management contended that the workman had
been reinstated on 12.05.2014 pursuant to the earlier award and that he had
subsequently written to the management on 15.05.2014 (Ex.W8) demanding
reinstatement. According to them, the cause of action for raising a dispute arose
from that date. However, the workman only approached the Labour Officer on
03.05.2017. Since more than three years had elapsed from the date of the
alleged cause of action, the management contended that the dispute was not
maintainable.
13. The Labour Court further observed that after leaving the Mumbai
office, the workman remained silent until he received the termination order
dated 15.07.2017, which terminated his service with effect from 16.05.2014.
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It found that the workman had not raised any industrial dispute during this
period, citing only the reason that he was awaiting an order from the respondent
management for employment in Chennai. Based on this, the Labour Court
accepted the respondent management's contention that the workman had
voluntarily abandoned his service. It also rejected the workman’s argument
regarding the computation of the limitation period. In paragraphs 15 and 17, the
Labour Court arrived at the following conclusions:
“15. Further the claim of computation of the limitation as alleged
by the petitioner is also not acceptable by this court Though both
counsels have not disputed about the existence of limitation as per
Section 2A(3) for filing petition u/s 2(A), this court has got
reservation about the correctness of the binding force of the
judgment of the Hon’ble High Court of Madras reported in 2017
LLR Page 704 in view of the Judgment of the Hon’ble Apex Court
which holds that the industrial disputes have to be adjudicated
only on merits and the Limitation Act is not at all applicable to an
Industrial Disputes Act. Further the factual aspects relied by the
petitioner to justify the commencement of the industrial dispute
from the date of receipt of the termination order dated 15.7.2017 is
concerned cannot be accepted as the order of termination is given
with effect from 16.5.2014 from which date the petitioner is
admittedly absent from duty. Even accepting the contention of the
existence of limitation, if these factual aspects are concerned, the
petitioner shall be deemed to be dismissed from the date 16.5.2014
as it is a case of allegation of abandonment as misconduct and
therefore also he cannot maintain the above petition.
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16. …...
17. The respondent also argued about the conduct of the petitioner
in not raising any issue when C.P.No.403/2014 was pending before
this court about the dissatisfaction of the petitioner for his
reinstatement at Mumbai and his claim for reinstatement at
Chennai and his conduct of keeping silent till the written order of
termination was passed by this court to show the lack of bonafides
on the side of the petitioner.”
14. Regarding the issue of ordering production of additional documents
beyond those voluntarily submitted by the respondent management, the Labour
Court, in paragraph 19, provided the following reasoning:
19. .......This court is not inclined to accept the same because non
availability of any vehicle alone cannot be a valid reason on the
side of the petitioner to abandon the service. Further if really the
petitioner was aggrieved by the said order of reinstatement, he
could have raised objections even in the initial stage by filing an
execution petition in the said I.D. Therefore in order to maintain
this I.D., those documents are absolutely not necessary and this
court is also inclined to accept the arguments of the respondent
that the respondent which is running the press and is also having
the office at Mumbai will have all chances of its officers being
taken through vehicles to the office and the residence and this
situation alone cannot be claimed to justify the conduct of the
petitioner to challenge the order of termination passed by the
respondent. Hence the said petition in I.A.No.3/2019 is also liable
to be dismissed as these documents will not in any way be helpful
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to adjudicate the actual dispute between the petitioner and the
respondent.”
15. In his deposition PW1, the workman categorically stated that the
management had issued a show cause notice on 02.08.2014, to which he
submitted his explanation on 06.08.2014. However, before issuing the
termination order dated 15.07.2017, which was made retrospectively effective
from 16.05.2014, the management did not conduct any inquiry, rendering the
termination illegal and arbitrary. He further contended that since the termination
was not preceded by notice pay and compensation as required under Section
25-F of the Industrial Disputes Act, it was illegal. This evidence was recorded
before the first award was passed, which was later set aside, and the matter was
remanded for reconsideration.
16. Following the remand, the Manager-Administration was examined
on behalf of the management. In his proof affidavit submitted in lieu of chief
examination, he made the following statements in paragraphs 3 and 4:
“3. I state that on 12.05.2014 the Petitioner joined the branch
office of the Respondent in Mumbai and was paid Rs.4250/-
towards an advance for May 2014 salary to meet the incidental
expenses. Thereafter, to the shock and surprise of the Respondent
the Petitioner left the office without informing anyone and stopped
reporting to duty from 16.05.2014. The Respondent sent a letter
dated 24.05.2014 to the Petitioner informing about his continuous
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unauthorized and uninformed absence from duty and asked him
immediately report to duty, explaining his reasons for his absence.
4. The Petitioner on 05.6.2014 sent a letter making false
allegations on the Respondent that, he was not given any work in
Mumbai and unless he was given job in Tamil Nadu he will not be
reporting to duty. The Respondent again sent a remainder letter to
the Petitioner on 14.06.2014 informing the Petitioner to report to
duty immediately. Thereafter, the Respondent issued a Charge
memo to the Petitioner asking him to explain the reasons for the
continuous unauthorized absence and violation of Code of
Conduct. The Petitioner failed to give any satisfactory reply to the
Respondent and continued to abscond from service. Therefore, on
15.07.2017 the Respondent issued a termination letter to the
Petitioner, terminating him from service with effect from
16.05.2014, for voluntarily abandoning the service.”
17. In the cross-examination, he confirmed his above stand as follows:-
”மனத ரர தனகக தம ழந டடவலவய ம0ணடம பண யமரததம ற
அளனதத கடததத லம வகடடரகக ற ர எனபத ! த ன. எஙகள கடததத
றக பத ல த! லல மல அவர கவவ தத டரச! ய க இநத கடதஙகள அனப
பப ய ரகக ற ர . 14.6.2014 வதத ய டட கடதத றக அபவப த பத ல வரவ
வ லளல . 17.6.2014 வதத ய டட மனத ர ன பத ளல வ ஙக யத க த!
த! லலய ரகக வற ம எனற ல ! யலல , அத அவரளடய தன ககடத ம.
2.8.2014 ல தத ! ஆ 12 தக டதவத ம என
ற ல ! த ன . அநத கறறச! டட கற பப ளணகக தத ! ஆ 13 பத ல
தக டதத ர எனபத ! த ன . ,ij bjhlh;e;J kDjhuiu gzpePf;fk;
bra;J tpl;nlhk;/ tprhuiz itf;ftpy;iy vd;gJ rhpjhd;/ அவர பண ய ல இ
ரநத வநதவ டடளத ஒபபகதக ணடத ன ல வ ! ரளண ளவககவ லளல .
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15.7.2017 ல த ன மனத ரளர பண ந0ககம த!யவத ம. இத தத ழ றதக
ர ற !மர! அத க மனப இரககமவப த வப டடதத ன.”
18. The management, in its counter statement dated 10.07.2018, admitted
that the termination order was issued based on the alleged abandonment of
service and that no inquiry was conducted prior to the termination. Aware of this
lapse, the management made the following plea in paragraph 10:
“10. The Respondent humbly submits that it has not violated the
principles of natural justice by not conducting a domestic enquiry.
However, in the event, this Hon’ble Court comes to the conclusion
that a domestic enquiry ought to have been conducted before
terminating the Petitioner, the Respondent prays that this Hon’ble
Court may permit the Respondent to conduct a de novo enquiry
before this Hon’ble Court to justify the reasons for terminating the
Petitioner.”
19. Aware that their counter pleadings might be insufficient, the
management also sought liberty to file an additional counter if necessary, as
stated in paragraph 9 of the counter statement. During the first round of
adjudication, only the workman deposed as PW1 on 21.08.2019. In his cross-
examination, he was confronted with a suggestion that he had taken no steps for
three years to secure reinstatement. However, up to this stage, there was neither
a specific pleading nor evidence regarding the invalidity of the dispute due to
limitation. Even when the Labour Court initially passed the award on
11.09.2018 in I.D. No. 92/2018—which was later set aside by this Court on
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20.02.2019—it primarily addressed the issue of whether the workman had
voluntarily abandoned his service and the fact that no industrial dispute had
been raised for nearly three years. At that stage, there was no reference to the
limitation prescribed under Section 2A(3) of the Industrial Disputes Act,
introduced through the central amendment.
20. Following the remand order, no additional pleadings were filed by
the respondent concerning the alleged limitation under Section 2A(3) of the
Industrial Disputes Act. It was only in their written arguments, dated Nil,
December 2019, that the respondent raised the issue for the first time,
contending that the dispute was time-barred under Section 2A(3). In paragraph
10 of their written arguments, the respondent asserted that even if it were
assumed that the management had not provided employment to the workman,
he had failed to approach the Labour Court within the three-year limitation
period prescribed under Section 2A(3). Under these circumstances, without
conducting a detailed examination of the issue, the Labour Court accepted the
management's stand and dismissed both the reference and the application for the
production of documents.
21. In light of the above, three issues arise for consideration by this
Court:
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1.Whether the dispute is barred by limitation under Section 2A(3)
of the Industrial Disputes Act, as introduced by the Central
amendment?
2.Whether the workman had abandoned his employment, thereby
disentitling him to any relief in the dispute?
3.If the dispute is maintainable and the impugned award is held to
be wrong, what relief the workman is entitled to?
22. Admittedly, the workman filed his claim statement in I.D.No.
92/2018 on 20.04.2018 under Section 2A(2) of the Industrial Disputes Act, as
introduced by the Tamil Nadu Amendment Act. The following statements from
paragraph 8 of the workman’s claim statement are relevant and may be
extracted:
“8. The Petitioner states that thereafter, he found no other way than
to raise an Industrial Dispute before the Labour Officer-3, Chennai
600 108, on 03.05.2017 under Section 2-A of the I.D.Act. …..
Since the Management did not reinstate the Petitioner, the
conciliation ended in a failure and the authority gave his report on
the failure of conciliation on 07.12.2017. The Petitioner who is
unemployed found it extremely difficult on various counts including
financial inability to again approach the Labour Court....”
23. It is essential to refer to the historical evolution of an individual
workman’s right to seek adjudication of their non-employment without his
cause being espoused by a substantial section of workmen from the same
establishment. Initially, under the Industrial Disputes Act, all disputes were
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treated as collective disputes in accordance with Section 2(k) of the ID Act.
Following the failure of conciliation proceedings, the government had the
discretion to refer the matter for adjudication under Section 10(1) of the Act
upon receiving the failure report from the conciliation officer under Section
12(4) of the Act. If an individual workman’s dispute was not supported by other
workmen, it remained an individual dispute rather than a collective one, thereby
limiting the government’s power to make a reference. Consequently, individual
workers were often unable to directly approach Labour Courts for adjudication
of their non-employment, leading to significant hardship for many affected
workers. Top of Form
24. The Supreme Court, in its judgment in Bombay Union of Journalists
v. The State of Bombay, reported in AIR 1964 SC 1617, held that a dispute that
is not sponsored by the workmen of the establishment remains an individual
dispute, and any reference made by the Bombay government in such a case was
illegal. Following this decision, Parliament amended the Industrial Disputes Act
and introduced Section 2A and 2A(1) , which reads as follows:
“2A. Dismissal, etc., of an individual workman to be deemed to be
an industrial dispute.— [(1)] Where any employer discharges,
dismisses, retrenches, or otherwise terminates the services of an
individual workman, any dispute or difference between that
workman and his employer connected with, or arising out of, such
discharge, dismissal, retrenchment or termination shall be deemed
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to be an industrial dispute notwithstanding that no other workman
nor any union of workmen is a party to the dispute.”
The govt. under Section 10(1) has to refer the dispute for adjudication by an
appropriate labour court. Even at that time of the reference being issued, both
State and Central governments have refused several disputes being sent for
adjudication.
25. This amendment eliminated the requirement for a workman to secure
the support of other workers to have his individual non-employment adjudicated
by the Labour Court. This amendment was brought in by Central Act 35/1965
w.e.f. 1.12.1965. Notwithstanding this amendment, the workman was still
required to approach the Conciliation Officer regarding his non-employment.
If conciliation efforts failed, a report—known as the Conciliation Failure Report
—had to be sent to the government under Section 12(4) of the Industrial
Disputes Act. The Government, under Section 10(1), was then responsible for
referring the dispute to an appropriate Labour Court for adjudication. Even after
the introduction of this process, both State and Central Governments, on
multiple occasions, refused to refer several disputes for adjudication.
26. To address this issue, the Tamil Nadu Legislature enacted the
Industrial Disputes (Tamil Nadu Amendment) Act, 1981, proposing an
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amendment to Section 2A by introducing Subsection (2). This amendment
allowed a workman, after the failure of conciliation, to directly approach the
jurisdictional Labour Court for adjudication of his dispute without requiring a
reference order under Section 10(1). To overcome the central law the
amendment was sent for the assent of the President of India. The President
granted his approval on 25.06.1988. Consequently, the amendment was
proposed in 1981, it came into effect only on 01.11.1988 and was codified as
Tamil Nadu Act 5 of 1988. Section 2 of Tamil Nadu Act 5 of 1988, which
introduced Subsection (2) to Section 2A, reads as follows:
“Amendment of Section 2-A, Central Act, XIV of 1947 – In the
Industrial Disputes Act, 1947 (Central Act XIV of 1947)
(hereinafter referred to as the principal Act) section 2-A shall be
re-numbered as sub-section (1) of that section and after the said
sub-section (1) as so renumbered, the following sub-section shall
be added, namely:-
“(2) Where no settlement is arrived at in the course of any
conciliation proceeding taken under this Act in regard to an
industrial dispute referred to in sub-section(1), the aggrieved
individual workman may apply, in the prescribed manner, to the
Labour Court for adjudication of such dispute and the Labour
Court shall proceed to adjudicate such dispute, as if, such dispute
has been referred to it for adjudication and accordingly all the
provisions of this Act relating to adjudication of industrial
disputes by the Labour Court shall apply to such adjudication.”
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27. Following the amendment, the Tamil Nadu Government framed Rule
25-B under the Tamil Nadu Industrial Disputes Rules, 1958, thereby
implementing the provisions of the Act. Rule 25-B, issued through G.O. (Ms)
No. 505, Labour and Employment Department, dated 15.03.1989, reads as
follows:
“25-B. Application to Labour Court by workmen, - Where no
settlement is arrived at in the course of any conciliation proceeding
taken in the case of an industrial dispute referred to in sub-section
(1) of section 2-A, the Conciliation Officer shall send an intimation
to the aggrieved workman with a copy marked to the employer, the
Commissioner and Secretary to Government, Labour and
Employment Department, Madras-9 and to the Commissioner of
Labour, Madras-6.
(2) On receipt of such intimation, the aggrieved individual workman
may apply in Form C-1 to the Labour Court having jurisdiction
over the area for adjudication of such dispute. Such application
shall be in duplicate and filed before the Labour Court, either
personally or by registered post. A copy of the intimation received
from the Conciliation Officer under sub-rule (1) shall be filed along
with application.”
28. Thus, with the President’s assent, the State amendment became law
in Tamil Nadu, per Article 254(2) of the Constitution, which states as follows:
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(2) Where a law made by the Legislature of a State with respect to
one of the matters enumerated in the Concurrent List contains any
provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the
law so made by the Legislature of such State shall, if it has been
reserved for the consideration of the President and has received his
assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from
enacting at any time any law with respect to the same matter
including a law adding to, amending, varying or repealing the law
so made by the Legislature of the State.
29. Even after the Tamil Nadu amendment and the enactment of the
corresponding rule, the old procedure remained applicable to industries where
the "appropriate Government" under Section 2(a) of the Industrial Disputes Act
was the Central Government. In such cases, workmen were still required to
approach the Conciliation Officer, and if conciliation failed, the failure report
would be sent to the Central Government, which continued to exercise its power
under Section 10(1) by referring the dispute to the appropriate Central
Government Industrial Tribunal-cum-Labour Court. As a result, the procedure
for adjudicating individual non-employment disputes varied depending on the
industry's nature and the appropriate Government's jurisdiction. The Tamil Nadu
amendment, being a progressive legislative measure, was subsequently adopted
by other states, including Andhra Pradesh.
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30. Even 45 years after the introduction of Section 2A, the Central
Government continued the procedure of reference for individual disputes. This
practice remained unchanged even after the Tamil Nadu amendment, which
introduced Section 2A(2) and had been in effect for over 22 years. Eventually,
in 2010, the Central Government enacted a long-overdue amendment to the
Industrial Disputes Act. The Central Amendment Act 24 of 2010, enacted on
18.08.2010, received the President’s assent on the same day. Through Section 3
of this amendment, Section 2A of the Industrial Disputes Act was modified by
introducing sub-sections (2) and (3). The amended Section 3, introducing
Sections 2A(2) and 2A(3), reads as follows:
“3. Section 2A of the principal Act shall be numbered as sub-
section (1) thereof and after sub-section (l) as so numbered, the
following sub-sections shall be inserted, namely:- “(2)
Notwithstanding anything contained in section 10, any such
workman as is specified in sub-section (1) may, make an
application direct to the Labour Court or Tribunal for adjudication
of the dispute referred to therein after the expiry of three months
from the date he has made the application to the Conciliation
Officer of the appropriate Government for conciliation of the
dispute, and in receipt of such application the Labour Court or
Tribunal shall have powers and jurisdiction to adjudicate upon the
dispute, as if it were a dispute referred to it by the appropriate
Government in accordance with the provisions of this Act and all
the provisions of this Act shall apply in relation to such
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adjudication as they apply in relation to an industrial dispute
referred to it by the appropriate Government. (3) The application
referred to in sub-section (2) shall be made to the Labour Court or
Tribunal before the expiry of three years from the date of
discharge, dismissal, retrenchment or otherwise termination of
service as specified in sub-section (1).”
31. The Central Amendment Act 24 of 2010, which introduced Sections
2A(2) and 2A(3) into the Industrial Disputes Act, was officially notified by the
Central Government to take effect from 15.09.2010. As a result, the requirement
of a reference by the Central Government under Section 10(1) was dispensed
with, and a three-year limitation period for raising disputes related to individual
non-employment under Section 2A was introduced. This amendment applied
specifically to industries where the appropriate government is the Central
Government. With this change, Parliament also removed the requirement of
obtaining a conciliation failure report from the Conciliation Officer as a
prerequisite for a workman to directly approach the Labour Court.
32. The differences between the Tamil Nadu amendment of 1988 and the
central amendment of 2010 are notable. In the Tamil Nadu amendment, the
requirement for a reference from the central government was eliminated.
However, a worker still needs to approach a Conciliation Officer first, and only
after receiving a failure report can they proceed to the labour court for
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adjudication. In contrast, the central amendment removed only the reference
procedure outlined in Section 10(1). While approaching the Conciliation Officer
remained essential, the timeline for this process was limited to 45 days.
Furthermore, the outcome of the conciliation—whether it results in failure or
success—is no longer a prerequisite to moving forward, as sub-section (3)
introduces a three-year time limit as a limitation. The Industrial Disputes Act's
preamble clearly states that the objective of the Act is to resolve industrial
disputes through two methods: conciliation and adjudication. While the Tamil
Nadu amendment upholds conciliation as an essential element for solving the
dispute, the central amendment has largely eliminated the requirement for
conciliation to reach a conclusive outcome.
33. Many modern legislations now encourage alternative (“appropriate”)
dispute resolution (ADR) as a preferred method for resolving disputes. Some
laws have even made mediation mandatory before initiating legal proceedings,
such as the Commercial Courts Act, which requires mediation before filing a
suit. Similarly, Family Courts are obligated to conduct conciliation before
proceeding to trial. However, the Central Amendment to the Industrial Disputes
Act has virtually eliminated conciliation in individual disputes by imposing a
three-year limitation period under Section 2A(3). This contradicts the broader
trend of promoting negotiated dispute resolution. It is relevant to note that even
after the Central Amendment if a trade union espouses an individual workman's
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case and the Conciliation Officer issues a failure report, the Central Government
alone retains the power to order a reference under Section 10(1) to an
appropriate Tribunal. In such cases, no limitation period is prescribed, further
highlighting the inconsistency in the legal framework.
34. Recognizing the distinction between Section 10(1) and Section 2A of
the Industrial Disputes Act under the central framework, the Supreme Court, in
its decision in Prabhakar v. Joint Director, Sericulture Dept. & Anr., reported in
2015 (15) SCC 1, provided a detailed explanation of the dichotomy between
these two provisions.
The Court made the following observations:
“40. …....Thus, notwithstanding the fact that law of limitation does
not apply, it is to be shown by the workman that there is a dispute in
praesenti. For this purpose, he has to demonstrate that even if
considerable period has lapsed and there are laches and delays,
such delay has not resulted into making the industrial dispute seized
to exist.
41. …..
42. To summarise, although there is no limitation prescribed under
the Act for making a reference under Section 10(1) of the Act, yet it
is for the 'appropriate Government' to consider whether it is
expedient or not to make the reference. The words 'at any time' used
in Section 10(1) do not admit of any limitation in making an order
of reference and laws of limitation are not applicable to proceedings
under the Act. However, the policy of industrial adjudication is that
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very stale claims should not be generally encouraged or allowed
inasmuch as unless there is satisfactory explanation for delay as,
apart from the obvious risk to industrial peace from the
entertainment of claims after long lapse of time, it is necessary also
to take into account the unsettling effect which it is likely to have on
the employers' financial arrangement and to avoid dislocation of an
industry.”
35. However, even in this judgment, the Court did not emphasize the
necessity of conducting a full conciliation process. Earlier, in Lokmat
Newspapers Pvt. Ltd. v. Shankarprasad, reported in 1999 (6) SCC 275, the
Supreme Court had elaborated on this issue in the following terms:
“In order to answer these questions, it is necessary to note sub-
section (4) of Section 12 of the I.D. Act which reads as under : "(4)
If no such settlement is arrived at, the conciliation officer shall, as
soon as practicable after the close of the investigation, send to the
appropriate Government a full report setting forth the steps taken by
him for ascertaining the facts and circumstances relating to the
dispute and for bringing about a settlement thereof, together with a
full statement of such facts and circumstances, and the reasons on
account of which, in his opinion, a settlement could not be arrived
at."
A mere look at this provision shows that if the Conciliation Officer
finds during conciliation proceedings that no settlement is arrived
at between the disputing parties, then after closing the investigation
he has, as soon as practicable, to send to the appropriate
Government a full report setting forth the steps taken by him for
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ascertaining the facts and circumstances relating to the dispute and
has also to mention all other details as required to be mentioned in
the report under Section 12(4) of the I.D.Act.
The aforesaid statutory requirements leave no room for doubt that
after closing the investigation and after having arrived at the
conclusion that no settlement is possible between the parties, the
Conciliation Officer has to spend some more time before submitting
his detailed written report about failure of consideration for
information and necessary action by the State Government.”
36. However, whether a full conciliation process is necessary or whether
the limitation period of 45 days imposed by the Central Amendment is justified
is not a concern in this case. This is because, for the State of Tamil Nadu, where
the Respondent establishment falls under the jurisdiction of the State
Government, only the Tamil Nadu Amendment (T.N. Act 5 of 1988) is
applicable, and not the Central Amendment (Central Act 24 of 2010). This legal
position is further reinforced by Article 254(1) of the Constitution, which states
as follows:
“254. Inconsistency between laws made by Parliament and laws made
by the Legislatures of States
(1)If any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an existing
law with respect to one of the matters enumerated in the Concurrent
List, then, subject to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made by the
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Legislature of such State, or, as the case may be, the existing law, shall
prevail and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void.”
37. In the context of State and Central amendments to the Industrial
Disputes Act, particularly regarding the powers of Labour Courts for execution,
a learned Judge of this Court addressed a similar issue in S. Gunasekaran &
K.M. Ramesh, LLPA v. The Government of Tamil Nadu & Ors., reported in 2011
(4) CTC 118. The Court made the following observations:
“25. In respect of the contention that the amendment of the State
legislature was repugnant due to the subsequent Central
amendment, it has to be examined with the law relating to
repugnancy and the scope of Article 254(2) in this regard.
Under Article 246 of the Constitution, the subject matter of law
that can be made by the Parliament and the legislature of the
State are delineated. Under Article 246(2), the Parliament as
well as the legislature of the State has power to make laws with
reference to any matters enumerated in the List III of the
Seventh Schedule of the Constitution known as the concurrent
list. Item 22 deals with employment and unemployment. It is an
admitted fact that the law relating to the present legislation
comes under List III which is the concurrent list. When once the
State legislature received the assent of the President, then in
terms of Article 254(2), it will prevail over any Central
legislation in that State. Even though it was argued that
subsequent law made by the Parliament was to prevail, the
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proviso to Article 254(2) only enables the Parliament to make
law at any time with reference to the same matter including the
law adding, omitting, varying or repealing the law so made by
the legislation. In the present case, nothing is seen from the
Central Act 24/2010 that it was intended to omit or vary or
repeal the law made by the State legislature. On the other hand,
the Parliament made law for the entire country and did not even
intend to eliminate the State enactment. 26.It will be worthwhile
to refer to certain decisions of the Supreme Court which will
have a bearing on the said subject. 27.The Supreme Court vide
its judgment in Bhagwat Singh v. State of Rajasthan,(1964) 5
SCR 1 = AIR 1964 SC 444 dealt with the question of
repugnancy in the Industrial Disputes Act i relation to the law
made by the State legislature. In paragraph 14, it was stated as
follows:
"14.It is unnecessary however to consider the merits of these
contentions because the legislature has remedied the defects, if
any, in the constitution of the Tribunal, by ending the Rajasthan
Industrial Tribunal (Constitution and Proceedings) Validating
Act, 1959, which was reserved for the consideration of the
President of India and has received his assent. By Section 2(1) of
that Act, notwithstanding any judgment, decision or order of any
Court and notwithstanding any defect or want of form or
jurisdiction, the Industrial Tribunal for Rajasthan, constituted
under Section 7 of the Industrial Disputes Act, 1947 by
Government notification dated June 2, 1953, as amended by
order dated March 9, 1956, shall, as respects the period
commencing onthe 10th day of March 1957 and ending with the
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15th day of April, 1949, be deemed to have been duly constituted
under Section 7-A of the said Act. By sub-section (2) it is
provided that notwithstanding any judgment, decision or order
of any court all references made to and all proceedings taken
and orders passed by the Industrial Tribunal constituted in sub-
section (1) between the period March 10, 1957 and April 15,
1959, shall be deemed respectively to have been made, taken and
passed as if the said Tribunal were constituted under Section 7 A
of the Act. It is clear from the validating provisions that the
Tribunal Originally constituted under Section 7 of the Industrial
Disputes Act, 1947, before it was amended by Act 36 of 1956 is
to be deemed to have been duly constituted under Section 7A,
and the reference made on December 18, 1957 is to be deemed
to have been made as if the Tribunal were constituted under
Section 7A of the amended Act. The Validating Act is because of
Item 22 List III of the Seventh Schedule to the Constitution
within the competence of the State Legislature, and it was
reserved for the consideration of the President and has received
his assent. It must by virtue of Article 254(2) prevail in the State
of Rajasthan."
28 ….
29.The Supreme Court while permitting the law to be made by
both Central and State Government has held that in order to find
the inconsistencies, it should be seen whether by abiding the
State law without flouting or violating the Central law, then it
cannot be a case of repugnancy and the laws of complementary
to each other. Both laws can stand together. Reference may be
made to the judgment of the Supreme Court in Ram Chandra
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Mawa Lal v. State of Uttar Pradesh reported in 1984 Supp SCC
28. In paragraph 50, the Supreme Court had observed as
follows:
"Is the alleged inconsistency irreconcilable or intolerable one?
50.There are degrees of inconsistency in the context of conflict of
laws. There can be apparent or surface inconsistency which may
be considered as a non-hostile, tolerable, benign, one, subject to
the unquestioned power of the Centre to override the State if so
minded. On principle, every apparent inconsistency cannot be
presumed to be hostile or intolerable. More so when the Centre
does not even raise a whisper of discord. One of the tests for
ascertaining whether the inconsistency is an irreconcilable or
intolerable one, is to pose this question: Can the State law be
obeyed or respected without flouting or violating the Central law
in letter and spirit? If the answer is in the affirmative, the State
law cannot be invalidated. Not at any rate when the State law
merely promotes the real object of both the laws, and is in the
real sense supplementary or complementary to the Central law.
In the present case the test answers in favour of the validity of
the impugned State notification. The Central notification is not
violated if the dealers sell the fertilizers from out of the existing
stocks acquired at the lower rates, for, both the notifications fix
the maximum selling price and the maximum selling price fixed
under the State notification is not higher than that fixed under
the Central notification. What is more, the State notification
promotes and serves the object and purpose of both the Centre
and the State. Promotes and serves, in the sense, that the
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manifest object of fixing maximum ceiling price is to make
available to the cultivators who grow the food for the Nation to
obtain the inputs at reasonable prices and to protect them from
exploitation so that the food production is not retared. It is not
contended even by the petitioners, for the very good reason that
it is incapable of being so contended, that the object of the price
regulation is to enable the dealers to make unconscionable
profit. Thus the impugned State notification promotes rather
than defeats, the life-aim of Central as also the State
notifications. It helps rather than hurts the objectives and goals
of the Centre, and there is no conflict whatsoever of interest,
purpose, or perspective. The State has done only that which the
Centre presumably would have readily done if it was fully aware
of the situation from all angles of vision. For, the only impact of
the impugned notification is that the cultivator for whose
protection the price regulation is essentially made, is saved from
exploitation without hurting the legitimate claim of the dealer,
who, in any case, gets his fixed profit margin of Rs 45 per ton."
The learned Judge, in making this observation, held that the earlier State
amendment would prevail despite the subsequent Central amendment to the
Industrial Disputes Act. This ruling is directly applicable to the present case.
38. In light of the proviso to Article 254(2), it must be noted that there is
no repugnancy between the Central Amendment and the earlier State
Amendment, even though both operate within the same legal framework. This is
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because, when the State Amendment received Presidential assent in 1988, the
Central Law continued to apply to industries where the appropriate government
was the Central Government. However, the Labour Court, in the impugned
award, failed to distinguish between the Central Act and the State Act and
instead incorrectly relied on the Central Act. This misapplication is evident,
especially considering that no specific pleading on the issue of limitation was
raised before the Labour Court. Even the respondent primarily focused on
justifying the action taken against the workman rather than relying on the
alleged delay as a defense.
39. Having held that the State Amendment (T.N. Act 5 of 1988) applies
to this case, the question of limitation does not arise. On the contrary, the
workman has diligently complied with the procedure prescribed under Section
2A(2) as applicable in Tamil Nadu. Aware of this legal position, the counsel for
the respondent relied on the Supreme Court’s decision in Prabhakar v. Joint
Director, Sericulture Dept. & Anr., 2015 (15) SCC 1, to argue that even in cases
of reference under the Industrial Disputes Act, delay and laches could be
considered as relevant factors. However, in the same judgment, the Supreme
Court made the following observation:
“40. ….Take, for example, a case where the workman issues
notice after his termination, questioning the termination and
demanding reinstatement. He is able to show that there were
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discussions from time to time and the parties were trying to sort
out the matter amicably. Or he is able to show that there were
assurances by the Management to the effect that he would be
taken back in service and because of these reasons, he did not
immediately raise the dispute by approaching the labour
authorities seeking reference or did not invoke the remedy
under Section 2A of the Act. In such a scenario, it can be
treated that the dispute was live and existing as the workman
never abandoned his right. However, in this very example, even
if the notice of demand was sent but it did not evoke any positive
response or there was specific rejection by the Management of
his demand contained in the notice and thereafter he sleeps over
the matter for number of years, it can be treated that he
accepted the factum of his termination and rejection thereof by
the Management and acquiesced into the said rejection.”
40. Therefore, it cannot be said that the dispute raised by the workman is
invalid on the ground of applicability of limitation under Section 2A(3) of the
Industrial Disputes Act. The same cannot be accepted. At most, any delay or
inaction on the part of the workman might have a bearing on the nature of relief
to be granted, but it does not render the dispute itself as barred by limitation
Accordingly, it must be held that the dispute is not barred by limitation, as
Section 2A(2) of the State Amendment—which applies to Tamil Nadu—does
not prescribe any limitation period. To this extent, the Labour Court erred in
passing the impugned award.
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41. Regarding the issue of alleged abandonment, it is essential to consider
whether the respondent has the authority to remove the workman from service
solely on the basis of alleged abandonment. In the absence of any such
provision, abandonment cannot be presumed; it is fundamentally a question of
intention. Although the respondent’s counsel cited the Supreme Court’s
judgment in Syndicate Bank v. General Secretary, Syndicate Bank Staff
Association & Anr., 2000 (5) SCC 65, this decision is inapplicable to the present
case. In that instance, specific provisions in the bipartite settlements for bank
employees allowed termination of service after a prescribed number of days of
absence, following due procedure. Even under such circumstances, there is no
automatic presumption of abandonment; instead, removal is effected only after
providing a reasonable opportunity to the employee.
42. This legal position was further clarified by the Supreme Court in
Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Ors., 2005 (5) SCC 337. The
Court observed as follows:
“In Syndicate Bank (supra), this Court noticed the decision of
three- Judge Bench of this Court in D.K. Yadav vs. J.M.A.
Industries Ltd. [(1993) 3 SCC 259] whereupon the Industrial
Tribunal had placed strong reliance. In D.K. Yadav (supra)
admittedly no opportunity was given to the workman and no
inquiry was held. In that situation, it was observed :
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"8. The cardinal point that has to be borne in mind, in every
case, is whether the person concerned should have a reasonable
opportunity of presenting his case and the authority should act
fairly, justly, reasonably and impartially. It is not so much to act
judicially but is to act fairly, namely, the procedure adopted must
be just, fair and reasonable in the particular circumstances of
the case. In other words application of the principles of natural
justice that no man should be condemned unheard intends to
prevent the authority from acting arbitrarily affecting the rights
of the concerned person."
43. In D.K. Yadav v. J.M.A. Industries Ltd., reported in 1993 (3) SCC
259, the Supreme Court held that abandonment cannot be presumed. If a
workman is prevented from reporting to duty, he cannot be terminated based on
mere presumption. Instead, he must be given a fair opportunity to explain his
absence. In this context, the Court made the following observations:
“ ….In this case admittedly no opportunity was given to the
appellant and no enquiry was held. The appellant's plea put
forth at the earliest was that despite his reporting to duty on
December 3, 1980 and on all subsequent days and readiness to
join duty he was prevented to report to duty, nor he be
permitted to sign the attendance register. The Tribunal did not
record any conclusive finding in this behalf. It concluded that
the management had power under Cl. 13 of the certified
Standing Orders to terminate with the service of the appellant.
Therefore, we hold that the principles of natural justice must
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be read into the standing order No. 13 (2) (iv). Otherwise it
would become arbitrary. unjust and unfair violating Arts. 14.
When so read the impugned action is violative of the principles
of natural justice....”
44. In the present case, the management consistently maintained that the
workman had absented himself and was therefore terminated from service
(Ex.W17). Although the Respondent intended to present evidence before the
Labour Court to justify their action, they ultimately did not. The sole witness,
RW1, admitted during cross-examination that the workman’s termination
followed the issuance of a charge sheet (Ex.W12) and his explanation
(Ex.W13). However, no inquiry was conducted before his termination. RW1
merely stated that he was terminated after returning from Mumbai and
accepting the same.
45. On the other hand, the workman’s stand was that after he succeeded
in the first award in I.D. No. 15/2007 dated 12.06.2013 (Ex.W1), he was
transferred to Mumbai as an act of victimization. However, upon reaching
Mumbai, he found that there was no vehicle assigned to him, and he was kept
idle without any work. After the management witness stated that they had 5 to 6
vehicles but voluntarily produced documents for only 3, he filed
I.A. No. 3/2019 requesting documents related to the vehicles kept at the
Mumbai office in response to this discrepancy. In the reply affidavit filed in the
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I.A., the workman explicitly stated that the first two documents were spurious.
Regarding the third document, he refuted the claim that Officer Eshwar
Ramasamy commuted daily by vehicle, asserting that he personally knew the
officer traveled by train. Despite these contentions, the Labour Court, without
justification, dismissed the I.A., stating that the documents might not be helpful.
46. Based on the workman's statement, it is evident that Officer Eshwar
Ramasamy traveled daily from Thane (West) to Dadar (West), covering
approximately 72 kilometers, which would take more than 3 to 4 hours each day
and incur significant petrol costs. In contrast, a train journey covering the same
route at just 10% of the cost could reach the office within half an hour. In any
case, the key issues—such as the termination of the workman’s services due to
his unwillingness to serve in Mumbai as a last-grade employee in the post of a
driver with a salary of Rs.4,250 per month, the fact that he had already
succeeded in a previous dispute, and that his transfer was an act of victimization
—were never examined by the Labour Court. Therefore, Issue No. (ii) is
answered against the Respondent. It is held that the workman never intended to
abandon his service. On the contrary, he was actively pursuing his claim
statement before the Labour Court during that period. He had also properly
raised the dispute and initially obtained an ex-parte award, which was later set
aside by this Court with an order of remand.
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47. It is evident that the workman’s services were terminated solely by
the order dated 15.07.2017, and the respondent failed to present any evidence to
justify the termination. In such circumstances, the workman, having served for
15 years, was dismissed without being given any opportunity and without being
paid any compensation. This clearly constitutes retrenchment as defined under
Section 2(oo) of the Industrial Disputes Act. Since the mandatory conditions
under Section 25F(a) and (b) were not complied with, the termination is void
ab initio.
48. In L. Robert D’Souza v. The Executive Engineer, Southern Railway
& Anr., reported in 1982 (1) SCC 645, the Supreme Court, while addressing a
case involving alleged unauthorized absence leading to termination without
compliance with the mandatory conditions under Section 25F of the Industrial
Disputes Act, held as follows:
“.....On the admission of the Railway administration, service was
terminated on account of absence during the period appellant was
on fast. Absence without leave constitutes misconduct and it is not
open to the employer to terminate service without notice and
inquiry or at any rate without complying with the minimum
principle of natural justice. Further, rule 2302 clearly prescribes
the mode, manner and methodology of terminating service of a
temporary railway servant and admittedly the procedure therein
prescribed having not been carried out, the termination is void and
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invalid. Accordingly, the same conclusion would be reached even
while accepting for the purpose of the facts of this case
simultaneously rejecting it in law that the termination does not
constitute retrenchment yet nonetheless it would be void and
inoperative.
…...
Assuming we are not right in holding that the appellant had
acquired the status of a temporary railway servant and that he
continued to belong to the category of casual labour, would the
termination of the service in the circumstances mentioned by the
Railway administration constitute retrenchment under the Act ?
Section 25F of the Act provides that no workman employed in any
industry who has been in continuous service for not less than one
year under an employer shall be retrenched by that employer until
the conditions set out in Act are satisfied. …..
….Therefore, assuming that he was a daily rated worker, once he
has rendered continuous uninterrupted service for a period of one
year or more. within the meaning of s. 25F of the Act and his
service is terminated for any reason whatsoever and the case does
not fall in any of the excepted categories. notwithstanding the fact
that Rule 2505 would be attracted, it would have to be read subject
to the provisions of the Act. Accordingly the termination of service
in this case would constitute retrenchment and for not complying
with pre-conditions to valid retrenchment, the order of termination
would be illegal and invalid.
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Accordingly, we allow this appeal, set aside the order of the High
Court and declare that the termination of service of the appellant
was illegal and invalid and the appellant continues to be in service
and he would be entitled to full back wages and costs quantified at
Rs. 2,000.”
49. In the present case, the Model Standing Orders framed by the Tamil
Nadu Government do not contain any provision allowing the removal of a
workman solely on the ground of absence for a specific period. Instead, habitual
absence is categorized as misconduct, which requires a proper inquiry.
However, in this case, the respondent neither conducted an inquiry nor took the
opportunity to present clear evidence regarding the workman’s alleged absence.
Therefore, having established that the dispute is maintainable and the
termination was not valid, the only remaining issue for consideration is the
relief to be granted to the workman.
50. Since the Labour Court failed to render findings on these crucial
issues, the question arises whether the matter should be remanded for
reconsideration. However, in Viveka Nand Sethi (cited supra), the Supreme
Court, decided the relief on its own instead of remanding the case. The Court
made the following observations:
“Keeping in view the fact that we have ourselves considered the
pleadings of the parties as also the materials on records, it is not
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necessary to remit the matter to the Tribunal as it would not serve
any purpose.”
51. Although it was contended that the workman may have been
gainfully employed elsewhere during the intervening period between 2014 and
2017, the management failed to present any evidence to support this claim. In
contrast, the workman, in his proof affidavit dated 24.08.2018, explicitly stated
that he had been jobless and remained unemployed during this period. Notably,
there was no cross-examination on this issue, nor did RW1 present any
contradictory evidence to dispute the workman’s statement.
52. In light of the judgment in L. Robert D’Souza and the finding that the
workman’s termination was in violation of Section 25F of the Industrial
Disputes Act, the impugned award of the Labour Court must be set aside.
It is hereby declared that the workman is entitled to the normal relief
of reinstatement with back wages. Accordingly, the writ petition in
W.P. No. 2955 of 2020 is allowed. The impugned award in I.D. No. 92/2018
dated 04.12.2019 is set aside, and the Respondent Management is directed to
reinstate the workman with continuity of service, full back wages, and all
attendant benefits.
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53. Since the workman has been compelled to approach the Labour
Court three times, dragged to this Court once, and further forced to seek
computation of his arrears due to the Respondent's attitude, a cost of
Rs. 10,000/- is ordered on the Respondent.
28.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
av
Copy to:
The Presiding Officer,
First Additional Labour Court,
Chennai – 600 104.
(with records if any)
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DR. A.D.MARIA CLETE, J.
av
Pre-delivery Judgment in
.02.2025
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