Madras High Court
The Management vs The Presiding Officer on 28 January, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2025:MHC:253
W.P.No.254 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on : 19.12.2024
Orders pronounced on : 28.01.2025
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.254 of 2010
and M.P.Nos.1 to 3 of 2010
The Management,
Shri Anandakumar Mills Limited,
Saravanampatti Post,
Coimbatore - 35.
Represented by its General Manager .. Petitioner
Versus
1. The Presiding Officer,
Labour Court,
Coimbatore.
2. K.Venkidusamy
3. P.Velmurugam
4. R.Ruckmani
5. R.Shanmugasundaram
6. V.Gunasekaran
7. A.Pannerselvam
8. A.R.Kaliappan
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1/20
W.P.No.254 of 2010
9. V.A.Sundaramurthy .. Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
praying for a Writ of Certiorari to call for the records connected with
C.P.No.597 of 2006, C.P.No.598 of 2006, C.P.No.599 of 2006, C.P.No.600
of 2006, C.P.No.601 of 2006, C.P.No.602 of 2006, C.P.No.603 of 2006 and
C.P.No.605 of 2006 on the file of the 1st respondent, The Presiding Officer,
Labour Court at Coimbatore and quash common order made therein, dated
24.06.09.
For Petitioner : Mr.S.Shivathanu Mohan
and M/s.N.Swathy,
for M/s.S.Ramasubramaniam and
Associates
For Respondents : R1 - Labour Court
: Mr.S.Mukunth, Senior Counsel,
Asst. by Mr.N.Krishna Kumar,
for M/s.Sarvabhauman Associates,
for RR-2 to 9
ORDER
This Writ petition is filed challenging the common order, dated
24.06.2009 passed by the Labour Court, Coimbatore in C.P.Nos.597 to 603
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and 605 of 2006. By the said order, the Computation Petitions, filed by the
eight workmen, who are arrayed as respondent Nos.2 to 9 herein, were
partly allowed. A sum of Rs.1,04,500/- to the petitioner in C.P.No.597 of
2006, a sum of Rs.1,00,700/- to the petitioner in C.P.No.598 of 2006, a sum
of Rs.1,02,600/- each to the petitioners in C.P.Nos.599 to 603 of 2006 and a
sum of Rs.1,04,500/- to the petitioner in C.P.No.605 of 2006 were ordered
to be paid.
2. The claim of the workmen before the Labour Court is that they are
the employees of the mill. There were 190 permanent employees, 152
badlis and 26 apprentices in the management mill, which is a Group - D
mill. On 17.05.1996, the management entered into a settlement under
Section 18(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as
the 'Act'), in which, it agreed to accord permanency to the badlis and
apprentices who had put in 45 months of continuous service. However, the
settlement was not implemented. Therefore, the trade union raised a
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dispute. A failure report was submitted on 06.06.2003.
3. Under the circumstances, the management, with an ulterior motive,
failed to pay electricity charges and attempted to stop the operation of the
mill. Again, a fresh dispute was raised before the Assistant Commissioner
of Labour and even though workers agreed to increase the productivity by
100%, the management refused to operate the mill and intended to engage
coolies. On 06.07.2003, the management also declared a lockout without
following the provisions of the law. Thereupon, the Assistant
Commissioner of Labour sent a report on 09.01.2004 informing all these
facts. The Government referred the dispute to the Industrial Tribunal for
adjudication. The earlier dispute was also referred for adjudication as per
G.O.D.No.1195, dated 16.09.2004. The same was pending in I.D.No.444 of
2004.
4. In the meanwhile, the management obtained resignation letters
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from some of the employees and paid compensation to them. The workmen,
involved in the present case, did not accept the demands of the management
and did not resign their job. While so, on 07.01.2005, the management
issued a notice to the workman Nos.2 to 10 that from 06.07.2003, they were
discharged from service. The workmen sent a reply on 21.01.2005 refuting
the allegations. When the dispute raised is already pending before the
Court, the order of dismissing the workmen on 07.01.2005 with effect from
06.07.2003 is illegal. The management ought to have obtained permission
to dismiss the workmen from service. Therefore, the order of dismissal of
the workmen is illegal and thus, the workmen are entitled to salary and other
benefits for the period from 06.07.2003 to 31.01.2005. Therefore, the Claim
Petitions were filed.
5. The Claim Petitions were resisted by the management. The
operation of the mill was stopped only because of an increase in the cost of
raw materials, whereby, the management was not able to sell the yarn even
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for the market prices. Therefore, on 06.07.2003, the operation of the mill
was temporarily suspended. It was informed to the workers that they will
not be entitled to salary and the lay-off salary for the suspension period. The
management only suspended the operation of the mill and did not close
down the mill. The dispute raised by the Labour Union is pending in
I.D.No.444 of 2004. The Computation Petitions are not maintainable as
they do not have any pre-existing rights. Out of 365 workers, 352 workers
have settled their claim under the Section 18(1) settlement. It is open for the
workman Nos.2 to 9 settle their claim or if they agree to abide by the new
conditions of the new management, they can continue the employment.
6. On the said pleadings, the Labour Court proceeded with the
enquiry. On behalf of the workmen, one A.R.Kaliappan was examined as
W.W.1 and Exs.W-1 to W-2 were marked. On behalf of the management,
one Vaideeswaran was examined as M.W.1 and Exs.M-1 to M-3 were
marked. The Labour Court found that the issue relating to the lay-off of the
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workmen was already referred to the Labour Court and was pending in
I.D.No.444 of 2004. There is no dispute that the present workmen are also
concerned in the said dispute. Therefore, the management ought to have
complied with Section 33(2)(b) of the Act and by relying upon the judgment
reported in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., Vs. Ram Gopal
Sharma and Ors. , the Labour Court held that there is a violation of Section
33(2)(b) of the Act. Thereafter, while denying the bonus and Earned Leave
etc., computed the wages payable to the workmen and granted the order.
Aggrieved by which, the management is before this Court.
7. Mr.S.Shivathanu Mohan, learned Counsel for the management
would submit that firstly, when the workmen were terminated by the
management without questioning the non-employment, they cannot
straightaway apply Section 33C(2) of the Act. In support of his proposition,
the learned Counsel would rely upon the judgment of the Hon'ble Supreme
Court of India in Bombay Chemical Industries Vs. Deputy Labour
1 (2002) 1 LLN 639
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Commissioner and Anr. , more specifically, relying upon paragraph No.8,
whereunder, it was held that the Labour Court has no jurisdiction and cannot
adjudicate dispute of entitlement or the basis of the claim of the workmen in
an application under Section 33C(2) of the Act.
8. The learned Counsel would submit that even though the Industrial
Dispute in I.D.No.444 of 2004 was pending, by taking this Court through
Section 33 of the Act, would submit that under Section 33(1) of the Act,
prior permission is needed if the action is directly connected with the
dispute. If it is unconnected with the dispute, approval is envisaged under
Section 33(2) of the Act. Both under Sections 33(1) and 33(2) of the Act, it
is only held that if any condition of service is to be altered, then, the prior
permission or the approval, as the case may be, is necessary. Similarly, if
only the workmen are discharged or dismissed from the service on account
of misconduct, Sections 33(1)(b) and 2(b) can be invoked. Whether it is
only a termination simpliciter, it is neither a discharge or dismissal of
2 (2022) 5 SCC 629
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service on account of misconduct nor it is any alteration of any condition of
service. In that case, Section 33 of the Act is not attracted. The learned
Counsel would rely upon the judgment of the High Court of Rajasthan
(Jaipur Bench) in Babu Lal Vaishnav Vs. Industrial Tribunal and Ors. ,
more fully, relying upon paragraph Nos.15 to 17 of the said judgment.
9. Mr.S.Shivathanu Mohan would further rely upon the judgment of
the Kerala High Court in Kunjan Manu and Ors. Vs. Aspinwalla and Co.
Ltd., and Ors. , more specifically relying upon paragraph No.26, to contend
that unless the discharge is for misconduct, Section 33(2) of the Act would
not be attracted. The learned Counsel would further submit that in this case,
unless the termination is punitive, it is to be deemed as termination
simpliciter. Unless the foundation of termination is misconduct, it cannot be
termed as punitive. The learned Counsel would rely upon the judgment of
the Hon'ble Supreme Court of India in the State of U.P and Ors. Vs. Ashok
3 2008 (3) ILR (Raj) 428
4 AIR 1963 Ker 264
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Kumar . He would therefore submit that when the workmen did not raise
any dispute challenging their termination, no relief would have been granted
in the Computation Petitions. There was no necessity to take any prior
permission or approval as Section 33 of the Act is not attracted in case of
termination simpliciter.
10. Per contra, Mr.S.Mukunth, learned Senior Counsel for the
workmen, would submit that in this case, identical Computation Petitions
were filed in C.P.No.95 of 2019, etc., and during the execution, the
management had agreed to pay the amount, and by way of a joint memo, the
matters were settled. The management also settled the claim made in certain
other Computation Petitions. All the calculations are made on the same
facts and circumstances, and therefore, the management cannot pick and
choose to contest one matter alone while complying with the same
concerning others.
5 (2005) 13 SCC 652
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11. The learned Counsel would rely upon the judgment of the Hon'ble
Supreme Court of India in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.,'s
case (cited supra), more specifically on paragraph Nos.13 to 15, to contend
that once the management, which is liable to take prior permission or
approval under Section 33 of the Act, does not do the same, the order of
termination is void per se and therefore, the workmen were right in
requesting for computation of the benefits. When there was no lawful
termination and the action is deemed to be void, then, there was no necessity
to raise a dispute and straightaway Computation Petitions can be filed.
There is a pre-existing right concerning the salary and the same was
computed by the Labour Court.
12. The learned Counsel would place reliance on the judgment of the
Hon'ble Supreme Court of India in Sri Dorairaj Spintex Vs. R.Chittibabu
and Ors. , where, the Hon'ble Supreme Court of India elucidated the term
'connected with the dispute' arising in Section 33(1)(b) of the Act and the
6 (2021) 12 SCC 38
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learned Counsel would submit that in this case, when the earlier dispute was
regarding the lockout, the present action of the management is directly
connected to the dispute. The learned Counsel would also rely upon the
judgment of this Court in Puthiya Jananayaga Thozilalar Munnai Vs.
Government of Tamil Nadu and Anr. (W.P.No.44768 of 2016, dated
29.12.2016), more specifically relying upon paragraph No.7, to contend that
when the management failed to discharge a statutory obligation, then, there
is no need for the employee to knock at the Courts of Justice to get a
dismissal or discharge or any order of set aside as non-compliance of the
statutory provision would make the order non-est in the eye of law.
13. I have considered the rival submissions made on either side and
perused the material records of the case.
14. The proposition that if the employees' services are dispensed with
by way of termination simpliciter, the same would not fall either under
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Section 33(1)(a) 'alteration of conditions' or 33(1)(b) 'discharge, dismissal
for misconduct' has to be accepted. The said position would not only be
clear from the judgment of the High Court of Rajasthan, relied upon by the
learned Counsel for the management in Babu Lal Vaishnav's case (cited
supra), but also was categorically held so by the Hon'ble Supreme Court of
India in Mahendra Singh Dhantwal Vs. Hindustan Motors Ltd., and Ors. .
It is useful to reproduce paragraph No.32 of the said judgment which reads
as follows:-
"32. It is, however, unexceptionable that if an
employer passes an order of termination of service in
exercise of his right under a contract or in accordance with
the provision of the standing orders and the tribunal finds
that the order is not on account of any misconduct, the
question of violation of Section 33 would not arise."
15. It also held in paragraph No.24 of the same judgment, as follows:-
"24. Termination simpliciter or automatic
termination of service under the conditions of service or
under the standing orders is outside the scope of Section
33 of the Act. This does not mean that the employer has
the last word about the termination of service of an
employee and can get away with it by describing it to be a
7 AIR 1976 SC 2062
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simple termination in his letter of discharge addressed to
the employee. It is also not a correct proposition of law
that in case of a complaint under Section 33-A the tribunal
would be debarred from going into the question whether
notwithstanding the form of the order, in substance, it is an
action of dismissal for misconduct and not termination
simpliciter."
Therefore, merely because the management calls the termination a
termination simpliciter, the statutory obligation under Section 33 of the Act
will not be automatically obliterated, but, still, the Court has to see whether
the termination is a termination simpliciter or not.
16. Admittedly, the impugned order of termination is dated
07.01.2005. The relevant portion in paragraph No.2 of the said order reads
as follows:-
"Mdhy; ck;kplkpUe;Jk;. ck;ikg;nghy; 15
- f;Fk; Fiwthd rpy bjhHpyhsh;fsplkpUe;Jk;.
,d;W tiu ve;jj; jftYk; ,y;iy/ nkYk;.
,dpnkYk; ck;ikg;nghd;w 15 egh;fisf;
bfhz;L. Miyia kPz;Lk; elj;j ve;j
tha;g;g[k; ,y;iybad;W ckf;F ed;whfj;
bjhpa[k;/ Mfnt. ckJ ed;ikiaf; fUjpna.
kw;w vy;yh bjhHpyhsh;fSk; ntiyapypUe;J
tpyfpf; bfhz;L. j';fs; j';fs; ed;ikiag;
ghJfhj;Jf; bfhz;lJ nghy; ,Ug;gjw;f;F
ck;ika[k; Miy ntiyapypUe;J tpyf;fp
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tpLtJ vd;w ,aw;if epahaj;jpw;F cl;gl;L.
ck;ik 06/07/2003 njjpapypUe;J. Miyg;
gzpapypUe;J tpyf;fg;gLfpwPh; (Discharge
Simplicitor) vd;gij mwpat[k;/"
17. It can be seen in the instant case that even the case of the
management is that on 06.07.2003, it did not close the mill, but, indulged
only in interim suspension of the operation of the mill. Therefore, the
employer-employee relationship was there. However, by the order, dated
07.01.2005, when these workmen continued in service up to the said date,
they were terminated from service with retrospective effect on 06.07.2003.
18. In that view of the matter, firstly, it cannot be held to be a
termination simpliciter and it can only be on account of the management
because when 352 workers out of 365 workers have settled their claim, these
workmen alone did not settle the claim and they are perceived to be
misconduct, the termination is made. Therefore, here, the foundation of the
action can only be the action of the workmen in not toeing the line of the
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management and settling their claim by resigning their job under Section
18(1) settlement and accordingly, the order is nothing but punitive. Once it
is punitive, it attracts Section 33(1)(b) of the Act.
19. Further, it can be seen that the Industrial Dispute in I.D.No.444 of
2004 was pending from the year 2004. When, pending the Industrial
Dispute, these workmen de jure continued to be in service and by the order,
dated 07.01.2005, they were retrospectively terminated, then, all the
conditions of service, such as payment of salary or lay-off compensation
etc., which they are entitled to during the pendency of the Industrial Dispute,
stood altered. Therefore, when the termination is retrospective, it cannot
termed as termination simpliciter and the argument of the learned Counsel
for the management that Section 33 of the Act will not attract, cannot be
accepted. The impugned action in the instant case is firstly punitive and
secondly alters the conditions of service when the workmen were deemed to
be in service by a retrospective action of termination and therefore, both
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limbs of Section 33(1) or 33(2) of the Act stood attracted.
20. In that view of the matter, when the order is passed without
getting prior permission or approval, as per the dictum of the Hon'ble
Supreme Court of India in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.,'s
case (cited supra), the order of termination is void ab initio. Therefore,
when the order of termination is non-est in law, as held by this Court in
Puthiya Jananayaga Thozilalar Munnai's case (cited supra), it was not
incumbent upon the workmen to separately challenge the dismissal or
discharge and to get it set aside. In the absence of any termination, then,
their vested right of payment of salary to be computed under Section
33(1)(2) of the Act, cannot be disputed. Accordingly, I do not find any error
whatsoever in the order passed by the Labour Court.
21. Finding no merits, this Writ Petition stands dismissed. There shall
be no order as to costs. Consequently, the connected miscellaneous
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petitions are closed.
28.01.2025
Neutral Citation : yes
grs
To
1. The Presiding Officer,
Labour Court,
Coimbatore.
2. The Section Officer,
V.R. Section,
High Court of Madras.
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D.BHARATHA CHAKRAVARTHY, J.
grs
and M.P.Nos.1 to 3 of 2010
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28.01.2025
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