Madrasdated High Court · 2025

W.P.No.1445 of 2015Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records of the 1st Respondent relating to the award dated 13.12.2012, passed in I.D.No.42 of 2007 and quash the same.For Petitioner : Ms. M. SnehaFor Respondent – 1 : CourtFor Respondent – 2 : DiedFor Respondents – 3 to 5: Mr. K.V.ShanmuganathanORDERThe above writ petition has been filed to quash the Award in I.D.No.42 of 2007 passed by the Labour Court, Salem.2. The parties are referred to in the same ranking as before the Labour Court. The brief facts are as follows:The petitioner has joined the services of the respondent on 27.03.1980 and was working continuously in the said concern till he was orally terminated on 21.02.2006. His last drawn salary was a sum 2/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015of Rs.7,100/- per month. The petitioner was neither given prior notice before his termination, nor was any domestic enquiry held, and the termination therefore amounted to retrenchment and the act of the respondent-concern is a clear violation of Sections 25F, 25G, 25N and 25T. Since the conciliation proceedings failed, the matter was referred before the Labour Court, Salem in I.D.No.42 of 2007. The Labour Court had ordered reinstatement with continuity of service and back wages as well as all attendant benefits.3. The respondent had filed a counter inter-lia contending that the Management had come into existence only from 09.12.2005. Earlier, the respondent-daily paper was run by one Kandasamy and others, who had nothing to do with the respondent and were in no way connected to their publication. They would deny that the petitioner was working with them from 27.03.1980 for a monthly salary of Rs.7,100/- or that he was orally terminated on 21.02.2006. 4. It is the case of the respondent that, on enquiry, they had come 3/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015to learn that the petitioner was a Manager-marketing with the previous Management. During his service, he had collected advertisement through his subordinates, issued receipts and misappropriated over a sum of Rs.82,765/-. When he was questioned, he had voluntarily left the employment and on his request, his provident fund was released to him to the tune of Rs.2,99,595/-. After receiving the terminal benefits, the present claim of reinstatement contending that he had worked for 27 years is not maintainable. There is no relationship of employer and employee between the petitioner and the respondent. Further, it is the contention of the respondent that he had been inducted as a Manager-Marketing for Velai Vazhi katty weekly edition, taking into account his experience in marketing. The petitioner had only performed managerial functions and hardly worked for 60 days and he has not completed 240 days of work as contemplated under the Industrial Disputes Act, 1947. They had also take a defense that the petitioner is not a workman. Therefore, they sought for dismissal of I.D.4/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 20155. The Labour Court, Salem had framed the following points for consideration:(1) kDjhuh; vjph;kDjhuh; eph;thfj;jpy; neuoahd epue;ju bjhHpyhsp my;y vd eph;thfk; TwtJ rhpah>(2) kDjhuh; kDtpy; nfhhpa[s;s gpd;rk;gsk; bgw jFjp[ailatuh>6. The workman had examined himself as W.W1 and had marked Ex.W1 which is the failure report dated 05.03.2007. The respondents on their side had examined one Jayasoundarajan as M.W1 and marked Exs.M1 to M3.7. The Labour Court, on considering the evidence on record, came to the conclusion that the petitioner has been terminated without following the proceedure contemplated under the Act and therefore he would be entitled to reinstatement with continuity of service, back wages and all attendant benefits. 5/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 20158.The main contention of the learned counsel for the respondent-Management was that the petitioner had received the provident fund dues as evidenced by Ex.M3. She would also draw the attention of the Court to the admission of the petitioner as W.W1 in his cross examination that he had received the entire provident fund dues. She would also contend that the award is silent about the amount that is to be paid to the petitioner. Therefore, she prayed that this writ petition be allowed.9.Per contra, the learned counsel for the petitioner-workman would submit that the receipt of provident fund amount would in no way disentitle a workman to maintain a claim petition before the Labour Court. In support of this argument, he would rely upon a Division Bench judgement of this Court reported in 2008 SCC Online Mad 1019 [Management, Bharat Heavy Electricals Ltd Vs. Presiding Officer, Labour Court, Tiruchirapalli and another] . He would also 6/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015rely upon the judgment of the Bombay High Court reported in 2004 (1) Mh.L.J[Noble Paints Private Limited Vs Ashok Tukaram Shinde] where relying upon a judgment of the Hon'ble Supeme Court, it was held that even in case of abandonment of service, the employer has to give a notice to the workman calling upon him to resume duty and in case the workman fails to resume duty then they must hold an enquiry before terminating his services. No such action has taken place in this instant case. Therefore, he would submit that the petitioner, having worked form 1980 till his oral termination on 21.02.2006 without any prior notice, was terminated in violation of the provisions of the Industrial Disputes Act, 1947 and hence, the order of the Labour Court cannot be found fault with.10. Heard the learned counsel for the petitioner and the learned 7/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015counsel for respondents 3 to 5.11. The respondent-concern has come forward with a case that they had come into existence only in the year 2005 after taking over the company from the erstwhile management. M.W1, in his cross examination, has admitted that the agreement has not been filed and all the workmen of the earlier concern had been retained by the respondent-concern. In fact, he would submit that he himself was working as a Manager in the erstwhile Company and he was absorbed in the new management. In his cross examination, he would state as follows:ehd; giHa eph;thfj;jpy; nkyhsuhf gzpg[hp[e;J te;njd;/ giHa eph;thfk; bray;gl;L te;j nghJ kDjhuh; ifahly; bra;J te;jjhf ehd; g[fhh; vJt[k; bfhLf;ftpy;iy/ kDjhuh; jhdhf ntiyf;F tuhky; Mg;brd;l; Mfp tUtjhfnth bjhif ifahly; bra;Jtpl;ljhf Fw;wr;rhl;L Fwpg;ghiz bfhLf;ftpy;iy/ 8/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015kDjhuh; ntiyf;F M$uhtJ rk;ke;jkhf ntiyf;F M$uhf ntz;Lk; vd;W fojk; Vjk; mDg;gg;gl;ljhf vd;why; Mtz';fis ghh;j;jhy; jhd; brhy;y Koa[k;/ kDjhuUf;F g[jpa epWtdk; bghWg;g[f;F te;jnghJ mtuJ rh;tP!; Kof;fg;gl;L nehl;O!; bfhLf;fg;gl;ljh vd;why; kDjhuh; cl;gl ahUf;Fk; rh;tP!; Kof;fg;gl;L nehl;O!; bfhLf;fg;gltpy;iy/ g[jpa epWtdk; te;jgpwFk; kDjhuh; Vw;fdnt ghh;j;J te;j ntiyia jhd; bjhlh;e;J bra;J te;jhh;/12. Therefore, there is a clear and categoric admission on the part of M.W1 that the petitioner had continued to work in the same capacity as in the erstwhile Company which only goes to show that he has been in service and that there is an employer–employee relationship between the parties as the petitioner has merely purchased the business from the earlier managment. A mere perusal of the stand taken by the respondent-Company before the Conciliation Officer as well as in the counter and evidence would show the contradictory stand taken by them. The contention of the respondent-Company that the petitioner 9/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015had voluntarily left the services of the erstwhile Company has not been proved. Having admitted that the petitioner was in employment, there was nothing to show that the respondent-Company had put the petitioner on notice about his absenting himself or that he was guilty of misappropriation. There is no document filed on the side of the respondent to show that any notice was issued to the petitioner after 21.02.2006, the date from which the respondent claims the petitioner has voluntarily left. That apart, the respondent's claim that the petitioner was subsequently inducted as a Manager is also not proved by any document. The evidence of MW1 extracted supra would clearly prove that the petitioner continued in the very same post that he held under the erstwhile management. Even the allegation that the petitioner, having received the entire provident fund amount, is not entitled to maintain the claim is totally contrary to the judgment of the Division Bench cited by the learned counsel for the respondent reported in 2008 SCC Online Mad 1019 [Management, Bharat Heavy Electricals Ltd Vs. Presiding Officer, Labour Court, Tiruchirapalli and another] 10/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015wherein it has been held as follows:"22. Though the learned counsel for the management contended that the workmen have closed their PF accounts and received the same without any demur and therefore it is not open to them to claim reinstatement and other reliefs before the Labour Court, mere acceptance of the P.F. amount will not disentitle the workmen to maintain the claim petition before the Labour Court, as there is no estoppel or waiver of fundamental right.'' 13. The Labour Court, Salem has in detail discussed the evidence and come to the conclusion that the services of the petitioner had been illegally terminated and that he is therefore entitled to reinstatement with continuity of service and all attendant benefits. I see no reason to interfere with the well considered order. Accordingly, this Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.11/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 201502.07.2025Index : Yes/NoInternet : YessrnToThe Presiding Officer,Labour Court, Salem.12/13 https://www.mhc.tn.gov.in/judis W.P.No.1445 of 2015P.T.ASHA, J.srnW.P.No.1445 of 2015and W.M.P.No.6976 of 202502.07.202513/13