✦ High Court of India · 25 Nov 2024

High Court · 2024

Case Details High Court of India · 25 Nov 2024

Court

High Court of India

Decided

25 Nov 2024

Bench

Not available

Length

2,181 words

Acts & Sections

Constitution of India

W.P.Nos.15148 of 2009 and 4676 of 2010IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.11.2024CORAM :THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYW.P.Nos.15148 of 2009 and 4676 of 2010The ManagementThe Dharmapuri DistrictPolythene Workers IndustrialCo-operative Society Ltd.,Rep.by its Special OfficerIndustrial EstateDharmapuri – 5. .. Petitioner inW.P.No.15148 of 2009Vs.1.The Presiding OfficerLabour Court, Salem.2.A.Periannan .. Respondents in W.P.No.15148 of 2009A.Periannan .. Petitioner inW.P.No.4676 of 2010Vs.Page 1 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 20101.The Presiding OfficerLabour Court, Salem.2.The ManagementThe Dharmapuri DistrictPolythene Workers IndustrialCo-operative Society Ltd.,Rep.by its Special OfficerIndustrial EstateDharmapuri – 5. .. Respondents in W.P.No.4676 of 2010Prayer in W.P.No.15148 of 2009: Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorari to call for the records of the impugned award dated 08.09.2008 in I.D.No.270 of 2000 passed by the 1st respondent and quash the same.Prayer in W.P.No.4676 of 2010: Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorarified Mandamus, to call for the records pertaining to the award dated 08.09.2008 passed by the 1st respondent in I.D.No.270 of 2000, quash the same in so far as depriving the petitioner back wages and other attendant benefits and consequently direct the 2nd respondent to pay the petitioner back wages and all other attendant benefits from the date of his termination in addition to the relief granted in the award.Page 2 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010In W.P.No.15148 of 2009:For the Petitioner:Mr.Ashok Kumar for Mr.Jeevagiridharan For the Respondents:Ms.G.K.Dharshinifor Mr.V.Ajoy Khose for R2R1 – CourtIn W.P.No.4676 of 2010:For the Petitioner:Ms.G.K.Dharshinifor Mr.V.Ajoy KhoseFor the Respondents:Mr.Ashok Kumar Mr.Jeevagiridharan for R2R1 - CourtCOMMON ORDERThese Writ Petitions are filed by the Management and the Workman respectively, challenging the self-same award of the Labour Court in I.D.No. 270 of 2000 dated 08.09.2008. In the said award the Labour Court has held that the retrenchment of the Workman from the folding section of the Society is tainted with malafide and therefore, it is illegal and thus, ordered reinstatement with continuity of service, but without back wages and other monetary benefits. Page 3 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010Aggrieved by the order of reinstatement, the management has filed W.P.No.15148 of 2009 and aggrieved by the portion of the award denying the back wages, the workman has filed W.P.No.4676 of 2010.2. Mr.Ashok Kumar, the learned counsel appearing on behalf of the Society would submit that in this case, it can be seen that the petitioner is the Dharmapuri District Polythene Workers Industrial Cooperative Society Limited. It was supplying root trainers made of polythene to the Forest Department. While so, the Forest Department had taken a policy decision to procure the polythene bags by way of tender. 3. The Director of Industries and Commerce had earlier taken a policy decision concerning the cost of establishment charges and it was found that the total establishment charges were beyond 50% of the revenue of the Society. A policy, with reference to cooperative societies, is that it should not exceed 2% of the turnover; this was also implemented statewide. In the wake of the said policy, by a communication dated 02.12.1998, the inspection notes of the Additional Page 4 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010Commissioner of Industries and Commerce were enclosed and the Society was directed to take action immediately. Since the Society did not take any action, a further circular dated 27.07.1999 was also issued.4. The Board of the Society met and took a decision to retrench the three employees in the folding section and the work was entrusted to the members of the Society, who were directed to do the work on a piece rate basis. Therefore, on 15.09.1999, the Workman was retrenched from service. The retrenchment order clearly stated that the Workman could collect one month's wages and also the compensation payable as per Section 25 (F) of the Industrial Disputes Act (In short 'the Act'), immediately from the office at any working time. Since the petitioner did not collect the amount even after receiving the retrenchment order on 15.09.1999, a demand draft was issued the very next day for a sum of Rs.1,507/- towards one month's wages, Rs.12,172/- towards compensation for the 14 years of service rendered by the workman, and Rs.339/- towards overtime wages. The demand draft was enclosed with a letter dated 16.09.1999 and sent to the Workman's address through the registered post. However, the said letter was Page 5 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010returned with an endorsement that the Workman had gone out. Even subsequently, the Workman did not come over to the office and receive the said Demand Draft. In view thereof, when the dispute was raised, the Society had resisted the same by contending that the Workman was retrenched solely based on the above factual background. The legal compliances were duly made. The Labour Court found that the Society had complied with the payment of one month's wages as well as the compensation under Section 25 F of the Act. It interfered with the order of retrenchment only on the ground that it is malafide. 5. From the various communications which were duly marked as Exs.R3 to R9 it can be seen that there was no malafide whatsoever. Only by review of the cadre structure and the work which is done in the Society, three posts in the folding section were identified and the Workmen were retrenched. The finding of the Labour Court that the retrenchment is malafide, is erroneous. Merely because the work is entrusted to the members of the Society on a piece rate basis, that itself would not invalidate the Society's action. The Management was expecting a drastic reduction in the orders from the forest department. Even if less number Page 6 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010of orders are received, the Management will pay less amount depending on the orders to the members of the Society, whereas if the workman is continued in the said post, the Society has to pay the salary. Considering the said situation, the authorities have decided to retrench three persons, who were all working in the folding section. That is a decision of prudence made by the Society. The Labour Court cannot sit in the armchair of the Society and decide as to what should be done and what should not be. The jurisdiction of the Labour Court is only to see whether there was any justifiable reason or not and whether the legal mandate under Section 25 F of the Act is complied with or not. In view thereof, the Labour Court exceeded its jurisdiction and therefore the impugned award calls for interference. 6. Per Contra Ms.Dharshini, the learned counsel appearing on behalf of the respondent - Workman, taking this Court through the cross-examination of R.W.1 and also the evidence of P.W.1 would submit that when they have originally proclaimed that the very purpose of retrenchment is to save cost to the Society and when they have ended up in paying more by employing the Page 7 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010Workman on piece rate basis, then the finding of the Labour Court that the entire retrenchment is tainted with malafide was justified, and cannot be interfered with by this Court.7. She would further submit that when the Workman was retrenched in the year 1999. Earlier when the Society left the claim undefended. An exparte award was passed on 19.07.2001. On the application of the Society, it was set aside and the award was passed on 08.09.2008. Therefore, the Labour Court ought to have awarded the back wages. The Workman had also attained the age of superannuation with effect from 31.10.2010.8. Both sides learned counsel would also admit that at the time of setting aside the award, this Court directed that the wages for 2 years, that is, for the period 15.09.1999 to 30.06.2002 be deposited before the Labour Court and the said sum was permitted to be withdrawn by the Workman amounting Rs.1,17,160/-. Thereafter, the workmen have been receiving 17B wages pending the Writ Petition till the date of superannuation. Page 8 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 20109. I have considered the rival submissions made on merits and perused the material records of the case. 10. I agree that it is not for the Labour Court to sit in the armchair of the Society and decide as to who should be retrenched and it ought to simply consider whether there was a cause for retrenchment and if so whether the procedure is followed. In this case, the Society being a Cooperative Society especially pleading about the orders of the Director of Industries and Commerce as the reason for retrenchment has to stand or fall as per its pleading. It can be seen that the petitioner – Society was supplying polythene bags which were used as root trainers by the Forest Department. The Workman has been actually involved in the work of folding the polythene bags. 11. Thus, it can be seen that the petitioner–management had a night watchman, who is to guard the Society office, an attender, who would assist the higher officials, one foreman who would supervise the work, one storekeeper who would take care of the stores and stock, one accountant and one Special Page 9 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010Officer besides the Secretary. The only three souls who are doing the actual work of the Society are the folders, everybody else was in the administrative work of Society. In the said backdrop, upon review of the Society, the Director of Industries felt that when there is a Secretary, the post of Accountant was unnecessary. Sweeping all the recommendations under the carpet simply, the Society had targeted only the three persons who were doing the actual activity of the Society. In that view of the matter, even though normally it may not be for the Labour Court to look into the justification or to go into the details of the reason that is mentioned as justification, in the special facts and circumstances of the case, because the Society is a Cooperative Society and it is pleading that it went by the dictates of the higher officials, I am of the view that no exception whatsoever can be taken to the finding of the Labour Court that the retrenchment was unjustified, and accordingly, I find that the award of the Labour Court concerning reinstatement with continuity of service was justified.12. Concerning the claim of the Workman regarding the back wages, though the denial of the entire back wages is indeed harsh, it can be seen that full Page 10 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010wages for the period from 15.09.1999 to 30.06.2002 being a sum of Rs.1,17,160/- has been received by the petitioner - Workman. The Workman has also been receiving the 17 B wages from 2009 to 2010. Therefore, it cannot be said that the Workman did not receive any amount at all. Considering the overall facts and circumstances of the case and the pleading regarding the financial position of the Society and the length of non-employment, etc., I am of the view that the award of the Labour Court need be interfered regarding back wages to an extent that a sum of Rs.1,17,160/- and the 17 B wages which are paid between 2009 and 2010 alone shall stand receivable as back wages by the Workman and no further arrears be paid. 13. In the result, these Writ Petitions are disposed of on the following terms:-(i) The award of the Labour Court made in I.D.No.270 of 2000 dated 08.09.2008 is upheld in as much as it orders reinstatement of the petitioner, with full continuity of service;(ii) As far as the back wages are concerned, the fact that the Workman has Page 11 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010received Rs.1,17,160/- being the wages from 15.09.1999 to 30.06.2002 and that the 17 B wages from 2009 up to the date of superannuation i.e., 31.10.2010 and no further amount need be paid as back wages;(iii) Treating the Workman as superannuated from service with effect from 31.10.2010, all the terminal benefits including the gratuity and all other amounts due shall be paid;(iv) The gratuity amount shall be paid with statutory interest from the date of superannuation till the date of disbursement, within eight weeks from the date of receipt of a website-uploaded copy of this order, without waiting for the certified copy of the order;(v) All the other dues payable to the Workman shall also be disbursed within eight weeks from the date of receipt of a website-uploaded copy of this order, without waiting for the certified copy of the order;(vi) No costs. 25.11.2024Neutral Citation : Yes JerPage 12 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010ToThe Presiding OfficerLabour Court, Salem.Page 13 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.15148 of 2009 and 4676 of 2010D.BHARATHA CHAKRAVARTHY, J.,Jer W.P.Nos.15148 of 2009 and 4676 of 2010 25.11.2024Page 14 of 14

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