✦ High Court of India · 09 Dec 2024

High Court · 2024

Case Details High Court of India · 09 Dec 2024

Court

High Court of India

Decided

09 Dec 2024

Bench

Not available

Length

2,160 words

Acts & Sections

Constitution of India Industrial Disputes Act 1947

W.P.Nos.7288, 8378 of 2004 and 1422 of 2006IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.12.2024CORAM :THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYW.P.Nos.7288, 8378 of 2004 and 1422 of 2006W.P.No.7288 of 2004:1.The Management of M.Aslam Aejaz & CoRepresented by its PartnerM.Aejaz Ahmed2.The Management of M.Aslam Aejaz & Co., .. PetitionersVs.1.The Presiding OfficerLabour Court, Vellore.2.Y.Mannan3.Sundarar4.P.Vinayagam5.V.K.Panneerselvam6.Nandan7.K.Dass8.N.Ansar9.B.Nishar10.SadhullaPage 1 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 200611.Tamilarasan12.Joint Secretary to GovernmentLabour & Employment Dept.Government of Tamil NaduFort St.George, Chennai – 600 009.13.District CollectorChennai Dist.14.District CollectorVellore Dist. .. RespondentsPrayer: Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorari, to call for the records of the 1st respondent in C.P.No.238 of 2002 and quash its order dated 30.10.2003 and pass such further or other orders.For the Petitioners:Mr.Anantha Krishnan For the Respondents:For R1 – Labour CourtMr.K.M.RameshSenior CounselAssisted by Mr.V.Subramani for RR2 to 11Mr.K.SurendranAGP for RR12 to 14 W.P.No.8378 of 2004:Page 2 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 20061.The Management of M.Aslam Aejaz & CoRepresented by its PartnerM.Aejaz Ahmed2.The Management of M.Aslam Aejaz & Co., Thuthupet, Ambur – 638 811.Vellore Dist. .. PetitionersVs.1.The Presiding OfficerLabour Court, Vellore.2.E.Anbu3.S.Amadhulla4.S.Anbarasan5.P.Munusammi6.K.Perumal7.Joint Secretary to GovernmentLabour & Employment Dept.Government of Tamil NaduFort St.George, Chennai – 600 009.8.District CollectorChennai Dist.9.District CollectorVellore Dist. .. RespondentsPage 3 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006Prayer: Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorari, to call for the records of the 1st respondent in C.P.No.239 of 2002 and quash its order dated 30.10.2003 and pass such further or other orders.For the Petitioners:Mr.Anantha Krishnan For M/s Agam LegalFor the Respondents:For R1 – Labour CourtMr.S.Jagadeeswaranfor RR2 to 6Mr.K.SurendranAGP for RR7 to 9 W.P.No.1422 of 2006:1.P.Munusamy2.P.Vinayagam3.S.Anbarasan4.Y.Mannan5.K.Doss6.V.K.Panneerselvam7.S.Sundar8.S.Amanullah9.E.Anbu .. PetitionersVs.1.The Presiding OfficerLabour Court, Vellore.Page 4 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 20062.M.Aslam Aejaz TanneryTuthipattu, Ambur, Vellore District.3.M.Aslam Aejaz and Company41, Gajapathy Street, Shenoy NagarChennai – 600 030.4.M/s. New Line Leathers149, 100 Feet Road, Senthil NagarChennai – 600 098. .. RespondentsPrayer: Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorari, to call for the records of the 1st respondent in I.D.Nos.266/2002, 269/2002, 271/2002, 272/2002, 273/2002, 275/2002, 276/2002, 278/2002 and 279/2002 and quash the common award made therein dated 13.04.2005, in so far as the 1st respondent has denied and negatived the claim of the petitioners for reinstatement in service, with back wages, with continuity of service and with all other attendant benefits and to pass such other order or direction.For the Petitioners:Mr.K.M.RameshSenior CounselAssisted by Mr.V.SubramaniFor the Respondents:For R1 – Labour CourtMs.M.Ramyafor M/s Mc Gan Law Firmfor R4Mr.P.Raghunathan Page 5 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006for M/s T.S.Gopalan & Co.for R2Mr.Anantha Krishnan for M/s Agam Legal for R3 COMMOM ORDER These Writ Petitions are connected to each other and as such taken up and disposed of by this common order.2. The brief facts leading to the filing of the Writ Petitions are that the Workmen raised a dispute that they were non-employed by the Management and upon failure of conciliation, they made Claim Petition under Section 2 (A) (2) of the ID Act, which was taken on file as I.D.Nos.266/2002, 269/2002, 271/2002, 272/2002, 273/2002, 275/2002, 276/2002, 278/2002 and 279/2002. The claim of the Workmen is that they are working in the petitioner – Management for more than 15 years. While so, on 04.03.2003, without any justification whatsoever they were refused work. The petitioner -Management have made some agreements between themselves to which the Workmen were not a party. Therefore, they prayed reinstatement with Page 6 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006continuity of service and back wages. 3. The petitioner – Management resisted the claim stating that since there was no work, it was unable to carry on the Concern further. Therefore, it was agreed by everyone else that they will receive Rs.1,500/-. Even thereafter, when job work was attempted to be taken up, there was not enough work. Already, the Workmen have agreed that the concern is closed. Hence, there is no question of reinstatement.4. The 3rd respondent in W.P.No.1422 of 2006 filed a separate counter. It is their case that it has taken over the place on lease and is running the Concern. At that time, it was ascertained that in respect of the erstwhile employees some negotiations were going on and the dispute was pending. The 3rd respondent has got no privy with these Workmen and the Workmen are unnecessarily interfering with the business of the 3rd respondent and therefore they filed a suit in O.S.No.103 of 2002 and injunction was also granted in the said suit. Since there is a genuine taken over of the Page 7 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006Management, at best the employees can only claim the compensation under Section 25 (FF) of the Industrial Disputes Act, 1947 (in short 'the Act') and cannot claim reinstatement and back wages.5. A reply was also filed by the Workmen with reference to the said pleadings. With the said pleadings the Labour Court took up the enquiry. In the enquiry, on behalf of the Workmen one Anbarasan was examined as W.W.1 and Exhibits W.1 to W.4 were marked. On behalf of the petitioner – Management one Ramesh Babu was examined as M.W.1 and one V.Asrar Ahamed was examined as M.W.2 and Exhibits M.1 to M.9 were marked.6. The Labour Court considered the case of the parties and upheld the transfer of the Management as genuine. The Labour Court thereafter, granted the relief of compensation under Section 25 (FF) of the ID Act. Aggrieved by the same, the Workmen have filed W.P.No.1422 of 2006 while the Management has filed W.P.No.8378 of 2004. 7. Heard, Mr.K.M.Ramesh, the learned Senior Counsel appearing on Page 8 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006behalf of the Workmen; Mr.Anand Gopalan, the learned counsel for the petitioner – Management in W.P.Nos.7288 and 8378 of 2004. Mr.P.Raghunathan, learned counsel for the 2nd respondent in W.P.No.1422 of 2006.8. The learned Senior Counsel appearing on behalf of the Workmen would submit that in this case, the plea of the Workmen is that the very same Management had tried to non-employ the petitioners by pleading as if the Management was not in operation. No proper proceedings of intimating about the closure of the original concern or any notice with reference to retrenchment was given. The transfer is sham and nominal. Therefore, the Labour Court ought not to have stopped with the compensation under Section 25 (FF) of the Act, but ought to have ordered reinstatement with back wages.9. Per contra, Mr.Anand Gopalan, the learned counsel appearing on behalf of the Management would submit that in this case, the Management had let in evidence and after considering all the documents, the Labour Page 9 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006Court had found that the transfer of undertaking as genuine. The Management is aggrieved only because, the Workmen had already agreed to receive a sum of Rs.1,500/- and have not proved their claim otherwise. Therefore, he would submit that the Writ Petition filed by the Management has to be allowed. 10. I have considered the submissions made on either side and perused the materials evidence on record.11. After considering the case of the parties, the Labour Court has gone in detail about the oral and documentary evidence on record including the lease agreement dated 21.04.2002, the order passed by the Inspector of Factories dated 29.08.2002, the name change with reference to electricity and other services, the forms which are filed by the new Management before the Labour Welfare Officer, etc., and have considered the same and has found that the transfer of undertaking is genuine and it is not sham and nominal. I do not find any reason to interfere with the same. Once the Labour Court found that the transfer of undertaking as genuine, then the Page 10 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006Workmen are entitled to compensation with reference to Section 25 (FF) of the Act. 12. In view thereof, I am of the view that the award does not call for any interference. However, considering the efflux of time, and that the said amount is not being paid to the Workmen, the said compensation has to be paid with further interest at the rate of 9 % per annum from 01.07.2002 till the date of payment. This apart, the Workmen would also be entitled for the gratuity amount along with statutory interest in respect of the service put in by them.13. Having adjudicated the issue it has been now brought to the notice of this Court that of the nine Workmen, three of them, viz., P.Nissar, S.Amanulla and S.Ansar have settled the issue with the Management and therefore, nothing remains to be adjudicated with respect to them. In view of the above finding, the Writ Petition No.1422 of 2006 stands disposed of on the following terms:- (i) the Writ Petition in respect of the Workmen, viz., S.Amanulla is Page 11 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006dismissed as having settled the issue with the Management. In respect of other petitioners, the respective awards made in I.D.Nos.266/2002, 269/2002, 271/2002, 272/2002, 273/2002, 275/2002, 276/2002 and 279/2002 dated 13.04.2005 shall stand confirmed in as much as it orders the payment of compensation under Section 25 (FF) of the Act. However it has been modified with the following modifications:- (a) That the compensation payable under Section 25 (FF) shall be calculated in respect of each of the eight petitioners and shall be paid with further interest at the rate of 9 % per annum from the date on which the amount become payable i.e., 01.07.2002 till the date of disbursement. (b) The petitioners will also be entitled to the gratuity amount for the period of service put in by them and the same shall also be paid with statutory interest. (c)The Management shall complete the exercise of calculating the amount payable and pay the Workmen along with interest within a period of 12 weeks from the date of receipt of a copy of this order; (d) If any of the Workmen is no more, the amounts shall be paid to the legal heirs and for that issue no further necessity coming back to this Page 12 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006Court by way of substitution or any other petition.(ii) No costs.W.P.Nos.7288 and 8378 of 2004:14. These two Writ Petitions are filed by the Management with reference to the orders passed by the Labour Court in two computation petitions filed by the self same Workmen. When the matter was pending, it is represented by the learned counsel on either side that pending the Writ Petitions the matters have since been settled with reference to the 3rd respondent in W.P.No.8378 of 2004 viz., S.Amanulla and the respondents 8 and 9 viz., P.Nissar and S.Ansar in W.P.No.7288 of 2004. Since the matters have settled between the parties outside the Court, in respect of them no further adjudication is necessary and the sums deposited by the Management in respect of the said Workmen is permitted to be withdrawn by the Management. The sum if any to the shares of those three Workmen along with accrued interest shall be permitted to be withdrawn by the Management. In respect of the other Workmen, on instructions, the learned Page 13 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006counsel appearing on behalf of the management would submit that he is no more pressing the Writ Petitions and accordingly, the Writ Petitions stand dismissed as withdrawn. Since the Writ Petitions are permitted to be withdrawn in respect of those Workmen since already the amounts are in deposit to the credit of the respective computation petitions without insisting on any formal application, upon production of the copy of this order along with a memo, the Labour Court shall pay out the amounts by issuing a cheque with reference to the amounts deposited, with reference to each of the Workmen along with accrued interest if any. If any of the Workmen had since passed away, the Legal Heirs shall also file an application for substitution and upon the LRs being substituted, the LRs can be paid the amounts along with the accrued interest. 15. The Writ Petition Nos.7288 and 8378 of 2004 are disposed of on the above terms. No costs. 09.12.2024 Page 14 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006Neutral Citation: Yes JerTo1.The Presiding OfficerLabour Court, Vellore. 2.The Joint Secretary to GovernmentLabour & Employment Dept.Government of Tamil NaduFort St.George, Chennai – 600 009.3.The District CollectorChennai Dist.4.The District CollectorVellore Dist.D.BHARATHA CHAKRAVARTHY , J. Jer Page 15 of 16 https://www.mhc.tn.gov.in/judis W.P.Nos.7288, 8378 of 2004 and 1422 of 2006W.P.Nos.7288, 8378 of 2004 and 1422 of 2006 09.12.2024Page 16 of 16

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