Writ Petition No. 5290 of 2012 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.12.2012CORAMTHE HON'BLE MR.JUSTICE D.HARIPARANTHAMANWrit Petition No.5290 OF 2012D.RAMESH [ PETITIONER ]Vs1 UNION TERRITORY OF PUDUCHERRY REP. BY ITS SECRETARY DEPARTMENT OF LABOUR AND EMPLOYMENT CHIEF SECRETARIAT BEACH ROAD GOUBERT AVENUE PUDUCHERRY-605 001.2 THE COMMISSIONER OF LABOUR 2ND FLOOR LABOUR COMPLEX GANDHI NAGAR PUDUCHERRY-605009.3 THE MANAGEMENT OF LARSEN AND TOUBRO LIMITED REP. BY ITS MANAGING DIRECTOR REGISTERED OFFICE: L&T HOUSE BALLARD ESTATE, P.B.NO.278, MUMBAI-400001.4 THE DEPUTY GENERAL MANAGER - WORKS (TLT&RM) LARSEN AND TOUBRO LIMITED ECC DIVISION (ENGINEERING AND CONSTRUCTION AND CONTRACTS)PONDICHERRY WORKS, MYLAM ROAD SEDARAPET, PONDICHERRY-605111. [ RESPONDENTS ]This writ petition is filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Mandamus directing the1st respondent herein to prosecute or authorise the prosecution of the 3rd and 4th respondents for failure to implement the Award inI.D.59 of 2001 pronounced on 31.01.2003. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.K.Sudalaikannu For respondents : Mr.P.Murugesan Government Pleader for R1 Mr.G.Venkatraman for M/s.Aiyar & Dolia for R4

O R D E RThe petitioner was a workman employed by the third respondent. Hewas terminated from service by an order dated 21.8.1998. He took up the matter before the Labour Court, Pondicherry in I.D.No.59 of 2001when the industrial dispute regarding the non-employment was referred for adjudication by the Pondicherry Government. The Labour Court, Pondicherry, passed an award dated 31.1.2003 in I.D.No.59 of 2001reinstating the petitioner with 50% back wages.

Against the said award, the Management filed a writ petitionin W.P.No.11476 of 2003 to quash the aforesaid award. During thependency of the writ petition, the petitioner was paid 17(B) wages and he was not reinstated in service. Ultimately, the writ petition was dismissed on 8.2.2011. Challenging the said order dated 8.2.2011made in W.P.No.11476 of 2003, the Management filed a writ appeal inW.A.No.578 of 2011. The writ appeal in W.A.No.578 of 2011 was dismissed on 7.4.2011. Thereafter, the petitioner made requests dated9.5.2011, 9.6.2011 and 14.6.2011 to the Management to reinstate him with 50% back wages, as directed by the Labour Court, Pondicherry.

Since the award attained finality, the Management reinstated the petitioner by an order dated 25.7.2011. However, the grievance of the petitioner was that the award was not fully complied with and 50%back wages was not paid. The petitioner made a request dated 26.8.2011through his lawyer for 50% back wages. It is stated therein that if the back wages was not paid, the petitioner will be constrained to prosecute the Management under Section 29 of the Industrial DisputesAct, 1947, for committing breach of the award.

In the said circumstances, the petitioner was discharged from service by an order dated 22.11.2011 by the Management. The discharge was on the ground that the petitioner was medically unfit. While so, the petitioner made a complaint to the Labour Officer,(Conciliation), Pondicherry, that the discharge from service amounts to unfair labour practice and therefore, the Management is liable tobe punished. The Labour Officer, Pondicherry, held enquiry on the complaint on various dates. The petitioner also sent notice dated13.12.2011 to the Commissioner of Labour, Pondicherry, bringing his notice about the illegal discharge by the Management and also the https://hcservices.ecourts.gov.in/hcservices/ unfair labour practice committed by them. In the circumstances, the petitioner has filed this writ petition seeking for a direction to the first respondent to prosecute the third and the fourth respondents for failure to implement the award dated 31.1.2003 inI.D.No.59 of 2001.

Heard the learned counsels for both sides.

Though the prayer in the writ petition was for a direction to the first respondent to prosecute the third and the fourth respondents for failure to implement the award dated 31.1.2003 inI.D.No.59 of 2001, the learned counsel for the petitioner has submitted that the petitioner would be satisfied, if a direction is issued to the first respondent to refer the matter for adjudication relating to the non- employment, that was caused due to the discharge of the petitioner, by an order dated 22.11.2011 issued by the Management.

Per contra, the learned counsel for the respondents Managementhas vehemently contended that the petitioner cannot seek for prosecution, as prayed for. However, the learned counsel for the Management has submitted that the issue relating to non-employment, that was caused due to the order of the Management dated 22.11.2011,can be referred for adjudication by way of the appropriate orders of this Court. It is submitted that unless the termination order is setaside, the petitioner cannot complain of unfair labour practice.

I have considered the submissions made on either side.

It is not in dispute that the petitioner was discharged from service by the order dated 22.11.2011 by the Management. Thepetitioner made a complaint dated 23.11.2011 to the LabourConciliation Officer, Pondicherry, wherein also he mentioned about the termination. Furthermore, he sent another letter dated 13.12.2011to the Commissioner of Labour, Pondicherry, informing about the order dated 22.11.2011 discharging the petitioner from service. Therefore, it is not in dispute that there is a dispute relating to the non-employment of the petitioner. Particularly, the petitioner agitated relating to his earlier non-employment for more than 10 years and immediately after the earlier litigation attained finality, the termination has come up.