T. Rajamanickam v. Binny Limited (B & C Mills) & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 08-12-2008CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT APPEAL No.1708 OF 2001T.Rajamanickam...Appellant/2nd Respondent-vs-1.Binny Limited (B & C Mills), Perambur, Madras -12.2.The Presiding Officer, III Additional Labour Court, Madras -104....Respondents/Petitioner/1st RespondentAppeal under Clause 15 of the Letters Patent against theorder of learned Single Judge dated 24.11.2000 made in W.P.No.18519of 1990.W.P.No.18519/1990: Prayed to issue a Writ of Certiorari calling forthe records of the 1st Respondent in I.D.No.317/85 and quash theAward dated 25.11.89, under Article 226 of Constitution of India.For appellant : Mr.Mohammed Shabeer For respondent 1 : Mr.Raveendran,for M/s.T.S.Gopalan & Co.J U D G M E N TV.DHANAPALAN,J.Appellant/workman has filed this appeal, aggrieved overthe order passed by a learned single Judge in W.P.No.18519 of 1990,setting aside the award of the III Additional Labour Court,Chennai, in I.D.No.317 of 1985, ordering reinstatement. https://hcservices.ecourts.gov.in/hcservices/

2. Appellant was employed as a Fitter in EngineeringDepartment of the first respondent mill on 22.05.1958. As a resultof strike, the respondent Mill was closed from 14.01.1984 till28.12.1984. Thereafter, the Mill started functioning from29.12.1984. On reopening of the Mill, the appellant, along withseveral others, was asked to report to Weaving Department on29.12.1984, but the appellant did not report for work on that day.As the appellant did not report for work for eight consecutiveworking days, the management terminated him from service.Thereafter, the petitioner raised an industrial dispute before theConciliation Officer and the matter was referred to the IIIAdditional Labour Court, Madras, vide I.D.No.317 of 1985.3. The Labour Court, on an appraisal of the evidence,both oral and documentary, ordered reinstatement of the appellant,holding that Section 9-A of the Industrial Disputes Act, 1947, inshort, "the Act", was not complied with by the management, overwhich, the management preferred the Writ Petition, wherein thelearned single Judge allowed the said Writ Petition, setting asidethe award of the Labour Court. Hence, this Writ Appeal, at theinstance of the appellant.4. At this juncture, the only question, that arises forconsideration, is, whether the termination of the appellant by themanagement is vitiated by violation of Section 9-A of theIndustrial Disputes Act ?5. To decide the said main question, two more sub-questions are required to be answered and they are :(i) Whether the change in the conditionsof service is effected pursuant to Settlementunder Section 12 (3) of the Act ?(ii) Whether there is any reduction inemoluments of the appellant, pursuant to thechange ?6. Section 9-A of the Act reads as under :"9-A. Notice of change.- No employer,who proposes to effect any change in theconditions of service applicable to anyworkman in respect of any matter specifiedin the Fourth Schedule, shall effect suchchange,- https://hcservices.ecourts.gov.in/hcservices/ (a) without giving to the workmenlikely to be effected by such change anotice in the prescribed manner of thenature of the change proposed to beeffected; or(b) within twenty-one days of givingsuch change :Provided that no notice shall berequired for effecting any such change-(a) where the change is effected inpursuance of any settlement or award.(b) xxxx"7. In this connection, this Court has gone through theSettlement, Ex.M-1, entered into between the management and theworkmen, including the appellant. Though as per Clause 2 (a) of theterms of settlement stipulates that according to exigencies theworkmen will be deployed on other side/set of looms/machines, suchan exercise has to be made without affecting the pay structure,namely, wages, including the period and mode of payment,classification of grade etc. If any change is effected with regardto the above, Section 9-A notice in the prescribed manner has to beissued to the workmen concerned.8. In this case, as could be seen from Ex.W-4, WageReceipt, dated 07.11.1981, the monthly emoluments of the appellantwere fixed at Rs.862.58. However, in Ex.M-18, Salary Register, thewages of the appellant for the month of January,1985, i.e., afterthe Mill was reopened, were fixed at Rs.828.04, which clearlyindicates a change in the conditions of service. Though the changein condition of service, transferring the appellant fromEngineering Department to Weaving Section was effected as per thesettlement, which did not require compliance of Section 9-A, theother change with regard to reduction of wages, which was notstipulated in the settlement, was done by the management withoutcausing notice under Section 9-A. 9. M.W.1, in his cross-examination, had stated that thewage of a Mazdoor's was was Rs.1100 per month while that of aFitter was Rs.1200/- per month. Further, he admitted that if thefitter was shifted to some other department as mazdoor, he would bepaid only mazdoor's salary and not that of the fitter. There wasalso a categorical acceptance by M.W.1 that there was change in thesalary of the appellant, pursuant to his transfer from Engineering https://hcservices.ecourts.gov.in/hcservices/ Department to Weaving Department. In addition, as could be seenfrom Ex.M-10, Attendance Register for the month of January,1985, inthe column "occupation", against the name of the appellant, it isindicated as 'Mazdoor', which would clearly show the change in thecondition of service. Therefore, it can safely be concluded thatthe termination of the appellant by the management was in violationof Section 9-A of the Act. 10. The workman, who is likely to be affected by changein the condition of service, has to be given a notice in theprescribed manner of the nature of the change proposed to beeffected. In the instant case, we have noticed a change ofcondition of service with regard to status and emoluments of theappellant. Therefore, in our considered opinion, the management hasviolated the provisions of Section 9-A of the Act. 11. Though the learned single Judge had dealt with theaspect of transfer from one department to another, he, relying onthe counter statement filed by the management before the LabourCourt that the appellant was never asked to work as a Coolie in theWeaving Department and that there was no reduction in his earningswhatsoever, held that there was no reduction in the emoluments ofthe appellant, which, in our considered view, is, ex facie, againstthe law and the provisions under Section 9-A of the Act. On theother hand, the Labour Court, analysing the material, both oral anddocumentary, had come to the correct conclusion, which ought not tohave been warranted interference by the learned single Judge.12. Under the circumstances, this Writ Appeal is allowed,setting aside the order of the learned single Judge and confirmingthe award of the III Additional Labour Court, Chennai. No costs.dixit Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding Officer,III Additional Labour Court,Madras -104.1 cc to M/s.T.S.Gopalan & Co., SR.68823jsv (co)dv/23.12.W.A.No.1708 of 2001