United Labour Federation v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.17605 of 2009United Labour Federation,rep. by its President,No.149, Thambu Chetty Street,4th Floor,Chennai-600 001... Petitioner Vs.1.Government of Tamil Nadu, rep. by by its Secretary, Department of Labour and Employment, Fort St. George, Chennai-600 009.2.The Management of DCM Hyundai Limited, No.2, Ground Floor, Sriram Nagar, Prakash Nagar Main Road, Thiruninravur-602 024. Thiruvallur District... RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamusto direct the first respondent i.e. the Government of Tamil Nadu torefer the issue of illegal retrenchment of the workmen of DCMHyundai Limited on 28.2.2008 for adjudication along with the issueof their illegal transfer already referred for adjudication inI.D.No.350 of 2008 before the Principal Labour Court, Chennai.For Petitioner : Mr.V.Prakash, SC for Ms.Rama Priya GopalakrishnanFor Respondents : Mr.R.Neelakantan, GA for R1 Mr.Sanjay Mohan for M/s.S.Ramasubramanian & Associates for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDERThe writ petitioner is a Trade Union with registrationNo.2657/CNI. The said trade union challenged the order of the firstrespondent, dated 28.2.2008 and after setting aside the same,sought for a direction to the first respondent to refer the disputeof illegal retrenchment of employees for adjudication by thePrincipal Labour Court, Chennai, wherein an another industrialdispute in I.D.No.350/2008 is pending.2.Before the petitioner union, another union by nameThiruvallur Mavatta Podhu Thozhilalar Sangam, (affiliated to theCITU), raised an industrial dispute by its letter, dated 13.11.2007in transferring 15 workers including three office bearers to theirfactory at Faridabad. Those workers were denied employment atChennai Office. Even during the pendency of the dispute before thatUnion, 54 workers were transferred. This was also informed to theConciliation Officer, who was the Deputy Commissioner of Labour-2,Chennai. 3.In the meanwhile, the workers joined the petitioner Unionand they addressed a letter, dated 8.4.2008 to the ConciliationOfficer, seeking permission to prosecute the dispute. Thereafter astatement, dated 30.5.2008 was filed before the ConciliationOfficer. The Conciliation Officer sent his failure report, dated30.6.2008 expressing his opinion that no conciliation was possiblebetween the petitioner and the second respondent. When the firstrespondent did not pass any order on that report, the petitionerUnion filed a writ petition being W.P.No.16442 of 2008 before thisCourt, seeking for a direction to refer the industrial disputerelating to the legality and unjustifiability of the transfer ofworkers listed in the schedule to the writ petition as well astheir subsequent retrenchment. 4.This Court, by an order, dated 14.8.2008, directed theState Government to consider the issue for adjudication by exerciseof their power under Section 10(1) of the Industrial Disputes Act.It was thereafter, the State Government by its order in G.O.(D)No.519, Labour and Employment, dated 8.12.2008 referred the disputefor adjudication by the Labour Court at Chennai. But, in theannexure to the said order, the reference was made only in respectof the transfer of 15 workers on 2.11.2007 and 40 workers on17.11.2007. The said dispute was taken on file by the PrincipalLabour Court, Chennai as I.D.No.350 of 2008 and it is pending.5.The grievance of the petitioner Union was that subsequentto the transfer orders, the same workers were illegally retrenched.It was also the subject matter of industrial dispute, for which thepetitioner union had made a representation before the ConciliationOfficer on 30.5.2008. Bur for the reasons best known to them, theConciliation Officer had not referred to the demand relating totheir retrenchment. https://hcservices.ecourts.gov.in/hcservices/

6.However when the matter came up before this Courtearlier, this court in its order, dated 14.8.2008 in paragraphs 2and 4 had directed as follows:"2.Prayer in this writ petition is todirect the first respondent to forward theconciliation failure report to the secondrespondent with further direction to theGovernment to refer the industrial disputerelating to the legality and justifiability ofthe transfer of workers listed in the Schedulein the writ petition and also relating to thelegality and justifiability of theirretrenchment thereafter......4.In the light of the submission of thefailure report, the second respondent isdirected to consider the issue as to whetherreference should be made under Section 10 of theIndustrial Disputes Act, 1947, or not and passorders within four weeks from the date ofreceipt of copy of this order."(Emphasis added)7.When the matter is seized by the Conciliation Officer,and it did not result in any settlement, in the absence of anyother reason, the matter should have been referred foradjudication. 8.On notice from this Court, the second respondentManagement has filed a counter affidavit, dated 5.10.2009. Inparagraph 26 of the counter affidavit, it was stated as follows: "26.As regards the allegations in para10, the respondent submits that mere perusal ofthe copy of the failure report dt.13.06.08submitted by the Conciliation Officer to theGovernment clearly reveals that the conciliationtook place only with regard to the issue oftransfer and the discussions took placeregarding the transfer. As such the ConciliationOfficer had correctly submitted his failurereport with regard to the transfer of workmen.The Respondent submits that if there is anygrievance of the Petitioner regarding theretrenchment of 48 workmen it is for thePetitioner to raise a dispute before theConciliation Officer on the specific issue ofretrenchment and on the basis of the https://hcservices.ecourts.gov.in/hcservices/ conciliation report it is for the Government toconsider taking further action."9.This Court is unable to agree with the submissions madeby the second respondent. It is not as if the issue relating to theillegal retrenchment was never raised before the ConciliationOfficer. The letter, dated 30.5.2008 sent by the petitioner Unionclearly refers to the action of the management as an illegalretrenchment of workers. It is also found reflected in the orderpassed by this court dated 14.8.2008 as extracted above. Therefore,the action of the Government in not taking note of the demandrelating to illegal retrenchment while ordering a reference cannotbe permitted. When the industrial dispute raised by the workers andthe failure report was also received by the State Government, theyshould refer the issue for adjudication and set out points forconsideration by a Labour Court in terms of Section 10(4) of theI.D. Act. In the absence of doing so, this court can give adirection to the State Government to make an appropriate reference.10.In the present case, despite the order of this court,the State Government had not passed any order for making referenceof the issue relating to retrenchment for adjudication by theLabour Court. Since already the petitioner union had one round oflitigation, this court is not inclined to direct the StateGovernment to consider the issue all over again. 11.The Supreme Court vide its judgment in M.P.IrrigationKaramchari Sangh Vs. State of M.P. And another reported in 1985 (1)LLJ (SC) 519 has held that this court can give positive directionwhen there was failure to exercise power by the Government. Inparagraphs 7 and 9, the Supreme Court has held as follows:"7.There may be exceptional cases inwhich the State Government may, on a properexamination of the demand, come to a conclusionthat the demands are either perverse orfrivolous and do not merit a reference.Government should be very slow to attempt anexamination of the demand with a view todecline reference and Courts will always bevigilant whenever the Government attempts tousurp the powers of the Tribunal foradjudication of valid disputes. To allow theGovernment to do so would be to render S.10 andS.12(5) of the Industrial Disputes Actnugatory. .....9.In the result, we set aside theJudgment of the High Court, allow this appealand direct the State Government to refer all https://hcservices.ecourts.gov.in/hcservices/ the questions raised by the appellant to theappropriate Tribunal..."12.While this court is not inclined to direct theGovernment to refer the dispute as a part of I.D.No.350 of 2008,the Government is hereby directed to refer the dispute relating toretrenchment of workmen for adjudication by the very same PrincipalLabour Court, Chennai within a period of four weeks from the dateof receipt of copy of this order. This writ petition standsallowed. No costs. vvk Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1.The Secretary, Government of Tamil Nadu, Department of Labour and Employment, Fort St. George, Chennai-600 009.2.The Management of DCM Hyundai Limited, No.2, Ground Floor, Sriram Nagar, Prakash Nagar Main Road, Thiruninravur-602 024. Thiruvallur District.+ 1 cc to M/s. Ramasubramanian, Advocate SR.55785+ 1 cc to M/s. Ramapriya Gopala Krishnan, Advocate SR.57286W.P.NO.17605 OF 2009BV(CO)EU 3.11.2009.