S. Thomas2.Manali Petrochemicals Ltd.Technical Employees' Union v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30..01..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 26665 of 2007andM.P. Nos. 1 and 2 of 20071.S. Thomas2.Manali Petrochemicals Ltd.Technical Employees' UnionRep. By its General Secretary(Regd. No. 1178/CPT)Sathangadu VillageManaliChennai 600 068... Petitioners(P2 impleaded as per order dated 12.12.2007 in M.P. No.3 of 2007)Vs.1.The State of Tamil NaduRep. by Secretary to Government Labour and Employment DepartmentFort St. GeorgeChennai – 92.The Management of Manali Petrochemicals Ltd.Rep. by its Managing DirectorPonneri High RoadManaliChennai 600 068. .. Respondents Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling forthe records from the first respondent relating to the order in G.O.(D) No. 1300 Labour and Employment (A2) Department dated21.12.2005 confirmed in the order dated 22.2.2007 and quash thesaid order dated 21.12.2005 confirmed in the order dated 22.2.2007and direct the first respondent to refer the dispute of continuedsuspension of the petitioner for adjudication to a Labour Court.For Petitioner : Mr. S. AyyathuraiFor Respondents : Mr. Ravindranfor M/s T.S. Gopalan & Co. https://hcservices.ecourts.gov.in/hcservices/ ORDERHeard Mr. S. Ayyathurai, learned counsel appearing for thepetitioner and Mr. Ravindran, learned counsel representing M/s.T.S. Gopalan, appearing for the respondents and perused therecords. 2.The petitioner is a Technician employed by the secondrespondent company and he was in charge of Boiler duties. He wasalso elected as Vice President of the Manali PetrochemicalsTechnical Employees' Union formed in 1993. During 1996, he wasmade as General Secretary of the said Union. Since thesettlement between the Union and the second respondent Managementhad ended in the December 2000, a new Charter of Demands was placedby the Union before the second respondent. Since the directtalks failed between the parties, a dispute was raised before theConciliation Officer during the year 2003. It is alleged thatin order to pressurize the workers, permanent employees working inthe boilers, water treatment plant, Milk of lime plant and FortLift Operation were transferred to the main plant and in the placeheld by them, the second respondent attempted to engage contractworkers. The petitioner was transferred from boiler plant toPropylene Glycol Plant which involves in hazarduous operation.Therefore, a dispute was raised against the transfer of permanentemployees and the same was referred for adjudication by thePrincipal Labour Court and it was taken on file as I.D. No. 505 of2005. 3.However, the second respondent placed the petitionerunder suspension by an order dated 22.9.2003 stating that he wasguilty of insubordination of the lawful orders of the superiors.An enquiry was conducted and show cause notice dated 25.10.2004 wasissued to him. Despite the petitioner replied to the show causenotice, no final orders have been passed for the last three years.Therefore, the Trade Union to which the petitioner belonged, raisedan industrial dispute before the Assistant Commissioner of Labour,Chennai – 2. Upon a Failure Report being sent by the Officer,the first respondent State Government passed an order in G.O. (D)No. 1300 Labour and Employment Department dated 21.12.2005refusing to refer the dispute. It is stated in the annexure tothe said order that the dispute of temporary suspension cannot beconsidered as removal from service and since no punishment hasbeen imposed, there is no necessity for the Government to refer thedispute for adjudication. The Trade Union filed an applicationfor reviewing the order by a letter dated 25.12.2006 and the matterwas once again taken by the Assistant Commissioner of Labour.Thereafter, the Trade Union was informed by a letter dated22.02.2007 that there was no necessity to review the earlier ordermade in G.O. No. 1300 Labour and Employment Department dated https://hcservices.ecourts.gov.in/hcservices/

21.12.2005. Instead of the Trade Union challenging the saidorder, the petitioner in his individual capacity has filed thepresent writ petition challenging the said order. 4.An objection was taken by the second respondentManagement that such a writ petition is not maintainable since theTrade Union has not come forward to file the writ petition and thepetitioner cannot raise a dispute in respect of his suspension.To overcome the said objection, the Trade Union, viz., ManaliPetrochemicals Ltd. Technical Employees' Union represented by itsGeneral Secretary (Regd. No. 1178/CPT) has filed an application inM.P. No. 3 of 2007 to implead themsleves as the second petitionerin the writ petition and the same was ordered by this Court on12.12.2007. Therefore, the said objection fails. 5.A Division Bench of this Court vide its judgment reportedin 1986 (2) L.L.J. 225 [Special Officer of the Management of TUCSLtd. v. S. Loganathan] dealt with more or less a similar issue.In the aforesaid decision, an Arbitrator was appointed at theinstance of the Union and the Management and that subsequently, twoindividual workers were aggrieved by the Arbitration Award whichwent against them. Since they were no longer in the Union andthe Union was not interested in pursuing the said case, they hadfiled the writ petition challenging the Award. In paragraph 6 ofthe judgment, the Division Bench observed as follows:Para 6:"Thirdly, it is contended by Mr. Dwarakanathan,learned counsel appearing for the first respondent,that the settlement under S. 12(3) on 2nd July, 1977was duly arrived at the instance of the Union,espousing the cause of the workmen including the twopetitioners and the arbitration before the secondrespondent also having been prosecuted by the Unionon behalf of the two petitioners, the twopetitioners cannot individually attack the award ofthe second respondent before this Court. It cannotbe disputed that the two petitioners are "thepersons affected" and we cannot deny them the rightto invoke writ jurisdiction of this Court if thereis a warrant for it, impeaching the award of thesecond respondent. Before us, submissions weremade by both counsel with reference to theprovisions of the Act enabling representations onbehalf of the workmen. We need not necessarilyresort to the provisions of the Act enabling theparties to agitate their rights either individuallyor through Union. Even within the Act individualworkmen are enabled to agitate for their causewithout reference to the Union. So far as powersof this Court are concerned, they shall always beavailable at the instance of persons who standaffected by the decisions of an authority like thesecond respondent. Our attention has not been drawn https://hcservices.ecourts.gov.in/hcservices/ to any pronouncement which has taken a view contraryto what we have observed above. On the otherhand, Miss Anna Mathew, learned counsel for thepetitioners drew our attention to a pronouncement ofthe Supreme Court in Air India v. Nergesh Meerza[1981-II L.L.J. 314] to state that though the causeof the employees was earlier espoused by the Union,yet the individual employees themselves did agitatethe matter before the Supreme Court and obtainedreliefs. Whatever that be, as we have alreadypointed out, as persons affected, the petitionerscan always invoke the jurisdiction of this Courtunder Art. 226 of the Constitution of India...."6.Thereafter, Mr. S. Ayyathurai, learned counsel appearingfor the petitioner submitted that the reason given by theGovernment to decline reference was illegal. The present disputewas raised relating to the prolonged suspension of the firstpetitioner and the dispute was raised by the second petitioner,which is only the recognised Union functioning in the secondrespondent establishment. The definition of an industrial disputeprovided under Section 2(k) of the I.D. Act is so wide and it takesinto account any difference of opinion between the workmen and theManagement and, therefore, the scope of the definition cannot becurtailed by any artificial process and the reasoning given in theimpugned order is unsustainable. It is not as if only in case ofpunishment, a dispute can be raised by the workman and even attemptto take disciplinary action can also be raised by a workman.7.Even otherwise, the learned counsel drew the attention ofthis Court to the judgment of this Court reported in 1996 (2)L.L.J. 430 in the case relating to Kalyanasundaram, B. v.Labour Court, Madras and another and the relevant passages found inpage 432 may be usefully extracted below:''.... It is contended also that the workerwas suspended pending the enquiry, that it was not acase of non-employment at all and that hissuspension not being in the nature of punishmentinflicted upon the worker, it could not be broughtfor adjudication as in the present case.""In so far as the last point is concerned,whether or not suspension was a measure ofpunishment, I am really unable to see how anindustrial dispute cannot arise out of such adirection made by the management. Evensuspension amounts to non-employment of a worker andin relation to such non-employment alleged to bedevoid of valid reasons, a dispute can be raised.So long as the dispute does not remain an individualdispute but assumes the form of an industrial https://hcservices.ecourts.gov.in/hcservices/ dispute in which the general body of the workersdisplay an interest, then, it cannot be said that areference would not be proper. In this case, itis not denied by learned counsel on behalf of themanagement that all the seven employees are membersof respondent 2 union and when respondent 2 uniontook up the matter before the labour officer forconciliation, it obviously offered clear indicationthat the union represented the body of the workersin sponsoring the cause of the employee. Though adispute may start as an individual dispute, itassumes the form of an industrial dispute by thebacking which the dispute received from otheremployees of that concern or by a union in whichsuch employees are members. In this case, there isno doubt that this was the position and thecontention that there was only an individual disputewhich remained as such right through cannot possiblybe accepted."".... Any act of the employer which involvesnon-employment of a worker or violation of the termsof service upon which he is employed can give riseto an industrial dispute...."8.However, per contra, Mr. Ravindran, learned counselleading M/s T.S. Gopalan & Co. appearing for the respondent broughtto the notice of this court the judgment of the Supreme Court inthe Regional Director v. Employees' State Insurance Corporationv. Popular Automobiles and others [(1997) 7 SCC 665] andsubmitted that even though a suspension may be prolonged, that doesnot bring the relationship of the master and servant to a closeand, therefore, there is no industrial dispute, be adjudicated.The learned counsel relied on the passage found in paragraph 9 ofthe said judgment and the same may be usefully extracted hereunder:Para 9:"On the aforesaid scheme of this Act, therefore, itbecomes very clear that all employees are entitledto get the statutory coverage of the benefits beinginsured employees and any person employed for wagesis to be treated as an employee for the purpose ofthe Act. Under these circumstances an employee whois admittedly covered by the Act and who is entitledto get the benefits under the Act as insuredemployee will not cease to be an employee covered bythe Act if he is placed under interim suspensionpending domestic enquiry on any alleged misconductby his employer. It is axiomatic to say that duringsuspension period pending enquiry the employer-employee relationship does not come to an end. Itwould come to an end only when after enquiry hisservices on proof of misconduct are ordered to beterminated. Till then he continues to be an employee https://hcservices.ecourts.gov.in/hcservices/ for all purposes subject to only two consequencesflowing from such interim suspension, namely, in thefirst place the employee will remain prohibited fromactually offering his services and discharging hisduties as the employer does not want him to do soand secondly during the period of suspension pendingenquiry the remuneration payable to the employeewill get curtailed and will be treated assubsistence allowance as legally permissible underthe rules and which may range from 50% at the lowestto even 100% of the wages at the highest if thesuspension continues beyond the requisite period ascontemplated by the service rules and regulationsconcerned. It is also to be kept in view and thereis no dispute on this aspect that even duringsuspension when the employee is being paidsubsistence allowance and not full wages he remainsentitled to get all the benefits as available toworking employees on the same basis as laid down byvarious provisions of Chapter V. It is not as if asuspended employee gets lesser benefits as comparedto a working employee under the provisions of thesaid chapter. They stand on a par. It is also to beappreciated that subsistence allowance is not to berefunded by the suspended employee whatever mayultimately be the result of the domestic enquiry.Hence only because the total remuneration paid tothe suspended employee gets reduced to 50% or to anyhigher percentage going up to 100% it is notpossible to appreciate as to how it can be said thaton the amount of subsistence allowance received byhim permanently he is not bound to contribute anyamount to the Corporation and equally the employerof such a suspended employee is also not bound tomake his parallel contribution as per the ratesprovided under the Act especially when all thebenefits of statutory insurance coverage are madeavailable by the Corporation to such a suspendedemployee...." 9.It is not clear as to how the said passage extractedabove, helps the case of the second respondent Management. Onthe contrary, the question arose for the consideration by theSupreme Court was whether the suspended employee is entitled forthe benefits under the ESI Act during the period of suspension andwhether any recovery can be made from the Subsistence Allowance andwhether the said allowance is also a wage liable for recoverytowards subscription of ESI contribution. Further, even on thefactual matrix, even after the show cause was given to the firstpetitioner after an enquiry and the first petitioner having given areply as early as in the year 2004, it is not known as to what https://hcservices.ecourts.gov.in/hcservices/ prevented the second respondent from passing appropriate orders.Certainly, such a prolonged suspension can be a subject matter ofan industrial dispute. 10.Under Section 7 of the I.D. Act, the Labour Court isempowered to adjudicate disputes on a reference being made to it,in terms of the matters which are listed under the second Scheduleprescribed under the Act. Item No. 1 of the Second Schedulereads as follows:"The propriety or legality of an order passed by anemployer under the Standing Orders"A reading of the said provision read with Second Schedule willclearly show that the Labour Court is empowered to adjudicate evenan issue relating to suspension pending enquiry since the saidpower by an employer has been exercised under the relevant StandingOrders. As the definition of Industrial Dispute under Section 2(k) of the I.D. Act read with Schedule I of the I.D. Act does notgive any scope for restricting its scope and application and in thelight of the judgment of this Court in Kalyanasundaram's case(cited supra), the impugned order is liable to be set aside. 11.In view of the above, the writ petition stands allowedand the impugned order is set aside. The first respondent isdirected to refer the dispute relating to the suspension of thefirst petitioner for adjudication within a period of four weeksfrom the date of receipt of a copy of this order to a competentIndustrial Tribunal / Labour Court for adjudication. No costs.Connected Miscellaneous Petitions are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griToThe Secretary to Government State of Tamil NaduLabour and Employment DepartmentFort St. George, Chennai – 9+ 1 CC To Mr.S.Ayyathurai, Advocate SR NO.4180W.P. No. 26665 of 2007iv[co]gp/14.2.