The Chairman, Karur Vysya Bank Limited v. The Presiding Officer, Industrial Tribunal, Madras & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.11.2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAandTHE HONOURABLE MR. JUSTICE M. DURAISWAMYW.A.No.3991 of 2004 &W.A.M.P.No.7494 of 2004The Chairman,Karur Vysya Bank Limited,Erode Road,Karur 639 002. .. Appellant/Petitioner vs 1.The Presiding Officer, Industrial Tribunal, Madras.2.The Workman, Rep. By the President, Tamil Nadu Bank Deposits Collectors Union, 55, Armenian Street, Madras – 600 001. .. Respondents/Respondents Writ Appeal filed under Clause 15 of Letters Patent againstorder of the learned single Judge made in W.P.No.1490 of 1997 dated01.10.2004. Presented under Article 226 of the constitution of Indiato issue a writ of Certiorari calling for the records of the 1strespondent in I.D.No.27 of 1985 and quash its award dated 2.8.1986.For Appellant : Mr.V.Karthik forM/s.T.S.Gopalan For Respondents : Mr.A.R.Suresh – for R2****J U D G E M E N T(Judgement of the Court was delivered by M. DURAISWAMY,J) The above Writ Appeal arises against the order of thelearned single Judge made in W.P.No. 1490 of 1997 https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner in the writ petition is the appellant in theabove writ appeal and the respondents are the respondents in the writpetition. 3. The writ petitioner filed W.P.No.1490 of 1997 for theissuance of a writ of Certiorari calling for the records of thefirst respondent in I.D.No.27 of 1985 and quash the same.4. The brief facts which lead to the filing of the writ petitionis as follows:(i) The second respondent union raised an industrial disputecontending that one K.Vaidyanathan, who joined on 22.11.1974 as HoneyBee Deposit Organizer, returned from absence about eight months inJuly 1982 and he was not permitted to resume duty. The petitionercontended that the said refusal would amount to termination ofservice and that the said termination was bad and therefore heshould be allowed to resume duty as Honey Bee Deposit Organizer. (ii) The dispute was taken up in conciliation which ended infailure. By order dated 26.4.1985, the issue was referred to thefirst respondent for adjudication in I.D.No.27 of 1985. On23.3.1989, the first respondent passed an award holding thatK.Vaidyanathan was not in the employment of the petitioner and onthat ground rejected the claim of the second respondent. (iii) Against the award of the first respondent, W.P.No.8139 of1992 was filed. On 14.12.1993, this court disposed of the said writpetition holding that it could not be said that the said Honey BeeDeposit Organizer was not in the employment of the bank and the awardof the first respondent was set aside and the matter was remitted tothe first respondent to go into that question afresh. The writappeal filed against the order of the learned single judge was alsodismissed on 7.9.1994 (iv) On remand, the first respondent passed an award dated2.8.1996 holding that K.Vaidyanathan fell ill and did not report forwork between September 1981 and July 1982 and that for his absence,he had sent a written representation along with a medicalcertificate; that after recovering from the illness, he wanted tojoin as a organizer of Honey Bee Deposit scheme; that thepetitioner refused to grant such permission, that as he was aworkman within the meaning of Section 2(s) of the Industrial DisputesAct, and further he had worked from 22.11.1974 to September 1981,his services could not be terminated in such a manner; that therefusal on the part of the petitioner to grant permission to joinduty amounts to termination of service and that the refusal was notin accordance with law. On this reasoning, the first respondentdirected the petitioner to reinstate K.Vaidhyanathan withcontinuity of service and back wages at the rate of Rs.750/- permonth from the date of refusal to permit him to resume his duties. (v) Aggrieved over the award passed by the first respondent, https://hcservices.ecourts.gov.in/hcservices/ the petitioner/management, challenged the said award in W.P.No.1490of 1997.(vi) During the pendency of the writ petition, the petitioneralso deposited Rs.50,000/- to the credit of the first respondent andpursuant to the order of this court, the first respondent haspermitted the employee to withdraw Rs.50,000/-.5. The learned single judge after taking into considerationthe materials available on record and the submissions made by boththe learned counsel, held that non employment of the secondrespondent was illegal and unjustified. With regard to the backwages, the learned single Judge modified the award to the effectthat the second respondent would be entitled only to Rs.350/- permonth and that he could withdraw Rs.50,000/- deposited with the firstrespondent. 6. Aggrieved over the order of the learned single Judge,the petitioner has filed the above writ appeal.7. Heard Mr.V.Karthik, learned counsel appearing for theappellant and Mr.A.R.Suresh learned counsel appearing for thesecond respondent. 8. Learned counsel appearing for the appellant submittedthat the non employment of K.Vaidyanathan was valid and justified forthe reason that due to continued absence for over a period of sevenmonths, the Honey Bee Deposit scheme in the Alandur Brach wasdiscontinued from October 1981 itself; that the second respondentcould not be treated as a workman for the purpose of section 2(s) ofthe Industrial Disputes Act for maintaining the industrial dispute;that he was not an employee of the appellant and therefore, he wasnot governed by any rules and regulations which could be invoked byhim on his non engagement from July 1982; that the appellant is notat all responsible for the long drawn litigation and therefore, theappellant is not liable to pay Rs.350/- per month to the secondrespondent during the said period. 9. Countering the submissions made by the learned counselappearing for the appellant, learned counsel appearing for thesecond respondent submitted that the order of the learned singleJudge is just and proper and does not warrant any interference. 10. On a careful consideration of the materials availableon record and the submissions made by both the learned counsel, itcould be seen that the Industrial Tribunal in its award dated2.8.1996 refused to accept the contentions of theappellant/Management and held that even though the employee,K.Vaidhyanathan failed to act as Honey Bee Deposit Organizer fromSeptember 1981 to July 1982, since he had explained in his letterdated 27.7.1982 that he was ill during that period, theappellant/Management ought to have held an enquiry and passed anorder before holding that he had abandoned the service, therefore,directed the appellant/ management to reinstate K.Vaidyanathan with https://hcservices.ecourts.gov.in/hcservices/ continuity of service and back wages. The Industrial Tribunal alsoawarded a sum of Rs.750/- per month as wage. 11. It is a settled law that awarding of back wages is nota matter of course, as the Industrial Tribunal is duty bound toconsider whether in the circumstances of the case, the workman isentitled to back wages or otherwise. It is also settled principle oflaw that no decision must be taken which will affect the right of anyperson without being put on notice of the case and giving him anopportunity of putting forward his case. The person concerned mustbe informed of the case, the evidence in support thereof supplied tohim and must be given a fair opportunity to him. If the same is notfollowed, it will amount to violation of principal of naturaljustice. The Industrial Tribunal and the learned single Judge cameto the conclusion that non employment of K.Vaidyanathan on theground that he has abandoned the service is illegal and unjustified.So far as the back wages is concerned, the tribunal fixed the theback wages at Rs.750/- per month for the Honey Bee Deposit Organizerseven though they are not regular employees. 12. The learned single Judge reduced the back wages fromRs.750/- per month to Rs.350/- per month, since the employee had notraised any deposits during the period of his non employment. Thelearned single Judge modified the award passed by the firstrespondent to the effect that the workman K.Vaidyanathan shall bereinstated with back wages at the rate of Rs.350/- per month from thedate of his non employment till his reinstatement in the service ofthe appellant/ management and that he shall be entitled to withdraw asum of Rs.50,000/- already deposited to the credit ofI.D.No.27/1985. 13. Since the learned single Judge had already reduced theback wages from Rs.750/- per month awarded by the firstrespondent to Rs.350/- per month, we are of the considered view thatthe further reduction in the back wages is not justifiable. The backwages at Rs.350/- per month is just and proper.14. In these circumstances, we find no ground to interferewith the order of the learned single Judge. Therefore, the writappeal is liable to be dismissed. Accordingly, the writ appeal isdismissed. Consequently, connected miscellaneous petition isclosed. However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarrj https://hcservices.ecourts.gov.in/hcservices/ To1.The Presiding Officer, Industrial Tribunal, Madras.+1cc to M/s.T.S.Gopaan, Advocate Sr 60321KSK(CO)km/19.11.W.A.No.3991 of 2004