IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.2.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.PALANIVELU W.A.Nos.638 AND 661 of 2007 and M.P.Nos.1 & 2 of 2007 W.A.No.638 of 2007: Tamil Nadu Tobacco Company Ltd., rep.by its Director, No.1/23, Alankattupudur, Thengalpalayam, Atthanur (via), Namakkal District 636601. ... Appellant Vs. 1.The Tamil Nadu Tobacco Company Uzhiyargal and Thozhilalargal Sangam (CITU) (Regd.No.933/98/SLM), Vinayagarapuram, Thoppukadu Athanoor Post, Rasipuram Taluk, Namakkal District-636001. 2.The Government of Tamil Nadu, rep.by its Secretary, Labour and Employment Department, Fort St.George, Chennai-600009. 3.The Industrial Tribunal, City Civil Court Buildings, Chennai-600108. ... Respondents W.A.No.661 of 2007: Libra Construction & Finance Limited, 16, Whites Road, 4th Floor, Royapettah, Chennai-14, represented by its Director Mr.Ashothoseh Goenka ... Appellant (Appellant's cause title accepted vide order of Court dated 11.4.2007 made in M.P.No.1/2007) Vs. 1.Inspector of Police, Vennadur Police Station, Namakkal District. 2.Deputy Superintendent of Police, Rasipuram, Namakkal District. 3.Superintendent of Police, Namakkal. 4.Management of Tamil Nadu Tobacco Company Limited, Swarnapuri, Salem-4. 5.The Tamil Nadu Tobacco Company Uzhiyargal and Thozhilalargal Sangam, CITU 1/23, Alankattuputhur, Thengalpalayam Post-636601, Ponnammapettai, Salem-636601. 6.Employees of Tamil Nadu Tobacco Company Limited, 30-A Gopal Street, Ponnammapettai, Salem-636601. ... Respondents Writ Appeals filed under Section 15 of Letters Patent against the common order dated 31.01.2007 made in W.P.Nos.7313 of 2005 and 10914 of 2003. * * * W.A.No.638 of 2007 : For Appellant : Mr.Karthick for M/s.T.S.Gopalan & Co For R-1 : No appearance For R-2 : Mr.C.Ramesh, A.G.P W.A.No.661 of 2007 : For Appellant : M/s.A.Jenasenan For R- 1 to 3 : Mr.C.Ramesh, A.G.P For R.4 : Mr.Karthick for M/s.T.S.Gopalan & Co For R-5 : Mr.N.G.R.Prasad for M/s.Row & Reddy For others : No appearance * * * COMMON JUDGMENT S.PALANIVELU, J.
The appellant in W.A.No.661 of 2007 viz. Libra Construction and Finance Limited is owning a property at No.1/23, Alankattuputhur, Thaengalpalayam Post, Athanur, Rasipuram Taluk, Namakkal District. They have leased out the said property to Tamil Nadu Tobacco Company Limited (the appellant in W.A.No.638 of 2007), which was manufacturing cigarettes, on a monthly rent of Rs.66,000/=. The said Libra Construction and Finance Limited, contending that though the said company vacated the premises in the year 2000 itself, they have not handed over the vacant possession to the Libra Construction and Finance Limited and even after adjustment of the advance amount, still there is balance of rental amount has filed a suit in O.S.No.380 of 2001 before the Court of Subordinate Judge, Namakkal for recovery of possession and the said suit was decreed ex parte on 25.9.2001, directing the defendant therein viz. the Tamil Nadu Tobacco Company Limited to hand over possession of the property within two months. Thereupon, Libra Construction and Finance Limited has filed Execution Petition No.472 of 2002 before the Sub Court, Namakkal and it is their case that when the Bailiff went to execute the warrant on 4.2.2003, the employees of the Tobacco Company obstructed him and hence possession could not be taken over. Therefore, they filed W.P.No.19014 of 2003, praying to issue a Writ of Mandamus directing the respondents 1 to 3 therein to give necessary police protection to execute the warrant issued by the learned Subordinate Judge, Namakkal. At the first instance, by the order dated 25.8.2003, the learned single Judge, has allowed the said writ petition, directing to grant police protection.
2. In the meanwhile, the Tamil Nadu Tobacco Company Limited has filed W.P.No.16871 of 2001 before this Court. The contention of the said company is that they are having only a limited scope of business, since being the franchise of GTC Company and therefore, they are unable to pay the huge rent to the premises, which is also situated at a distance of 15 kms. from Salem and therefore, they wanted to shift the manufacturing unit to a near place to Salem, for which the Employees Unions are objecting. Therefore, they have prayed to issue a Writ of Mandamus directing the Deputy Inspector General of Police, Salem Range, Salem to give adequate police protection to the men and property of the company for the shifting of the Cigarette Manufacturing Unit from 1/13, Alankattupudur Thengalpalayam, Aathanur (via) Namakkal District to No.3/3109, Putthur Itteri Road, Nethimedu, Salem.
3. In the said writ petition, a learned single Judge of this Court, by the order dated 8.10.2001, has directed the State Government to refer the dispute for adjudication, including the question of shifting of the Unit to a different place within one month and also to direct the Tribunal to dispose of the dispute on reference under Section 10(2)(a) of the Industrial Disputes Act, 1947 within a period of six months from the date of reference. This order of the learned single Judge was challenged by the Tamil Nadu Tobacco Company Limited by filing W.A.No.2510 of 2001 wherein the First Bench of this Court, by the judgment dated 22.3.2002 has observed as follows:
“… But there cannot be any positive direction to the Government to refer the matter under Section 10 of the Act. We are satisfied that circumstances exist to raise a cause for industrial dispute and the Government should exercise its power under Section 10 of the Act. But, it is needless to mention that exercise of such power under Section 10 of the Act should be based on relevant considerations. It is also not out of context to mention that should the Government decide on extraneous considerations, it can be a cause for judicial review. Keeping this in mind, the Government has to decide the plea for reference made by the workmen, within a period of 30 days from the date of receipt of copy of this order. We make it clear that until such decision is taken by the Government, the factory shall be run only at the existing place. At this juncture, Mr.G.Narayanan, learned senior counsel appearing for the appellant submits that the factory has been closed from the midnight intervening 21st and 22nd March 2002. But we do not take cognisance of such a closure. The factory which is said to have closed shall be reopened forthwith. The writ appeal is disposed of accordingly….”
4. Aggrieved of the said judgment of the First Bench of this Court, the Tamil Nadu Tobacco Company Limited filed SLP (Civil) No.7787-7789/2002 and the Honourabel Supreme Court by the order dated 2.9.2002, while granting leave has stayed the following directions of the First Bench of this Court :
“But, we do not take cognizance of such a closure. The factory which is said to have been closed shall be reopened forthwith.”
5. Thereupon, the Government by G.O.(D) No.15 Labour and Employment Department, dated 3.1.2003 referred the dispute to Labour Court for adjudication, which was taken on file as Industrial dispute No.2 of 2003 by the Industrial Tribunal, Chennai. Then contending that the said reference was silent on the question of shifting the factory from Namakkal to Salem, Tamil Nadu Tobacco Company Uzhiyargal and Thozhilalargal Sangam (CITU) has filed Contempt Petition No.307 of 2004 and the learned single Judge, has closed the said contempt petition on the ground that the orders passed in the Writ Petition were modified by the Division Bench and further directing the Tamil Nadu Tobacco Company Uzhiyargal and Thozhilalargal Sangam (CITU) to seek appropriate remedy.
6. In the meanwhile, the Inspector of Police, Vennandur Police Station, the Deputy Superintendent of Police, Rasipuram, Namakkal District and the Superintendent of Police, Namakkal, who are the respondents 1 to 3 in W.P.No.19014 of 2003, have filed W.P.M.P.No.32977 of 2003, praying to clarify the order dated 25.8.2003 made in W.P.No.19014 of 2003. In the said petition, the said police authorities have submitted that in view of the Stay order passed by the Honourable Supreme Court as against re-opening the factory, they are unable to give police protection to open the factory premises, though there is a decree of the Civil Court. The learned single Judge, by the order dated 7.11.2003, has observed as follows:
“6. When the Division Bench has passed an order to run the factory in the very same place, any order directing the police officers to give police protection to clear the goods from the petition premises at the instance of the house owner cannot be granted by this Court. Of course, this order would not preclude the writ petitioner to move the Division Bench and get a clarification as to their right to get possession in view of the subsequent facts as stated in the affidavit filed in support of the writ petition, particularly, the fact that the Tobacco company, the lessee, has closed down the premises and stopped their production, however failed to hand over the key and on that basis, the civil suit has been filed in the competent civil Court and a decree has been obtained and get an appropriate and suitable direction so as to take possession of the premises including the relief of police protection.”
7. With such observations, and further taking note of the submission made that the writ petitioner (the Tobacco company) was not a party to any of the earlier proceedings either before the learned single Judge or before the Division Bench or before the Supreme Court, the learned single Judge has directed that any clarification in respect of the dispute in the earlier proceedings can be obtained from the Division Bench.
8. It is also seen from the records that pursuant to the orders of the Government, referring the matter for adjudication, the Libra Constructions and Finance Limited, has filed W.A.M.P.Nos.1181 and 1182 of 2005, respectively praying to implead them as a party in W.A.No.2510 of 2001 and to clarify the order dated 22.3.2002 made in Writ Appeal No.2520 of 2001 to the effect that in view of the reference made by the Government of Tamil Nadu vide G.O.(T) No.15, dated 3.1.2003, the petitioner (viz.Libra Constructions and Finance Limited) is entitled for the vacant possession of the property. The First Bench of this Court, by the order dated 29.6.2005, observing that since an appeal is pending before the Supreme Court, declined to clarify the order dated 22.3.2002, but, has permitted the workers Unions to file an application in the already disposed of W.P.No.19014 of 2003 (filed by Libra construction and Finance Limited seeking police protection to implement the orders of eviction passed by the Sub court, Namakkal), to get themselves impleaded and to raise all legal and factual objections which they wish to raise. Subsequently, the employees Unions have filed W.P.M.P.No.34388 of 2005, praying to implead themselves as party respondents 5 and 6 in the W.P.No.19014 of 2003 and on the same having been allowed on 23.12.2005, they were brought on record as respondents 5 and 6 in the said writ petition.
9. In the meanwhile, the Tamil Nadu Tobacco Company Uzhiyargal and Thozhilalargal Sangam has filed W.P.No.7313 of 2005 before this Court, praying to issue a Writ of Mandamus, to direct the Government of Tamil Nadu, represented by its Secretary, Labour and Employment Department to consider and issue a reference relating to shifting of the Tobacco Company from No.1/13, Alankattupudhur, Thengalpalayam, Aathanur (via), Namakkal District to No.3/319, Puthur Itteri Road, Nethimedu, Salem-636302 to the Industrial Tribunal, City Civil Court Buildings, Chennai.
10. Since the learned single Judge has dismissed W.P.No.19014 of 2003 filed by the Libra Construction and Finance Limited, the said company filed W.A.No.661 of 2007 and as against the order of the learned single Judge in W.P.No.7313 of 2005, observing that the shifting of the factory from Namakkal to Salem was also one of the issues raised in the conciliation proceedings, the Tobacco company has filed W.A.No.638 of 2003.
11. Since both the matters are, thus, inextricably interconnected with each other, they are disposed of by this common judgment.
12. A thorough scrutiny of the entire materials placed on record, thus would narrate that the entire dispute between the Management of the Tobacco company and its employees revolves around the shifting of the Tobacco company from one place to other and the case of the owner of the land viz. Libra construction and Finance Limited is that in spite of obtaining a decree for recovery of possession, they were unable to enjoy the fruits of the decree and hence they sought for police protection to implement the warrant issued by the executing Court.
13. There is no doubt regarding the fact that the decree, based on which the said Libra Construction and Finance Limited has filed the Execution Petition, is an ex parte one. It has been brought to our notice that as against the ex parte decree, an application was filed to set aside the exparte decree and at present the matter is pending in C.M.A.No.12 of 2003 before the competent civil forum. Furthermore, regarding the dispute between the Management of the Tobacco company and the employees, a dispute was raised, which is pending adjudication in I.D.No.2 of 2003 before the Labour Court, Chennai. As has already been adverted to supra, the Honourable Supreme Court has stayed the order of the Division Bench of this Court, insofar as the direction to re-open the company. In these circumstances, the discretionary relief of Writ of Mandamus, as has been prayed for by the Libra Construction and Finance Limited in W.P.No.19014 of 2003, which is the subject matter in W.A.No.661 of 2007, that too to execute a warrant issued by the civil Court based on an ex parte decree, which is now under challenge, cannot be granted. Therefore, W.A.No.661 of 2007 is dismissed.
14. Coming to Writ Appeal No.638 of 2007 filed by the Tobacco Company, on a careful perusal of the entire materials placed on record such as the conciliation proceedings and the failure report dated 9.8.2001 sent by the conciliation officer, we are able to find that the shifting of the factory from Namakkal to Salem was also one of the issues raised in the conciliation proceedings. Even on an earlier occasion, the Division Bench of this Court in W.A.No.2510 of 2001, dated 22.3.2002 has observed that the Government should exercise its power under Section 10 of the Industrial Disputes Act, which judgment is under challenge before the Honourable Supreme Court in SLP.Nos.7787-7789 of 2002. Therefore, when the Honourable Supreme Court has seized of the matter, regarding the issue involved, we cannot issue any direction as has been sought for in W.P.No.7313 of 2005.
15. In view of the above, all the questions which are relatable to the shifting of the unit to some other place and reference of the dispute to Labour Court have to be answered by the Apex Court in the appeals aforestated. With such observations, Writ Appeal No.638 of 2007 is disposed of.
In fine, W.A.No.638 of 2007 is disposed of and W.A.No.661 of 2007 is dismissed. Consequently, connected M.Ps are closed. No costs.
(E.D.R., J) (S.P.V., J) 16.2.2008 Index : Yes Internet : Yes ssm/Rao To 1.The Secretary, The Government of Tamil Nadu, Labour & Employment Department, Fort St.George, Chennai 600 009. 2.The Inspector of Police, Vennandur Police Station, Namakkal District. 3.The Deputy Superintendent of Police, Rasipuram, Namakkal District. 4.The Superintendent of Police, Namakkal. 5.The Industrial Tribunal, City Civil Court Buildings, Chennai-600108. ELIPE DHARMA RAO, J. AND S.PALANIVELU, J (ssm/Rao) Pre-delivery common judgment in W.A.Nos.638 & 661 of 2007 16.2.2008