IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 27.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.5782 of 1999 The Management of Salem District Co-operative Milk Producers Union Ltd., Jagir Ammapalayam P.O. Salem 636 302. ...Petitioner Vs. 1.The Presiding Officer, Industrial Tribunal, Chennai 600 104. 2.The Secretary, Salem District Dairy Labour Union, 237, Tharamangalam Road, Old Suramangalam, Salem 636005. ...Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorari, to call for the records in I.D.No.24 of 1993 on the file of the Industrial Tribunal Madras 600 104, the first respondent herein and quash the award dated 30.03.1999 passed therein. For Petitioner : Mr.M.R.Raghavan For Respondents : Mr.S.Ayyathurai for R2 O R D E R
The writ petitioner is the Management. They have come forward to challenge the award of the first respondent- Industrial Tribunal made in I.D.No.24 of 1993 dated 30.03.1999. By the aforesaid award, the Tribunal had granted the relief to the workmen represented by the second respondent Trade Union and held that since the petitioner Management had not given notice under Section 9-A of the Industrial Disputes Act, the workmen are entitled for continued enjoyment of 32 days Earned Leave in a year.
2. The second respondent Union raised a dispute under Section 2(k) in respect of the Industrial workmen employed by the petitioner Management. Their grievance was that while the office staff were enjoying 32 days Earned Leave per year, the earned leave for the workmen employed in the factories was reduced to 18 days in accordance with Section 79 of the Factories Act, 1948. Under the said provision, workmen are entitled for 1 day Earned Leave per every 20 days and therefore, the Earned Leave enjoyed by the workmen was restricted to 18 days per year. Aggrieved by the action of the Management altering service conditions, the respondent Union raised a dispute. The said dispute came to be referred for adjudication by the first respondent Industrial Tribunal by G.O.(D).130 Labour and Employment Department dated 12.02.1993.
3. The Tribunal took up the dispute as I.D.No.24 of 1993 and issued notice to the parties. The second respondent Union filed a claim statement dated 25.10.1993 and the petitioner Management filed their counter statement dated 11.01.1996. Before the Tribunal, on behalf of the workmen, 7 documents were filed and marked as Exs.W1 to W7. On their behalf, two witnesses were examined as W.W.1 and W.W.2. On the side of the petitioner Management, 5 documents were filed and marked as Exs.M1 to M5 and they examined two witnesses as M.W.1 and M.W.2.
4. The contention raised by the petitioner Management before the Tribunal was that there were 178 workmen on regular capacity together with 130 casual workers. There were several workmen who were employed by Tamil Nadu Co-operative Milk Producers Federation (TCMPF) to their factory with effect from 02.05.1981 and they were granted 32 days earned leave with effect from 02.05.1981 as per the service Rules available to such workmen and they came from Tamil Nadu Dairy Development Corporation(TNDDC)/TCMPF. It was also stated by them that the TNDDC by an order dated 19.03.1980 had issued instructions that the TNDDC’s leave rules shall not apply to the workmen who are governed by Factories Act, 1948 and who are covered under the Industrial Employment (Standing Orders) Act. On coming to know that the TNCM Federation is granting earned leave only at the rate of one day per every 20 days of work, the Management had also notified its order dated 16.12.1989 regarding sanction of earned leave to the workmen as per the Factories Act.
5. It was also stated that the petitioner had intimated to the workmen about the change in the number of days a worker can avail earned leave through notice board on 16.12.1989 and that would satisfy the statutory provision under Section 9-A of the I.D.Act. The Tribunal held that the petitioner-Management cannot have two different types of leave one for a section of the office staff and the other for the workers represented by the second respondent Union. In as much as that all the workmen were enjoying earned leave at the rate of 32 days per year altering the said service condition, the Management ought to have complied with Section 9-A of the I.D.Act.
6. Though the Management contended that Ex.M4 dated 16.12.1989 was a notice put up by them regarding intimation of leave as per the Factories Act, the Tribunal held that does not satisfy the statutory provision i.e., Section 9-A of the I.D.Act. Under Section 9-A of the Act, an employer in order to alter the service conditions of workmen will have to give a notice in the prescribed manner. The State Government has prescribed Form ‘N’ in terms of Rule 57 of the Tamil Nadu Industrial Disputes Rules, 1958. The Tribunal held that Ex.M4 notice was not in terms of the specific provisions of the I.D.Act. It also held that since the notice was displayed in English whereas the notice as prescribed by the State Government was to be in the language known to majority of the workmen and as no notice was exhibited in Tamil (which is the language known to most of the workers), the notice was invalid. There was no compliance in terms of Section 9A of the I.D.Act.
7. With reference to the second contention that though Section 79 of the Factories Act provides for one day earned leave for every 20 days’ of employment and thereby a worker can get maximum of 18 days, the Tribunal rejected the said contention by stating that what has been prescribed under the Factories Act is only the minimum and that does not take away either the right of the employer to provide extra number of leave or for the Tribunal to provide such additional leave. The Tribunal quoted the judgment of the Supreme Court in Alembic Chemical Works Co. LEDC v. Its Workmen reported in 1961 I LLJ P 328 in support of its Award. In that case, the Supreme Court held that what has been prescribed under the Factories Act is only a standardised leave. In that view of the matter, the Industrial Tribunal rejected the contention of the petitioner Management regarding the alteration of service condition without compliance of Section 9-A and also that Section 79 of the Factories Act as an impediment. The Tribunal thereafter held within the same establishment there cannot be two sets of service conditions and therefore, the workmen are eligible to get same number of leave which other workmen are enjoying.
8. The writ petition was admitted on 31.03.2000. Pending the writ petition, an interim stay was granted. Subsequently, on an application taken out by the second respondent Union, the interim stay was vacated on 19.10.2001. In fact when it was brought to the notice of this Court that the Management itself by a communication dated 31.08.1999 had implemented the Award of the Tribunal and therefore this Court observed that there was no justification in the grant of stay.
9. The Supreme Court vide its judgment in Indian Oil Corporation v. Its Workmen reported in AIR 1975 SC 1856 had held that if an infraction of Section 9-A was proved before the Tribunal, the Tribunal need not even go into the merits of the issues since Section 9-A gives the statutory safeguard to the workmen from the employer altering the service condition to their detriment.
10. The Supreme court subsequently took a similar view in its decision reported in Calcutta Insurance Co. Ltd. v. Their Workmen reported in 1967 (2) LLJ 1. The power of the Tribunal to grant extra leave over and above Section 79 was upheld.
11. The Supreme Court vide its decision in Hindustan Times Ltd. v. Their Workmen reported in 1963 (1) LLJ 108 held that the leave available in an establishment must be the same for all classes of workmen.
12. In the present case, not only the Tribunal found that there was infraction of Section 9-A of the I.D.Act but also on merits it held that there was no justification in granting relief to one section of the workmen and denying to other section employed by them.
13. In the light of the above, there is no infirmity or illegality in the Award passed by the Tribunal. Hence, the writ petition stands dismissed. No costs.
27.01.2010
Index:Yes/No
Internet:Yes/No
svki
To
1.The Presiding Officer,
Industrial Tribunal,
Chennai 600 104.
2.The Secretary,
Salem District Dairy Labour Union,
237, Tharamangalam Road,
Old Suramangalam,
Salem 636005.
K.CHANDRU,J.
svki
W.P.No.5782 of 1999
27.01.2010