IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/12/2009
CORAM:
THE HONBLE MR. JUSTICE T.S.SIVAGNANAM
W.P.No.7796 of 1999 & W.M.P.No.11120 of 1999
The Management of
Pulliccar Mills Ltd.,
Sankari Road,
Tiruchengode 637 211.
Rep. by its Managing Director ... Petitioner
Vs
1. The Presiding Officer,
Labour Court,
Salem -7.
2. Kasiappan
3. Nallan
4. Kandasamy
5. Kolandaivelu
6. Palaniappan
7. Palanisamy
8. Arumugam
9. Shanmugam
10.Nilampillai
11.Subramani
12.Subramani
13.Ramasamy
14.Chinnusamy
15.Mathiyazhan
16.Tamilarasu
17.Rangasamy
18.Murugesan
19.Paulraj
20.Ramasamy
21.Arumugam
22.Subramani
23.Arjunan
24.Selvaraj
25.Arumugam
26.Palanisamy
27.Thangavelu
28.Subramaniam
29.Seetharaman
30.Mani
31.Rangasamy
32.Manickavasagam
33.Palanisamy
34.Somasundaram
35.Ramasamy
36.Mani
37.Thannasi
38.Thiyagarajan
39.Venkatachalam
40.Ramasamy
41.Shanmugasundaram
42.Krishnamoorthy
43.Manickam
44.Kumar
45.Rajendra Prasad
46.Mani
47.Kolandavelu
48.Chennimalai
49.Loganathan
50.Xavier
51.Ganesan
52.Thangavelue
53.Mani
54.Sadayan
55.Nagarajan
56.Mathu
57.Manickam
58.Kaliannan
59.Ramasamy
60.Muthusamy
61.Mahalingam ... Respondents
Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the records in C.P.No.863/94 on the file of Labour Court, Salem the first respondent herein and quash the order passed therein dated 17.01.1997.
For Petitioner :Mr.M.R.Raghavan
For Respondents :Mr.V.Govaradhan for M/s. Row & Reddy
O R D E R
The Management of Pulliccar Mills Limited is the writ petitioner and the challenge is to an award of the Labour Court, Salem, first respondent herein, dated 17.01.1997 in C.P.No.863/1994.
2. The facts of the case being that the respondent workmen filed a claim petition before the first respondent in C.P.No.863/1994 under Section 33 (C) (2) of the Industrial Dispute Act 1947 (hereinafter referred to as ‘the Act’), for computing the amounts, which according to the workmen was wrongly withheld which were due to them under the settlement dated 22.11.1986 and the award of the Special Industrial Tribunal dated 23.02.1987. The Management resisted the claim petition by filing a counter statement, questioning the maintainability of the petition and also contending that a settlement under Section 12(3) was concluded on 04.01.1988 and the terms of the settlement were scrupulously followed by the Management and the wages were paid to the employees of the Mill in accordance with the settlement and the settlement was in vogue for a period of three years from 04.01.1988. It was further stated that in terms of the settlement, both the parties agreed for deduction of Rs.200 from their salary and also agreed not to raise any dispute regarding financial matters. It was further contended that unless there has been prior adjudication of the workmen’s entitlement no petition under Section 33 (C) 2 of the Act is maintainable. The question of delay in filing the computation petition was also raised. It was further stated that the award of the Special Industrial Tribunal was implemented and wages paid to the employees and therefore claim petition itself has become infructuous. It is further stated that the settlement is very clear and while concluding the settlement, the award of the Special Industrial Tribunal was also considered and consolidated wages were fixed, which includes the wages fixed by the Special Industrial Tribunal also.
3. The Labour Court took up the matter for adjudication and Thiru.V.Rajaraman was examined on the side of the management as MW-1 and the management marked Exs. M-1 to M8. The workmen did not lead any oral evidence, but marked two documents Exhibits W1 & W2. The Labour Court by an award dated 17.01.1997 computed the amount at the rate of Rs.14,404.17 ps. per worker and this award is impugned in the present writ petition.
4. Mr.R.Raghavan, learned counsel appearing for the petitioner assailed the correctness of the award on the ground that a settlement was entered into between the workmen and the management under Section 18(1) of the Act on 22.11.1986. This settlement was marked before the Special Industrial Tribunal as M-317. It is evident that the said settlement is much prior to the award of the Special Industrial Tribunal. The award passed by the Special Industrial Tribunal, which was published in the Tamil Nadu Government Gazette on 18.03.1987 was questioned before this Court and the Hon’ble First Bench of this Court in Management of Binny Limited (B&C Mills) Vs. Government of Tamil Nadu and others, [1989 1 LLJ page 180], while considering the validity of the award held that the settlements between management and their workers will operate as a bar for reference and consequently the reference in so far as it relates to petitioner’s therein in Group I cases is not valid and the Government was not competent to make the references. The learned counsel by placing heavy reliance on the order passed by the Hon’ble Division Bench held that once the reference to the Special Industrial Tribunal itself is bad in law, in view of the existence of a pre-reference settlement, the question of entertaining a petition under Section 33 (C) 2 of the Act does not arise and on that ground, the impugned award in the present writ petition is liable to be set-aside.
5. Further, it is contended that the award of the Special Industrial Tribunal was published on 18.03.1987 and the claim petition came to be filed only in 1994 and the delay is unexplained and on this ground also the claim ought to have been negatived. Learned counsel would further submit that after the award of the Special Industrial Tribunal dated 18.03.1987, there has been three other settlements on 04.01.1988, 01.02.1991 and 26.05.1993 and these were also marked as Ex.M3, M6 & M8 before the Labour Court, however, the Labour Court ignored all the settlements and did not discuss the same in its award which renders the award as perverse. Finally, the learned counsel would submit that in view of the decision of the Division Bench, which has held that the reference itself is bad in law, the present claim of the respondent workmen has to be held as bad in law. On this ground the learned counsel would contend that the writ petition has to be allowed.
6. Mr. V. Govaradhan, learned counsel appearing for the respondent workmen would strenuously contend that the relief, the workmen sought before the Labour Court was their legitimate claim and in accordance with the settlement arrived at between the management and the workmen. Learned counsel would further submit that the decision of the Hon’ble Division Bench in the case of Binny Mills would have no application to the facts and circumstances of this case, since the award in this case was passed by the Special Industrial Tribunal on 18.03.1987 (Ex.M2) was as per the 18(1) settlement dated 22.11.1986 (Ex.M1). Therefore, the question of the pre-reference settlement not being considered does not arise, since the award of the Special Industrial Tribunal was in accordance with the pre-reference settlement.
7. Learned counsel would further submit that the claim of the workmen is not barred on account of the settlement dated 04.01.1988 and for which purpose, it was pointed out that in terms of the award of Special Industrial Tribunal, the HRA was revised to Rs.63/- per month as against Rs.49/- per month, prevailing in the petitioner Mill and while fixing the wages for July 1997, the management took only Rs.49 and therefore the workmen are justified in claiming Rs.14 being the difference towards HRA from May 1986 to December 1993.
8. It is further submitted that the petitioner Mill is financially sound and the amount computed by the Labour Court relates to the year 1987 to 1993 and the amount is meager and workmen are put to untold suffering on account of non payment of the amount computed. Therefore, the learned counsel would submit that the writ petition is liable to be dismissed and direction may be issued to settle the amount as computed by the Labour Court.
9. I have carefully considered the submissions on either side and perused the materials available on record.
10. The sheet anchor of the argument by the learned counsel appearing for the petitioner is by placing reliance on the decision of the Hon’ble Division Bench in the Binny Mills case, referred supra. The Hon’ble Division Bench, while examining the correctness of the reference made to the Special Industrial Tribunal held :-
“50. In the view we have taken on the proper interpretation of Sections 10(1), 10(5), 18 and 19 of the Act, it follows that the settlements between the managements and their respective workers will operate as a bar to the reference. Consequently, the reference in so far as it relates to the petitioners in Group I cases is not valid and the Government was not competent to make the references. The petitioners in these cases have to be excluded from the reference and the award passed by the Special Tribunal will not be applicable to them. The award passed is quashed in so far as the petitioners are concerned.”
11. In terms of the decision of the Hon’ble Division Bench, the references, which were made in such of those cases were the Special Industrial Tribunal proceeded to pass an award ignoring a pre-reference settlement, was held to be bad and in such of those cases, the Hon’ble Division Bench held that when there is a settlement between the management and its workers, it would operate as a bar to the reference and the Government was not competent to make references. If, the facts of the present case are taken into consideration, there was a 18(1) settlement dated 22.11.1986 which settlement was filed before the Special Industrial Tribunal as M 317 and also placed before the first respondent Labour Court as Ex. M1.
12. Learned counsel appearing for the petitioner would submit that by applying by the law laid down by the Hon’ble Division Bench, there could not have been any reference in the instant case and the workmen cannot place any reliance on the award of the Special Industrial Tribunal dated 18.03.1987 popularly known as Varadhan award. In the instant case, however, the award of the Special Industrial Tribunal dated 18.03.1987, marked as Ex.M2 itself was passed as per 18(1) settlement. This is evident from the award of the Labour Court in which the list of management exhibits have been stated.
13. Therefore, in my view the decision of the Hon’ble Division Bench would have no application to the facts and circumstances of the present case, this conclusion is fortified by the stand taken by the management in the counter statement before the Labour Court filed during May 1995 nearly after 10 years of the Varadhan award. The management did not place any reliance on the Judgment of the Hon’ble Division Bench before the Special Industrial Tribunal, but per contra contended that the claim petition itself has become infructuous, since award of the Special Industrial Tribunal was implemented and wages paid to the employers. Hence, the first objection raised by the learned counsel appearing for the petitioner does not merit acceptance and the Judgment of the Hon’ble Division Bench has no application to the facts and circumstances of the present case, in view of the stand taken by the management and the facts on record.
14. The next contention of the learned counsel appearing for the petitioner was that the Labour Court did not consider the settlements, which were marked as Ex. M3, M6 & M8 and that there is no discussion to the said effect. However, I find from the award that the Labour Court had considered the effect of the settlement, Ex.M1, which was the basis for the award of the Special Industrial Tribunal and proceeded to compute the various entitlements such as HRA from May 1986 to December 1993 as Rs.14/- being the differential amount payable and between June 1990 to December 1993 at Rs.1148/- per workmen and the annual increment from 1987 to December 1993 at Rs.740 per workmen.
15. The Labour Court further render a specific finding on the contention raised by the management that the claim petition has become infructuous, since according to them all amounts have been paid as per the award of Special Industrial Tribunal. The Labour Court held that the management failed to prove that they have paid the entire amount, in terms of the award of the Special Industrial Tribunal and no document has been filed and even the copy of the pay slip of the workers marked as M-7 does not substantiate stand of the management. Therefore, the Labour Court held that the workmen are entitled for their claims in so far as it relates to claim Nos. 3, 4 & 5 and claim Nos. 1&2 were not granted. In fact, the Labour Court has taken into consideration Exs. M3, M4, M5, M6, M8 and has come to a conclusion that since matter could not resolved due to mutual negotiation and therefore the workmen are fully justified in approaching the Labour Court for computing the benefits. Hence, this issue raised by the learned counsel appearing for the petitioner has to be held against the management.
17. In view of the above reasons, it has to be seen that there is no perversity or arbitrariness in the award passed by the Labour Court in C.P.No.863/94 dated 17.01.1997 and consequently, the Writ Petition fails and its dismissed. The petitioner management is directed to settle the amount computed by the Labour Court to all the respondents workmen within a period of two months from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is also dismissed. No costs.
04.12.2009
Index : Yes/No
Internet:Yes/No
pbn
To
The Presiding Officer,
Labour Court,
Salem -7.
T.S.SIVAGNANAM J
pbn
Pre-Delivery in
W.P.No.7796 of 1999
.12.2009