{"id":182417,"date":"2010-12-22T00:00:00","date_gmt":"2010-12-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-management-of-theni-printers-vs-the-presiding-officer-on-22-december-2010"},"modified":"2017-10-23T11:01:51","modified_gmt":"2017-10-23T05:31:51","slug":"the-management-of-theni-printers-vs-the-presiding-officer-on-22-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-management-of-theni-printers-vs-the-presiding-officer-on-22-december-2010","title":{"rendered":"The Management Of Theni Printers vs The Presiding Officer on 22 December, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
The Management Of Theni Printers vs The Presiding Officer on 22 December, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 22\/12\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE  M.VENUGOPAL\n\nW.P.(MD)No. 10693 of 2005\n\nThe Management of Theni Printers,\nrep. by its Proprietor S. Naganathan,\nNo.7, Butterworth Road, Trichy - 620 002.\t   ... Petitioner\n\nVs.\n\n1. The Presiding Officer,\nLabour Court, Tiruchirappalli.\n2. S. Praksh\t\t\t\t\t   ... Respondents\n\t\nPrayer\n\nWrit Petition is filed under Article 226 of the Constitution of India to\nissue a Writ of Certiorari calling for the records of the first respondent in\nI.D. No. 203 of 2003 and quash the award dated 31.3.2005 passed by the first\nrespondent and grant such other reliefs as may be deemed fit and proper in the\ncircumstances of the case.\n\n!For Petitioner   ... Mr. K.S. Vamsidhar\n^For R2\t \t  ... Mr. S. Arunahalam\n\n:ORDER\t\n<\/pre>\n
\tThe Petitioner\/Management has filed the present Writ of Certiorari in
\ncalling for the records of the First Respondent\/Labour Court in I.D. No. 203 of
\n2003 and to quash the award passed dated 31.3.2005.\n<\/p>\n
\t2. The First Respondent\/Labour Court, while passing an award in I.D.No.
\n203 of 2003, dated 31.03.2005, filed by the Second Respondent\/Workmen, among
\nother things, observed that the Second Respondent\/Claimant\/Workman is entitled
\nto claim a compensation of      Rs. 75,000\/- from the
\nPetitioner\/Respondent\/Management and directed the petitioner\/Management to pay
\nthe same and resultantly, allowed the industrial dispute.\n<\/p>\n
\t3. Feeling aggrieved against the award, dated 31.3.2005, passed by the
\nSecond Respondent\/Labour Court, dated 31.03.2005, in I.D. No. 203 of 2003, the
\nPetitioner\/Respondent\/Management has filed the present Writ Petition, as an
\naggrieved person.\n<\/p>\n
\t4. The learned counsel for the Petitioner\/Management submits that the
\naward passed by the First Respondent\/Labour Court, dated 31.3.2005, in I.D. No.
\n203 of 2003 is opposed to principles of law and that the Second
\nRespondent\/Workman has taken up employment with M.W.2 immediately after leaving
\nthe service of the Petitioner\/ Management and at the time when conciliation
\nproceedings have taken place, the Second Respondent\/Workman has been in service
\nof witness M.W.2 and even from 1.4.2003 the Second Respondent\/Workman has been
\nin service of M.W.2. If really, the Second Respondent\/Workman has been
\nterminated from service by the Petitioner\/Management on 31.3.2003 will itself
\nshow that he has left the service of the Petitioner\/Management voluntarily.\n<\/p>\n
\t5. The case of the Petitioner\/Management is that the Second
\nRespondent\/Workman upon his failure to report for duty the Petitioner\/Management
\nhas been forced to reduce the volume of work and this will point out that the
\nPetitioner\/Management has not terminated the Second Respondent\/Workman from
\nservice.\n<\/p>\n
\t6. Continuing further, it is the submission of the learned counsel for the
\nPetitioner\/Management that the First Respondent\/Labour Court has committed an
\nerror in disregarding the evidence of M.W.2 and indeed M.W.2 has categorically
\nstated that the Second Respondent\/ Workman joined his services immediately on
\nleaving the Petitioner\/Management and this will show that his case of
\ntermination is not a true one.\n<\/p>\n
\t7. Expatiating his submission, it is the contention of the learned counsel
\nfor the petitioner that the Second Respondent\/Workman has been gainfully worked
\non elsewhere on higher wage and that the Petitioner\/Management has to close down
\nits business and therefore, the First Respondent\/Labour Court ought to have
\ndeclined any relief to him.\n<\/p>\n
\t8. In short, a plea is put forward on the side of the
\nPetitioner\/Management that the First Respondent\/Labour Court has totally ignored
\nthe material evidence on record and has not adverted to the material and factual
\naspects of the matter  in a proper perspective which has resulted in an
\nerroneous award being passed against the Petitioner\/Management and as such prays
\nfor allowing the Writ Petition to promote substantial cause of Justice.\n<\/p>\n
\t9. Per contra, it is the contention of the learned counsel for the Second
\nRespondent\/Workman that the First respondent\/Labour Court upon an appreciation
\nof oral and available documentary evidence on record has come to a clear
\nconclusion in its award that in view of the strained relationship between the
\nparties, the present dispute in I.D. No. 203 of 2003 has ordered for a
\ncompensation of RS. 75,000\/- to be paid to the Second respondent\/Workman,
\ninstead of ordering reinstatement, which need not be interfered with by this
\nCourt sitting in Writ jurisdiction.\n<\/p>\n
\t10. The learned counsel for the Second respondent\/Workman cites a decision
\nof Hon’ble Supreme Court in Scooters India Ltd. Vs. M.Mohammed yaqub and Another
\nreported in 2001-I-L.L.J. at page 7 wherein it is laid down as follows:
\nIn dismissing the appeal of company employer, the Supreme Court observed that
\nthere could not be any automatic termination of the respondent-workman on the
\nbasis of the company’s Standing Order 9.3.12, which provided for striking off
\nthe rolls of a workman’s name who absented himself for more than 10 days without
\nleave. Principles of natural justice had to be complied with.\n<\/p>\n
\t11. He also seeks in aid of yet another decision of Hon’ble Supreme Court
\nNICKS (INDIA), TOOLS Vs. Ram Surat and another reported in 2004(4) L.L.N. 720 at
\npage 721, wherein it is held as follows:\n<\/p>\n
From the overall proceedings before the Labour court, it is noticed that through
\nthe management did take the stand that the workman had left the services of the
\nappellant management voluntarily by receiving his total dues in full and final
\nsettlement it did not, at the stage of filing of its written statement, contend
\nthat the workman has executed a receipt which is now sought to be produced as
\nExhibit M\/X (M3). This coupled with the fact that the said document was not
\nconfronted to the respondent-workman, is sufficient to hold that this document
\ncannot be relied upon for establishing the fact that the management  has proved
\nits case that the workman had voluntarily left his services. The trial Court has
\nfurther buttressed this finding by noticing the difference in the ink in the
\nreceipt as well as the bonus register as also the absence of revenue an
\ninference that the receipt in question may have been signed previously but was
\nfilled up subsequently. This findings of the Labour Court has been accepted by
\nthe High Court has been accepted by the High Court and this being a finding of
\nfact and which cannot be said to be perverse, the Court is not inclined to
\ninterfere with the same in this appeal.\n<\/p>\n
\tIn the instant case, it is noticed that the basic ground on which the
\nLabour Court reduced the back-wages based on a judgment of the High Court of
\nPunjab and Haryana which, as further noticed by the Court was overruled  by a
\nsubsequent judgment of a Division Bench. Therefore, the very foundation of the
\nconclusion of the Labour Court having been destroyed, the appellant could not
\nderive any support from t he above cited judgments of that Court. Similarly, in
\nthe case of Madhya Pradesh State Electricity Board the Supreme Court only said
\nthat it is not an inevitable conclusion that every time a reinstatement is
\nordered, full back-wages was the only consequence. The Supreme Court, did not
\npreclude that even in cases where full back-wages are legally due, the superior
\nCourts are precluded from doing so merely because the Labour Court has on an
\nerroneous ground reduced such back-wages. In the instant case, we have noticed
\nthat the trial Court apart from generally observing that in Ludhiana, there must
\nhave been job opportunities available, on facts it did not rely upon any
\nparticular material to hold either such job was in fact available to the
\nrespondent and he refused to accept the same or h e was otherwise gainfully
\nemployed during the period he was kept out of work. On the contrary, it is for
\nthe first time before the Writ Court the appellant tried to produce additional
\nevidence which was rightly not considered by High Court because the same was not
\nbrought on record in a manner known to law. Be that as it may, in the instance
\ncase was the High Court was justified in coming to the conclusion that the
\nappellant is entitled to full back-wages.\n<\/p>\n
\t12. The learned counsel for the respondent also relies on a decision of
\nHon’ble Supreme Court of India in Bank of Baroda and Ghe marbai Harjibhai Rabari
\nreported in 2005(2) L.L.N. 671 at page 672 whereby and where under it is
\nobserved thus:\n<\/p>\n
In the instant case, the workman has established the fact which, of course, has
\nnot been denied by the bank, that he did work as a driver of the car belonging
\nto the bank during the relevant period which come to more than 240 days of work.
\nHe  has produced 3 vouchers which showed that he had been paid certain sums of
\nmoney towards his wages and the said amount has been debited to the account of
\nthe bank. As against this, no evidence has been adduced by the bank to rebut
\nthis piece of evidence produced by the workman. It remained contended by filing
\na written statement wherein it denied the claim of the workman and took up a
\nplea that the employment of such drivers was under a scheme by which they are,
\nin reality, the employee of the executive concerned and not that of the bank and
\nthat their employment comes to end with executive’s retirement\/transfer but none
\nwas examined to prove the scheme. No evidence was led to establish that the
\nvouchers produced by the workman were either not genuine or did not pertain to
\nthe wages paid to the workman. No explanation by way of evidence was produced to
\nshow for what purpose the workman’s signatures were taken in the register
\nmaintained by the bank. In the said factual background, the question of workman
\nfurther proving his case does not arise because there was no challenge at all to
\nhis evidence by way of rebuttal by the bank. Thus finding of by Tribunal that in
\nspite of the fact that there was not letter of appointment since the factum of
\nthe workman having worked between July, 1994 and October 1995, i.e., for period
\nof more than 240 days was established. The termination of the services of the
\nworkman was contrary to the provisions of the Act. Workman entitled to
\nreinstatement with full back-wages.\n<\/p>\n
\t13. This Court has heard the learned counsels appearing for the parties
\nand noticed their submissions.\n<\/p>\n
\t14. The Second Respondent\/Workman in I.D. No. 203 of 2003 before the First
\nRespondent\/ Labour Court has averred that he has been an employee under the
\nPetitioner\/Respondent\/Management as Salesman from 10.7.1972 to 30.3.2003 and his
\nlast drawn monthly salary has been Rs.1,900\/-. He has been terminated from
\nservice by the Petitioner\/Respondent\/Management on 31.3.2003 without any
\nreasons.\n<\/p>\n
\t15. According to the Second Respondent\/Workman, termination is an unlawful
\none and the Petitioner\/Respondent\/Management has not followed the provisions of
\nIndustrial Disputes Act, 1947 and therefore, prays for his re-instatement with
\nfull back wages and continuity of service together with all attendant benefits.\n<\/p>\n
\t16. In the counter to I.D. No. 203 of 2003, the Petitioner\/ Management has
\nstated that the Second Respondent\/Workman’s appointment is not from 10.7.1970
\nbut it is only from 1.12.1975 and his last drawn salary has been at Rs.350\/- per
\nweek. Usually, on Saturdays the Second Respondent\/Workman’s salary will be
\ndisbursed. According to the Petitioner\/Respondent\/Management, on 29.3.2003, the
\nsecond respondent\/Workman collected his salary in cash and again on 31.3.2003,
\nhe collected the days salary stating that he is going to Bangalore and he will
\nreturn in a week and he has not returned as promised.\n<\/p>\n
\t17. The contention of the learned counsel for the Petitioner\/Management is
\nthat the second respondent\/Workman has been employed by it and he is only one
\nworkman and there are no other employees for the Petitioner\/Management and since
\nhe has not turned up after 7th April 2003, the Petitioner\/Management has reduced
\nits work. Further the Proprietor of the petitioner himself operated the printing
\npress machine to complete the work already received and that a machine man is
\nnot required any more as the Petitioner\/Management has virtually closed down its
\ntrade and as such the claim of the second respondent\/Workman is not sustainable
\nand there are no arrears of pay and benefits etc.<\/p>\n
\t18. The core contention advanced on behalf of the Petitioner\/Management is
\nthat since it has closed its business on account of the Second
\nRespondent\/Workman’s absence, there is no scope for employing him any further.\n<\/p>\n
\t19. It is to be noted that the person claiming protection as per Section
\n25(F) of Industrial Disputes Act, 1947 ought to have\n<\/p>\n
\ta) a relationship of employee with an employer\n<\/p>\n
\tb) he must be a workman coming within the meaning of Section 2(s) of the
\nAct,\n<\/p>\n
\tc) the establishment in which he is employed must be an industry within
\nthe meaning of Section 2(j) and (iv)\n<\/p>\n
\td) He must have put in not less than one year of continuous service as
\nspecified under Section 25(B) of Industrial Disputes Act under the employer.\n<\/p>\n
\t20. If no fault on the part of an employee, suppose he has thrown out of
\nemployment he has to be provided with compensation. The right provided under
\nSection 25(F) of Industrial Disputes Act, 1947 is based on humane grounds of
\npublic policy upon consideration that involuntary unemployment causes
\ndislocation of trade and industry and may result in general economic insecurity.\n<\/p>\n
\t21. The requirements of valid Retrenchments are as follows:\n<\/p>\n
\t(i) one month’s notice in writing indicating the reasons for retrenchment
\nor wages in lieu of such notice;\n<\/p>\n
\t(ii)payment of compensation equivalent to fifteen days, average pay for
\nevery completed year of continuous service or any part thereof in excess of six
\nmonths and\n<\/p>\n
\t(iii) notice to the appropriate government in the prescribed manner.\n<\/p>\n
\t22. It is well settled principle in law that the Section 25(F) imposes
\nmandatory duty on the part of an employer, which is a condition precedent to
\nretrenchment of a workman. In short, the violation of mandatory ingredients of
\nSection 25(F) of Industrial Disputes Act will invalidate the retrenchment and
\nrender it void ab initio as per decision in Auro Engineering Pvt. Ltd. Nasic Vs.
\nRV Gadeka reported in 1992 Lab IC 1364-65.\n<\/p>\n
\t23. Also an employer cannot take advantage of the Standing Orders
\nproviding for 48 hours’ notice for termination of service of the workman in the
\nface of the statutory provisions of Section 25F of the Act which provides for
\none month’s notice for retrenchment of a workman as per decision in KP Das & Co.
\nLtd., Vs. Howrah zillah Loha Karkhana Mazdoor Congress  reported in (1956) 1 LLJ
\n679 (LAT).\n<\/p>\n
\t24. In this connection it is not out of place for this Court to make a
\nmention that the question of retrenchment compensation is relevant only when the
\nemployment is regular. There can be no compensation in case of employment of
\ntemporary character as per decision in National Projects Construction
\nCorporation Ltd. Vs. Their Workmen 1970 Lab IC 907, 912 (Pat) (DB).\n<\/p>\n
\t25. There is no impediment in law to prevent a workman from deriving the
\ndouble benefit,  one under a Gratuity Scheme and other as compensation for
\nretrenchment.\n<\/p>\n
\t26. It is for the workman to prove that he has not been gainfully employed
\nduring the pendency of proceedings. A termination of a casual employee or a
\nDaily Wager who has completed 240 days will amount to Retrenchment. A
\ntermination of service of a Workman on the ground of unauthorized absent amounts
\nto retrenchment. Also a termination of workman having worked for six years,
\nwithout retrenchment compensation will be a illegal one, in the considered
\nopinion of this Court.\n<\/p>\n
\t27. Normally, if there is non compliance of 25(F) of the Industrial
\nDisputes Act, workman will be entitled to the relief of Retrenchment with full
\nback wages and continuity of service. Section 25(F) of Industrial Disputes Act.
\n1947 applies even to a temporary or a adhoc employee. However, workman’s service
\nis terminated in a undue haste indulging in unfair labour practice and without
\nfollowing to requirements of Section 25F of Industrial Act then he is entitled
\nto claim back wages.\n<\/p>\n
\t28. The evidence of W.W.1(Workman) is to the effect that he has been
\nterminated from service by the Petitioner\/Management on 30.3.2003 and his last
\ndrawn salary per month has been at Rs.1,900\/- and before his termination, no
\nnotice has been issued to him. No compensation has been paid to him and
\nmoreover, at the time of his termination, his bonus and salary arrears have not
\nbeen paid to him.\n<\/p>\n
\t29. It is the evidence of M.W.1 (owner of Petitioner\/Management) that the
\nSecond Respondent\/Workman joined in the petitioner’s printing press during the
\nyear December 1975 and it does not remember how much salary the Second
\nRespondent\/Workman has been receiving at that time and lastly workman received a
\nmonthly salary of Rs.1,900\/- per month and that they have not terminated the
\nSecond Respondent\/Workman from service and on 31.3.2002. The Second
\nRespondent\/workman after receiving his arrears of salary has informed him that
\nhe is going to an outstation and after that he has not returned for the job.\n<\/p>\n
\t30. M.W.2 (Owner of Sri Kamakodi Printers) in  his evidence has stated
\nthat the Second Respondent\/Workman (WW1) has been employed in his printing press
\nfrom September 2003 and that he was paid daily salary of Rs.60\/- and vouchers
\nare given for every week and the Second Respondent\/Workman is known to him in
\nhis printing press.\n<\/p>\n
\t31. Admittedly, the Second Respondent\/Workman has not been issued with any
\nnotice mentioning that he has remained unauthorisedly absent in not attending
\nwork with the Petitioner\/Management though the Petitioner\/Management has stated
\nin their counter that it has closed down its trade and because of the absence of
\nthe second respondent\/workman which has closed its business and there is no
\nscope for employing him any further.\n<\/p>\n
\t32. Ex.W.4 series, namely, the marriage invitation show that the
\nPetitioner\/Management press has not yet been closed and still continues to do
\nits business in printing. Therefore, the plea taken by the petitioner\/Management
\nthat its business has been closed is factually incorrect one and the same is
\nunworthy of acceptance by this Court.\n<\/p>\n
\t33. Coming to the aspect that even though the Second Respondent\/workman
\nputs forward a case that he has been employed as a Salesman with the
\nPetitioner\/Management from 10.7.1970 to 30.3.2003, the Petitioner\/Management in
\nits counter has stated that the second respondent\/Workman has worked only from
\n1.12.1975 etc. In regard to the fact that the Second Respondent\/Workman has been
\nworking with the Petitioner\/Management from 10.7.1970, there is no satisfactory
\nproof produced on his side before the Labour Court in I.D. No. 203 of 2003.
\nHowever, in view of the tacit admission made by the Petitioner\/ Management in
\ntheir counter that the Second Respondent\/Workman has been employed with them
\nfrom 1.12.1975 even though this Court is of the considered view that in the
\ninstant case on hand, the Petitioner\/ Management printing press has not followed
\nthe Section 25(F) of the Industrial Disputes Act pertaining to retrenchment and
\ntherefore, the Petitioner\/Management\teven in case the second   respondent\/
\nWorkman has not returned for duty should have issued notice to him and in case
\nof non compliance of relevant Provision of the Industrial Disputes Act, the case
\nof the Second Respondent\/Workman that he has been terminated from service on
\n31.3.2003 without any reason is to be accepted and the very fact that in the
\nreply to the lawyer’s notice sent by the Workman, the same has not been
\nmentioned by the Petitioner\/Management is clearly on adverse factor which goes
\nagainst the Management and in short, the version projected by the Second
\nRespondent\/workman in his evidence that he has been terminated unreasonably from
\n31.3.2003 is accepted by this Court. However, since the petitioner is now
\nworking with M.W2 from September 2003 on a daily wage of Rs.60\/- this Court in
\nview of the love lost relationship between the petitioner and the second
\nrespondent is not ordering for re-instatement to the Second respondent\/Workman
\nbut awards a compensation of Rs.75,000\/- to the Second Respondent\/Workman which
\nwill certainly be a fair and adequate compensation to the Second
\nRespondent\/Workman and looking it from any angle, the award passed by the first
\nrespondent in I.D. No. 203 of 2003 dated 31.3.2005  does not suffered from any
\nserious material irregularity and illegality. Consequently the Writ Petition
\nsans merits.\n<\/p>\n
\t34. In the result, the writ petition is dismissed leaving the parties to
\nbear their own costs. Consequently, the award passed  by the First
\nRespondent\/Labour Court in I.D. N o 203 of 2003 dated  31.3.2005 is confirmed by
\nthis Court for the reasons assigned in this Writ Petition. The
\nPetitioner\/Management is directed to pay a compensation of Rs.75,000\/- to the
\nsecond Respondent\/Workman within a period of three months from the date of
\nreceipt of copy of this order, failing which, it is open to the Second
\nRespondent\/Workman to take appropriate further proceedings against the
\nPetitioner\/Management in the manner known to law and in accordance with law.\n<\/p>\n
ses<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Management Of Theni Printers vs The Presiding Officer on 22 December, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22\/12\/2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.(MD)No. 10693 of 2005 The Management of Theni Printers, rep. by its Proprietor S. Naganathan, No.7, Butterworth Road, Trichy – 620 002. … Petitioner […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-182417","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Management Of Theni Printers vs The Presiding Officer on 22 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-management-of-theni-printers-vs-the-presiding-officer-on-22-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Management Of Theni Printers vs The Presiding Officer on 22 December, 2010 - 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