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Judgment
K. Chandru, J.—This writ petition came to be posted on being specially ordered by the Hon''ble Chief Justice vide his order dated
6.11.2012. Heard the arguments of Mr. N. Vijay Narayan, learned senior counsel leading Mr. J. James, learned counsel for the petitioner and the
second respondent appearing as party-in-person.
In this writ petition, the petitioner is the Management of Futura Polyesters Limited, previously known as Indian Organic Chemicals Limited. The
challenge in the writ petition is to the Award passed by the Principal Labour Court, Chennai in complaint No. 1 of 2007 dated 3.2.2012. By the
impugned Award dated 3.2.2012, the first respondent Labour Court directed the reinstatement of the second respondent with service continuity,
backwages and other attendant benefits.
The writ petition was admitted on 23.7.2012. Pending the writ petition, an interim stay was granted on condition that the Management should
deposit 25% of the backwages before the Labour Court within a period of four weeks. The Management accordingly deposited a sum of Rs.
2,71,588/- before the first respondent Labour Court by way of Demand Draft and a memo to that effect was filed on 21.8.2012.
The second respondent filed two applications being M.P. Nos. 3 and 4 of 2012, seeking to vacate the interim stay and also for payment of last
drawn wages in terms of Section 17-B of the I.D. Act. While in M.P. No. 3 of 2012, for vacating the stay, no orders have been passed, in M.P.
No. 4 of 2012, this Court directed the Management to comply with payment of last drawn wages.
It is the stand of the petitioner Management that the second respondent was working as Plant Operator in their manufacturing plant. He was
unauthorized absent from 9.2.2004 on the ground of Psychosomatic illness. When he appeared for work on 21.2.2004, he was advised to go
before the medical Board to check his medical fitness as he has to work in the electrical department with his co-employees. But the second
respondent declined to do so and he also did not produce any medical certificate from the Medical Board. Hence, he was dismissed from service
with retrospective effect for refusing to go for medical examination on the ground of psychosomatic illness. The second respondent even before his
discharge from service raised a dispute before the Conciliation Officer as if he was discharged on 21.2.2004. The Management took the stand
before the Conciliation Officer that the second respondent was still in service and was not removed. But the Conciliation Officer on the basis of the
stand of the parties gave a failure report dated 24.8.2004. It was only thereafter, the Management by an order dated 8.9.2004 discharged the
second respondent from service with effect from 9.2.2004.
Notwithstanding the same, the second respondent filed a claim statement by enclosing the failure report and it was taken on file as if it was given
u/s 2-A(2) of the I.D. Act. The first respondent Labour Court took up the claim statement on file and assigned I.D. No. 465 of 2004. The second
respondent also filed a claim statement u/s 33C(2) being C.P. No. 106 of 2004. It was contended in the counter statement filed by the
Management dated 27.12.2005 that there was no infraction of Section 33(2) of the I.D. Act and the second respondent''s dispute cannot be
treated as complaint u/s 33A of the I.D. Act.
Two years after filing the dispute, the workman filed an interim application in I.A. No. 73 of 2006 in the said ID and wanted that the dispute u/s
2A(2) to be treated as a complaint u/s 33A of the I.D. Act. Despite the Management objecting the same, the Labour Court allowed the
application holding that in the absence of the Management establishing that the order of discharge dated 8.9.2004 was effected after the failure
report of the Conciliation Officer reached the Government, it can be treated only as a complaint u/s 33A of the I.D. Act. The order passed in I.A.
No. 73 of 2006 dated 23.6.2006 was challenged by the Management in W.P. No. 22221 of 2006. The said writ petition was dismissed by an
order dated 10.10.2006 by holding that in the case of termination of the second respondent, Section 33(2) of the I.D. Act was violated and
therefore, the Labour Court was correct in converting the dispute into one of compliant u/s 33A of the I.D. Act. It was also observed that even
after the conversion of the same the right of the Management available under the Industrial Disputes Act was not taken away.
Aggrieved by the said order, the Management, preferred a writ appeal being W.A. No. 1324 of 2006. A Division Bench of this Court by an
order dated 22.12.2006 dismissed the writ appeal and in paragraph 11, it was observed as follows:
The particulars furnished clearly show that the termination order was passed prior to the disposal of the proceeding before the Conciliation
Officer. As said earlier, though the Conciliation Officer submitted his Report, in the absence of proof to substantiate/confirm the receipt of the
report by the appropriate Government in terms of Section 20(2)(b), the action taken by the Management, viz., terminating the service of the
workman on 8.9.2004, amounts to violation of Section 33 of the Act. All these relevant aspects have been correctly appreciated and decided by
the labour Court, which decision was rightly confirmed by the learned Judge. Inasmuch as the decision of the Labour Court is only a prima facie
conclusion for the disposal of I.A. No. 73 of 2006, we are unable to accept the contention of the management that the Labour Court had gone into
the merits and pre-concluded the issue.
As against the same, the Management preferred a Special Leave to appeal (Civil) No. 662 of 2007 before the Supreme Court. The Supreme
Court by an order dated 25.1.2007 dismissed the SLP.
Though the learned Judge and the Division Bench found that there was violation of Section 33-(2)(b) of the I.D. Act, as to where the
complaint should be filed was not indicated and it was presumed that a complaint u/s 33A is maintainable before the Labour Court. However in
this case, the dispute was raised u/s 2A(2) of the I.D. Act and therefore, on the basis of the Tamil Nadu amendment, after the failure report given
by the Conciliation Officer, directly a workman has to file claim statement before the Labour Court which will have to be treated as a dispute as if
it was referred by the State Government. Therefore, the question that the matter being sent to the State Government and the State Government
referring the dispute do not arise. If the workman alleges that he was dismissed while the conciliation is pending, then the remedy to file a complaint
u/s 33A is only before the Conciliation Officer and not before the Labour Court. The second respondent admittedly was not dismissed during
pendency of the dispute. In any event, the complaint of the second respondent was numbered as Complaint No. 1 of 2007. The Management also
file additional counter statement on 8.2.2007 contending that the dispute is not maintainable before the Labour Court and if at all the complaint has
to be made before the Conciliation Officer.
Initially, in complaint No. 1 of 2007, the workman examined himself as W.W. 1 and the Management examined one V. Natarajan as M.W. 1.
On the side of the Workman, 24 documents were filed and marked as Exhibits W-1 to W-24 and on the side of the Management, document
containing 135 pages was filed and marked as Exhibit M-1 series.
The Labour Court by its Award dated 10.5.2007 held that the Management has not sought for permission to adduce evidence and no
evidence has been let in to justify its action. The Management has failed to prove that the workman was medically unfit to join duty. Hence,
termination was set aside and the Award was passed directing the Management to reinstate the workman in service with backwages, continuity of
service and all other attendant benefits.
The application filed by the workman in I.A. No. 22 of 2007 for compensation was rejected.
The Management filed I.A. Nos. 15 to 19 of 2007, seeking to reopen the case, seeking permission to file additional counter, seeking records
from two public offices, to receive documents filed on behalf of the management and seeking permission to let in oral evidence. The workman filed
I.A. No. 22 of 2007 seeking for interim relief of Rs. 3,00,000/- The Labour Court disposed of the interlocutory applications by a common order
dated 8.3.2007. Insofar as applications filed by the management are concerned, the Labour Court in paragraph 9 had ordered as follows:
For the aforesaid reasons, petitions 1) to reopen the case, 2) for permission to file additional counter 3) to receive the documents and 4) for
permission to let in oral evidence are to be allowed. And the I.A. For direction to produce documents is liable to be dismissed, it is suffice to
observe that the adjudication will be taken upon day to day basis from the next hearing date so as to give speed disposal preferably within a month
in this case and this Court hopes that both the parties will co-operate. Both the parties are at liberty to adduce evidence both oral and
documentary.
Aggrieved by the Award, the Management filed another writ petition being W.P. No. 23446 of 2007. This Court by order dated 25.7.2008
allowed the writ petition and set aside the Award dated 10.5.2007. It was found that the Labour Court having allowed the interlocutory
applications filed by the Management to lead necessary evidence but failed to note the said aspect and straight-away passed an award. In
paragraph 49, this Court observed as follows:
The culmination of all the above factors lead to one and only conclusion that the impugned Award cannot be sustained and accordingly the
same is set aside. While setting aside the Award, I feel it appropriate to remit the matter back to the first respondent Labour Court for a de novo
enquiry, since the parties will have to let in evidence on the merits of the non-employment of the second respondent. The first respondent shall
therefore permit the petitioner as well as the second respondent to adduce necessary evidence in support of their stand. Therefore, while setting
aside the impugned Award of the first respondent Labour Court dated 10.5.2007, passed in Complaint No. 1 of 2007, the dispute is remitted
back to the file of the first respondent for adjudication on merits by permitting the petitioner as well as the second respondent to let in necessary
evidence in support of their respective stand. Inasmuch as the dispute is hanging fire for the past more than 4 years, it is just and proper that the
first respondent Labour Court carry out the above said exercised expeditiously preferably within three months from the date of receipt of the
records along with a copy of this order. The writ petition stands allowed with the above direction to the first respondent Labour Court.
The second respondent preferred writ appeal in W.A. No. 961 of 2008. The said writ appeal was dismissed by the Division Bench by
judgment dated 19.12.2008. In paragraph 33, the Division Bench observed as follows:
All the above factors had been dealt with in extenso by the learned single Judge, who, only thereafter, came to the precise conclusion that the
award of the second respondent Labour Court could not be sustained. While setting aside the award, the learned single Judge felt it appropriate to
remit the matter back to the second respondent Labour Court for a de novo enquiry, as the parties would have to let in evidence on the merits of
non-employment of the appellant. Accordingly, the second respondent was directed to permit the first respondent and the appellant to adduce
necessary evidence in support of their stand. The learned single Judge also observed that as the dispute was pending for the past more than four
years, it was just and proper for the second respondent Labour Court to dispose of the matter expeditiously preferably within three months. We
are in complete agreement with the findings of the learned single Judge. Therefore, we see no reason to interfere with the order impugned in this
writ appeal. As such, this writ appeal stands dismissed.
As against the order passed by the Division Bench, the second respondent preferred SLP before the Supreme Court. Since there was a delay,
a condone delay petition was filed and the delay was condoned. However, the SLP was dismissed vide order dated 16.12.2009.
Thereafter, Complaint No. 1 of 2007 was taken up by the first respondent and fresh evidence was let in. The workman examined himself as
W.W. 1. The Management examined three witnesses viz., M.W. 1 to M.W. 3. On the side of the workman, 25 documents were filed and marked
as Exhibits W-1 to W-25 and on the side of the Management, 44 documents were filed and marked as Exhibit M-1 to M-44.
The Labour Court after hearing the parties, by the impugned Award dated 3.2.2012 once again passed the order of reinstatement with
backwages and other attendant benefits as noted already. The Labour Court held that though complaint was made u/s 33A, the workman can be
given relief by treating the same as industrial dispute u/s 2A(2) and therefore, it held that the workman was illegally terminated and he was directed
to be reinstated with backwages, continuity of service as noted already.
The Labour Court found that as per the evidence of M.W. 1, the Management instructed the workman in Exhibit M-28 to appear before the
Director, Government Mental Health Institute, Kilpauk for medical examination. But the workman did not appear for medical examination.
According to Clause 4 of the Certified Standing Order, any workman has at any time is found by the, medical officer to be permanently unfit,
physically or mentally, for employment in the service of the company be discharged from the services of the company and in all cases the decision
of the District Medical Officer is final. The Labour Court held that since the Management failed to get a certificate from the District Medical Officer
and no enquiry was held and merely because he has refused to appear before the Medical Board and when he was raising a dispute the dismissal
was made, the dismissal was contrary to the Industrial Disputes Act.
It is not clear as to how the Labour Court has now stated that even if the complaint u/s 33A is not maintainable, the relief could be given by
treating it as a dispute u/s 2A(2) of the I.D. Act. On the other hand, all along the contention was that it should be treated as complaint u/s 33A, the
Labour Court will have to decide whether such a complaint is maintainable in terms of Section 33A. The contention of the Management is such a
complaint is not maintainable before the Labour Court as there was no dispute before the Labour Court pending at the relevant time and if at all
complaint can be made only before the Conciliation Officer in terms of Section 33A of the I.D. Act.
It is necessary to reproduce Section 33A of the I.D. Act:
33-A Special Provisions for adjudication as to whether conditions of service, etc., changed during pendency of proceedings. Where an employer
contravenes the provisions of Section 33 during the pendency of proceedings (before a Conciliation Officer, Board, an arbitrator, a Labour Court,
Tribunal or National Tribunal,) any employee aggrieved by such contravention, may make a complaint in writing, (in the prescribed manner,-
(a) to such Conciliation Officer or Board, and the Conciliation Officer or Board shall take such complaint into account in mediating in, and
promoting the settlement of, such industrial dispute; and
(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or
National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance
with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply
accordingly.)
If the complaint has to be made before the Conciliation Officer, he has no power to adjudicate and in terms of Section 33A(a) he can only
take note of such complaint for mediating and promoting a settlement. But these aspects were not noted even though there were two rounds of
litigation upto Supreme Court by both sides. In any event in the second round of litigation both single Judge and Division Bench has given
permission for the Management to lead evidence and three witnesses were examined. Evidence of M.W. 1 to M.W. 3 were not considered by the
Labour Court even though they were supported by 44 documents. It is rather unfortunate that a dispute relating to non-employment of workman
has been pending for more than eight years and two rounds of litigation went up to the Supreme Court. In view of abdication of the power of the
Labour Court in going into the merits of the dispute, despite a direction was given by this Court in W.P. No. 23446 of 2007 dated 25.7.2008
extracted above, it is rather unfortunate the Labour Court failed to do the same. But, considering the fact that further remand will unnecessarily
delay the dispute this Court allowed the parties to make submissions on the evidence already recorded.
Written brief were filed by both sides. Since already in the first round of litigation, this Court has held that complaint u/s 33A is maintainable,
without expressing which forum, it will be difficult to go behind that order. Hence, necessarily, the merits of the case will have to be gone into.
Admittedly, the workman was directed to go before the Institute of Mental Health to subject himself to medical examination. But the workman
refused to appear despite there has been several correspondences in terms of Exhibits M-24 to M-26, M-28, M-29, M-30, M-31 and M-32. It
is the fault of the workman not to appear before the Medical Board. Yet the Management instead of resorting to terminating him for refusing to
obey the order of the employer presumed that he was medically unfit and dismissed him by an order dated 8.9.2004 marked as Exhibit M-33. The
Labour Court was right in relying upon Clause 4 of the Certified Standing Orders marked as Exhibit M-3. When once the Management had taken
liberty to adduce evidence, the Labour Court should have taken note of other circumstances apart from the reason found in the order of
termination. Refusing to go before the Medical Board cannot be held to be a technical violation and it is amounting to clear disobedience of the
order of the superior. The Labour Court has not considered this aspect and as noted above it never even touch the original evidence let in by both
parties and went on technical ground. The Labour Court also did not consider whether the dispute u/s 2A is maintainable when there was no
formal order of termination at the time when the workman raised a dispute before the Conciliation Officer. The refusal of the workman not to
appear before the concerned medical authorities is a clear violation of the obligation cast upon him. Therefore, this Court is of the opinion that the
impugned Award of the Labour Court is called for interference since it has not taken into account the relevant facts.
In this context, it is necessary to refer to a judgment of the Supreme Court in Secretary to Government and Others Vs. A.C.J. Britto, . In
paragraph 9, it was observed as follows:
The Rules applicable in this case do not specify acts of misconduct for which a delinquent officer can be punished. Rule 2 empowers the
competent authorities to impose upon members of the Service penalties specified therein ""for good and sufficient reason"". Therefore, the decision
of this Court in A.L. Kalra case is clearly distinguishable. Before holding that there was no justification to initiate disciplinary proceeding against the
respondents, the Tribunal ought to have considered whether there was ""good and sufficient reason"" for initiating such proceedings against him. It
was not justified in taking that view on the ground that such an act of delinquency has not been specified in the Rules as an act of misconduct. Not
obeying a legitimate order of his superior by a member of the Police Force has to be regarded as an act of indiscipline and would certainly provide
a good and sufficient reason for initiating a disciplinary proceeding.
(emphasis supplied)
The Labour Court did not go into the aspect that the workman''s conduct of disobeying the direction of the employer to go before the Medical
Board as also in remaining absent during that period. It is also found that the workman has been employed since 7.9.1989 and had put in about 15
years of service.
In the light of the above, this Court is of the opinion that the order directing reinstatement cannot be proper and the workman should have been
given compensation in lieu of his reinstatement. The workman never reported for work and has also not done work during the relevant period.
Considering the fact that he has put in 15 years of service and he had got another 8 years of service, this Court is inclined to order compensation in
lieu of reinstatement of alt claims. Pursuant to the order of this Court in M.P. No. 4 of 2012 dated 17.10.2012, the second respondent has been
receiving last drawn wages in terms of Section 17B. At the time of termination, the workman was drawing Rs. 7,959/-. Under the said
circumstances, it will be just and proper that the workman is paid a compensation of Rs. 6,00,000/- (Rupees Six Lakhs only) in lieu of
reinstatement in respect of all his claims. The writ petition stands partly allowed and the impugned Award of the Labour Court in Complaint No. 1
of 2007 dated 3.2.2012 is modified into one of payment of compensation of Rs. 6,00,000/- in lieu of reinstatement in respect of all his claims. In
view of the above, the workman is at liberty to withdraw the amount of Rs. 2,71,588/- lying in deposit with the first respondent Labour Court.
Further, the Management is directed to pay the balance amount within a period of eight weeks which will be in full and final settlement of all claims
of the workman. No costs. Consequently, connected miscellaneous petitions are closed.