AI Structured Summary
Not yet generated for this judgment
Judgment
P. Jyothimani, J.—This writ petition is filed for a direction against the first respondent to initiate action against the respondents 2 to 4 by the
violation of agreement dated 09.07.1971, 23.12.1976 and Clause 6 of 12.02.1987.
The case of the petitioner is that he is the Secretary to the petitioner union, which is a registered trade union under the Trade Union Act.
According to the petitioner, there are 15,000 Male and Female laborers working in Madura Coats (P) Ltd. The said company has retrenched
laborers by giving compensation under V.R.S. scheme. At present, there are only 350 laborers in service and they are appointed on daily wages of
Rs. 50/- per day. There have been some cases filed against the company for not paying special salary, etc. Since the petitioner has moved this
Court, the company developed grudge against the petitioner Union.
On 09.07.1971 a settlement was entered between the Management and the petitioner Union u/s 12(3) of the Industrial Disputes Act, in which,
the Management has agreed to provide employment for the legal heirs of the employees who have retired in two years period and also those who
are retired from the said date. A further agreement was entered on 23.12.1976 in which, it was agreed that the legal heirs of the retired employees
and presently working employees, Assistants and Attenders will be selected as learners based on the usual method of selection. It was also agreed
that the voluntary retirement scheme will be activated and the vacancies arising out of such motivation can be filled up by every employees
nominating his legal heirs. It is also stated in the said agreement that in certain circumstances, if the employer seeks to appoint outsiders, the same
will not be affected.
According to the petitioner, in spite of these two agreements, the Madura Coats has not given jobs to the legal heirs and the petitioner has
quoted in the affidavit in support of the petition nearly four cases wherein, the respondents 2 to 4 have acted the violation of the said agreement
dated 09.07.1971 and 23.12.1976.
According to the petitioner, after initiation of some writ proceedings in this Court, there was a subsequent agreement entered u/s 12(3) of the
Industrial Disputes Act, on 12.02.1987. As per the said agreement, it was agreed to transfer 220 persons working in Madurai mill as learner
workers to Ambhasamuthiram. As per the said agreement, especially, Clause 6 of the said agreement, it was agreed that in respect of those
persons who were transferred to Ambhasamuthiram their right of stipend, increase in salary or right of permanency would not be affected. It is also
stated in the said clause that in future, if there is extension or development of the activities in mill, which requires appointment of permanent workers
in large number, it will be considered that those persons who are transferred to Ambhasamuthiram will be taken back at Madurai on priority basis.
In spite of the said agreement, 382 laborers were permanently appointed in Madurai and therefore, according to the petitioner, the said conduct
is in violation of Section 29 of the Industrial Disputes Act. The petitioner Union has also complained to the Labour Commissioner about the said
violation, especially, in respect of the illegal appointment made on 07.05.1990. There was an enquiry conducted by the Joint Commissioner of
Labour (Conciliation) on 29.06.1990 and the Madura Coats has not chosen to give reply to the Joint Labour Commissioner about the illegal
appointments made, which are in violation of Clause 6 of the agreement dated 12.02.1987 and also the previous agreement dated 23.12.1976 and
in spite of that neither the Joint Labour Commissioner (Conciliation) nor the Government has taken any action for the past 15 years.
According to the petitioner, in spite of the direction given by this Court in W.P. No. 10506 of 1992, the first respondent has not taken any
action. The petitioner Union has sent many representations on various dates and in spite of the same, the first respondent did not consider the
same. According to the petitioner, the Management has not given job for the legal heirs of 77 laborers, who worked for more than 40 years as per
the said agreement dated 09.07.1971 and 23.12.1976, besides 55 laborers belong to Ambhasamuthiram who were appointed latter. According to
the petitioner, the Madura Coats require large number of workers and in spite of the agreement they have acted in violation. It is in these
circumstances, the present writ petition is filed by the petitioner Union for a direction as stated above.
I have heard the petitioner who has appeared party in person and also Mr. Rajasekar, the learned Government Advocate appearing for the first
respondent and Mr. V. Karthik, the learned Counsel appearing for the respondents 2 to 4.
According to Mr. Karthik, learned Counsel appearing for the respondents 2 to 4, the earlier settlement dated 09.07.1971 and 23.12.1976
entered as per Section 12(3) of the Industrial Disputes Act, were modified in a subsequent agreement dated 24.04.1978. According to the learned
Counsel for the respondents 2 to 4, even though the petitioner Union was not a party in the said agreement dated 24.04.1978, majority of the
Unions have signed the agreement entered u/s 18(1) of the Industrial Disputes Act. It was by the said agreement dated 24.04.1978 and taking into
consideration that the mill activity was not going on well, the terms of the earlier agreement dated 09.07.1971 and 23.12.1976 were modified. As
per the said modified agreement, especially, in Clause 3, since the management was unable to give training within 18 months to the learners and to
avoid payment of damages to the internal and foreign markets, it was felt that transfer of employees from one department to another department
has become necessary and in such circumstances, it is required to have the training to learners to be increased to 36 months and accordingly, it
was accepted to increase the period of 36 months to the learners.
That apart, in Clause 4 of the said modified agreement dated 24.04.1978, there has been some changes regarding the payment of scale of pay
and also the increase of pay, except the said two clauses, all other clauses in the settlement dated 09.07.1971 and 23.12.1976 were directed to be
retained.
It is also the submission of the learned Counsel for the respondents 2 to 4 that in the subsequent agreement dated 12.02.1987 entered u/s
12(3) of the Industrial Disputes Act, in which the petitioner Union is a party. It was agreed apart from Clause 6, in Clause 9 that in the event of
non-implementing the Clause, the conciliation proceeding before the Labour Commissioner shall be initiated for settlement of dispute.
The learned Counsel would further submit that pursuant to the subsequent settlement dated 07.05.1990 entered between the representatives of
the Management and the representatives of the Unions, wherein, it was agreed that adhoc apprentices working in the mills will be regularized in
phased manner and almost all of them will be made permanent. According to the learned Counsel, it was pursuant to the said agreement 250
employees who were transferred to Ambhasamudram, were retransferred to Madurai. Therefore, according to the learned Counsel, inasmuch as,
some of the portions of the agreement dated 09.07.1971 and 23.12.1976 has been replaced by the subsequent settlement entered on 24.04.1978.
That apart, it is his contention that the contents of the agreement dated 23.12.1976 has been followed, as it was explained in detail by the
representatives of the respondents 2 to 4 in the additional counter affidavit filed in W.P. No. 10506 of 1992 dated 06.10.1992 and it was
thereafter, this Court has given a direction against the first respondent to pass orders while disposing of the writ petition on 22.03.2000.
The learned Counsel has also taken me to the order of the Government dated 20.09.2000 in which, the Government has rejected the
complaint of the petitioner passed based on the direction of this Court in W.P. No. 10508 of 1992 dated 22.03.2000 stating that there was no
violation of Clause 6 of the agreement dated 24.04.1978. The learned Counsel also would further submit that after the Government passed order
on 20.09.2000 rejecting the representations of the petitioner, the petitioner has raised a dispute by making a complaint to the respondents 2 to 4
on 21.12.1998, to which the respondents have replied on 27.01.1999 stating that they have not violated the settlement entered on 23.12.1976. It
was in those circumstances, the Government by G.O.D. No. 974 dated 03.08.2004 has referred the dispute to the Labour Court u/s 10 of the
Industrial Disputes Act, to decide the issue about the providing of the employment to the legal heirs of 77 employees in Madura Coats as per the
agreement dated 23.12.1976 and in the event of non-providing the employment to decide about the compensation and therefore, according to the
learned Counsel for the respondents 2 to 4, the matter has been referred to the Labour Court and the same is pending in I.D. No. 128 of 2004.
Therefore, according to the respondents 2 to 4 the issue as to whether, there is a violation of the terms of agreement, is pending before the Labour
Court and till the issue is decided, there was no question of prosecution.
It is also the case of the learned Counsel for the respondents 2 to 4 that the petitioner Union is a minority union and the majority unions have
not sought for any prosecution. He would also contend that as per Section 29 of the Industrial Disputes Act, when the matter is pending before the
Labour Court for adjudication, there was no question of prosecution.
The learned Counsel for the respondents 2 to 4 would also submit that even though the reference by the Government to the Labour Court
dated 03.08.2004 was challenged by the Management before this Court, this Court in W.P. No. 26639 of 2004 in the order dated 03.04.2006
has dismissed the writ petition and even the appeal filed against the said order in writ appeal 607 of 2006 was dismissed as withdrawn by the
order dated 18.07.2006 with permission to raise all the issues before the Labour Court. In view of the said facts, the learned Counsel would
submit that the matter is pending before the Labour Court and therefore, there was no question of prosecution at this state.
I have heard the petitioner who has appeared party in person and also the learned Counsel for the respondent 1 and the respondents 2 to 4
and perused the entire records.
Almost all the facts, which have been narrated above are admitted, and these facts are held out in the typed set filed by the petitioner as party
in person. It is true that there was an agreement entered on 09.07.1971 and 23.12.1976 between the employees and the Management, in which
the petitioner''s Union was a party. The agreement also contains the clause for providing employment to the employees as learners, to the legal
heirs of the employees both working as also worked for the past 2 years. It is also clear that in a subsequent agreement entered on 12.02.1987 in
which the petitioner Union is a party apart from the management. It is in that agreement dated 12.02.1987 it was agreed that in future, if the
activities of the mill is developed there will be retransfer of employees who were transferred from Ambhasamudram to Madurai Coats on
preferential basis. The said agreement also contains a clause stating that in the event of a dispute, the same shall be referred to the Labour
Commissioner for conciliation.
The grievance of the petitioner Union is that in spite of the said specific clause, the management has appointed some employees in Madurai
without retransferring the persons from Ambhasamudram and therefore, it is in violation of Clause 6 of the agreement dated 12.02.1987. It is also
admitted that earlier the petitioner has filed the writ petition in W.P. No. 10506 of 1992 for the same relief of initiating action against the
respondents for violation of 12(3) settlement and this Court considering the facts that representations are pending before the first respondent, has
issued a direction to the first respondent to pass orders. It is pursuant to the said direction issued by this Court, the first respondent has passed an
order on 20.09.2000 concluding that there was no violation of Clause 6 of the agreement dated 12.02.1987 and that was a considered order
passed by the first respondent. It is not the case of the petitioner that he has challenged the said order of the Government dated 20.09.2000. It is
seen that there was a further agreement entered as per Section 18(1) of the Industrial Disputes Act, on 17.01.1991 between some of the unions
and also the Management relating to the agreement dated 12.02.1987. In respect of 250 worker''s transfer from Madurai to Ambhasamudram, it
was as per the said agreement agreed that without affecting the working of the mill, 100 persons out of the persons working in Ambhasamudram
will be transferred to Madurai before 31.05.1991 and stated that there will not be further dispute on the said issue. However, the petitioner union
has made a complaint to the respondents 2 to 4 on 21.12.1998 about some illegal appointment made which is violation of the agreement dated
23.12.1976. Even though it was objected to by the respondents 2 to 4, the facts remains that the Government has referred the dispute to the
Labour Court u/s 10 of the Industrial Disputes Act, as per the G.O. 974 dated 03.08.2004. It is relevant to point out at this stage that the
reference of the dispute to the Labour Court by the Government is at the instance of the petitioner Union and the issue involved is about the
violation of Clause 6 of the 12(3) settlement dated 12.02.1987.
It is further relevant to point out that in spite of the fact that the Government has already passed an order on 20.09.2000 stating that there was
no violation of Clause 6 of the settlement dated 12.02.1987, the Government has chosen to refer the dispute to the Labour Court to decide the
issue as per the terms of the agreement dated 23.12.1976 regarding the providing of the employment to the legal heirs of the employees and in
alternative payment of compensation to them. Even though, it is true that the petitioner union was not a party in the modified agreement stated to
have been entered on 24.04.1978, inasmuch as the issue raised before the Labour Court as it has been referred by the Government is relating to
the agreement dated 23.12.1976, it is still open to the petitioner union to establish their case and for the redressal of the grievance of the members
of the petitioner union who are the employees of the Madura Coats. It is always open to the petitioner to proceed against the respondents 2 to 4
as per provisions of Industrial Disputes Act, for prosecution after the finding given by the Labour Court.
In view of the factual position that admittedly, the dispute is pending before the Labour Court, I am of the considered view that initiation of
criminal prosecution for violating of the agreement dated 09.07.1971 and 23.12.1976 and Clause 6 of the agreement dated 12.02.1987 against
the respondents 2 to 4 at this stage does not arise. Therefore, in these circumstances, giving liberty to the petitioner to raise his grievance regarding
the prosecution of the respondents 2 to 4 for any violation of the said agreement dated 09.07.1971, 23.12.1976 and Clause 6 of the agreement
dated 12.02.1987, after disposal of the case pending before the Labour Court in I.D. No. 128 of 2004, the present writ petition is disposed with a
direction to the Labour Court, Madurai to dispose of I.D. No. 128 of 2004 within a period of four months from the date of receipt of the copy of
this order and with liberty to the petitioner union to work out its remedy against the respondents 2 to 4 in accordance with the provisions of the
Industrial Disputes Act, thereafter and subject to the finding of the Labour Court.
The writ petition is disposed of accordingly. No Costs. Consequently, connected W.P.M.P. is closed.