AI Structured Summary
Not yet generated for this judgment
Judgment
D. Murugesan, J.—This order governs all the above writ appeals. The writ appeals are at the instance of the Commandant, Ordnance
Depot, Avadi, Chennai and Union of India, represented by its Secretary, Ministry of Defence, New Delhi. The second respondent the respective
writ appeals were engaged for various categories of posts such as conservancy Barber, Dhobi, Cook and Sweeper for a particular period
between 20.10.1987 and 08.05.1989, except the second respondent in W.P. No. 8131 of 1997, who was engaged between the period
20.10.1987 and 14.02.1989. The workmen were engaged when the Indian Peace Keeping Force (IPKF) was formed and sent to Sri Lanka on a
specific mission and stationed temporarily there.
After dismantle of the Mission, the workmen were not given employment, which resulted in a dispute being raised and ultimately the Government
referred the same for adjudication on the following reference in each of the dispute:
Whether the action of the Management of Ordnance Depot, Avadi in terminating the services of their workman is justified? If not, what relief the
workman in each of the dispute is entitled to?
The second respondent in each of the writ appeal filed the claim statements and the appellants filed their counter statements before the Industrial
Tribunal at Madras. By common Award dated 20.09.1996, the Industrial Tribunal, found that the orders of termination of services of all the eight
workmen concerned were invalid and consequently held that they are deemed to be in continuous service and had ultimately ordered for
reinstatement of the workmen with continuity of service with full back wages. The writ petitions came to be filed questioning the common Award of
the Industrial Tribunal in respect of each of the workman and by common order dated 27.01.2005, the learned single Judge of this Court had
dismissed all the writ petitions. Questioning the above said common Order confirming the Award of the Industrial Tribunal, the present writ appeals
are filed.
The learned Counsel appearing for the appellants would contend that the Ordnance Depot is not an ""industry"" as defined under the Industrial
Disputes Act, 1947 and therefore, the second respondent in each of the writ appeal cannot be considered to be the workmen of an Industry
entitling themselves to raise the disputes questioning their termination.
We have also heard the learned Counsel appearing for the second respondent in each of the writ appeal.
We have carefully considered the claim petitions, counter statements filed before the Industrial Tribunal, award passed by the Tribunal, affidavit
filed in support of the writ petitions under appeal and the counter affidavits filed therein and also the impugned order.
On a reference, claim petitions were filed by the individual workmen. In the claim petitions, they have specifically stated that the appellant-
Ordnance Depot is an ""Industry"" and the second respondent in each of the writ appeal are workmen, as defined u/s 2(s) of the Industrial Disputes
Act, 1947. They also claimed that they worked for a period of more than 240 days continuously in 12 calendar months without any break, in terms
of Section 25B of the Industrial Disputes Act and therefore, they are entitled to permanency. The workmen also claimed that they have not either
been issued with any notice or paid any retrenchment compensation and there was violation of Section 25(F) of the Industrial Disputes Act. They
also claimed before the orders of termination were made, no permission was obtained as contemplated u/s 25(N) of the Industrial Disputes Act.
The said claim was disputed by the appellant/Ordnance Depot on facts by stating that none of the workmen had put in 240 days of service
continuously in 12 calendar months and as they were being employed on casual basis, they cannot put forth the non compliance of the provisions of
either Section 25(F) or 25(N) of the Industrial Disputes Act, 1947. Except the above defence, the appellant/Ordnance Depot, had not taken any
other defence contending that the Ordnance Depot is not an ""Industry"" and therefore, the same is not governed by the provisions of the Industrial
Disputes Act. The Industrial Tribunal proceeded on the basis of the documents and had factually held that the individual workmen had put in more
than 240 days of service continuously for 12 calendar months and they are workmen of the Ordnance Depot. Therefore, the Tribunal held that the
termination of the workmen is illegal and it had particularly found the non compliance of Section 25(F) of the Act and consequently. directed
reinstatement of the workman with back wages.
Though, this common award was again questioned by the appellant/Ordnance Depot, it had not raised the question in the writ petition that it is
not an ""Industry"" as defined under the Industrial Disputes Act and therefore, the provisions of the Industrial Disputes Act are not applicable to the
appellant/Ordnance Depot. Therefore, the learned single Judge had not gone into the said question while confirming the award of the Industrial
Tribunal and proceeded solely on the basis of appreciation of the evidence made by the Industrial Tribunal as to the claim of the individual
workmen.
The exercise of power in the writ appeal over the award of the Tribunal is very limited. This Court does not sit as an appellate Court for the
purpose of re-appreciating the evidence. As far as the merits are concerned, the award has been passed accepting the claims of the individual
workmen, as they were in service for more than 240 days continuously for 12 calendar months without there being any break. This being the
factual findings, very rightly, the learned single Judge had also not interfered with such factual findings. When there was no issue put before the
Industrial Tribunal as to whether the Ordnance Depot was an ""Industry"" or not, the Industrial Tribunal had no occasion to go into the said question,
and it was called upon only to decide as to the entitlement of the permanency by reinstatement and back wages, solely on the basis of the merits of
the claim and objection made on such claim. In the above circumstances, we are not inclined to go into the rival contentions on merit as to whether
the workmen had worked for a period of more than 240 days for 12 calendar months and the said factual finding cannot be interfered with in these
writ appeals.
The scope and jurisdiction of this Court to interfere with the award of the Tribunal is very limited. Such a power can be exercised only in the
event, the finding of the Tribunal is so perverse, unsupported by any material and without any evidence and also in case where the tribunal had
gone beyond the reference. As a necessary corollary, this Court cannot go into a new point, which was not raised before the Industrial Tribunal
and was not the subject matter of adjudication. Further, we may also refer to the fact that when it was not the subject matter of reference before
the Industrial Tribunal for adjudication, permitting the appellant to raise a new ground at the appellate stage, in our considered view, is
impermissible. That apart, the Industrial Tribunal has observed that there is no dispute as to the applicability of the provisions of the Industrial
Disputes Act in respect of the issue in question.
In view of the above, we are not inclined to entertain the submission as to the non applicability of the provisions of the Industrial Disputes Act
to the appellant/Ordnance Depot. As the appeals question the impugned Award and the consequential order of the learned single Judge on the
above ground and we have rejected such contention, we do not find any infirmity either in the award or in the order of the learned single Judge and
consequently all the writ appeals fail. However, as far as the question in regard to the payment of back wages is concerned, on consideration of the
peculiar facts and circumstances of the present case that during the period when the special Mission of the armed force viz., Indian Peace Keeping
Force was formed and the workmen in question were employed for a limited period and thereafter they were not provided any employment and
also the fact that the appellant being the Ordnance Depot, we are of the considered view that the adjudication as to the payment of entire back
wages must be reconsidered. In fact, the learned Counsel appearing for each of the workman would fairly submit that the workmen will not claim
any back wages till the writ petitions were disposed on 27.01.2005 by common order. In view of the above said submissions, we modify the order
as to the back wages limiting its period for the entitlement of the workmen only from 27.01.2005 to be calculated on the basis of their last drawn
wages. We are also informed that while the writ petitions were pending, the workmen were paid wages under 17(B) of the Industrial Disputes Act
and such payment cannot be disturbed by virtue of the above direction. Therefore, each of the workman is also entitled to payment of the same
wage which was paid as per Section 17(B) of the Industrial Disputes Act, pursuant to the directions of this Court, till the respective workman is
reinstated into service. It is further represented by learned Counsel appearing for the second respondent in each of the writ appeals that the second
respondent in W.A. No. 1265 of 2005 by name Mr. P. Krishnamoorthi was recently employed elsewhere and therefore, the benefit of back
wages and the consequential relief of payment under 17(B) of the Industrial Disputes Act, is not pressed. The said statement of the learned
Counsel appearing for the second respondent in each of the writ appeal is also recorded. With these observations, the writ appeals are dismissed.
No costs. Consequently, the miscellaneous petitions are closed.