Judgment :- 1. The writ petition is filed to quash the Award of the first respondent Tribunal dated 13.9.2004 passed in I.D.No.23 of 2001. 2. The brief facts which are relevant for consideration herein are as follows: The petitioner Federation procures milk from District Producers Unions and supplies milk to the consumers of Chennai City. The petitioner has dairy at Madhavaram and Ambattur and Madaravam dairy is the central diary. There was an one day strike on 19.11.1980 by over 1000 employees of the Federation which compelled the management to deny employment to them and non-employment of 1070 workers was referred for adjudication before the first respondent Tribunal in I.D.No.31 of 1985 relating to 901 employees and I.D.No.70 of 1986 relating to 169 employees. The first respondent has passed a common award in both Industrial Disputes on 17.2.1997 thereby directing reinstatement of 901 employees together with 25% of backwages and the list of 1070 (901 + 169) employees is appended to the award one among 169 employees covered in I.D.No.70 of 1986 referred in Sl.No.142 is one Rajasekaran without initial. Pursuant to the award, the management reinstated one A.Rajasekaran pursuant to Section 18(1) settlement. The re-employment of the said A.Rajasekaran leads to second reference and second round of litigation in I.D.No.23 of 2001 at the instance of the second respondent Tamil Nadu Palvala Niruvana Oozhiyar Sangam as to whether Rajasekaran having sl.No.142 in the list covered under the award dated 17.2.1997 in I.D.No.70 of 1986 is P.Rajasekaran or A.Rajasekaran and the award passed in I.D.No.23 of 2001 to the effect that the worker covered in the earlier award is P.Rajasekaran and not A.Rajasekaran who is reinstated by the petitioner management, is now under challenge herein 3. While according to the second respondent Sangam, Rajasekaran covered under the award in I.D.No.70 of 1986 is one P.Rajasekaran, according to the petitioner management, P.Rajasekaran was no longer in service and was terminated much before the date of illegal strike and the employees participated in the strike were attached to central dairy, Madharvam, one among whom is A.Rajasekaran and the re-employment of A.Rajasekaran is in compliance with the award. Both the parties to the Industrial Dispute have adduced oral and documentary evidence before the first respondent Tribunal. Both the parties to the Industrial Dispute have adduced oral and documentary evidence before the first respondent Tribunal. While on the side of the workmen Sangam who is the second respondent herein, P.Rajasekaran and another employee in the Superintendent Cadre were examined as WW1 and WW2 and 8 documents were marked as Exs.W1 to W8, on the side of the Management, A.Rajasekaran and one P.Dharmaraj were examined as MW1 and MW2 and 18 documents were marked as Exs.M1 to M18. The first respondent Tribunal has on the basis of the available records arrived at a conclusion that the burden is upon the management to prove the termination of P.Rajasekaran in the month of September 1980 and non-production of termination order or any other document relating to the management and the documents produced on the side of the management are not sufficient and adequate enough to prove that A.Rajasekaran was in service prior to strike and as A.Rajasekaran is admittedly not the member of the second respondent union, the name Rajasekaran mentioned in the award refers to only P.Rajasekaran and it is P.Rajasekaran who ought to have been deemed to be in service on 19.11.1980 and the Tribunal has accordingly passed the award. Aggrieved against the same, the Management has come forward with the present writ petition for the relief as stated supra. 4. The learned senior counsel for the petitioner has seriously contended that the labour court ought to have cast the burden upon the Sangam to prove the employment of Rajasekaran in the petitioner management on the date of strike and his participation in the strike and the labour court has erroneously shifted the burden on the management and has without considering the documents produced on the side of the management to prove the termination of P.Rajasekaran in the month of September 1980 and to prove the employment of A.Rajeskaran has arrived at perverse finding that the name Rajasekaran referred to in the earlier award is P.Rajasekaran and not A.Rajesekaran. It is strenuously argued by the learned senior counsel for the petitioner that failure to consider the documents produced on the side of the petitioner to prove the termination of P.Rajasekaran in September 1980 amounts to total non application of mind on the part of the first respondent and the initial burden to prove the employment of P.Rajasekaran on the date of strike is upon the Sangam and not upon the management and only after the sangam discharges its initial burden, the same shifts to the management to prove the termination and the erroneous approach of the first respondent on the issue in hand resulted in such finding which is legally and factually unsustainable. 5. Per contra, the learned counsel for the second respondent Sangam would attempt to justify the finding rendered by the labour court mainly on the ground that P.Rajasekaran and not A.Rajasekaran is the member of petitioner union which espoused the cause of workmen in the earlier adjudication. 6. I have considered the submissions made on both sides and perused the materials available on record. 7. The fact that one Rajasekaran is one of the workers participated in the strike on 19.11.1980 resulted in his non-employment and is covered in the reference in I.D No.70 of 1986 culminating in award for reinstatement along with others with 25% of back wages. 8. As already referred to the dispute regarding identity of one Rajasekaran due to the failure to mention the initial of the employee in the earlier proceedings has led to the second round of litigation. While according to the Management, Sl.No.142 is referred to A.Rajasekaran, according to the union, the same is referred to P.Rajasekaran. 9. The evidence Ex.W1 dated 25.4.1980/Appointment order issued to P.Rajasekaran; Ex.M1 dated 25.3.1980/Appointment order issued to P.Rajasekaran and Ex.M2 dated 2.5.1980/posting order issued to P.Rajasekaran; Ex.M7 dated 4-12-1978/appointment order issued by the management to A.Rajasekaran; Ex.M10 dated Nil-10-1980/wage register pertaining to A.Rajasekaran would go to show that both P.Rajasekaran and A.Rajasekaran were employees in the petitioner Federation during 1978 and 1980 respectively. As a matter of fact, the first respondent Tribunal has in para 14 at page 9 of its award, clearly stated that both Rajasekaran were in the employment of the management before the crucial date i.e. 19.11.1980 and during May 1980, both A.Rajasekaran and P.Rajasekaran have been posted as Junior Mazdoor to Central dairy, Madhavaram and Control Room, Madhavaram, respectively and their employment in central dairy and control room at Madhavaram respectively is also evidenced from Exs.M10 and M11 -wage registers for the months of October and November 1980 respectively pertaining to A.Rajasekaran and Exs.M-13 to M18-wage registers for the months of May, June, July, August and September 1980 respectively pertaining to P.Rajasekaran. As rightly pointed out by the learned senior counsel for the petitioner, in the event of the petitioner management being able to convincingly prove that Exs.M10, M-11 and M13 to M18 do relate to A.Rajasekaran and P.Rajasekaran respectively, the same will clinch the issue regarding the identity of Rajasekaran in sl.no.142 in the earlier industrial dispute. The documents referred to above i.e. Exs.M-10 and M-11 pertaining to A.Rajasekaran and Exs.M-13 to M18 pertaining to P.Rajasekaran are enclosed at pages 7, 8 and 1 to 6 of the additional typed set of papers. The perusal of Exs.M-10 and M-11 reveals that they are the wage registers for the months of October and November 1980 having the name of A.Rajasekaran as one of the employees in the central diary and his name was shown as sl.no.47. The perusal of other wage registers relating to Junior Mazdoors during May to October 1980 would reveal that P.Rajasekaran was in employment in marketing union at Madhavaram upto August 1980 and Ambattur Control Room during September 1980. Out of the six documents, viz., Exs. M-13 to M-18, the name of Rajasekaran is mentioned with initial P.Rajasekaran in the wage registers for the months of May, June, July and August 1980, whereas, the wage register for the month of September 1980, the name of Rajasekaran is mentioned without initial. In the wage registers for the months of September and October 1980, it is written as against the name of Rajasekaran as follows: "terminated from 12.9.1980 vide No.14742/M1/80 dated 9.9.80 of MM". In the wage registers for the months of September and October 1980, it is written as against the name of Rajasekaran as follows: "terminated from 12.9.1980 vide No.14742/M1/80 dated 9.9.80 of MM". Though the wage register for the months of September and October refers to the name of the employee as Rajasekaran without initial, the same is as rightly pointed out by the learned senior counsel for the petitioner can be easily presumed to be P.Rajasekaran for the following reasons. 10. The particulars contained in the earlier wage register for the month of May, 1980 would show that few workers employed along with P.Rajasekaran are G.K.Raju, P.M.Velu, M.Krishnamurthy, M.Vincent Raj and R.Ramamurthy and the name of P.M.Velu is shown above the name of P.Rajasekaran. The same name P.M.Velu and one more name S.Arunachalam are also shown in the wage register relating to the months of September and October 1980. The said P.Rajasekaran has also in the course of his cross examination as WW1 admitted that he was lastly employed in Ambattur Control Room as Junior Mazdoor. Such admission made on the side of P.Rajasekaran if viewed in the light of the documents referred to above would only lead to an inference that the employee mentioned as P.Rajasekaran in the documents Exs.M.13 to M-16 and Rajasekaran referred to in the documents Exs.M-18 and M19 as terminated are one and the same employee i.e. P.Rajasekaran. 11. Further, the lower court has also in the commencement of its discussion clearly stated that P.Rajasekaran and A.Rajasekaran were during the relevant period in 1980, employed in Ambattur Control room and central dairy, Madhavaram, the entry about the order of termination mentioned in Ex.M17 should have been only referred to P.Rajasekaran. The first respondent Tribunal ought to have considered the issue on the basis of the available records by appreciating the inability expressed by the Management to produce the order of termination which is of the year 1980 after nearly two decades in the course of enquiry in reference I.D.No.23 of 2001. The first respondent Tribunal ought to have considered the issue on the basis of the available records by appreciating the inability expressed by the Management to produce the order of termination which is of the year 1980 after nearly two decades in the course of enquiry in reference I.D.No.23 of 2001. As a matter of fact, the management wanted to reopen the evidence of one of the management witnesses to explain the reason for their failure to produce the document and filed appropriate application for the same, but the same was rejected by the first respondent by its order dated 5.7.2004 and the first respondent has even at that stage almost arrived at a conclusion that no such termination order of P.Rajasekaran is available with the management. The first respondent ought to have considering the length of time appreciated the issue in hand in the light of the documents available without insisting the management to produce the order of termination. But the first respondent has without properly analysing the available records on the side of the management in support of the contention about non-employment of P.Rajasekaran and employment of A.Rajasekaran during October 1980 erroneously held this aspect against the management mainly on the ground of failure to produce of termination order by the management and such finding is an outcome of total non-application of mind. 12. 12. It is noteworthy to mention at this juncture that in pursuance of the earlier award dated 17.2.1997 one screening committee was constituted by the management and the management has also issued general notice calling upon the employees who were all in employment on the date of strike and who participated in the strike to produce proof of employment and participation in the strike on 19.11.1980 and A.Rajasekaran responded to the same and appeared before the screening committee and the screening committee after satisfying with the claim of A.Rajasekaran approved him as Rajasekaran mentioned without initial in sl.no.142 and recommended him for reemployment and the same was followed by original and revised section 18(1) settlement dated 14.12.1998 along with Form-A marked as Ex.M9 and the form A submitted by A.Rajasekaran appearing before the screening committee, was also countersigned by one S.Anandan, Milk Marketing Officer who identified him as A.Rajasekaran who participated in the strike and the copy of the revised Section 18(1) settlement is enclosed at page 46 and 42 to 45 of the typed set of papers. However, the management has only by referring to the date of revised settlement and without considering the contents of the document, which refers to the original earlier section 18 (1) settlement arrived at a conclusion that Section 18 (1) settlement dated 14.12.1998 arises a doubt about the veracity and genuineness of the fresh appointment order dated 1.8.1997 issued in favour of A.Rajasekaran. 13. The first respondent has also failed to see that P.Rajasekaran has raised the issue of non-employment only two years after the date of award and two years after the date of re-employment of A.Rajasekaran and the statement of P.Rajasekaran and the General Secretary during the course of their cross examination is that they are not aware of the constitution of screening committee and the re-employment of employees by the screening committee appears to be quite unconvincing. Had it been P.Rajasekaran who is one of the beneficiaries of the award neither the employee nor the union to which he is attached to as one of the members would have been unaware of re-employment process for more than two years. The other ground which tilted the decision of the labour court in favour of P.Rajasekaran is the statement made during the cross examination of A.Rajasekaran as if he is not the member of the petitioner union. The other ground which tilted the decision of the labour court in favour of P.Rajasekaran is the statement made during the cross examination of A.Rajasekaran as if he is not the member of the petitioner union. The reading of his statement would only reveal that he has clearly admitted in the beginning of his cross examination that he is the member of the union and what is denied by him is that he is not the member of the union under the leadership of one Kuselan. Even otherwise, it is nobodys case that all 1070 workers covered under both the Industrial Disputes are members of the petitioner union. It is to be seen that the reference is only with regard to denial of employment to the workers pursuant to their participation in one day strike. While, the labour court has on one hand accepted that both Rajasekarans were in the employment of petitioner federation during 1980 it has on the other hand, held that there is no proof to show that A.Rajasekaran was in employment prior to strike. Such finding would show that the first respondent labour court has adopted totally erroneous approach to the issue on hand by not calling upon P.Rajasekaran to prove his employment on the date of strike and to explain his inordinate delay in approaching the management for re-employment and in casting the burden on the management to prove both non-employment and employment of P.Rajasekaran and A.Rajasekaran respectively without considering the documents produced on the side of the management. The approach so adopted is, as rightly argued by the learned senior counsel for the petitioner, without application of mind and the outcome of such approach is perverse resulting in an erroneous finding which is rightly challenged herein by the management. 14. In my considered view, the labour court has gone into the issue which is beyond its scope. The employment of A.Rajasekaran during November 1980 is as rightly argued by the learned senior counsel for the petitioner, not disputed. 14. In my considered view, the labour court has gone into the issue which is beyond its scope. The employment of A.Rajasekaran during November 1980 is as rightly argued by the learned senior counsel for the petitioner, not disputed. What is seriously disputed herein is the non-employment of P.Rajasekaran on the date of strike and it is not equally in dispute that the workers of central dairy participated in one day strike and as A.Rajasekaran was on the date of strike, one of the workers of central diary his participation in the strike can be easily presumed and as per the award, Rajasekaran who participated in the strike is directed to be reinstated. If that is so, reinstatement of A.Rajasekaran in the same manner as that of the other employees will amount to due compliance of the earlier award and the question of any dispute regarding identity does not at all arise herein. Viewing from any angle, the finding rendered by the first respondent that the employee covered under the earlier award is P.Rajasekaran and not A.Rajasekaran cannot stand the test of reasons and deserves interference. 15. In the result, the award passed by the first respondent Tribunal dated 13.9.2004 in I.D.No.23 of 2001 is set aside and the writ petition is allowed as prayed for. The Petitioner Management is permitted to withdraw a sum of Rs.8,575/- lying to the credit of I.D.No.70 of 1986 on the file of the Industrial Tribunal, City Civil Court, Chennai which was deposited by them on 12.9.2007 in compliance of the conditional order passed by this Court in WP.M.P.No.63 of 2007 dated 9.7.2007 and the workman viz., P.Rajasekaran is directed to refund Section 17(b) wages paid to him at the rate of 750/-per month from July 2007 to September 2010 paid in the month of October 2010 within three months from the date of receipt of the copy of this order. No costs.