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2012 DIGILAW 1319 (MAD)

D. C. M. Hyndai Ltd v. State of Tamil Nadu

2012-03-13

K.CHANDRU

body2012
Judgment :- 1. All the three writ petitions were filed by the same management. In the first writ petition, the petitioner challenges an order of the State Government in issuing the revenue recovery certificate in favour of one Arulanandam and 48 other workers under Section 33-C(1) of the Industrial Disputes Act, 1947. By the said certificate, the State Government had granted the certificate authorizing payment of salary for workers for the months of June and July, 2000 to 49 workers amounting to Rs.2,45,000/-. 2. The writ petition was admitted on 13.4.2005. Pending the writ petition, this court had granted an interim stay on the ground that the dispute raised by the workmen is pending in I.D.No.44 of 2003 before the Industrial Tribunal for identical relief. Thereafter, when the matter came up on 20.7.2007, this court made the stay absolute on the condition that the petitioner management should deposit Rs.1,25,000/-to the credit of the writ petition on the file of this court. Since in that writ petition, neither the individual workers nor any representative body has been impleaded though they were the beneficiaries of the Government Order, DCM Hyundai Thozhilalar Nala Sangam represented by its Secretary got itself impleaded by filing W.P.M.P.No.748 of 2007, which was also ordered by this court on 20.7.2007. 3. Even before the revenue recovery certificate was issued, the workmen raised an industrial dispute regarding declaration of illegal layoff for 50 workers from 16.8.2000 and they were denied employment. They were demanding full wages for the said period. The State Government by G.O.(D)No.847, Labour and Employment Department, dated 26.8.2003 referred the dispute for adjudication by the Industrial Tribunal, Chennai. The said dispute was registered as I.D.No.44 of 2003 by the Industrial Tribunal. Notice was issued to the management and workmen. 4. The workmen filed a claim statement dated 28.2.2004. The main contention of the workmen was that the petitioner industry is covered by Chapter V-B of the I.D. Act. Since an application seeking for prior permission for layoff was rejected by the State Government, they were entitled for wages for the said period in terms of Section 25M(8) of the I.D. Act. The Joint Commissioner of Labour, Chennai-6 by his order dated 1.10.1999 had refused to grant permission to layoff the workers declared from 9.8.1999 numbering about 172. Since an application seeking for prior permission for layoff was rejected by the State Government, they were entitled for wages for the said period in terms of Section 25M(8) of the I.D. Act. The Joint Commissioner of Labour, Chennai-6 by his order dated 1.10.1999 had refused to grant permission to layoff the workers declared from 9.8.1999 numbering about 172. The officer found that the management's ground that due to lack of sale orders and its poor financial condition cannot be a ground for declaring layoff under Section 2(kkk) of the I.D. Act. Subsequent to the refusal, the management by various letters dated 11.8.2000, 22.8.2000 and 25.08.2000 called upon the workers to return to work. Most of the workers took employment elsewhere and never expressed their interest to do the job and did not turn up. The management was giving regular transport facilities to its factory right from 2002. None of the workers turned up for work. There was no victimization. There were 67 workers working peacefully in the company and that the other workers have remained absent unauthorisedly. As per the Standing Order No.12.11, if an employee remained absent without leave or permission for more than eight consecutive days, he is deemed to have been left the employment of the company. Therefore, they are not entitled for wages for June and July, 2000 on the principle of ‘no work no pay’. 5. Before the Industrial Tribunal, on behalf of the workmen, one D.Senthilkumar, the Secretary of the second respondent trade union was examined as W.W.1 and on their side, 15 documents were filed and marked as Exs.W.1 to W.15. On the side of the management, one G.Nagarajan (wrongly shown as L.Nagarajan in the impugned Award), who is the Assistant Manager, P&A, was examined as M.W.1 and on their side, 15 documents were filed and marked as Exs.M.1 to M.15. 6. The Labour court on an analysis of the materials placed before it came to the conclusion that though the management had attempted to invite the workers after lay off, but the transport facilities were withdrawn. The workers had approached the Assistant Commissioner seeking for transport facilities to reach the factory as well as to provide canteen facility. Therefore, the Tribunal held that withdrawal of transport facility led to an agitation by the workers. The workers had approached the Assistant Commissioner seeking for transport facilities to reach the factory as well as to provide canteen facility. Therefore, the Tribunal held that withdrawal of transport facility led to an agitation by the workers. On that ground, the management cannot either deny employment or presume that the workers have voluntarily abandoned themselves. In fact, under the relevant Standing Order, an absence without leave is a misconduct and the management cannot dismiss a worker for not reporting to work especially when they were denied transport facility to reach the factory. They were also not provided canteen facility. The Tribunal also referred to the cross examination of M.W.1, who had admitted that the factory was situated 7 Kms. from Thiruvallur Railway Station and 6 Kms. from Sriperumbudur. Earlier, the management used to provide transport facility for transporting the workers. But, however in the notification asking the workers to appear for work, dated 16.8.2000, they did not offer any transport facility. In the notice put up on 11.8.2000 which was marked as W.3, the workers were informed as follows: "Those workers who singed attendance register will however be paid conveyance allowance of Rs.8/- per day based on the physical attendance as per the terms of appointment. No transport facility will be provided by the company." (Emphasis added) 7. The second respondent trade union by their letter dated 14.8.2000 marked as Ex.W.5 informed them that unless the transport facility was given and canteen facility is also provided, the workers will not be able to come to work. Therefore, they had reiterated that as per the union demand, if they are provided with canteen and transport facilities, the workers are willing to come to work. Instead of reply to the said letter, the management had issued a circular W.7, dated 25.8.2000, stating that if the workers do not report for work, they will take appropriate action as per the standing order by treating their absence as unauthorised absence. The workers also stated if layoff was declared, the question of workers coming to the gate and signing an attendance register will not arise. Further their request for layoff has been refused by the competent authority. The workers were also not provided transport and canteen facilities. It was in these circumstance, the dispute was raised. 8. The workers also stated if layoff was declared, the question of workers coming to the gate and signing an attendance register will not arise. Further their request for layoff has been refused by the competent authority. The workers were also not provided transport and canteen facilities. It was in these circumstance, the dispute was raised. 8. The management's witness in his cross examination admitted that the union also made a complaint before the Assistant Commissioner of Labour who is the conciliation officer. In cross examination, M.W.1 also admitted that despite the advice given by the conciliation officer in W.8, the workers were not paid wages for June and July, 2000 and it related to only 50 workers. Therefore, in the light of these facts, the Tribunal held that the demand of the union claiming full salary for the period of denial of work to 39 workers excepting one Senthilkumar from June, 2000 till the allotment of work was justified. Further the demand of the union claiming that the layoff and denial of work from 16.8.2000 as illegal and they are entitled for full salary from 16.8.2000 till the date of allotment of work was justified. It is this award which had become the subject matter of writ petition in W.P.No.10362 of 2009. 9. In W.P.No.10363 of 2009, they also challenged the earlier order of reference in G.O. (D)No.847, Labour and Employment Department, dated 26.8.2003, by which the dispute was referred for adjudication. Both writ petitions were admitted on 12.6.2009. Pending the writ petitions, this court had granted an interim stay of the award with a condition that the petitioner management deposit two months' salary for a period from June and July, 2000 before the Industrial Tribunal, Chennai. Since the parties have not filed all documents made available before the Industrial Tribunal, the Registry was directed to summon the documents from the Tribunal and circulate it for perusal by this court. Accordingly, the original records were summoned, circulated and perused by this court. 10. Heard the arguments of Mr.Sanjay Mohan appearing for Mr.Srinath Sridevan, learned counsel appearing for the petitioner, Mr.K.V.Ananthakrushnan, learned counsel for the union and Mr.V.Subbiah, learned Special Government Pleader appearing for the State of Tamil Nadu. 11. The grounds raised in W.P.No.10363 of 2009 was that the notice issued dated 11.8.2000 was not a notice for layoff. 10. Heard the arguments of Mr.Sanjay Mohan appearing for Mr.Srinath Sridevan, learned counsel appearing for the petitioner, Mr.K.V.Ananthakrushnan, learned counsel for the union and Mr.V.Subbiah, learned Special Government Pleader appearing for the State of Tamil Nadu. 11. The grounds raised in W.P.No.10363 of 2009 was that the notice issued dated 11.8.2000 was not a notice for layoff. Therefore, the reference was made on a non existent dispute and it was without jurisdiction. They did not challenge the order of reference at the time when it was made, i.e. on 26.8.2003 and chose to file it after six years. They were advised to challenge the same when the management is aggrieved by the final award. In this context, a perusal of the counter statement filed by them before the Tribunal does not show that they have expressed any such reservation for challenging the order of reference. If the reference is incompetent, the question of waiting for the outcome does not arise. They also did not seek the Tribunal to decide the validity of the reference as a preliminary issue. On the other hand, the counter statement has been filed on the merits of the dispute also. 12. It has been held in Minimax Vs. Its Workers reported in 1968 (1) LLJ 369 that an order of reference hastily drawn or drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must be avoided. The Courts must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably. 13. A similar view was already expressed in Express Newspapers Vs. Their workers and staff reported in 1962 (2) LLJ 227 . 14. The Supreme Court vide its judgment in Delhi Cloth and General Mills Vs. Its workmen reported in AIR 1967 SC 469 had held that the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the disputes, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. 15. The Supreme Court in Indian Oil Corpn. 15. The Supreme Court in Indian Oil Corpn. Ltd. v. Workmen reported in (1976) 1 SCC 63 in paragraph 12 had observed as follows: "12.) It was next contended that even if Section 9-A of the Act applied, the Tribunal should have gone into the question on merits instead of giving the award on the basis of non-compliance with the provisions of Section 9A. This argument also appears to us to be equally untenable. On the facts and circumstances of the present case the only point that fell for determination was whether there was any change in the conditions of service of the workmen and, if so, whether the provisions of Section 9-A of the Act were duly complied with. We cannot conceive of any other point that could have fallen for determination on merits, after the Tribunal held that Section 9-A of the Act applied and had not been complied with by the appellant."(Emphasis added) 16. In the light of the above, there is no ambiguity in the order of reference challenged in W.P.No.10363 of 2009 and the writ petition was to be rejected not only on grounds of delay and laches, but also on the merits of the case. 17. In W.P.No.10362 of 2009, the Tribunal had correctly held that subsequent to the refusal of permission to grant layoff, the management had attempted to call the workers for work. But t the same time, it had denied their service conditions, i.e., transport facility. Insofar as the canteen facility is concerned, it is the statutory requirement under Section 46 of the Factories Act, 1948. The denial of the canteen facility will deprive the workers of their having food during lunch time. The denial of transport facility which was hitherto provided will hamper the travel to the factory and it had already become a condition of service. No notice under Section 9A of the I.D. Act was granted for depriving the conditions of service. Hence the workers were legitimate in not reporting to work in the absence of their service conditions being followed. Depriving the workers of their condition of service will disable them to report for work. This was especially when the conciliation officer himself on a demand made by the union had advised the management to restore those facilities. 18. Hence the workers were legitimate in not reporting to work in the absence of their service conditions being followed. Depriving the workers of their condition of service will disable them to report for work. This was especially when the conciliation officer himself on a demand made by the union had advised the management to restore those facilities. 18. In the counter affidavit filed by the trade union in W.P.No.10363 of 2009, in paragraphs 20 and 23 it was stated as follows: "20.) The Industrial Tribunal has wrongly included the claim of 39 workmen which has been independently decided in I.D.No.543 to 556 of 2005. The 2nd Respondent in the claim petition gave up the relief. Further, the Industrial Tribunal in the findings in paragraph 5 has stated that the claim of 39 employees does not survive. Therefore, the Industrial Tribunal in the award rejected the claim of 39 workmen and answered the issue against the worker. The petitioner has been independently dealing with the proceedings relating to 39 workers...." 23)....The Government made Reference to adjudicate two issues. At the time of reference two issues were pending for conciliation. Only during the conciliation proceedings when the management came up with petition seeking permission against 39 employees the union came to know of the dismissal of 39 workmen. Due to subsequent developments one issue was given up. None of the 39 employees made any claim on the basis of the award made in I.D.No.44 of 2003....." 19. The Tribunal had rightly found that the termination was not valid, even if the standing order No.12.11 was invoked. A similar standing order came to be considered by the Supreme Court vide its judgment in D.K. Yadav v. J.M.A. Industries Ltd., reported in (1993) 3 SCC 259 and in paragraphs 7 and 15, the Supreme court had observed as follows: "7.) The principal question is whether the impugned action is violative of principles of natural justice. In A.K. Kraipak v. Union of India10 a Constitution Bench of this Court held that the distinction between quasi-judicial and administrative order has gradually become thin. Now it is totally eclipsed and obliterated. The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded as held in Col. Now it is totally eclipsed and obliterated. The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded as held in Col. J.N. Sinha v. Union of India11. It is settled law that certified standing orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely the Act made exceptions for the application of principles of natural justice by necessary implication from specific provisions in the Act like Sections 25-F; 25-FF; 25-FFF etc. The need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service is completed, the need to dispense with the services may arise. In that situation, on compliance with the provisions of Section 25-F resort could be had to retrench the employees in conformity therewith. Particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies. 15.) In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is violative of the principles of natural justice." 20. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is violative of the principles of natural justice." 20. In W.P.No.12272 of 2005, it is unnecessary to deal with the writ petition since this court has already upheld the award which takes care of the amount claimed and covered by the certificate issued by the State Government. Hence W.P.No.12272 of 2005 is dismissed as unnecessary. 21. In view of the above, this court do not find any case is made out to interfere with the conclusions reached by the Tribunal and the final relief granted to the workmen. Hence W.P.Nos.10362 and 10363 of 2009 will stand dismissed. Consequently connected miscellaneous petitions stand closed. No costs. 22. In view of the dismissal of the writ petitions, the workers are entitled to withdraw the amount lying in deposit either with this court or with the labour court pursuant to the interim directions issued by this court. With reference to claiming balance from the management, though in the written note given by the petitioner, they have stated that the factory has been sold by a title deed dated 9.7.2008 and there was no factory at Chennai. Such a plea was not taken either before the conciliation officer or before the Tribunal. Unless the management dispenses the services of the workmen in the manner known to law, the workers are entitled to get the relief as ordered by the Tribunal.