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2013 DIGILAW 1638 (MAD)

Jaganathan v. Presiding Officer, Coimbatore

2013-04-15

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. Out of 52 workmen of erstwhile R.M.T Drills (P) Ltd., who were dismissed from service on 12.06.1975, 43 persons chose to prefer industrial disputes in I.D.Nos.286 to 322 of 2004 and 483 and 485 of 2004 on the file of the Labour Court, Coimbatore invoking Section 2-A(2) of the Industrial Disputes Act, 1947. Rest of the workmen had passed away by the time the above said Industrial Disputes came to be filed. Three other workmen also raised similar industrial disputes before the Labour Court in ID Nos. 486, 487 and 488 of 2004. By a common award dated 29.08.2006, the learned Presiding Officer, Coimbatore chose to dismiss all the Industrial Disputes holding that they were not competent as the industrial disputes were not raised complying with the conditions found in Section 2-A(2) of the Industrial Disputes Act. 2. The petitioners in I.D.Nos.486, 487 and 488 of 2004 have not chosen to challenge the award. The petitioners in I.D.Nos.286 to 322 of 2004 and 483 and 485 of 2004 alone have chosen to challenge the award by filing the present writ petition invoking the writ jurisdiction of this Court for the issue of a writ of certiorarified mandamus to quash the said award of the Labour Court dated 29.08.2006 in the above industrial disputes and direct the second respondent management to reinstate the petitioners in service with backwages from 01.04.2002 and all other attendant benefits. The learned Presiding Officer of the Labour Court, Coimbatore chose to dismiss the I.Ds on the following grounds: 1. The industrial disputes under 2-A(2) were not maintainable /were not competent; 2. The second respondent is not the successor of R.M.T Drills (P) Ltd., in which the petitioners were employed as workmen and while working under whose management the petitioners were dismissed from service, and 3. The settlement itself is not genuine one. 3. Mr. N.Manokaran, learned counsel for the petitioners argued that though the prayer in the petition raising the industrial disputes before the Labour Court has been couched in such terms that the petitioners should be given employment with continuity of service and other benefits from 01.04.2002, as per clause 3 of the settlement dated 17.08.2001 arrived at under Section 18(1) of the Industrial Disputes Act, 1947. Such a prayer, in effect, was only against the dismissal and non-employment of the petitioners and that hence, the Labour Court ought not to have rejected the Industrial Disputes as industrial disputes raised for implementation of the clauses of Section 18(1) of the Settlement. It is the further contention of the learned counsel for the petitioners that the question of maintainability was not raised before the Labour Court and hence, the Labour Court ought not to have rejected the Industrial Disputes holding them to be not maintainable under Section 2-A(2) of the Industrial Disputes Act, 1947. 4. Learned counsel for the petitioners argued further that the second ground assigned by the Labour Court for the rejection of the Industrial Disputes is also unsustainable. The Labour Court held that the second respondent, namely the Revathi Equipment Ltd is not the successor of the employer of the petitioners, namely R.M.T Drills (P) Ltd., and that hence, the industrial disputes raised against the second respondent is not the one raised by the workmen against their employer. Learned counsel for the petitioners submits that such a finding was based on a finding rendered by this Court in a writ petition in W.P.No.4773 of 1982 dated 07.02.1999 produced as Ex.M20 but since the petitioners were not parties to the said industrial disputes from which the said writ petition had arisen, the finding rendered in the said writ petition would not amount to res judicata as against the petitioners and that hence, the dismissal of the present industrial disputes on the above said ground is also unsustainable. The further contention of the learned counsel for the petitioner is that the Labour Court arrived at the conclusion that the settlement under Section 18(1) of the Industrial Disputes Act marked as Ex.W1 was not genuine and was forged was based on the opinion of a handwriting expert who did compare the admitted signatures of the Company Secretary found in the documents produced by the second respondent from their custody which were not contemporary with Ex.W1 and that hence, the said finding was also perverse. 5. 5. Learned counsel for the second respondent has submitted that the present Industrial Disputes had been raised only for the implementation of the clauses of the alleged settlement under Section 18(1) and by clever drafting it has been camouflaged as if the relief is only against the dismissal/removal/non-employment of the petitioners; that even if the present disputes raised can be accepted as not one for implementation of the clauses of settlement under Section 18(1), but for redressal against dismissal/removal/non-employment, the industrial disputes ought to have been raised within the time stipulated in Section 2-A, whereas the present Industrial disputes came to be raised nearly after 29 years from the date of alleged dismissal and that therefore, the rejection of the industrial disputes as not maintainable under Section 2-A(2) of the Industrial Disputes Act is only in accordance with the proper interpretation of the provisions and this Court in the writ petition cannot interfere with the same. It is the further contention raised by the learned counsel for the second respondent that the second ground on which the industrial disputes were rejected is also sustainable. The learned counsel for the second respondent pointed out the fact that though the petitioners in the present writ petition were not made parties in their personal capacity in the earlier industrial disputes and the earlier writ petition, the earlier industrial dispute was raised in accordance with the provisions of the Industrial Disputes Act by the National Engineering Staff Association representing the workers of R.M.T Drills (P) Ltd.,; that since the Union took up the cause of the workers of the erstwhile employer of the petitioners, the result of the industrial dispute and the writ petition preferred therefrom shall very well bind the petitioners and that hence, the Labour Court was correct in holding that the finding rendered by the High Court in W.P.No.4773 of 1982 shall be binding upon the petitioners. 6. 6. So far as the third ground relied on by the Labour Court for the rejection of the industrial disputes is concerned, it is the contention of the learned counsel for the second respondent that no objection was raised by the petitioners when the documents containing the admitted signatures were sent to the Forensic Laboratory for being compared with the disputed signature of the Company Secretary by a handwriting expert and that hence, the petitioners cannot now turn around and say that contemporary signatures of the Company Secretary were not sent for comparison with the disputed signature. Learned counsel for the second respondent contends further that, besides the evidence of the management witness (MW2) to the effect that no such settlement as alleged by the petitioners came to be entered into, the Company Secretary also gave clear evidence that the signature found in Ex.W1 settlement was not his signature; that the same was corroborated by the opinion of the Handwriting expert marked as Ex.C1 which was also supplemented by the evidence of the expert examined as CW1 and that therefore, the contention of the learned counsel for the petitioner that the finding of the Labour Court in this regard is to be termed perverse has got to be discountenanced. 7. This Court paid its anxious considerations to the above said submissions made on both sides. The materials available on record were also considered. 8. Admittedly, the petitioners were the ex-employees of the erstwhile R.M.T Drills (P) Ltd., and they were dismissed from service with effect from 12.06.1975. Thereafter, no industrial dispute was raised till 1981 regarding their dismissal and in 1981, the dispute was referred to the Labour Court as the causes of dismissed employes were espoused by the Union by name National Engineering Staff Association, Coimbatore. Of course the industrial dispute in I.D.No.57 of 1981 on the file of the Labour Court, Coimbatore resulted in an award dated 17.03.1982. The said industrial dispute was raised seeking re-employment for the dismissed workers of R.M.T Drills (P) Ltd., arraying the Revathi Equipment Ltd, the second respondent herein as the first respondent therein and R.M.T Drills (P) Ltd., as the second respondent therein on the premise that Revathi Equipment Ltd., was the successor management to R.M.T Drills (P) Ltd., and hence the second respondent herein, namely Revathi Equipment Ltd., should reinstate them in service with continuity of service, backwages and other benefits. Of course, the industrial dispute resulted in an award directing the second respondent (Revathi Equipment Ltd) herein to reinstate the workers dismissed by R.M.T Drills (P) Ltd., with continuity of service and backwages. 9. As against the award passed by the Labour Court, the second respondent herein filed the above mentioned W.P.No.4773 of 1982 contending that the finding of the Labour Court that the second respondent herein was the successor of R.M.T Drills (P) Ltd., and hence the second respondent was liable to re-induct the dismissed workmen of R.M.T Drills (P) Ltd., was incorrect and such a finding was perverse. This Court, after hearing, allowed the writ petition by an order dated 07.02.1989 and set aside the award as against the second respondent herein holding that the second respondent was not to be construed as successor management to R.M.T Drills (P) Ltd., and that hence, the second respondent herein could not be construed to be the employer of the workmen who cause was espoused by the union. As rightly contended by the learned counsel for the second respondent, the said finding of this Court shall not only bind the workmen whose interest was sought to be exposed by the Union, but the same would bind the petitioners also because the earlier industrial dispute was not raised under Section 2-A(2) of the Industrial Dispute Act, but it was referred under Section 10 of the Act. Even though the dispute was concerning the dismissal of 5 of the workmen, when such cause of the individual workman/workmen is taken up by the union it assumes the character of industrial dispute and that was how the earlier dispute came to be referred to the Labour Court. Any award passed in such reference shall bind not only the persons chose interest was sought to be exposed by the Union, but the same will also bind the workers in general and the management. Even though the union had chosen to take up the cause of 5 of the dismissed workers alone, no reason is forthcoming for the failure or omission or refusal by the union to take up the cause of the present petitioners while raising an industrial dispute on the earlier occasion. Even though the union had chosen to take up the cause of 5 of the dismissed workers alone, no reason is forthcoming for the failure or omission or refusal by the union to take up the cause of the present petitioners while raising an industrial dispute on the earlier occasion. Therefore, the contention of the learned counsel for the petitioners that since the cause of 5 of the dismissed workers was taken into account in the earlier industrial dispute raised by the union, the finding of this Court in the writ petition arising therefrom, would not constitute a bar of res judicata for the petitioners from raising the plea that the second respondent is the successor management to R.M.T Drills (P) Ltd., cannot be accepted as a tenable one and the said argument deserves to be discountenanced. 10. The third ground assigned by the Labour Court for the dismissal of the Industrial Disputes is that the alleged settlement under Section 18(1) of the Industrial Disputes Act marked as Ex.W1 is not proved to be a genuine one and on the other hand, has been proved to be a forged one. In this regard, the contention of the learned counsel for the petitioners is that the decision of the Labour Court is solely based on the opinion of the handwriting expert, that too, when documents placed before the handwriting expert were documents containing admitted signatures which were not contemporary signatures of the alleged signatory of Ex.W1 and that therefore, the said finding is perverse. This Court is not impressed by the above said argument advanced by the learned counsel for the petitioners. First of all, when the signature of the Company Secretary found in Ex.W1 was denied and disputed by the management, an Interlocutory Application came to be filed for referring the said document to the Forensic Department for a handwriting expert's opinion to be made after comparing with the admitted signatures. Along with the application, the documents produced by the management admittedly containing the signatures of the Company Secretary were also produced and a joint memo came to be filed for referring those admitted documents and the disputed document to the Forensic Department for the opinion of a handwriting expert. Along with the application, the documents produced by the management admittedly containing the signatures of the Company Secretary were also produced and a joint memo came to be filed for referring those admitted documents and the disputed document to the Forensic Department for the opinion of a handwriting expert. Having thus paved way for getting the opinion of a handwriting expert on comparison of the disputed signature with the admitted signatures without raising any contention that the alleged admitted documents sought to be sent for comparison were not contemporary documents, the petitioners cannot now raise such a contention before this Court in this writ petition. Moreover, it is found that there is not only the opinion of the handwriting expert, who was examined as CW1, but there is also concrete evidence in the form of testimonies of MW1 and MW2, who categorically denied the signature of the Company Secretary found in Ex.W1. On proper appreciation of the evidence alone, the Labour Court came to the conclusion that the signature found in the alleged settlement entered into under Section 18(1) of the Industrial Disputes Act produced as Ex.W1 was not that of the Company Secretary and the same was a forged one. There is no defect in the said finding. Moreover, in the writ petition, unless such findings of fact are proved to be perverse, the High Court will not interfere with such findings of fact. In this case, apart from the fact that the said finding is based on valid material, it cannot at any stretch of imagination be termed perverse. Therefore, the third ground on which the Labour Court has dismissed the industrial disputes also deserves confirmation as there is no scope for interfering with the same in the writ proceedings. 11. The most vital ground on which the petitioners are bound to fail is that they have raised the disputes under Section 2-A(2) of the Industrial Dispute Act for the implementation of the terms of settlement alleged made under Section 18(1) of the Industrial Disputes Act. Implementation of the terms of such settlement pertains to the realm of the industrial dispute in its general sense and it will not include the deemed industrial dispute which can be raised under Section 2-A of the Industrial Disputes Act. Implementation of the terms of such settlement pertains to the realm of the industrial dispute in its general sense and it will not include the deemed industrial dispute which can be raised under Section 2-A of the Industrial Disputes Act. Of course while coining the prayer, the petitioners have chosen to seek reinstatement of the petitioners into service with back wages and continuity of service. But it must be noted that the petitioners in their industrial disputes have sought for reinstatement of the petitioners into service with effect from 01.04.2002 with continuity of service, back wages and other benefits. Admittedly, all the petitioners, who were under the employment of R.M.T Drills (P) Ltd., were dismissed from service on 12.06.1975. Though the prayer in the present writ petition has been couched in such a way as if to appear that the they are seeking reinstatement with continuity of service and backwages, it is nothing but a prayer for their induction into service of the second respondent with effect from 01.04.2002, obviously in implementation of clause (3) of the alleged settlement made under Section 18(1) of the Industrial Disputes Act. Such an ingenious drafting of the prayer will not convert the industrial disputes, which ought to have been raised by the workers generally or by the union, cannot be successfully projected as individual disputes under Section 2-A(2) of the Industrial Disputes Act. Hence, the Labour Court is fully justified in holding that the Industrial Disputes raised in the I.Ds concerned in this writ petition cannot be raised under Section 2-A(2) and hence, the industrial disputes are liable to be dismissed. 12. Furthermore, even assuming that the present industrial disputes came to be filed for redressal based on the dismissal of the petitioners from service by the management under Section 2-A(2) of the Industrial Disputes, it should have been raised by following the procedure contemplated under the said section and complying the conditions imposed therein. Sub-clause 2 says that notwithstanding anything contained in Section 10, any workman who was discharged, dismissed, retrenched or whose service was terminated may raise such an industrial dispute by making an application directly to the Labour Court or to the Tribunal for adjudication of such dispute after expiry of 45 days from the date of his making an application to the conciliation officer of the appropriate Government for conciliation of the dispute. 13. 13. Prior to the amendment introduced by Act 24 of 2010, Section 2-A did not have any sub-clause but by virtue of a state amendment made by Tamil Nadu Act 1988, the original clause was renumbered as Subsection (1) and the following was added as Subsection (2) as amended by the Tamil Nadu Act 5 of 1988. Section 2-A stood as follows: 2-A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. (2) Where no settlement is arrived at in the course of any conciliation proceeding taken under this Act in regard to an industrial dispute referred to in sub-section (1), the aggrieved individual workman may apply, in the prescribed manner, to the Labour Court for adjudication of such dispute and the Labour Court shall proceed to adjudicate such dispute, as if, such dispute has been referred to if for adjudication and accordingly all the provisions of this Act relating to adjudication of industrial disputes by the Labour Court shall apply to such adjudication." 14. Though the main provision provided in the Act was to the effect that the dispute or difference between the workmen and the employer in respect of such cases shall be deemed to be an industrial dispute, notwithstanding that no other workman nor union of workman was a party to the dispute, the procedure for raising such disputes before the Labour Court was to approach the Conciliation Officer at the first instance, and on failure of conciliation, to approach the Labour Court with the industrial dispute for adjudication. In this case, there is nothing to show that the petitioners, at the first instance, approached the Conciliation Officer for conciliation. They seem to have straight away approached the Labour Court with the industrial disputes. The same, may at times, be construed to be a mere irregularity. In this case, there is nothing to show that the petitioners, at the first instance, approached the Conciliation Officer for conciliation. They seem to have straight away approached the Labour Court with the industrial disputes. The same, may at times, be construed to be a mere irregularity. But, the fact that the petitioners after having been denied employment in 1975 had waited for 29 years and thereafter, belatedly approached the Labour Court with the industrial disputes will show that the petitioners are guilty of laches in approaching the Labour Court for redressal. On that score also, the award of the Labour Court dismissing the industrial disputes has got to be confirmed and no interference can be made by this Court. 15. Though it may not be necessary, this Court wants to point out the fact that now a condition has been prescribed by introducing clause (3) to Section 2-A of the Industrial Disputes Act whereby the dismissed or retrenched employee has to raise the industrial dispute within 3 years from the date of dismissal, termination or retrenchment. Though such a condition was not there when the industrial disputes were raised, the subsequent change in the legislature will be the guiding factor to decide the question of laches. On that ground also, this Court comes to the conclusion that the writ petition fails and the same deserves dismissal. Accordingly, the writ petition is dismissed. No costs.