Fedby Information Services Pvt. Ltd. vs The Presiding Officer and G. Priya

T. Raja, J.—The Petitioner/M/s. Fedby Information Services Pvt. Ltd., Chennai, has filed the present writ petition seeking issuance of writ

of prohibition to prohibit the 1st Respondent/Presiding Officer, II Additional Labour Court, Chennai, from adjudicating I.D. No. 575 of 2010

raised by the 2nd Respondent/G. Priya on the ground that the 2nd Respondent cannot raise an Industrial Dispute, since she was not discharged,

dismissed, retrenched or otherwise terminated from service by the Petitioner''s company. Secondly, he further contended that when the 2nd

Respondent has not been dismissed, discharged, retrenched from service, there is no question of any industrial dispute entertain able by the Labour

Court u/s 2A of the Industrial Disputes Act, 1947. Thirdly, he was further contended that when the 2nd Respondent himself in his own claim

petition admitted the fact that the termination order dated 23.07.2009 terminating him from service, came to be withdrawn by letter dated

03.02.2010 and thereupon, she was also paid with a sum of Rs. 1,25,000/- towards full wages for the period from 23.07.2009 till 31.01.2010,

the Labour Court ought to have dismissed the claim petition seeking adjudication u/s 2A of the Act. In other wards, it was contended that the

Labour Court has no jurisdiction to adjudicate, when there is no dispute legally available for adjudication, since there is non-employment or denial

of employment in the eye of law. On that basis, a prayer was made to prohibit the 1st Respondent/Presiding Officer, II Additional Labour Court,

Chennai, from adjudicating I.D. No. 575 of 275 raised by the 2nd Respondent.

In reply, the learned Counsel appearing for the 2nd Respondent submitted that the service of the 2nd Respondent was terminated by the

Petitioner''s company by order dated 23.07.2009. Before the service of the 2nd Respondent was terminated, an enquiry was conducted on

23.06.2009 and the enquiry committee, after enquiring the 2nd Respondent, submitted an enquiry report recommending to terminate the service of

the 2nd Respondent. Thereafter, she has sent a reply stating that she is not accepting the termination, as she is going to challenge the termination

order in the Court of law. After legal notice served through her lawyer to furnish a copy of the minutes recorded in the enquiry on 23.06.2009 and

24.06.2009, she initiated conciliation proceedings through Labour Welfare Officer, Kuralaga, Chennai, by filing petition No. 655 of 2009 and

thereafter, during the course of conciliation proceedings, the 2nd Respondent was served with a cheque for Rs. 1,25,000/-along with a letter dated

03.02.2010 for withdrawal of termination stating that the termination order is without prejudice to the action to be taken against the 2nd

Respondent based on the show cause notice dated 30.06.2009 and for other misconducts alleged to have been committed by the 2nd Respondent

and that the 2nd Respondent would also continue to remain in suspension. Since the 2nd Respondent was not subsequently reinstated in service

and she was placed under suspension, without accepting the termination order, she has filed a claim petition before the Labour Court. Therefore,

the learned Counsel for the 2nd Respondent submitted that even though the termination order dated 23.07.2009 was subsequently withdrawn by

letter dated 03.02.2010, it is up to the 2nd Respondent to accept the decision taken by the Petitioner''s company, therefore, she refused to accept

the withdrawal of the termination and on that basis, it was prayed that she is entitled to challenge the same before the Labour Court.

Heard the learned Counsel appearing on either side and perused the materials available on record.

The 2nd Respondent after entering the service of the Petitioner''s company on 07.08.2006 as a Data Analyst, Grade A4 in Department Finex,

Altosys Software Technologies Ltd. and after completing the initial probation for six months, her services were confirmed on 07.02.2007. During

the course of her services in the Petitioner''s company, she has secured poor ratings in performing her duties, for which she was issued with verbal

warning to improve her performance. Accordingly, a communication mentioning her poor performances was also issued to the 2nd Respondent on

11.05.2009. At this juncture, the 2nd Respondent complained that the Team Leaders did not give her adequate training and there were no training

documents available for reference. Subsequently, she was made to face a departmental enquiry. On completion of the departmental enquiry, an

order of termination was issued against the 2nd Respondent by order dated 23.07.2009 and as a result of the termination order dated

23.07.2009, the Petitioner''s company, pursuant to the findings of the enquiry committee, issued a show cause notice to the 2nd Respondent and

subsequent to that, she was also placed under suspension. Therefore, an internal enquiry was conducted and on completion of the said enquiry, she

was dismissed from service on 23.07.2009. Aggrieved by the said order of termination, the 2nd Respondent raised an industrial dispute before the

Labour Court. But, during the tendency of the conciliation proceedings, as there was a communication from the conciliation officer, that no proper

enquiry was conducted in the manner known to law, the Petitioner''s company accepting the view of the labor officer, decided to withdraw the

termination order by letter dated 03.02.2010 and accordingly, the same was withdrawn with a liberty to initiate appropriate action against the 2nd

Respondent. After withdrawing the termination order, the relationship of master and servant between the Petitioner''s company and the 2nd

Respondent restored. This is evident from the subsequent payment of subsistence allowance paid to the 2nd Respondent up to the issuance of

charge sheet. Therefore, when there is no cause of action for the 2nd Respondent to raise an industrial dispute u/s 2A of the Act, filing of the claim

petition before the labor Court seeking to raise an industrial dispute, is not legally sustainable.

Further, this is a case where the 2nd Respondent to raise industrial dispute u/s 2A of the Act, should have a cause of action, but as on today,

there is no cause of action. Admittedly, the 2nd Respondent''s termination order dated 23.07.2009 was already withdrawn by letter dated

03.02.2010 by the Petitioner''s company with a liberty to initiate appropriate action against the 2nd Respondent by making a sum of Rs.

1,25,000/-towards full back wages for the period from 23.07.2009 till 31.01.2010. The fact of 2nd Respondent having accepted the said amount

and thereafter, getting the subsistence allowance goes to show that the 2nd Respondent is still an employee of the Petitioner''s company. Therefore,

the claim petition filed by the 2nd Respondent before the Labour Court seeking to raise an industrial dispute, is fully without any jurisdiction. In

fact, when the order terminating the 2nd Respondent was already withdrawn without prejudice to the right of the Petitioner''s company to initiate

appropriate action against the 2nd Respondent, there is no industrial dispute, more so any cause of action, available either for the 2nd Respondent

to make a claim petition or for the labor court to adjudicate for the same.

In that view of the matter, when there is no cause of action for the 2nd Respondent to make a claim petition, the 1st Respondent/Presiding

Officer, II Additional Labour Court, Chennai, having no cause action to adjudicate, is liable to be prohibited from proceeding further on the claim

petition. Accordingly, the 1st Respondent herein, is prohibited from proceeding further on the basis of I.D. No. 575 of 2010 raised by the 2nd

Respondent.

In result, the present writ petition is allowed with the aforesaid observation. No Costs. M.P. No. 1 of 2010 is closed.