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Judgment
S. Palanivelu, J.—The appellant in W.A. No. 661 of 2007 viz. Libra Construction and Finance Limited is owning a property at No. 1/23,
Alankattuputhur, Thaengalpalayam Post, Athanur, Rasipuram Taluk, Namakkal District. They have leased out the said property to Tamil Nadu
Tobacco Company Limited (the appellant in W.A. No. 638 of 2007), which was manufacturing cigarettes, on a monthly rent of Rs. 66,000/=. The
said Libra Construction and Finance Limited, contending that though the said company vacated the premises in the year 2000 itself, they have not
handed over the vacant possession to the Libra Construction and Finance Limited and even after adjustment of the advance amount, still there is
balance of rental amount has filed a suit in O.S. No. 380 of 2001 before the Court of Subordinate Judge, Namakkal for recovery of possession
and the said suit was decreed ex parte on 25.9.2001, directing the defendant therein viz. the Tamil Nadu Tobacco Company Limited to hand over
possession of the property within two months. Thereupon, Libra Construction and Finance Limited has filed Execution Petition No. 472 of 2002
before the Sub Court, Namakkal and it is their case that when the Bailiff went to execute the warrant on 4.2.2003, the employees of the Tobacco
Company obstructed him and hence possession could not be taken over. Therefore, they filed W.P. No. 19014 of 2003, praying to issue a Writ
of Mandamus directing the respondents 1 to 3 therein to give necessary police protection to execute the warrant issued by the learned Subordinate
Judge, Namakkal. At the first instance, by the order dated 25.8.2003, the learned single Judge, has allowed the said writ petition, directing to grant
police protection.
nit to a different place within one month and also to direct the Tribunal to dispose of the dispute on reference u/s 10(2)(a) of the Industrial
Disputes Act, 1947 within a period of six months from the date of reference. This order of the learned single Judge was challenged by the Tamil
Nadu Tobacco Company Limited by filing W.A. No. 2510 of 2001 wherein the First Bench of this Court, by the judgment dated 22.3.2002 has
observed as follows:
...But there cannot be any positive direction to the Government to refer the matter u/s 10 of the Act. We are satisfied that circumstances exist to
raise a cause for industrial dispute and the Government should exercise its power u/s 10 of the Act. But, it is needless to mention that exercise of
such power u/s 10 of the Act should be based on relevant considerations. It is also not out of context to mention that should the Government
decide on extraneous considerations, it can be a cause for judicial review. Keeping this in mind, the Government has to decide the plea for
reference made by the workmen, within a period of 30 days from the date of receipt of copy of this order. We make it clear that until such
decision is taken by the Government, the factory shall be run only at the existing place. At this juncture, Mr. G. Narayanan, learned senior Counsel
appearing for the appellant submits that the factory has been closed from the midnight intervening 21st and 22nd March 2002. But we do not take
cognisance of such a closure. The factory which is said to have closed shall be reopened forthwith. The writ appeal is disposed of accordingly....
Aggrieved of the said judgment of the First Bench of this Court, the Tamil Nadu Tobacco Company Limited filed SLP (Civil) No. 7787-
7789/2002 and the Honourabel Supreme Court by the order dated 2.9.2002, while granting leave has stayed the following directions of the First
Bench of this Court:
But, we do not take cognizance of such a closure. The factory which is said to have been closed shall be reopened forthwith.
Thereupon, the Government by G.O.(D) No. 15 Labour and Employment Department, dated 3.1.2003 referred the dispute to Labour Court
for adjudication, which was taken on file as Industrial dispute No. 2 of 2003 by the Industrial Tribunal, Chennai. Then contending that the said
reference was silent on the question of shifting the factory from Namakkal to Salem, Tamil Nadu Tobacco Company Uzhiyargal and Thozhilalargal
Sangam (CITU) has filed Contempt Petition No. 307 of 2004 and the learned single Judge, has closed the said contempt petition on the ground
that the orders passed in the Writ Petition were modified by the Division Bench and further directing the Tamil Nadu Tobacco Company
Uzhiyargal and Thozhilalargal Sangam (CITU) to seek appropriate remedy.
In the meanwhile, the Inspector of Police, Vennandur Police Station, the Deputy Superintendent of Police, Rasipuram, Namakkal District and
the Superintendent of Police, Namakkal, who are the respondents 1 to 3 in W.P. No. 19014 of 2003, have filed W.P.M.P. No. 32977 of 2003,
praying to clarify the order dated 25.8.2003 made in W.P. No. 19014 of 2003. In the said petition, the said police authorities have submitted that
in view of the Stay order passed by the Honourable Supreme Court as against re-opening the factory, they are unable to give police protection to
open the factory premises, though there is a decree of the Civil Court. The learned single Judge, by the order dated 7.11.2003, has observed as
follows:
When the Division Bench has passed an order to run the factory in the very same place, any order directing the police officers to give police
protection to clear the goods from the petition premises at the instance of the house owner cannot be granted by this Court. Of course, this order
would not preclude the writ petitioner to move the Division Bench and get a clarification as to their right to get possession in view of the subsequent
facts as stated in the affidavit filed in support of the writ petition, particularly, the fact that the Tobacco company, the lessee, has closed down the
premises and stopped their production, however failed to hand over the key and on that basis, the civil suit has been filed in the competent civil
Court and a decree has been obtained and get an appropriate and suitable direction so as to take possession of the premises including the relief of
police protection.
With such observations, and further taking note of the submission made that the writ petitioner (the Tobacco company) was not a party to any
of the earlier proceedings either before the learned single Judge or before the Division Bench or before the Supreme Court, the learned single
Judge has directed that any clarification in respect of the dispute in the earlier proceedings can be obtained from the Division Bench.
It is also seen from the records that pursuant to the orders of the Government, referring the matter for adjudication, the Libra Constructions and
Finance Limited, has filed W.A.M.P. Nos. 1181 and 1182 of 2005, respectively praying to implead them as a party in W.A. No. 2510 of 2001
and to clarify the order dated 22.3.2002 made in Writ Appeal No. 2520 of 2001 to the effect that in view of the reference made by the
Government of Tamil Nadu vide G.O.(T) No. 15, dated 3.1.2003, the petitioner (viz. Libra Constructions and Finance Limited) is entitled for the
vacant possession of the property. The First Bench of this Court, by the order dated 29.6.2005, observing that since an appeal is pending before
the Supreme Court, declined to clarify the order dated 22.3.2002, but, has permitted the workers Unions to file an application in the already
disposed of W.P. No. 19014 of 2003 (filed by Libra construction and Finance Limited seeking police protection to implement the orders of
eviction passed by the Sub court, Namakkal), to get themselves impleaded and to raise all legal and factual objections which they wish to raise.
Subsequently, the employees Unions have filed W.P.M.P. No. 34388 of 2005, praying to implead themselves as party respondents 5 and 6 in the
W.P. No. 19014 of 2003 and on the same having been allowed on 23.12.2005, they were brought on record as respondents 5 and 6 in the said
writ petition.
In the meanwhile, the Tamil Nadu Tobacco Company Uzhiyargal and Thozhilalargal Sangam has filed W.P. No. 7313 of 2005 before this
Court, praying to issue a Writ of Mandamus, to direct the Government of Tamil Nadu, represented by its Secretary, Labour and Employment
Department to consider and issue a reference relating to shifting of the Tobacco Company from No. 1/13, Alankattupudhur, Thengalpalayam,
Aathanur (via), Namakkal District to No. 3/319, Puthur Itteri Road, Nethimedu, Salem-636302 to the Industrial Tribunal, City Civil Court
Buildings, Chennai.
Since the learned single Judge has dismissed W.P. No. 19014 of 2003 filed by the Libra Construction and Finance Limited, the said company
filed W.A. No. 661 of 2007 and as against the order of the learned single Judge in W.P. No. 7313 of 2005, observing that the shifting of the
factory from Namakkal to Salem was also one of the issues raised in the conciliation proceedings, the Tobacco company has filed W.A. No. 638
of 2003.
Since both the matters are, thus, inextricably interconnected with each other, they are disposed of by this common judgment.
A thorough scrutiny of the entire materials placed on record, thus would narrate that the entire dispute between the Management of the
Tobacco company and its employees revolves around the shifting of the Tobacco company from one place to other and the case of the owner of
the land viz. Libra construction and Finance Limited is that in spite of obtaining a decree for recovery of possession, they were unable to enjoy the
fruits of the decree and hence they sought for police protection to implement the warrant issued by the executing Court.
There is no doubt regarding the fact that the decree, based on which the said Libra Construction and Finance Limited has filed the Execution
Petition, is an ex parte one. It has been brought to our notice that as against the ex parte decree, an application was filed to set aside the exparte
decree and at present the matter is pending in C.M.A. No. 12 of 2003 before the competent civil forum. Furthermore, regarding the dispute
between the Management of the Tobacco company and the employees, a dispute was raised, which is pending adjudication in I.D. No. 2 of 2003
before the Labour Court, Chennai. As has already been adverted to supra, the Honourable Supreme Court has stayed the order of the Division
Bench of this Court, insofar as the direction to re-open the company. In these circumstances, the discretionary relief of Writ of Mandamus, as has
been prayed for by the Libra Construction and Finance Limited in W.P. No. 19014 of 2003, which is the subject matter in W.A. No. 661 of
2007, that too to execute a warrant issued by the civil Court based on an ex parte decree, which is now under challenge, cannot be granted.
Therefore, W.A. No. 661 of 2007 is dismissed.
Coming to Writ Appeal No. 638 of 2007 filed by the Tobacco Company, on a careful perusal of the entire materials placed on record such as
the conciliation proceedings and the failure report dated 9.8.2001 sent by the conciliation officer, we are able to find that the shifting of the factory
from Namakkal to Salem was also one of the issues raised in the conciliation proceedings. Even on an earlier occasion, the Division Bench of this
Court in W.A. No. 2510 of 2001, dated 22.3.2002 has observed that the Government should exercise its power u/s 10 of the Industrial Disputes
Act, which judgment is under challenge before the Honourable Supreme Court in SLP. Nos. 7787-7789 of 2002. Therefore, when the
Honourable Supreme Court has seized of the matter, regarding the issue involved, we cannot issue any direction as has been sought for in W.P.
No. 7313 of 2005.
In view of the above, all the questions which are relatable to the shifting of the unit to some other place and reference of the dispute to Labour
Court have to be answered by the Apex Court in the appeals aforestated. With such observations, Writ Appeal No. 638 of 2007 is disposed of.
In fine, W.A. No. 638 of 2007 is disposed of and W.A. No. 661 of 2007 is dismissed. Consequently, connected M.Ps are closed. No costs.