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Judgment
Honourable Mr. Justice K. Chandru
W.P.No.3766 of 2007 is filed by the Superintending Engineer, Kadamparai Generation Circle, Coimbatore District, challenging an Award
passed by the first respondent Labour Court, Coimbatore in I.D.No.3 of 2001 dated 08.02.2006. By the impugned Award, the Labour Court
directed reinstatement of these coned respondent workman with continuity of service but without back wages or other benefits.
Aggrieved by the said Award, the Electricity Board filed the present writ petition, which was admitted on 02.02.2007. Pending the writ petition,
this Court granted an order of interim stay of the operation of the Award. There after, the aggrieved workman filed two applications inM.P.Nos.1
and 2 of 2009. In M.P.No.1 of 2009, the prayer is for grant of last drawn wages u/s 17-B of the Industrial Disputes Act and that application came
to be ordered by this Court on 12.04.2010 and a direction was issued to pay the last drawn monthly wages from the date of the writ petition till
the disposal of the writ petition. It is now stated that the payment has been made by the petitioner Board. In M.P.No.2 of 2009, this Court
directed the main writ petition to be posted for final disposal on 16th June 2010. For reasons unexplained, the matter was not listed.
In the meanwhile, when the matter was called on22.07.2010, it was referred to resolution by the Lok Adalat. The Lok Adalat II by an order
dated 28.09.2009 returned the papers by stating no such conciliation is possible between the parties.
During the pendency of the writ petition, the workman filed a writ petition in W.P.No.26600 of 2007,challenging that portion of the Award by
which he was denied backwages and other relief. That writ petition came to be admitted on 08.08.2007 and it was directed to be posted
alongwith the first writ petition. On notice, the respondent Board has filed a counter affidavit dated 10.03.2008.
In view of the inter connectivity between the two writ petitions, they were heard together and a common order is passed. For the sake of
convenience, the Board is referred to as Management and the Worker is referred to as Workman as the case may be.
The circumstances that led to raising of dispute by the workman were as follows:-
The workman was employed as Contract Labour in the Kadamparai Power House at Pollachi. Subsequently, when proposals for making
permanent status were sent, the workman submitted his school certificate. It was informed that the school certificate will be verified with the
Educational Department and only on knowing the truthfulness of the said certificate ,he will be given permanent worker status. Since he was not
given any permanent worker status, he raised an Industrial Dispute for denial of employment in the post of watchman. According to the workman,
he was working from01.04.1982 as Helper in digging pits. From 1988 onwards, he worked as Watchman and he had put in more than 240 days
of service in a year and 480 days of service during 24 calendar months and his last drawn salary was Rs.1650/-. In spite of the fact that he is
eligible to be made permanent and after submitting his school certificate for verification, without any notice or enquiry, he was removed from
service with effect from 04.02.2000. He was also sought to be evicted from the quarters allotted to him in the power station. It is at this juncture,
he raised a dispute before the Conciliation Officer .The Conciliation Officer as he could not bring about mediation ,gave a failure report.
On the strength of the failure report, he filed a claim statement dated 27.12.2000 before the Labour Court, Coimbatore .The said dispute was
registered as I.D.No.3 of2001 and notice was ordered to the Management.
The Management filed a counter statement dated Nil. The stand taken in the counter affidavit was that the 8th standard school certificate
produced by the workman was sent for verification of its genuineness and correctness and the referred certificate was found to be forged and
therefore, he was terminated from service. A criminal case was also registered against him in Crime No.12 of 2000 by Inspector of Police
,Kadamparai Police Station for the offences u/s 465, 468, 471 and 480 of IPC, which according to the Management was pending.
Before the Labour Court, on behalf of the Workman, he examined himself as W.W.1. He filed four documents and they were marked as
Exs.W1 to W4. Ex.W2 is the order passed by the Deputy Chief Inspector of Labour, Tiruppur in which the workman along with 52 others were
directed to be made permanent in terms of Tamil Nadu Industrial Establishment(Conferment of Permanent Status) Act, 1981. The order came to
be passed on 10.12.1989 and directed the management to confer permanent status on the workman covered in the said order. In Annexure I to
the order, the name of the workman is found inSl.No.27 and it is also stated that it has not been subject matter of challenge before any Court.
Ex.W4 is the judgment of Criminal Court in C.C.No.51 of 2001 dated 31.01.2005 wherein and by which, the workman was acquitted by the
Criminal Court. On the side of the Management, 7 documents were filed and were marked as Exs.M1 to M7. Mr. K.Muralidharan was examined
as M.W.1.
The Labour Court after noticing that the workman was acquitted by the Criminal Court and also finding that no enquiry was held before
terminating the service of the workman ,especially when he had been conferred the permanent status ,it held that the action of the Management was
illegal and therefore, it directed reinstatement of the Workman with continuity of service, but denied backwages. Though the workman claimed full
backwages, the Labour Court recorded that there must be a pleading that the workman was not gainfully employed anywhere and unless such a
pleading is made, the question of grant of backwages will not arise. In this context, the Labour Court referred to the judgment of the Supreme
Court in Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, for contending that the onus of proof that a particular worker is not
employed heavily lies on the Workman and since the onus of proof was not discharged, the Court was unable to grant any back wages.
Challenging that portion of the Award, the second writ petition viz., W.P.No.26600 of 2007 was filed by the workman .It is seen from the
counter statement except pleading the pendency of the criminal case, the Management did not done anything further to prove before the Labour
Court by letting in evidence or summoning the appropriate authorities to prove that the certificate produced by the workman was forged and
therefore, he was not eligible to be in the employment. On the contrary, in the counter affidavit filed in W.P.No.26600 of2007, the Management
contended that as against the order of conferment of permanent status, the Management has filed a writ petition being W.P.No.10899 of 2001 and
had got an interim stay.
In any event, similar writ petitions filed by the Board were came to be listed before the Division Bench presided by P.K.Misra,J. (as he then
was) and they were dismissed by a common order vide judgment reported in The Superintending Engineer, Nagapattinam Electricity Distribution
Circle, Tamil Nadu Electricity Board and The Executive Engineer, Operation and Maintenance, Tamil Nadu Electricity Board Vs. The Inspector of
Labour and D. Athmanathan, . However, it is unnecessary to go into the issue whether on that date, the workman was terminated from service or
he was a permanent or a temporary worker. It is suffice that no enquiry was held before he was dismissed from service and it is contrary to the
certified Standing Orders applicable to the workmen employed by the Electricity Board.
In the counter affidavit, the Management also noted the acquittal of the workman on 31.01.2005, but merely stated that the acquittal by itself
will not whitewash themis conduct committed by the workman and any person who enters the service by producing bogus certificate if allowed to
continue will only encourage a similar misconduct by other workers. If the Management is so concerned about the entry of persons with bogus
certificate, they should have taken liberty to lead evidence before the Labour Court to justify the dismissal for the misconduct allegedly committed
by the workman .The Labour Court in this context held that the workman''s entry into service was not based upon the dispute dedicational
certificate. The workman was already in service in terms of Ex.W2 with effect from 06.01.1998. The Labour Court also found that since he is a
permanent worker with effect from 06.01.1998, the Management could not shirk their responsibility in not conducting the enquiry. Therefore, it
found that on the materials on record produced before it there was no proof that with that certificate the workman had gained entry into service.
Such a finding of fact cannot be interfered with. Even in cases where such grave misconduct alleged against the worker, the rule requires a fair
hearing according to the principles of natural justice and compliance with statutory rules must be followed as held by the Supreme Court in
Rajasthan State Road Transport Corporation and Another Vs. Bal Mukund Bairwa, .Therefore, no fault can be found with the finding recorded by
the Labour Court. In that view of the matter W.P.No.3766 of2008 is liable to be dismissed. Accordingly, it is dismissed.
In W.P.No.26600 of 2007, the claim made by the workman was for full back wages. He contended that the Labour Court having found the
workman as a permanent worker and acquitted by the criminal court, it should have ordered fullback wages. In the matter of grant of back wages,
even in case of violation of Section 25-F of the I.D. Act which results in invalid termination, the Supreme Court vide its judgment reported in
Rajasthan Lalit Kala Academy Vs. Radhey Shyam, has held that though the relief of reinstatement and back wages is a normal rule, other factors
namely, particular worker is adhoc employee, daily wages or a temporary employee should also be relevant factors and should be taken into
account.
In the present case, the Labour Court held that during the pendency of the dispute, the workman had not made any statement that he was not
gain fully employed during the said time and also placed reliance on the judgment of the supreme Court in Kendriyha Vidyalaya Sangathan case
(cited supra). Further, it is the stand of the Management that the order conferring permanent status is the subject matter of a writ petition where this
Court has granted stay of the order passed by the Deputy Chief Inspector of Factories. In the said circumstances, there is no case made out to
interfere with that portion of the Award which denies back wages. Hence, W.P.No.26600 of 2007 filed by the Workman is also liable to be
dismissed. Accordingly, it is dismissed.
In the result, both the writ petitions will stand dismissed. However, the parties are allowed to bear their own costs.