Velan Saw Mills vs Presiding Officer, Labour Court and Another

Y. Venkatachalam, J.—Invoking Article 226 of the Constitution of India, the petitioner herein has filed the present writ petition seeking for a

writ of certiorari to call for the records pertaining to C.P. No. 84 of 1992 on the file of the Labour Court, Tiruchirapalli, and to quash the order

passed therein, dated April 29, 1993.

In support of the writ petition the petitioner herein has filed an affidavit wherein she has narrated all the facts and circumstances that forced her

to file the present writ petition and requested this Court to allow the writ petition as prayed for. Per contra on behalf of the second respondent a

counter-affidavit has been filed rebutting all the material allegations levelled against him one after the other and ultimately he has requested this

Court to dismiss the writ petition for want of merits.

Heard the arguments advanced by the learned counsel appearing for the respective parties. I have perused the contents of the affidavit and the

counter-affidavit together with ail other relevant material documents available on record in the form of typed set of papers. I have also taken into

consideration the various points raised by the learned counsel appearing for the respective parties during the course of their arguments. I have also

considered the decision relied on by the learned counsel appearing for the second respondent.

In the above facts and circumstances of the case, the only point that arises for consideration is, as to whether there are any valid grounds to

allow this writ petition or not.

The brief facts of the case of the petitioner as seen from the affidavit are as follows: This writ petition has been filed to quash the order passed

by the Labour Court, Tiruchi, in C.P. No. 84 of 1992, dated April 2, 1993. The Velan Saw Mills is owned by the petitioner herein. She had let

out the business on lease to one K. Arumugam and Sundaram of Musiri and the lease was from December 1, 1983 to October 14, 1991. That

being so as the lessor she was entitled only for the lease amount and she had no connection with the functions of employment of labour,

production, sale, etc., and they were totally out of her control and she was not to participate in any of the functions of the lessees. The second

respondent herein was appointed by the said Arumugam and Sundaram the lessees, to work in the Saw Mills. Further there has been dispute

between the said lessees and the second respondent herein regarding the non-employment of the second respondent. The second respondent has

raised a dispute alleging that he had been terminated from services for the reasons set out in the petition raising the dispute and a counter has been

filed before the Conciliation Officer who had taken it on file in the dispute raised by the second respondent. In the counter filed before the

Conciliation Officer, the lessees had denied the second respondent having been terminated and that the second respondent had left the services on

his own and that they were prepared to entertain the second respondent herein for employment if he chose to do so. The Government had referred

the dispute before the Labour Court and the same was numbered as I.D. No. 177 of 1990. Even before the Labour Court, the lessees had filed

their counter stating that the second respondent remained absent from September 1, 1989 and when the lessees had asked the second respondent

to report for duty, and though he reported that he would report for duty after ten days the second respondent had not reported to work till

September 20, 1989. When the communication was sent by the lessees to the second respondent, the second respondent''s wife had informed the

messenger that her husband would not return back to work. The lessees further contended before the Labour Court that it was case of voluntary

abandonment of service by second respondent. When the lessees had admitted that employment of second respondent through their counter,

unfortunately they did not at a later stage of the dispute appear before the Labour Court and the Labour Court therefore had passed an ex parte

award on June 3, 1992 directing the reinstatement of the second respondent herein. On the basis of the ex parte award passed in I.D. No. 177 of

1990, the second respondent herein approached the Labour Court u/s 33-C(2) of the Industrial Disputes Act purporting to execute the award

passed in his favour in the said I.D. No. 177 of 1990. The application for execution u/s 23(c)(2) was numbered as C.P. No. 84 of 1992 and the

Cause-title therein described her that she was the proprietrix of the Velan Saw Mills. Whereas in the I.D. petition the cause title did not indicate

her as the proprietrix. In the petition it has been stated management of Velan Saw Mills. In the execution petition it has been stated so. To the

computation Petition No. 84 of 1992, she filed a counter statement that she was not aware of the employment of second'''' respondent by the

lessees and that she was not aware of the proceedings in I.D.No. 177 of 1990. Further she had stated that she would be prepared to entertain the

second respondent for employment in case he chose to resume work. She had also stated through her counter that to his letter, dated August 4,

1982 she had stated that the employee may report for duty. However, on October 7, 1982, the second respondent had written insisting upon

payment of Rs. 10,800. She had also placed before the Labour Court the lease deed that had been entered into between her and the lessees on

various occasions. Further according to her at no point of time, there existed employer and employee relationship between her and the second

respondent herein and the award was passed only as against the lessees. That being so it is her case that however, on a wrong appreciation of the

facts and issues of law involved in this case, the Labour Court, Trichy, had computed the benefits at Rs. 11,400 to be payable by the petitioner

herein to the second respondent. Thus it is contended by the petitioner that the order passed by the Labour Court, the first respondent herein, is

contrary to the basic principles of industrial law as well as the well settled principles of law. Hence this writ petition.

In the counter-affidavit filed by the second respondent justifying the order impugned, it is contended, by him that he was employed as a helper in

the petitioner Saw Mill from March 1969. He was paid Rs. 300 per month as his salary. He was discharging his duties diligently and sincerely and

despite the same he was not paid salary commensurate with his experience and length of service and he was not even allowed to avail weekly

holidays. On August 27, 1989, the petitioner directed him to go to Namakkal on occupational assignment. Since the said day was a Sunday, he

wanted to avail his weekly off and hence expressed his inability to go over to Namakkal. On August 28, 1989 when he reported for duty as usual,

he was not allowed to work and he was refused work and his services were terminated. He raised an industrial dispute regarding his non-

employment before the Assistant Commissioner of Labour, Trichy, the Conciliation Officer constituted under the Act. As the conciliation

proceedings, ended in failure, it culminated in an adjudicatory proceedings before the first respondent as I.D.No. 177 of 1990. In the said

industrial dispute, the first respondent passed an award on Jury 13, 1992 setting aside the termination and directing the petitioner, to reinstate him

with full back wages, continuity of service and all other attendant benefits. Pursuant to the award passed by the first respondent he called upon the

management to reinstate him in service and comply with the award passed by the first respondent. On the failure of the petitioner to do so, he filed

a claim petition u/s 33-C(2) of the Industrial Disputes Act to compute the quantum of back wages payable to him at Rs. 11,400 as on that date. It

is contended by him that the award passed in I.D.No. 177 of 1990 had become final and the same was accepted by the writ-petitioner and was

not agitated her by initiating appropriate proceedings. The writ-petitioner put forward untenable contention with a view to avoid the financial

liability fastened on them by virtue of the award passed by the first respondent in I.D.No. 177 of 1990. The first respondent rightly rejected the

various contentions raised by the writ-petitioner in the claim petition and computed the amount due and payable to him at Rs. 11,400 and this

order passed by the first respondent in C.P.No. 84 of 1992 is impugned in this writ petition by the petitioner-management. It is contended by him

that the impugned order is unimpeachable and it is akin to an execution petition and that the award passed by the Labour Court having been

allowed to become final, the petitioner cannot raise frivolous objections, at the stage of execution. It is also his case that he was without

employment for the past five years and hence he is entitled to be paid the amount computed by the Labour Court.

Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter claims

made by the rival parties the following are the admitted facts in this case. There was a dispute between the second respondent employee and the

petitioner Saw Mills regarding his non-employment. The matter culminated into I.D.No. 177 of 1990. In the said I.D. an award came to be passed

on July 13, 1992, setting aside the termination and directing the petitioner to reinstate him with full back wages, continuity of service and all other

attendant benefits. Thereafter the employee called upon the management to reinstate him in service and comply with the award passed by the first

respondent and on the failure of the petitioner to do so, the second respondent-employee filed a claim petition u/s 33-C(2) of the Industrial

Disputes Act to compute the quantum of back wages payable, to him at Rs. 11,400 as on that date. Aggrieved by the said order, the present writ

petition has been filed by the petitioner herein challenging the said order.

That being so this is the strong case of the petitioner herein that the impugned award suffers due to errors apparent on the face of it regarding all

the material aspect that she had let out the business on lease to one Arumugam and Sundaram and they only appointed the second respondent

herein and she had no function or connection in the employment of labour, production, sale and in short they were totally out of her control and that

at no point of time there existed any employer and employee relationship between her and the second respondent and also that the award was

passed only against the lessees. It is also her clear, case that the explanation offered by the lower Court in its order in support of the fact that the

document of lease have been brought up for the occasion is not in accordance with law. Further in this case it is also clear that the lower Court

misdirected itself in proceeding on the basis that the employee''s services had been terminated. But it is clear that the lower Court had proceeded

on the basis that it was the petitioner who has terminated the service of the second respondent but it is not the case of the lessees as well as the

petitioner before the Labour Court that the second respondent''s services were terminated. It is also significant to note that even before the Labour

Court when the main dispute arose it was the case of the lessees that the second respondent left the services on his own and he was never

terminated from services. Yet another significant aspect in this case is that in spite of the fact that both the lessees and the petitioner herein had

written to the second respondent asking him to report for duty which the second respondent refused to comply on all occasions and if the offer of

employment is made and the employee refused to accept the same and act in pursuance of the said offer, the employee would not be entitled for

any benefit of wages. Moreover as rightly contended by the petitioner herein that the lower Court fell in serious error when it had not taken into

consideration various materials pertaining to the defences placed by the lessees in the industrial dispute and that these materials would amply

demonstrate that the second respondent was the employee of the lessees and not of the petitioner herein at all. | Therefore in the above facts and

circumstances of the case, I am convinced that the impugned order suffers from the vice of non-consideration of the basic and relevant materials

placed before it and the non-application of mind.

However in support of the case of the second respondent, the following decision was relied. Bhagwan Dass Chopra Vs. United Bank of India

and Others, , wherein it has been held that Section 18 of the Industrial Disputes Act provides that an award made by Labour Court or Tribunal

which has become enforceable shall be binding on all parties to the industrial disputes and all other parties summoned to appear as parties to the

dispute unless the Labour Court or Tribunal record the opinion that the parties so summoned were without proper cause. That being so in this case

it is very clear that in the industrial disputes petition the cause title did not indicate her as the proprietrix and further in the petition it has been stated

only as a management of Velan Saw Mills. In such circumstances of the case on hand, the above decision relied on by the second respondent is

not helpful to him in any way.

Therefore for all the aforesaid reasons and in the facts and circumstances of the case and also in view of my above discussions with regard to

the various aspects of this case and also in the light of the above decision discussed, I am of the clear view that the petitioner herein has clearly

made out a case in her favour that the impugned order suffers due to errors apparent on the face of it regarding all the material aspect and that

therefore the same has to be set aside as prayed for. Thus the writ petition succeeds and the same has to be allowed as prayed for.

In the result, the writ petition is allowed as prayed for. No costs.