w w w . L a w y e r S e r v i c e s . i n



M. Duraipandian v/s The Management of Agricultural College & Research Institute, Rep.by its Dean, Madurai & Another


Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

    W.A.(MD) No. 870 of 2015

    Decided On, 30 June 2017

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM & THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Appellant: K. Suresh Kumar, Advocate. For the Respondents: R1, A. Thirumurthy, Advocate, R2 - Labour Court.



Judgment Text

(Prayer: Writ Appeals filed under Clause 15 of Letters Patent to set aside the order, dated 10.06.2015, made in W.P.(MD) No.3167 of 2011, on the file of this Court.)

T.S. Sivagnanam, J.

1. This writ appeal is directed against the order, dated 10.06.2015 in W.P. (MD) No.3167 of 2011, filed by the first respondent - University challenging the Award passed by the Labour Court, Madurai, in I.D.No.19 of 1986, dated 30.09.2009.

2. The said writ petition filed by the first respondent - University was allowed and the Award passed by the Labour Court was set aside and the first respondent - University was directed to pay a sum of Rs.1,00,000/- to the appellant / second respondent.

3. The appellant filed a claim petition before the Labour Court, Madurai, praying for a direction upon the first respondent - University to reinstate him in service with full backwages and continuity of service. The case of the appellant was that he was working as a Compositor in the Press run by the first respondent - University from 02.03.1978 without any brake and he was employed taking note of his technical qualification and his apprenticeship training, he was paid Rs.7/- per day for three years and in spite of completion of three years period, his services were not regularised. It appears that the appellant organized other similarly placed workmen, whose services were not regularised and who were also paid low wage to form themselves into an Employees Union and affiliated themselves to a registered Trade Union. A charter of demands was placed to the first respondent - University, which ultimately led to a dispute being raised before the Deputy Commissioner of Labour, Madurai. According to the appellant, the first respondent – University did not relish the move initiated by the appellant and he was denied employment from the month of May, 1981. Therefore, the appellant approached the Labour Court and raised a dispute claiming reinstatement with all benefits. The appellant contended that there was no charge memo, no enquiry and no disciplinary action was initiated against him and he was abruptly denied employment.

4. The first respondent - University in their statement of objections before the Labour Court took a stand that the appellant in order to circumvent his unauthorized absence has made false allegations against the University and raised a dispute that the appellant unauthorizedly perused the registers and records kept in the Press, when the Press Assistant was away from his Office and his action showed mala fide intention and a prejudicial one with the connivance of the dismissed workmen, whose case is pending.

5. The first respondent - University further stated that in such circumstances, there were no other option except to terminate the service of the appellant. As he was a casual worker, no notice was necessary and the same was not given. Before the Labour Court, the appellant examined himself as W.W.1 and marked fourteen documents as Exs.W1 to W14. On the side of the Management, one witness by name M.Pandian was examined as M.W.1 and two documents were marked as Exs.M1 and M2.

6. The Labour Court, after considering the oral and documentary evidence, first took up the issue regarding the appellant's locus standi to maintain the claim petition and answered the issue in favour of the appellant. The second issue was whether the first respondent - University is an industry, which would come within the purview of Section 2(s) of the Industrial Disputes Act (hereinafter, referred to as 'the Act). This issue was also answered in favour of the appellant. The third issue was whether non-employment of the appellant was justified and if not to what relief the appellant is entitled to. The Labour Court held that the first respondent - University did not issue any notice nor paid wages in lieu of notice or compensation and there was a violation of Section 25(F) of the Act and accordingly, passed an Award declaring the non-employment of the appellant as not justified and directing reinstatement of the appellant with continuity of service, backwages and attendant benefits.

7. The first respondent - University challenged the Award before the Principal Bench of this Court by filing W.P.(MD) No.1352 of 1989. The Writ Court opined that the Labour Court did not give a finding as to whether misconduct on the part of the appellant is made out or not. Therefore, the writ petition was allowed, the Award of the Labour Court was set aside and the matter was remanded with a direction to give a finding as to whether the alleged misconduct on the part of the appellant is made out or not and also to give opportunity to lead oral and documentary evidence by both sides.

8. Pursuant to the said directions, the parties appeared before the Labour Court and led evidence and the matter was considered by the Labour Court afresh based on the oral and documentary evidence, which was permitted to be adduced by the Order made in the writ petition. Thus, on remand, on the side of the Management one more witness by name, G.Sekar, was examined as M.W.2. There were 21 documents marked on the side of the appellant and eight documents marked on the side of the Management. The Labour Court framed two issues for consideration, namely, whether the dismissal of the appellant from service was just and proper and to what relief, the appellant is entitled to.

9. After considering the oral and documentary evidence, the Labour Court passed an Award partly allowing the claim of the appellant and directing the appellant to be reinstated in service till his age of superannuation and to pay all monetary benefits accruing therefrom. The first respondent - University challenged the Award of the Labour Court by filing W.P.(MD) No. 3167 of 2011. The said writ petition was allowed by the impugned order and challenging the same, the present writ appeal has been preferred by the appellant / workman.

10. The Writ Court interfered with the Award passed by the Labour Court primarily on the ground that on remand, the Labour Court was directed to permit the parties to lead oral and documentary evidence and the Labour Court ought not to have rejected the evidence given on the side of the first respondent - University on the ground that those witnesses were not examined before remand. This appears to be the only reason assigned by the Writ Court for setting aside the Award as could be seen from Paragraph No.10 of the impugned order. The other observations contained in Paragraph No.10 is to support the conclusion of the Writ Court as to why the Court had directed payment of one lump sum as compensation for the workman.

11. Before we proceed to examine the correctness of the findings recorded by the Writ Court, it is necessary for us to refresh the legal position as regards the scope of interference by a Writ Court against the Award of the Labour Court. The settled legal position being that normally the Writ Court should not interfere with the Award of the Labour Court unless the Award is perverse and illegal. In other words, what is not so perverse or irrational cannot be interfered (Ref. Madurantakam Coop. Sugar Mills Ltd., v. S.Viswanathan, reported in (2005) 3 SCC 193 Para 12; Amrit Vanaspati Co., Ltd., vs. Khem Chand, reported in (2006) 6 SCC 325 Para 9; Seema Ghosh v. Tata Iron & Steel Co., reported in (2006) 7 SCC 722 Para 30; Coimbatore District Central Coop. Bank v. Employees Assn., reported in (2007) 4 SCC 669 Para 30 and Nelton India v. Bipin V.Patel, reported in (2006) 9 SCC 192 Para 9). Therefore, we have to examine as to whether the Award of the Labour Court was perverse or so irrational for the Court to interfere with the same.

12. The exercise of jurisdiction by the Writ Court under Article 226 of the Constitution of India is not a jurisdiction to act as an Appellate Authority over the findings of the Labour Court, but to examine as to whether there is perversity, irrationality or any serious error thereby rendering the Award illegal.

13. The learned counsel appearing for the appellant contended that the Labour Court on a proper appreciation of oral and documentary evidence available before it came to the conclusion that the action of the first respondent - University in denying employment is illegal as no notice-pay was paid to the appellant and therefore, there is violation of Section 25 of the Act. At this juncture, it would be worthwhile to extract the findings recorded by the Labour Court in Paragraph Nos.9 and 10:

'TAMIL'

14. The learned counsel appearing for the appellant has drawn the attention of this Court to the exhibits, which were taken note of by the Labour Court. As observed by us earlier, we cannot convert ourselves as an Appellate Court over the findings of the fact recorded by the Labour Court in the absence of any perversity. However, to assess as to whether there has been proper consideration of the materials, we may refer to few of the exhibits, which were marked before the Labour Court by the Management and in particular Ex.M4, which is a note-file, which records the opinion of the Government Pleader, who has recommended for termination of the workman on the ground that his continuation in service will affect the case, which is pending before the Court instituted by other employees as there is a likelihood of the appellant giving similar evidence in future also. Ex.M5 is also a notefile, wherein the Officer of the first respondent / University has recorded that the appellant has to be sent out and whatever may be consequences, the University has to face. Thus, it is evident that the discharge of the appellant from service was punitive and therefore, it was mandatory on the part of the first respondent / University to issue a notice to the appellant before the order of termination could be passed.

15. In that view of the matter, we do not agree with the learned Single Bench especially with the reason given in Paragraph No.10 to allow the writ petition and set aside the Award. Further, it is to be noted that the appellant had prayed for an award of reinstatement in service with full backwages and continuity of service and did not pray for regularization and following the decision of the Honourable Supreme Court in the case of Ramesh Kumar v. State of Haryana, reported in (2010) 2 SCC 543, the Labour Court did not fall in error in passing an Award of reinstatement with continuity of service and backwages. This decision in the case of Ramesh Kumar (supra) being a recent decision than the decision relied on by the learned counsel for the first respondent / University in the case of Uttaranchal Development Corporation vs. M.C.Joshi, reported in 2007 (3) LLN 51, we are inclined to follow the decision in Ramesh Kumar (supra). In fact the decision in the case of M.C.Joshi (supra) was on the principle a

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s to whether full backwages would be granted automatically only because it would be lawful to do so and the Honourable Supreme Court pointed out that for the said purpose several factors are required to be taken into consideration, one of them being as to whether the appointment has been made in accordance with the statutory rules. 16. Thus, for all the above reasons, we are of the considered view that the Writ Court ought not to have set aside the Award passed by the Labour Court, which was rendered after appreciation of the oral and documentary evidence placed before it. The Writ Court has not recorded any finding that the approach of the Labour Court was irrational or perverse. In such circumstances, the Writ Court should not have interfered with the Award passed by the Labour Court. 17. In the result, the writ appeal is allowed and the impugned order, dated 10.06.2015, made in W.P.(MD) No.3167 of 2011, is set aside and the writ petition is dismissed and the Award of the Labour Court is restored and the first respondent / University is directed to implement the Award of the Labour Court within a period of thirty days from the date of receipt of a copy of this Judgment. No costs.
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