(PRAYER IN W.P.17025 OF 1998: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records of the first respondent made in his I.D.No.1/94 dated 31st March 1998 and quash the same.
PRAYER IN W.P.19718 OF 1998: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified mandamus to call for the records of the first respondent and quash the order in I.D.No.1/94 dated 31st March 1998 and quash the same and direct the second respondent to reinstate the petitioner in his original employment with back wages, continuity of service and other attendant benefits and also award compensation of Rs.1,00,000/-.)
The first writ petition is filed by the Management of Swadeshi Cotton Mills, represented by its General Manager. The second writ petition is filed by Thulukkanam, a workman of the said Management. In the two writ petitions, the parties were referred to respectively as the Management and the workman wherever it is necessary.
2. Both the writ petitions are filed against the Award of the first respondent Labour Court made in I.D.No.1 of 1994 dated 31.03.1998. While the Management was aggrieved about the direction granted regarding payment of retrenchment compensation, terminal benefits including gratuity as well as compensation together with interest, the workman was aggrieved about the relief being denied with reference to reinstatement.
3. At the time of admission, this Court granted interim stay and subsequently the said order came to be made absolute by order dated 27.12.2002.
4. Heard the arguments of Mr.R.Parthiban for the Management and Mr.G.Jayachandran for the workman.
5. Mr.R.Parthiban, learned counsel for the petitioner contended that the workman was a chronic absentee and his name was removed from the rolls on an earlier occasion and he raised a dispute before the Labour Officer. Before the Labour Officer, a settlement under Section 12(3) of the Industrial Disputes Act was entered into and under term 3 of settlement, the workman was directed to be restored to duty and he was required to work for a minimum period of 240 days in one year and if he fails to put in physical attendance of 240 days for any reason, he will be liable to be removed from service without any notice thereof.
6. Since the workman who had already worked for more than 20 years has given up his service, by the said settlement, even after reinstatement the workman continued to show absenteeism and he had remained absent. Accordingly, his name was removed by taking recourse to clause 15(a) of the certified Standing Orders applicable to the Mills and therefore, in the light of the said Settlement under Section 12(3) of the Industrial Dispute Act, he is not eligible for any relief as he had failed to keep his promise of working 240 days in one year.
7. However, the stand of the workman was that he was ill and due to his illness he was hospitalised and his hospitalisation is borne out by the certificate issued by ESI but yet the management had removed his name from the rolls. It was also contended that removal of name by the Management by taking recourse to clause 15(a) of the Certified Standing Orders is impermissible. In any event, such an action will amount to violation of principles of natural justice.
8. Learned counsel for the first respondent took the Labour Court to various judgments starting from the case of B and C Mills vs. Venkatiah (1963 25 F.J.R.25) till the Indian Oxygen Employees' Union vs State of Tamil Nadu (1992 I LLJ 583 (DB) Madras HC). However, per contra, on the side of the workman the Labour Court referred and followed the judgment of the Supreme Court rendered in D.K.Yadav vs. J.M.A. Industries Ltd. reported in 1993 (II) LLJ 575). In the D.K.Yadav's case, the Supreme Court has held that even if standing orders provide for automatic removal of the name from the rolls for unauthorised absence, the principles of natural justice should be observed and the workman should be given an opportunity of being heard before removal of his name from the Rolls. The Supreme Court read into such a clause of the standing order to follow the principles of natural justice so as to save its vires otherwise it may be hit by Articles 14 and 21 of the Constitution. Therefore, there cannot be any exception to the stand taken by the Labour Court in holding that the removal of name of the workman from the rolls will amount to retrenchment within the meaning of Section 2(oo) of the Act.
9. The Labour Court placing reliance on the decision of the Supreme Court and held that the action of the employer would amount to retrenchment and thereby directed payment of gratuity, retrenchment compensation under Section 25F of I.D. Act as well as payment of Rs.25,000/- as compensation for the unjust non-employment together with 12% interest.
10. Mr.R.Parthiban, submitted that even assuming that there was a retrenchment, the question of payment of gratuity does not arise because the workman was reinstated by 12(3) settlement dated 28.06.1988 and therefore he has foregone his service period. Assuming that the settlement was binding between the parties, the same cannot stand in the way of workman claiming gratuity since such settlement will be hit by section 14 of the payment of Gratuity Act, 1972. There was nothing wrong in giving direction to the Management to pay gratuity.
11. With reference to 12(3) settlement itself, it must be stated that the said settlement is said to have been arrived after protracted discussion between the Management and the workman. There is nothing in the said document to indicate that the Conciliation Officer had induced the parties to arrive at a settlement and that he was satisfied about the fairness and reasonableness of the said settlement. In any event, that does not arise for consideration except for the fact that by the said settlement it can be understood that for all times to come, even under a second innings, the workman can be terminated and principles of natural justice can be given a go by if he was found again absenting himself.
12. There is no illegality or irregularity in the Award of the Labour Court. This Court exercising power under Article 226 is not persuaded to take a different view than that of the Labour Court. Even though the workman had filed a separate writ petition challenging that portion of the Award declining reinstatement, it is now brought to the notice that the Mill itself is closed. Even otherwise the conduct of the workman is not admirable. It was due to the terms of settlement he was restored to duty and the Labour Court under the peculiar facts and circumstance
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s can also mould the relief and need not grant reinstatement even if the action was held to be in violation of section 25F of the I.D. Act. 13. Since the Award in I.D.No.1 of 1994 dated 31.03.1998 is confirmed, the Management of Swadeshi Mill is directed to comply with the Award within a period of eight weeks from the date of receipt of a copy of this order. 14. Now it is brought to the notice of this Court that the workman Mr.Tulukkanam is no more. Instead of driving the parties to further proceedings, the petitioner Mill is hereby directed to pay all the dues to the legal heirs of the said Tulukkanam, provided they produce bonafide proof that they are the legal heirs. Accordingly, these writ petitions are dismissed. No costs.