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Best and Company Private Limited Vs. the Presiding Officer, Labour Court, (Additional) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1974)2MLJ331
AppellantBest and Company Private Limited
RespondentThe Presiding Officer, Labour Court, (Additional) and ors.
Cases ReferredShanmugham v. Presiding Officer
Excerpt:
- .....even questioned such a power in the labour court in view of the language of rule 55 of the madras industrial disputes rules. subsequently, raman and karunakaran (respondents 2 and 3 herein) prayed for permission to amend the prayer in the petition, in la. no. 682 of 1971, for correcting the error, instead of amending the award. the petitioner reiterated his stand that rule 55 of the madras industrial disputes rules, would not warrant such an amendment. the counter and the additional counter filed by the petitioner are dated 10th december, 1971 and 3rd january, 1972, respectively. the labour court finally passed the order correcting the prior award in i.d. no. 140 of 1968 by adding the clause that the respondents 2 and 3 herein thiru raman and karunakaran would be entitled to an.....
Judgment:
ORDER

K. N. Mudaliyar, J.

1. This writ petition filed by the petitioner is directed against the order of the Labour Court, Madras, dated 1st February, 1972 passed in LA. No. 608 of 1971 in I.D. No. 140 of 1968.

2. A brief recital of facts leading to the present writ petition would be helpful for a proper conclusion in this matter. One Murugesan was dismissed by the petitioner on 23rd May, 1968. All the other workmen in the employment of the petitioner struck work from 23rd May, 1968 protesting against the dismissal of Murugesan. Although the strike was illegal in view of the pendency of I.D. No. 60 of 1967 on the file of the Labour Court, Madras, and I.D. No. 64 of 1967 on the file of the Industrial Tribunal, Madras, it continued. On 29th June, 1968 the question relating to the dismissal of Murugesan was referred for industrial adjudication to the Labour Court, Madras. Even subsequently, the strike was not called off. On the contrary, the workmen continued the strike. The petitioner published in the various dailies in the City a notice that if they did not report to duty, their services would be terminated. There was a settlement (Exhibit M-22) under Section 12 (3) of the Industrial Disputes Act before the Special Deputy Commissioner of Labour, reserving the case of 84 workmen mentioned in the Annexure to the, settlement for being proceeded under the Industrial Disputes Act. The workmen, who had already reported by then, were taken, back to employment. The others were given time to report to duty till 3rd October, 1968, On 4th October, 1968, there was an order of reference for adjudication regarding 84 persons, in I.D. No. 140 of 1968, before the Labour Court, Madras. During the pendency of the proceedings before the Labour Court, Madras, 80 but of 84 persons settled their accounts with the Management, and did not press for reinstatement. Only the remaining four agitated for their reliefs before the Labour Court. On 29th November, 1969, the Labour Court gave the award in I.D: No. 140 of 1968. At this stage, it would be relevant to set down below the operative part of the award:

For all these reasons, I hold that the non-employment of the 4 workmen, namely,' Raman, Krishnan, Thiru-vengadam and Karunakaran is not justified. In the matter of back wages, I find that the other workers who had been taken back were not given wages for the. period of strike. They had been directed to report for work not later than 3rd October, 1968. Therefore, the other workers would have got their pay from the date of the joining duty after 27th September, 1968. Back-wages must therefore be allowed to these 4 workers also from a date after 27th February, 1968 the date of Exhibit D-22 and prior to 3rd October, 1968. Therefore backwages is awarded to these 4 workers from 1st October, 1968. The non-employment of the remaining 80 workmen does not arise for consideration as they had since settled their claims with the management. For all these reasons, I hold under this issue that the non-employment of the 4 workers, namely, Raman, Krishnan, Thiruvengadam and Karunakaran is not justified and that they are entitled to backwages from 1st October, 1968, An award is passed accordingly. No costs.

The petitioner questioned the propriety or legality of the award, dated 29th November, 1969, M/s. Best and Company (Private) Limited v. Presiding Officer, Labour Court, Madras and Anr. W.P. No. 136 of 1970, on the file of this Court. Palaniswamy, J., held as follows:

Though the Labour Court found that the non-employment was not justified, it did not give any reasons for not giving a direction to reinstatement. It merely stated that the workmen were entitled to backwages from 1st October, 1968; when this was mentioned in the course of the arguments it was almost surprising to Mr. Ramaswami, learned Counsel for the second respondent union. He pointed out that after the award was passed, a letter was written to the petitioner management by the four workmen stating that in view of the award, they should be reinstated and that the petitioner management replied stating that in view of the writ petition, the request could not be complied with. He submitted that having regard to that reply it was taken that the award in fact had directed reinstatement and that having regard to the filing of the writ petition the workmen did not pursue the matter further. Mr. Narayanaswami appearing for the petitioner management contended that the workmen should have moved the Labour Court for amendment of the award and that not having done so, the award should be taken as it is. I do not wish to say anything on this controversy which may prejudice the rights of the workmen or the petitioner-management in regard to whatever proceeding may be taken for amendment of the award. I find that the conclusion of the Labour Court that the non-employment of the four workmen was not justified, is correct. In this view, the writ petition is dismissed. No order as to costs.

From the foregoing discussion, it is patently clear that Palaniswamy, J., gave the finding that the conclusion of the Labour Court that the non-employment of the four workmen was not justified, is correct. My learned brother (Palaniswamy, J.) also made mention of the contention of the Counsel for the petitioner that the workmen should have moved the Labour Court for amendment of the award. But no opinion was expressed by my learned brother on the subject-matter of the controversy. The respondents 2 and 3 (K. Raman and Karunakaran) filed an application I.A. No. 608 of 1971 in I.D. No, 140 of 1968 praying for amending the award in I.D. No. 140 of 1968, dated 29th November, 1969, seeking for reinstatement. The petitioner herein filed a counter before the Labour Court on 10th December, 1971 questioning the position taken by the respondents 2 and 3 herein that when once the non-employment of the respondents 2 and 3 was not justified, it would automatically follow that the workmen should be deemed to be in service, and that they are entitled to reinstatement. The petitioner even questioned such a power in the Labour Court in view of the language of Rule 55 of the Madras Industrial Disputes Rules. Subsequently, Raman and Karunakaran (respondents 2 and 3 herein) prayed for permission to amend the prayer in the petition, in LA. No. 682 of 1971, for correcting the error, instead of amending the award. The petitioner reiterated his stand that Rule 55 of the Madras Industrial Disputes Rules, would not warrant such an amendment. The counter and the additional counter filed by the petitioner are dated 10th December, 1971 and 3rd January, 1972, respectively. The Labour Court finally passed the order correcting the prior award in I.D. No. 140 of 1968 by adding the clause that the respondents 2 and 3 herein Thiru Raman and Karunakaran would be entitled to an order of reinstatement apart from .the other reliefs mentioned in the award, dated 29th November, 1969. The present writ petition is directed with a prayer for quashing the order of the Labour Court, dated 1st February, 1972.

Mr. M. R. Narayanaswami, the learned Counsel for the petitioner, raised two arguments. Firstly, his argument is that it is only a clerical error that can be corrected under Rule 55 of the Madras Industrial Disputes Rules, that the granting of the relief of reinstatement does not necessarily follow the finding of illegal dismissal, and that too automatically, that although the normal rule is reinstatement, in the wake of the finding of illegal dismissal, it cannot be applied to the facts of this case in respect of the two respondents, that the phrase ' back-wages ' found in the operative part of the award, dated 29th November, 1969 would be equated with or computed in terms of (monetary) compensation, and that the definiteness of the amount of compensation can be arrived at by quantifying the wages with effect from 1st October, 1968. In support of this argument, the learned Counsel relied on the rationale found in the judgment of the Supreme Court of India in Hindustan Steels v. : (1970)ILLJ228SC . He relied on a catena of cases found in paragraph 10 of the Judgment of the Supreme Court, wherein an exception was made to the general rule of reinstatement. I am afraid I am unable to see any merit in this argument. The very judgment of the Supreme Court, on which the learned Counsel relied, mentions reinstatement as the general rule. Should there be any exception, it is for the petitioner to prove the fact of strained relations between the employer and the employee or where the employee holds a position of trust and confidence, to prove that it has been betrayed by the workman by acts of malfeasance and misfeasance or otherwise, or prove any other activity on the part of the workmen (respondents 2 and 3), which would be prejudicial either to the industrial harmony or to the Industrial production. I asked the learned Counsel for the petitioner whether there was any material in proof of any of these overt acts of respondents 2 and 3 that was adduced by the management (petitioner) before the Labour Court. Nothing was shown to me. I again asked the learned Counsel to show me at least an averment, if not evidence, in support of any strained relationship between the employer and the employee, whose reinstatement is likely to endanger or imperil industrial peace or production. Nothing was shown even by way of an averment. On the contrary, the learned Counsel for the workmen placed strong reliance on a certain portion of the award of the Labour Court, which runs as follows:

The negotiations had culminated in the memorandum of Exhibit M-22, dated 27th September, 1968. The records in this case do not disclose that any particular reason was advanced by the management for insisting on the dismissal of these 84 workmen from out of the 668 workers. With the records and evidence available in this case one must proceed on the basis that all these 669 workers in the employment of the management concern participated in the strike. At no stage of the dispute the management ever pleaded that the 84 workmen had indulged in violence or obstructed the loyal workers from attending to work. My attention was not drawn to any aggravating circumstances in the case of the 84 workmen. In short, the management did not endeavour to show that there was any rational basis for insisting on the dismissal of the 84 workmen alone. I must reiterate that the management had not sought to justify the discrimination on any tenable grounds even in this Court.

To the mind of the Labour Court, this aspect of the matter was present, and the Labour Court gave a categorical finding that at no stage of the dispute the management ever pleaded that the 84 workmen (including the two respondents herein) had indulged in violence or obstructed the loyal workmen from attending to work. Therefore, I am bound to proceed on the footing, particularly, in the absence of any proof of any overt act of any disturbance of industrial peace or production by the respondents 2 and 3, that the normal rule of reinstatement, which is laid down by the Supreme Court in paragraph 9 of its judgment in Hindustan Steels v. : (1970)ILLJ228SC , must be followed. If that be the position in the eye of law, the next question that falls for consideration is whether Rule 55 of the Madras Industrial Disputes Rules, vests the Labour Court with the power to amend its prior award, or, in other words, whether the Labour Court has got the concomitant and consequential power of granting the relief of reinstatement with backwages. The concept of backwages, is, in my view, inseparably linked with reinstatement. You do not give to the employee backwages in terms of compensation. One gives compensation to the employee when he severs his connection with the employer or when his reinstatement is found to be neither expedient nor desirable. To my mind, back wages cannot march with the phrase ' monetary compensation '. The very concept carries with it the incidence of reinstatement: divorced from the idea of reinstatement, 'back wages' would be a phrase without a meaning.

3. I set down here Rule 55 of the MadraIndustrial Disputes Rules:

A Labour Court or Tribunal or an Arbitrator may correct any clerical mistake or error arising from an accidental slip or omission in any award or order. Any such correction in relation to any award, if made after the award is published, shall also be published in the same manner as the original award.

I would rely on the significant clause which runs as follows:

error arising from an accidental slip or omission in any award or order.

The Labour Court found the dismissal of the two respondents as unjustified. This finding of the Labour Court has been affirmed by Palaniswamy, J., in M/s. Best and Company (Private) Limited v. Presiding Officer, Labour Court, Madras and Anr. W.P. No. 136 of 1970. Mr. Narayanaswami, the learned Counsel for the petitioner, fairly told the Court that he cannot go behind this finding, and question the propriety of the same, at the very commencement of his argument. Acting on his finding, the only other question is whether the non-mention of a direction for reinstatement of the respondents 2 and 3 is an accidental slip or omission in the award or order. In my view, it is so undoubtedly, for the Labour Court awarded back-wages with effect from 1st October, 1968 without placing any limitation about the last date upto which it must be computed in terms of money. The argument of Mr. Narayanaswami, in my view, suffers from this infirmity. Even assuming for one moment that it is the quantification of backwages (which may be equated with compensation) with which the Labour Court was concerned, particularly in the background of other 80 workers who got the settlement from the management, any quantification of backwages, in my view, muts be from a certain date to a certain date. But the Labour Court has not given the last date upto which the quantification could be made. This would be another factor, which would Strongly weigh with this Court in finding that the absence of a direction for reinstatement is only an accidental slip or omission in the original award.

4. Section 152, Civil Procedure Code, Rule 55 of the Madras Industrial Disputes Act and Section 66 of the United Provinces Industrial Disputes Act, 1947, on a comparison of the language employed in them, are in pari materia. A similar language is employed in all these three enactments. The learned Counsel for respondents 2 and 3 relied on a passage, which is extracted here below, from the judgment of the Supreme Court in Tulsipur Sugar Company v. State of Uttar Pradesh : (1969)IILLJ662SC

Laying down by implication the time limit during which the correctional jurisdiction under Section 6 (6) can be exercised upto the time of the award becoming final under Section 6 (5) or becoming enforceable under Section 6-A creates difficulties, besides, it would appear, being contrary to the provisions of these two sections and is therefore not commendable. The correctional jurisdiction conferred on the adjudicating authority under Section 6 (6) is in terms identical with the one conferred under Section 152 of the Code of Civil Procedure and Rule 28 of the Industrial Disputes (Central) Rules, 1957, and is in consonance with the first and foremost principle that no party should suffer any detriment on account of a mistake or an error committed by an adjudicating authority. The circumstance that the proceedings before a Labour Court and a Tribunal are deemed to be concluded under Section 6-D when their award becomes enforceable or that thereupon they become Junctus officio would also be no ground for inferring any limitation of time in Section 6 (6), for, that would also be the case in the case of a civil Court or an adjudicating authority, under the Industrial Disputes Act, 1947, even without a provision like Section 6-D and yet the Legislature has not chosen in the case of either of them to lay down any limitation of time for exercising its correctional jurisdiction. In our view, there are no compelling reasons to read into Section 6 (6) any such limitation by implication.

5. Mr. Ramaswami, argued that the two respondents ought not to suffer any detriment on account of a mistake or error committed by the Labour Court. His argument further ran as follows: It is only the correctional jurisdiction that the Labour Court has exercised, and in the circumstances of the case, the Labour Court was justified in, doing so. In view of the rationale found in the judgment of the Supreme Court, I have no hesitation in accepting the argument that the Labour Court very properly exercised its correctional jurisdiction, and, more so, in my view, in the interests of justice.

6. The learned Counsel for the petitioner argued that the order in M/s. Best and Company (Private) Limited v. Presiding Officer, Labour Court, Madras and Anr. W.P. No. 136 of 1970, was delivered by the High Court on 2nd April, 1971, but the two respondents have chosen to move the Labour Court for amending the award only in the month of September, 1971; this long delay would constitute laches on the part of the workmen, and they are not entitled to any discretionary relief in terms of Rule 55 of the Madras Industrial Disputes Rules. The petitioner did not raise any objection as to delay before the Labour Court at any time. I do not find any provision for limitation of time for exercising the correctional jurisdiction of the Labour Court. The Legislature has not provided for such an eventuality. In the absence of such a provision, Courts cannot place an embargo on the right of the workman to approach the Labour Courts for correcting any error arising from an accidental slip or omission in any award or order. Should the Courts embark on such a task, there will not be any uniformity in laying down the law of limitation for each Judge may conceive of a certain period of time to be bar of limitation. When the Legislature has not chosen to do so, Courts cannot embark on an implied judicial legislation towards such an end.

7. The learned Counsel for the respondents 2 and 3, relied on the rationale found in the judgment of Veeraswami, J., (as he then was), reported in Shanmugham v. Presiding Officer, Labour Court, Madras, which lays down:

When the Labour Court found that the dismissal was improper and that it so declared, the effect of it was that the petitioner should be deemed to have continued in service.

Relying on this proposition, the learned Counsel contended that these two respondents are deemed to have continued in service, and, therefore, they are entitled to reinstatement with the inevitable corollary of backwages awarded already by the Labour Court to them, and, therefore, the reinstatement is only a natural consequence of the finding of the Labour Court, which held that the dismissal of the two respondents is unjustified, -- a finding affirmed by the High Court.

8. The writ petition is dismissed with costs.


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