Vinod K. Sharma, J.@mdashThis judgment shall dispose of W.P. Nos. 1856, 1857, 3787 of 2008 and 12578 of 2010, as the common question of law and facts are involved.
W.P. No. 1856 of 2008:
The Management of Wavin India Ltd. has invoked the extraordinary jurisdiction of this Court to challenge the award passed by the Principal Labour Court, Chennai in I.D. Nos. 195 to 200, 240, 241 and 701 to 703 of 1990. W.P. No. 3787 of 2008:
14 workmen of M/s. Wavin India Ltd. have also challenged the same award passed in I.D. Nos. 196, 197, 199, 701, 708, 710, 711 & 713 of 1990.
W.P. No. 1857 of 2008:
2. This writ petition has also been filed by the Management of Wavin India Ltd. to challenge the interim order passed by the learned Labour Court in refusing the application for physical inspection.
W.P. No. 12578 of 2010:
3. This writ petition has been fried by the legal representatives of the deceased-workmen late M. Loganesan challenging the same award.
4. The workers of M/s. Wavin India Ltd. raised a industrial dispute against the management praying for reinstatement with continuity of service, back wages and other attendant benefits.
5. The dispute raised by the workmen was disposed of by two common awards. These were challenged in W.P. Nos. 3555, 3556 of 1998, 5684 to 5690 of 1998 and 5711 to 5722 of 1998. This Court quashed the awards and remitted back the case to the learned Labour Court for fresh consideration after giving opportunity of hearing to the parties with permission to lead further evidence.
6. The operative part of the judgment of this Court reads as under:
28. On a perusal of the award of the Labour Court, this Court is unable to find a specific finding excepting the conclusion that the workers are entitled to be reinstated with backwages and continuity of service. Neither a finding has been recorded on the issue whether it is a case of closure ? Whether the closure pleaded is true and valid ? Whether it is a case of retrenchment? Or whether there is illegal termination ? Or Whether the factory had revived its operation within two years from the date of alleged closure? Or Whether the factory under BIFR scheme had started functioning and if so from which date ? All these questions which are material had not been adverted not a finding has been rendered by the Labour Court. Hence the award of the Labour Court cannot be sustained as it had failed to consider and record its findings on the above material issues or points.
29. This Court hasten to add that the evidence let in by either side is wanting in certain respects and further even that the Labour Court also had failed to advert not only material portion of the evidence but also failed to consider some of the admissions in evidence let in by either side.
30. In the circumstances, in view of the illegalities pointed out above, and in the nature of the order which this Court proposes to pass ultimately, it is not expressing any opinion nor it would be proper for this Court to appraise the evidence as if it is a Court of original jurisdiction while exercising the powers of judicial review under Article 226 of the Constitution.
31. The Labour Court is expected to frame proper points that arise for consideration in the dispute raised before it, marshal the facts and evidence and record its conclusions in respect of each one of the points in dispute and thereafter should pass an award. In respect of all the above aspects, there is a total failure on the part of the Labour Court. Further, the Labour Court also had committed an illegality and error apparent on the face of the record in holding that there could be no closure much less a valid closure merely because, certain charter of demands were pending and the parties were dragging their feet for a considerable period. The errors pointed out are apparent on the face of the record and these errors pointed out would show that there has been failure to exercise the jurisdiction vested in the first respondent Labour Court. This Court sitting in Article 226 will not be justified in re-appreciating the evidence and passing a fresh order as it is a Court of original jurisdiction. The ultimate conclusion of the Tribunal being illegal termination, the contention of the Counsel for the petitioner that such a conclusion is perverse and it suffers from obvious and patent errors on the face of the record cannot be brushed aside and deserves to be sustained.
32. The only conclusion or finding arrived at by the Labour Court is based on pre assumption and conjectures and it could be stated that there is no legal evidence to support such a conclusion. It is equally well settled that normally this Court would not interfere with the award of the Labour Court on hypertechnical grounds frustrating the entire adjudication process before the Tribunal and this Court has to exercise the powers of judicial review as far as possible to sustain the award made by the Industrial Tribunal instead of picking holes here and there as has been held by the Apex Court in
33. It is not the case here, as for various reasons pointed out above, the award of the Labour Court not only suffers from any infirmity of error of law apparent on the face of it but also had failed to exercise its jurisdiction vested in it. There are very many errors of law on the face of the record and the findings also borders perversity.
34. It is also fairly stated that the Tribunal had ignored legal evidence available on record and had picked up portions of evidence and this warrants interference. The ultimate conclusion is also contrary to evidence. There is no legal evidence to support such a conclusion and no reasons, have been assigned in support of the ultimate conclusion or finding.
35. In the circumstances, there is no other alternative except to quash the award of the first respondent-Labour Court and remit the matter back to the Labour Court for fresh consideration while giving liberty to either parties to let in evidence such further or other evidence, which they may choose. It is needless to add that the Labour Court shall frame the appropriate points for consideration and also record its finding with respect to the material issues when there is controversy on a particular points between the parties to the dispute.
7. The learned Labour Court proceeded to answer the following issues:
(1) Whether it is a case of closure ?
(2) Whether the closure pleaded is true and valid ?
(3) Whether it is a case of retrenchment ? Or whether there is illegal termination ?
(4) Whether the factory had revived its operation within two years from the date of alleged closure ?
(5) Whether the factory under BIFR Scheme had started functioning and if so from which date ?
8. In pursuance to the directions issued by this Court, both parties were permitted to lead evidence in LD. No. 195/90. In addition to witnesses already examined, W.W.4 and M.W.2 were examined and Ex. W.31 to W.36 and Ex. C.1 and C.2 were also marked in addition to the documents already marked.
9. In I.D. No. 701/90, W.W.1 was recalled and further examined in addition three more witnesses were examined. Ex. W.8 to W.23 were also marked.
10. It was the stand of the workmen that they had entered into service in the year 1975 to 1978 and were working as Supervisor, Security Guard, Management Assistant, Helper, Charge Hand, Class I Worker, Class II Worker, Class III Worker, etc. and their last drawn salary varied from Rs. 1048/- to 1613.75 per month. The management declared illegal lockout on 3.3.1988 as the petitioners were representing the legitimate grievances of the workmen including those workmen who were victimised by the management on account of illegal lockout.
11. It was submitted that when the petitioners reported for duty on 17.12.1988, they were not permitted to do their work by stating that the factory was closed from 17.12.1988. It was pleaded by the workmen that denial of work to the petitioners amounted to retrenchment from service.
12. It was also the case of the workmen that before retrenchment, neither charge sheet was issued nor domestic enquiry held nor the retrenchment compensation was paid to them, therefore, it was claimed that the retrenchment was unjust, improper and illegal.
13. In counter, the management questioned the reference being not maintainable. The stand of the management was that it was not a case of retrenchment of the petitioners, as the factory was closed after due notice. It was the workmen who had started a stay-in-strike from 3.3.1988 and prevented the material movement and damaged the machineries with a view to cripple the industry. It was also stated that industrial dispute with regard to illegal strike was already pending.
14. The stand of the management was that provisions of Industrial Dispute Act was complied with before closing the industry on 17.12.1988, and the compensation payable was sent to all the workmen including the petitioners. Thus, stand of the management was that there was no question of issuance of any charge sheet, enquiry or to claim violation of principles of natural justice. Furthermore, neither the Union nor the workmen raised any dispute with regard to the closure of the factory, in absence thereof, no reference against alleged retrenchment was competent.
15. It was also the case of the management that the company was declared as sick industry by the Government, whereas it was by B.I.F.R.
16. The stand of the workmen was that the plea of closure on 17.12.1988 was false, as the industry was running and that the case for retrenchment was pending before BIFR. It was stated that the management recruited new workmen to work in the place of the petitioners.
17. On the pleadings of the parties, the learned Labour Court framed the following points for consideration:
Points for determination are:
(1) Whether it is a case of closure and whether closure pleaded is true and valid?
(2) Whether it is a case of retrenchment or whether there is illegal termination ?
(3) Whether the factory had revived its operation within two years from the date of alleged closure or whether the factory under B.I.F.R. had started functioning and if so from which date ?
(4) Whether the petitioners are entitled to reinstatement with continuity of service, full backwages and all other attendant benefit ?
18. On the basis of evidence and admitted position, on the point No. 1, the learned Labour Court recorded the finding that the total number of workers in Madras factory was less than 100. The Court also took note of the stand of the management that the petitioners in I.D. No. 195/90 were managerial assistants, but held that there was no evidence in proof of this fact. Therefore, learned Labour Court recorded a finding that workmen in both batches of I.Ds. are workmen as defined u/s 2(s) of the I.D. Act. It was also held that in absence of specific denial in the pleading, the workmen were not expected to adduce evidence to prove that they were workmen. The finding was also recorded that the management was engaged in the manufacture of PVC pipes, and that the workmen were employed in the respondent-factory.
19. In view of the respective stand of the parties, the learned Labour Court referred to section 2(cc) of the I.D. Act which defines,
"Closure" means the permanent closing down of a place of employment or part thereof.
The learned Labour Court also took note of the fact, that the permanent (sic closure) would not mean that under no circumstances, the business could be revived, but it only means that at the time of closure, the employer had unequivocal intention to permanently and irrevocably close down the business.
20. The learned Labour Court considered the documentary evidence and took note of the fact that the management had issued a statutory notice of closure informing that the factory would be closed on 17.12.1988. The notice was also sent to the State Government. It was also proved on record that the Government had refused to refer the charter of demands in view of the fact that the industry itself was closed down, but the Labour Court held that the documentary evidence led by the workmen showed that proceedings were pending before the BIFR in 199C. In the BIFR proceedings, it was pleaded by the management that the Madras factory was functioning therefore rehabilitation scheme was presented before the BIFR. The documentary evidence was produced on record to show that the stand taken by the Management before the BIFR.
21. The learned Labour Court therefore on consideration of the oral and documentary evidence on record, did not accept the version of the management that it was a case of ''closure''. The point No. 1 was decided in favour of the workmen.
22. On point No. 2, the learned Labour Court in view of the stand of the management itself that notice was issued to the workmen to collect the retrenchment benefits, held that there was no compliance of section 25F of the Industrial Disputes Act. This conclusion was arrived at by the learned Labour Court in view of the findings on point No. 1, where it was held that the factory was not closed. In case of finding on point No. 1 is accepted, then certainly offer of payment of compensation in compliance of section 25FFF of the I.D. Act could not justify retrenchment, as it proves non compliance of section 25F as the retrenchment compensation was not paid along with the notice.
23. On Issue No. 3, on the basis of the documentary evidence showing the sanctioning of scheme by BIFR on 22.3.1994, it was held that factory had revived its-operation from April, 1989.
24. On issue No. 4, in view of the facts and circumstances of the case, the learned Labour Court held that it was case to award lumpsum compensation in lieu of reinstatement.
25. The workmen in W.P. No. 3787/2008 challenged the award only on the ground that though the learned Labour Court held that retrenchment was bad in law and the factory stood revived, it wrongly ordered lumpsum compensation, instead of reinstatement with continuity of service.
26. The learned Counsel for the workmen however admitted that the factory stands closed subsequently.
27. The contention of the learned Counsel for the workmen was that the learned Labour Court failed to quantify the compensation to be paid, in absence of which the award is incomplete, which deserves to be modified by this Court.
28. The learned Counsel for the management also contended that the award passed by the learned Labour Court is incomplete as the learned Labour Court failed to answer the question, with regard to maintainability of the Reference.
29. The contention of the learned Counsel for the management was that once it was proved on record that the factory was closed by following due process of law, and this fact was taken note of by the Government in declining reference, the Labour Court ought to have held that the reference was not competent as the closure of unit was not under challenge.
30. This contention of the learned Counsel for Management cannot be accepted as the learned Labour Court on appreciation of evidence, has recorded a positive finding that the factory was not closed in view of the stand of the management before the B.I.F.R. that the company was capable of being revived and in fact the scheme was also framed for revival, therefore, this finding is based on documentary evidence.
31. This Court does not sit in appeal over the finding of the learned Labour Court unless and until the findings are totally perverse or is not capable of being arrived at on appreciation of evidence. Merely because other view is also possible cannot be a ground to set aside the finding of the learned Labour Court.
32. The learned Counsel for the management also vehemently contended, that the learned Labour Court wrongly held that the reference to be maintainable on behalf of the workers, though the workmen in I.D. No. 195/90 batch were not workmen, as they were managerial assistants by wrongly placing onus of proof on the management.
33. The contention of the learned Counsel for the management was, that it was for the workmen to prove that they were workmen by leading positive evidence, and it was not for the management to prove the negative. In support of this contention, the learned Counsel for the management placed reliance on the judgment of the Hon''ble Supreme Court in
36. A ''workman'' within the meaning of section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprenticeship Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute.
37. In case any person raises a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman.
34. The reliance was also placed on the judgment of the Hon''ble Supreme Court in
35. There can be no dispute with the law laid down by the Hon''ble Supreme Court that the onus of proof is on the persons who claims to be workman. In this case, the stand of the workmen was that Supervisor was drawing less than Rs. 1500/- per month. This fact was not disputed in the counter. Therefore, it was not necessary for the workmen to prove this fact, as admitted fact was not to be proved. It was the assertion of Management that workmen in I.D. No. 195/90 were managerial assistants, as this, fact was asserted by the management therefore the learned Labour Court rightly held that it was for management to prove this fact, which management failed to prove.
36. The learned Labour Court rightly held that this fact was required to be proved by the management. The judgments relied upon by the learned Counsel for the management, do not apply to the facts of the present case.
37. The learned Counsel for the management also contended, that the learned Labour Court was wrong in holding that workmen were entitled to lumpsum compensation and that the order of retrenchment was bad, as it was for the workmen to plead that they were unemployed from termination of service till passing of the award to claim back wages, having not done so, the workmen were not entitled to compensation as claimed nor was entitled to wages.
38. In support of this contention, management placed reliance on the judgment of the Hon''ble Delhi High Court in
39. Reliance was also placed on the judgment of the Hon''ble Supreme Court in
40. On consideration, I find that the impugned award deserves to be remitted back to the learned Labour Court to determine the compensation to which each workman would be entitled to, in view of the fact that it has been brought to the notice of this Court that some of the workmen had died during pendency of proceedings before the learned Labour Court and their legal heirs were not brought on record therefore, Reference qua them stood abated.
41. Though this Court could go into the question and determine as to what compensation could be awarded to the workmen, but keeping in view the admission of the workmen that factory was finally closed, it would be for the Labour Court to decide this question afresh after permitting the management and workmen to prove that whether the workmen were employed during the relevant period and also to work out compensation which they are held entitled to, in lieu of their reinstatement.
42. W.P. No. 12578 of 2010 has been filed by the legal heirs of late M. Loganesan to challenge the award to claim compensation. At the time of argument, the learned Counsel for the petitioners did not dispute the fact that the workman had died during pendency of proceedings before the learned Labour Court therefore, reference stood abated and the award passed in the case of the deceased M. Loganesan can be safely said to be void, having been passed in favour of the dead workmen.
43. However, in view of the fact that the matter is being remitted back to the learned Labour Court, it shall be open to the petitioners in W.P. No. 12578 of 2010 to move the learned Labour Court for setting aside the abatement and permit the petitioners to be impleaded as legal representatives of the deceased M. Loganesan.
44. This direction will also applicable to other workmen who had died during pendency of proceedings before the learned Labour Court and this Court.
45. The learned Counsel for the management was allowed to challenge the award also on the ground that the learned Labour Court had failed to exercise jurisdiction u/s 11(a) of the I.D. Act.
46. The contention of the learned Counsel for the management was that in view of section 11(a) of the I.D. Act, it was obligatory on the part of the learned Labour Court to have inspected the premises to find out about the closure of the factory. This contention of the learned Counsel for the management cannot be accepted. Reading of section 11(a) of the I.D. Act shows that discretion is with the learned Labour Court to inspect the premises, if so desired. This however, gives no right to workmen to ask the learned Labour Court to go for inspection. It is only in case where the learned Court finds that evidence on record is not sufficient to record a finding, then on its discretion, the learned Labour Court can inspect the factory.
47. The remedy with the workmen was to lead adequate evidence to prove closure, but the management had no right to seek inspection of the premises by the learned Labour Court. The order rejecting the request of the management to go for inspection, therefore cannot be said to be bad in law or can be said to have caused prejudice to the management, to challenge the award. For the reasons stated, W.P. No. 1857 of 2008 and W.P. No. 12578 of 2010 are ordered to be dismissed as not competent. Whereas W.P. No. 1856 of 2008 and W.P. No. 3787 of 2008 are disposed of, by remitting the case back to the learned Labour Court to determine the quantum of compensation payable to each workmen by letting the parties to lead evidence with regard to their employment if any, during the relevant period.
Consequently, connected miscellaneous petitions are closed.
No cost.
