@JUDGMENTTAG-ORDER
S. Manikumar, J.@mdashTamilnadu Fisheries Development Corporation Limited represented by the Managing Director has challenged the award
dated 29.4.2005 passed in I.D. No. 79 of 2002 and the order passed in I.A. No. 105 of 2005, dated 6.12.2005 reviewing the award, made in
the above said I.D.
2. The facts of the case are as follows:
The second Respondent was an employee of the Department of Fisheries. As per the proceedings of the Assistant Director of Fisheries,
Mandapam Camp, the second Respondent was appointed as a General worker in Fisheries Department, at Fish Meal Plant, Mandapam. His
services were regularized with effect from 6.5.1970. The above said Fish Meal Plant was under the control of Department of the Fisheries. The
second Respondent was deputed to the second Petitioner, Tamilnadu Fisheries Development Corporation Ltd. His pay and other allowances were
paid as per the prevailing scale in the Fisheries Department.
3. As the Fish Meal Plant operated by the second Petitioner incurred heavy loss, it was let out to private parties on and from 1.10.1975 and since
the said unit was not viable, the Fish Meal Plant was closed down. In these circumstances, it was decided to send back the second Respondent to
the parent department, by reverting him as per the proceedings of the Manager, Tamilnadu Fisheries Development Corporation Limited,
Mandapam Division, Mandapam, dated 7.2.1986. Accordingly, the second Respondent was reverted to the parent department and consequently
he was relieved from duty on 24.2.1986, so as to enable him to join the parent Fisheries department. There were correspondences between the
Petitioners and the Deputy Director of Fisheries Department, Madurai Division and the Director of Fisheries Department, Chennai, Respondents 3
and 4, stating that there was no similar or identical post in the Tamilnadu Fisheries Development Corporation Limited, for retention of the second
Respondent in service.
4. However, considering the case of the second Respondent, sympathetically, the Recruitment Committee of the Tamilnadu Fisheries Development
Corporation Limited, recommended to employ the second Respondent as Watchman instead of Office Assistant. But the second Respondent
refused to take up the assignment and after a long delay of 19 years raised an Industrial Dispute, with the Labour Officer-II, Ramanathapuram, by
his representation dated 20.8.2001, as if he was relieved from his duty with effect from 24.2.1986, in violation of the provisions of Section 25 of
the Industrial Disputes Act, 1947. Though the Petitioners objected to the claim of the second Respondent before the Labour Officer-II,
Ramanathapuram, as well as the Respondents 3 and 4, by his proceedings dated 26.12.2001, the Labour Officer reported failure of conciliation to
the Government and after receipt of the failure report, an Industrial Dispute, as provided u/s 2(A)(2) of the said Act was raised before the Labour
Court, Madurai on 17.1.2002 and that the same was taken on file as I.D. No. 79 of 2002 dated 17.1.2002. Documentary evidence was
produced on either side. The Labour Court, on an erroneous approach, by an award dated 29.4.2005 allowed the Industrial Dispute in part,
thereby setting aside the order, stating that it was an order of dismissal dated 17.3.1989. But converted the same into one of discharge and
directed the writ Petitioners to pay all the terminal benefits payable to the second Respondent, for the period from 1.8.1974 to 7.2.1986, on the
ground that the second Respondent would have attained the age of superannuation had he continued in the Tamilnadu Fisheries Development
Corporation Limited. Subsequently, the second Respondent filed an application in I.A. No. 105 of 2005 for reviewing the order made in I.D. No.
79 of 2002, dated 29.4.2005 and that the same was allowed by the Labour Court.
5. Assailing the correctness of the award and order made in review petition, Ms. Jessie Jeeva Priya, the learned Counsel appearing for the
Tamilnadu Fisheries Development Corporation Limited, Chennai submitted that the Labour Court has failed to consider that the second
Respondent was already relieved from duties on 24.2.1986 and as such, raising an Industrial Dispute either on 20.8.2001 or on 17.1.2001, nearly
after 15 years and six months is highly belated. Taking this Court through the award, she further submitted that the second Respondent was only a
deputation 1st employed in the Fish Meal Plant at Mandapam and not an employee of the Tamilnadu Fisheries Development Corporation Limited,
Chennai at any point of time and therefore, they have no obligation to provide re-employment or reinstate him in service, consequent to the closure
of the Fish Meal Plant.
6. According to her, when the second Respondent was relieved from his duties on 24.2.1986, so as to enable him to join in the parent department,
it is for the Respondents 3 and 4 to provide suitable employment and merely because, the recruitment Sub Committee of the Tamilnadu Fisheries
Development Corporation Limited, Chennai, the first Petitioner herein has decided to give employment to the second Respondent as Watchman,
on sympathetic grounds, that would not entitle the second Respondent to seek for any relief against the writ Petitioners.
7. Learned Counsel for the Petitioners further submitted that though the case of the Petitioner was sympathetically considered for the post of
Watchman, he refused to join the post, even in the year 1986 and therefore it is not open to him to contend that there was non-employment from
24.2.1986 onwards. It is her further contention that the Labour Court has failed to consider that even though the Petitioners have marked
Exs.W.26 to W.39, namely representations from 1993 to 2000, the second Respondent has not chosen to raise any dispute, for nearly 15 years
and 6 months and therefore, the Industrial Dispute ought to have been rejected, solely on the ground of latches and delay. Learned Counsel for the
Petitioners further submitted that simply because of the provisions of Section 9-A of the Industrial Dispute Act was not followed, the Petitioners
cannot be made liable to pay wages or the terminal benefits to the second Respondent, for a long period for which he had not worked.
8. Per Contra, Mr. M. Subramanian, the learned Counsel appearing for the second Respondent, workman submitted that he served in Fisheries
Department only for 1 1/2 years and later on, after the creation of Tamilnadu Fisheries Development Corporation Ltd., some employees serving in
Tamilnadu Fisheries department were sent on foreign service on deputation. Accordingly, the Deputy Director of Tamilnadu Fisheries
Development Corporation Limited at Mandapam, passed an order dated 3.9.1974, posting the Petitioner as an Operator in the Fish Powder
Station and that the Petitioner was promoted as Machine Operator in the Tamilnadu Fisheries Development Corporation Limited. On 1.10.1975,
Fish Powder Station was let out on lease and even then, the Petitioner was working as Machine Operator in Tamilnadu Fisheries development
Corporation Department Limited.
9. Learned Counsel for the second Respondent further submitted that as per the order dated 26.3.1984, the Managing Director of Tamilnadu
Fisheries Development Corporation Limited, Mandapam, the Petitioner exercised his option to continue in Fisheries Department. According to the
Petitioner, he has been working continuously in the Tamilnadu Fisheries Development Corporation Limited from 1.8.1974 to 7.1.1986. He further
submitted that the second Respondent was relieved from service on 26.2.1986 and when he approached the Director of Fisheries at Chennai for
suitable placement, there was no reply. Thereafter, he was informed that a decision has been taken by the Tamilnadu Fisheries Development
Corporation Limited to provide employment for sale of fish Centre at Teynampet, Chennai. Petitions were also sent to the Manager, Tamilnadu
Fisheries Development Corporation Limited for appointment of the Petitioner in the said category and that he also requested him to provide
employment in the post, in which he had earlier worked.
10. Learned Counsel for the second Respondent further submitted that as the Petitioner was ignorant of legal matters, he approached the
Tamilnadu State Legal Services Authority and the State Human Rights Commission and ultimately, he was advised to approach the Regional
Deputy Director of Fisheries Department, Madurai. He further submitted that the delay in raising the Industrial Dispute has been explained in I.D.
No. 79 of 2002. The Industrial Dispute has been adjudicated despite on merits and therefore, it is not open to the writ Petitioners to non suit the
second Respondent, on the ground of delay. According to the learned Counsel, the second Respondent was in service of the Fisheries
Development Corporation Limited as Machine Operator from 1974 onwards and therefore when the Fish Meal Plant was closed, the writ
Petitioners are bound to provide employment and in such circumstances, the order of the Labour Court in I.D. No. 79 of 2002 dated 29.4.2005,
by treating the proceedings dated 17.3.1989-W.25 of the Managing Director of the Fisheries Development Corporation Ltd., Chennai as Night
Watchman, as discharged from the services of the Fisheries Development Corporation Limited has been rightly declared by the Labour Court as
invalid, and the consequential order of the Labour Court dated 6th December, 2005 made in I.A. No. 105 of 2005 in I.D. No. 79 of 2002,
directing the Petitioners to pay back wages from 17.3.1989 to 20.12.2000 is also valid in law.
11. According to him, though the Fish Meal Plant was closed on 7.2.1986, the Petitioner was provided with an employment by the Corporation
only on 17.3.1989. Therefore, the writ Petitioners have failed to pay back wages, till the Petitioner attained the age of superannuation i.e.
20.12.2000 and therefore they are bound to pay the terminal benefits and back wages for the period from 17.3.1989 to 20.12.2000. For the
above said reasons, he submitted that there is no manifest illegality in the orders of the Labour Court, warranting interference.
12. Heard the learned Counsel appearing for the parties and perused the materials available on record.
13. At the foremost, the prayer sought for in the Industrial Dispute filed u/s 2(A)(2) of the Industrial Disputes Act, is only for a direction to the
Respondents 1 to 4 therein to provide employment to the second Respondent in Fisheries Department with continuity of service and back wages.
14. Pleadings disclose that the Petitioner was initially appointed in Fisheries Department on 6.5.1968 on daily wages and thereafter, appointed as a
General worker, as per the order dated 10.11.1969 in the Fish Powder Station functioning under the National Nervy Scheme. Subsequently, his
probation was declared on 6.5.1971 and was made a permanent employee of the Fisheries Department. Consequent to the establishment of the
Tamilnadu Fisheries Development Corporation Limited, some of the employees serving in Tamilnadu Fisheries Development Department have
been sent on deputation to the Tamilnadu Fisheries Development Corporation Limited and that by order dated 3.9.1974 of the Tamilnadu
Fisheries Development Department, the second Respondent was posted as Operator in the Fish Powder Station. Thereafter, he has been given
promotion as Machine Operator in the Tamilnadu Fisheries Development Corporation Limited on 10.4.1975. As the Fish Meal Plant had incurred
loss, the Tamilnadu Fisheries Development Corporation Ltd., has let out the same for lease on 1.10.1975 and the second Respondent continued
as Machine Operator in that unit. Thereafter, the Managing Director of the Fisheries Development Corporation Limited, Chennai, the first
Petitioner has directed the second Respondent to exercise his option before 15.4.1984, to continue in any specified service. Even as per the
petitioner''s averments, filed u/s 1-A(2) of the Industrial Dispute Act, the second Respondent has specifically exercised his option to continue only
in Fisheries Department and not in Tamilnadu Fisheries Development Corporation Limited.
15. Pleadings and material on record further shows that by proceedings dated 7.2.1986, the Managing Director of the Tamilnadu Fisheries
Development Corporation Limited, has ordered that due to non-operation of the Fish Plant, the second Respondent be reverted back to the
parent department viz., Fisheries Department, with a further instruction to approach the Director of Fisheries Department, Chennai, for further
postings in the said department. It is the admitted case of the second Respondent that though he had sent a letter dated 10.1.1987 to the Director
of Fisheries, Chennai to provide employment, he was not given any posting orders in the Fisheries Department and thereafter, he was informed that
a decision has been taken by the Tamilnadu Fisheries Development Corporation Limited to provide him employment, as Watchman in the Fisheries
Development Corporation, in the meeting held on 24.3.1988. It is also evident from the averments made in I.D. No. 79 of 2002 that the second
respondent has sent objections to the Manager of the Tamilnadu Fisheries Development Corporation Limited at Chennai, not agreeing with the
appointment, in the post of Watchman and that he has also requested to provide employment in Fisheries Department as done in the case of other
employees viz., Mr. A. Klangiam and Mr. Abubakkar. Paragraph No. 5 of the award of the Labour Court incorporating the averments made in
I.D. No. 79 of 2002 is extracted hereunder:
The Petitioner was relieved from service on 26.2.1986. The Petitioner was also further directed to approach the Director of Fisheries department
for his appointment. The Petitioner in accordance with the instruction sent many letters to the Director of Fisheries at Chennai. But no reply was
sent to the Petitioner from the Director. No salary was disbursed to the Petitioner. The Petitioner was serving in the department for 17 years. The
Petitioner was not provided any employment even after the Petitioner sent letter to the Director of Fisheries on 10.1.1987 to provide employment.
Thereafter the Petitioner was informed that the decision has been arrival in the TamilNadu Fisheries Department meeting for providing appointment
to the Petitioner in the Tamilnadu Fisheries Development Corporation. The Petitioner was not provided employment till 24.2.1986. Thereafter the
Director has issued a proceeding dated 17.3.1989 as per the meeting held on 24.3.1988 to provide employment to the Petitioner as night
watchman in the Fish Sales Centre at Thenampettai, Chennai. The Petitioner sent objection to the Manager of the TamilNadu Fisheries
Development Corporation at Chennai. The Petitioner sent objection to the Manager of the TamilNadu Fisheries Development Corporation at
Chennai for the appointment of the Petitioner as a category. The Petitioner requested in that letter to provide employment in the Fisheries
Department as the department provided employment in the fisheries department for the employees served on foreign deputation service. The
Petitioner sent letter to the manager of the Fisheries Development Corporation, Chennai to provide employment in the fisheries department as the
Manager of the Mandapam Tamilnadu Fisheries Development Corporation provided employment to P. Kalanchiyam and Abubekkar but the
Petitioner did not receive any reply for the same. The Petitioner sent many letter to the Tamilnadu Fisheries Development Corporation to provide
permanent employment to him since he served the very same post earlier. The Respondent Management did not provide any reply for the same.
16. As rightly contended by the learned Counsel for the writ Petitioners, from 1989 onwards, no steps have been taken by the second Respondent
to raise any dispute before the competent authority. Ex.W-21-dated 7.2.1986 is the proceedings of the Managing Director of Fisheries
Development Corporation Limited, reverting the second Respondent to the department of Fisheries with instructions to approach the Director of
Fisheries Development Corporation, Chennai and after approaching the competent authorities, the Petitioner has submitted a petition dated
20.8.2001 (Ex.W.41) u/s 2-A to the Labour Officer, Ramanathapuram. As rightly contended by the learned Counsel for the writ Petitioner that
the second Respondent has been relieved in the year 1986 itself by the Tamilnadu Fisheries Development Corporation Limited, Chennai. The
Petitioner himself has candidly admitted that he has been relieved from the Corporation Limited. He has submitted a petition after nearly 15 years.
The reasons offered by the second Respondent that there is no delay in approaching the competent authority under the Industrial Dispute Act,
cannot be countenanced, as the delay is inordinate i.e. nearly 15 years and therefore this Court is of the considered view that the Labour Court
ought not have entertained the Industrial Dispute, after a long number of years.
17. Secondly, it is the admitted case of the second Respondent that he was only a deputations from Fisheries Department to the Tamilnadu
Fisheries Development Corporation Limited, Chennai and that Ex.W-21 dated 7.2.1986 clearly proves that the Managing Director of the Fisheries
Development Corporation Limited, Chennai has reverted the second Respondent back to the Fisheries Department, with an instruction to
approach the Director of Fisheries department, Chennai, and that the second Respondent has been relieved on 24.2.1986. Having regard to the
relief sought for by the second Respondent in I.D. No. 79 of 2002 against the Respondents 1 to 4 therein to provide employment in the Fisheries
Department permanently with continuity of service and back wages, as rightly contended by the learned Counsel for the Petitioners, the Labour
Court ought not have granted the relief against the writ Petitioners namely, Tamilnadu Fisheries Development Corporation Limited, Chennai and if
at all, the second Respondent has made out any case for re-employment, appropriate orders ought to have been passed only against the Fisheries
Department, the lending unit and the Tamilnadu Fisheries Development Corporation Limited, the borrowers cannot be held responsible for not
providing suitable employment to the second Respondent, on the closure of the Fish Meal Plant under their control. As rightly pointed out by the
learned Counsel for the Petitioners, the relief sought for, to provide employment was only directed against the Fisheries Department and not against
the Fisheries Development Corporation. The Labour Court cannot issue any directions, against the Corporation, as if they are any statutory duty or
obligations to provide re-employment or reinstate the Petitioner in any other post, when the unit itself was closed. A deputations cannot as a matter
of right insist that he should be continued in the borrowing unit, when his retention is not required, consequent to the closure of the plant. The
borrowing unit cannot be mulcted with any financial liability, when the deputations is reverted to the parent unit, with specific instructions to
approach the Fisheries Department, for suitable employment.
18. Though the Petitioner joined the Fisheries Development Corporation Limited as deputations in the post of Machine Operator in Fish Meal
Plant unit on 3.9.1974, he continued in the Corporation till 1986, until he was reverted. It is also the case of the Petitioners that in Ex.W.22 dated
31.11.1986, the second Respondent only requested the Director of Fisheries Department to provide suitable employment in the said department.
19. Pleadings and material on record further disclose that considering the plight of the second Respondent sympathetically, in the administrative
meeting held on 24.3.1988, a decision has been taken by the Tamilnadu Recruitment Sub Committee, the Tamilnadu Fisheries Development
Corporation Limited, Chennai to appoint the second Respondent as Watchman, instead of Office assistant and under Ex.W.25, dated 17.3.1989,
the Managing Director of the first Petitioner Corporation has also appointed the second Respondent as Night Watchman in Fish Sales Centre at
Teynampet, Chennai. By the above said proceedings, the second Respondent has been directed to join duty as Watchman on or before
30.4.1989, failing which, the appointment provided to him would be cancelled. On the receipt of the same, the Petitioner has sent a letter Ex.W.26
dated 7.3.1993 ie. nearly after four years to the Manager, Tamilnadu Fisheries development Corporation, Chennai, stating that the appointment of
the second Respondent as Watchman is not justifiable, as two other persons deputed to the Fisheries Development Corporation along with him,
were provided employment in Fisheries department and that the second Respondent alone has been discriminated. If the Fisheries Department has
discriminated the Petitioner, in not providing suitable employment in the department, the writ Petitioner, Tamilnadu Fisheries Development
Corporation Limited cannot be made responsible and consequently liable to pay back wages and retrial benefits.
20. Material on record shows that the postal cover sent to the address of the second Respondent directing him to join duty as Watchman on or
before 30.4.1989, has been returned and therefore, the Labour Court has taken the date mentioned in Ex.W25 as the date of non-providing
employment or termination for the purpose of computation of back wages and retrial benefits. When the Petitioner himself has admitted that he has
been relieved and directed to approach the Fisheries Department for suitable employment and pursuant to which, he has also approached the
Fisheries Department, the Labour Court has grossly erred in coming to a conclusion as if it is an order terminating and not providing employment,
by the Fisheries Development Corporation, though they have no statutory obligation to do so. Though the second Respondent has claimed to have
know ledged Ex.W.25, dated 17.3.1989 and sent objections in Ex.W-26 dated 7.3.1993, he has not chosen to approach the Labour Court for
nearly eight years. It is also evident from the pleadings that the second Respondent has sent objections to the Manager of the Tamilnadu Fisheries
Development Corporation at Chennai, for his appointment in the post of Watchman and also that he has also requested to provide employment
only in Fisheries Department similar to other persons, namely one Mr. A. Klangiam and Mr. Abubakkar, employed along with him, in Fisheries
Development Corporation Limited on deputation and later on provided employment in the parent unit namely, Fisheries Development Department.
Right from the inception, the Petitioner has desired to continue in Fisheries Department and has also exercised his option to continue in the said
department. Even after coming to know that he has been provided with a job as Watchman in Tamilnadu Fisheries Development Corporation, he
has insisted for suitable employment only in the Fisheries Department and not in the Corporation.
21. From his own averments, it is evident that for not providing employment in the Fisheries department, in any suitable post, as done in the case of
the above said two persons, the Fisheries Development Corporation, the writ Petitioner cannot be mulcted with any liability to pay back wages.
Having found that the second Respondent, in his Industrial Dispute has sought for the relief only against the Fisheries department and that he was
not willing to serve in any other department, except in his parent unit namely, the Fisheries Department, the Labour Court has erred in fixing the
liability on the Fisheries Development Corporation Limited to pay back wages for not providing a suitable employment. The Labour Court ought to
have held that once the Fish Meal Plant had been closed due to financial constraint and consequently, when the second Respondent a deputations
has been relieved from the Fisheries Development Corporation Ltd., with effect from 24.2.1986, with a specific instruction to approach the
Director of the Fisheries Department, Chennai for postings in the Department, it is for the Fisheries department, to provide suitable employment
and the writ Petitioner, Corporation cannot be made responsible for not providing employment. The gesture shown by the Fisheries Development
Corporation Limited in providing employment to the second Respondent as Watchman, cannot at any stretch of imagination be treated as an order
of termination from the Fisheries Development Corporation Limited. Therefore, the order of the Labour Court dated 29.4.2005 allowing the
Industrial Dispute by holding that the second Respondent has been dismissed or terminated and consequently converting the same as discharge
from service of the Corporation, for which they have to pay the back wages is illegal and liable to be set aside.
22. Perusal of the Industrial Dispute shows that though the second Respondent has sought for a direction to the Respondents 1 to 4 therein to
provide employment to him in Fisheries Department permanently with continuity of service and back wages, the Labour Court has erroneously
fixed the liability on the Fisheries Development Corporation to give all terminal benefits to the second Respondent, with back wages from 1.8.1974
to 7.2.1986. By a subsequent order of the Labour Court in I.A. No. 105 of 2005 has directed the writ Petitioners/Respondents 1 and 2 to give all
terminal benefits to the second Respondent, and back wages from 17.3.1989 to 20.12.2000 from the date on which the second Respondent has
attained the age of superannuation. As the order made in I.D. No. 79 of 2002, dated 29.4.2005 is liable to be set aside and accordingly set aside,
the subsequent order made in I.A. No. 105 of 2005 is also set aside. In view of the above, the Petitioners cannot be made liable to pay any back
wages or terminal benefits to the second Respondent. Both the impugned award as well as the order made in the review application are set aside.
23. In the result, the writ petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
