D MEGANATHAN Vs. PRESIDING OFFICER INDUSTRIAL TRIBUNAL MADRAS

JUDGEMENT

(1.) WRIT Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of certiorarified mandamus after calling for the records relating to the Award dated 24. 05. 2001 in Complaint No. 3 of 1991 passed by the first respondent, quash that portion of the award depriving full back-wages and other attendant benefits and consequently direct the second respondent to pay the petitioners full back-wages and other attendant benefits. This petition has been filed seeking to quash that portion of the award dated 24. 05. 2001 in Complaint No. 3 of 1991, declining full back-wages and other attendant benefits and for a direction to the second respondent to pay the same to the petitioners along with other attendant benefits.

(2.) THE case of the petitioners, in brief, is as under: a. In order to have their interest protected, some of the workers of the second respondent Company formed a union styled "w. S. Industries National Workers Union" (in short "the Union") which was affiliated to INTUC. When the second respondent Company introduced contract labour in place of permanent workers, the objection of the Union towards such move was futile. Hence, the Union obtained an order of injunction restraining the second respondent Company from employing contract workmen in place of permanent workmen and yet another injunction order was obtained restraining the second respondent Company from removing machinery, raw materials, unfinished goods, etc. from its factory premises. THE efforts of the second respondent company to break the Union was brought to the notice of the Labour Commissioner who advised the former to pay Rs. 2,000/- as advance to all workmen irrespective of their union affiliation and since no advance was paid to the union members, they organised a cycle rally on 01. 08. 1990 from 7 am to 11 am and reported to duty as soon as the rally was over and as such, there was no dislocation in work. Still, the second respondent Company unilaterally imposed an illegal lockout from 02. 08. 1990. b. When the industrial dispute raised by the union against the illegal lock-out was pending, the second respondent company lifted the lock-out from 03. 09. 1990 and all the workmen, except 73 of them, were called for work in a phased manner and these 73 workers were not allowed to enter the factory since their names were not in the lists put up by the management in the notice board, thereby showing a discriminatory treatment. As against the illegal termination of 73 workers, the union preferred a joint complaint which was numbered as Com. No. 3 of 1991 in which an award was passed on 28. 04. 1992 directing the second respondent Company to reinstate 73 workmen and pay 25% of back-wages and the industrial dispute regarding lock-out was referred to the first respondent for adjudication and the same was numbered as i. D. No. 2 of 1992. But, the second respondent Company, instead of implementing the award in Com. No. 3 of 1991, filed a writ petition in W. P. No. 6073 of 1993 and obtained stay of the award dated 28. 04. 1992 which was subsequently made absolute on condition that it should deposit 50% of the back-wages ordered and should also pay last drawn wages. During the pendency of this writ petition, several workers were reinstated leaving a balance of 49 workmen and in the meanwhile, in I. D. No. 2 of 2002, an award came to be passed declaring that the lock-out imposed from 02. 08. 1990 to 02. 09. 1990 was illegal and that the workmen were also entitled to wages, other allowances, continuity of service and all other benefits and this order was not challenged by the second respondent company. Despite this order, these 49 workmen were neither reinstated nor paid wages and other benefits for the period of lock-out. While this was so, this court set aside the award dated 28. 04. 1992 passed by the first respondent tribunal in Com. No. 3 of 1991 and the remanded the matter to the first respondent Tribunal for consideration afresh. c. Thus, when the case of 49 workmen was under consideration by the first respondent Tribunal, as per its suggestion, the second respondent Company filed a compromise memo dated 27. 12. 2000 agreeing to reinstate the workmen in a phased manner and reserved their right to argue as to the maintainability and back-wages alone. Thus, while 41 workmen were reinstated, 5 workmen were superannuated and 3 workmen died, the complaint was restricted with regard to maintainability, termination and back-wages and this being the position, the first respondent Tribunal, though opined that denial of employment from 03. 09. 1990 was deliberate, discriminatory and a case of termination for misconduct, apportioned 50% of the blame on the part of the workmen and thus ordered 50% of back-wages from 12. 03. 1997 to 31. 12. 2000 and that the payment received by the workmen during pendency of the writ petition will be deducted from the 50% of back-wages they are entitled to. As against this order, the present writ petition.

(3.) IN addition, further reliance has been placed on a judgment of this Court reported in 2003 (3) LLN 355 in the matter of Management of Sri Ganapathy Mills Company Ltd. , Tirunelveli and Presiding Officer, Special industrial Tribunal, Madras and another and the relevant para reads as under: "the law is well settled that non-compliance of the condition contained in the proviso to S. 33 (2) (b), which is mandatory in nature, would render the order of dismissal void and the effect of which shall be that the order of dismissal had never been passed and the employee would be deemed to have continued in service. IN the present case, admittedly, the petitioner/management did not comply with the condition under S. 33 (2) (b) while rendering the order of the dismissal of the second respondent/workman and hence, it shall be that the order of the dismissal has never been passed and the second respondent/workman will be deemed to have been in service and entitled to all the benefits available to him. The second respondent/workman is entitled for the relief prayed for in his writ petition. . "