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Madras High CourtWP/20293/2023disposed of with direction

The Management v. The General Secretary

2023-09-20Honourable Mr Justice M.Dhandapani6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.09.2023 CORAM :

THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.No.20293 of 2023 and W.M.P.No.19644 of 2023 The Management BBTC, Thay Mudi Estate Mudis Group, Valparai, Coimbatore Rep by its Manager

...Petitioner

Vs The General Secretary, Anaimalai Workers Union, 9/36, New Marker, Valparai, Coimbatore

...Respondent

PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of certiorari calling for the records of the Additional Labour Court, Coimbatore in I.D.No.82 of 2020 and quash its award dated 06.09.2022.

For Petitioner : Mr.Anand Gopalan, for T.S.Gopalan and Co For Respondent : Mr.K.M.Ramesh, Senior Counsel for V.Subramani 1/6

ORDER

Aggrieved by the impugned award of the Additional Labour Court, Coimbatore in I.D.No.82 of 2020, the petitioner is before this Court.

2. It is the case of the petitioner that one Devi Sasikala/workman was employed as a general worker of Thay Mudi Estate, Upper Division on a daily rate of wages. She joined the estate on 01.12.2012. In the year 2015, the workman was appointed for the work of weighment of green leaves, grade checking and return of tea leaves. Due to her unuthorized absence to work, a show cause notice was issued. Even thereafter, she did not turn up for work. Subsequently, an enquiry officer was appointed to proceed with the enquiry with regard to the misconduct of unauthorized absence. In the meantime, the workman raised a dispute before the Conciliation Officer under Section 2A-(2) of the ID Act which was rejected with appropriate direction to seek remedy by way of reference under Section 2(k) of the ID Act. The enquiry proceedings were concluded and on the basis of the findings of the enquiry officer, a second show cause notice was issued for which, the workman gave a reply which was not satisfactory. Hence, the 2/6

management issued a warning letter calling upon her to report for duty, however, the workman had failed to turn up for duty.

3. While so, the respondent union raised a dispute before the Asst.Commissioner of Labour, seeking to engage the workmen into service which ended up in failure. Based on the failure report of the conciliation officer, the Government vide G.O.No.575 dated 12.01.2020 referred the issue to the Labour Court, Coimbatore wherein, the Labour Court has ordered reinstatement with 25% backwages and all attendant benefits on the ground that no materials have been placed by the management as to the allocation of work and no disciplinary action was taken on the workman. Challenging the same, the petitioner management has filed this Writ Petition.

4. Learned counsel for the petitioner management on instructions would submit that the workman was never terminated from service as alleged by her. In fact, the petitioner management called upon the workman to report for duty, however, she refused to report for duty thereby raised a dispute before the Labour Court alleging denial employment which is not sustainable. He further submitted that the petitioner management is ready to 3/6

reinstate the workman into service with continuity of service along with terminal benefits except backwages since the workman has not made any averment with regard to gainful employment during the period in which she was not under employment.

5. On the above contention, this Court heard the learned Senior Counsel appearing for the workman and perused the materials available on record.

6.In view of the stand taken by the management that the management is ready to reinstate the workman, however, is only aggrieved by the award of backwages, as the workman has not proved that he was not gainfully employed during the said period. A perusal of the impugned award reveals that no averments have been made by the 2nd respondent/workman with regard to him not being in gainful employment during the period of dismissal. In the absence of any pleading in the claim petition relating to gainful employment during the non-employment period, the workman is not entitled for any backwages. However, the workman would be entitled to 4/6

continuity of serivce for the purpose of computation of terminal benefits.

7. However, in view of the fair submission made by the learned counsel for the petitioner management, this Court is inlined to modify the award passed by the Labour Court in I.D.No.82 of 2020 as follows:- (i) The award passed by the Labour Court with regard to reinstatement in favour of the respondent/workman is confirmed ;

(ii) The petitioner management is directed to reinstate the workman into service and pay the entire terminal benefits with continuity of service to the respondent/workman.

(iii) However, the respondent is not entitled for any back wages.

8. This Writ Petition stands disposed of with the aforesaid modification and direction. There shall be no order as to costs. Consequently, the connected Miscellaneous Petition stands closed. 20.09.2023 Index : Yes (or) No NHS M.DHANDAPANI, J NHS 5/6

To The General Secretary, Anaimalai Workers Union, 9/36, New Marker, Valparai, Coimbatore W.P.No.20293 of 2023 and W.M.P.No.19644 of 2023 20.09.2023 6/6