Equivalent Citations

2018 SCC ONLINE MAD 10553 .

Abirami Spin Tex v. Presiding Officer, Labour Court And Others

Madras High Court (Dec 4, 2018)

CASE NO.

W.P.(MD) No. 6611 of 2009, W.P.(MD) No. 6612 of 2009, W.P.(MD) No. 6613 of 2009,
W.P. (MD) No. 6614 of 2009, W.P. (MD) Nos. 6611, 6612, 6613 and 6614 of 2009, M.P.
(MD) Nos. 1, 1, 1 and 1 of 2009, M.P.(MD) Nos. 1, 1 and 1 of 2011

ADVOCATES

Mr. S. Seenivasagam
For R1: Mr. Aayiram K. Selvakumar Additional Government Pleader
For R2: Mr. Jerin Mathew for Mr. M.E. Elango (in all W.P.s)
JUDGES

G.R. Swaminathan, J.

JUDGMENT

PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of
Certiorari to call for the records relating to the Award dated: 30.04.2008 passed by the first
respondent in I.D. No. 270 of 97, and to quash the same.
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of
Certiorari to call for the records relating to the Award dated: 30.04.2008 passed by the first
respondent in I.D. No. 272 of 97, and to quash the same.
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of
Certiorari to call for the records relating to the Award dated: 30.04.2008 passed by the first
respondent in I.D. No. 273 of 97, and to quash the same.
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of
Certiorari to call for the records relating to the Award dated: 30.04.2008 passed by the first
respondent in I.D. No. 276 of 97, and to quash the same.
The Order of the Court was delivered by
G.R. Swaminathan, J.: — The management is the petitioner in these writ petitions. The
award dated 30.04.2008 passed by the Labour Court, Tirunelveli in I.D. Nos. 270, 272, 273
and 276 of 1997 is under challenge. The management charged the respective respondent in

Printed by licensee : Gungun Saxena (Student) Page 1 of 3

these writ petitions with having participated in an illegal strike . They were therefore,
dismissed from service vide order dated 06.02.1997. Thereafter, the industrial disputes
were raised. The Labour Court, Tirunelveli took the same on file in I.D. Nos. 270, 272, 273
and 276 of 1997. Since, the dismissal orders were not preceded by any enquiry, the
management was given an opportunity to adduce evidence before the Labour Court. On the
side of the workmen, P. Jayakumar and S. Arumuga Nainar examined themselves as
witnesses. Ex.W.1 to Ex.W.28 were marked. On the side of the management, two witnesses
were examined and Ex.M.1 to Ex.M.28 were marked. The Labour Court came to a finding
that P. Jayakumar who is the respondent in W.P.(MD) No. 6612 of 2009 alone had taken an
active part in the strike and other three workmen did not take active part.
2. In that view of the matter, the orders of dismissal in the case of those three workmen
namely S. Muthukrishnan, S. Arumuga Nainar and N. Komban, were set aside and the
management was directed to reinstate them in service with continuity of service and back
wages.
3. However, in the case of P. Jayakumar, reinstatement in service was denied. In order to
give some relief 50% of back wages from the date of dismissal till the date of passing of
the award was granted under Section 11(A) of the Industrial Disputes Act, 1947.
Challenging these awards, these writ petitions have been filed.
4. Heard the learned counsel appearing for the management and the learned counsel
appearing for the workmen.
5. The learned counsel appearing for the management raised very many contentions and
would point out that the illegal nature of the strike is not in dispute. When similarly
placed workmen were dismissed from service, the Labour Court did not order any
reinstatement but only granted them monetary compensation. The award passed in the said
case was marked as Ex.M.28. He faulted the impugned order on the ground that they have
not taken into account Ex.M.28 which was rendered in identical circumstances.
6. He also contended that the findings of the Labour Court are vitiated by perversity. For
example, the Labour Court would give a finding that the names of three workmen namely
Muthukrishnan, Arumuga Nainar and Komban are not found in Ex.M.10. Actually, the
name of Muthukrishnan is very much mentioned in Ex.M.15. He also contended that there
is no point in trying to distinguish between active participation and passive participation.
The fact remains that these workmen had taken part in the illegal strike . Therefore, the
punishment of dismissal imposed on them cannot be said to be disproportionate.
7. Before I proceed further, I must refer to the decision of the Hon'ble Bombay High Court
reported in 1992 (2) LLJ 640 in the case of Changunabai Chanoo Palkar v. Khatau Makanji
Mills Ltd., relied upon by the learned counsel for the workmen. The Hon'ble Bombay High
Court in the aforesaid decision held as follows:
“10. It is clear that those who take part in an illegal strike made themselves liable thereby
to be dealt with their employers, whether such participation is passive or active. This is not
to be understood, however, to mean that no distinction has to be maintained in dealing with

Printed by licensee : Gungun Saxena (Student) Page 2 of 3

both the types of workmen who may have been guilty of participation in the illegal strike .
It is manifest that both are not liable to the same kind of punishment. Passive participation
in a strike which is illegal and may be, also unjustified, does not ipso facto invite
dismissal or punitive discharge. To justify the ultimate penalty, there must be active
individual excess, such a masterminding the unjustified aspects of the strike , for example
violence, sabotage or other reprehensible role. In the absence of such gravamen in the
accusation and proof thereof by cogent individualized proof, the extreme economical
penalty termination is wrong, specially in an economic structure where large scale of
unemployment stares in the face.”
8. Therefore, I am of the view that the Labour Court was justified in trying to distinguish
between active participation and passive participation. In this case, the Labour Court, no
doubt committed a factual error while holding that the names of Arumuga Nainar and
Komban are not mentioned in Ex.M.10.
9. In this case, the illegal strike has been going on for quite some time. However, the
names of Muthukrishnan, Komban and Arumuga Nainar do not find mention in Ex.M.15
and Ex.M.12. Therefore, this Court comes to the conclusion that the case of
Muthukrishnan, Arumuga Nainar and Komban will have to be dealt with differently.
10. Ofcourse, as already pointed out, the names of Muthukrishnan is find mentioned in
Ex.M.10. It is not the case of management that the workmen in these cases, indulged in
any case of individual acts like violence, sabotage or any other reprehensible act.
Therefore, I do not propose to interfere with the relief of reinstatement granted by the
Labour Court in the case of Muthukrishnan, Arumuga Nainar and Komban.
11. The labour Court came to the conclusion that Jayakumar played an active role and that
is why it did not reinstate the said Jayakumar. Interestingly, Jayakumar had not chosen to
question the award. Therefore, the award impugned in W.P. (MD) No. 6612 of 2009
deserves to be sustained as such. Therefore, W.P.(MD) No. 6612 is liable to be dismissed.
12. However, I am of the view that directing the reinstatement with full back wages may
not be appropriate. This Court called upon the learned counsel for the workmen to point
out as to whether they have taken a stand that they did not take part in the strike . No
workmen have taken the stand that they did not participate in the strike . They had
participated in the strike .
13. Therefore, even while sustaining the order of reinstatement, I am of the view that
interest of justice will better be served by denying them 50% of back wages from the date
of dismissal till the date of passing of the awards. In all other respects the impugned order
awards are sustained.
14. Accordingly, W.P.(MD) Nos. 6611, 6613 and 6614 of 2009 stand Partly allowed and
W.P. (MD) No. 6612 of 2009 stands dismissed. No costs. Consequently, connected
miscellaneous petitions are closed.

Printed by licensee : Gungun Saxena (Student) Page 3 of 3