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In the High Court of Judicature at Madras
Dated: 4 - 1 - 2008
Coram:
The Honourable Mr.Justice S.J.Mukhopadhaya
and
The Honourable Mr.Justice M.Venugopal
Writ Appeal Nos.2043 and 2044 of 2002
& W.A.M.P.Nos.3454 and 3455 of 2002
and
Writ Petition No.24183 of 2005
& W.P.M.P.No.26395 of 2005
1. MRF Ltd.,
Rep. by its Chairman & Managing Director
124, Greams Road,
Madras-600 006.
2. The Managing Director,
MRF Ltd.,
124, Greams Road,
Madras-600 006. .. Appellants in Writ Appeal No.2043 of 2002
vs.
1. M.R.F.Thozhilalar Sangham,
(Regn. No.1278/RTU/2001),
Rep. by its General Secretary,
Kulathumettu Street,
Embalam Post, Pondicherry-605 106.
2. Commissioner of Labour, Pondicherry.
3. Kumaran
4. G.Rajashekaran .. Respondents in Writ Appeal No.2043 of 2002
1. The Management of MRF Ltd., 124, Greams Road, Madras-600 006.
2. The Chairman & Managing Director, MRF Ltd., 124, Greams Road, Madras-600 006.
3. The Vice Chairman & Managing Director, MRF Ltd., 124, Greams Road, Madras-600 006.
4. The Executive Director (Technical and Manufacturing), MRF Ltd., 124, Greams Road, Madras-600 006.
5. General Manager, MRF Ltd., No.1, Eripakkam, Netapakkam Commune, Pondicherry.
.. Appellants in Writ Appeal No.2044 of 2002 vs.
1. M.R.F.Thozhilalar Sanghm, (Regn.No.1278/RTU/2001), through its President Mr.V.Prakash, No.50, Armenian Street, Chennai-600 001.
2. Government of Pondicherry, Rep. by its Secretary to Government, Labour & Employment, Pondicherry.
.. Respondents in Writ Appeal No.2044 of 2002 MRF Thozhilalar Sangam, Regn. No.1278/RTU/2001, rep. by its General Secretary, No.10, Kulathu Mettu Street, Embalam & Post, Pondicherry-605 106.
.. Petitioner in Writ Petition No.24183 of 2005 vs.
1. The Commissioner of Labour (Registrar of Trade Unions), Vazhudavur Road, Gandhi Nagar, Pondicherry-605 009.
2. MRF Employees Union, (Regn No.1287/RTU/2002), Rep. by its General Secretary Mariamman Koil Street, Nathamedu (Eripakkam), Kariamanickam Post, Pondicherry-605 113.
.. Respondents in W.P.No.24183 of 2005 Writ Appeal No.2043 of 2002 against the order of this Court dated 10.6.2002 in Writ Petition No.19 of 2002.
Writ Appeal No.2044 of 2002 against the order of this Court dated 10.6.2002 in Writ Petition No.20591 of 2001.
Writ Petition No.24183 of 2005 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records of the first respondent in connection with the impugned order bearing No.2173/AIL/LAB/J/2004, dated 18.5.2004 and quash the same and direct the first respondent to cancel the registration of the second respondent.
For appellants in both the appeals : Mr.Sanjay Mohan for M/s.Ramasubramaniam Associates For respondent-1 in both the appeals : Mr.V.Prakash, Senior Counsel For respondent-2 in both the appeals :
Mr.Vijay Anand for Govt. Pleader (Pondicherry) For petitioner in W.P.No.24183 of 2005 : M/s.P.Chandrasekaran For respondent-1 in W.P.No.24183 of 2005 : Mr.Vijay Anand for Govt. Pleader (Pondicherry) For respondent-2 in W.P.No.24183 of 2005 : M/s.S.Senthilnathan Judgment S.J.Mukhopadhaya,J Writ Appeal Nos.2043 and 2044 of 2002:-
The appellant-Madras Rubber Factory Limited (for short, MRF) took series of action as against the workers of Pondicherry Unit, many of whom were terminated on 9.10.2001 on different grounds and new workers were recruited in their place, giving rise to filing of number of Writ Petitions by the MRF Employees' Union/MRF Thozhilalar Sangam.
2. By the impugned common order dated 10.6.2002, the learned single Judge held that the conduct of the Management of the MRF is not only violative of Articles 14 and 19 of the Constitution of India, but also violative of statutory rights of the workers to have a Labour Union for their welfare, and further declared that the order of termination/dismissal is illegal and directed to reinstate them with full back wages with liberty to the Management to take such action as may be appropriate if any individual had indulged in undesirable activities.
3. The only question raised on behalf of the Management of the MRF in these Writ Appeals, is as to whether the Writ Petition Nos.20591 of 2001 and 19 of 2002 were maintainable against a private company, i.e. the Management of MRF Ltd.
4. Claims and counter claims have been made by the parties. But we are not inclined to discuss all such claims and counter claims in these Writ Appeals based on facts and in view of the development that took place during the pendency of these Writ Appeals.
5. The case of the MRF Employees Union before the Writ Court was that the MRF Ltd., is a Company registered under the Indian Companies Act and is in the business of manufacture of Tyres, having factories at Thiruvotriyur, Goa, Kottayam, Arakkonam, Medak and Pondicherry; about 262 employees were employed for the manufacturing activities of the Tyres; apart from them, 350 employees were working as Contract Labourers; out of 262 workers, at the time of formation of the Union during the last week of September, 2001, 16 were appointed on probation and about 115 workers were designated as Apprentices and 97 workers were engaged without designation, called as "under observation", all of whom were performing the same work as done by others; apart from them, there were about 350 contract workers, out of whom, 50 workers were used for house-keeping work, 25 for packing and five workers in the Engineering Department, performing the permanent and perennial nature of work; the factory which was started since 4 & = years ago, did not have any regular/permanent employee in Pondicherry Unit; there was no Union till the respondent-Writ Petitioner (Union) (hereinafter referred to as 'the Union') was formed and the workmen, without such Trade Union, were not under protection.
6. The allegation of the Union was that the Management was accustomed to do anything they liked with the workmen and the workmen were bound to lose their job if they make any representation; the wages were very low and even less than the minimum wages; they were also required to work beyond eight hours per day, even up to a maximum of 16 hours per day, without any over-time benefit; no "Identification Card" was given to any employee; the provisions of the Factories Act were not complied with in the context of the wages; no wage slip/over-time slip was given to any worker and their signatures are taken on the computer print-outs at the time of payment of wages; no register for adult workers was maintained and the Labour Inspectorate of the Government being ineffective, the Management was able to indulge in major violations of various Labour/welfare Legislations.
7. It was further alleged on behalf of the Union that in January 2000, eight workmen made a representation to the MRF in the context of having been abused by a Supervisor; thereafter, the workers were threatened by the Management on the ground that they were attempting to form a Union since they gave a joint representation and among them, five were dismissed from the services of the MRF, of which four workers raised Industrial Dispute, which was stated to be pending before the Labour Officer (Conciliation), Pondicherry.
8. It is further averred on behalf of the Union that in September 2001, the Management hand-picked three workmen and started collecting signatures from the workers to the effect that they were the representatives of the workmen for the purpose of representing them in the proceedings for Certification of Standing Orders; the workers having felt that they suffered for more than four years of injustice due to lack of a proper representative body, met an Advocate and obtained his consent for being a representative of the Union and on 16.9.2001, the workers held a meeting for formation of the Union and Election to the office bearers for discussing the bye-laws of the Union. The Office bearers of the Union were elected and the bye-laws were also framed unanimously. This factum of formation of the Union was communicated to the authorities of the MRF by the President of the Union, vide Fax message sent on 29.9.2001, whereby, the Union also requested its recognition, as also for the opportunity to discuss about the grievances of the workmen. The Management was requested not to proceed with the Certification of the Standing Orders without reference to the Union.
9. The grievance of the Union is that the Senior General Manager of the MRF, after receipt of the above said Fax communication, started series of action of victimisation. In the meantime, the Union registered with the Commissioner of Labour, which was brought to the notice of the Management. The first victimisation was that the General Secretary of the Union was dismissed from service on 9.10.2001 without any enquiry, on the allegation of his unauthorised absence. Subsequently, the Management terminated the services of 116 workmen. The Management developed animus against the workmen for forming the Trade Union and therefore, went about indiscriminately terminating the services of the workers to create "fear-psychosis" among the workmen and started engagement of fresh recruits. According to the Union, the action of the Management amounted to unfair labour practice and also violated the rights of the workmen guaranteed under Article 19 of the Constitution of India, as they were victimised for having formed the Union.
10. Management filed counter affidavit and raised the question of maintainability of Writ Petitions. This apart, they took a plea that except some of the workmen who were dismissed from service, in respect of which, the industrial disputes were stated to be pending, as the rest of the workmen could not successfully complete the period of probation, their services were terminated. Further plea taken on behalf of the Management of MRF was that it is the workmen who indulged in unfair labour practice, as they started to reduce the pace of production by resorting to "go slow" method and some of them also boycotted the canteen facilities and refused to have lunch; the food served by the Company had to be discarded and thrown away. On 4.10.2001, the workers raised ante-Management slogans written on piece of papers and pasted to sticks and put on the food. The advise of the Management went unheeded and the food got wasted. Management issued notice on 10.10.2001 and the workers were directed to take food supplied by the Management, but it went unheeded and therefore, in order to avoid further wastage, Management had to stop preparation of food to employees. The effect of "go-slow" method adopted by the workers, resulted in reduction of production of Tyres. i.e. the production of 1,877 Tyres as on 30.9.2001, got reduced to 112 tyres as on 20.10.2001.
11. It is the further case of the Management that since 22nd October, 2001, the workmen had struck work without notice; they entered into the factory, gave their attendance and used to spend time by sleeping, playing cards etc. Repeated advise by the Management went unheeded. In the meantime, the probation period of six workers came to an end by efflux of time. In the case of 43 apprentices, their apprenticeship was dis-continued in accordance with the contract. Considering the fact that from 22.10.2001 (4.00 p.m), the production had completely been stopped. The Management had no other alternative except to dispense with the services of the casual employees (numbering about more than 100).
12. During the pendency of the Writ Petitions before the learned single Judge, as also the Writ Appeals, some how or other, "industrial peace" restored. Number of workmen were reinstated and many of them have been confirmed in the services of the MRF. About 49 workers who have not been reinstated, were sent out of service. On 3.10.2002, when W.A.M.P.Nos.3454 and 3455 of 2002 in W.A.Nos.2043 and 2044 of 2002, were taken up for disposal, learned counsel for the workmen sought an interim order with regard to the payment of wages to such 49 workmen who remained out of service, and the learned counsel for the Management submitted that they were the persons whose services were terminated at the end of the period of their probation. It was further submitted on behalf of the Management that the legality of their termination could be adjudicated upon before the Industrial Tribunal and the Management was willing to submit a joint reference immediately. It was in the above stated background, this Court, on 3.10.2002, while granting an order of interim stay of the direction with regard to the payment of back-wages, no further direction was given with regard to the said 49 workmen. However, this Court made it clear that the said order dated 3.10.2002 would not come in the way of their raising an Industrial Dispute.
13. Learned counsel appearing for the parties referred to the decisions of the Supreme Court on the question of maintainability of the Writ Petitions against a private Company. Counsel for the Management took the plea that no such Writ Petitions were maintainable. Counsel appearing on behalf of the workmen, in his turn, submitted that if statutory right guaranteed under the provisions of the Industrial Disputes Act is violated, the Management is supposed to perform the statutory duty imposed on it. For enforcing such a statutory right or for performing the statutory duty, this Court can issue a Writ even against a private person/private Company.
14. Learned counsel appearing on behalf of the Management relied on Section 2(ra) of the Industrial Disputes Act, which defines "unfair labour practice" as any of the practices specified in Schedule V. Schedule V of the Industrial Disputes Act relates to the instances of unfair labour practices (which deals with "On the part of employers and trade unions of employers" and "On the part of workmen and trade unions of workmen"). In particular, item 1(a) of Schedule V under the caption "On the part of employers and trade unions of employers", the Unfair Labour Practice is defined as follows:
"1: To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say--
(a) threatening workmen with discharge or dismissal, if they join a trade union."
Section 25 of the Industrial Disputes Act, which deals with "Prohibition of financial aid to illegal strikes and lock-outs", reads as follows:
"Section 25: No person shall knowingly expend or apply any money in direct furtherance or support of any illegal strike or lock-out."
Reliance was also placed on Sections 25-T and 25-U (under Chapter V-C dealing with "Unfair Labour Practices") of the Industrial Disputes Act, read as follows:
"Section 25-T: Prohibition of unfair labour practiceNo employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice."
"Section 25-U: Penalty for committing unfair labour practicesAny person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both."
15. Though the workmen had a right to form a Union under Article 19 of the Constitution of India, it was submitted on behalf of the Management that the action of the workers not only would amount to "unfair labour practice", but such action is also against Article 19 of the Constitution of India, and as such, no interference is called for in the Writ Petitions under Article 226 of the Constitution of India.
16. We have heard the learned counsel appearing for the parties and noticed the rival contentions.
17. The question of "maintainability of a Writ Petition against a private person", fell for consideration before the Supreme Court in the decision reported in AIR 1969 SC 1306 (Praga Tools Corpn. vs. Imanual). In the said case, the Supreme Court observed that an "order of Mandamus" can be issued on a person/Corporation to do a particular thing specified, which pertains to his/their office and is in the nature of a "public duty". The Supreme Court further observed as follows in that decision:
"7. The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company."
18. In the decision of this Court reported in 1985 (2) LLJ 133 (Mrs.Sivanarul vs. The State of Tamil Nadu & Ors.), this Court held that the fact that a private School obtains aid from the Government or teaching grant from the Government, makes the position clear and that if from and out of the tax-payers' money, the grants or aids are given, the even the private school is amenable to "Writ" jurisdiction. In that case, this Court further observed that if a contract entered into between the parties is opposed to public policy and the termination is on an arbitrary or filmsical ground, the "Writ" Court can grant the relief to an aggrieved party, though normally, Writ Courts negative the relief sought for, if the matter falls within the "realm of contract" if it requires evidence, but, on the facts of that case, this Court held that no such evidence was required.
19. In another decision of the Supreme Court reported in 2003 (10) SCC 733=2003 (4) CTC 418 (SC) (Federal Bank Ltd. vs. Sagar Thomas), the Supreme Court, while observing that a Writ Petition under Article 226 of the Constitution of India may be maintained against a private body, discharging public duty or positive obligation of public nature, further held as follows:
"27. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to."
That was a case in which disciplinary action was taken against its employee by the private Bank. Services of the employee of the private Bank were terminated. The action of the private Bank was challenged by the employee by filing a Writ Petition under Article 226 of the Constitution of India. Having noticed the fact that the main plea was to enforce a statutory duty on the part of the private Bank, the Supreme Court held that merely because the regulatory provisions ensure the activity carried on by private bodies work, the same does not confer any such status upon the Company, nor put any such obligation upon it, which may be enforced through issue of a Writ under Article 226 of the Constitution.
20. Thus, it is evident that the remedy of "writ of mandamus" or the remedy under Article 226 of the Constitution of India, is pre-eminently a "public law remedy" and is not generally available as a remedy against private person. It is used for "enforcement of various rights of the public" or "to compel public/statutory authorities to discharge their duties" so as to act within their bounds. Where alternative remedy is available, generally, the discretionary jurisdiction under Article 226 of the Constitution of India is not exercised, even if this Court may have jurisdiction to issue a Writ.
21. In view of the decisions of the Supreme Court and our observations, we are of the view that the learned single Judge should not have entertained the Writ Petitions against the order of dismissal/termination. The Company, MRF Ltd., being a private person, there being a remedy available under the provisions of the Industrial Disputes Act and in the absence of a public duty, the question whether it was "unfair labour practice" or "victimisation" due to formation of the Union by the workmen, amounting to violation of fundamental right guaranteed under Article 19 of the Constitution of India, is a mixed question of fact and law, which could be determined by the Industrial Tribunal only on a "reference".
22. Though we have expressed our opinion as recorded above, we are not inclined to interfere with the totality of the common order dated 10.6.2002 passed by the learned single Judge in W.P.No.19 of 2002 (challenged in W.A.No.2043 of 2002) and W.P.No.20591 of 2001 (challenged in W.A.No.2044 of 2002), for the following reasons.
23. The appellant-MRF has submitted charts attached as Annexures, with detailed descriptions as mentioned at paragraph 4 of the affidavit, dated 4.12.2007 filed in support of the Writ Appeal Nos.2043 and 2044 of 2002 and quoted hereunder:
"4. The 5 charts attached as Annexures I to V have the following descriptions:-
List of employees/workmen irrespective of the nature of employment (258 in number) who were working under the Appellant as on 28.09.2001Point-1 in the Order of this Hon'ble Court dt. 15.11.2007.
In that ChartAnnexure-Idetails of the names of the individuals, date of joining/nature of appointment, period of Apprenticeship/probation, if any, date of termination, Police Complaint, if any, made, etc. are also providedPoint-2 of Orders of this Hon'ble Court dt.15.11.2007.
Annexure-I also provides details with regard to the 218 persons whose services were terminated between 03.10.2001 and 30.12.2001Point-3 of Orders of this Hon'ble Court dt.15.11.2007.
Annexure-II is a Chart which shows names of persons who have been "reinstated" after the Judgment and it also contains details of these persons-Points 4 of Orders of this Hon'ble Court dt.15.11.2007.
Annexure-III is a chart which shows names of the persons who have been terminated/not reinstated-Point 5 of Orders of this Hon'ble Court dt.15.11.07.
Annexure-IV shows the List of Persons who were not in service as on 29.10.2001 to engage subsequently and are working-Point7 of Orders of this Hon'ble Court dt.15.11.2007.
Annexure-V shows the names of the 258 individuals as on 28.09.2001 and the shaded portions will show the persons who remain at work minus the 218 individuals.
Out of the 258 individuals as on 28.09.2001 as Apprentices/Probationers/Casuals, the Annexure-VI is being filed to show name-wise when they were taken back and their present status and also the persons who were not taken back viz., 49 in number.
Copies of Letters of Appointment of Probationers and Apprentices and copies of Orders of Termination, wherever issued are being filed covering 258 individualsPoint 8 & 9 of Orders of this Hon'ble Court dt.15.11.2007.
Annexure-VII Copies of Settlements signed after the Judgment dt.10.06.2002 passed by His Lordship Mr.Justice K.P.Sivasubramaniam in Writ Petition No.20591 of 2001."
24. From the above said Charts/Annexures, it appears that the majority of the workmen had been reinstated and large number of them have been confirmed in their services, thus, "industrial peace" had been restored, and it is not desirable to unsettle it by setting aside the order in regard to such workmen who have already been reinstated.
25. Learned counsel appearing on behalf of the appellant-MRF Ltd. also submitted that the Management on a re-consideration, may agree for taking back the following another ten persons, who can be reinstated out of 49, as probationer for one year:
1. D.Joshua
2. R.Rajaram
3. D.Anbalagan
4. D.Ranganathan
5. R.Velmurugan
6. P.Natesan
7. K.Gopalakrishnan
8. N.Magendran
9. S.Sathya Narayanan
10.K.Iyyanar
26. We accordingly allow the Management to reinstate the abovesaid ten workmen as probationers for one year and they may confirm them after one year, if there are vacancies and if their performance is satisfactory.
27. So far as the rest of 39 workmen are concerned, as was suggested by the Management of the MRF Ltd. and earlier noticed by this Court on 3.10.2002 in W.A.M.P.Nos.3454 and 3455 of 2002 in W.A.Nos.2043 and 2044 of 2002, the Union, on their behalf, may raise an "Industrial Dispute" in regard to their dismissal/termination, which may be adjudicated before the Labour Court/Industrial Court.
28. The order of the learned single Judge, dated 10.6.2002, passed in W.P.Nos.20591 of 2001 and 19 of 2002, stands modified to the extent indicated above. Writ Appeal Nos.2043 and 2044 of 2002 stand disposed of with the aforesaid observations. But there shall be no order as to costs. W.A.M.Ps. are closed.
W.P.No.24183 of 2005:
29. So far as Writ Petition No.24183 of 2005, filed by the MRF Thozilaalar Sangam against the order No.2173/AIL/Lab/J/2004, dated 18.5.2004, issued by the Labour Department of the Government of Pondicherry, by which, after hearing the parties, the authority decided that the petition given by MRF Thozhilaalar Sangam, requesting the cancellation of registration of the Trade Union, namely MRF Employees Union, was rejected, as it does not come within the purview of Section 7(2) of the Registration of Trade Unions Act, 1926 and since both the trade Unions, namely "MRF Thozhilaalar Sangam" and "MRF Employees Unions", are registered with different names.
30. Though the parties wanted to raise a "dispute" relating to formation of one or other Union, as such disputed question of fact cannot be determined by this Court under Article 226 of the Constitution of India, and genuineness of one or other Union cannot be decided by this Court, without expressing any opinion with regard to the merit of their contentions, we allow the aggrieved person(s) to move the appropriate forum for appropriate relief.
31. Writ Petition No.24183 of 2005 stands disposed of with the aforesaid observations. But there shall be no order as to costs. W.P.M.P. is closed.
32. In fine, both Writ Appeal Nos.2043 and 2044 of 2002 and W.P.No.24183 of 2005: stand disposed of with the aforesaid observations and directions. But there shall be no order as to costs. The Miscellaneous Petitions are closed.
(S.J.M.J) (M.V.J)
4 - 1 -2008
Index: Yes
Internet: Yes
cs
To
1. Government of Pondicherry,
Rep. by its Secretary to Government,
Labour & Employment, Pondicherry.
2. The Commissioner of Labour, Pondicherry.
3. The Commissioner of Labour (Registrar of Trade Unions),
Vazhudavur Road,
Gandhi Nagar, Pondicherry-605 009.
S.J.Mukhopadhaya,J
and
M.Venugopal,J
cs
Judgment in
Writ Appeals 2043 & 2044 of 2002
and
Writ Petition 24183 of 2005
4 - 1 - 2008