Labour case full order of MR.JUSTICE S.VAIDYANATHAN W.P.Nos.389 and 403 of 2021 and WMP.Nos.459, 463, 476, 478 & 481 of 2021 1.Co-op Sugar Mills Anna Thozhilalar Sangam Represented by its President P.Arul Mozhi— In view of what is stated herein-above, these Writ Petitions are ordered accordingly. No costs. Consequently connected Miscellaneous Petitions are closed. 15. This Court places on record its deep appreciation to the submissions made by Mrs.N.Mala, learned Government Pleader (Puducherry) and Ms.Lakshmi Swaroopa, learned counsel for the petitioners, who effectively assisted this Court for disposal of these Writ Petitions. —For Petitioners : Ms.L.Lakshmi Swaroopa (in both W.P.’s) For Respondents : Ms.L.Usha (R1, R2 and R4) (in both W.P.’s) Additional Government Pleader (Pondy) Mr.M.Nirmal Kumar (R3)

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.Nos.389 and 403 of 2021 and
WMP.Nos.459, 463, 476, 478 & 481 of 2021

1.Co-op Sugar Mills Anna Thozhilalar Sangam
Represented by its President
P.Arul Mozhi
Aged about 56 years
S/o Pakkirisamy
No.38, Perambal Main Road,
Gopalankadai, Oulgaret Post
Puducherry-605 010.

2. S.Adhimoolam … Petitioners in W.P.No.389 of
2021

1. Dravida Thozhilalar Munnetra Sangam
Represented by its President
R.Soundararajan
Aged about 58 years,
S/o.Rathinavel
Katterikuppam, Lingareddipalayam,
Puducherry-605 502.

2. V.Ezhumalai … Petitioners in W.P.No.403 of
2021

-vs-

1. The Union Territory of Puducherry
Rep. by The Chief Secretary
Chief Secretariat,
Puducherry.
2. The Secretary to Government
Department of Labour
Second Floor, Labour Complex
Gandhi Nagar,
Puducherry-605 009.

3. The Pondicherry Co-operative Sugar Mills Limited
Rep. by its Managing Director
Lingareddipalayam, Katterikuppam Post,
Puducherry-605 502.

4. The Registrar of Co-operative Societies
Government of Puducherry,
VVP Nagar, Puducherry-605 009. … Respondents

Prayer in both W.Ps.: Writ Petitions filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus directing the respondents 1 to 3 to consider and pay the wages, statutory compensation and the service benefits lawfully due to the workmen and sought by the petitioner in its representations dated 20.01.2020 and 29.05.2020 and thereafter proceed with the lease of the 3rd Respondent Mill after ensuring due livelihood protection to the workmen of the 3rd respondent Mill.
For Petitioners : Ms.L.Lakshmi Swaroopa
(in both W.P.’s)

For Respondents : Ms.L.Usha (R1, R2 and R4)
(in both W.P.’s) Additional Government Pleader (Pondy)
Mr.M.Nirmal Kumar (R3)

******
C O M M O N O R D E R
Since the issue involved in both these Writ Petitions are one and the same, they are taken up together and disposed of by a common order.

2. The petitioners have come forward with these Writ Petitions, seeking a direction to the respondents 1 to 3 to consider and pay the wages, statutory compensation and the service benefits lawfully due to the workmen, as sought by the petitioners in their representations dated 20.01.2020 and 29.05.2020 and thereafter proceed with the lease of the 3rd Respondent Mill after ensuring due livelihood protection of the workmen of the third respondent Mill.

3. The case of the petitioners is that the third respondent Mill is a registered Co-operative Society, formed and established under the provisions of Pondicherry Co-operative Societies Act, 1972 and started production on 23.01.1984. It is an institution in which 95% of the shares are owned by the Government of Puducherry and the rest 5% of the shares are owned by cane growers and suppliers of sugarcane to the third respondent. It is further stated that the third respondent Mill was functioning very well with high productive results till 2006-2007. After that from the crushing season of 2008-2009, there was a decline in production due to several reasons of mis-management by the people at the helm of affairs, resulting in reduction of workers from 900 to 288 in the year 2018. From March 2017, the third respondent Mill did not even pay the monthly wages due to the employees. Hence, the lay-off was declared in various stages and the permission was sought for by the third respondent to the second respondent to lay-off with an undertaking to pay the statutory compensation to the laid off workmen as per Section 25M r/w 25C of the Industrial Disputes Act and the same were also accorded.

4. The petitioners are not disputing the lay-off or questioning it and their grievance is that when the employees have been laid off, it is the statutory duty of the employer to pay the lay-off compensation as per Section 25-C of Industrial Disputes Act, 1947 (in short ‘the Act’), which has not been extended. It is further stated that the permission to lay-off was granted, but the compensation has not been extended and the order of the authority will be in force for a period of one year as per Section 25M(6) of the Act. Subsequently, another application to lay off numbering 74 out of 96 was filed and the Government has not passed orders as the total number of workman was only 96. But however, when there is no lay- off, wages ought to be paid and that the petitioners are entitled to relief as prayed for in the Writ Petition.

5. Mr.Nirmal Kumar, the learned counsel appearing for the third respondent submitted that it is no doubt true that there was a lay- off but due to financial constraint the amount could not be paid. However, he submitted that in case there are more than 100 employees employed in an Industrial Establishment, an application for permission will have to be made to the appropriate Government or to the specified authority before laying-off the workers in the prescribed manner, by duly serving on the workmen concerned and in case of further lay off, there is no need to file another application and it is suffice that a different form is submitted, mentioning the total number of lay-off employees.

6. When this Court posed a question asking the third respondent to produce the attendance register for the period from 23.05.2019 to 22.05.2020, the counsel has fairly admitted that the total number of employees preceding the date of filing the application is more than 100. Since the authority has refused to entertain and rejected the application, they have resubmitted the application to satisfy the requirements of the authorities and not otherwise. He further submitted that due to financial constraint the amount could not be paid and hence this court may grant sufficient time for payment of the amount and that they may have to seek the help of the Government to pay to Workers.

7. The learned Government Advocate (Pondy) appearing for the respondents 1,2 and 4 submitted that a new Government has been constituted and that they are trying to work out the feasibility of settlement. It is further submitted that it is no doubt true that the employees are entitled to wages as they have not questioned the lay-off and therefore, the lay-off compensation need to be paid in accordance with the provisions of the I.D.Act, 1947. It is further submitted that the Union also raised Industrial Dispute and they cannot ride two horses at the same time. Hence, no relief could be obtained from this Court.

8. Heard both sides. Perused the records.

9. It is to be noted that in terms of Section 25-C of the Act, compensation needs to be paid by the Management to the Workers. It is seen that there are two applications filed as narrated in the facts. In the 1st application, the total number of employees employed in the industrial establishment was more than 100 and when the 2nd application was filed, the total number of workmen employed was less than 100. For the sake of convenience, Section 25K(1) of the I.D.Act, 1947 is extracted hereunder:
“25K(1) The provisions of this Chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than one hundred] workmen were employed on an average per working day for the preceding twelve months.”
10. It has been stated by the Workmen that during filing of the 2nd application, the total number of employees were 100 and above on anyone of the day preceding twelve months. However, learned counsel appearing for the Management contended that it may be true that for some days, the total number of employees during the preceding twelve months was more than 100 and a reading of the Section 25K(1) of the I.D.Act, 1947 makes it very clear that the total number of Workmen in an Establishment shall be more than 100 on an average per working day for the preceding twelve months. Even though the Management has filed an application, seeking permission for the 2nd lay off, the same was returned on the ground that the said provision may not be applicable in view of the definition mentioned supra.

11. I find force in the contention of the Management, inasmuch as they had rightly filed the application, when the total number of employees employed were 100 and above at the first instance and when the total number of employees on an average per working day for the preceding twelve months, was less than 100, then there was no need for filing an application, seeking permission to lay off. Even though lay off is justified, the employer is bound to pay compensation in terms of Section 25-C of the I.D.Act, 1947, which they have to pay, if not already paid.

12. Deprivation of wages amounts to violation of Articles 21 and 300 (A) of the Constitution and, the wages payable to the employees cannot be retained by the employer, as it amounts to misappropriation of funds due to be paid to the employees by the employer. Section 25(K) will be applicable to the case, where more than 100 workmen are employed on an average per working day for the preceding twelve months and the total number of workmen sought to be laid off was only 70 in the second occasion, and therefore, the Chapter V-B may not be applicable to the subsequent lay off. However, it is an admitted fact that there is lay off and that the third respondent Mill is a wing of the Government. Pendency of the Industrial Dispute raised by the Union cannot be quoted as a bar to entertain the writ petition, as it is not an efficacious and alternative remedy, and even for admitted amount, the issues are pending for decades. The Government, even without adjudication will have to order revenue recovery in terms of Section 33-C(1) read with 11 B Industrial Dispute Act 1947, in the light of the judgment of the Apex Court in the case of Fabril Gasosa vs. Labour Commissioner, reported in (1997) 3 SCC 150. The entire amount shall be paid by the Management, within a period of four months from the date of receipt of a copy of this order, failing which, it will carry interest at the rate of 6% from the date of this order.
13. It is made clear that if the amount is not paid and a complaint is made to that effect, the Government is directed to sanction prosecution against the Officials, falling under Section 32 of the I.D.Act, 1947, in consonance with Section 34 of the I.D.Act, 1947 for a suitable decision by the Competent Court for violence of the provisions of Section 25-C of the I.D.Act, 1947 in terms of Section 31 (2) of the I.D.Act, 1947. Adverse remarks shall also be entered into the Service Register of the Officials, who are responsible for payment of compensation under the relevant provisions of the I.D.Act, 1947. This Court, at this moment, wants to point out that this is going to be a peculiar circumstance of the case, where the Government has no other option, but to sanction prosecution against its own Officials for non-compliance of the orders of this Court.
14. In view of what is stated herein-above, these Writ Petitions are ordered accordingly. No costs. Consequently connected Miscellaneous Petitions are closed.

15. This Court places on record its deep appreciation to the submissions made by Mrs.N.Mala, learned Government Pleader (Puducherry) and Ms.Lakshmi Swaroopa, learned counsel for the petitioners, who effectively assisted this Court for disposal of these Writ Petitions.
01.07.2021
Index: Yes / No
Speaking order /Non speaking order
arr/dpq/ar

To:

1. The Chief Secretary,
Union Territory of Puducherry
Chief Secretariat, Puducherry.

2. The Secretary to Government
Department of Labour
Second Floor, Labour Complex
Gandhi Nagar,
Puducherry-605 009.

3. The Registrar of Co-operative Societies
Government of Puducherry,
VVP Nagar, Puducherry-605 009.

S.VAIDYANATHAN,J.,
arr/dpq/ar

W.P.Nos.389 and 403 of 2021