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2011 Supreme(Mad) 2555
High Court of Judicature at Madras
P. JYOTHIMANI
Sanmina SCI Thozhilalar Sangam
Versus
Commissioner of Labour DMS Compound & Others
Writ Petition No.5234 of 2011 & M.P.No.1 of 2011
Decided on : 06-06-2011
For the Petitioner:N.G.R. Prasad, M/s. Row & Reddy, Advocate.
For the Respondents:Vijayanarayanan, Sr. Counsel, R3 - M/s. Gupta & Ravi, Advocate.
The main legal point established in the judgment is that a writ petition may be premature if there is no concrete evidence to support the allegations, and the petitioner may need to work out its remedy under the Industrial Disputes Act if its members' rights are affected.
Headnote:
Unfair Labour Practice - Industrial Disputes Act, 1947 - Schedule I, Harjinder Singh vs. Punjab State Warehousing Corporation, Standard Vacuum Refining Company of India Ltd., vs. Their Workmen, People's Union for Democratic Rights and others vs. Union of India, Jaipur Zila Sahakari Hoomi Vikas Bank Ltd., vs. Ram Gopal Sharma and others - AIR 1982 SC 1473 - [KEYWORD] - Unfair Labour Practice - Industrial Disputes Act, 1947 - Schedule I, Harjinder Singh vs. Punjab State Warehousing Corporation, Standard Vacuum Refining Company of India Ltd., vs. Their Workmen, People's Union for Democratic Rights and others vs. Union of India, Jaipur Zila Sahakari Hoomi Vikas Bank Ltd., vs. Ram Gopal Sharma and others - AIR 1982 SC 1473 - The court discussed the conduct of the third respondent as an unfair labour practice under the Industrial Disputes Act, 1947, and referred to Schedule I and various judgments to support the petitioner's claim of unfair labour practice by the third respondent in replacing permanent workers with contract workers.
Fact of the Case:
The writ petition is filed by a Union registered under the Trade Unions Act, representing workers of a company, against the company's notification for appointment of contract workers and alleged unfair labour practices by the company. The company denied the allegations and stated that the advertisement was issued by a contractor, not by the company.
Finding of the Court:
The court found that the writ petition was premature as there was no concrete evidence to show that the intention of the company was to replace its permanent employees with contract workers. The court dismissed the writ petition, stating that the petitioner Union could work out its remedy under the Industrial Disputes Act if the rights of its members were affected by the replacement of permanent employees with contract labour.
Issues: The issues involved the alleged unfair labour practices by the company, the legality of the advertisement for appointment of contract workers, and the petitioner Union's right to hold a peaceful demonstration.
Ratio Decidendi: The court held that the writ petition was premature as there was no concrete evidence to show that the company intended to replace its permanent employees with contract workers. The court also emphasized that the petitioner Union could work out its remedy under the Industrial Disputes Act if the rights of its members were affected by the replacement of permanent employees with contract labour.
Final Decision: The court dismissed the writ petition, stating that the petitioner Union could work out its remedy under the Industrial Disputes Act if the rights of its members were affected by the replacement of permanent employees with contract labour.
1. The writ petition is directed against the notification published by the third respondent in ‘Dina Thanthi’ dated 20.2.2011 and for a consequential direction against the third respondent to resolve the workers demand.
2. As per the notification issued by the newspaper, the third respondent asked for applications for appointment of persons on contract basis for Sanmina SCI Electronics Corporation and Nokia Simens Network, situate at Oragadam, fixing the educational qualification as Plus Two, ITI pass for men and women in the age limit between 19 and 28 years on a monthly salary of Rs.5600/- with food and transport facilities free, with a condition to work on contract basis in Nokia calling for applications from men and women who have passed 10th Standard, Plus Two failed in the age group of 19 to 25 years.
3. The writ petitioner is a Thozhilalar Sangam, which is a Union registered under the Trade Unions Act, in which the workers of the third respondent Company are its members. The list of workers is furnished in the typed set of papers. The third respondent has got a factory inside the Irungattukottai SIPCOT, which is engaged in the manufacture of parts supporting mobile signal and parts of mobile tower and server and it is a multi-national company.
(a) It is stated that out of 700 workers in the third respondent, nearly 200 workers are in the petitioner Union. The third respondent is 100% export oriented company, enjoying the concessions of the Government. According to the petitioner Union, the third respondent is adopting various unfair labour practice methods like, engaging contract workers in the place of regular workers.
(b) On 28.7.2010, the petitioner union made a charter of demands to the management and since there was no settlement, there was a strike notice issued on 8.9.2010 and thereafter, the third respondent management, according to the petitioner, started unfair labour practice by threatening workers to call off strike.
(c) It is stated that as per the advice given by the Joint Commissioner of Labour, Chennai, the petitioner Union has called off the strike and reported for work and in spite of it, the problems were not solved. Therefore, on 27.1.2011, the petitioner Union issued a second strike notice proposing to go on strike on 10.2.2011 or any day thereafter and the issue was relating to Basic Pay, D.A., H.R.A., other allowances, etc. Since there was a threatening attitude by the third respondent, the petitioner Union went on strike on 15.2.2011.
(d) Pending the same, the third respondent issued the present notification in the newspaper on 20.2.2011, calling for persons to work on contract basis. According to the petitioner, this is an unfair labour practice under clauses (6) and (10) of Schedule-V to the Industrial Disputes Act, 1947. It is stated that the third respondent is insisting the workers to give an undertaking to the effect that they will not indulge in strike and this is also an unfair labour practice.
(e) While the permanent workers are on strike, the third respondent is recruiting contract workers by issuing public notification, which is disobedience to the labour legislation. The Madras Export Promotion Zone (MEPZ) took an exception to the peaceful demonstration of the petitioner on 16.2.2011. The MEPZ authorities also removed the articles at the behest of the third respondent and therefore, the present writ petition is filed challenging the notification on various grounds including that the peaceful demonstration cannot be obstructed by the third respondent; that the demonstration outside the factory premises and inside the MEPZ compound cannot be obstructed and such obstruction would be against the judgement of the Supreme Court in B.R.Singh and others v. Union of India and others [(1989) 4 SCC 710] since the right of demonstration is a democratic right of the trade Union; that the act of the third respondent is contrary to the law and various judgments and the third respondent is
