Workmen must prove lack of gainful employment to claim back wages upon reinstatement; full back wages are not an automatic entitlement.

JUDGMENT :

G.ARUL MURUGAN, J.

This intra Court appeal is filed against the order dated 26.09.2023 in W.P.No.3269 of 2017, whereby award of the labour court in respect of reinstatement of workman with continuity of service and back wages came to be confirmed.

Short facts to be noted in the appeal are as follows;

2. The appellant-private limited company is engaged in the business of container terminal handling work and took over the container handling operations of the Chennai Port Trust. The respondents 2 to 8 workmen had joined in the service with the appellant as Checker in December 2001. In May 2005, there had been a strike and in order to weaken the collective bargaining power, the appellant gave name sake promotions to the workmen as Junior Officers on 01.06.2005. However, the workmen continued to carry on duties of Checker. To ventilate their grievances, they became members of Employees Union and on 14.02.2013 they placed a charter of demands and as the same was not acceded to, a strike notice came to be issued.

3. Further on 17.07.2013, the Union had furnished a list of members to the conciliation officer demanding payment and to protect the work condition of the workman pending conciliation proceedings. However, the appellant transferred the workmen on 01.08.2013 by giving time till 14.08.2013 to join in the transferred place. Though the conciliation officer directed the appellant to maintain status quo, still the appellant by letter dated 06.08.2013 directed the workmen to obey the transfer order, failing which, action will be taken. This forced the workmen to approach this Court in W.P.No.22492 of 2013 and when the matter came up for hearing, the appellant withdrew the transfer order. Instead of allowing the workmen to report for the duty, the management issued an order of termination on 21.04.2014. Contending that the termination of service is contrary to Section 33 of the Industrial Disputes Act, 1947, (hereinafter referred to as ‘the Act’), and is in violation of Sections 25G, 25H and 25F of the Act, the workmen raised an industrial dispute and pursuant to the reference by the Government, the workmen filed claim petitions in I.D.Nos.118,119,120, 122 of 2014 and 4 of 2015 before the Labour Court.

4. The appellant had resisted the claim petitions mainly on the ground that the respondents are not workmen within the meaning of Section 2(s) of the I.D Act, as they are working as supervisors in the management cadre. Further, it was contended that the transfer was part of the conditions outlined in the promotion order and as such the appellant justified the transfer that had been effected. The Labour Court by a common award dated 27.10.2016, held that both the transfer and the subsequent termination were the result of victimization and directed the appellant for reinstatement of the workmen with continuity of service and back wages.

5. The management has challenged the said award in the writ petition. The writ Court by considering the evidence of two witnesses of the management MW1 and MW2 and particularly the cross examination, had found that name sake promotion was effected only to deprive the workmen from enjoying the status of workmen but they were not working in supervisory capacity. The Writ Court, therefore, held that the respondents are entitled to raise dispute in terms Section 2(s) of the I.D Act and declined to interfere with the award passed by the Labour Court and confirmed the reinstatement with continuity of service and also the back wages. Assailing the order passed by the writ Court, the management had preferred the above appeal.

6. Mr.S.Ravindran, learned Senior Counsel, though made broad submissions on entire issue, however restricted his arguments only in respect of award of full back wages. In this regard, it is the contention of the learned Senior Counsel that the award of back wages is not automatic as a consequence of ordering reinstatement. It is for the workmen to plead and prove that they were not in ga