IN THE HIGH COURT OF JUDICATURE AT MADRAS ORDER RESERVED ON : 13.09.2023 ORDER PRONOUNCED ON : 20.11.2023 CORAM THE HON'BLE MRS.JUSTICE N.MALA W.P.No.50422 of 2006 and M.P.No.1 of 2006 The Management, Belvidere Estate, Ondikkadai P.O., Yercaud. … Petitioner Vs.

1.The Presiding Officer, Labour Court, Salem.

2.Rajamanickam

3.R.Vimala

4.R.Babu

5.R.Vanitha

6.R.Karthi

7.R.Clive [R3 to R7 are substituted as Lrs of Deceased R2 as per order dated 30.10.2019 made in WMP.No.6033/2018 in W.P.No.50422 of 2006 by SMSJ) … Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records in I.D.No.211/2000 on the file of the Labour Court, Salem the first respondent herein, and to quash the award dated 22.11.2005.

For Petitioner : Mr.M.R.Raghavan For R1 : Court For R2 : Died (Steps taken)

For R3 to R7 : Mr.K.M.Ramesh, Senior Counsel for Mr.V.Sivaraman * * * * * ORDER This Writ Petition is filed to call for the records in I.D.No.211/2000 on the file of the Labour Court, Salem the first respondent herein, and to quash the award dated

22.11.2005.

2.The petitioner is the employer of the second respondents. The second respondent died pending writ petition and so legal heirs were substituted as R3 to R7 in WMP.No.6033 of 2018 in W.P.No.50422 of 2006 vide order dated 30.09.2019. The second respondent was engaged as a worker in the petitioner's estate. According to the second respondent, as the petitioner terminated the service of the second respondent without any notice and enquiry on 09.08.1999, the second respondent issued a notice on

19.08.1999 calling upon the petitioner to provide him work with other benefits. The petitioner instead of providing the second respondent employment sent a communication asking the second respondent to report for duty at the estate to which, the second respondent replied asking for the copy of its standing orders. The petitioner instead of sending the standing orders terminated the second respondent from service. So the second respondent raised a dispute challenging his non-employment before the Labour Court and further prayed for reinstatement with backwages and other attended benefits. The petitioner contested the case before the Labour Court contending that the second respondent was not a regular employee and that he was engaged only as a casual labour. The petitioner contended that on 18.08.1999, the second respondent had voluntarily abandoned duty and therefore the termination of service as alleged by the second respondent was false.

3.The Labour Court on an appreciation of the entire materials on record returned a factual finding that the second respondent was engaged for more than 240 days between 01.02.1997 to July 1999. The Labour Court therefore held that the termination of the service of the second respondent without following the procedure under Section 25 F of the ID Act was illegal. The Labour Court therefore passed the award directing the petitioner to reinstate the second respondent with continuity of service and backwages. Aggrieved by the award passed by the Labour Court, the petitioner/management has filed the above writ petition.

4.At the time of hearing, it was submitted by the learned counsel for the petitioner that as the second respondent was reinstated, the only issue to be decided in the writ petition is whether the legal heirs of the second respondent are entitled to backwages or not.

5.The learned counsel for the petitioner submitted that the Labour Court erred in awarding backwages over looking that the award of backwages was not automatic. In the absence of any pleading on gainful non-employment, the Labour Court ought not to have awarded backwages. The learned counsel relied on the Judgment of the Hon'ble Supreme Court in the case of J.K.Synthetics Ltd., Vs. K.P.Agarwal and another reported in (2007) 2 Supreme Court Cases 433 and in the case of Allahabad Bank and Others vs. Avtar Bhushan Bhartiya reported in (2022) SCC O