Madras High Court
Indian Bank vs The Presiding Officer on 3 August, 2021
W.A.No.529 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.08.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MRS.JUSTICE S.KANNAMMAL
W.A.No.529 of 2021
and C.M.P.No.2061 of 2021
Indian Bank
Rep. by its General Manager,
Ethiraj Salai,
Chennai. .. Appellant
Vs
1.The Presiding Officer,
The Central Government Industrial Tribunal,
Shastri Bhavan, Haddows Road,
Nungambakkam,
Chennai - 600 034.
2.Indian Bank Employees' Union,
Rep. by its General Secretary,
25, Second Line Beach,
Chennai - 600 001. .. Respondents
Appeal filed under Clause 15 of Letters Patent against the order
dated 24.09.2018 made in W.P.No.7247 of 2004.
For Appellant : Ms.Rita Chandrasekar
for M/s.Aiyar and Dolia
For Respondents : R1 - Tribunal
Mr.K.M.Ramesh for R2
Page 1 of 7
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W.A.No.529 of 2021
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
This appeal has been filed by the appellant aggrieved over the
order of the learned single Judge, who while confirming the award
passed by the Central Government Industrial Tribunal in I.D.No.738 of
2001 directing the appellant to regularise the services of one Malliga
with wages from the date of the award, modified it with respect to the
payment of backwages by restricting it to 50%.
2. Though the Tribunal and the learned single Judge have gone
into the facts at length, we would only like to record the primary facts.
One Malliga, who is the member of the second respondent was
appointed as part time Sweeper on 04.06.1992 in the extension
counter of the appellant at Pondicherry Central University campus. She
was not regularised as against another person stated to be similarly
placed by name Bagyalakshmi. Therefore, the second respondent
sought for a reference. The reference was refused, leading to the filing
of writ petition in W.P.No.9499 of 1995 and in pursuance of the order
of the Court, it was accordingly ordered by referring to the Industrial
Tribunal. The dispute was taken on file in I.D.No.738 of 2001. The
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W.A.No.529 of 2021
Tribunal passed the award inter alia holding that the appellant
wantonly not regularised the services of Malliga and this would be
treated as unfair labour practice especially when the permanent post
has been kept vacant for a very long period. Resultantly, the award
was passed with the payment of salary from the date of passing of the
award - 25.08.2003. A challenge was made to the said award by the
appellant in W.P.No.7247 of 2004. The learned Single Judge dismissed
the writ petition declining to accept the contention that the case of
Bagyalakshmi was different. The contention with respect to the
entitlement of permanency was rejected by confirming the findings
rendered by the Tribunal. However, on the question of backwages, it
was restricted to 50% from the date of the award. It is this modified
order passed by the learned single Judge, which is put to challenge in
this appeal.
3. Ms.Rita Chandrasekar, learned counsel appearing for the
appellant reiterated the very same submission made before the
learned Single Judge. It is further submitted that the entry being
illegal, there is no right vested with the workman.
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W.A.No.529 of 2021
4. Per contra, Mr.K.M.Ramesh, learned counsel appearing for the
second respondent submitted that the law is quite settled on this
aspect and, therefore, when there is unfair labour practice involved,
which finding is based upon the assessment of facts by two forums,
the contention placing reliance upon Uma Devi's case will not hold
waters. After all, the employee by name Malliga was working as part
time Sweeper. Therefore, no interference is required.
5. We do not find any merit in this appeal. The power of judicial
review of this Court over the award passed after considering the
relevant materials before it is rather limited. This Court cannot sit on
appeal against the award passed on merit. The learned Single Judge,
in our considered view, rightly took into consideration the issues
raised before him. The finding is on the ground of discrimination. We
do not find any contra material to overturn the said findings. The
employee concerned has worked for sufficient period entitling her to be
recognized.
6.In such view of the matter, the contention placing reliance
upon Uma Devi's case cannot be countenanced especially when there
existed a finding which is not assailed before us. There is an element
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W.A.No.529 of 2021
of unfair labour practice and the employee ought to have been given
the order of regularization. As rightly submitted by the learned counsel
appearing for the second respondent, she was working as a part time
Sweeper. There was existence of permanent post. A finding has been
given distinguishing the case of Bagyalakshmi. Even otherwise, the
employee Malliga is entitled for her relief.
7. In such view of the matter, we are not inclined to interfere
with the order of the learned Single Judge insofar as the regularization
is concerned. However, we do find some force in the submission made
by the learned counsel appearing for the appellant with respect to 50%
backwages ordered. Payment of backwages is not a matter of right.
The employee was admittedly a part time employee. Taking into
consideration the facts and circumstances of the case, we are inclined
to modify the award of the backwages at 50% from the date of the
award passed by the learned single Judge to 30% from the date of the
award. In all other respects, the award passed by the Tribunal as
confirmed by the learned single Judge is sustained.
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W.A.No.529 of 2021
8. With the above modification, the writ appeal stands disposed
of. No costs. Consequently, connected miscellaneous petition is closed.
(M.M.S., J.) (S.K., J.)
03.08.2021
Index:Yes/No
mmi/ssm
To
The Presiding Officer,
The Central Government Industrial Tribunal,
Shastri Bhavan, Haddows Road,
Nungambakkam,
Chennai - 600 034.
https://www.mhc.tn.gov.in/judis/
W.A.No.529 of 2021
M.M.SUNDRESH,J.
and
S.KANNAMMAL,J.
mmi
W.A.No.529 of 2021
03.08.2021
https://www.mhc.tn.gov.in/judis/
