Madras High Court
Shri A.J.Aruldhas vs The Divisional Manager on 5 July, 2021
W.A.No.1282 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.1282 of 2019
Shri A.J.Aruldhas .... Appellant
Vs.
1.The Divisional Manager,
Indian Rare Earths Ltd.,
Manavalakurichi & Post,
Kanyakumari District.
2.The Presiding Officer,
The Central Goverment Industrial
Tribunal-cum-Labour Court,
Chennai, Shastri Bhavan,
Numgambakkam, Chennai-600 034. .... Respondents
Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent, against the
order passed by the learned single Judge dated 12.12.2018 in W.P.Nos.497 &
6238 of 2016.
For Appellant .. Mr.I.Jayasingh Manoharan
For Respondent .. Mr.Shivathanu Mohan for
Mr.S.Ramasubramaniam for R1
R2-Tribunal
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W.A.No.1282 of 2019
JUDGMENT
(Judgment of the Court was made by R.N.MANJULA, J.)
This intra-Court Writ Appeal has been directed against the common
order of a learned single Judge dated 12.12.2018 in W.P.Nos.497 and 6238 of
2016.
2. The brief facts which led to the filing of the present Writ Appeal, can
be stated as under:
The appellant herein, is the employee under the 1st respondent
Management herein. The appellant was appointed as a Caretaker at the Guest
House of the 1st respondent Management at Manavalakurichi on 29.09.1978.
He was terminated from service on 13.08.1979. The appellant filed a Writ
Petition in W.P.No.5897 of 1979 and challenged the termination Order. In an
order dated 14.12.1984 passed in the said Writ Petition, the order of
termination was quashed. In the said order, the Appellant was directed to
approach the concerned Authority for getting the reliefs of reinstatement and
other benefits. The records show that the appellant had raised an industrial
dispute before the appropriate authority and the same was referred for
conciliation. Since conciliation was failed, a failure report was given on
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W.A.No.1282 of 2019
27.11.1986. Subsequent to the failure report, the appellant has not filed any
industrial dispute before the jurisdictional Labour Court. But the appellant
filed a straight claim petition before the Principal Labour Court, Madurai in
C.P.No.106 of 1992 by claiming that he is entitled to back wages and it
should be computed at Rs.1,37,325/-. The appellant has claimed the back
wages from 13.08.1979 till the date of filing of the claim petition.
2.1 In pursuant to District transfer, the Claim Petition seems to have
been transferred to Labour Court, Tirunelveli and renumbered as C.P.No.180
of 1992. Since the appellant failed to make his appearance before the Labour
Court and pursue the claim application, it was dismissed for default.
Thereafter, he filed a petition to restore the Claim Petition along with a
petition to condone the delay and it was dismissed. The appellant has
challenged the order of dismissal made in the petition to condone the delay
through a Writ Petition in W.P.(MD) No.4857 of 2009, which was allowed by
an order dated 21.02.2014. The Management has challenged the order passed
in the above said Writ Petition by filing a Writ Appeal in W.A.No.550 of
2014. During the hearing of the Writ Appeal, it was submitted by the
Management that the right jurisdictional Court is Central Government
Industrial Tribunal-cum-Labour Court (CGIT) but the appellant has filed the
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W.A.No.1282 of 2019
Claim Petition before some other Court. It is further submitted that the
appellant without raising any industrial dispute for his reinstatement and
other reliefs, has chosen to directly file this claim petition. The Writ Appeal
was allowed, but however, the claim petition which was allowed to be
restored was deemed to be the Claim Petition pending before the CGIT cum
Labour Court. In view of that, the said Claim Petition stood before the CGIT
and got renumbered as C.P.No.2 of 2015. In the said petition, CGIT has
passed an Award on 02.09.2015 as under:
“15. The Respondent has contended in the Counter
Statement that the petitioner has taken up
employment with the erstwhile Kattabomman
Transport Corporation Ltd and he was earning
sufficiently. The counsel for the Respondent has
argued that in any case the petitioner was
employed after his termination and therefore he is
not entitled to backwages. It has been pointed out
on behalf of the petitioner that no documents are
produced by the Respondent to support this
contention. No doubt, documents are not available
in this respect. However, the admission of the
petitioner is sufficient to show that he became
employed not long after the termination. His
admission during the cross-examination is that
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W.A.No.1282 of 2019
after his termination he worked in Kattabomman
Transport from 07.01.1980 to 20.10.1991. He has
stated that he has resigned from the job. He had
admitted that action has been taken against him for
embezzlement with meal coupons. After he left the
job at Kattabomman Transport Corporation he had
started business along with his friend. So it is very
much clear that the petitioner was gainfully
employed at least from 07.01.1980, after his
termination.
16. The counsel for the Respondent has
pointed out that in his petition the petitioner has
claimed only back wages and there is no claim for
reinstatement on his part. According to the counsel
this was because the petitioner was gainfully
employed. However, this could also have been
because the post has been subsequently abolished
as claimed by the Respondent. The order of
termination has been quashed only in 1984. So, in
any case the petitioner is to be treated to have been
in service even after the date of termination. It is
very much clear that the post of Caretaker existed
even on 07.01.1980 the date on which the petitioner
got employment in Kattabomman Transport
Corporation since Ext.W5 and Ext.W6 admitting
existence of the post are in 1982. So the petitioner
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W.A.No.1282 of 2019
would be entitled to back wages until the date on
which he got employment. Therefore, the petitioner
is entitled to back wages from 13.08.1979 to
06.01.1980.
Accordingly an order is passed as below:
The Respondent shall pay the petitioner
backwages from 13.08.1979 to 06.01.1980 within
one month. If payment is not made within the
stipulated period, it would carry interest @ 9% per
annum from this day.”
3. Aggrieved by the above order of CGIT in restricting the quantum of
the back wages only for a limited period, the appellant/workman, had filed a
writ petition in W.P.No.497 of 2016. The 1st respondent/Management also
challenged the said order and filed a writ petition in W.P.No.6238 of 2016
before this Court.
4. Both the Writ Petitions were taken up together and dismissed vide a
common order dated 12.12.2018. The operative part of the order of the
learned single Judge as found in paragraphs 6 to 8, is extracted as under:
"6.It is a settled legal position that when a
person approaches the Labour Court for back
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W.A.No.1282 of 2019
wages on the ground that he has got a preexisting
right to allow his application under Section
33(C)(2), he should have sought for reinstatement.
In the present case, the employee has not asked for
reinstatement, which shows that he has been
gainfully employed. Besides it is clearly admitted
that he was gainfully employed in the
Kattabomman Transport Corporation. Hence, the
Tribunal has rightly passed the order directing the
Management to pay the back wages only from
13.08.1979 to 06.01.1980. The finding given by the
Tribunal that there is a preexisting right to
entertain the petition filed under Section 33(C)(2)
only for a limited period from 13.08.1979 till
06.01.1980 is in order because admittedly the
employee was gainfully reemployed in the
Kattabomman Transport Corporation for a specific
period of six months as a Care Taker on a
consolidated payment of Rs.250/ per month and
was later on terminated from service on
13.08.1979. Therefore, the petition filed under
Section 33(C)(2) was rightly considered by the
Tribunal directing the Management to pay back
wages only from 13.08.1979 to 06.01.1980 as he
was subsequently re-employed gainfully. In view of
these reasons, this Court, finding no infirmity in the
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W.A.No.1282 of 2019
order passed by the Tribunal, is not inclined to
entertain both the writ petitions. Accordingly, the
writ petitions fail and the same are dismissed. No
costs.
"7.After the above order, the learned counsel
for the employee submitted that a cheque tendered
for the said payment to the employee was refused
and therefore, the Management may be directed to
issue a fresh cheque for the said amount to the
employee.
"8.Considering the said submission, the
Management is directed to issue a fresh cheque to
the employee, within a period of one week from the
date of receipt of a copy of this order."
5. Challenging the above order of the learned single Judge, the
appellant/workman has preferred the present Writ Appeal. We heard both the
learned counsel appearing for the appellant and for the 1st respondent
Management and perused the records placed before us.
6. It is submitted by the learned counsel for the appellant that the
Labour Court as well as the High Court has allowed the back wages only for
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W.A.No.1282 of 2019
a limited period between 13.08.1979 and 06.01.1980 at a consolidated rate at
Rs.250/- per month under the presumption that after termination, the
appellant has gainfully employed himself in Kattabomman Transport
Corporation; but he had worked only for a brief period and not in continuous
employment as observed by the Labour Court; further the wages fixed for the
post of Care is higher; during his initial appointment with the 1st respondent
as Care Taker, his basic pay was at Rs.240/- p.m and his consolidated pay
would come to Rs.550/-; but the Labour Court has worked out the back
wages only at the rate of Rs.250/- p.m.
7. The learned counsel appearing for the respondents submitted that the
workman has never filed any Industrial dispute to adjudicate his right for
reinstatement or to get back wages; hence he has no pre-existing right to
claim back wages and further the back wages as computed by the Labour
Court has already been disbursed to him by way of a cheque; thereafter, he
has no claim against the 1st respondent/management.
8. The entitlement if any for this appellant should be traced back from
the earliest order dated 14.12.1984 passed in W.P.No5897 of 1979. The
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W.A.No.1282 of 2019
appellant had filed the said Writ Petition for quashing the order of
termination. The said Writ Petition was allowed and the order of termination
was quashed. However, the Court has directed the appellant to work out his
remedy for reinstatement etc., before the appropriate authority. In which
case, whatever benefits, the appellant could claim by virtue of the said order
can come only though the reliefs that might be granted by the appropriate
authority. The appellant did not prefer any industrial dispute subsequent to
the order passed in the Writ Petition. But he has straight away filed a Claim
Petition before the Labour Court, Madurai in order to compute back wages.
He claimed that he had a pre-existing right by virtue of the order passed in
the Writ Petition. Such contention of the appellant is fundamentally wrong
and the workman cannot claim for computation of back wages without
getting his right for reinstatement as adjudicated by the appropriate authority
or the Labour Court and an award is passed.
8.1 In fact, the failure report of the Conciliation Officer was given only
on 27.11.1986. Thereafter, atleast the appellant ought to have filed an
industrial dispute before the jurisdictional Labour Court and work out his
remedies for reinstatement and backwages. But he has filed a Claim Petition
before the Labour Court, Madurai. By virtue of the subsequent judgment in
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W.A.No.1282 of 2019
W.A.(MD) No.550 of 2014, dated 05.08.2015, he got the benefit of deeming
the said claim petition as the one pending before the Central Government
Industrial Tribunal-cum-Labour Court (CGIT). The CGIT in its order has
made an observation that the post of Care Taker existed even as on
07.01.1980, the date on which, the appellant had got the alternative gainful
employment in Kattabomman Transport Corporation and so the back wages
can be granted only from 13.08.1979 to 06.01.1980.
8.2 Even without claiming for the relief of reinstatement in the same
post or in some other alternate post along with back wages and got it
adjudicated, the appellant has filed a Claim Petition directly by presuming
that he had a pre-existing right to get back wages. He had got his employment
with Kattabomman Transport Corporation from 07.01.1980. Taking into
consideration of all these facts, the Central Government Industrial Tribunal-
cum-Labour Court has rightly fixed the back wages for a limited period
between the date of his termination and the date of getting the alternate
gainful employment. ( from 13.08.1979 to 06.01.1980). The learned Single
Judge has rightly appreciated the above facts and entitlement of the Appellant
and confirmed the order of the CGIT. Hence, we do not find any reason to
interfere.
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W.A.No.1282 of 2019
M.M.SUNDRESH, J.
and
R.N.MANJULA, J.
suk
Accordingly, the Writ Appeal fails and it is dismissed. No costs.
(M.M.S., J.) (R.N.M., J.)
05.07.2021
suk
Index: Yes/No
To
1. The Divisional Manager,
Indian Rare Earths Ltd.,
Manavalakurichi & Post,
Kanyakumari District.
2. The Presiding Officer,
The Central Goverment Industrial
Tribunal-cum-Labour Court,
Chennai, Shastri Bhavan,
Numgambakkam, Chennai-600 034.
W.A.No.1282 of 2021
https://www.mhc.tn.gov.in/judis/
