Madras High Court
Shree Plastics vs The Presiding Officer on 4 January, 2023
W.P.No.25353 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
W.P.No.25353 of 2009
and M.P.No.1 of 2010
Shree Plastics,
242, Walltax Road,
Chennai 600 003. ...Petitioner
-Vs-
1.The Presiding Officer,
Second Additional Labour Court,
Chennai.
2.D.Kandasamy ...Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorari calling for the records of the II
Additional Labour Court relating to its order dated 17.09.2009 passed in
C.P.No.494 of 1999 and quash the same.
For Petitioner : Mrs.R.S.Lakshmi Priya
for M/s.Gupta and Ravi
For R1 : Court
For R2 : No appearance
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W.P.No.25353 of 2009
ORDER
When the writ petition was earlier listed on 23.12.2022, there was no
representation for the petitioner. Hence, this Court directed the Registry to list
the writ petition under the caption “For Dismissal” today i.e. on 04.01.2023.
2.Even though the writ petition is listed today under the caption “For
Dismissal”, the learned counsel appearing for the petitioner argued the matter
whereas there was no representation for the respondents. Taking into account
the fact that the writ petition is pending for more than 13 years, this Court is
inclined to dispose of the writ petition on merits.
3.This writ petition is filed by the petitioner/management questioning the
award passed by the Labour Court in the claim petition in C.P. No.494 of 1999
filed by the 2nd respondent/ employee under Section 33(c)(2) of the Industrial
Disputes Act.
4.Brief facts that are necessary for the disposal of this writ petition are as
follows:-
5.The 2nd respondent was an employee of the petitioner management.
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W.P.No.25353 of 2009
However for certain reasons, the writ petitioner dismissed the 2 nd respondent
from service in 1988. The 2nd respondent raised an Industrial Dispute in
I.D.No.510 of 1989 and the Labour Court passed an award directing
reinstatement with back wages. Subsequently 2nd respondent filed claim petition
in C.P.No.785 of 1994 which was allowed by directing the petitioner to pay a
sum of Rs.78,000/- to the 2nd respondent. Though petitioner challenged the
order in C.P.No.785 of 1994, the writ petition filed by the petitioner in
W.P.No.4982 of 1998 was dismissed by the Court on 28.03.2007. In the
meanwhile, the petitioner issued a charge Memo for unauthorised absence of 2 nd
respondent on 08.04.1999. Thereafter the petitioner dismissed 2nd respondent
from service on 14.08.1999. Though the 2nd respondent raised an Industrial
Dispute, it is stated by the petitioner that it was not pursued and termination
order became final. However, the Labour Court allowed C.P.No.494 of 1999
claiming wages for the period from 1994 to 1999. The said petition was ordered
by directing the petitioner to pay a sum of Rs.57,600/-. The 2nd respondent has
filed the above writ petition challenging the order dated 17.09.2009 passed by
the Labour Court in C.P.No.494 of 1999 against the petitioner/management
directing the petitioner to pay a sum of Rs.57,600/-.
6.It is the case of the petitioner that the 2nd respondent did not report to
duty and was absent from 1994 to 1999. The communications and the exchange
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W.P.No.25353 of 2009
of notices indicates that the 2nd respondent kept on saying that he was not
reinstated and that he was denied employment. From the typed set of papers,
this Court finds several notices issued to the 2nd respondent calling upon him to
report duty. The intention of the 2 nd respondent was not to join the duty but to
blackmail the petitioner and collect back wages without doing any work. In
every communication in which the 2nd respondent was called upon to join duty
within the specific period, the petitioner management strictly warned the 2 nd
respondent for unauthorised absence from 27.04.1994 to 27.04.1999.
7.It is seen that the petitioner/management issued a Charge Memo dated
08.04.1999 to the 2nd respondent for his unauthorised absence from 27.04.1994.
An enquiry Officer was appointed and it was duly informed to the 2 nd
respondent. Even though the 2nd respondent agreed to appear before the Enquiry
Officer and the Enquiry Officer gave a reasonable opportunity to the 2nd
respondent, it is reported that the 2nd respondent did not appear before the
Enquiry Officer. A further notice was issued to the 2nd respondent by the
petitioner/management. Notice was issued by the Enquiry Officer himself on
25.05.1999 calling upon the 2nd respondent to present in the enquiry fixed on
05.06.1999. The 2nd respondent further informed that he will be set Ex parte if
he does not participate in the enquiry. Thereafter, the 2 nd respondent issued a
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W.P.No.25353 of 2009
reply notice to the Enquiry Officer questioning the legality of the enquiry.
8.Thereafter, the 2nd respondent filed a claim petition under Section
33(c)(2) of the Industrial Dispute Act in C.P. No.499 of 1999 before the Labour
Court. In the claim petition, it seen that the petitioner prayed for a sum of
Rs.62,400/- towards salary and bonus for the period from 27.04.1994 to
27.04.1999. The contention of the 2nd respondent is that he was not given
employment. As per the Enquiry Report given by the Enquiry Officer, the 2 nd
respondent remained unauthorisedly absent for more than 5 years and that he
was gainfully employed. After finding that the petitioner was guilty of charges
the management dismissed him from service with immediate effect by order
dated 14.08.1999.
9.The 2nd respondent/employee did not successfully challenge the order of
termination dated 14.08.1999. It is admitted that the 2nd respondent pursued his
application in C.P. No.499 of 1999 under Section 33(c)(2) of the Industrial
Dispute Act. The Labour Court accepted the case of the 2nd respondent that he
was not allowed to join the duty and he is entitled to get back wages for the
period of 1994 to 1999. The Labour Court held that the petitioner is liable to
pay a sum of Rs.57,600/- towards salary for the period from 27.04.1994 to
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W.P.No.25353 of 2009
27.04.1999. Aggrieved by the same the above writ petition is filed.
10.The short point that arise for consideration in the writ petition is
whether the petitioner is entitled to the amount awarded by the Labour Court
under Section 33(c)(2) of the Industrial Dispute Act.
11.The learned counsel appearing for the petitioner submitted that the
petition filed by the 2nd respondent under Section 33(c)(2) of the Industrial
Dispute Act is not maintainable before the Labour Court as the petitioner has no
existing right to claim any money or monetary benefit from the employer. The
learned counsel has also made a distinction between the existing right of the 2 nd
respondent and the claim based on the factual issues. The learned counsel
submitted that the petitioner was terminated from service by order dated
14.08.1999 and the said order has become final. The termination of the 2 nd
respondent itself was for his unauthorised absence from 1994.
12.The learned counsel relied upon the judgment of the Hon'ble Supreme
Court in the case of State of Uttar Pradesh and another Vs. Brijpal Singh
reported in 2005 (4) L.L.N.338 wherein it is stated as follows:
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W.P.No.25353 of 2009
8. The principles enunciated in the decisions
referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his
employer any money or any benefit which is capable of
being computed in terms of money and which he is
entitled to receive from his employer and is denied of
such benefit can approach Labour Court under Section
33- C(2) of the Act. The benefit sought to be enforced
under Section 33- C(2) of the Act is necessarily a pre-
existing benefit or one flowing from a pre-existing right.
The difference between a pre-existing right or benefit on
one hand and the right or benefit, which is considered
just and fair on the other hand is vital. The former falls
within jurisdiction of Labour Court exercising powers
under Section 33-C(2) of the Act while the latter does not.
It cannot be spelt out from the award in the present case
that such a right or benefit has accrued to the workman
as the specific question of the relief granted is confined
only to the reinstatement without stating anything more as
to the back wages. Hence that relief must be deemed to
have been denied, for what is claimed but not granted
necessarily gets denied in judicial or quasi- judicial
proceeding. Further when a question arises as to the
adjudication of a claim for back wages all relevant
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W.P.No.25353 of 2009
circumstances which will have to be gone into, are to be
considered in a judicious manner. Therefore, the
appropriate forum wherein such question of back wages
could be decided is only in a proceeding to whom a
reference under Section 10 of the Act is made. To state
that merely upon reinstatement, a workman would be
entitled, under the terms of award, to all his arrears of
pay and allowances would be incorrect because several
factors will have to be considered, as stated earlier, to
find out whether the workman is entitled to back wages at
all and to what extent. Therefore, we are of the view that
the High Court ought not to have presumed that the
award of the Labour Court for grant of back wages is
implied in the relief of reinstatement or that the award of
reinstatement itself conferred right for claim of back
wages"
Thus it is clear from the principle enunciated in the
above decisions that the appropriate forum where
question of back wages could be decided is only in a
proceeding to whom a reference under Section 10 of the
Act is made. Thereafter, the Labour Court, in the instant
case, cannot arrogate to itself the functions of an
Industrial Tribunal and entertain the claim made by the
respondent herein which is not based on an existing right
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W.P.No.25353 of 2009
but which may appropriately be made the subject matter
of an industrial dispute in a reference under Section 10 of
the I.D. Act. Therefore, the Labour Court has no
jurisdiction to adjudicate the claim made by the
respondent herein under Section 33C(2) of the I.D. Act in
an undetermined claim and until such adjudication is
made by the appropriate forum, the respondent-workman
cannot ask the Labour Court in an application
under Section 33C(2) of the I.D. Act to disregard his
dismissal as wrongful and on that basis to compute his
wages. It is, therefore, impossible for us to accept the
arguments of Mrs. Shymala Pappu that the respondent-
workman can file application under Section 33C(2) for
determination and payment of wages on the basis that he
continues to be in service pursuant to the said order
passed by the High Court in Writ Petition No. 15172 of
1987 dated 28.10.1987. The argument by the learned
counsel for the workman has no force and is
unacceptable. The Labour Court, in our opinion, has
erred in allowing the application filed under Section
33C(2) of the I.D. Act and ordering payment of not only
the salary but also bonus to the workman although he has
not attended the office of the appellants after the stay
order obtained by him. The Labour Court has committed
a manifest error of law in passing the order in question
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W.P.No.25353 of 2009
which was rightly impugned before the High Court and
erroneously dismissed by the High Court. The High Court
has also equally committed a manifest error in not
considering the scope of Section 33C(2) of the I.D. Act.
We, therefore, have no hesitation in setting aside the
order passed by the Labour Court in Misc. Case No. 11 of
1993 dated 23.8.1995 and the order dated 9.1.2002
passed by the High Court in C.M.W.P. No. 36406 of 1995
as illegal and uncalled for. We do so accordingly.
13.From the judgment of the Hon'ble Supreme Court, this Court is of the
view that the 2nd respondent is not entitled to maintain the claim petition. As
pointed out earlier, the issue arise before this Court in the present writ petition
and before the Labour Court is whether the 2 nd respondent was denied
employment or he is guilty of unauthorised absence. Since the decision depends
upon a factual issue to be resolved by going into the disputed questions of facts,
this Court is unable to sustain the order of the Labour Court allowing the claim
application filed under Section 33(c)(2) of the Industrial Disputes Act by
claiming salary and bonus. No pre- existing right could be construed from the
facts so as to consider the claim application.
14.The Labour Court has failed to appreciate the crux of the issue as seen
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W.P.No.25353 of 2009
from the proceedings before the Labour Court. The termination of the petitioner
is on the basis of the findings of the Enquiry Officer where the petitioner was
held to be absent without permission or excuse from 27.04.1994 to 27.04.1999
for a period of 5 years.
15.For the reasons stated above, this Court is unable to sustain the order
of the Labour Court allowing the application filed by the 2nd respondent under
Section 33(c)(2) of the Industrial Dispute Act.
16.Therefore, the writ petition stands allowed and the order dated
17.09.2009 in C.P.No.494 of 1999 on the file of the II Additional Labour is
hereby set aside. The learned counsel appearing for the petitioner states that the
petitioner/management was directed to deposit 50% of the award as directed by
the Labour Court and that the amount is still lying to the credit of the
proceedings before the Labour Court. In view of the order of this Court by
setting aside the award of the Labour Court impugned in the writ petition, the
petitioner is entitled to withdraw the amount stated to have been deposited by
the petitioner. No costs. Consequently, connected miscellaneous petition is
closed.
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W.P.No.25353 of 2009
04.01.2023
cda
To
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W.P.No.25353 of 2009
1.The Presiding Officer,
Second Additional Labour Court,
Chennai.
2.Shree Plastics,
242, Walltax Road,
Chennai 600 003.
S.S.SUNDAR. J.,
cda
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W.P.No.25353 of 2009
W.P.No.25353 of 2009
04.01.2023
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