Madras High Court
Tamilnadu Arasu Pokkuvarathu ... vs The Managing Director on 17 July, 2023
W.P.No.24621 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.07.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.24621 of 2013
Tamilnadu Arasu Pokkuvarathu Kazhaga
Thozhilalar Nala Sangam, rep by its
President A.Yogannan,
No.1-18-20-F, Kuzhithurai,
Padanthalumood, Kanyakumari District ... Petitioner
Vs.
1.The Managing Director,
Metropolitan Transport Corporation,
Chennai 600 002
2.The Managing Director,
State Transport Corporation, Madurai
3.The Managing Director,
State Express Transport Corporation,
Chennai 600 002
4.The Managing Director,
Tamilnadu State Transport Corporation,
Coimbatore
5.The Managing Director,
Tamilnadu State Transport Corporation,
Kumbakonam
6.The Managing Director,
Tamilnadu State Transport Corporation,
Salem
7.The Managing Director,
Tamilnadu State Transport Corporation,
Thirunelveli
1/10
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W.P.No.24621 of 2013
8.The Managing Director,
Tamilnadu State Transport Corporation,
Villupuram
9.The Government of Tamilnadu,
rep. by its Commissioner / Secretary,
Transport Department, Fort St.George,
Chennai 600 009
10.The Presiding Officer,
The Industrial Tribunal, Chennai ... Respondents
PRAYER: Writ Petition is filed under Article 226 of Constitution of
India praying to issue Writ of Certiorarified Mandamus calling for the
records of the respondents, particularly the 10th respondent relating to its
order made in ID.No.20/2011 dated 18.01.2013 as communicated to the
petitioner pursuant to Gazette Notification No.Aa/86/13 dated
22.02.2013 and quash the same as null and void, illegal and invalid, and
consequently directing the respondents 1 to 9 to refund the petitioner or
its Employees (those who were in service at the relevant period of time,
not continuing in service or retired from service on Superannuation or on
voluntary retirement) suffered due to unlawful recovery for the period
from 1998 to 31.08.2012 under the caption 'Variable Dearness
Allowance' contrary to the terms of 12(3) Settlement together with
interest at the rate of 24% per annum from the date of each deduction /
recovery.
For Petitioner : Mr.Maria Joseph David
for Mr.A.Amal Raj
2/10
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W.P.No.24621 of 2013
For Respondents
For R2 & 7 : Mr.C.Gauthamaraj
For R5 : Mr.S.Sathya Gandhi
For R6 : Mr.R.Babu
For R3 : Mr.S.Sivasubramani
For R1, 4, 8, 9 : No appearance
R10 : Tribunal
ORDER
This writ petition has been filed challenging the award
passed in ID.No.20/2011 dated 18.01.2013, thereby dismissed the
industrial dispute raised by the petitioner to refund the recovery.
2. The petitioner is a registered Trade Union for the Transport
Employees. The Transport Corporation i.e. the respondents 1 to 8 had
earlier negotiated with 4 Trade Union with related to wages and allied
subjects. As directed by the Hon'ble Division Bench of this Court to
conduct election through secret ballot to elect the representatives for the
wage negotiation in the year 1998 for a period of three years.
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W.P.No.24621 of 2013
Accordingly, election was held on 04.12.1998 and one member was
entitled to be represented for 21 Transport Corporation. While being so,
the rate of Variable Dearness Allowances as agreed upon by the three
representatives of employees by way of VIII wage settlement and to be
paid to the employees as per clause 3 of the memorandum of settlement.
Accordingly, 'Variable Dearness Allowance' linked to the Consumer Price
Index shall be payable at the rate of Rs.02/-. Only per each point increase
over and above 1924 points commencing from 01.10.1998. The object of
Dearness Allowance is to alleviate sufferings and hardships faced by the
employees on account of the cost of essential commodities coming under
the consumer categories.
2.1 While being so, the respondents have made recoveries from
the salary of each and every employees, those who have covered under 12
(3) settlement during the month of May 1999 under the caption Dearness
Allowance which varied according to the respective basic pay drawn by
the employees. It is reliably learnt from the Office of the respondents that
they had recovered a portion of the Dearness Allowance paid with effect
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W.P.No.24621 of 2013
from 01.09.1998 It is really arbitrary and illegal on the part of the
respondents to effect recoveries without prior notice and without giving
opportunity of hearing to the employees. The adjustment of Dearness
Allowance from the future payment of Dearness Allowance will not arise
and no such clause is provided in the 12(3) settlement. Therefore, the
petitioner had represented about the recovery to the respondents on
02.06.1999 after facing necessary resolution to that effect. They
challenged before this Court in WP.No.12891 of 1999 and WP.No.10643
of 2000. Though initially this Court granted interim stay, subsequently
both the writ petitions were dismissed by this Court by order dated
27.08.2001. Aggrieved by the same, the petitioner filed writ appeals in
W.A.Nos.1941 and 1942 of 2001 and the Honble Division Bench of this
Court by common order dated 08.12.2010 set aside the order passed by
the learned Single Judge and referred the dispute before the Industrial
Tribunal to decide the dispute in interpretation of the provisions under
12(3) settlement dated 13.02.1999 for adjudication under Section 38A of
the Industrial Disputes Act.
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W.P.No.24621 of 2013
3. Heard the learned counsel appearing on either side.
4. The learned counsel mainly relied upon GO.Ms.No.286
dated 28.08.2018, in which the Finance(Pension) Department passed
order based on various decisions of the Hon'ble Supreme Court of India
that the recovery from employees belonging to class III and IV service (or
Group 'C' and Group 'D' service, the recoveries by the employers would be
impermissible in law. Further he relied upon the order of the Hon'ble
Supreme Court of India in Civil Appeal No.11527 of 2014, in which the
Hon'ble Supreme Court of India held that such recovery from employees
belonging to the lower ranks “i.e. class III and class IV, sometimes
denoted as group 'C' and 'D') of service, shall not be subjected to the
ordeal of any recovery, even though they were beneficiaries of receiving
higher emoluments, than were due to them. Such recovery would be
iniquitous and arbitrary and there would be breach mandate contained
under Article 14 of Constitution of India.
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W.P.No.24621 of 2013
5. It is true that the recovery should not be made from the
employees belonging to class III and IV service (or Group 'C' and Group
'D' service). In the case on hand, after election was conducted based on
the order passed by the Hon'ble Division Bench of this Court, a bilateral
discussion was held between the Chairman and the representatives'
Employees Trade Union on 12.01.1999 and 05.02.1999 and also held
subsequently on 10.02.1999 and 11.02.1999. On 13.02.1999, another
meeting was held and it was resulted in a settlement under Section 12(3)
of Industrial Disputes Act. The clause 3 of the settlement provides for
'variable dearness allowance'. As per the said clause, the variable dearness
allowance would be continuous to be calculated on quarterly basis taking
into consideration of the rise or fall in the average consumer price index
from quarter to quarter. The variable dearness allowances linked to the
consumer price index shall be payable at the rate of Rs.2/- per each point
increased over and above 1924 points commencing from 01.10.1998. As
the average point of consumer price index for the first quarter are issued
by the Government only during the middle of the second quarter, the
allowance paid for the first quarters was continued and if there is any rise
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W.P.No.24621 of 2013
or fall in the consumer price index, the same will be paid or recovered in
the subsequent monthly salary. Therefore the recovery made by the
respondents is only the excess payment made during the earlier quarter in
view of the fall in consumer price index as per clause 12(3) settlement
dated 13.02.1999. Therefore, the Government Order and the judgment
cited by the learned counsel for the petitioner is not applicable to the case
on hand.
6. Therefore, the recovery was made from the employees for
maintaining consumer price index. In fact, most of the Transport
employees have not disputed settlement made by respondents. That apart,
the said recovery was made only one time i.e. in the year 1999 and no
recovery was made subsequently. No one had objected in respect of
recovery made by the respondents. In order to substantiate the recovery,
the respondents marked Exs.M5 to M8. Accordingly, the respondents had
deducted the amount for maintaining the consumer price index in terms
of rise and fall in the consumer price index. Therefore, 10 th respondent
rightly rejected the request made by the petitioner and this Court finds no
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W.P.No.24621 of 2013
infirmity or illegality in the order passed by the Labour Court.
7. Accordingly, this writ petition is dismissed. There shall be
no order as to costs.
17.07.2023
Internet: Yes
Index: Yes/No
Speaking/Non-speaking order
lok
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W.P.No.24621 of 2013
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Managing Director,
Metropolitan Transport Corporation, Chennai 600 002
2.The Managing Director,
State Transport Corporation, Madurai
3.The Managing Director,
State Express Transport Corporation, Chennai 600 002
4.The Managing Director,
Tamilnadu State Transport Corporation, Coimbatore
5.The Managing Director,
Tamilnadu State Transport Corporation, Kumbakonam
6.The Managing Director,
Tamilnadu State Transport Corporation, Salem
7.The Managing Director,
Tamilnadu State Transport Corporation, Thirunelveli
8.The Managing Director,
Tamilnadu State Transport Corporation, Villupuram
9.Commissioner / Secretary,
The Government of Tamilnadu,
Transport Department, Fort St.George,
Chennai 600 009
10.The Presiding Officer,
The Industrial Tribunal, Chennai
11. The Public Prosecutor,
High Court, Madras.
W.P.No.24621 of 2013
17.07.2023
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