Madras High Court
A. Kumaresan vs The Presiding Officer on 5 June, 2023
W.A. No. 1050 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2023
CORAM
THE HON'BLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. No.1050 of 2023
A. Kumaresan ..Appellant
Vs.
1. The Presiding Officer,
Labour Court, Salem.
2. The Management,
Tamil Nadu State Transport
Corporation Division -II,
Bharathipuram,
Dharmapuri. ..Respondents
Prayer: Writ Appeal as against the order dated 16.03.2023 passed in
W.P. No.17857 of 2012.
For Appellant :: Mr.P.M. Subramaniam,
Senior Counsel for
Ms.S. Girija
For Respondents :: Mrs.C. Sangamithirai,
Special Govt. Pleader for R1
Mr.K. Raja for R2
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W.A. No. 1050 of 2023
JUDGMENT
(Delivered by S. Vaidyanathan,J.)
The present appeal has been preferred by the workman challenging
the order dated 16.03.2023 passed in W.P. No. 17857 of 2012 by which the
relief sought by the workman to quash the award of the Labour Court and to
direct the 2nd respondent Management to reinstate him with full backwages
in service with all attendant benefits has been rejected, thereby confirming
the award passed by the Labour Court.
2. The appellant/employee was employed as a Driver in the 2nd
respondent Corporation and on account of his unauthorised absence from
duty for a period of 97 days, disciplinary action was initiated and he was
dismissed from service on 26.08.1998. Questioning his dismissal, an
industrial dispute was raised in I.D. No. 32 of 2002, which was taken up by
Labour Court, Salem and an award was passed on 04.12.2002 in the said
industrial dispute directing the Management to reinstate the employee into
service without continuity of service, without backwages and without other
reliefs, and on the basis of the present full pay, within two months from that
date. The relevant portions of the said award, namely, paragraph Nos. 10
and 11 are extracted below:
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W.A. No. 1050 of 2023
“10. Under these circumstances, I am of the view that
the punishment imposed on the petitioner is not justified and
the punishment is modified to the extent indicated below. The
petitioner is entitled to reinstatement on the basis of the
present full pay, but without continuity of service, backwages
and other benefits. The issues are answered accordingly.
11. In the result, award is passed holding that the
punishment imposed on the petitioner is not justified. The
punishment imposed on the petitioner is modified to the extent
indicated below. The respondent is directed to reinstate the
petitioner into service without continuity of service, without
backwages and without other reliefs, and on the basis of the
present full pay, within two months from this date. No costs.”
3. Aggrieved by the award passed by the Labour Court, Salem,
denying the entire benefits for the absence of 97 days, except reinstatement,
the writ petition was filed by the appellant/workman and the learned Single
Judge, by the order under challenge, has confirmed the award holding as
follows:
“15. Taking note of the conduct of the petitioner, the Labour
Court, by taking a lenient view, set aside the harsh punishment
and modified the same. Hence, in the considered opinion of
this Court, the petitioner is not entitled to any continuity of
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W.A. No. 1050 of 2023
service and other benefits. Therefore, this Court finds no merit
to interfere with the award passed by the LabourCourt in
I.D.No. 32 of 2002 dated 04.12.2002.”
Insofar as the Management is concerned, the award had become final
and there was no writ petition filed by them. Challenging the dismissal of
the writ petition, the present writ appeal has been preferred by the workman.
4. Heard the learned counsel on either side.
5. In the present appeal, the workman has confined his relief with
regard to the pensionary benefits as according to the workman, pursuant to
the award dated 04.12.2002, he should have been reinstated within a period
of 2 months from that date, as per the award passed by the Labour Court, ie.,
on or before 03.02.2003. However, the employee has been reinstated in
service on 14.08.2003. The Management has reinstated the employee on
14.08.2003 by which time the Old Pension Scheme had been abolished on
31.03.2003 and the new Contributory Pension Scheme had been introduced
with effect from 01.04.2003. In any event, it is the date of the award that
has got to be taken into account to determine whether the employee would
come under the Old Pension Scheme or not. Once the award is published in
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W.A. No. 1050 of 2023
terms of Section 17A of Industrial Disputes Act, 1947, it will have effect
from the date of the award passed by the Labur Court. .
6. Taking note of the totality of circumstances, we are of the view
that the employee has been given the relief as a new entrant as could be seen
from the award dated 04.12.2002 and he is entitled to all the benefits and
the employee would be covered by the Old Pension Scheme which was in
existence prior to the abolition of the same on 31.03.2003 and not by the
new Contributory Pension Scheme introduced with effect from 01.04.2003.
Hence, while confirming the award of the Labour Court. as has been done
by the learned Single Judge in the writ petition, we observe that the
employee would be entitled to the benefit of Old Pension Scheme which
was in existence on the date of the award dated 4.12.2002 and the Labour
Court had also directed the Management to reinstate the employee within
two months from that date, which means that the employee should have
been reinstated on or before 03.02.2003 on which date the Old Pension
Scheme was in existence.
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W.A. No. 1050 of 2023
S. VAIDYANATHAN,J.
AND
K. RAJASEKAR,J.
nv
7. With the above observation, the writ appeal stands disposed of.
No costs.
(S.V.N.J.) (K.R.S.J.)
nv 05.06.2023
To
1. The Presiding Officer,
Labour Court, Salem.
2. The Management,
Tamil Nadu State Transport
Corporation Division -II,
Bharathipuram,
Dharmapuri.
W.A. No. 1050 of 2023
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