Madras High Court
Kannagi vs The Senior Divisional Personnel ... on 7 June, 2023
1/6 W.A.No.219/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 07-06-2023
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.A.No.219 of 2021
M.Rajaram (died)
1.Kannagi
2.Desingraj
3.Priya ... Appellants
-vs-
1.The Senior Divisional Personnel Officer,
Southern Railway,
Tiruchirapalli District.
2.The Industrial Tribunal,
Tamilnadu,
Shasthri Bhawan,
Chennai-600 036. ... Respondents
Appeal is filed under Clause 15 of the Letters Patent against the order,
dated 22.02.2019, passed in W.P.No.7311 of 2002, on the file of this Court.
For Appellants : Mr.R.Dhinesh Kumar
For Respondent 1 : Mrs.T.P.Savitha
https://www.mhc.tn.gov.in/judis
2/6 W.A.No.219/2021
JUDGMENT
(By S.Vaidyanathan,J.)
This appeal has been preferred against the order of the learned single Judge,
dated 22.02.2019, passed in W.P.No.7311 of 2002, whereby the Award of the Industrial
Tribunal, dated 01.07.1998, passed in I.D.No.5 of 1993, was modified into one of
compensation of Rs.3.00 lakhs from reinstatement with 50% back wages.
2. Admittedly, the appellant - deceased employee had joined the service of
the respondent Railway as a Mazdoor on 24.06.1970 and worked till 21.10.1972.
Thereafter, he was again engaged between 21.03.1982 and 20.12.1982. There is no
dispute about the appellant employee having completed 240 days of service in a period
of 12 Calendar months, preceding the date of termination. However, the employee had
made a representation to the respondent Railway to consider his request for re-
employment and empanelment in the list only in the year 1987.
3. The main contention of the respondent Railway that the appellant
employee did not report for work and even otherwise if there was termination it would
fall under Section 2 (oo) (bb) of the Industrial Disputes Act,1947, in short, ''the Act'', is
not correct. From the pleadings, it appears that the job, the employee discharged, was a
perennial one. However, the employee did not raise the dispute immediately after
termination. Though Section 2A of the Act was amended and time limit was introduced
https://www.mhc.tn.gov.in/judis
3/6 W.A.No.219/2021
fixing the maximum period as three years for raising the dispute, it had come into effect
only on 15.09.2010.
4. The Apex Court, in Prabhakar v. Joint Director, Sericulture
Department, 2015 (15) SCC 1, has held that the dispute has got to be raised at the
earliest point of time and there should not be any delay and, that, in case of delay, no
relief would be granted.
5. In this case, the employer Management has violated Section 25F of the
Act. Even in case of irregular employment, if an employee works for 240 days of
continuous service within a period of twelve Calendar months preceding the date of
termination, based on which calculation has got to be made, retrenchment compensation
has to be paid. For the sake of convenience, Section 25F (b) of the Act is extracted
below :
''25F. Conditions precedent to retrenchment of workmen.- No workman
employed in any industry who has been in continuous service for not
less than one year under an employer shall be retrenched by that
employer until-
(a) xxxxx
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days' average pay for
every completed year of continuous service or any part thereof in
excess of six months.
https://www.mhc.tn.gov.in/judis
4/6 W.A.No.219/2021
From the aforesaid definition, it is very clear that for every completed year of continuous
service, the employer will have to pay retrenchment compensation. Though a reference
has been made to Section 25B (2) (b) of the Act, the same will be applicable only for the
purpose of deciding about the continuous service in excess of six months and not
otherwise. Section 25B (2) (a) of the Act alone will be applicable for the purpose of
payment of retrenchment compensation.
6. The learned single Judge has taken note of the judgment of the Apex
Court in Jagbir Singh v. Haryana State Agricultural Marketing Board, 2009 (15) SCC
327, and modified the Award of reinstatement with 50% back-wages into one of
compensation of Rs.3.00 lakhs. Paragraph13 of the said judgment of the Supreme Court
reads as under :
''13. In this view of the matter, we are of the opinion that as the
appellant had worked only for a short period, the interest of justice
will be subserved if the High Court's judgment is modified by
directing payment of a sum of Rs.50,000 (Rupees fifty thousand only)
by way of damages to the appellant by the respondent. Such payment
should be made within eight weeks from this date, failing which the
same will carry interest at the rate of 9% per annum.''
7. In the case on hand, the appellant employee had rendered service hardly
for three years; at present, he is no more, and his legal heirs have come on record.
Taking note of the pendency of the matter and in the light of the decision of the Supreme
https://www.mhc.tn.gov.in/judis
5/6 W.A.No.219/2021
Court in Jagbir Singh's case, cited supra, we agree with the finding of the learned single
Judge modifying the Award into one of compensation of Rs.3.00 lakhs. However,
instead of awarding interest on the amount of Rs.3.00 lakhs as ordered by the learned
single Judge, we increase the compensation to Rs.4.00 lakhs without interest, which
shall be paid by the employer to the employee within a period of one month from the
date of receipt of a copy of this order.
8. Writ Appeal is disposed of accordingly. No costs. Consequently, the
connected C.M.P.No.957 of 2021 is closed.
Index : Yes/No (S.V.N.,J.) (K.R.S.,J.)
Internet : Yes/No 07-06-2023
Speaking / Non-speaking Order
dixit (2/2)
To
1.The Senior Divisional Personnel Officer,
Southern Railway,
Tiruchirapalli District.
2.The Industrial Tribunal,
Tamilnadu,
Shasthri Bhawan,
Chennai-600 036.
https://www.mhc.tn.gov.in/judis
6/6 W.A.No.219/2021
S.VAIDYANATHAN,J.
AND
K.RAJASEKAR,J.
dixit
W.A.No.219 of 2021
(2/2)
07-06-2023
https://www.mhc.tn.gov.in/judis
