Madras High Court
The Managing Director vs The Presiding Officer on 13 September, 2023
W.P.Nos.24642 to 24683 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.24642 to 24683 of 2009
and M.P.Nos.1 & 2 of 2009 (42 Nos.)
W.P.No.24642 of 2009 :-
The Managing Director,
Tamil Nadu State Marketing Corporation,
(TASMAC),
Thalamuthu Natarajan Maligai,
Gandhi Irwin Salai,
Egmore,
Chennai – 600 008 ...Petitioner
-Vs-
1. The Presiding Officer,
Principal Labour Court,
Chennai.
2. P.Gurunathan ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records relating to the
order dated 26.10.2009 of the first respondent herein in Claim Petition
No.560 of 2007 and quash the same.
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W.P.Nos.24642 to 24683 of 2009
In all W.Ps.
For Petitioner : Mr.K.Balakrishnan
Standing Counsel for TASMAC
For Respondents
R1 : Court
For R2 : Mr.V.S.Jagadeesan
For Mr.R.Rengaramanujam
COMMON ORDER
These writ petitions have been filed challenging the common
award passed by the first respondent dated 26.10.2009, in Claim
Petitions Nos.560 to 601 of 2007, thereby ordered to pay double wages
for working of weekly holidays, four national and festival holidays and
also ordered to pay double wages for over time work.
2. The issues raised in all the writ petitions are common and
the petitioners preferred the writ petitions for similar prayer. Since the
Labour Court passed common award in all the claim petitions, this Court
is inclined to pass a common order in all these writ petitions.
3. The second respondent in all the writ petitions (hereinafter
called as “the claimants”) had filed computation petitions before the first
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respondent viz., the Labour Court, Chennai, under Section 33(C)(2) of
the Industrial Dispute Act, 1947 (hereinafter called as “the ID Act”)
claiming computation with interest from the petitioner. The claim of
claimants is that, they are working in the Tamil Nadu State Marketing
Corporation (hereinafter called as “TASMAC”). In terms of the
provisions of the Tamil Nadu Shops and Commercial Establishments Act,
1947 and Minimum Wages Act, 1948, the working hours for the
employees are eight hours a day or forty eight hours in a week. They
would be entitled to one day leave as holiday.
4. But the claimants were required to work from 8 a.m., to 12
o'clock in the night viz., 16 hours in a day. They were not given weekly
holiday and they were worked in all seven days in a week. They have
been working in the national and festival holidays without leave.
Therefore, they are entitled to double wages for over time and working on
weekly holidays and national and festival holidays. The Labour Court
allowed their computation petitions and ordered to pay double wages for
over time work and double wages for working weekly holidays and four
national and festival holidays as per the Minimum Wages Act. Aggrieved
by the same, the petitioner filed the present writ petitions.
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5. The learned Standing Counsel appearing for the petitioner
would submit that the Labour Court ought not to have entertained
computation petition under Section 33(C)(2) of the ID Act, claiming the
double wages for overtime and double wages for national and festival
holidays. The claim of the claimants cannot be decided under Section
33(C)(2) of the ID Act. The proceedings under Section 33(C)(2) of the ID
Act is in the nature of executing provisions and as such the labour Court
would not have the jurisdiction to decide the claim made by the second
respondent in all the writ petition.
5.1. He further submitted that the provisions of the Tamil Nadu
Shops and Establishments Act is not at all applicable to the petitioner,
since it is exempted from the Tamil Nadu Shops and Establishments Act.
The working conditions of the claimants are governed by the terms and
conditions and guidelines formulated by the petitioner from time to time.
Accordingly, the claimants had agreed and abide by them at the time of
their appointment in the respective shops. Therefore, now they cannot
claim any dues under the Tamil Nadu Shops and Establishments Act,
Minimum Wages Act as well as the Tamil Nadu Industrial Establishment
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National and Festival Holidays Act, 1958.
5.2. Further, the business hours of the petitioner's shop are from
10 am., to 10 p.m., with effect from 01.01.2009. The claimants are
working on shift basis through local arrangements. In urban areas there is
one Supervisor and three to four salesmen per shop. In rural area, there is
one supervisor and two salesmen per shop. They avail weekly holidays on
rotation basis through internal arrangements without affecting the
business. Likely they also avail national and festival holidays. Therefore,
no employee would work for more than eight hours per day.
5.3. The learned Standing counsel also produce a letter from the
Principal Secretary to Government, Chennai, to the Commissioner of
Lavour, dated 22.02.2010, thereby clarified that TASMAC is wholly
owned and controlled by the State government. Thus, it is clear that
TASMAC is an establishment under the State government and
consequently the provisions of the Tamil Nadu Shops and Establishment
Act, 1974 are not applicable in veiw of the exemption contained in Clause
(c) of the sub Section (1) of Section 4 of the said Act. Hence, he prayed to
set aside the award passed by the Labour Court.
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6. The learned counsel appearing for the claimants vehemently
contended the the entire claim made by the claimants come under the
purview under Section 33(C)(2) of the ID Act and under the statue.
Therefore, the Labour Court can very well deal with the issue and
accordingly, the Labour Court rightly ordered to pay the dues in favour of
the claimants under the Tamil Nadu Shops and Establishments Act and
Minimum Wages Act as well as the Tamil Nadu Industrial Establishment
National and Festival Holidays Act, 1958.
6.1. He further submitted that the claimants claimed double
wages for over time, double wages for national and festival holidays
under the Minimum Wages Act, for the period from 01.04.2004 to
31.03.2006. In those period, the petitioner's establishment was not
exempted from the Tamil Nadu Shops and Establishments Act.
Therefore, the claimants can very well made their claim under the Tamil
Nadu Shops and Establishments Act, Minimum Wages Act as well as the
Tamil Nadu Industrial Establishment National and Festival Holidays Act,
1958, since the petitioner's establishment was very much came under the
Tamil Nadu Shops and Establishments Act.
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6.2. He further submitted that the Labour Court dealt the issue in
detailed manner and hold that the claimants were working more than
eight hours in a day and they were also working in four national and
festival holidays. Before the Labour Court, the petitioner had produced
the attendance registers and movement registers. It reveals the working
house of the claimants. In fact, the petitioner's witness categorically
admitted the fact that the working hours of the petitioner's shops are from
10 a.m., to 11 p.m. As per section 9 of the Tamil Nadu Shops and
Establishments Act, no employee in any shop shall be required or allowed
to work therein for more than eight hours in a day and forty eight hours
in a week.
6.3. He also contended that as per Section 31 of Tamil Nadu
Shops and Establishments Act, whether any person employed in any
establishment is required to work overtime, he shall be entitled, in respect
of such overtime work, to wages at twice the ordinary rate of wages. The
Section 13 of the Minimum Wages Act, provided for a day of rest in
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W.P.Nos.24642 to 24683 of 2009
every period of seven days and for the payment or remuneration in
respect of such days of rest. Further provided for payment for wok on a
day or rest at the rest not less than the overtime rate. The claimants were
working more than eight hours in a day that too without any rest day. If
the claimants worked more than eight hours in a day and worked in a rest
day, they shall entitle for double the rate of wage. The workmen also
worked in four national and festival holidays. Therefore, the Labour
Court rightly allowed the claim made by the claimants. Hence, he prayed
for dismissal of all the writ petitions.
7. Heard the learned counsel appearing on either side and
perused the material placed before this Court.
8. The claimants filed computation petition under Section
33(C)(2) of the ID Act, claiming double the wages for over time work,
double the wages for working weekly holidays and national and festival
holidays with interest at the rate of 12% per annum. The petitioner's
establishment belongs to the government of Tamil Nadu. The claimants
have been appointed in the post of Supervisor and Salesman. As per the
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W.P.Nos.24642 to 24683 of 2009
service condition, the working hours of the petitioner's establishments are
from 10 a.m., to 10 p.m., and the claimants are working on shift basis.
9. Further the claimants are governed by the terms and
conditions and guidelines formulated by the petitioner. All the claimants
had agreed to abide the terms and conditions at the time of their
appointment. They have availed weekly holidays by rotation. Insofar as
the national and festival holidays are concerned, such as Thiruvalluvar
day, Vallalar Day, Mahaveer Jayanthi, Miladi Nabi and Gandhi Jayanthi,
are dry days and those holidays are availed by the claimants. Though the
working hours of the petitioner's shop are from 10 a.m., to 10 p.m., the
claimants were working on shift basis and it is evident from the Ex.R.1
series viz., attendance registers and Ex.R2 series viz., movement registers.
10. On perusal of Ex.R.2 revealed that, the claimants' time of
coming into the shop and time of go out from the shop are entered in the
movement register. Accordingly, no claimants is working more than eight
hours in a day. Likewise, they also availed weekly holiday by rotation.
They also availed national and festival holidays. Admittedly, all the
national holidays are the holidays for the petitioner's shop. Further,
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though the claimants claimed double the wages for over time for the
period from 01.04.2004 to 31.12.2006, as if they worked for 16 hours in
a day, they failed to prove the same by adducing evidence. In support of
their contention, they did not even produce any iota of evidence, to prove
that they had worked 16 hours in a day.
11. Likewise, though the claimants claimed double the wages for
national and festival holidays and weekly holidays, they failed to prove
the same as if, they worked on weekly and national holidays. The
claimants had marked their respective order of appointment and the
government order dated 22.02.2005. Whereas the petitioner had marked
Ex.R1 to Ex.R.3 series and it revealed the movement of the claimants and
their availment of holidays viz., weekly holidays, national and festival
holidays. Therefore, the conclusion of the Labour Court is perverse and
without any evidence.
12. The learned counsel appearing for the claimants relied upon
the judgment reported in (2016) 5 SCR 408 in the case of
A.Satyanarayana Reddy & ors., Vs. Presiding Officer, Labour Court
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W.P.Nos.24642 to 24683 of 2009
& ors., in which the Hon'ble Supreme Court of India held that, if a
workman’s right to receive the benefit is dispute, that may have to be
determined by the Labour Court. Before proceeding to compute the
benefit in terms of money the Labour Court inevitably has to deal with
the question as to whether the workman has a right to receive that benefit.
If the said right is not disputed, nothing more needs to be done and the
Labour Court can proceed to compute the value of the benefit in terms of
money; but if the said right is disputed, the Labour Court must deal with
that question and decide whether the workman has the right to receive the
benefit as alleged by him. Further held that the claim under Section
33(C)(2) of the ID Act, clearly postulates that the determination of the
question about computing the benefit in terms of money may, in some
cases, have to be preceded by an enquiry into the existence of the right
and such an enquiry must be held to be incidental to the main
determination which has been assigned to the Labour Court by sub-
section (2) of Section 33(C) of the ID Act. The jurisdiction of the Labour
Court to entertain application for lay off-compensation under Section
33C(2) of the ID Act, such jurisdiction could not be ousted by a mere
plea denying the workman’s claim for computation of the benefit in terms
of money, adding that the Labour Court had to go into the question and
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W.P.Nos.24642 to 24683 of 2009
determine whether on the facts it had jurisdiction to make the
computation.
13. Whereas in the case on hand, even assuming that the Labour
Court can determine the computation, the claimants failed to prove that
they had worked for 16 hours in a day and they had worked on weekly
holidays and national & festival holidays. Therefore, the above judgment
cited by the learned counsel appearing for the claimants is not applicable
to the case on hand.
14. The learned counsel appearing for the claimants also relied
upon the another judgment of the Hon'ble Supreme Court of India
reported in (1969) 2 SCC 400 in the case of U.P. Electric Supply Co.
Ltd.,VsR.K.Shukla & anr., which held as follows :-
“The legislative intention disclosed by ss. 33 C
(1) and 3 3 -C (2) is fairly clear. Under s. 33-C(1) where
any money is due to a workman from an employer under
a settlement or an award or under the provisions of Ch.
V-A, the workman himself, or any other person
authorised by him in writing in that behalf, may make an
application to the appropriate Government to recover of
the money due to him. Where the workman who is
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W.P.Nos.24642 to 24683 of 2009
entitled to receive from the employer any money or any
benefit which is capable of being computed in terms of
money, applies in that behalf, the Labour Court may
under s. 33-C(2) decide the questions arising as to the
amount of money due or as to the amount at which such
benefit shall be computed. Section 33-C(2) is wider
than s. 33C(1). Matters which do not fall within the
terms of s. 33C(1) may, if the workman is shown to be
entitled to receive the benefits, fall within the terms of s.
33C(2). If the liability arises from an award, settlement
or under the provisions of Ch. V-A, or by virtue of a
statute or a scheme made thereunder, mere denial by
the employer may not be sufficient to negative the claim
under s. 33-C(2) before the Labour Court. Where
however the right to retrenchment compensation which
is the foundation of the claim is itself a matter which is
exclusively within the competence of the Industrial
Tribunal to be adjudicated upon a reference, it would be
straining the language of section 33C(2) to hold that the
question whether there has been retrenchment may be
decided by the, Labour Court. The power of the Labour
Court is to compute the compensation claimed to be
payable to the workmen on the footing that there has
been retrenchment of the workmen. Where retrenchment
is conceded, and the only matter in dispute is that by
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virtue of s. 25FF no liability to pay compensation has
arisen the Labour Court will be competent to decide the
question. In such a case the question is one of
computation and not of determination, of the conditions
precedent to the accrual of liability. Where, however, the
dispute is whether workmen have been retrenched and
computation of the amount is subsidiary or incidental,
in our judgment, the Labour Court will have no
authority to trespass upon the powers of the Tribunal
with which it is statutorily invested. In the unreported
judgment of this Court in The Board of Directors of the
South Arcot Electricity Distribution Co. Ltd. v. N. K.
Mohammed Khan, etc. apparently the only argument
advanced before this Court was that s. 25FF applied to
that case having regard to the fact that the terms of
employment under the new employer were not less
favourable than those immediately applicable to them
before the transfer, and the Court proceeded to hold
that the Labour Court was competent to determine the
compensation.”
15. Thus it is clear that all the dispute relating to claim which
may be computed in terms of money are not necessarily within the terms
of the Section 33(C)(2) of the ID Act. The right to the benefit which is
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sought to be computed under 33(C)(2) of the ID Act, must be an existing
one, that is to say, already adjudicated upon or provided for and must
arise in the course of and in relation to the relationship between an
industrial workman and his employer. Since the scope of sub Section (2)
is wider than that of sub Section (1) and the sub section is not confined to
cases arising under an award, settlement or under the provisions of
Chapter V-A, there is no reason to hold that a benefit provided for under
a statute or a scheme made thereunder, without there being anything
contrary under such statute or 33(C)(2) of the ID Act, cannot fall within
sub Section (2).
16. In the case on hand, the claimants failed to prove that they
had worked more than eight hours in a day. They also failed to prove that
they had worked in the weekly holidays, national and festival holidays.
Therefore, the disputed question of fact cannot be decided under Section
33(C)(2) of the ID Act. Hence, the above judgement is not applicable to
the case on hand. When the claimants made claim under Section
33(C)(2) of the ID Act, they must establish their right in the proceedings.
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17. Insofar the maintainability of the computation petition under
Section 33(C)(2) of the ID Act is concerned, the question of whether the
claimants had worked over time or not and whether they are entitled
double the wages, cannot be decided in the computation petition under
Section 33(C)(2) of the ID Act, since the nature of Labour Court under
Section 33(C)(2) of the ID Act is in the nature of executing Court and
consequently it would not have the jurisdiction to decide the issue. It is
relevant to extract the provisions of Section 33(C) (1) & (2) of Industrial
Disputes Act, hereunder:
“33C. Recovery of money due from an employer:-
(1) Where any money is due to a workman from
an employer under a settlement or an award or under
the provisions of Chapter V-A or Chapter V-B, the
workman himself or any other person authorised by him
in writing in this behalf, or, in the case of the death of
the workman, his assignee or heirs may, without
prejudice to any other mode of recovery, make an
application to the appropriate Government for the
recovery of the money due to him, and if the
appropriate Government is satisfied that any money is
so due, it shall issue a certificate for that amount to the
Collector who shall proceed to recover the same in the
same manner as an arrear of land revenue.
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(2) Where any workman is entitled to receive from
the employer any money or any benefit which is capable
of being computed in terms of money and if any
question arises as to the amount of money due or as to
the amount at which such benefit should be computed,
then the question may, subject to any rules that may be
made under this Act, be decided by such Labour Court
as may be specified in this behalf by the appropriate
Government within a period not exceeding three
months.”
Thus it is clear that where any money is due to the workmen from an
employer under settlement or award or under the provisions of Chapter
V–A or Chapter V–B, the workmen can very well make claim for
recovery of the said money due. Therefore, the Labour Court had passed
the common award without jurisdiction and it is liable to be quashed.
18. Further, the claim of double wages for over time and
holidays can be claimed only after adjudication. It is not a benefits to be
claimed under Section 33(C)(2) of the ID Act. Therefore, the computation
petition itself is not maintainable before the Labour Court. In this regard
it is relevant to rely upon the judgment of the Hon'ble Supreme Court of
India in the case of D.Krishnan and another Vs. Special Officer,
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Vellore Cooperative Sugar Mill and another reported in (2008) 7 SCC
22, wherein it is held that the proceedings under Section 33(C)(2) of the
Industrial Disputes Act could only be effective in case of a pre-existing
right and as the claim of the workman was disputed, it is not a matter for
decision under this provision.
19. It is also relevant to rely upon the judgment of the Hon'ble
Supreme Court of India in the case of H.P.State Electricity Board and
another Vs. Ranjeet Singh and Others reported in (2008) 4 SCC 241,
wherein insofar as bonus is concerned, the Hon'ble Supreme Court of
India held that the Labour Court can decided only the matters specified in
the Second Schedule. The bonus is not covered by the Second Schedule.
The question of entitlement to bonus could not have been decided by the
Labour Court. In case of pre-existing rights, there must be agreements by
both sides about existence of such rights. If there is disagreement, this
has to be decided by the competent authority. Therefore, the computation
petition filed under Section 33(C)(2) of Industrial Disputes Act is not
maintainable to claim double wages on overtime and double wages for
weekly and national & festival holidays.
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20. That apart, the petitioner is the government company
registered under the provisions of the Companies Act and it is wholly
owned by the government of Tamil Nadu. The petitioner requested the
government to make sufficient provisions or suitable notification to
exempt the petitioner's retail shops from the applicability of the
provisions of the Tamil Nadu Shops and Establishment Act. The
government of Tamil Nadu by its communication dated 22.02.2010,
informed the Commissioner of Labour, Chennai that as per sub Section
1(A)(a) of Section 17-C of the Tamil Nadu Prohibition Act, 1937 (Tamil
Nadu Act X of 1937), the petitioner is a corporation wholly owned and
controlled by the State government. It is clear that the petitioner is an
establishment under the State government and consequently, the
provisions of the Tamil Nadu Shops and Establishment Act are not
applicable in view of the exemption contained in Clause (c) of sub
Section (1) of Section 4 the said Act. Therefore, the claim of the
claimants under the Tamil Nadu Shops and Establishment Act, against
the petitioner is not applicable. Hence, this Court has no hesitation to
interfere with the award passed by the Labour Court under Article 226 of
the Constitution of India.
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21. Accordingly, common award dated 26.10.2009, passed by
the first respondent in Claim Petitions Nos. 560 to 601 of 2007, is hereby
set aside and all the Writ Petitions are allowed. Consequently, connected
miscellaneous petitions are also closed. There shall be no order as to cost.
13.09.2023
Internet: Yes
Index : Yes/No
Speaking/Non Speaking order
rts
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W.P.Nos.24642 to 24683 of 2009
To
1. The Presiding Officer,
Principal Labour Court,
Chennai.
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W.P.Nos.24642 to 24683 of 2009
G.K.ILANTHIRAIYAN. J,
rts
W.P.Nos.24642 to 24683 of 2009
and M.P.Nos.1 & 2 of 2009 (42 Nos.)
13.09.2023
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