Madras High Court

The Management vs P.Jayakumar on 8 January, 2024

                                                                          W.P.No.12639 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Dated: 08.01.2024

                                                       Coram:

                                     THE HONOURABLE MRS.JUSTICE N.MALA

                                                 W.P.No.12693 of 2019
                                                         and
                                                WMP.No. 12925 of 2019

                The Management
                Tamil Nadu State transport Corporation,
                (Coimbatore) Ltd.,
                Mettupalayam Road,
                Coimbatore-641 043.

                                                                                 ...Petitioner
                                                          Vs
                P.Jayakumar

                                                                               ...Respondent

                     Writ Petition is filed under Article 226 of the Constitution of India
                praying for issuance of a Writ of Certiorari, calling for the records made in
                CP.No.106 of 2016 dated 02.01.2019 on the file of the Additional Labour
                Court, Coimbatore and quash the same.
                           For Petitioner    : Mr. A.Sundaravadhanam
                                               Standing Counsel

                                    For Respondent : No appearance



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https://www.mhc.tn.gov.in/judis
                                                                            W.P.No.12639 of 2019

                                                     ORDER

Writ petition is filed challenging the order made in C.P.No. 106 of

2016 dated 02.01.2019 whereunder the claim petition of the respondent

claiming monetary relief to the tune of Rs.76,587/- was directed to be paid

along with 6% interest per annum from the date of the petition till

realisation.

2. The petitioner will be referred to as the Corporation and the

respondent as workman.

3. The workman joined the services of the Corporation as a driver on

18.06.2016. According to the workman as per the various settlements

entered between the Trade Unions and the Corporation, the services of a

workman who completed 240 days in a calendar year were to be

regularised. As disciplinary proceedings were pending against the

workman, his services were not regularised. Only after the completion of

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the proceedings, in which, he was found guilty and punishment of

recovery of Rs.74/- from his salary was ordered on 14.10.2008, that the

regularisation order was passed on 23.05.2009, regularising his services

from 01.06.2007. As the salary was not paid to him as per the

regularisation order dated 23.05.2009 for the period from 01.06.2007 to

April 2009, he filed the claim petition for a total sum of Rs.91,774.78/- at

24% interest (Rs.76,586/- towards difference in wages and Rs.15,188/-

towards earned leave).

4. The Corporation filed its counter to the claim petition stating that

the respondent was regularised on 23.05.2009 and the regularisation was

made effective from 01.07.2007. It was the Corporation's case that the

regularisation order did not provide for arrears of wages. It was further

stated that the workman received the regularisation order without any

demur and once the consent was given, it could not be retracted. It was

further stated that as the claim petition claiming differential wages was

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filed belatedly, (i.e) with a delay of 7 years the claim petition deserved to

be dismissed on the ground of delay and laches. The Corporation

questioned the maintainability of the petition under Section 33 C (2) of the

I.D. Act as there was no prior adjudication of the amount claimed.

5. Though notice was served on the respondent, the respondent has

not appeared either in person or through counsel.

6. The learned counsel for the petitioner submits that the Labour

Court failed to note that the claim petition under Section 33-C(2) was not

maintainable. According to the counsel, when the Corporation disputed the

difference in wages claimed and also the right to retrospective payment of

the same, the Labour Court ought to have rejected the claim petition. The

learned counsel submits that the Labour Court failed to note that when

factual disputes were raised on the entitlement, the claim petition could

not be entertained as the sine qua non of Section 33(C)(2) petition is a valid

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adjudication of the right of the workman to the benefits claimed. The

learned counsel relies on the Judgment of this Court in W.P.No.3996 of

2015 dated 10.09.2019 in support of his contentions.

7. The Labour Court on the submission of the Corporation that the

claim petition was hit by delay and laches rejected the same by stating that

the workman was still in service and therefore the claim petition filed on

14.11.2016 while in service could not be considered to be filed belatedly.

On the question of earned leave, the Labour Court rejected the same for

want of pleadings and evidence to show the surrender of earned leave by

the workman during the disputed period. The Labour Court relying on the

pay slips marked as Ex.W2 to Ex.W4 for the period from June 2007 to June

2009 held that the calculation of the workman was correct and proper and

also that there was no serious dispute by the petitioner. The Labour Court

therefore found that the respondent was entitled for the difference in

wages and other benefits as claimed by him in the claim petition.

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Aggrieved by the Award of the Labour Court the Corporation has filed the

above writ petition.

8. As already noted there is no representation for the respondent/

workman.

9. I have considered the submission of the learned counsel for the

petitioner. The Labour Court proceeded on the footing that in the

regularisation order, Ex.W1 no condition was incorporated regarding

arrears of wages. The Labour Court therefore held that when no condition

was imposed the workman was entitled to difference in wages and other

benefits. In my view, the Labour Court has miserably failed to appreciate

the pleading and Ex.W1. The Corporation in para 10 of its counter stated as

follows.

“10. The respondent submits that the regularization order

issued to the petitioner vide ref

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No.2183/E3C/71/PDI/TNSTC/CBE/09 dt.23.05.2009 in which it

is clearly mentioned as @nkw;go Xl;Leh;fSf;F 01/06/2009 md;W tH';fg;glt[s;s nk*2009 khj Cjpaj;Jld;

gzg;gyd; tH';FkhW nfl;Lf;bfhs;sg;gLfpwJ@/ In that

order the respondent has not ordered about the salary arrears for

the period from effective date of regularization to order issued

date. As per the above order the petitioner is eligible monetary

benefits only from 01.06.2009 only.”

10. From a reading of the above para it is seen that the wages on

regularisation were payable only from 01.06.2009. Therefore the Labour

Court has committed a factual error in thinking that there was no condition

regarding payment. Once the salary arrears from effective date of

regularisation to the date of issue of order and the basis for the amount

claimed were disputed, the Labour Court ought to have rejected the claim

petition.

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11. The learned counsel for the Corporation relied on the Judgment of

this Court in W.P.No. 3996 of 2015, wherein under similar factual

circumstances this Court held as follows:

"15. The Labour Court in proceedings under Section 33-

C(2) of the Industrial Disputes Act, cannot adjudicate the issues

on merits, so as to crystallize the rights of the workmen. Such an

adjudication must be done in the manner prescribed under the

Industrial Disputes Act and therefore, the contention of the

learned counsel for the writ petitioner/Corporation that the

Labour Court considered the documents as well as the merits and

accordingly granted the relief by computing the arrears of salary

cannot be accepted. If such an adjudication on merits under

Section 33C(2) is permitted, then the very spirit and purpose of

the adjudication process contemplated under the other provisions

of the Industrial Disputes Act, are not only diluted but also

defeated. Thus, every provisions of the Industrial Disputes Act

has got its own spirit and sanctity."