Madrasdated High Court · 2025

W.P.Nos.10496/ 2010 & 25367/20113.IMPCOPS Thozhilalar Nala Sangam Rep.by its President No.34-37, Kalki Krishnamoorthy Salai Thiruvanmiyur, Chennaij 600 041.

4.Chennai Perunagar Thozhilalar Sangam IMPCOPS Branch Rep.by its President No.34-37, Kalki Krishnamoorthy Salai Thiruvanmiyur, Chennai 600 041.

5.The Joint Commissioner of Labour (Conciliation) D.M.S.Campus Teynampet, Chennai 600 006.

6.M.Evanson (R6 impleaded as per order dated 04.12.2024 in WMP.No.11018 of 2024 in W.P.No.10496 of 2010) ...RespondentsPrayer : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records pertaining to the impugned order in No.U2/42477/2009, dated 05.05.2010 passed by the fifth respondent herein, and quash the same. For Petitioner : Mr.S.Ravindran Senior Counsel Assisted by Mr.A.Govindasamy2/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011For Respondents : Mr.S.Gunasekaran for R1 Notice served - R2 to R4 ( No appearance) Mr.K.Surendran for R5 Additional Government Pleader Mr.K.Sudalai Kannu for R6W.P.No.25367 of 2011V.Amudha... Petitioner Vs.Dr.K.G.RadhakrishnanSecretary i/cThe Indian Medical Practitioners Cooperative Pharmacy & Stores Ltd., X-185 (IMPCOPS)No.34-37, Kalki Krishnamurthy SalaiThiruvanmiyurChennai 600 041. ...RespondentPrayer : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondent to consider the Joint Commissioner (Conciliation) No.U2/42477/2009, dated 05.05.2010 to the respondent to pass such further order or orders as this Court deems fit and improper in the circumstances of the case. 3/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011For Petitioner : (No appearance)For Respondent : Mr.S.Ravindran Senior Counsel Assisted by Mr.A.Govindasamy COMMON ORDERThese Writ Petitions are connected, taken up together and disposed of by this common judgment.

2. The Writ Petition No.10496 of 2010 is filed by the Management, namely the Indian Medical Practitioner's Co-operative Pharmacy and Stores Ltd., challenging the order passed by the fifth respondent namely, the Joint Commissioner of Labour (Conciliation), Chennai, dated 05.05.2010. 4/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/20113. The Writ Petition No.25367 of 2011 is filed by one of the employees namely V.Amudha covered by the said impugned order.

4. The brief factual background in which the Writ Petitions arise is that it seems that concerning skilled and unskilled workers in the petitioner society, there was an anomaly concerning pay fixation between men and women workers. Upon perusal of the averments in the communication of the management dated 22.03.2007, it transpires that the scale of pay for the unskilled male workers was Rs.475-10-555-15-615-20-775 whereas the scale of pay for the female workers was Rs.450-10-570-15-720. When the pay was revised with effect from 01.10.1990 concerning the male workers it was revised as 600-20-720-25-820-35-1520, whereas for the female workers, it is said to be Rs.500 -10-560-15-620-25-1120. In the wake of the said different pay scales, it seems that while certain disputes arose between the Trade Unions and the Management, one of the demands was to alleviate the pay anomaly between male and female workers. When the conciliation proceedings took place in proceedings bearing No.A/153/07 before the fifth 5/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011respondent, a settlement was arrived at between the Management and the Workmen represented by the various trade unions concerning various issues. In the said settlement, Clause 2 covers the removal of pay anomaly between male and female workers. The Clause-2 of the said settlement under Section 12 (3) of the Industrial Disputes Act, 1947 dated 22.03.2007 is extracted hereunder for ready reference; “2/ bgz; bjhHpyhsh;fSf;F Vw;gl;l rk;gs Kuz;ghLfis (Rkhh;) U:/1908-?id) 01/04/2007 Kjy; eph;thfk; tH';f xg;g[f;bfhz;lij bjhHpw;r';fk; Vw;Wf;bfhz;lJ/”5. After the settlement was signed, it is the case of the management that on a subsequent verification while it is true that the pay anomaly between male and female workers has to be removed, however, in the urgency to enter into a settlement, the management was misled by the representations and the amount of Rs.1908/- was fixed by taking into consideration of the salary of the senior most male worker rather than the male worker who is the immediate senior whose pay had to be compared by the female workers. It is the case of the management that even if 6/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011appropriately calculated it had to be Rs.1527/- and not Rs.1908/-. However, given the settlement arrived at, for a brief period the higher pay scale was paid to the female employees. This led to unrest in the industry and the male counterparts who are senior to the female employees questioned the higher salary being paid.

6. In view thereof, the communication dated 22.03.2007 was addressed to the fifth respondent because the amount mentioned in the 12(3) settlement was erroneous. However, while the management clarified the factual position in the said communication, which spans about 6 pages, the final prayer did not request the fifth respondent to conduct conciliation once again and establish a fresh and correct settlement. Instead, it requested him to pass an order directing the correction of the basic pay and total salary of the female skilled workers. Following this communication, it appears that the proceedings continued before the fifth respondent, and the Workman also participated in the hearings.

7. Under the mentioned circumstances, when the hearings 7/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011proceeded before the fifth respondent, one of the Trade Unions approached this Court via Writ Petition No. 5507 of 2009. The prayer in this Writ Petition was to direct the disposal of the petition dated 20.06.2008 before the fifth respondent. However, instead of naming the fifth respondent as a party, it referred to the Deputy Commissioner of Labour in paragraph No.

2. An order was issued on 29.07.2009, directing the Deputy Commissioner of Labour to dispose of the petition dated 20.06.2008. Following this order, it was brought to the Court's attention that the learned counsel had appeared on behalf of the respondents whose names were not printed on the day of the hearing. Upon noticing this, the Court recalled the aforementioned order by an order dated 01.09.2009. Subsequently, the Writ Petition was resolved by an order dated 19.12.2009. This Court observed that the entire proceedings were pending only before the Joint Commissioner of Labour, who had not been included as a party. In light of this, and finding that no relief could be granted in the Writ Petition, it was dismissed. It is noted that at the time of filing the Writ Petition, the matter was pending before the Deputy Commissioner, and only later was it transferred to the Joint Commissioner. 8/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/20118. Be that as it may, the fact remains that no relief was granted in the said Writ Petition. It is thereafter the proceedings before the Joint Commissioner continued and the Joint Commissioner passed the impugned order dated 05.05.2010. In the impugned order, the Joint Commissioner initially considered the settlement entered into under 12(3) and also considered the said Clause 2. However, the Joint Commissioner wrongly understood a direction was given in the said Writ Petition No.5507 of 2009. Be that as it may, ultimately the Joint Commissioner held that once a 12(3) settlement is arrived at, the management cannot contend that it will not pay the salary as per the settlement. If the settlement amount is not paid, the Workman can also approach the Labour Court under Section 33 (C) (2) or under Section 11B or a complaint can also be preferred under Section 29 of the Industrial Disputes Act. Thereafter, the impugned order also states as follows; bjhHpw;r';fj; jug;gpy; jhf;fy; bra;j Mtz';fspd;“ mog;gilapYk;. eph;thfj;jpd; thf;FK:yj;jpYk;. kDjhuh; bjhHpw;r';f cWg;gpdh;fs; ,Wjpahf U:/1717-? bgw jFjpa[[s;sth;fs; vd;W jPh;khdpf;Fk;gl;rj;jpy; 01/01/2009 Kjy; nkw;fz;l bjhifia bgw 9/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011bjhHpyhsh;fs; jahuhf ,Ue;Jk;. eph;thfk; tH';fhjjhy; mjid KgtJkhf bgWtjw;F bjhHpyhsh;fSf;F chpik cz;L vdj; jPh;khdpf;fpnwd;/ mnj rkak;. ,t;thW bgWk; bjhifapy; gpoj;jk; VJk; bra;ag;gl;oUg;gpd; mjid jpUg;gpf; bfhLg;gJld; ,e;j xg;ge;jk; mkypy; ,Uf;Fk; fhyj;jpw;F U:/1717-? Cjpa cah;t[ bgWtjw;F mUfij cilath;fs; vd;gjhy;. ,t;thiz fpilf;fg; bgw;w 30 ehl;fspy; epYitj; bjhif tH';fg;gl ntz;Lk; vd;Wk; ,e;j xg;g[e;jj;jpd; gzg;gad; bjhlh;e;J mky;gLj;jg;gl ntz;Lk; vd;Wk; Mizaplg;gLfpwJ/” 9. Aggrieved by the same, the present Writ Petition is filed by management and one of the workmen has approached to implement the said order. Pending the Writ Petition, yet another male employee by the name M.Evanson sought to be impleaded in the Writ Petition which was also allowed by this Court. It is the grievance of the newly impleaded respondent that the Trade Unions have now abandoned the male Workmen and are not taking care of their interests and therefore he would submit that the interest of the male workers should also be taken care of by this Court.

10. Mr.S.Ravindran, the learned Senior Counsel appearing on behalf of the Management would submit that even though in the letter dated 10/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/201122.03.2007 prayers were made to pass certain directions, it should have been treated only as a dispute that is raised by the management concerning the 12(3) settlement entered into earlier. The management has not gone back from the 12(3) settlement. There is no quarrel over the proposition if the work is the same, there cannot be any discrimination between the male and female workers. However, while calculating the benefits that should accrue to the female workers it was erroneously calculated at a higher rate and therefore the same has to be corrected. When the 12(3) settlement expressly mentioned the amount, the management cannot unilaterally reduce the same and therefore it has raised a fresh dispute. Instead of treating it as a dispute, even though the Workmen were summoned and discussions were held and during the discussion, even the Trade Unions agreed about the mistake, finally the fifth respondent passed the impugned order as if he is a Tribunal. The fifth respondent has no power to issue such directions.

11. In any event, the fifth respondent ought to have stopped by holding that the Workmen should only approach the appropriate Labour Court under Section 33 (C) (2) or a complaint under Section 29. The positive 11/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011direction in the last paragraph of the order was unwarranted and beyond jurisdiction. In any event, the fifth respondent ought to have seen that he was only a conciliation officer and when the management has raised a dispute even if he is finding that the earlier 12(3) settlement is being insisted by the Workmen he ought to have submitted a failure report so that the matter would have been referred by the Government for appropriate adjudication whereby the management could have pleaded the error that occurred while calculating the amount while entering into the earlier 12(3) settlement before the appropriate Labour Court/Tribunal and therefore to that extent this Court should interfere in the matter.

12. The learned counsel appearing on behalf of the Workmen would submit that firstly in this case once a 12(3) settlement is entered into the management ought to have paid the amount as per the 12(3) settlement. When it had paid the amount over some time, there is no question of recovery of the amount paid in excess. Even assuming that the calculation was erroneously made, even as per the contention of the management in paragraph 9 of the communication dated 22.03.2007 the calculation should come to 12/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011Rs.1527/- and they have also made a similar statement in paragraph 7 of the Writ Petition whereby instead of the Basic Pay of Rs.5070/-, it should be fixed at Rs.4750/-. Therefore, the management agreed that the pay of the women Workman should be enhanced. It is only on the quantum they are aggrieved. They have to pay the agreed quantum and the excess amount need not be recovered.

13. Mr.K.Sudalai Kannu, learned counsel appearing on behalf of the newly impleaded male employee would submit that when the male employees are senior to the women employees, merely by claiming parity, they cannot score a march over the male employees and the male employees pay should also be upgraded on par that of the female employees who are junior to the male employees.

14. I have considered the rival submissions made on either side and perused the material records of the case.

15. Firstly, it can be seen that there seems to be a pay anomaly 13/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011concerning the unskilled male and female workers. If the work done by the male and female workers is the same, there cannot be any difference in wages based on gender. Therefore, the agreement in Clause -2 that is extracted above has been rightly entered into. The only thing is that the Union and the employees were kind enough to agree that it can be with effect from 01.04.2007. However, in the calculation, there is a difference, as stated by the management in paragraph 9 of the communication dated 22.03.2007, and the same is extracted as follows;“9. After the said conciliation, the management has fixed the Basic Pay Scale at Rs.4,990/- to the said female unskilled workers with effect from 01.04.2007. By this, the female workers would be able to get Rs.1,527/- only by way of enhanced salary. However, in order to bring the enhanced salary near to the accepted amount of Rs.1,908/- under Section 12 (3) of the Act, on the request from the Unions, one increment of Rs.80/- was granted to the female unskilled workers. Thus, the female unskilled workers' Basic Pay was fixed at Rs.5,070/- per month from 01.04.2007.” 16. Therefore, they contend that it should be Rs.1527/- and it should not be Rs.1908/-. As rightly pointed out by the learned Senior Counsel, the communication prays the fifth respondent to pass orders to that 14/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011effect. Once the 12(3) settlement is entered into, the earlier conciliation proceedings end and therefore, the present communication can at best be treated as a fresh dispute that is raised by the management. Therefore, if in the end of the fresh proceedings, no amicable solution could be arrived at, the fifth respondent should have also sent a failure report. Therefore, the only error committed by the fifth respondent is not adding a paragraph that the fresh dispute raised by the management did not end in any amicable resolution and reporting a failure of the dispute. However, the directions that are given in the last paragraph should not be read in isolation. The fifth respondent only says that once at 12(3) settlement is entered into the management should adhere to it and the Workman should also be entitled to approach the Labour Court under Section 33 (C) (2) or under Section 29 as the case may be. The directions which are given can be read concerning the heading of the order itself, which reads as follows:bjhHpw;jfuhW ? ,k;g;fhg;!; ypkpbll; epWtdj;jpy; gzpahw;Wk;“ 32 bgz; Chpah;fspd; rk;gsk; gw;wpa Kuz;ghLfs;? mwpt[iu?tH';fg;gLfpwJ/”15/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/201117. Therefore, there is nothing erroneous in the fifth respondent advising the management. At best, it is advised that there is a 12(3) settlement, the management better abide by it. However, I am of the view that the order should also contain a report to the Government about the failure of conciliation concerning the second dispute now raised by the management about the quantum. In respect thereof, already 15 years have gone by. Instead of now directing the fifth respondent to report a conciliation failure and, thereafter, directing the appropriate Government to refer the matter to the Labour Court/Tribunal for adjudication, this Court considers the issue on merits. The petitioner is also a multi-state cooperative society. The only grievance that is expressed by the petitioner Society is that the comparable pay scale of the unskilled female worker was the next immediate senior, namely Y.GopalaKrishna, and his Basic Pay was at Rs.4750/-. However, if the sum of Rs.1908/- as per the settlement is added, then the Basic Pay of the female unskilled worker goes up to Rs.5150/-. The said calculations are given in paragraphs Nos.11 to 14 of the Communication dated 22.03.2007. As a matter of fact, the grievance is expressed in paragraph 7, and the same is extracted for ready reference: 16/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011“7. In such circumstances, the petitioner society filed an application Pa.Mu.No.M/153/07 before the Labour Officer-3, seeking to rectify the mistake in 12(3) settlement, fixing the Basic Pay at Rs.4,750/- and the total salary at Rs.12,154/- to the female unskilled workers with effect from 01.04.2007 and consequently, to recover the excess amount paid to the female unskilled workers.” Therefore, the only grievance of the management seems to be that even while agreeing to rectify the anomaly the female worker’s salary has to be stepped up and fixed on par with her immediate senior namely Y.Gopalakrishna at Rs.4750/- and not more than that.

18. The learned counsel appearing on behalf of the female workers would submit that their grievance was also that there should not be any discrimination based on gender and they should be getting equal pay as that of their male counterparts. In that view thereof, instead of once again driving the parties for a long-drawn litigation, the matter is decided by this Court itself. Even though the 12(3) settlement is entered into with the amount 17/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011mentioned, now this Court, after consideration, orders that the said Clause-2 shall be read to mean that the female employees will be paid on par and equal to their male counterparts and the amount of Rs.1908/- cannot be insisted upon by the female employees and it would be appropriately fixed by the management as Rs.4,750/- as prayed in the Writ Petition. Having said that, when the management itself pleads that it was misled to pay a sum of Rs.1908/- and having paid, the excess cannot be recovered now and at the same time, there cannot be any anomaly between the male and female workers.

19. In view thereof, these Writ Petitions are disposed of on the following terms;(i) The 12(3) settlement entered into between the parties more specifically Clause-2 is upheld in as much as it envisaged to undo the pay anomaly between the male and female workers and so long as the male and female workers do the same unskilled or skilled labour, there cannot be any difference in pay scale only by gender;18/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011(ii) The said Clause-2 of the 12 (3) settlement dated 22.03.2007 shall stand modified in as much as the amount that is mentioned as Rs.1908/- to the effect to be equivalent of the immediate senior of the female employee and accordingly it is stated that the pay scales have been fixed to the female employees and they have paid;(iii) Any excess amount that is paid cannot be recovered;(iv) If any of the female employees are not fixed the higher pay scale as envisaged under Clause-2 of the 12(3) settlement on par with immediate male counterparts the same shall be done and arrears shall be paid within 12 weeks from the date of receipt/production of the website uploaded copy of the order without waiting for the certified copy of the order; (v) No costs. Consequently, the connected Miscellaneous Petition is closed. 20.01.2025Neutral Citation : Yes 19/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011dnaToThe Joint Commissioner of Labour (Conciliation)D.M.S.CampusTeynampet, Chennai 600 006.20/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011D.BHARATHA CHAKRAVARTHY, J.dnaW.P.Nos.10496/2010 & 25367/2011andM.P.No.1 of 201020.01.202521/21

W.P.Nos.10496/ 2010 & 25367/20113.IMPCOPS Thozhilalar Nala Sangam Rep.by its President No.34-37, Kalki Krishnamoorthy Salai Thiruvanmiyur, Chennaij 600 041.

4.Chennai Perunagar Thozhilalar Sangam IMPCOPS Branch Rep.by its President No.34-37, Kalki Krishnamoorthy Salai Thiruvanmiyur, Chennai 600 041.

5.The Joint Commissioner of Labour (Conciliation) D.M.S.Campus Teynampet, Chennai 600 006.

6.M.Evanson (R6 impleaded as per order dated 04.12.2024 in WMP.No.11018 of 2024 in W.P.No.10496 of 2010) ...RespondentsPrayer : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records pertaining to the impugned order in No.U2/42477/2009, dated 05.05.2010 passed by the fifth respondent herein, and quash the same. For Petitioner : Mr.S.Ravindran Senior Counsel Assisted by Mr.A.Govindasamy2/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011For Respondents : Mr.S.Gunasekaran for R1 Notice served - R2 to R4 ( No appearance) Mr.K.Surendran for R5 Additional Government Pleader Mr.K.Sudalai Kannu for R6W.P.No.25367 of 2011V.Amudha... Petitioner Vs.Dr.K.G.RadhakrishnanSecretary i/cThe Indian Medical Practitioners Cooperative Pharmacy & Stores Ltd., X-185 (IMPCOPS)No.34-37, Kalki Krishnamurthy SalaiThiruvanmiyurChennai 600 041. ...RespondentPrayer : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondent to consider the Joint Commissioner (Conciliation) No.U2/42477/2009, dated 05.05.2010 to the respondent to pass such further order or orders as this Court deems fit and improper in the circumstances of the case. 3/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011For Petitioner : (No appearance)For Respondent : Mr.S.Ravindran Senior Counsel Assisted by Mr.A.Govindasamy COMMON ORDERThese Writ Petitions are connected, taken up together and disposed of by this common judgment.

2. The Writ Petition No.10496 of 2010 is filed by the Management, namely the Indian Medical Practitioner's Co-operative Pharmacy and Stores Ltd., challenging the order passed by the fifth respondent namely, the Joint Commissioner of Labour (Conciliation), Chennai, dated 05.05.2010. 4/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/20113. The Writ Petition No.25367 of 2011 is filed by one of the employees namely V.Amudha covered by the said impugned order.

4. The brief factual background in which the Writ Petitions arise is that it seems that concerning skilled and unskilled workers in the petitioner society, there was an anomaly concerning pay fixation between men and women workers. Upon perusal of the averments in the communication of the management dated 22.03.2007, it transpires that the scale of pay for the unskilled male workers was Rs.475-10-555-15-615-20-775 whereas the scale of pay for the female workers was Rs.450-10-570-15-720. When the pay was revised with effect from 01.10.1990 concerning the male workers it was revised as 600-20-720-25-820-35-1520, whereas for the female workers, it is said to be Rs.500 -10-560-15-620-25-1120. In the wake of the said different pay scales, it seems that while certain disputes arose between the Trade Unions and the Management, one of the demands was to alleviate the pay anomaly between male and female workers. When the conciliation proceedings took place in proceedings bearing No.A/153/07 before the fifth 5/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011respondent, a settlement was arrived at between the Management and the Workmen represented by the various trade unions concerning various issues. In the said settlement, Clause 2 covers the removal of pay anomaly between male and female workers. The Clause-2 of the said settlement under Section 12 (3) of the Industrial Disputes Act, 1947 dated 22.03.2007 is extracted hereunder for ready reference; “2/ bgz; bjhHpyhsh;fSf;F Vw;gl;l rk;gs Kuz;ghLfis (Rkhh;) U:/1908-?id) 01/04/2007 Kjy; eph;thfk; tH';f xg;g[f;bfhz;lij bjhHpw;r';fk; Vw;Wf;bfhz;lJ/”5. After the settlement was signed, it is the case of the management that on a subsequent verification while it is true that the pay anomaly between male and female workers has to be removed, however, in the urgency to enter into a settlement, the management was misled by the representations and the amount of Rs.1908/- was fixed by taking into consideration of the salary of the senior most male worker rather than the male worker who is the immediate senior whose pay had to be compared by the female workers. It is the case of the management that even if 6/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011appropriately calculated it had to be Rs.1527/- and not Rs.1908/-. However, given the settlement arrived at, for a brief period the higher pay scale was paid to the female employees. This led to unrest in the industry and the male counterparts who are senior to the female employees questioned the higher salary being paid.

6. In view thereof, the communication dated 22.03.2007 was addressed to the fifth respondent because the amount mentioned in the 12(3) settlement was erroneous. However, while the management clarified the factual position in the said communication, which spans about 6 pages, the final prayer did not request the fifth respondent to conduct conciliation once again and establish a fresh and correct settlement. Instead, it requested him to pass an order directing the correction of the basic pay and total salary of the female skilled workers. Following this communication, it appears that the proceedings continued before the fifth respondent, and the Workman also participated in the hearings.

7. Under the mentioned circumstances, when the hearings 7/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011proceeded before the fifth respondent, one of the Trade Unions approached this Court via Writ Petition No. 5507 of 2009. The prayer in this Writ Petition was to direct the disposal of the petition dated 20.06.2008 before the fifth respondent. However, instead of naming the fifth respondent as a party, it referred to the Deputy Commissioner of Labour in paragraph No.

2. An order was issued on 29.07.2009, directing the Deputy Commissioner of Labour to dispose of the petition dated 20.06.2008. Following this order, it was brought to the Court's attention that the learned counsel had appeared on behalf of the respondents whose names were not printed on the day of the hearing. Upon noticing this, the Court recalled the aforementioned order by an order dated 01.09.2009. Subsequently, the Writ Petition was resolved by an order dated 19.12.2009. This Court observed that the entire proceedings were pending only before the Joint Commissioner of Labour, who had not been included as a party. In light of this, and finding that no relief could be granted in the Writ Petition, it was dismissed. It is noted that at the time of filing the Writ Petition, the matter was pending before the Deputy Commissioner, and only later was it transferred to the Joint Commissioner. 8/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/20118. Be that as it may, the fact remains that no relief was granted in the said Writ Petition. It is thereafter the proceedings before the Joint Commissioner continued and the Joint Commissioner passed the impugned order dated 05.05.2010. In the impugned order, the Joint Commissioner initially considered the settlement entered into under 12(3) and also considered the said Clause 2. However, the Joint Commissioner wrongly understood a direction was given in the said Writ Petition No.5507 of 2009. Be that as it may, ultimately the Joint Commissioner held that once a 12(3) settlement is arrived at, the management cannot contend that it will not pay the salary as per the settlement. If the settlement amount is not paid, the Workman can also approach the Labour Court under Section 33 (C) (2) or under Section 11B or a complaint can also be preferred under Section 29 of the Industrial Disputes Act. Thereafter, the impugned order also states as follows; bjhHpw;r';fj; jug;gpy; jhf;fy; bra;j Mtz';fspd;“ mog;gilapYk;. eph;thfj;jpd; thf;FK:yj;jpYk;. kDjhuh; bjhHpw;r';f cWg;gpdh;fs; ,Wjpahf U:/1717-? bgw jFjpa[[s;sth;fs; vd;W jPh;khdpf;Fk;gl;rj;jpy; 01/01/2009 Kjy; nkw;fz;l bjhifia bgw 9/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011bjhHpyhsh;fs; jahuhf ,Ue;Jk;. eph;thfk; tH';fhjjhy; mjid KgtJkhf bgWtjw;F bjhHpyhsh;fSf;F chpik cz;L vdj; jPh;khdpf;fpnwd;/ mnj rkak;. ,t;thW bgWk; bjhifapy; gpoj;jk; VJk; bra;ag;gl;oUg;gpd; mjid jpUg;gpf; bfhLg;gJld; ,e;j xg;ge;jk; mkypy; ,Uf;Fk; fhyj;jpw;F U:/1717-? Cjpa cah;t[ bgWtjw;F mUfij cilath;fs; vd;gjhy;. ,t;thiz fpilf;fg; bgw;w 30 ehl;fspy; epYitj; bjhif tH';fg;gl ntz;Lk; vd;Wk; ,e;j xg;g[e;jj;jpd; gzg;gad; bjhlh;e;J mky;gLj;jg;gl ntz;Lk; vd;Wk; Mizaplg;gLfpwJ/” 9. Aggrieved by the same, the present Writ Petition is filed by management and one of the workmen has approached to implement the said order. Pending the Writ Petition, yet another male employee by the name M.Evanson sought to be impleaded in the Writ Petition which was also allowed by this Court. It is the grievance of the newly impleaded respondent that the Trade Unions have now abandoned the male Workmen and are not taking care of their interests and therefore he would submit that the interest of the male workers should also be taken care of by this Court.

10. Mr.S.Ravindran, the learned Senior Counsel appearing on behalf of the Management would submit that even though in the letter dated 10/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/201122.03.2007 prayers were made to pass certain directions, it should have been treated only as a dispute that is raised by the management concerning the 12(3) settlement entered into earlier. The management has not gone back from the 12(3) settlement. There is no quarrel over the proposition if the work is the same, there cannot be any discrimination between the male and female workers. However, while calculating the benefits that should accrue to the female workers it was erroneously calculated at a higher rate and therefore the same has to be corrected. When the 12(3) settlement expressly mentioned the amount, the management cannot unilaterally reduce the same and therefore it has raised a fresh dispute. Instead of treating it as a dispute, even though the Workmen were summoned and discussions were held and during the discussion, even the Trade Unions agreed about the mistake, finally the fifth respondent passed the impugned order as if he is a Tribunal. The fifth respondent has no power to issue such directions.

11. In any event, the fifth respondent ought to have stopped by holding that the Workmen should only approach the appropriate Labour Court under Section 33 (C) (2) or a complaint under Section 29. The positive 11/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011direction in the last paragraph of the order was unwarranted and beyond jurisdiction. In any event, the fifth respondent ought to have seen that he was only a conciliation officer and when the management has raised a dispute even if he is finding that the earlier 12(3) settlement is being insisted by the Workmen he ought to have submitted a failure report so that the matter would have been referred by the Government for appropriate adjudication whereby the management could have pleaded the error that occurred while calculating the amount while entering into the earlier 12(3) settlement before the appropriate Labour Court/Tribunal and therefore to that extent this Court should interfere in the matter.

12. The learned counsel appearing on behalf of the Workmen would submit that firstly in this case once a 12(3) settlement is entered into the management ought to have paid the amount as per the 12(3) settlement. When it had paid the amount over some time, there is no question of recovery of the amount paid in excess. Even assuming that the calculation was erroneously made, even as per the contention of the management in paragraph 9 of the communication dated 22.03.2007 the calculation should come to 12/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011Rs.1527/- and they have also made a similar statement in paragraph 7 of the Writ Petition whereby instead of the Basic Pay of Rs.5070/-, it should be fixed at Rs.4750/-. Therefore, the management agreed that the pay of the women Workman should be enhanced. It is only on the quantum they are aggrieved. They have to pay the agreed quantum and the excess amount need not be recovered.

13. Mr.K.Sudalai Kannu, learned counsel appearing on behalf of the newly impleaded male employee would submit that when the male employees are senior to the women employees, merely by claiming parity, they cannot score a march over the male employees and the male employees pay should also be upgraded on par that of the female employees who are junior to the male employees.

14. I have considered the rival submissions made on either side and perused the material records of the case.

15. Firstly, it can be seen that there seems to be a pay anomaly 13/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011concerning the unskilled male and female workers. If the work done by the male and female workers is the same, there cannot be any difference in wages based on gender. Therefore, the agreement in Clause -2 that is extracted above has been rightly entered into. The only thing is that the Union and the employees were kind enough to agree that it can be with effect from 01.04.2007. However, in the calculation, there is a difference, as stated by the management in paragraph 9 of the communication dated 22.03.2007, and the same is extracted as follows;“9. After the said conciliation, the management has fixed the Basic Pay Scale at Rs.4,990/- to the said female unskilled workers with effect from 01.04.2007. By this, the female workers would be able to get Rs.1,527/- only by way of enhanced salary. However, in order to bring the enhanced salary near to the accepted amount of Rs.1,908/- under Section 12 (3) of the Act, on the request from the Unions, one increment of Rs.80/- was granted to the female unskilled workers. Thus, the female unskilled workers' Basic Pay was fixed at Rs.5,070/- per month from 01.04.2007.” 16. Therefore, they contend that it should be Rs.1527/- and it should not be Rs.1908/-. As rightly pointed out by the learned Senior Counsel, the communication prays the fifth respondent to pass orders to that 14/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011effect. Once the 12(3) settlement is entered into, the earlier conciliation proceedings end and therefore, the present communication can at best be treated as a fresh dispute that is raised by the management. Therefore, if in the end of the fresh proceedings, no amicable solution could be arrived at, the fifth respondent should have also sent a failure report. Therefore, the only error committed by the fifth respondent is not adding a paragraph that the fresh dispute raised by the management did not end in any amicable resolution and reporting a failure of the dispute. However, the directions that are given in the last paragraph should not be read in isolation. The fifth respondent only says that once at 12(3) settlement is entered into the management should adhere to it and the Workman should also be entitled to approach the Labour Court under Section 33 (C) (2) or under Section 29 as the case may be. The directions which are given can be read concerning the heading of the order itself, which reads as follows:bjhHpw;jfuhW ? ,k;g;fhg;!; ypkpbll; epWtdj;jpy; gzpahw;Wk;“ 32 bgz; Chpah;fspd; rk;gsk; gw;wpa Kuz;ghLfs;? mwpt[iu?tH';fg;gLfpwJ/”15/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/201117. Therefore, there is nothing erroneous in the fifth respondent advising the management. At best, it is advised that there is a 12(3) settlement, the management better abide by it. However, I am of the view that the order should also contain a report to the Government about the failure of conciliation concerning the second dispute now raised by the management about the quantum. In respect thereof, already 15 years have gone by. Instead of now directing the fifth respondent to report a conciliation failure and, thereafter, directing the appropriate Government to refer the matter to the Labour Court/Tribunal for adjudication, this Court considers the issue on merits. The petitioner is also a multi-state cooperative society. The only grievance that is expressed by the petitioner Society is that the comparable pay scale of the unskilled female worker was the next immediate senior, namely Y.GopalaKrishna, and his Basic Pay was at Rs.4750/-. However, if the sum of Rs.1908/- as per the settlement is added, then the Basic Pay of the female unskilled worker goes up to Rs.5150/-. The said calculations are given in paragraphs Nos.11 to 14 of the Communication dated 22.03.2007. As a matter of fact, the grievance is expressed in paragraph 7, and the same is extracted for ready reference: 16/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011“7. In such circumstances, the petitioner society filed an application Pa.Mu.No.M/153/07 before the Labour Officer-3, seeking to rectify the mistake in 12(3) settlement, fixing the Basic Pay at Rs.4,750/- and the total salary at Rs.12,154/- to the female unskilled workers with effect from 01.04.2007 and consequently, to recover the excess amount paid to the female unskilled workers.” Therefore, the only grievance of the management seems to be that even while agreeing to rectify the anomaly the female worker’s salary has to be stepped up and fixed on par with her immediate senior namely Y.Gopalakrishna at Rs.4750/- and not more than that.

18. The learned counsel appearing on behalf of the female workers would submit that their grievance was also that there should not be any discrimination based on gender and they should be getting equal pay as that of their male counterparts. In that view thereof, instead of once again driving the parties for a long-drawn litigation, the matter is decided by this Court itself. Even though the 12(3) settlement is entered into with the amount 17/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011mentioned, now this Court, after consideration, orders that the said Clause-2 shall be read to mean that the female employees will be paid on par and equal to their male counterparts and the amount of Rs.1908/- cannot be insisted upon by the female employees and it would be appropriately fixed by the management as Rs.4,750/- as prayed in the Writ Petition. Having said that, when the management itself pleads that it was misled to pay a sum of Rs.1908/- and having paid, the excess cannot be recovered now and at the same time, there cannot be any anomaly between the male and female workers.

19. In view thereof, these Writ Petitions are disposed of on the following terms;(i) The 12(3) settlement entered into between the parties more specifically Clause-2 is upheld in as much as it envisaged to undo the pay anomaly between the male and female workers and so long as the male and female workers do the same unskilled or skilled labour, there cannot be any difference in pay scale only by gender;18/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011(ii) The said Clause-2 of the 12 (3) settlement dated 22.03.2007 shall stand modified in as much as the amount that is mentioned as Rs.1908/- to the effect to be equivalent of the immediate senior of the female employee and accordingly it is stated that the pay scales have been fixed to the female employees and they have paid;(iii) Any excess amount that is paid cannot be recovered;(iv) If any of the female employees are not fixed the higher pay scale as envisaged under Clause-2 of the 12(3) settlement on par with immediate male counterparts the same shall be done and arrears shall be paid within 12 weeks from the date of receipt/production of the website uploaded copy of the order without waiting for the certified copy of the order; (v) No costs. Consequently, the connected Miscellaneous Petition is closed. 20.01.2025Neutral Citation : Yes 19/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011dnaToThe Joint Commissioner of Labour (Conciliation)D.M.S.CampusTeynampet, Chennai 600 006.20/21 https://www.mhc.tn.gov.in/judis W.P.Nos.10496/ 2010 & 25367/2011D.BHARATHA CHAKRAVARTHY, J.dnaW.P.Nos.10496/2010 & 25367/2011andM.P.No.1 of 201020.01.202521/21