S. Ponnusamy v. The Presiding Officer Labour Court Salem.2. The Management of Madras Aluminum Company

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.02.2005CORAMTHE HONOURABLE MR JUSTICE V. KANAGARAJW.P. No.1601 of 1997S. Ponnusamy... PetitionerVs.1. The Presiding Officer Labour Court Salem.2. The Management of Madras Aluminum Company Ltd., Mettur Dam Salem District.... RespondentsWrit Petitions filed under Article 226 of the Constitution ofIndia praying for the relief extracted supra.For Petitioner : Mr. V. Prakash, Senior Counsel for M/s. G.Ramapriya & Mr.Ravindran, T.Ramkumar For 2nd Respondent: M/s. T.S. Gopalan & Co O R D E RThe writ petition has been filed praying to issue a Writ ofCertiorari calling for the records of the first respondent relatingto his common order dated 14.2.1995 in C.P.Nos.6 of 1992 and 252 of1992, quash the same in so far as it denied the benefits ofreinstatement to the petitioner as a Shift-in-Charge (or AssistantProduction Chemist) and the relief prayed for by the petitioner.2. In the affidavit filed in support of the first Petitionreferred to above, the petitioner would submit that he joined theservices of the second respondent company on 4.4.1978; that he alsoperformed the duties of the shift in charge and was the sole shift incharge of the boiler house though he was designated as ApprenticeTrainee; that the period of his training was extended periodically andhe was required to obtain a first class Boiler Competency Certificate https://hcservices.ecourts.gov.in/hcservices/ during the period of training, which, according to the Madras BoilerAttendant Rules could be obtained only after a minimum period of fiveyears of service; that after obtaining the second class BoilerCompetency Certificate on 4.10.1981, he was terminated from serviceon the ground that he had not obtained a first class Boiler CompetencyCertificate; that he raised an Industrial Dispute No.82 of 1982 beforethe Labour Court, Coimbatore challenging his termination; that theLabour Court by award dated 9.3.1983 directed the petitioner to bereinstated with continuity of service and backwages; that thepetitioner filed a claim petition No.406 of 1983 under Section 33-C(2)of the Industrial Disputes Act before the same Court claimingbackwages for the period from 4.4.1979 to 4.4.1983; that during thependency of the said claim petition, the second respondent filedW.P.No.8353 of 1983 challenging the said award; that this Courtdismissed the above writ petition by order dated 21.10.1991; that on16.12.1991, the second respondent issued an order reinstating thepetitioner in the post of Helper; that during his earlier tenure ofservice he worked as Shift In-charge, which is a higher post than thepost of Helper; that he made representations to the second respondentto reinstate him as Shift In-charge to which there was no response;that he preferred a complaint on 25.3.1992 under Section 29 of theIndustrial Disputes Act before the Labour Officer, Salem in respect ofthe non-implementation of the Award in I.D.No.82 of 1982 by the secondrespondent; that the second respondent preferred a criminal originalpetition No.176 of 1994 seeking to quash the said proceedings andobtained a stay of proceedings and subsequently, the same wasdismissed as withdrawn on 30.1.1985; that the petitioner also filedclaim petition No.252 of 1992 claiming back wages of Rs.7,57,285/- forthe period from 5.10.1983 to 5.12.1992; that his earlier claimpetition was also transferred to the Labour Court, Salem and re-numbered as C.P.No.6 of 1992; that as per the settlement under Section12(3) of the Industrial Disputes Act, the petitioner claimed that hehad to be designated as Assistant Production Chemist; that theManagement contended that the petitioner was not entitled to any wagesafter 28.12.1991 and issued a notice directing him to join duty asHelper since he had refused to join duty as Helper; that the LabourCourt, Salem by common order dated 14.2.1995 in both the claimpetitions computed the amount to be paid to the petitioner for theperiod covered in C.P.252 of 1992 at Rs.86,792.50 and for the periodcovered in C.P.No.6 of 1992 at Rs.25,170/-; that it is only againstthese orders the petitioner has come forward with the above writpetition for the relief extracted supra.3. In the counter affidavit filed by the second respondent ,it would submit that the second respondent is manufacturing aluminumingots and wire rods having three boilers and some Boiler Operatorshaving first class Boiler Competency Certificate; that on 28.3.1978,the petitioner was appointed as an Apprentice Trainee for one year oncondition that he should acquire first class Boiler CompetencyCertificate during the period of training; that despite granting of https://hcservices.ecourts.gov.in/hcservices/ extension of time till 3.10.1981, he could not secure the same and sohis employment came to an end on 3.10.1981; that the petitioner raisedI.D.No.82 of 1982 before the Labour Court, Coimbatore and by awarddated 9.3.1983, the Labour Court held that the termination of hisemployment would amount to retrenchment and as the provisions ofsection 25-F of the Industrial Dispute Act had not been complied with,the same was not justified and hence directed the reinstatement of thepetitioner with continuity of service and back wages; that the secondrespondent preferred W.P.No.8353 of 1983 before this Court and byorder dated 21.10.91, this Court confirmed the award of Labour Court;that on 12.12.1991, the second respondent called the petitioner fordiscussion and as the post of Boiler Attendant required a first classBoiler Competency Certificate; that the petitioner could be appointedonly as a Helper and in that view, on 16.12.91, the second respondentappointed the petitioner as degrade helper but the petitioner insistedappointment as Shift In-charge; that the petitioner filed C.P.No.6 of1992 for back wages and C.P.No.252 of 92 was for wages as Shift In-charge till that date that by a common order, the first respondentpassed an order on 14.2.1995 holding that the petitioner could bereinstated only in the post which he held before termination and asthe petitioner did not acquire the required certificate; that the backwages was computed at Rs.25,170/- in CP.No.6 of 1992 and atRs.86,792.50 in C.P.No.652 of 1992 and in other respects, the claim ofthe petitioner was rejected; that according to the second respondent,the petitioner cannot agitate the question of his being appointed asShift In-charge against the post of Helper offered by the secondrespondent in a proceedings under Section 33-C(2) of the IndustrialDisputes Act, 1947 and hence, the allegations made by the petitionerare liable to be rejected and would pray to dismiss the writ petitionreferred above.4. During arguments, Mr. Prakash, learned Senior Counselappearing on behalf of the petitioner would submit that the impugnedorder suffers fro errors of law apparent on the face of the record;that the Labour Court had acted beyond the purview of its jurisdictionunder Section 33-C(2) of the Industrial Disputes Act 1947; that theLabour Court only performs the functions of the Executing Court, whichhas to give effect to the Award in the Industrial Dispute based onwhich the claim petition has been filed and not to go beyond theorder; that the Labour Court has failed to appreciate the import ofthe term "reinstatement"; that the reinstatement means putting backthe employee in the same position that he was in, prior to thetermination from service; that the Labour Court erred in holding thatthe petitioner is not entitled to any wages for the period beyond21.12.1991 on the basis that the petitioner had refused to join dutyin the post of Helper and therefore, the petitioner has come forwardwith the above writ petition for the relief extracted supra. 5. On the contrary, the learned counsel appearing for the2nd respondent would submit that the workman cannot ask for a job https://hcservices.ecourts.gov.in/hcservices/ which he is not legally entitled to; that the impugned award does notsuffer from any apparent error of law or there is any perversity,which needs interference under Article 226 of the Constitution ofIndia and would pray to dismiss the writ petition. Learned counselfor the second respondent-Management would also cite the followingdecisions in support of the case of this respondent. (i) 1957-2- LLJ696 (SHETTY S.S. Vs. BHARAT NIDHI, LTD.,) (ii) 1996-2- LLJ 216 (THEPRESIDENT, SRIRANGAM CO-OPERATIVE URBAN BANK LTD., Vs. PRESIDINGOFFICER, LABOUR COURT, MADURAI AND OTHER (iii)2000-2-LLJ 1660 (STATEBANK OF INDIA Vs. RAM CHANDRA DUBEY & OTHERS)(i) In the first judgment cited above, the Honourable Apex Courthas held"Whatever be the position in regard to the termsand conditions of employment thus varied inaccordance with the terms of the award, thebenefit of reinstatement awarded to a workmancertainly cannot be treated as part of thecontract between him and the employer. The effectof an order of reinstatement is merely to set atnought the order of wrongful dismissal of theworkman by the employer and to reinstate him inthe service of the employer as if the contract ofemployment originally entered into had beencontinuing. The terms and conditions of thecontract which obtained when the workman was inthe employment of the employer prior to hiswrongful dismissal which has been set asidecontinue to govern the relations between theparties and the workman continues in theemployment of the employer under those terms andconditions. There is no variation of those termsand conditions of the contract. The only thingwhich happens is that the workman is reinstated inhis old service as before."(ii) In the second judgment cited above the Honourable Division Benchof this Court has held"It is not in dispute that the writ petitioner wasworking on daily wage basis and he was being paida sum of Rs.13/- per day, excluding, Sundays, atthe time when his services were terminated. Insuch a case when the termination has been made inviolation of Section 25F of the Act, the directionfor reinstatement should be only to the effectthat the workman should be reinstated in the sameposition and the same nature of employment whichhe was enjoying on the date of termination. Theorder passed by the learned single judge does not https://hcservices.ecourts.gov.in/hcservices/ make that point clear, therefore we modify theorder of the learned single judge insofar as itdirects reinstatement of the writ petitioner withcontinuity of service, back wages and all otherattendant benefits in the following terms;The 2nd respondent workman be reinstated asdaily wage workman at the rate of Rs.13/- perday. However, we make it clear that if onthe date of reinstatement there is anincrease in the daily wages, he would beentitled to such increase. As far as thearrears of wages from the date of terminationtill March 31, 1996 is concerned it has beencalculated at the rate of Rs.13/- per day,excluding Sundays by the appellant bank,amounting to Rs.54,275/-. Shri K.Chandrulearned counsel appearing for the 2ndrespondent workman submits that the workmanaccepts the said amount as arrears of wagessubject to any statutory benefits, ifavailable to the daily wage workmen andsubject to payment of reinstatement. Learnedcounsel for the appellant bank also submitsthat the bank has no objection for payment ofRs.54,275/- as arrears of wages from the dateof termination till the end of March, 1996.We place these submissions on record and onthe basis of those submissions, we issuefurther directions in addition to the oneissued above."(iii) In the third judgment cited above, the Honourable Apex Court inparagraph 8 of its judgment has held"The, principles enunciated in the decisionsreferred by either side can be summed up asfollows:Whenever a workman is entitled to receive from hisemployer any money or any benefit which is capableof being computed in terms of money and which heis entitled to receive from his employer and isdenied of such benefit, can approach Labour Courtunder Section 33-C (2) of the Act. The benefitsought to be enforced under Section 33-C (2) ofthe Act is necessarily a pre-existing benefit orone flowing from a pre-existing right. Thedifference between a pre-existing right or benefiton one hand and the right or benefit, which is https://hcservices.ecourts.gov.in/hcservices/ considered, just and fair on the other hand isvital. The former falls within the jurisdiction ofLabour Court exercising powers under Section 33-C(2) of the Act while the latter does not. Itcannot be spelt out from the award in the presentcase that such a right or benefit has accrued tothe workman as the specific question of the reliefgranted is confirmed only to the reinstatementwithout stating anything more as to the backwages. Hence, that relief must be deemed to havebeen denied, for want is claimed but not granted,necessarily gets denied in judicial or quasi-judicial proceeding. Further when a questionarises as to the adjudication of a claim for backwages all relevant circumstances which will haveto be gone into, are to be considered in ajudicious manner. Therefore, the appropriate forumwherein such question of back wages could bedecided is only in a proceeding to whom areference under Section 10 of the Act is made."6. In consideration of the facts pleaded, having regard tothe materials placed on record and upon hearing the learned counselappearing on behalf of both, what comes to be assessed by this Courtis that the petitioner an employee of the second respondent managementhas filed the above writ petition praying for a Writ of Certiorari tobe issued relating to the common order passed by the first respondentherein dated 14.2.1995 made in C.P.Nos.6 of 1992 and 252 of 1992 quashthe same in so far as it denied the benefit of reinstatement to thepetitioner as Shift in-charge (or Assistant Production Chemist) andthe relief prayed for by the petitioner, adhering to the prayer madein the writ petition if an order has to be passed by this Courtpertaining to the case of the petitioner in the context of the orderimpugned herein passed by The Presiding Officer, Labour Court, Salem,the first respondent herein under Section 33-C (2) of the IndustrialDisputes Act, 1947 thereby seeking to reinstate him as AssistantProduction Chemist and pay the back wages in terms of said posting. 7. The Labour Court, Salem having conducted thorough enquiryinto the facts and circumstances of the case projected by thepetitioner herein before it and having afforded with such opportunityfor both to he heard during which though on the part of both partiesno oral evidence has been adduced but nine documents would be markedon the part of the petitioner as Exhibits W-1 to W-9 and 24 documentswould be marked on the part of the management as Exhibits M-1 to M-24and in consideration of these materials placed on record and afterhearing their counsel would ultimately arrive at the conclusionholding that the petitioner was not entitled to the back wages as ofShift in-charge (or Assistant Production Chemist) but only as a helperthus partly allowing C.P.Nos.6 of 1992 and 252 of 1992 and directing https://hcservices.ecourts.gov.in/hcservices/ the second respondent to pay to the petitioner a sum of Rs.25,170/-and a further sum of Rs.100/- as costs, as per order in C.P.No.6 of1992 and further directing the management to pay to the petitioner asum Rs.86,792.50 with a costs of Rs.100/- as per order in C.P.No.252of 1992 and it is the common award passed by the Labour Court, Salemas per its order dated 14.2.1995. Aggrieved, the petitioner has comeforward before this Court to testify the Judicial Review in theabove writ petition on grounds such as those brought forth supra.The pertinent question for decision is whether the labour Court belowis right in holding that the petitioner is only entitled to bereinstated as a helper and not as a shift in-charge (or AssistantProduction Chemist) and that he is entitled to the back wages for theperiod calculated therein on such terms? To answer this question, itis relevant to go into the factual position of the case and a carefulperusal of the common award passed by the Labour Court below wouldclearly show that in due consideration of the pleadings of parties andhaving given full opportunities for the parties to be heard on a fullenquiry held and in consideration of those materials placed in theform of documentary evidence on both sides and upon hearing theirlearned counsel ultimate decisions have been arrived at by the LabourCourt; that in the facts and circumstances of the case the petitionercould only be treated as a helper and not as Assistant ProductionChemist and only on such terms his back wages could be calculated forthose periods that he had attended duties and has passed its award asaforementioned.8. The argument of the petitioner is that the Labour Court,Salem has erred in its decision acting over and beyond the award andwithout acting as a Court of execution it has gone beyond itsjurisdiction in assessing the subject matter as a Court of Enquiryand therefore the award is bad. Furthermore, it would be argued thatthe term reinstatement would only mean putting together the employeein the same position that he was already in, prior to termination fromservice and that the Labour Court has erred in holding that thepetitioner is not entitled to back-wages for the period beyond21.12.1991, since the petitioner refused to join duty in the post ofhelper. 9. Regarding this point though all the three judgments citedon the part of the 2nd respondent would deal with the position of lawstill the first judgment extracted above reported in (supra) 1957 (II)LLJ 696 serves giving clarity to the position of law pertaining tothe subject wherein it is definitely held that 'the terms andconditions of the contract which obtained when the workman was in theemployment of the employer prior to his wrongful dismissal which hasbeen set aside continue to govern the relations between the partiesand the workman continues in the employment of the employer underthose terms and conditions. There is no variation of those terms andconditions of the contract. The only thing which happens is that the https://hcservices.ecourts.gov.in/hcservices/ workman is reinstated in his old service as before'. In applicationof this proposition of law to the context of the facts of the case inhand, it would be argued on the part of the petitioner that at thetime of termination of contract of service he was working as shift in-charge not as Assistant Production Chemist, which is higher post,those that of the helper and therefore he should be reinstated as perthe directions of the Labour Court only as a shift in-charge and notas a helper. However, on the part of the management it would bestrongly argued that the petitioner was appointed as apprenticetrainee for one year on condition that he should acquire the FirstClass Boiler Competency Certificate during the period of training butdespite granting extension of time he could not secure the saidcertificate and hence it should be construed that his employment cameto an end as on 3.10.1981.10. It is an admitted case that during the period ofapprentice training the petitioner should secure the First ClassBoiler Competency Certificate and it is the further fact that thepetitioner failed to get the same and therefore needless to mentionthat the petitioner would not become entitled to claim for the post ofBoiler attending shift in-charge; that the Labour Court, Coimbatorethough concluded that the case of the petitioner was one ofretrenchment and for non-application of the provisions of Section 25-Fof the Industrial Disputes Act, 1947 he must be reinstated withcontinuity of service and back wages against which the secondrespondent preferred W.P.No.8353 of 1983, the Award of the LabourCourt, Coimbatore to be confirmed and therefore it is the award ofthe Labour Court, Coimbatore passed in I.D.No.82 of 1982 in its pithand marrow should be executed within the meaning of the legality ofthe legal propositions pertaining to the subject but the Labour Court,Salem has gone back the award of the Labour Court, Coimbatore inreassessing the facts and circumstances and re-fixing the period forwhich the back wages have to be calculated thus denying for the periodbeyond 21.12.1991 on the basis that the petitioner had refused tojoin duty in the post of helper pertaining to which undoubtedly theTribunal has gone beyond its jurisdiction and therefore in terms ofthe award passed by the Labour Court, Coimbatore in I.D.No.82 of1982, the Labour Court, Salem should have gone further without makingamends into the said award and therefore while calculating the backwages, for the entire period covered as per the award of the LabourCourt, Coimbatore made in I.D.No.82 of 1982 should be made. 11. So far as the status of the petitioner regarding whetherhe was to be treated as a helper or shift in-charge in reinstatementgiving effect to the judgments cited supra, it would be proper toconclude that though the petitioner might have been permitted to workin the capacity as a shift in-charge for some time, still since hefailed to acquire the First Class Boiler Competency Certificate duringthe period of training which is a precondition imposed for beingposted as shift in-charge, the petitioner is disentitled to claim to https://hcservices.ecourts.gov.in/hcservices/ be reinstated as shift in-charge, which he legally not entitled to andtherefore the back wages as per the award of the Labour Court,Coimbatore has to be calculated for the entire period but regardingreinstatement it is only as an helper and not as a shift in-charge andhence the following order.In result,(i) the above writ petition is partlyallowed to the extent indicated below;(ii) that the petitioner/employee shall beentitled to back wages for all the days as ahelper till the date of his induction intoservice pursuant to the common order passed bythe first respondent, Labour Court, Salem inC.P.Nos.6 and 252 of 1992 dated 14.2.1995; (iii) that the request of the petitioner forreinstatement as a shift-in-charge is rejected; (iv) there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarCopy to: The Presiding Officer,Labour Court,Salem.One cc to M/s T.S.Gopalan & Co.,, Advocate SR.5623.One cc to Mr.V.Prakash, Advocate SR.No.6019.W. P.No.1601 of 1997KM [co]MK