High Court · 2024

W.P.No.24844 of 2015IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.09.2024CORAMTHE HONOURABLE Ms.JUSTICE R.N.MANJULAW.P. No.24844 of 2015and M.P.No.1 of 2015Tamil Nadu Agricultural University,Rep. by its Registrar,Coimbatore – 641 003. ...Petitioner/vs/ 1. M.Kandasamy (Deceased)2. The Presiding Officer, Labour Court, Salem.3. K.Pachayee4. Rani5. Murugan6. R.Sathish Kumar7. R.Ramya8. Uma ... Respondents(R3 to R8 are substituted as LR's of deceased R1 as per order dated 20.06.2024 in W.M.P.No.4095/2024 in W.P.No.24844/2015)Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for the records in C.P.No.170 of 2013 on the file of the second respondent culminating in the order dated 17.02.2015, quash the same.Page 1 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015For Petitioner ... Mr.S.MasilanFor R1 & R3 to R8... Mr.K.V.Shanmuganathan R2 - Court ORDERThe Management has filed this writ petition challenging the Award dated 17.02.2015 passed in C.P.No.170 of 2013 by the Labour Court, Salem. The commutation petition has been filed by the first respondent/workman claiming his terminal benefits, by considering his total service as 28 years from the year 1977 to 2005.2. Mr.S.Masilan, the learned counsel for the petitioner / Management submitted that during the year 1977, even according to the observation of the Labour Court, the first respondent was only a daily wager and hence he cannot claim entitlement under G.O.Ms.No.408, Finance Department, dated 25.08.2009. The said G.O. has been issued to count the period of service rendered under the consolidated pay, honorarium and daily wages after 01.01.1961 and the first respondent has completed 10 years of service and he has been regularized before Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 201501.04.2003. By virtue of circular dated 14.01.2011, the Board of Management of the petitioner's University has approved the implementation of the said G.O.Ms.No.408 dated 25.08.2009, but however, restricted the application for the period of service rendered on daily wages.3. The fact that the petitioner was brought under the consolidated pay on and from 01.04.1994 was not disputed. All those persons who have not rendered five years of service have been brought under the consolidated pay. The Labour Court has rendered a finding that the first respondent cannot be considered as a person who has not completed 10 years of service, as the period rendered by him was from 01.04.1994 to 30.06.2005 and he has been regularized on 07.05.1999. The claim of the Management is that if the petitioner's service is calculated from 07.05.1999 till his date of superannuation ie., 30.06.2005, he would have completed only seven years of service. If the first respondent's service is calculated from 07.05.1999 to 30.06.2005 and if he is included with 50% of service rendered as consolidated worker from on 01.04.1994 to 07.05.1999, the Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015total eligible service would come only as 8 years 7 months and 23 days. Hence, the first respondent will not come under the purview of G.O.No.408 dated 25.08.2009, for getting the benefit of pension.4. In the judgment relied by the learned counsel for the petitioner in M/s.Bombay Chemical Industries Vs. Deputy Labour Commissioner and another reported in 2022 Live Law(SC) 130, the Management has raised a defense that the petitioner is not their employee and hence there is a disputed question which would need an adjudication.5. The learned counsel for the respondents tried to make a difference that in the instant case there is no question of denial of the first respondent's employment and hence the above judgment is not applicable to the facts of the case. In support of his above contention, the learned counsel for the respondents cited the judgment of the Hon'ble Supreme Court in General Manager, E.I.D.Parry (India) Ltd., Vs. Presiding Officer, 2nd Addl.Labour Court, Madras and another reported in 1991(2) SCR 637 and in A.Sathyanarayana Reddy and others Vs. Presiding Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015Officer, Labour Court and others reported in (2016) SCR 408 wherein it is held that for claiming terminal benefits, petition under Section 33 C(2) of the Industrial Disputes can be filed and it is very much maintainable.6. It is submitted that the period prior to the approval of the service of the first respondent under consolidated pay should also be included for the purpose of computing his eligible service and in such case the first respondent can have the surplus of service of more than 10 years. 7. The crux of the argument of the learned counsel for the first respondent is that even while adopting G.O.Ms.408 dated 25.08.2009 to the employees of the University, the University has an exception with regard to the service rendered by the employees on daily wages. So far as the G.O. is concerned, the G.O. only states that all those services rendered in the non-provincialised service under the consolidated pay, honorarium and daily wages can be taken into account and half of the services can be included in the eligible services in order to bring the employees under the pension scheme. When the said benefit was given for the first respondent Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015by the petitioner University, he was very much an employee and the said fact was not denied. Even the first respondent’s services which made him eligible for consolidated pay is also not disputed. What remains to be dealt by the Labour Court is to compute the eligible years of service for the purpose of computing his eligible terminal benefits which he claims through the commutation petition. 8. The first respondent claims that he has got pre-existing right on the terminal benefits and there is no dispute in it. However, the petitioner claims that the denial of counting the service of the first petitioner as daily wages prior to his inclusion under consolidated pay is very much in dispute and hence the first respondent’s right with regard to the same ought to have been decided only through an Industrial Dispute and hence the commutation petition is a prematured one.9. The further argument of the learned counsel for the petitioner is that in the University Circular dated 14.01.2011, it is stated that in accordance with the resolution passed by the Board of the Management of Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015the University the Government Order in G.O.Ms.No.408 dated 25.08.2009 has been made applicable to the persons concerned under non-provincialised service, consolidated pay, honorarium only and not as against the employees on daily wages and if at all the first respondent is aggrieved he ought to have challenged the circular and even on that score the computation petition is a prematured one.10. So far as the circular dated 14.01.2011 is concerned, that has been circulated only to the Heads of the Department and other Heads of the Section and not to the individual employees. Hence the first respondent, as an employee, could not be expected to challenge the circular. He can only claim that according to the said G.O. he is entitled to the benefits. So in that case it cannot be strictly argued that the first respondent is obliged to challenge the circular dated 14.01.2011 before he files a computation petition for claiming the terminal benefits.11. Now the only question that remains to be answered is about the first respondent's entitlement to get his past services to be included with Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015his regular services. If the regular services of the petitioner alone has to be calculated for pensionary benefits, there is no need to adopt G.O.Ms.No.408 dated 25.08.2009, because the position ante remains the position subsequent to adoption of G.O.Ms.No.408 dated 25.08.2009. 12. Even though the first respondent is alleged to have rendered his services from the year 1997, the Labour Court has chosen to take into account only the immediate five years prior to his inclusion under the consolidated pay. Even though those periods pertain to his service as a Daily wager, it makes a difference because it confers right upon the first respondent to be brought under the consolidated pay even according to the policy of the University. Under such condition the first respondent cannot be categorized as a daily wager and the benefit has to be extended to him in order to get the practical advantage of the Government Order which has been adopted by the University. 13. Had the first respondent been working as a Daily Wager all along, then there cannot be any question of including the said service with Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015his eligible years of service. It has to be noted that the very inclusion itself would come only after an employee is regularized and his retirement is considered as retirement on superannuation and not as mere termination due to any other reasons. For daily wagers such a question will not arise at all. Those persons who have been covered under consolidated pay, honorarium and daily wages, if regularised, then the benefit of their past services as per G.O.Ms.No.408 dated 25.08.2009 has to be given to them. However the petitioner / University excluded those service in its circular. Even then, in the first respondent’s case that will cause much difficulty to the petitioner because the Labour Court itself has chosen to count only 5 years of his past services as a Daily wager and not from the year 1977 as claimed by him. Having considered the first respondent as a person who comes under the Pension Scheme but denying the benefit of services rendered by him on daily wages, will only deprive him from getting any benefit G.O.Ms.No.408 dated 25.08.2009 despite the University has chosen to adopt the same.14. Since the past services of the first respondent have been added Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015only to the extent of bringing him under the benefit of having completed 10 years of minimum qualifying service, I feel the petitioner cannot have any grievance in complying the directions made in the award.15. In the result, this Writ Petition is dismissed. No costs. Connected miscellaneous petition is closed.26.09.2024Index: Yes / NoSpeaking order / Non-speaking orderbkn Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015To:The Presiding Officer, Labour Court, Salem.Page 11 of 12 https://www.mhc.tn.gov.in/judis W.P.No.24844 of 2015R.N.MANJULA ,J.bknW.P.No.24844 of 201526.09.2024Page 12 of 12