G.Gunasekaran v. The Chairman, Chennai Port Trust & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.6.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.10132 of 2002andW.M.P.No.13712 of 2002G.Gunasekaran. ...Petitionervs.1. The Chairman, Chennai Port Trust, Chennai-600 001.2. The Deputy Port Conservator, Chennai Port Trust, Chennai-600 001. ...Respondents Writ Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for therecords of the second respondent in his proceeding No.E2/3478/1999/Mdated 10.9.2001 and the proceeding of the second respondent inNo.A6/5337/2001/M dated 20.10.2001 and quash the same andconsequently direct the respondents to pay 25% of backwages witheffect from 18.4.1990 to 28.4.1999 with attendant benefits on thepast service, leave and monetary effect for promotion etc., fromretrospective effect.For Petitioner : Mr.K.RajaFor Respondents : Mr.M.JagadeesanO R D E RThis Writ Petition is filed to issue a Writ of CertiorarifiedMandamus calling for the records of the second respondent in hisproceeding No.E2/3478/1999/M dated 10.9.2001 and the proceeding ofthe second respondent in No.A6/5337/2001/M dated 20.10.2001 and quashthe same and consequently direct the respondents to pay 25% ofbackwages with effect from 18.4.1990 to 28.4.1999 with attendantbenefits on the past service, leave and monetary effect for promotionetc., with retrospective effect. https://hcservices.ecourts.gov.in/hcservices/

2. The writ petitioner, Lascar Grade-II was reinstated by orderof the Industrial Tribunal in its award dated 20.8.1998 in I.D.No.56of 1995. The Tribunal ordered that on reinstatement, the petitionerwill be entitled to 25% backwages and other attendant benefits. Itappears that the petitioner and the second respondent entered into aMemorandum of Settlement in terms of Section 18(1) of the IndustrialDisputes Act, 1947 whereby and whereunder the petitioner agreed tosettle his claim by accepting 15% backwages. The said amount waspaid by the second respondent and was received by the petitioner. Acopy of Memorandum of Settlement under Section 18(1) of theIndustrial Disputes Act, 1947 has been furnished to this Court and itis not disputed. There is no specific clause in the Settlement asto how the pay will be fixed on reinstatement. 3. Consequent to the settlement, the petitioner was reinstatedinto service on and from 29.4.1999 and was assigned with LascarNo.250 in Lascar Grade-II(Y). He continued to serve as Lascar Grade-II for more than two years. On 10.9.2001, a memo was issued by theDeputy Port Conservator, the second respondent, as follows:-"MEMO:Sub:ESTABLISHMENT – Staff – Shri G.Gunasekaran– Reinstated in Trust's service w.e.f.29.4.99 as Lascar Gr.II(Y) – Pay fixationin the post of Lascar Gr.II(Y) –Intimation – Reg......The Industrial Tribunal, Chennai in its awarddated 20.8.98 (I.D.No.56/95) has ordered for hisreinstatement with 25% of Back wages and otherattendant benefits. Whereas, he has voluntarilyagreed to receive 15% of back wages instead of 25%by executing a bond on 3.4.99 and further agreedas not to raise any other claim against the Trust.As he has obviously agreed to receive the 15% ofback wages from 18.4.90 to 28.4.99 as persettlement dated 22.3.99, the question of claimingattendant benefits on the past service, Leave andmonetary effect for Promotion etc., from aretrospective effect does not arise.In the light of the above, he has beenreinstated in Trust's service with effect from29.4.99, is assigned with Lascar No.250. As such,his reinstatement as Lascar Gr.II(Y) with effectfrom 29.4.99 is treated as a new recruit and his https://hcservices.ecourts.gov.in/hcservices/ pay in the post of Lascar Gr.II(Y) is fixed asfollows:-Rs.3840-29.4.99.Rs.3920-1.4.2000.Rs.4000-1.4.2001.Any arrears/excess paid due to him towardshis pay and allowances will be paid/recovered indue course."Consequent to the said memo, on 20.10.2001, recovery order was issuedas follows:-"MEMO:Sub: Establishment – Staff – ShriG.Gunasekaran – Reinstated in Trust'sservice with effect from 29.4.99 asLascar 11313 Grade-II – Excess paymentof Pay and allowances recovery –Intimation – Regarding.Ref: This office memo.No.E2/3478/99/M, dtd10.9.2001.-----He is informed that he has been re-instatedin Trust's service with effect from 29.4.99treated him as a new recruit and his initial basicpay has been fixed at Rs.3840/- in the post ofLascar Gr.II(Yard) from 29.4.99,Consequent of his pay fixation in the memocited the excess amount of Rs.1,06,749.30 whichhas already been paid to him towards the pay andallowances will be recovered in 107 instalments atRs.1000/- p.m. for 106 instalments and Rs.749.30in the last instalment from his salary commencingfrom the month of October 2001 payable in November2001."The memo dated 10.9.2001 and consequential recovery order dated20.10.2001 is challenged stating that on reinstatement and afterserving more than two years in the post of Lascar Grade-II witheffect from 29.4.99, without any valid reason or justification, thesecond respondent has proceeded to treat the petitioner as a newrecruit and fixed the pay and ordered recovery arbitrarily andcapriciously. The respondents have not stated the basis on which the https://hcservices.ecourts.gov.in/hcservices/ above stated proceedings were initiated that too after a lapse oftwo years on reinstatement. The respondents cannot treat thepetition as a fresh entrant when admittedly he is reinstated as perthe award of the Industrial Tribunal.4. Counter has been filed by the respondents stating that thepetitioner has voluntarily agreed to receive 15% backwages as against25% fixed by the Industrial Tribunal. Therefore, the petitioner wastreated as a new recruit on reinstatement. The reason stated in thecounter-affidavit is that in the Memorandum of Settlement underSection 18(1) of the Industrial Disputes Act, there is a clausewhich says that the petitioner will not raise any other claim ordispute against the respondent Port Trust. Clause (e) of thesettlement reads as follows:-"e) Shri Gunasekaran, agreed not to raise anyother claim or dispute against the Trust in anyother forum since the Trust agreed to reinstatehim and he agreed to receive 15% of the Backwagesas per the Award."5. The interpretation given by the respondents to theMemorandum of Settlement entered in terms of Section 18(1) of theIndustrial Dispute Act on 3.4.1999, particularly clause (e) as abovedoes not state that the petitioner will be treated as a new recruiton reinstatement. In any event, the award of the Industrial Tribunaldirecting the reinstatement of the petitioner has been accepted bythe respondents and the petitioner joined duty on and from 29.4.1999.He has been paid the salary as a Lascar Grade-II as applicable.There is no justification to treat the petitioner as a new recruitwhen the award of the Industrial Tribunal has been accepted withregard to reinstatement. The settlement is only with regard toquantum of backwages. There is no basis for the respondents toissue the memo and the recovery order treating the petitioner as newrecruit and the proceedings are bereft of reasons. In any event,both in memo dated 10.9.2001 and in the recovery order dated20.10.1991 which are under challenge no reason has been stated as towhy the petitioner has been treated as new recruit. In suchcircumstances, memo and the order for recovery sans reasons is anarbitrary exercise of authority. This court is, therefore, inclinedto interfere with the proceedings under challenge. 6. In the result, the impugned proceedings are set aside. Thepetitioner will not be entitled to the 25% of backwages as prayed foras he is bound by the settlement. If any recovery is made from thepetitioner consequent to the impugned proceedings, the same should be https://hcservices.ecourts.gov.in/hcservices/ refunded to the petitioner. The Writ Petition is ordered as above.No costs. Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsTo 1. The Chairman, Chennai Port Trust, Chennai-600 001.2. The Deputy Port Conservator, Chennai Port Trust, Chennai-600 001.+1 cc To Mr.K.Raja, Advocate, SR.No.21850+1 cc To Mr.M. Jagadeesan, Advocate, SR.No.21949 W.P.No.10132 of 2002SGL (CO)A.S. (03.07.2009)