G.Alagarsamy v. The Presiding Officer, Labour Court, Madurai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.04.2014CORAMTHE HONOURABLE MR.JUSTICE C.S.KARNANW.P.Nos.2048 and 2055 of 2002G.Alagarsamy...Petitioner in both the WPsVs.1.The Presiding Officer, Labour Court, Madurai.2.The Management, Tamilnadu Government Transport Corporation Ltd., (Kumbakonam Division-III), Karaikudi. ... Respondents in both the WPsCommon Prayer: Writ Petitions are filed under Article 226 of theConstitution of India for issuance of a Writ of Certiorari, callingfor the records relating to C.P.No.29 of 1995 and C.P.No.185 of 1998on the file of the Labour Court, Madurai and quash the order dated30.08.2001 in so far as denial of the claim of Rs.1,94,753.45/- andRs.1,83,924.80/- respectively.For Petitioner: Mr.D.Saravanan (in both the WPs)For Respondents: Mr.V.R.Kamalanathan (for R2)(in both the WPs) R1 – CourtCOMMON ORDERThe short facts of the case are as follows:-The petitioner preferred the above writ petitions against thecommon order dated 30.08.2001 made in C.P.No.29 of 1995 andC.P.No.185 of 1998, on the file of the Labour Court, Madurai for theissue of a writ of certiorari and to quash the same in so far asdenial of claim of Rs.2,21,481.45 and Rs.1,83,924.80/- respectivelytowards arrears of backwages, bonus, ex-gratia and performanceincentive. He submits that originally he was appointed as driver(Trainee) in the then Pandiyan Roadways Corporation Limited, on https://hcservices.ecourts.gov.in/hcservices/

21.01.1981 on daily wages. On appreciation of his work he was made aregular employee on probation with effect from 15.04.1982 on a basicsalary of Rs.330/- per month plus Dearness Allowance, House RentAllowance and other allowances.2.Thereafter, Pandiyan Roadways Corporation Limited wasbifurcated and a new corporation viz., Maruthu Pandiyar TransportCorporation Limited was formed. Thereupon, he was made as anemployee of Maruthu Pandiyar Transport Corporation Limited witheffect from 01.04.1983 with continuity of service and other servicebenefits. He had worked more than 31 months continuously without anyblemish whatsoever. In such circumstances, he was terminated fromservice on 31.05.1983 abruptly without assigning any reason.3.At the point of his termination a dispute with regard to bonuswas pending in I.D.No.62 of 1982 on the file of Industrial Tribunal,Madras. His termination had taken place without sanction of law ascontemplated under Section 33(2)(b) of Industrial Disputes Act.Hence, he made a complaint No.77 of 1983 in I.D.No.62 of 1982. TheIndustrial Tribunal after an elaborate enquiry declared that thetermination is illegal by an order dated 31.12.1984.4.After the order of Industrial Tribunal he made a representationto the management for reinstatement and the consequential benefits.However, the Corporation has challenged the said order in W.P.No.4695of 1985 on the file of this Court which came to be dismissed on08.09.1994 on merits. On such dismissal of writ petitions also hesought for reinstatement by a letter dated 21.10.1994. Even then,the Management did not choose to provide him an employment. On theother hand, taken out an application in W.M.P.No.3967 of 1998 inW.P.No.4695 of 1985 to restore the said writ petitions as if the samewas dismissed for default after a lapse of four years. However, thesaid application was also dismissed on 02.09.1998 by this Court.Against the said order, the Writ Appeal preferred by the Managementalso seems to have been dismissed by the Hon'ble Division Bench ofthis Court at the threshold and the order dated 31.12.1984 made bythe Industrial Tribunal, Madras in complaint No.77 of 1983 had becomefinal. On such dismissal, he again made a representation on12.12.1998 for re-instatement and backwages and other attendantbenefits. However, the Management is very adamant and adoptedrecalcitrant attitude for some how or other.5.As the management neither re-instated him into service nor paidthe arrears of backwages, he filed claim petition in C.P.No.29 of1995, on the file of Labour Court, Madurai for a sum ofRs.2,46,481.45/- together with interest 12% p.a. and costs viz., https://hcservices.ecourts.gov.in/hcservices/ a) Backwages for the period from 01.06.1983 to 31.12.1994: Rs.2,19,753.45b) Bonus at 8.33% for the accounting year from 1982-83 to 1993-94: Rs. 12,462.30c) Ex-gratia payment for the period from 1982-83 to 1993-94 : Rs. 8,840.70d) Performance Incentive payable every year for the period from 1983-1994: Rs. 5,425.00 ------------------Total Rs. 2,46,481.45 ------------------6.Further he had also filed another claim petition for thesubsequent period in C.P.No.185 of 1998 on the file of the LabourCourt, Madurai for a sum of Rs.1,93,924.40/- together with interestat 12% p.a. and costs viz.,a) Backwages for the period from 1/95 to 8/98: Rs.1,17,049.40b) Bonus and ex-gratia payment for the period from 1995-96, 1996-97 and 1997-98: Rs. 17,100.00c) Performance incentive payable for the year 1995, 1996, 1997.: Rs. 1,775.00 ------------------Total Rs. 1,93,924.80 ------------------7.He submits that the management did not provide him anemployment and other benefits in compliance of the order ofIndustrial Tribunal which confirmed by this Court but chosen tocontest his claims on futile and untenable grounds which are allagainst the Industrial law and also the settled principle of the lawof the land. Both the claim petitions were tried together. Heexamined himself as PW1 before the Labour Court and marked Ex.P1 toP4. No witness was examined on behalf of the Management. However,marked documents vide Ex.R1 to R12.8.He submits that the Labour Court has passed a common order inC.P.No.25 of 1995 and 185 of 1998 on 30.08.2001 directing the paymentof Rs.25,000/- and Rs.10,000/- respectively totaling in allRs.35,000/-, but rejected his valid claim to the tune ofRs.4,04,406.25/- on the reasons which are all contrary to law andthat portion of the order is liable to be set aside. Hence, thesewrit petitions. https://hcservices.ecourts.gov.in/hcservices/

9.The second respondent submits that Thiru.G.Alagarsamy, Driverof second respondent Corporation was dismissed with effect from31.05.1983 during the period of his probation since he was convictedby the criminal Court for his involvement in fatal accident while hewas working as driver in bus TMN-5800 on 18.10.1982. He has filedcomplaint No.77/83 before the Industrial Tribunal, Chennai and theTribunal struck down the order of the termination on 31.12.1984. TheManagement has preferred W.P.No.4695 of 85 before this Court and thesame has been decided as exparte on 08.09.1994. The restorationpetition filed by the second respondent Corporation on 26.12.1994also dismissed on 02.09.1998. Then Thiru.G.Alagarsamy was reinstatedinto service with continuity of service with effect from 26.02.2002in the scale of pay 3290-60-3770-65-4745. He has filed two claimpetitions namely 29 of 1995 and 185 of 1998 claiming wages and otherbenefits before the Labour Court, Madurai. The second respondentCorporation has defended the case that a complaint under section 33(a) is not maintainable and the petitioner is not a worker in theconcerned dispute, since he was only apprentice at the time of bonusdispute that is pending before the Industrial Tribunal, Chennai.10.The respondent submits that the petitioner was gainfullyemployed during the period of January 1995 to August 1998 at any ratethe petitioner could not have survived on free air and should haveearned some money during this period. The award passed by theIndustrial Tribunal in Complaint No.77 of 1983 is an 'nonest', as onepassed without jurisdiction. Thiru.T.Thangasamy, Senior Counselappeared on behalf of the Corporation and on hearing arguments onboth the sides, the Labour Court awarded an amount Rs.25,000/- inC.P.No.29/95 and Rs.10,000/- in C.P.No.185/98 totally Rs.35,000/-.The respondent Corporation has sent the cheque to the Labour Court tomake payment to the petitioner Thiru.G.Alagarsamy. But the LabourCourt advised them to pay the cheque directly to the petitioner. Butthe petitioner refused to receive the cheque.11.He further submits that it is true that the petitioner hasfiled C.P.No.185 of 1998 claiming arrears of backwages, bonus,exgratia and performance incentive to the tune of Rs.1,83,924/-. Therespondent Corporation has defended the case in Claim Petition No.29of 1995 and 185 of 1998 stating that the employees are not coveredunder the workman involved in the dispute pending before theTribunal. Accepting their stand, the Labour Court awarded onlyRs.25,000/- as compensation in C.P.No.29 of 1995 and Rs.10,000/- inC.P.No.185 of 1998. It is pertinent to note that during the periodof non employment the petitioner would have gainfully been inemployment. No payment will be paid for the period of non employmentfollowing the principle of no work no pay. The Hon'ble Supreme Courtalso held in various case that the worker has to prove that he wasnot gainfully employed anywhere during the period of his nonemployment. https://hcservices.ecourts.gov.in/hcservices/

12.He further submits that the order of the Labour Court is basedon the materials produced in the claim petition. The petitioner isnot covered under the pending dispute before the Industrial Tribunal.Hence, the order of the Industrial Tribunal is not true. Howevertheir management has preferred writ petitions challenging the orderof the Industrial Tribunal which was decided exparte. Therestoration petition filed by their management also dismissed. TheWrit Appeal filed by their Management also dismissed.13.He submits that the Labour Court has calculated thecompensation after looking into all aspects. It is the duty of thepetitioner to prove before the Labour Court that he has not beengainfully employed anywhere during his alleged non employment period.The averments in 'para f' is not true. This Court decided the writpetitions as exparte. The averments in the 'para h' is not true.The petitioner is now working in their Corporation and getting timescale of pay with all benefits. The petitioner having seven monthsremaining period of service is going to retire on 31.5.2010. Thecheque for Rs.26,479/- dated 21.2.2002 and another cheque forRs.10,592/- dated 21.2.2002 were not received by the petitioner. Itis therefore prayed that this Court may be pleased to dismiss thewrit petitions as devoid of merits.14.The highly competent counsel Mr.D.Saravanan appearing for thepetitioner submits that the petitioner had been appointed as a driveron 21.01.1982 on daily wage basis. Thereafter, he had been appointedas regular employee on probation for a period of six months from15.04.1982 on a basic salary of Rs.330/- + allowances. The TransportCorporation had been reconstituted and he was appointed as anemployee of Marudu Pandiyar Transport Corporation with effect from01.04.1983, with continuity of service and other service benefits.He had worked with the Management for more than 31 monthscontinuously without any adverse remarks. Under the circumstances,he had been terminated from service on 31.05.1983. At the time oftermination, a case in I.D.No.62 of 1982 is pending on the file ofIndustrial Tribunal, Madras regarding the issue of bonus.Thereafter, the Tribunal had conducted detailed enquiry and it wasfound that the petitioner's termination was illegal. Therefore, thepetitioner made a representation to the Management for reinstatementand consequential benefits. The Corporation had challenged theIndustrial Tribunal award before this Court by way of writproceedings but the same was dismissed. Hence, the petitioner maderepresentation to reinstate him in service. The same was notconsidered. The Management also filed a Writ Appeal against thesingle Judge order and the same was dismissed. As such, the awardpassed by the Tribunal had become final.15.The very competent counsel further submits that the Managementneither reinstated him into service nor paid the backwages ofarrears. Hence, he filed a claim petition No.29 of 1999, on the fileof the Labour Court, Madurai and claimed a sum of Rs.2,46,481.45 https://hcservices.ecourts.gov.in/hcservices/ together with interest at the rate of 12% and costs. The petitionerhad also filed another claim petition in C.P.No.185 of 1998 forsubsequent period on the file of Labour Court, Madurai and claimed asum of Rs.1,93,924.40 together with interest at the rate of 12% andcosts. The Management did not produce him with an employment andother benefits. Both the claim petitions were tried together and thepetitioner was examined as PW1 and he had marked four exhibits.Consequently, the Labour Court had passed a common order in C.P.No.25of 1995 and C.P.No.185 of 1998 dated 30.08.2001 and directed theManagement to pay a sum of Rs.25,000/- and Rs.10,000/- respectivelyin totaling all Rs.35,000/-. But the Labour Court rejected theentire claim and partly allowed the said claim for a meagre amount.The very competent counsel further submits that the petitioner isentitled to receive the benefits for the period from 01.06.1983 to31.12.1994, amounting to a sum of Rs.2,46,481.45 and for the periodfrom 01.01.1995 to 30.08.1998 for a sum of Rs.1,93,924.40. Theseamounts have to be paid to the petitioner but the Tribunalerroneously granted a meagre sum.16.The very competent counsel Mr.V.R.Kamalanathan appearing forthe second respondent submits that the petitioner was dismissed on31.05.1983 during the period of his probation since he was convictedby the criminal Court for his rash and negligent driving therebycausing a fatal accident. The employee had filed a complaint No.73of 1983 before the Industrial Tribunal, Chennai and the Tribunalstruck down the order of termination on 31.12.1984. The Managementhas filed the writ petitions challenging the said impugned orderpassed by the Industrial Tribunal and the same was dismissed by thisCourt. Hence, the employee has been reinstated into service withcontinuity of service with effect from 26.02.2002 with regularsalary. Under the circumstances, the petitioner filed two claimpetitions and claimed huge amount of benefits. Further, the LabourCourt has no original jurisdiction to try the claim petitions.However, the Corporation complied with the common order passed by theLabour Court in favour of the petitioner. Hence, the very competentcounsel entreats the Court to dismiss these writ petitions.17.On considering the facts and circumstances of the case andarguments advanced by the highly competent counsels on either sideand on perusing the impugned order of the Labour Court, this Court isof the view that the petitioner had committed a fatal accident whilehe was undergoing probation period and he was convicted by thecriminal Court for rash and negligent driving and committing a fatalaccident. Therefore, both the writ petitions do not have enoughforce to allow them. Hence, both the writ petitions are dismissed. https://hcservices.ecourts.gov.in/hcservices/

18.In the result, both the writ petitions are dismissed. Nocosts. Sd/- Assistant Registrar //True Copy// Sub Assistant RegistrarvsTo1.The Presiding Officer, Labour Court, Madurai.2.The Management, Tamilnadu Government Transport Corporation Ltd., (Kumbakonam Division-III), Karaikudi.+ 1 cc to Mr.D. Saravanan, Advocate SR.20178W.P.Nos.2048 & 2055 of 2002EV(CO)EU 08.09.15