M.Bakthavatchalam v. The Presiding Officer Labour Court Cuddalore & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.10.2009CORAMTHE HONOURABLE Mr. JUSTICE P.JYOTHIMANIWrit Petition Nos 275 and 10473 of 2008M.Bakthavatchalam .. Petitioner in WP.No.275/08 & R2 in WP.No.10473/08vs.1.The Presiding OfficerLabour CourtCuddalore... R1 in both the petitions.2. The Management Arcot Primary Agricultural Co-operativeBank Limited Arcot Post, Tirukoilur TalukVillupuram District. .. R2 in WP.No.275/08 & petr. in WP.No.10473/08.Prayer: Writ Petition No.275 of 2008 is filed under Article 226 ofthe Constitution of India, praying for the issuance of a writ ofCertiorarified Mandamus, to call for the order in C.P.No.58 of 2001,dated 25.09.2007 on the file of the Labour Court, Cuddalore, the 1strespondent herein, quash the same insofar as the remaining reliefRs.18,725/- and to direct the 2nd respondent herein to pay a sum ofRs.18,725/- towards educational expenses, encashment of earned leavebenefits.Writ Petition No.10473 of 2008 is filed under Article 226 of theConstitution of India, praying for the issuance of a writ ofCertiorari, to call for the records in C.P.No.58 of 2001, dated25.09.2007 and to quash the same.For R2 in WP.10473/08For Petitioner in WP.No.275/08 : Mr.T.DhanyakumarFor R2 in WP.No.275/08 : Mr.S.Parthasarathy For Petitioner in WP.No.10473/08--- https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThe petitioner-workman in W.P.No.275 of 2008, who was employedunder the second respondent-Management, has earlier moved the LabourCourt by filing I.D.No.95 of 1996, claiming permanent status and alsoquestioning the termination order. In the said I.D., an award waspassed by the Labour Court on 21.01.1999, directing the Management toreinstate the workman and also to make him permanent and to payconsequential benefits. In the said award, in respect of thequantum of monetary relief, the Labour Court has directed theworkman to file a claim petition under Section 33-C(2) of theIndustrial Disputes Act (hereinafter referred to as "the Act"). 2. The award passed in I.D.No.95 of 1996 came to be challengedby the second respondent-Management in Writ Petition No.13049 of2002. By order dated 15.03.2007, this Court has confirmed the awardpassed by the Labour Court in I.D.No.95 of 1996, thereby holding thatthe workman is entitled for a permanent status and also for paymentof salary. Thereafter, the petitioner filed C.P.No.126 of 1999 underSection 33-C(2) of the Act, claiming a sum of Rs.2,96,840/- and theLabour Court has passed an award on 27.03.2001 to an extent ofRs.2,75,252/-. The said award passed by the Labour Court waschallenged by the second respondent-Management in Writ PetitionNo.13889 of 2001 and the said writ petition came to be dismissed on15.03.2007 by a common order along with the writ petition filed bythe Management against the award passed in I.D.No.95 of 1996 asstated above. In the said award passed by the Labour Court inC.P.No.126 of 1999, the Labour Court while considering about thebenefit claimed under surrender of Earned Leave has decided that thesame is possible only after getting permission from the secondrespondent-Management and also in respect of the Children'sEducational Allowance, the Labour Court in the said claim petitionhas held that inasmuch as there was no specific order in the earlieraward passed in I.D.No.95 of 1996, the same was not succeeded too. 3. Thereafter, the petitioner has filed C.P.No.58 of 2001 beforethe Labour Court, claiming the following three benefits: (i) The difference in payment of salary based on thepay fixation as per Section 18(1) settlement stated to havebeen entered between the Management and the Workmen, and onthat basis, the basic pay should have been fixed atRs.4,500/- and claiming the difference to which, he isentitled as per the settlement. (ii) Educational Allowance was again claimed based onSection 18(1) settlement, wherein the allowance is permittedat Rs.400/- in respect of the employee having one child andRs.800/- in cases more than one child. In that regard, thepetitioner is claiming a sum of Rs.2,650/-, which is stated https://hcservices.ecourts.gov.in/hcservices/ to be for the period between 01.03.1992 to 31.07.1999. (iii) Encashment of Earned Leave benefit was alsoclaimed between the period from 01.03.1992 to 31.07.1999 tothe extent of Rs.16,075/- and that amount was claimed basedon 18(1) settlement.4. The Labour Court has accepted the plea of the workmanregarding the fixation of basic pay on the basis that the same hasbeen granted under Section 18(1) settlement and that it has also beenpaid to some other employees, as admitted by the witness examined onthe side of the Management. However, in respect of the two otherclaims, namely, Educational Allowance and Encashment of Earned Leavebenefits, it was decided that the present claim petition is notmaintainable, since in the earlier claim petition filed by theworkman in C.P.No.126 of 1999, there is a specific finding that thosetwo heads cannot be granted, against which the Management has filed awrit petition, in which the said order was confirmed and in theabsence of any objection by the workman against that portion at theearliest point of time, it has become final. Accordingly, the claimsin respect of Educational Allowance and Encashment of Earned Leavebenefit, were rejected by the Labour Court. It was as against theclaim allowed by the Labour Court regarding the fixation of basicpay, the Management has filed Writ Petition No.10473 of 2008, whilethe workman has filed Writ Petition No.275 of 2008 as against therejection of the claims on the heads of Educational Allowance andEncashment of Earned Leave benefits.5. In respect of the writ petition filed by the Managementagainst the fixation of basic pay at the rate of 4,500/- anddirection issued by the Labour Court to the Management to pay a sumof of Rs.31,456/-, a reference to the impugned award passed by theLabour Court would make it clear that the witness examined on theside of the Management has clearly admitted that the said fixationhas been effected by the Management in respect of another employee,namely, one Raja, who has worked for eight years and three months,while admitting that the petitioner has worked as Clerk between theperiod from 01.03.1992 and 01.08.1999. In fact, the ManagementWitness has also specifically admitted that the said fixation hasbeen made in accordance with the settlement arrived at under section18(1) of the Act and the same is applicable to all workmen. It wasonly taking note of the above said evidence on the side of theManagement and after referring to the contents of Section 18(1)settlement entered between the Management and the Workmen, as markedas Exs.A4, A9 and B5, the Labour Court has come to a conclusion, inmy view, correctly that the petitioner is entitled for the claimunder the fixation of basic pay. There is absolutely no illegalityin respect of the decision of the Labour Court under the impugnedorder regarding the fixation of basic pay and therefore, the writpetition filed by the Management in W.P.No.10473 of 2008 against thatportion of the impugned award is liable to be dismissed and https://hcservices.ecourts.gov.in/hcservices/ accordingly, the same is dismissed.6. In so far as the claim of the workman under the two otherheads, namely, Educational Allowance as well as Encashment of EarnedLeave, a reference to the impugned award shows that the Labour Courthaving elaborately discussed about the applicability of Section 18(1)settlement in respect of fixation of pay, has not chosen to considerother clauses of Section 18(1) settlement, which also containedregarding the Educational Allowance as well as the Encashment ofEarned Leave benefits. But, the Labour Court has rejected the claimonly on the basis that in the earlier claim petition filed by theworkman, the said claims were not favourably considered and that hasbecome final in the writ petition filed by the Management andtherefore, the petitioner cannot raise the same thing once again.The decision of the Labour Court in C.P.No.126 of 1999, relating tothe Educational Allowance as well as the Suurrender of Earned Leave,is as follows:"10. With regard to claim of other benefits, I wouldlike to point out that the surrender leave is eligible onlyafter getting permission from the respondent Management.Similarly, with regard to children's educational allowancealso, there is no specific order by the Court while givingaward in I.D.No.95 of 1996."7. The Labour Court has concluded as if in the award passed inI.D.No.95 of 1996, there was no specific direction regarding thepayment of children's Educational Allowance as well as Encashment ofSurrender Leave. But, admittedly, the Management has paid all otherbenefits to the workmen as per Section 18(1) settlement and includingthe benefits of Encashment of Surrender Leave and EducationalAllowance in respect of the other workmen and it is also stated thatin respect of the petitioner himself for the subsequent period, theencashment of Earned Leave has been granted based on section 18(1)settlement as on 29.04.2001 and the Educational Allowance has alsobeen paid for the subsequent period and those amounts have been paidas per Section 18(1) settlement. While so, the petitioner has beenrejected for the above said two benefits for the period from01.03.1992 to 31.07.1999 only due to the reason that in the earlierclaim petition, the Labour Court has passed such observation. It istrue that as against that portion of the award in C.P.No.126 of 1999,the petitioner has not approached this Court by challenging the same,but, that will not be an embargo on the petitioner's right availableunder Section 18(1) settlement, which is enforceable in law. 8. In my view, the Labour Court having elaborately discussedabout the contents under Section 18(1) in respect of fixation ofbasic pay, ought to have considered the contents of the 18(1)settlement on these grounds also. The learned counsel for theworkman submits that as per clauses in 18(1) settlement, the amountis identifiable and therefore, there is no necessity to send back the https://hcservices.ecourts.gov.in/hcservices/ matter to try again. On the other hand, as rightly argued by thelearned counsel for the Management, it is the duty of the petitionerto produce the documents to show as to whether the other persons, whoare similarly placed as that of the petitioner, have been paid suchEducational Allowance as well as Encashment of Earned Leave benefitsand that requires appreciation of evidence. The learned counsel forthe workman brought to the notice of this Court that the workman hasproduced evidence, namely, Ex.A3, which is the service record of oneRaja, who was employed by the management, in respect of the saidbenefits paid to the similarly placed persons and that the same hasnot been considered.9. In such view of the matter, the matter has to be remanded tothe Labour Court for fresh consideration relating to the above saidtwo issues, namely, Educational Allowance and Encashment of EarnedLeave. In view of the same, the impugned award of the Labour Courtwith regard to the above said two heads are set aside and the matteris remanded to the Labour Court to decide about the two issues,namely, eligibility of the petitioner for the Educational Allowanceand Encashment of Earned Leave. The Labour Court shall giveopportunity to the parties to produce fresh documents. The LabourCourt shall hear the parties, consider the contents of Section 18(1)settlement with regard to the said issues and decide the matterwithin a period of six months from the date of receipt of a copy ofthis order. With the above direction, these writ petitions are disposed of.No costs.KJ/ATRSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Presiding OfficerLabour Court, Cuddalore.+ 1 cc to Mr. T. Dhanyakumar, Advocate SR No.56241+ 1 cc to Mr. S. Parthasarathy, Advocate SR No.56035MRD(CO)SR/30.10.2009W.P.Nos.275 & 10473 of 2008