THE HONOURABLE MR v. The State of Tamil NaduRep. By its Secretary to Government

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.12.2010CORAM:THE HONOURABLE MR.JUSTICE K.MOHAN RAMand THE HONOURABLE MR.JUSTICE S. PALANIVELU Writ Appeal Nos.1941and 1942 of 2001and Contempt Petition No.689 of 2002 and CMP.Nos.15734,15735/2001 & WAMP Nos.5218 & 5219/2002The Tamilnadu Pokkuvarathu KazhagaThozhilalar Nala Sangamrep. By its President A. Yogannan : Appellant [in both W.As.and Contempt Petition] (Petitioner)VsThe State of Tamil NaduRep. By its Secretary to Government,Transport Department,Fort St. George,Chennai 600009. :I Respondent [in both W.As.TMTUC Government TransportWorkers Federation rep by itsState President K.S. RavindranTrichi- 620 009...2nd Respondent (Respondent) in W.A. 1942/01Karboora Sandara PandianSecretary to GovernmentTransport DepartmentChennai-9 ...Respondent in Cont.Petn.No.689/02PRAYER: Writ Appeals filed under Clause 15 of Letters patentagainst the order in W.P.Nos.12891 of 1999 and 10643/2000respectively dated 27.08.2001 of this Court W.P.Nos.12891/99 and 10643/00:- Petition presented under Article226 of the Constitution of India to issue a writ of declaration1. declaring that the deduction and recovery of Dearness https://hcservices.ecourts.gov.in/hcservices/ allowance variably made in the salary of the employees of thepetitioner union in the month of may 1999 and subsequently isillegal arbitrary and unsustainable and consequently direct therespondent to refund the recovery already made on variousrates, (in W.P.No.12891/99) and 2. declaring the the recoveriesmade variably in the salary of the members of the petitionerUnion for the month of May 2000 and subsequently, under thecaption Dearness Allowance, Medical Allowance etc is illegal,arbitrary and null and void illegal and invalid and consequently,direct the respondent to refund the recoveries already madeon various rates. (in W.P.No.10643/00) respectively.C.M.P.No.15734 of 2001 in W.A.No.1941 of 2001 Petition filedunder Section 151 of CPC of grant an order of interim injunctionrestraining the respondent from making any further recoverieseither under the caption "Dearness Allowance" or in any othercaption in any manner. and Contempt Petition filed under Section 10 to 12 of theContempt of Court Act 70/71 to punish the respondent for havingcommitted contempt of Court for disobeying the order dated1.10.2001 made in C.M.P.No.15734 of 2001 in W.A.No.1941 of 2001 For Appellant: Mr. A. Amalraj For Respondent: Mr. M. Balasubramanian COMMON JUDGMENT[Judgment of the Court was delivered by S. PALANIVELU,J.]While W.P.No.12891 of 1999 has been filed by theappellant for the issue of Writ of Declaration declaring thatthe deduction and recovery of dearness allowance variablymade in the salary of the employees of the petitioner unionin the month of May 1999 and subsequently is illegal,arbitrary and unsustainable and consequently direct therespondent to refund the recovery already made on variousrates, W.P.No.10643 of 2000 has been filed for the issue ofWrit of Declaration declaring that the recoveries made variablyin the salary of the members of the petitioner Union for themonth of May 2000 and subsequently, under the caption DearnessAllowance, Medical Allowance is illegal, arbitrary and null andvoid and consequently, direct the respondent to refund therecoveries already made on various rates. 2.The allegations in the affidavit for writ petitions are asfollows: 2.(a) The appellant union was registered under the TradeUnions Act, 1926. Its object is to promote unity among theworkers of the Transport Department to fight for their rights and https://hcservices.ecourts.gov.in/hcservices/ privilege in a democratic way and to set right the real andactual grievance of the employees. The appellant is one amongthe trade unions among 17 trade unions affiliated to theTransport Department in which totally 1.35 lakhs workers aremembers. On 13.11.1998 this Court has passed an order inW.A.No.1205/98 etc. batch, directing the Transport Corporation toconduct election through secret ballot to elect therepresentatives for the year 1998 for a period of three years andas per the direction, election was held and members from varioustrade unions in all 21 transport corporations were elected.Wage-settlement seems to have arrived on 13.2.1999. 3 memberssigned in the settlement while other 3 members did not accept it.3 members signed in the 8th wage-settlement was represented only45,565 votes out of the total votes of 1,10,368/- and hence thesettlement is invalid and non-est in the eye of law.2.(b). Interalia, various Dearness Allowances were arrivedat between three agreed parties which are as follows:-"The variable Dearness Allowance will becontinued to be calculated on a quarterlybasis taking into consideration the rise orfall in the average of the consumer priceindex from quarter to quarter. The variableDearness Allowance linked to the consumerprice index shall be payable at the rate ofrupees two only per each point increase overand above 1924 points commencing from1.10.1998."4. It is significant to mention that Dearness Allowance hasnever been decreased or recovered from the salary of theemployees previously and infect the said Dearness Allowance isbeing paid only in an increased rates and all the wagesettlements do not contain a clause either to decree or torecover the Dearness Allowances. Even in the current VIII wagesettlement there is no provision for such recovery or deduction.5.The present proceeding is the unlawful recovery ofDearness Allowance and deduction under recovery is sought to bemade under the caption Dearness Allowance which variably made inthe salary of the employees in the petitioner union in the monthof May 1999 is illegal, arbitrary and unsustainable. Hence a writmay be issued declaring the deduction and recovery of DearnessAllowance as illegal.6.The writ petition was resisted by the respondent by way ofcounter. It is stated that all the Transport Corporations shouldhave been impleaded as parties and hence the petition is bad forjoinder of necessary parties. The variable Dearness Allowancelinked to the Consumer Price Index shall be payable at the rateof Rs.2/- only per each point increase, over and above 1924 https://hcservices.ecourts.gov.in/hcservices/ points commencing from 1.10.1988. The quarterly review shall befor each Quarter viz., January-march, April-June, July-Septemberand October-December and the variable Dearness Allowance payablefor the increase, if any, in a quarter in respect of which thereview is done. If any rise or fall in Consumer Price Index thesame will be paid/recovered in the subsequent month salary. Thispractice was in vogue when the Consumer Price Index declined by8 points from the previous quarter January-March 1993, theVariable Dearness Allowance was reduced from Rs.802/- to Rs.786/-and the difference in Variable Dearness Allowance was alsorecovered likewise during January-March 1996 and a sum of Rs.24/-was recovered from the salaries of the employees. The samepetitioner Union also did not object to such recoveries madeearlier. The above said recoveries is a routine procedurefollowed as per the agreed terms and conditions. If thepetitioner Union is aggrieved with the recovery, they should havegot their grievances redressed by taking the matter to therespective Transport Corporation. 7.It is denied that the First Wage Settlement to the currentWage Settlement do not have any clause either to decrease or torecover the Dearness Allowance. When there is decrease in theConsumer Price Index the variable Dearness Allowance will also bedecreased and the excess amount paid were recovered as statedsupra. The excess Variable Dearness Allowance paid for April1999 was recovered as contemplated in Clause 3 of 12(3)settlement dated: 13.2.1999 is valid and legal. 12(3) settlementsigned by majority of elected representatives is binding on allthe employees. The petitioner Union has no right to claim thepayment of Dearness Allowances to the employees of GovernmentDepartments. The excess variable Dearness Allowance paid for themonth of April 1999 was later recovered in May 1999 salary, as 83point on Consumer Price Index have declined, were normally knownto the Management only in the middle of May 1999. For theforegoing reasons, the Writ Petition may be dismissed. 8. In both the writ petitions, the main contention ofthe appellant is that the settlement arrived at between theemployees and the various transport corporations, dated13.2.1999 under Section 12(3) of the Industrial Disputes Act,no provision or Clause is available for such recovery, butwhereas the contention of the respondent is as follows:-"The practice of calculating VariableDearness Allowance was on quarterly basis aftertaking into consideration the rise or fall inthe average of the Consumer Price Index (Base1960 = 10 from Quarter to Quarter. The variableDearness Allowance linked to the ConsumerPrice Index shall be payable at the rate ofRupees Two only per each point increase overand above 1924 points commencing from 1.10.1998. https://hcservices.ecourts.gov.in/hcservices/ The Quarterly Review shall be for eachQuarter, namely, January-March, April-June,July-September and October-December and theVariable Dearness Allowance payable for theincrease, if any, in a quarter shall beallowed during the Quarter succeeding theQuarter in respect of which the Review isdone. As the average points of Consumer PriceIndex for the First Quarter are issued byGovernment only during the middle of thesecond Quarter. The Variable Dearness Allowancepaid for the first Quarter continued and ifany rise or fall in Consumer Price Index thesame will be paid/recovered in the subsequentmonth salary. This practice was in vogue allalong. In fact during the Quarter April-June1993, when the Consumer Price Index wasdeclined by 8 points from the previous QuarterJanuary-March 1993 (from 401 to 393) the VariableDearness Allowance was reduced from Rs.802/-to 786/- and the difference in VariableDearness Allowance was also recovered. Likewiseduring April-June 1996, 12 points was declinedfrom the previous quarter January-March 1996 anda sum of Rs.24/- was recovered from the salaryof the employees. If the average points haveincreased, the additional payment is made andif the average points have fallen, accordingly,the amount is recovered. The same Clause isincorporated in all other earlier settlementsunder Section 12(3) of the Industrial DisputesAct as such it is not a new conditionsagreed upon in this settlement alone. The samepetitioner Union also did not object to suchrecoveries made earlier. Hence the writpetition was filed misreading the variousClauses in the 12(3) settlement dated 13.2.1999and as such it is misconceived. The electedrepresentatives who signed the 12(3)settlement are aware of the clause and theynever objected such recoveries as this is aRoutine procedure followed as per the agreednorms."9. The contention of the learned counsel for the appellantis that Clause 3 of the 12(3) settlement does not providefor any recovery. Thus, it is seen that the dispute isregarding the interpretation of 12(3) settlement arrived atbetween the parties. https://hcservices.ecourts.gov.in/hcservices/

10. In the counter affidavit itself, the respondent hastaken a stand that the respective transport corporations,which are necessary parties have not been impleaded asparty respondents in the writ petitions. But the Governmentalone has been impleaded and the writ petitions, which raisethe disputed questions of fact are not maintainable. But thisaspect has not been considered or gone into by the learnedSingle Judge but disposed of the writ petitions on merits. Butwe are of the considered view that the writ petitions oughtnot to have been entertained and disposed of on merits, butinstead they should have been referred to the IndustrialTribunal for adjudication for the following reasons.11. In this context it will be useful to refer to theprovisions contained under Section 36-A of the I.D. Act,which reads as follows:-"36-A : Power to remove difficulties:-(1) If, in the opinion of the appropriateGovernment, any difficulty or doubt arisesas to the interpretation of any provision ofan award or settlement, it may refer thequestion to such Labour Court, Tribunal, orNational Tribunal as it may thing fit."12. A reading of the aforesaid provision makes it clearthat if any difficulty or doubt arises as to theinterpretation of any provision of the settlement arrived atbetween the parties under Section 12(3) of the Act, theappropriate Government may refer the question to such LabourCourt, Tribunal or National Tribunal as it may think fit. 13. If such dispute is referred, the Tribunal concernedhas to decide such question after giving the parties anopportunity of being heard. As pointed out above, while thecontention of the appellant is that there is no provision under12(3) settlement for recovery of dearness allowance alreadypaid, the contention of the respondent is that 12(3)settlement provides of such recovery and has taken a furtherstand that similar recoveries made in the earlier period werenot objected to by the appellant. Thus, the disputedquestions of fact arise for consideration in the writpetitions. The controversy also involves theinterpretation of the provisions of the settlement. Preciselyfor resolving such dispute, Section 36-A of the Act has beenintroduced. 14.If there is breach of settlement arrived at and thereis any disagreement/dispute regarding its interpretation, thesame has to be referred to under Section 36-A of the Act asIndustrial Dispute. Therefore, the remedy is available underSection 36-A of the Act and not under Article 226 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India by way of filing a writ petition. 15.Further, as pointed out above, the disputed questionsof fact cannot be gone into in a writ petition underArticle 226 of the Constitution of India and on that groundalso, the writ petitions cannot be maintained. 16. For the foregoing reasons, the order of the learnedSingle Judge passed in W.P.Nos.12891 of 1999 and 10643 of 2000is set aside and the respondent herein is directed to referthe dispute relating to the interpretation of the provisionscontained under 12(3) settlement, dated 13.2.1999 foradjudication by the Industrial Tribunal, Chennai, under Section36-A of the Act. 17. Such reference shall be made by the respondent within30 days from the date of receipt of a copy of this order. TheIndustrial Tribunal, Chennai shall dispose of thereference/dispute within three months from the date of receiptof such reference. It is made clear that the IndustrialTribunal shall decide the dispute independently on the basisof the materials that may be produced by the respectiveparties without in any way being influenced by the decisionrendered in W.P.Nos.12891 of 1999 and 10643 of 2000 by thelearned Single Judge. It is further made clear that anyobservation contained in the order passed in the writ petitionsshall not be allowed to influence the mind of the IndustrialTribunal. 18. With the above said terms both the Writ Appeals aredisposed of. In view of the disposal of the writ appeals,Contempt Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.ggsTo1. The Secretary to the Government of Tamil NaduTransport Department,Fort St. George,Chennai 600009. https://hcservices.ecourts.gov.in/hcservices/

2. The Section OfficerJudicial Department High Court, Madras(For information)1 cc to Government Pleader, Sr. 885991 cc to Mr.A. Amalraj, Advocate, Sr. 88136 W.A.Nos.1941 and 1942 of 2001 and Cont.Petn.No.689 of 2002BK (CO)kk 31/12