CORAMTHE HONOURABLE MR v. The Presiding Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.10.2007CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANW.A.No.2282 of 2001Subramani.. Appellant/2nd Respondent.Versus1.The Presiding Officer, II Additional Labour Court, Chennai-104.2.The Special Officer Madurantakam Co-operative Sugar Mills Ltd., Padalam Post, Madurantakam Taluk, Chingleput .. Respondents/1st Respondent/ Petitioner.Prayer:-This writ appeal has been preferred against the order dated23.2.1999 passed by Hon'ble Mr.Justice Y.Venkatachalam in W.P.No.12855 of1991, to issue a Writ of Certiorari calling for the records on the fileof the 1st respondent herein in CP.No.898/1986 and quash the order passedtherein dated 5.6.1990. For Appellant : Mr.D.Hari Parandaman, Advocate For respondents : Mr.N.Balasubramanian Mr.S.S.Venkataraman for R2JUDGMENTA.C.ARUMUGAPERUMAL ADITYAN, J.This writ appeal has been preferred against the order passed by alearned Judge of this Court in W.P.No.12855 of 1991, dated 23.2.1999,under Article 226 of the Constitution of India. This is a writ ofcertiorari calling for the records of the 1st respondent in C.P.No.898 of1996 and to quash the order passed therein dated 5.6.1990. 2.1 The Claim Petition No.898 of 1986 was filed by thepetitioner/respondent under Section 33(C)(2) of the Industrial DisputesAct claiming that the petitioner as a driver under the respondent-2 /Special Officer, Madurantakam Co-operative Suger Mills Ltd., Paladam Post, https://hcservices.ecourts.gov.in/hcservices/ had worked for more than 8 hours and hence, he is entitled to double thepay. But the 2nd respondent herein had stopped the additional pay paid byhim from October, 1985. Claiming Rs.16,649.21 towards additional pay forthe period from October, 1985 to August, 1986, the said application wasfiled.2.2 It was contended on behalf of the 2nd respondent herein /employer that the petition itself is not maintainable under Section 33 (C)(2) of the Industrial Disputes Act and that the petitioner is not workingin an Industry, since he is in no way connected with the protection of therespondent's factory in any manner.2.3 After going through the averments in the petition and the counterand after taking into consideration the evidence both oral anddocumentary, the learned Additional Labour Judge, Chennai, has allowed thepetition filed by the petitioner granting the relief of additional pay ofRs.16,649.21 as prayed for. Aggrieved by the findings of the learnedLabour Judge, the employer had preferred the writ petition No.12855 of1991. After going through the merits and demerits of the case, thelearned single Judge of this Court has come to the conclusion that theimpugned order passed by the learned Labour Judge under Section 33 (C)(2)of the Industrial Disputes Act is not maintainable on the ground that theemployer / Co-operative Sugar Mill will be governed by the by-laws andalso the circular issued by the Registrar of Co-operative Society aloneand that being the position, the order of the learned Labour Judge, underchallenge, is not sustainable and consequently allowed the Writ Petitionsetting aside the award passed by the learned Labour Judge in C.P.No.898of 1986 on the file of the Presiding Officer, II Additional Labour Court,Chennai, which necessitated the employer to prefer this writ appeal.3.We have heard the learned counsel appearing for the appellantMr.D.Hari Parandaman, learned counsel appearing for the appellant andMr.N.Balasubramanian learned counsel appearing for the 1st respondent andMr.S.S.Venkataraman learned counsel appearing for the 2nd respondent andconsidered their respective submissions.4.The only point for determination in this writ appeal is whethersection 32(C)(2) of the Industrial Disputes Act will be applicable to thepresent facts of the case?5.The learned counsel appearing for the appellant would contend thateven though the Government had declined to refer the matter foradjudication under Section 10 of the Industrial Dispute Act, it is not anembargo for the appellant under Section 33 (C)(2) of the IndustrialDispute Act to move before the Labour Court. In support of thiscontention, the learned counsel for the appellant would rely on a decisionof a Bench of this Court in W.A.No.189 of 2000, dated 10.2.2000, whereinthe observation made relevant for the purpose of deciding this writ appealruns as follows:-"Making complaint for contravention of the provisions underSection 33(2)(b) of the said Act by the appellant is a statutory https://hcservices.ecourts.gov.in/hcservices/ right to an employee, and, merely because the Government refusedto refer the matter to the Tribunal exercising powers underSection 10 of the said Act, exercising such a right by theemployee under Section 33A of the said Act cannot be denied."Section 33(C)(2) of the Industrial Disputes Act runs as follows:-"where any workman is entitled to receive from the employerany money or any benefit which is capable of being computed interms of money and if any question arises as to the amount ofmoney due or as to the amount at which such benefit should becomputed, then the question may, subject to any rules that may bemade under this Act, be decided by such Labour Court as may bespecified in this behalf by the appropriate Government, (within aperiod not exceeding three months),Provided that where the presiding officer of a Labour courtconsiders it necessary or expedient so to do, he may, for reasonsto be recorded in writing, extend such period by such furtherperiod as he may think fit."It was contended on behalf of the respondent that for the purpose ofenforcing the existing right and when the existence of that right itselfis not questioned, the Labour Court is totally in out of order in grantingthe interim relief. But in the Counter filed in C.P.No.898 of 1986 itselfthe employer/respondent herein had admitted that if an employee has workedfor more than 10 hours he has been paid extra wages proportionate to theextra hours of work he has done and that in September-1975, the driversof the respondent had raised a demand of double wages for over time workbeyond 8 hours and also for wage revision with weightage and that therewas mediation took place between the employer and the drivers' associationand the Director of Sugars at the request of the drivers had enhanced theextra monetary allowance of Rs.30/- to Rs.60 per month for the overtimework subject to the condition that the drivers who are eligible for thisallowance for their odd hours duty should work for at least 5 days in amonth during odd hours instead of 10 days and a circular which wasapplicable to all co-operative and public sector sugar mills was broughtto the notice of all the drivers through an order No.650/85-86-E dated7.7.1986 by which they were informed that they will be paid extra monetaryallowance of Rs.60/- per month if they work during odd hours atleast for 5days in a month and that they are not entitled to any other extra wages.They would further admit that the petitioner has not received the extramonetary allowance of Rs.60/- per month from 1.4.1986 and out of 8 driversonly 4 drivers have received the same. So, under such circumstances, itcannot be contended that Section 33(C)(2) of the Industrial Dispute Actwill not be applicable to the present facts of the case because underC.P.No.898 of 1986, the petitioner has claimed only over time wages towhich he is entitled to. 6.Relying on 1977(2) LLJ 274 (General Manager, Co-operative SuperMarket, Madurai Vs. Additional Labour Court, Madurai and another), thelearned counsel for the appellant would contend that in the said ratio thequestion that arose for consideration whether the claim for refund ofsecurity deposit can be the subject matter of the claim petition underSection 33(C)(2) of the Industrial Dispute Act and whether the Labour https://hcservices.ecourts.gov.in/hcservices/ Court has got jurisdiction to try the same, were considered in theaffirmative as follows:-"No doubt, in the instant case, the second respondent, whenhe was issued Ex.M.3, did not furnish the necessary explanation.However, that would not enable the Society to contend that thesecond respondent is not entitled to the return of the secutirydeposit. Ramakrishna, J., in Kodaikanal Motor Union vs.Nallathambi (1969-II LLJ 141 at page 144 = 1969 Lab. IC. 1314 atpage 1318) held :With regard to the claim for repayment of the securityamount, it is urged by the learned counsel for themanagement that since the order of dismissal involves afinding that the worker had caused loss to the management,the management would be entitled to retain the securityamount as a set off against that loss. Here, however, theposition is different from the case of bonus prima facie themoney belongs to the worker and in the normal course hewould be entitled to get a refund of it. It was for themanagement to prove satisfactorily when the matter camebefore the Labour Court in a claim petition under Section 33(C)(2), that the management had a lien on that money forloss caused to it by the worker's misconduct. Necessaryevidence establishing the link between the worker's conductand the loss to the management should have been adduced inthe context of the return of the security money,"Under such circumstances, we are of the considered view that the findingsof the learned single Judge that the Labour Court has no jurisdiction toentertain the petition filed under Section 33(C)(2) of the IndustrialDisputes Act cannot be sustainable and warrants interference.7.In fine, the writ appeal is allowed and the order passed inW.P.No.12855 of 1991 is hereby set aside and the order of the learnedLabour Court in C.P.No.898 of 1986 is restored. Time for payment is onemonth.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssv https://hcservices.ecourts.gov.in/hcservices/ To1.The Presiding Officer, II Additional Labour Court, Chennai-104.2.The Special Officer Madurantakam Co-operative Sugar Mills Ltd., Padalam Post, Madurantakam Taluk, Chingleput.W.A.No.2282 of 2001km[co]gp/6.11.