High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 4-10-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.49741 of 2006andM.P.Nos.1 of 2006 and 1 and 2 of 2007Indian Institute of Technology- MadrasRep. By its RegistrarChennai 600 036... Petitioner vs1.The Presiding Officer Principal Labour Court Chennai2.R.Venkatramani3.R.Ganesan4.K.Radhakrishnan5.G.Thangachan6.S.Subramanian7.A.Subbraraidu8.G.Devaiah9.R.Mani10.M.Chokkalingam11.K.Madhavaiah12.M.Nagaiah13.T.D.George14.K.R.Panchaksharam15.Narayanasamy16.K.Shanmugam17.A.K.Gopalakrishnan18.P.Subramanian19.M.R.Raman20.N.Rajamani21.N.Selvam22.G.Venkaiah23.M.P.Veeraiah24.V.Narayanasamy25.K.C.Harikrishnan26.M.P.Balakrishnan27.K.Venkataiah28.K.Muniappan29.U.L.Krishnan30.M.Selvam31.M.Kulandaivelu https://hcservices.ecourts.gov.in/hcservices/

32.Kunhiraman33.M.Mani34.S.C.Elumalai35.P.Ramsingh36.M.Chinnaiah37.M.SEthumadhavan38.P.Murugaian39.N.Subramanian40.D.Nandagopal41.V.V.Jose42.M.V.Viswanathan43.M.Kasinathan44.G.Mani45.E.Manoharan46.P.Sethuraman47.Esakiel Selvakumar48.M.Krishnamoorthy49.A.Veerapandian50.C.V.Balachandran51.V.Rajeswari52.K.Ganesan53.U.Sudhakaran54.K.Rani55.S.Joseph56.Fathima57.M.Arumuga Nainar58.M.Thirupal59.L.Dasarathan60.K.Thirumalai Reddy61.A.Munusamy62.M.C.Subbaiah63.M.Arivalagan64.V.K.Govindankutty65.A.Velankanni66.V.Thirunavukkarasu67.J.Balasubramani68.Jegadeesan69.P.Obaiah70.N.Chinnaiah71.P.R.Rajaiah72.M.Shanmugham73.M.V.Mathialagan74.P.Annadurai75.R.Veeraswamy76.A.William George Stephen77.K.Kanaga Sundaram78.P.Bakthavatsalam79.C.Kasthuri80.P.Ramaswamy81.A.K.Govindasamy82.P.Visalakshi83.A.Muthu84.S.P.Muthu85.N.Murthy https://hcservices.ecourts.gov.in/hcservices/

86.R.Natarajan87.M.Subbiah88.M.Malakondaiah89.G.Sethuraman90.R.Vanajakshi91.D.Victor David92.M.Ellaiah93.Krishnamma94.K.Venkatachalam95.Santhamma96.R.Narashimalu97.A.Krishnankutty98.N.Mangudi99.P.Narayanan100.P.Muniammal101.M.Jayalakshmi102.M.Balamma103.A.Ramachandran104.R.Ganesan105.T.Sarojini106.A.Suresh107.M.Vellaisamy108.V.Shankar109.C.Muniyan110.M.Radhakrishnan111.C.Krishnan112.S.Rajamani113.M.Sivalingam114.V.Alagesan115.S.Sundaram116.P.Lingaiah117.D.Venkataiah118.S.Thaiyumanavan119.S.Devadass120.P.Venkataramaiah121.T.Muruganandam122.M.Obaiah123.S.Chellaiah124.R.Jayaraman125.M.Subramanian126.K.Arjunan127.N.Mani128.D.Chinna Ponnu129.M.Ganesan130.J.Anthony131.G.Baskarareddy132.V.S.Balan133.T.Laxmanan134.C.Nagappan135.N.Varadhan136.K.K.Viswambaran137.V.K.Parameswaran138.K.Rangasamy139.M.Ramaiah https://hcservices.ecourts.gov.in/hcservices/

140.C.Subbarayan141.N.Veeramuthu142.K.P.Kalidasan143.G.Arumugam144.K.Raju145.M.Nandakumar146.P.Krishnan147.A.Karuppiah148.M.Kondaiah149.T.Guruviah150.M.Rajagopal151.P.Krishnankutty152.C.Vaidyanathan153.K.Varadhan154.N.Ranganathan155.M.Ramalingam156.M.Ganesan157.R.Jayaraman158.K.Shankaran159.A.Subramaniam160.V.M.Balan161.K.Narayanan162.R.Karunanidhi163.V.Moses Theodore164.M.Pandian165.K.Venkatarangan166.S.Sivadoss167.V.Shankaranarayanan168.R.C.Sekar169.D.Thangavelu170.M.Sivaraman171.M.P.Sukumaran172.R.Chinnaiah173.S.Francis174.S.Francisnathan175.S.Kannayan176.M.Gurunathan.. RespondentsRR.2 TO 176 C/o.Thiru.K.ShanmugakaniAdvocate, 123, Additional Law Chambers,Chennai 104.Writ petition filed under Article 226 of the Constitution of Indiapraying for a writ of certiorari calling for the records relating to theorder dated 31.3.2006 of the first respondent herein in Claim PetitionNos.274 to 430 of 1999, 389 to 395 of 2002, 397 of 2002, 400 of 2002, 407to 409 of 2002 and 411 to 416 of 2002 and quash the same.For Petitioner: Mr.R.ParthibanFor Respondents: Mr.K.Shanmugakani for RR2 to 176 https://hcservices.ecourts.gov.in/hcservices/ ORDERChallenge is made to an order of the Labour Court, Madras, made inClaim Petition Nos.274 to 430 of 1999, 389 to 395, 397, 400, 407 to 409and and 411 to 416 of 2002 in favour of the respondents 2 to 176 hereinholding that they are entitled for the overtime wages during the relevantperiod from 1993 to 1999 and also granting other reliefs.2.The Court heard the learned Counsel on either side. The affidavitin support of the petition along with the grounds are also looked into.3.The respondents 2 to 176 along with others made all those claimpetitions alleging that they were all working as Server, Cleaner/Washer,Cook, Servant maid, Gardener, Grinder and Distribution Attendantrespectively from 1963, 1964, 1965, etc., with the petitioner institute;that they have been assigned to work at the Students' Hostel, situatedwithin the Institute campus; that the petitioner establishment is aResidential Education Institution; that it caters to the needs of thestudents; that it is a condition precedent that all the students joiningthe petitioner's establishment should continue their studies by stayingthere; that there are about 3000 students; that the Cooks report for dutyby 5.00 A.M., and all other workers report duty at 6.00 A.M.; that aftercompleting the service, the workers finish a day's work at 8.30 P.M., andthus, they have been working for more than 14.30 hours per day; that asper the letter from the Government of India dated 27.1.1993, all theemployees should work for 48 hours per week not exceeding 10 hours perday, and however, due to the exigencies of work, if an employee wasrequired to put in more than 48 hours of work per week, he should beentitled for payment of overtime allowance as per Rules; that they havebeen doing overtime work; that under the circumstances, they are entitledfor extra duty allowance, and hence, it has got to be ordered for theperiod from 1993 to 1999 along with interest at 18% per annum which theyare entitled.4.The respondent in the claim petitions who is the writ petitionerherein, resisted the petitions stating that all the petitions are notmaintainable in law; that the Institution has nothing to do; that they arenot the employees of the I.I.T.; that they are under exclusive control andmanagement of a body called Hostel Management; that the Hostel Managementwas in charge of the affairs of the Hostel and was the recruiting anddischarging authority; that it also fixes the ranges of pay, and ruleshave also been framed by the Hostel Management in regard to the terms andconditions of the employment of the hostel staff; that under thecircumstances, the I.I.T. has nothing to do with the terms and conditionsprovided by the Hostel Management; that further, the administration on theterms of employees and conditions of service of hostel employees inrecruitment, selection, probation and confirmation of employees, salariesand allowances of employees, duties and responsibilities of the employees,leave Rules, discipline of employees, grievances, transfer,promotion/review of employees fringe and retirement benefits and trainingof employees were done only by the Hostel Management; that the I.I.T. hasnothing to do with the same; that the working hours of the Mess isstipulated in Rule 17; and that it is not correct to state that they havebeen working beyond the stipulated time. It is also further added that https://hcservices.ecourts.gov.in/hcservices/ originally, the matter was agitated; that it has also been found by theDivision Bench of this Court that they are not the workers of the I.I.T.,but workers of the Hostel Management; that the Government of India'scircular can be applied to the present facts of the case; and that underthe circumstances, all the petitions were to be dismissed.5.All the claim petitions were taken up for enquiry by the firstrespondent Labour Court, and both the parties were given opportunity toadduce evidence both oral and documentary. The Labour Court took its viewand granted the relief which is the subject matter of challenge beforethis Court.6.Advancing his arguments on behalf of the writ petitioner, whochallenges the order of the Labour Court, the learned Counsel would submitthat firstly, in the instant case, all these respondents 2 to 176 wereactually the employees under the Hostel Management; that they were allunder the exclusive control and management of the body called HostelManagement; that the I.I.T. has nothing to do with the same; thatsecondly, their services were all governed by the Rules framed by theHostel Management in which the I.I.T. has no role to play; thatoriginally, the Association of the hostel employees referred the matter tothe Assistant Commissioner of Labour on 27.9.1993; that the saidAssociation was represented by its Secretary; that four disputes wereraised in the representation; that one of the disputes was relating to thegrant of overtime wages; that the Hostel Management gave its elaboratereport; that it was also dealt with; that a detailed explanation was givenby the I.I.T.; that further, the I.I.T. also filed a separate statement;that the final conciliation meeting was also held; that the conciliationfailure report was sent on 7.7.1995; that the Government issued a G.O.refusing to refer the four issues for adjudication; that aggrieved overthe same, the Association filed WP No.15215/1998 to direct the Governmentto refer the disputes raised on 27.9.1993; that though the said writpetition was filed by the employees' Union, the same was withdrawn by theAssociation; but, all the factual facts were suppressed in the presentclaim petitions; that while that writ petition was pending, freshrepresentations were made by the Association to the Conciliation Officer;that in the said representation, they have sought to prosecute themanagement for unfair labour practices; that a reply was given by theChairman of the Hostel Management; that while the petition for prosecutionwas pending, the Association also raised fresh dispute before theAssistant Commissioner of Labour of the State; that one of the issues wasregarding the overtime wages; that the conciliation failure report wassent; that the Government passed orders referring two issues foradjudication; that it has also passed a separate order refusing to referthree issues; that in that order, it has been clearly stated that as faras the issue of overtime wages was concerned, the workmen had not pressedthis demand and have given up their claim for overtime wages; that underthe circumstances, that issue was not referred; that the said order wasnot challenged by the workmen at any stage; that all these facts weresuppressed in the claim petitions; that the two issues which were referredfor adjudication, were taken on the file of the Industrial Tribunal asI.D.No.99 of 2000; that it is yet pending; that after conclusion of allthese proceedings, the workmen filed the claim petitions claiming overtimewages from 1993 to 1999; that the said claim petitions were dismissed as https://hcservices.ecourts.gov.in/hcservices/ not pressed; and that the management filed a detailed counter. 7.Added further the learned Counsel that the Labour Court has nottaken into consideration the fact that before filing the claim petitions,there should be an adjudication made in respect of the claims made by theworkmen, but not done so; that under the circumstances, all these claimpetitions should have been dismissed at the threshold; but, not done so;that out of the respondents 2 to 176, 56 workers have already come out onV.R.S.; and that their claims have already been settled. 8.The learned Counsel would further add that in the instant case, whathas been agitated by the workmen is the claim for overtime wages and notovertime allowances; that the Labour Court has not considered any one ofthe above aspects of the matter, but has passed the order, and hence, theorder of the Labour Court has got to be set aside.9.Contrary to the above contentions, the learned Counsel for therespondents 2 to 176 would submit that in the instant case, the firstcontention put forth by the learned Counsel for the petitioner that allthese workmen are coming under the Hostel Management was against the termsand conditions and also the available documentary evidence. The learnedCounsel took the Court to the different documents available and wouldsubmit that Ex.P36 is the terms of employment and conditions of service ofthe employees wherein it has been clearly stated that the supervision ofthe Hostel Management is done by a body constituted by the Director ofI.I.T. 10.The learned Counsel would further add that the wages of the hostelemployees were also paid by the I.I.T., Madras; that the same is alsoevident from Exs.P47 and P48 series; that the Director of the Institute isthe Appellate Authority for disciplinary action taken against theemployees of the Hostel Management which would clearly establish that theDirector was having ultimate control over the Hostel Management throughthe Assistant Registrar and the Wardens of the hostels; that further,Ex.P48 series are the payment vouchers wherein it is clearly found thatthe entire payment of wages is made by the I.I.T. directly to therespondents 2 to 176; that further Ex.P59 series are the relieving orderswhich were issued to the employees of the hostel, wherein the AssistantRegistrar has signed; that under the circumstances, the appointment, thesupervision, payment of wages, control, etc., are all actually in thehands of the I.I.T., and thus, it would be futile on the part of thepetitioner to put forth the contention that it has nothing to do with theHostel Management. 11.The learned Counsel would further add that it is true thatoriginally, a writ petition was filed and withdrawn; that the said writpetition was filed only as to the wages and not in respect of theallowances; that another writ petition was filed by the I.I.T. seeking awrit of prohibition against the department which was one in respect of thepayment of provident fund; that the same has nothing to do; and thatthough it has been held by this Court that the employees were not theemployees of the I.I.T., but of the Hostel Management, it would not bebinding on the respondents 2 to 176 since they were not parties to thatproceedings. https://hcservices.ecourts.gov.in/hcservices/

12.The learned Counsel would further submit that in the instant case,the contention put forth by the petitioner's side that in order to filethe claim petitions, earlier adjudication is necessary is not correctbecause in order to exercise the powers under Sec.33(C)(2) of theIndustrial Disputes Act, either there should be prior adjudication or therights to which they are entitled, should be available; that in the caseon hand, they have got the source and right to which they are entitled;that for the same, they can well maintain the claim petitions before theLabour Court, which they have done; and that the Labour Court elaboratelyconsidered the matter and passed orders, which cannot be challenged. 13.Added further the learned Counsel that even if the contention ofthe petitioner's side that 56 of the employees have already come out onV.R.S. is true, they can maintain the claim petitions as per the settledposition of law; that even a retired workman can maintain an applicationfor the payment of wages; and that under the circumstances, thecontentions of the petitioner's side have got to be rejected, and writpetition be dismissed.14.The Court paid its anxious consideration on the submissions made. 15.It is not in controversy that all these respondents 2 to 176 wereemployed in the Hostel. According to the learned Counsel for thepetitioner, they are all employees under the Hostel Management, and theI.I.T. has nothing to do with the same. As rightly pointed out by thelearned Counsel for the respondents 2 to 176, the evidence recorded by theLabour Court, would indicate that the contentions put forth by thepetitioner's side that they are the employees of the Hostel Managementcannot be accepted. There is evidence under Ex.P36 to show that thesupervision of the Hostel Management was done by a body constituted by theDirector of the I.I.T., and further, payment of wages have been made underExs.P47 and P48 series, to the employees, who are the respondents 2 to 176herein, directly by the I.I.T. Thus, the documentary evidence wouldindicate that the wages of the hostel staff were also paid by the I.I.T.Further, in the instant case, as could be seen from the availablematerials and as pointed out by the Labour Court, the appointment, termsand conditions of the hostel staff, control, supervision and payment ofwages are made by the I.I.T. Hence, the first contention put forth by thepetitioner's side that they have nothing to do with those employees cannotbe countenanced.16.Now, the contention put forth by the learned Counsel for thepetitioner is that originally, there was a writ petition filed by theAssociation, and it was also held by the Division Bench of this Court in awrit appeal that the hostel employees were not employees of the I.I.T.Now, at this juncture, it is pertinent to point out that no material isavailable to indicate that the respondents 2 to 176 who call themselves asemployees of the I.I.T., were actually parties to that proceedings, andunder the circumstances, this contention cannot be countenanced. 17.Further, it is to be pointed out that though the above contentionsput forth by the petitioner's side cannot be accepted, this Court is ofthe considered opinion that the claim petitions filed before the LabourCourt, were not at all maintainable for two reasons. Firstly, all these https://hcservices.ecourts.gov.in/hcservices/ claim petitions were made directly before the Labour Court under Sec.33(C)(2) of the Industrial Disputes Act. They were all taken up forconsideration. Now, at this juncture, it has got to be pointed out thatin order to exercise the powers of the Labour Court under Sec.33(C)(2) ofthe Act, there should have been a prior adjudication. It remains to bestated that the Labour Court while exercising its powers under Sec.33(C)(2) of the Act, is functioning as an Executing Court. In the absence ofany adjudication already made by a competent authority, no question ofmaintaining the claim petitions would arise. This Court is of the opinionthat the two decisions relied on by the learned Counsel for the petitionerand reported in 2006 (3) SCALE 296 (UNION OF INDIA AND ANOTHER V. KANKUBEN(DEAD) BY LRS. AND OTHERS) and in 2005 (2) LLN 823 (SPECIAL OFFICER,VELLORE COOPERATIVE SUGAR MILLS V. PRESIDING OFFICER, LABOUR COURT,VELLORE), are applicable to the present facts of the case. In thedecision reported in 2006 (3) SCALE 296, it has been clearly found thatthe respondents workmen made claims of overtime allowance which, accordingto them, was payable in view of 'on and off duty' for taking out andbringing in locomotives from the shed as was required to be done for thepurpose of operating them at and from different stations. Further, theApex Court has held in that decision that in the absence of any findingalready given by a competent authority, there is no question ofmaintaining the petitions before the Labour Court that would arise. Apartfrom that, the First Bench of this Court had an occasion to consider thequestion and rendered a decision reported in 2005 (2) LLN 823, wherein ithas been held that the right to benefit must be a pre-existing right, thatis to say, one which has already been adjudicated upon or provided forunder a statute or settlement. In the instant case, all the claimpetitions have been directly made and no adjudication was previously doneby any authority to make or maintain those petitions. 18.Secondly, it is not in controversy that originally, both times,conciliation was made; but, failure reports were submitted to theGovernment. Further, in respect of the conciliation report filed on26.4.1999, the Government passed the order referring two issues foradjudication. There was also a separate order passed by the Government,wherein it has been clearly stated that the workmen had not pressed theissue of overtime wages, and therefore, that issue was not referred. Oncesuch an order following the failure report was passed by the Governmentwherein it is also clearly recorded that they have not pressed the demandfor overtime wages, even without challenging the same, they cannot bringforth claim petitions before the Labour Court as one done by them in theinstant case. An occasion came before the Apex Court to consider thequestion that in a given case where the Government has refused to referthe dispute for adjudication, whether the workmen can directly bring adispute before the Court for making a claim. An answer was given by theSupreme Court in B.S. BHARTI V. IBP CO. LTD. ((2004) 7 SUPREME COURT CASES550), wherein it has been held that the proper remedy for the aggrievedparty was to challenge the Government's refusal by a writ petition and nototherwise. In the case on hand, it is an admitted fact that the failurereport was actually placed in the hands of the Government, which was notreferred to as a dispute. In such circumstances, the only remedyavailable was to make a writ petition before the Court challenging thatorder of the State and not otherwise, or by way of making a claim petitionbefore the Labour Court. https://hcservices.ecourts.gov.in/hcservices/

19.For the above two grounds, this Court is of the considered opinionthat the Labour Court should have dismissed the claim petitions, but notdone so. Under the circumstances, the Court has to necessarily set asidethe order of the Labour Court. Accordingly, it is set aside. The orderpassed above, will not stand in the way of the respondents 2 to 176getting their appropriate remedy before the appropriate forum if they areso advised. 20.In the result, this writ petition is, accordingly, ordered. Nocosts. Consequently, connected MPs are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nsv/To:The Presiding OfficerPrincipal Labour CourtChennai+ 1 CC To Mr.K.Shanmugakani, Advocate SR NO.61708+ 1 CC To Mr. R.Parthiban, Advocate SR NO.61727WP No.49741 of 2006sa[co]rvl/9.10.