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6 {

No.

32

Poudouchéry

Mardi

6

Août

2019 (15 Sravana 1941)

No.

Puducherry

Tuesday

6th

August

2019

588

LA GAZETTE DE L’ETAT

[6 August 2019

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 93/AIL/Lab./T/2019,

Puducherry, dated 8th July 2019)

NOTIFICATION

Whereas, an Award in C.P.No. 09/2012, dated

06-03-2019 of the Industrial Tribunal-cum- Labour Court,

Puducherry in respect of the industrial dispute between

the management of M/s. Regency Ceramics Limited,

Hyderabad and Thiru K.V.V. Sathyanarayanamurthy,

Andhra Pradesh, over payment of back wages has been

received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read with

the Notification issued in Labour Department’s G.O. Ms.

No. 20/91/Lab./L, dated 23-5-1991, it is hereby directed

by the Secretary to Government (Labour), that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

S. MOUTTOULINGAM,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present : Thiru C. KUMAR SARAVANAN, M.A., M.L.,

Presiding Officer (FAC).

Wednesday, the 06th day of March 2019

C.P. No. 09/2019

K.V.V. Sathyanarayanamurthy,

S/o. Vadapalli,

3-124, Main Road,

Injaram 533 464,

East Godavari,

Andhra Pradesh.

. . Petitioner

Versus

The Managing Director,

M/S. Regency Ceramics Limited

No. 5-8-356, N.N. House,

Chirag-Ali-Lane,

Hyderabad-500 001.

. . Respondent

This industrial dispute coming on 06-02-2019 before me

for final hearing in the presence of Thiru R.S. Zivanandam,

Advocate for the petitioner and Mr. L. Sathish for the

respondent, upon hearing the petitioner and perusing

the case records, this Court passed the following:

AWARD

This Industrial Dispute arises out of the reference

made by the Government of Puducherry vide G.O. Rt.

No. l86/AIL/Lab./J/ 2012, dated 25-10-2012 of the

Labour Department, Puducherry. The industrial dispute

was raised by Thiru K.V.V. Sathyanarayanamurthy

against the management of M/s. Regency Ceramics

Limited, Yanam before the Assistant Inspector of Labour-

cum-Conciliation Officer, Yanam, over non-employment.

The Conciliation Officer, Yanam after conducting

conciliation meeting submitted a failure to the Secretary

(Labour), Puducherry. After examining the failure report

received from the Conciliation Officer, Yanam the matter

was referred to the Labour Court, Puducherry vide G.O.

Rt. No. 1235/1994/Lab./, dated 05-12-1994 of the Labour

Department, Puducherry. Whereas, the Labour Court

passed an Award in ID. No. 28/1994, dated 09-07-1998

in favour of the petitioner and the same was published

in Puducherry Gazette No. 16, dated 20-04-1999 vide

G.O. No. 128/1998/Lab./L, dated 28-12-1998 of Labour

Department,Puducherry. The petitioner has stated that

he has sent a letter, dated 23-12-2010, to the

management, but, no response has been received from

the management. And whereas, an application in Form

K-1 addressed to the Secretary (Labour) was received

from Thiru K.V.V. Satyanarayanamurthy, Yanam for

the recovery of money from the management of

M/s. Regency Ceramics Limited, Yanam, as per the

Judgment in I.D. 28.1994, dated 09-07-1998. Whereas,

the petitioner has requested the Secretary (Labour),

Puducherry to interfere in the matter and take

appropriate action against the management under

section 33 C (2) of the Industrial Disputes Act, 1947,

for the recovery of the money due to him. A notice vide

No. 9057/AIL/Lab./J/ 2011, dated 22-11-2011 was sent

to the management of M/s. Regency Ceramics Limited,

Yanam through registered post to pay the dues to the

workman as per the award passed by the Labour Court,

Puducherry and the management failed to apply the

same to the workman. And the management instead of

paying the amount due to the petitioner has filed their

reply vide No. Y: 03: LAB:PUD:2011-12/278/DT 02-12-2011

wherein, they have stated that the petitioner is eligible

only for ` 3,14,400 towards back wages and further,

they have preffered an appeal towards 25% of back

wages in the High Court of Chennai and the same is

pending. The petitioner has gvien a letter, dated 09-03-2012

589

6 August 2019]

LA GAZETTE DE L’ETAT

and detailed all the allegations made by the petitioner

and prayed for early implementation of the Judgment

for payment of back wages for ` l2,33,253. And now,

therefore, by virtue of the authority delegated vide

G.O. Ms. No. 20/91/Lab./dated 23-05-1991 of the Labour

Department, Puducherry to exercise the powers

conffered by sub-section (2) of the section 33-C of the

Industrial Disputes Act, 1947, (Central Act XIV of 1947),

it is hereby directed by the Secretary to Government

(Labour) that the application in From-K-1, received from

the petitioner be referred to the Labour Court,

Puducherry for computation of amount of money

towards 25% of back wages. The Labour Court,

Puducherry shall submit report within 3 months from

the date of issue of this reference as stipulated under

sub section (2) of section 33 C of the Industrial

Disputes Act, 1947.

2. The brief averments of the claim statement filed

by the petitioner are as follows:

The petitioner humbly submits before this

Hon’ble Court that the petitioner is an employee of

this respondent factory by name M/s. Regency

Ceramics Limited, Yanam. The petitioner raised the

dispute, since the respondent holding industry at

Yanam, one of the regions Union territory of

Puducherry. The C.P. against the respondent raised

before the Labour Commissioner, Government of

Puducherry. The conciliation was affected and no

settlement was arrived. Therefore, the Government of

Puducherry referred the matter to this Hon’ble Court

for an Award on the following reference No. 186/AIL/

Lab./J/2012, dated 25-10-2012.

Reference:

(1) W h e t h e r

t h e

p e t i t i o n e r

Thiru

K.V.V. Sathyanarayanamurthy is entitled for the

payment of back wages for ` 12,33,253 (Rupees

twelve lakhs thirty three thousand two hundred and

fifty three only).

(2) If, not to what relief the petitioner is entitled?

(3) To what other reliefs?

The petitioner is an employee of the respondent

company as an operator. The respondent with arbitrary

power and unfair labour practice against the workers

kept this petitioner subjected to severe torture be

several means of unfair labour practices and

victimization. Hence, this petitioner is constrained to file

the C.P. seeking for justice.

The petitioner humbly submits that this Hon’ble

Labour Court duly passed an Award in I.D. No. 28/94,

dated 09-07-1998 in favour of petitioner and the same

was published in Government Gazette No. 16, dated

20-04-1999 directing the respondent’s management to

reinstate the petitioner 25% of back wages for wrongful

dismiss Gazette Notification.

The petitioner further submits that the respondent

voluntarily and wilfully refused to obey the orders of

this Hon’ble Court and the respondent’s management

preferred W.P. 92181/99 before the Hon’ble Court of

Judicature, Madras up on the orders of this Hon’ble

Court passed its orders in I.D. 28/94. The Hon’ble High

Court also duly dismissed the W.P. as per the Judgement,

dated 01-07-2008.

The petitioner further submits that upon which this

petitioner reinstated into service on 24-11-2010 and

thereafter, the petitioner submitted his claim of back

wage dues on 23-12-2010 to the management requesting

the management to pay ` 12,33,253 mentioning all

particulars to which the management did not choose to

give any reply. Thereafter, inspite of repeated requests,

dated 07-03-2011, 15-04-2011, 29-07-2011 by the

petitioner to the management to pay the above back

wages amount of ` 12,33,252, the management Voluntarily

and wilfully dragged to pay the above amount and other

hand gave evasive replies, dated 23-05-2011, 25-05-2011

and 24-06-2011.

The petitioner further submits that in those

circumstances the petitioner submitted an application,

dated 02-11-2011 before the Secretary to Government

(Labour), Government of Puducherry and Labour

Commissioner, Government of Puducherry.

The petitioner further submits that in furtherance of

the evil motions of the management, the management

with fraudulent, dishonest intention to file a false case

upon the petitioner and thereby threatening and

coercions this petitioner to obey the unlawful dictums

of the management, and thereby to cause wrong full loss

to the petitioner, the management got manage the Yanam

Police, misled the Police got filed false case in F.I.R.

No. 139/2011 and thereby got remanded to judicial

custody from 09-09-2011 to 15-09-2011. In continuation

of management’s unfair labour practices and

victimization, this petitioner humbly submits that this

petitioner is innocent and this petitioner has not

committed any offence much less the alleged the above

offence. The said is pending as C.C. 16/2013 before

Hon’ble Judicial Magistrate Court at Yanam. The

petitioner further submits that thereafter the respondent

appeared before the Commissioner of Labour, Puducherry

and submitted a reply, dated 02-12-2011 with all false,

baseless, concocted and misleading allegations in

continuation of management’s unfair labour practices

and victimization. Thereupon, the petitioner submits a

rejoinder, dated 09-03-2012 with all true and correct

facts. It is duly admitted by the management that the

590

LA GAZETTE DE L’ETAT

[6 August 2019

petitioner was paid two months salary after his

reinstatement , by paying wages of ` 20,969 (Rupees

twenty thousand nine hundred and sixty nine only) for

the months of January and February 2011. So, in those

circumstances, the Labour Department referred the same

to this Hon’ble Court for settling the dispute.

Particulars of the petitioner’s claim statement for

payment of back wages of ` 12,33,253 (Rupees twelve

lakhs thirty three thousand two hundred and fifty three

only) from 01-07-1994 to the Hon’ble Court’s award,

09-07-1998.

Sl.

Year

Existing

Particulars

Wages Due/

No.

Wages/

Annum

Month

(1)

(2)

(3)

(4)

(5)

`

`

1

1994

1,700

Unsettled wages for 4 days (July 1-4)

261

2

1994

1,700

Wages from July 5-31; 27 days @ 25%

441

3

1994

1,700

Wages from August-December (5 months) @ 25%

2,125

4

1995-1996

2,450

12 months @ 25%

7,350

5

1996-1997

3,350

12 months @ 25%

10,050

6

1997-1998

3,350

12 months @ 25%

10,050

7

1998-1999

3,800

Wages for January-June & 8 days in July @ 25%

5,992

36,269

Sl.

Year

Wages/

Particulars

Wages/

Wages paid/

Wages to

No.

per Month

annum

Annum as

be paid/

per Hon’ble

Annum

HC orders

(1)

(2)

(3)

(4)

(5)

(6)

(7)

`

`

`

`

1

1998

3,800

July (9-31) 26 days August-December (5 months)

22,796

8,160=

14,636

2

1999-2000

4,600

-Do-

55,200

16,320=

38,880

3

2000-2001

5,300

-Do-

63,600

16,320=

472,580

4

2001-2002

5,900

-Do-

70,800

16,320=

54,480

5

2002-2003

7,330

-Do-

70,800

16,320=

54,480

6

2003-2004

8,450

-Do-

87,960

16,320=

71,640

7

2004-2005

9,780

-Do-

1,01,400

16,320=

85,080

8

2005-2006

9,780

-Do-

1,17,360

16,320=

1,01,040

9

2006-2007

9,780

-Do-

1,17,360

16,320=

1,01,040

10

2007-2008

9,780

-Do-

1,17,360

16,320=

1,01,040

11

2008-2009

9,780

-Do-

1,53,360

16,320=

1,37,040

12

2009-2010

14,280

-Do-

1,71,360

16,320=

1,55,040

13

2010-2011

20,969

-Do-

25,168

16,320=

2,35,308

Total :

1,19,86,984

This Statement shows the particulars after the order

of the Hon’ble Labour Court to the date of Joining:

Grand Total ` 36,269+11,96,984= ` 12,33,253 ( Rupees

twelve lakhs thirty three thousand two hundred and fifty

three only).

591

6 August 2019]

LA GAZETTE DE L’ETAT

The petitioner therefore, prays this Hon’ble Court be

pleased to pass all just and necessary orders for

directing the respondent’s management to pay the

stipulated back wages of ` 12,33,253 with accrued

interest @ 24% p.a. with cost to this petitioner with a

stipulated time and pass such other further orders which

are deemed to be just and necessary in circumstances

of the case and in the interest of justice.

The counter statement filed by the respondent are

as follows:

The respondent does not admit any of the

averments/allegations contained in the petition save

and except those that are specifically admitted

hereunder and the petitioner is put to strict proof of

such of those allegations which are not specifically

admitted herein by the respondent.

1. The respondent states that the present claim

petition is liable to be dismissed with exemplary cost

as the same ought not to have been numbered as

claim petition at all. It is submitted that Government

of Puducherry has made reference to the Hon’ble

Court vide Reference No. 183/AIL/Lab./J/2012, dated

25-10-2012, which is in the form of the adjudication

of industrial dispute under section 10 of Industrial

Disputes Act. The reference of Government, is clearly

to adjudicate the entitlement of petitioner for his

claim of ` 12,33,253 made by him in conciliation

proceedings. Therefore, what has been referred by

Government of Puducherry to this Hon’ble Court

under reference is only an industrial dispute under

second Schedule of the Industrial Disputes Act and

it is not a claim petition as is numbered by this

Hon’ble Court. In fact, a claim petition need not/

cannot be referred by Government as it is for the

parties to approach this Court directly. The petitioner

himself filed claim petition in CP No. 2/2012 making

similar claim for a different period which is pending

adjudication in this Court. Under these numbered and

adjudicated only as a industrial dispute. Hence, the

claim petition is liable to be rejected in limine.

2. The respondent further states that the

petitioner has already filed a similar claim petition in

CP No. 02/2012 on the file of this Hon’ble Court

claiming similar reliefs from November 2010 to

September 2011 and other allowances. Thus, the

reliefs claimed in present claim petition as well as in

CP No. 2/2012 are identical except for the different

in period. There cannot be two claim petitions

seeking similar reliefs for different in period. The

petitioner must consolidate his claims only in one

claim petition. Since trial in CP2/2012 has already

commenced, the petitioner must ideally withdraw the

present CP and contest CP 2/2012 on its merits,

wherein, he is free to seek the reliefs for the period

covered under the present CP also by making

suitable amendments to this claim petition.

3. Without prejudice to the aforementioned

contention, the respondent states that the entire

claim of the petitioner is based on erroneous and

deliberately mischievous interpretation of the Award

in ID (L) 28/1994 passed by this Hon’ble Court on

09-07-1998. The respondent submits that the

petitioner was engaged as Assistant Operator in the

respondent company at Yanam and he was dismissed

from the service from 05-07-19954 for his proven

misconduct. The petitioner approached the Labour

Court challenging his dismissal in ID (L) 28/1994

where in the Hon’ble Labour Court directed

reinstatement of petitioner with 25% of back wages.

4. The Award of the Labour Court, dated

09-07-1998 is specific as it states “The respondent

is directed to reinstate in the same employment as

operator of LPG which he was doing at the time of

passing dismissal order and pay his 25 percent of

back wages for wrongfull dismissal. The period from

the date of dismissal to the date of reinstatement

must be treated as on service only for the purpose

of retirement and retrenchment for computing terminal

benefits”.

5. The said Award was challenged by respondent

before Hon'ble High Court in W.P. No. 9128/1999.

During pendency of the said writ petition, the

petitioner was given full monthly wages under

section 17(B) of Industrial Disputes Act as per the

direction of the Hon’ble High Court with effect from

01-07-1999 to 11-07-2008.

6. The respondent further states that the W.P.

No. 9128/1999 was dismissed by Hon’ble High Court

vide its order, dated 11-07-2008 as against which the

respondent has preferred a Writ Appeal in W.A.

No. 302/2009 which is still pending adjudication.

Therefore, the entitlement of the petitioner to make

any claims based on the Award in ID (L) 28/1994 is

entirely depending on the final outcome of the

Writ Appeal No. 302/2009 and hence, the present

claim petition cannot he adjudicated on merits till the

disposal of the Writ Appeal No. 302/2009.

592

LA GAZETTE DE L’ETAT

[6 August 2019

7. The respondent further submit that therefore,

the claim of the petitioner for 25% back wages from

the year 1998-1999 to 2008-2009 must be out-rightly

rejected as he has received full wages during that

period in compliance of section 17(B) of Industrial

Disputes Act, which is also recorded in the order of

Hon’ble High Court in W.P. No. 9128/1999, dated

11-07-2008.

8. The respondent further submits that as regards

the other claim of unsettled wages from 1994, the

last drawn wages of the petitioner was only ` 5,000.

Hence, the petitioner can make a claim only 25% of

last drawn wages of ` 5,000. The respondent states

that though the High Court dismissed the Writ

Petition of the respondent on 11-07-2008, the

petitioner did not turn up for employment for the next

two years. He gave his representations for back wages

only on 23/12/2010 making a claim of ` 12,33,253.

However, it transpires that the petitioner was in

touch with one A.V.V. Kumar, who joined the services

of the respondent as Deputy General Manager (HR)

from 03-08-2010. It appears that the petitioner and

the said A.V.V. Kumar were having negotiations on

the ostensible ground of setting the differences in a

comprehensive manner and the said A.V.V. Kumar (as

is claimed by petitioner, who seems to be in custody

of some documents purportedly signed by A.V.V.

Kumar) has given letters and correspondences to the

petitioner fixing a fictitious rate of wages to the

petitioner at a rate far higher than the rate of wages

applicable to similar category workmen working in the

Plant in November 2010.

9. The said A.V.V. Kumar made the respondent

believe that a sum of ` 3,14,400 was payable to the

petitioner colluded and materially altered the same

Cheque No. 3336555 for ` 24,66,656 and the date was

altered as 09-04-2011. Fortunately, before the cheque

could be encashed, it came to the knowledge of the

respondent, who prevented the Bank from making the

payment against the said cheque. In other words,

both the petitioner and A.V.V. Kumar had conspired

to play a fraud on the respondent on 29-07-2011,

a Police complaint was lodged and the petitioner was

even arrested. The said A.V.V. Kumar is missing since

30-06-2011. When once the fraud came to light on

30-09-2011, the petitioner was placed under suspension

pending enquiry. The petitioner was paids uspension

allowances and in a free and fair enquiry, the heinous

misconduct of the petitioner was prove. The petitioner

was given a 2nd show cause notice, dated 31-07-2012

along with enquiry report, dated 26-12-2011.

10. The respondent submits that there was a

labour unrest in the factory of the respondent from

December 2011. In January 2012 also, there was chaos

and confusion. Following the death of one M. Murali

Mohan in the Police custody on 27-01-2012, the

workmen resorted to violence on 27-01-2012 in which

the President (Operations) of the respondent,

Mr. Chandrasekhar was butchered by the striking

workmen and he succumbed to the injuries. Following

the violent incident, a lock out was declared on

31-01-2012. In view of the lock out on 31-01-2012,

there is no question of payment of wages to the

petitioner from 31-01-2012. The lock out by the

respondent has also been declared as bona fide by

Hon’ble High Court in W.P. No. 12613/2013, dated

15-07-2015.

11. The respondent submits that the reinstatement

of the petitioner on 24-11-2010 was only on paper.

Even accordingly to the petitioner, he was asked to

be on leave with pay, eventhough he was reinstated

on 24-11-2010. In other words, he had not even

worked between 24-11-2010 and 30-09-2011 when he

was placed under suspension. Hence, no wage is

payable.

12. The respondent repudiates its liability for the

amounts claimed in the petition. The petitioner is put

to strict proof if, his entitlement as well as the

correctness of the amount claimed by him.

13. The petitioner is put to strict proof of the

averments mad in Para-1 on Page-2 of the claim

petition.

14. The respondent further denies its liability for

each of the amounts mentioned in the claim petition.

15. The respondent further submit that in the

event of the Award of this Hon’ble Court, dated

09-07-1998 in ID No. 28/1994 is set aside or quashed

in the Writ Appeal preferred by respondent in Writ

Appeal 302/2009, then all these claims will

automatically fall to the ground. It is but appropriate

that the claim petition is taken up for hearing after

the disposal of the Writ Appeal.

16. The petitioner himself if has filed another

claim petition in CP No. 2/2012 for substantially

similar reliefs. Therefore, he cannot maintain the

present application which is vexatious any cynical,

and therefore, the same is liable to be dismissed with

exemplary cost.

17. The respondent resaves its right to file any

additional counter statement.

593

6 August 2019]

LA GAZETTE DE L’ETAT

18. There are no merits in the application and it

lacks bona fide and is liable to be dismissed with cost.

Hence, it is prayed that this Hon’ble Court may be

pleased to dismiss the present application with

exemplary costs in the interests of justice.

5. The point for consideration is:

“Whether the petitioner is entitled for the

payment of back wages for ` 12,33,253 with accrued

interest @ 24% per annum with cost to the petitioner

with stipulated time”?

6. In the course of enquiry on both sides no

evidence has been let in and on the side of the

petitioner, the petitioner himself was examined as PW.1

and documents Exs.P1 to Ex.P11 were marked on the

petitioner side. And on the side of the respondent RW.1

examined and Exs.R1 to Ex.R13 were marked consent.

Heard both sides arguments and case records perused.

Point:

7. It is the case of the petitioner that the respondent

has to pay the back wages for a sum of ` 12,33,353 and

directing the respondent with stipulated time with

accrued interest at 24 % per annum with cost of the

petitioner since the petitioner is an employee as an

operator in the respondent’s management factory by

name M/s. Regency Ceramics Limited, Yanam. Further,

it is contended that the management acted orbitrary and

unfair labour practice against the workers subject to

severe torture and vevil motions of the management ,

the management with fraudulent practice dishonest

intention to file false case upon the petitioner and

thereby threatening and coercions to obey the unlawful

dictums of the management and committing to cause

wrongful loss giant to the management and got manage

the Yanam Police mislead the Police got false case in

FIR N. 139/2011 and remanded the petitioner for judicial

custody from 09-09-2011 to 15-09-2011 and the criminal

case; in No. C.C.No. 16/2013 is pending before the

Judicial Magistrate Court, Yanam. Further, it is contended

that inspite repeated request of the petitioner, the

respondent management wilfully and voluntarily

dragged to pay the wages for a sum of ` 12,33,353 and

they gave erasive reply and the matter referred to

Labour Conciliation Officer and it was ended vain and

the Labour Department referred the issue to the Labour

Court for adjudication.

8. Per contra, the respondent management denied

the all averments made in the claim petition filed by the

petitioner. Further, it is contended by the respondent

that the management was lock out the factory on

31-01-2012 and the petitioner was under suspension

pending enquiry and the petitioner was given show

cause notice, dated 31-07-2012 along with enquiry

report, dated 26-12-2012. The respondent factory was

declared lock out the company due to following death

of one Mr. M. Murali Mohan in the Police custody and

the workman restored to violence on 21-01-2012 by striking

the workman and the respondent Mr. Chandrasekar was

butchered by strike and he succumbed to the injuries.

Due to lock out it has been declared as bona fide by the

Hon’ble High Court in W.P.No. 12613/2013 is pending

and Award passed by the Labour Court in I.D. No. 28/

1994, is set aside and Writ Appeal preferred by the

respondent in Writ Appeal No. 302/2009 then these all

claims would automatically fall on the ground .There is

no liability on the respondent as mentioned in the claim

petition, since the reinstatement of the petitioner on

24-11-2010 is on only in paper eventhough he was asked

to leave with pay and he was reinstated on 24-11-2010

he had not even worked between 24-11-2011 and

30-09-2011 when he was under suspension and there is

no question of payment of wages. According to the

respondent that the petitioner is not entitled for any

claim and substantially there is no relief claimed as

alleged by the petitioner, since once the fraud committed

and came in to the light on 30-09-2011 and the heinous

misconduct of the petitioner is proved and there is no

liability to pay any amount to the petitioner towards

back wages.

The pleadings of both the parties, the evidence let

in by either sides and exhibits marked on the side of

the petitioner are carefully considered. In order to prove

the case, the petitioner has examined himself as PW.1

and he has stated in his evidence that he has joined in

the respondent establishment as Operator and he was

under suspension by the respondent. Further, PW.1

stated that the Labour Court has passed Award in

I.D.No. 28/1994, dated 09-07-1994 in favour of the

petitioner and the same was published in the Official

Gazette, dated 20-04-1999 directed the management to

reinstatement of the petitioner in same employment as

an Operator and pay to him at 25% of the back wages

for wrongful dismiss Gazette Notification. Ex.P1 is the

Official Gazette, dated 20-04-1999. Further, PW.1 stated

that One Mr. M. Chandrasekar was then the President

of the registered trade union by name Regency Ceramics

Workers Union and he was suspended by the

management with a view to suppress the workers rights

and also victimize him and ultimately terminated from

service and the matter was referred by the Government

to the Labour Court vide I.D.No. 28/1994 in which the

Labour Court has passed an Award on 09-07-1998 in

favour of the petitioner with a direction to the

respondent to reinstate him with 25% back wages

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[6 August 2019

against which the management filed a Writ Petition

before the Hon’ble High Court in W.P.No. 9128/1999

wherein, the Hon’ble High Court passed an order on

11-07-2008 up holding the Award passed by the Labour

Court. It is admitted that the petitioner being the

President of the Workers Union and he was prosecuting

in I.D. 1/1994 on behalf of the other workers. Ex.P2 is

the Order in W.P.No. 9128/1999 and the same was

informed to the petitioner by his Counsel through Award

copy on 10-11-2010 and after that he moved an

application on 24-11-2010 for his reinstatement and

joined duty on 25-11-2010. Ex.P3 is the Joining report

of the petitioner dated 24-11-2010. Further, PW.1 deposed

that he was put in on duty without allowing to do work

and hence, he submitted one claim regarding back wages

for the period on 23-12-2010 and it is evidence from

Ex.P4. PW.l further, deposed that he is entitled for back

wages for his dismissal period order, dated 05-07-1994

and the details of calculations due are made in the Ex.P4.

The petitioner PW.1 further, stated in his evidence that

for the fixation of present salary and after consideration

of the same, the petitioner was paid salary for the

month of January 2011 and February 2011 as ` 20,969

per month on 08-03-2011. The copy of the wages

receipts for the month of January and February 2011 is

as Ex.P5, dated 08-03-2011. PW.l stated that inspite

repeated demands made by the petitioner for the due

claim and on 07-03-2011, the petitioner has given request

to the management for his claim and it is evidenced from

Ex.P6. Under Ex.P7 the respondent management had

given reply, dated 23-05-2011, to the petitioner. It is

stated that the petitioner was submitted application

before the Secretary to Government (Labour)

Government of Puducherry is Ex.P8 and Labour

Commissioner, Government of Puducherry, dated

02-11-2011 under Ex.P9. Ex.P10 is the copy of the reply

of management to the petitioner with Cheque for

` 3,14,400 in Number 333655 of State Bank of India,

Yanam as back wages from the date of dismissal to the

date of commencement of wages under section 17B and

full wages from commencement from section 17B to

31-12-2010 and stated that the petitioner paid a sum of

` 4,760 per month for the month of January and February

2011 on 02-03-2011 by cash. The copy of Notification

of Labour Department, dated 25-10-2012 under Ex.P11.

PW.l deposed that he was paid for a sum of ` 20,969

for the months of January 2011 and February 2011 and

he is entitled arrears of back wages from 01-07-1994 as

per order passed by the Labour Court i.e., 09-07-1998

and due wages as ` 36,269 and the arrears of back

wages from 1998 to 2010-2011 for a sum of ` 11,96,984

and the C.P.272012 was filed for the arrears of wages

from the joining date and from the 2’nd time of his

suspension order made by the respondent management,

dated 13-09-2011 and even now the petitioner was under

suspension.

8. On the other hand in order to prove the case of

the respondent, on behalf of the respondent management,

the Marketing Officer of the respondent Mr. Arun

Prakash was examined as RW.1. He has deposed that

the respondent is having a factory in Yanam, Puducherry

where it used to manufacture ceramic tiles and in the

year 1986 the petitioner was appointed as an Assistant

Operator and that the petitioner was proceed per contra,

and Ex.Rl to Ex.R13 are marked. The industrial disputes

has been arised by the petitioner for his arrears of back

wages from 01-07-1994 for his 1’st suspension period

and the petitioner cannot claim similar reliefs as alleged

in C.P. 272012 for the period from November 2010 to

September 2011 and other allowances. RW.1 stated that

the petitioner’s claim is liable to be dismissed because,

the Court has decides the issue and industrial dispute

under section 10 of the Industrial Dispute Act, and the

reference by Government KS clearly to adjudicate the

entitlement of the petitioner for his claim made for

` 12,33,353 in conciliation proceedings and therefore,

what has been referred by the

Government of

Puducherry under reference only an industrial dispute

under the Schedule of Industrial Disputes Act, and it is

not a claim petition directly. Further, RW.l deposed that

the Labour Court has passed an Award in I.D. 28/1994,

dated 09-07-1998 and the petitioner was an worker as

LPG Operator in the management company and the

petitioner was suspended from the service from

05-07-1994 for his misconduct and he had approached

the Labour Court challenging the dismissal order in

I.D.No. 28/1994 and the Labour Court has awarded and

directed reinstatement of the petitioner with 25% of

back wages to the petitioner. It is and admitted by the

respondent/RW.l in his evidence that the above Award

passed in I.D. 28 of 1994 of Labour Court, dated

09-07-1998, the management was challenged the Award

before the Hon’blo High Court of Madras in W.P.No.

9128/1999 and the WP was dismissed by Hon’ble High

Court in Order, dated 11-07-2008 and further, the

management has preferred an appeal in W.P.No. 302/2009

as against the order passed by the High Court and the

W.P.No. 302/2009 is pending for adjudication. It is

evidenced from Ex.R1, i.e., the copy of the order in

W.P.No. 302/2009. Ex.R2 is the Authorization letter given

to Mr.Arun Prakash to represent the case by Chairman

and Managing Director for M/s. Regency Ceramics

Limited, Yanam, dated 08-11-2017. Further, it is stated

by RW.1 that during the pendency of the W.P.No. 9128/

595

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1999, the petitioner was given full monthly wages under

section 17B of the Industrial Dispute Act, 1947, as per

the direction of the Hon’ble High Court of Madras for

the period from 01-07-1999 to 11-07-2008 and it is

evidenced from Ex.R3, i.e., the copy of cheque for

` 3,14,400, dated 12-01-2011 bearing No. 333655, as full

and final settlement of the petitioner’s all claims.

Further, the petitioner and then Deputy General

Manager (HR.) of M/s. Regency Ceramics Limited,

Yanam, Mr. A.V.V. Kumar are colluded and they have

materially altered the same cheque No. 333655 for

` 24,66,506 and the cheque, dated 09-04-2011, both the

petitioner and Mr. A.V.V. Kumar, had conspired to play

fraud and the management company had lodged a

Police complaint against the petitioner and the said Mr.

A.V.V. Kumar on 29-07-2011 and they are arrested and

remanded to judicial custody and the petitioner was

under suspension pending enquiry. The above altered

cheque for ` 24,66,506 is as Ex.R4, dated 09-04-2011.

Ex.R5 is the copy of Police complaint, dated 29-07-2011.

And Ex.R6 is the copy of Final Form report under sec.

173 of CRPC in FIR No. 139/2011, dated 17-08-2011. That

on 04-10-2011, the respondent management has sent a

letter to the petitioner along with a cheque for ` 16,211

and they have calculated the monthly salary for ` 5,385

as per the order of the Labour Court, Puducherry, from

the date of reinstatement till the date of suspension

is ` 44,449 out of which an amount of ` 28,238 has

already been paid to the petitioner and enclosing a

Demand Draft for ` 16,211 vide No. 002282 towards full

and final settlement of salary till the date of the

petitioner’s suspension and it is evidenced from Ex.R7.

Ex.P8 is the xerox copy of the letter given by the

respondent to the petitioner along with enquiry report,

dated 26-12-2011. Again the respondent has issued a

show cause notice to the petitioner, dated 04-11-2013

by stating that the Enquiry Officer in his findings,

confirmed the charges levelled against the petitioner are

proved and the management proposes for dismissal of

the petitioner from his service and it is produced under

Ex.P9. Further, the petitioner has issued a letter to the

respondent management, dated 16-11-2013, for the

reference of latter, dated 04-11-2013 under Ex.P9, by

mentioning the reason for proving his claim and stated

that the Enquiry Officer voluntarily and wilfully violated

the labour laws and procedures and he proceeded with

illegal enquiry and this facts are contained under

ExP10.The petitioner has raised the dispute before the

Labour Department, Government of Puducherry and

referred for adjudication to the Industrial Tribunal under

orders under section 10(3) of the Industrial Disputes

Act, 1947 and issued G.O. Rt. No. 50/AIL/Lab./J/2016,

dated 10-04-2013 Notification and it is evidenced

from Ex.P11. The respondent has produced the order

passed in W.P.No. 12613/2013 and M.P.No. 1 to 3 of 2013

on the file of the Hon’ble High Court of Madras, dated

15-07-2015 and the same is as Ex.P12. On perusal of the

above Ex.Pl2 , it is clear that the G.O. Rt. No. 50/AIL/

Lab./J/2016, dated 10-04-2013 Notification is quashed.

Ex.P13 is the Order in W.P.9128/2009 of Hon’ble High

Court of Madras, dated 11-07-2008 and the Writ Petition

filed by the Vice Chairman and Managing Director,

M/s. Regency Ceramics Limited, Yanam, is dismissed.

The respondent/RW1 deposed that the event of the

Award of the Labour Court-cum-Tribunal, dated 09-07-

2008 in I.D.No. 28/1994 is setaside or quashed in the

Writ Appeal No. 302/2009, then the claim of the

petitioner will automatically fall into the ground. Further,

it is stated by RW.l that the management has agreed for

amicable settlement all his claims of the petitioner by

way of mediation and facilitated the settlement such

continuous efforts made by the respondent at a lum sum

of ` 7,00,000 including all his retirement benefits

payable and the management has agreed and are always

ready and willing to settle the matter with terms duly

recorded by the Hon’ble High Court of Madras in

W.P.No. 302/2009, dated 14-09-2016. As per Ex.R12 and

the evidence of RW.1 that the said I.D. 28 of 1994 is set

aside or quashed then the all claims will automatically

fall on the ground and the company was lock out has

been declared by the Hon’ble High Court of Madras in

W.P.No. 12613/2013, dated 15-07-2015.

The evidence of PW.l and RW.l and pleadings, claim

statement of the petitioner and the counter statement

of the respondent and the documents filed by both side

would reveal the fact that this Labour Court has passed

an Award in I.D.No. 28/1994 in favour of the petitioner

directing the respondent to reinstate the petitioner in

service with 25% back wages within one month and the

same was published in the Government Gazette and that

the Hon'ble High Court has dismissed the Writ Petition

filed by the respondent upholding the order of the

Labour Court on 11-07-2008 and that the petitioner has

submitted his joining report at the time of joining at the

respondent establishment on 24-11-2010 and that the

petitioner has submitted application before the

respondent management for his back wages on

23-12-2010 and that the service of the petitioner was

admitted by the respondent management and that the

petitioner has submitted application for payment of

wage arrears and that the petitioner has returned the

cheque issued to him and that the petitioner has

requested the management to pay his wages in

accordance with the payment of salary and that the

petitioner has been given cheque for ` 1,394 and the

same was also returned by the petitioner and that the

596

LA GAZETTE DE L’ETAT

[6 August 2019

respondent management has sent a letter to the

petitioner stating that a criminal case has been filed

against the petitioner before the Yanam Police Station

and the petitioner was in judicial custody and the

petitioner was suspended from the date of 13-09-2011

and that the petitioner would be paid 50% of the basic

wages along with other allowances as admissible from

the competent authority and that the Judicial

Magistrate, Yanam has passed the order in C.C.No. 16

of 2013 holding that the petitioner was discharged from

the said case.

If, the amount is disputed the same is recovered with

the intervention of Labor Court and that is covered by

section 33 C(2) of the Industrial Disputes Act. In the

decision of “Supreme Court of India in 2010 Vijaya Bank

vs Shyamal Kumar Lodh;” the Apex Court has observed

as follows:

“Having said so, the next question which falls for

determination is as to whether Labour Court at

Dibrugarh could have entertained the application under

section 10-A of Industrial Employment (Standing

Orders) Act, 1946. section 10A of the Act reads as

follows:

“10-A. Payment of subsistence allowance.– (1)

Where any workman is suspended by the employer

pending investigation or inquiry into complaints or

charges of misconduct against him, the employer

shall pay to such workman subsistence allowance-

(a) at the rate of fifty per cent. of the wages

which workman was entitled to immediately

preceding the date of such suspension, for the

first ninety days of suspension; and

(b) at the rate of seventy-five per cent. of such

wages for the remaining period of suspension if,

the delay in the completion of disciplinary

proceedings against such workman is not directly

attributable to the conduct of such workman.

(2) If, any dispute arises regarding the

subsistence allowance payable to a workman under

sub-section (l), the workman or the employer

concerned may refer the dispute to the Labour Court,

constituted under the Industrial Disputes Act, 1947

(14 of 1947), within the local limits of whose

jurisdiction the industrial establishment wherein,

such workman is employed is situate and the Labour

Court to which the dispute is so referred shall, after

giving the parties an opportunity of being heard,

decide the dispute and such decision shall be final

and binding on the parties.

(3) Notwithstanding anything contained in the

foregoing provisions of this section, where

provisions relating to payment of subsistence

allowance under any other law for the time being in

force in any State are more beneficial than the

provisions of this section, the provisions of such

other law shall be applicable to the payment of

subsistence allowance in that State.”

From a plain reading of the section 10A(2) of the

aforesaid Act it is evident that the Labour Court

constituted under the Industrial Disputes Act, 1947

within the local limits of whose jurisdiction the

establishment is situated, has jurisdiction to decide any

dispute regarding subsistence allowance. Here in the

present case undisputedly dispute pertains to

subsistence allowance and the Labour Court where the

workman had brought the action has been constituted

under section 7 of the Industrial Disputes Act, 1947 and

further the appellant bank is situated within the local

limits of its jurisdiction. The workman had, though,

chosen to file application under section 33C(2) of the

Industrial Disputes Act, but, that in our opinion shall

not denude jurisdiction to the Labour Court, if, it

otherwise possesses jurisdiction. Incorrect label of the

application and mentioning wrong provision neither

confers jurisdiction nor denudes the Court of its

jurisdiction. Relief sought for, if falls, within the

jurisdiction of the Court, it cannot be thrown out on

the ground of its erroneous label or wrong mentioning

of provision. In the present case, the Labour Court,

Dibrugarh, satisfies all the requirements to decide the

dispute raised by the employee before it. It is necessary

to be noted the relevant section 33 C of the Industrial

Disputes Act.

Section 33C(2) and (5) of Industrial Disputes Act, as

it stands today read as follows:

“33C. Recovery of money due from an employer.-

(l) Where any money is due to a workman from

an employer under a settlement or an Award or under

the provisions of Chapter V-A or Chapter V-B, the

workman himself or any other person authorized by

him in writing in this behalf, or, in the case of the

death of the workman, his assignee or heirs may,

without prejudice to any other mode of recovery,

make an application to the appropriate Government

for the recovery of the money due to him, and if, the

appropriate Government is satisfied that any money

is so due, it shall issue a certificate for that

amount to the Collector who shall proceed to

recover the same in the same manner as an arrear of

land revenue: Provided that every such application

597

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shall be made within one year from the date on which

the money became due to the workman from the

employer. Provided further that any such application

may be entertained after the expiry of the said period

of one year, if, the appropriate Government is

satisfied that the applicant had sufficient cause for

not making the application within the said period.

(2) Where any workman is entitled to receive from

the employer any money or any benefit which is

capable of being computed in terms of money and if,

any question arises as to the amount of money due

or as to the amount at which such benefit should be

computed, then the question may, subject to any

rules that may be made under this Act, be decided

by such Labour Court as may be specified in this

behalf by the appropriate Government within a

period not exceeding three months. Provided that

where the Presiding Officer of a Labour Court

considers it necessary or expedient so to do, he may,

for reasons to be recorded in writing, extend such

period by such further period as he may think fit.

(3) For the purposes of computing the money

value of a benefit, the Labour Court may, if, it so

thinks fit, appoint a Commissioner who shall after

taking such evidence as may be necessary, submit a

report to the Labour Court and the Labour Court shall

determine the amount after considering the report of

the Commissioner and other circumstances of the

case.

(4) The decision of the Labour Court shall be

forwarded by it to the appropriate Government and

any amount found due by the Labour Court may be

recovered in the manner provided for in sub-section (l).

(5) Where workmen employed under the same

employer are entitled to receive from him any money

or any benefit capable of being computed in terms

of money, then subject to such rules as may be made

in this behalf, a single application for the recovery

of the amount due may be made on behalf of or in

respect of any number of such workmen.

16. From a plain reading of section 33C(2) it is

evident that money due to a workman has to be decided

by such Labour Court “as may be specified in this

behalf by the appropriate Government.” section 7 of the

Industrial Disputes Act, 1947 confers power to the

appropriate Government for constitution of one or more

Labour Courts for the adjudication of industrial

disputes. It also prescribes qualification for appointment

as Presiding Officer of a Labour Court. Explanation

appended to section 33C of the Act provides to include

any Court constituted under any law relating to

investigation and settlement of industrial disputes in

force in any State as Labour Court. The underlying

object behind inserting explanation seems to be varying

qualification prescribed for appointment of Presiding

Officers of Labour Court by different State enactments.

The Parliament took note of the fact while inserting

explanation that there are different kinds of Labour

Courts constituted under Industrial Disputes Act and

State Acts and a question may arise whether a Labour

Court constituted under Acts, Central or State could

entertain a claim made under section 33C(2) of the Act.

An explanation is appended ordinarily to a section

to explain the meaning of words contained in that

section. In view of the explanation aforesaid Labour

Court shall include any Court constituted under any law

relating to investigation and settlement of industrial

disputes in force in any State. Money due to an

employee under section 33C(2) is to be decided by

“Labour Court as may be specified in this behalf by the

appropriate Government”. Therefore, the expression

“Labour Court” in section 33C(2) has to be given an

extended meaning so as to include Court constituted

under any law relating to investigation and settlement

of industrial disputes in force in any State. It widens

the choice of appropriate Government and it can specify

not only the Labour Courts constituted under section 7

of the Industrial Disputes Act, 1947 but, such other

Courts constituted under any other law relating to

investigation and settlement of industrial disputes in

force in any State.

The Court have considered the arguments advanced

by the parties. The fact under sec 33C (2) of the

Industrial Disputes Act, 1947, the Court has relies upon

the decision “2005 (8) SCC 58- State of U.P and Another

vs Brijipal Singh” the Apex Court has held as follows:

“The power to adjudicate money claim is to the Labour

Court” as may be specified in this behalf by the

appropriate Government”. Every word used by the

Legislature carries meaning and therefore, effort has to

be made to give meaning to each and every word used

by it. A construction brushing aside words in a statute

is not a sound principle of construction. The Court

avoids a construction, if, reasonably permissible on the

language, which renders an expression or part of the

statute devoid of any meaning or application.

Legislature never wastes its words or says anything in

vain and a construction rejecting the words of a statute

is not resorted to, excepting for compelling reasons.

There does not exist any reason, much less compelling

reason to adopt a construction, which renders the

words “as may be specified in this behalf used in

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[6 August 2019

section 33C(2) of the Act as redundant. These words

have to be given full meaning. These words in no

uncertain terms indicate that there has to be

specification by the appropriate Government that a

particular Court shall have jurisdiction to decide money

claim under section 33C (2) of the Act and it is that

Court alone which shall have the jurisdiction.

Appropriate Government can specify the Court or

Courts by general or special order in its discretion. In

the present case, there is nothing on record to show

that the Labour Court at Dibrugarh has been specified

by the appropriate Government, i.e., Central Government

for adjudication of the disputes under section 33C(2)

of the Industrial Disputes Act. This question has

squarely been answered by the Apex Court in the case

of “Treogi Nath and Others vs Indian Iron and Steel

Co.Ltd and Others AIR 1968 SC 205”. True it is that

rendering this decision, this Court did not consider the

explanation appended to section 33C of the Act, as the

list pertained to period earlier to amendment, but, in view

of what we have said above, excepting the widening of

choice pertaining to Courts, explanation does not

dispense with the requirement of specification of Court

by appropriate Government”.

The provisions cannot be invoked in a case where

the entitlement itself is in dispute. In State Bank of India

Vs. Ram Chandra Dubey and others [2001 (1) L.L.N.58],

the Supreme Court while considering its earlier

judgments in Municipal Corporation of Delhi Vs.

Ganesh Razak and in Central Bank of India Vs.

P.S.Rajagopalan - A.I.R.1964 S.C.743 has finally

concluded as follows:

Whenever a workman is entitled to receive from his

employer any money or any benefit which is capable of

being computed in terms of money and which he is

entitled to receive from his employer and is denied of

such benefit, can approach Labour Court under S.33C(2)

of the Act. The benefit sought to be enforced under

S.33C(2) of the Act is necessarily a pre-existing benefit

or one flowing from a pre-existing right. The difference

between a pre-existing right or benefit on one hand and

the right or benefit, which is considered, just and fair

on the other hand is vital. The former fall within the

jurisdication of the Labour Court excercising powers

under S.33C(2) of the Act while the latter dose not,"

An analysis of the above law laid down by the

Supreme Court would lead to the following settled

positions of law, viz:

(1) there must be a pre-existing right on the

workman to file an application under S.33C (2) of the

Act;

(2) while dealing with an application under

S.33C(2) of the Act, the Labour Court is in position

of an executing Court;

(3) the Labour Court is called upon to compute

and consulate the monetary benefit only on the basis

of pre-existing right of the workman;

(4) the Labour Court cannot entertain and

adjudicate upon a petition under S.33C(2) when the

entitlement itself is in dispute; and

(5) an application under S.33C(2) is not

maintainable, if, the petition is filed on disputed facts

which require adjudication by the Labour Court”.”

Accordingly, it is well settled that the workman can

proceed under section 33-C(2) only after the Tribunal

has adjudicated on a complaint under section 33-A or

on a reference under section 10 that the order of

discharge or dismissal was not justified and has set

aside that order and reinstated the workman. This Court

in the case of Punjab Beverages (P) Limited, vs. Suresh

Chand held that a proceeding under section 33-C(2) is

a proceeding in the nature of execution proceeding in

which the Labour Court calculates the amount of money

due to a workman from the employer, or, if, the workman

is entitled to any benefit which is capable of being

computed in terms of money, proceeds to compute the

benefit in terms of money. Proceeding further, this Court

held that the right to the money which is sought to be

calculated or to the benefit which is sought to be

computed must be an existing one that is to say, already

adjudicated upon or provided for and must arise in the

course of and in relation to the relationship between

the industrial workman and his employer.”

The three necessary ingredients for the application

of section 17-B of the Industrial Disputes Act, 1947 are

(i) the Labour Court should have directed reinstatement

of the workman, (ii) the employer should have preferred

proceedings against such Award in the High Court or

in the Supreme Court; and (iii) the workman should not

have been employed in any establishment during such

period. According to section 17 (B) of the Industrial

Disputes Act, an employer is bound to pay the wages

(last drawn wages) every month to the workman, in the

event of the Award of Labour Court or Tribunal granting

relief of reinstatement to a workman, is challenged by

the employer before the High Court or the Supreme Court.

It is apparent that section 17-B of the Industrial

Disputes Act was introduced for the purposes of

mitigating hardship faced by the workman who had been

reinstated but, the reinstatement had been delayed on

account of the contest laid by the employer before the

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High Court or the Supreme Court. It is also clear that

section 17-B of the Act, 1947 proposed to provide

“payment of wages last drawn”. The object of

introducing section 17-B of the Act appears to ensure

that a workman, in whose favour an Award for

reinstatement has been passed, is at least paid his last

drawn wages. The purpose of introducing section 17-B

of the Act appears to be not to provide for a punitive

measure or a disincentive for the employers to challenge

the Award passed by the Labour Court, but, to mitigate

the hardship faced by the workman on account of

delays occasioned because of pendency of litigation

before the High Courts and the Supreme Court. The

Parliament in its wisdom, obviously thought it fit that

the workman having succeeded in obtaining an Award

of reinstatement ought to be paid at least last wages

that were drawn by him. It is also made a condition that

for purposes of obtaining wages under section 17-B of

the Act, the employee should not be gainfully employed

elsewhere. This object appears to be not to discourage

an employer from assailing the Award but, to ensure

that the workman who has prevailed before the Labour

Court does not suffer for want of subsistence allowance

for his sustenance.

The learned Counsel for the respondent would

submit that the petitioner was not complied the Section

17B of the Act, before the filed the claim petition and

ought to have been filed only after reference under

Section 10 of the Industrial Disputes Act, section 17B

of the Industrial Disputes Act reads as quoted below:-

“Wherein, any case, a Labour Court, Tribunal or

National Tribunal by its Award directs reinstatement of

any workman and the employer prefers any proceedings

against such Award in a High Court or the Supreme

Court, the employer shall be liable to pay such workman,

during the period of pendency of such proceedings in

the High Court or the Supreme Court, full wages last

drawn by him, inclusive of any maintenance allowance

admissible to him under any rule if, the workman had

not been employed in any establishment during such

period and an affidavit by such workman had been filed

to that effect in such Court.

Provided that where it is proved to the satisfaction

of the High Court or the Supreme Court that such

workman had been employed and had been receiving

adequate remuneration during any such period or part

thereof, the Court shall order that no wages shall be

payable under this section for such period or part, as

the case may be”.

Further, it appears from the said section 17B that the

workman is required to prove by affidavit that he had

not been employed in any establishment. Thereafter, the

employer may prove the contrary. In other words, if, the

workmen has discharged his onus by affirming an

affidavit that he is not employed in any establishment

then the claim of the workman may be resisted by the

employer by proving to the satisfaction of the Court

that the workman has been employed in any

establishment and has been receiving adequate

remuneration so as to deny to him the benefits of

section 17B.

The objective of the said section 17B may be found

in the following observation of the Hon’ble Supreme

Court in the case of “Dena Bank vs. Kirtikumar - AIR

1998 SC 511,” which reads as thus-

“Section 17-B has been enacted by Parliament with

a view to give relief to a workman who has been ordered

to be reinstated under the Award of a Labour Court or

the Industrial Tribunal during the pendency of

proceedings in which the said Award is under challenge

before the High Court or the Supreme Court. The object

underlying the provision is to relieve to a certain extent

the hardship that is caused to the workman due to delay

in the implementation of the Award. The payment which

is required to be made by the employer to the workman

is in the nature of subsistence allowance which would

not be refundable or recoverable from the workman even

if, the Award is set aside by the High Court or this

Court. Since the payment is of such a character

Parliament thought it proper to limit it to the extent of

the wages which were drawn by the workman when he

was in service and when his services were terminated

and therefore, used the words "full wages last drawn”.

From the documents exhibited by the respondent

management nothing is established by the respondent

management that they have paid salary or suspension

allowance for the period of service and suspension

period. Further, it is not disputed by both the parties

that the petitioner was initially joined at the respondent

establishment in the year 1986 and he was appointed

as an Assistant Operator and he was in the Union and

the disciplinary action was taken against which the

petitioner has raised the industrial dispute before the

Labour Court in I.D.No. 28/1994 wherein, the Award was

passed by the Labour Court in favour of the petitioner

directing the respondent to reinstate the petitioner with

25% back wages against which the respondent has filed

a Writ Petition in W.P.No. 9128 of 1999 before the

Hon’ble High Court which was also disposed of by the

Hon’ble High Court upholding the Award passed by the

Labour Court and that the petitioner has joined duty at

the respondent establishment on 25-11-2010 and the pay

600

LA GAZETTE DE L’ETAT

[6 August 2019

was fixed and he was paid salary for the month of

January and February-2011 and thereafter, the petitioner

was once again suspended on 13-09-2011. In view of

the judgment passed by the Supreme Court in the case

titled as “GM, Haryana Roadways versus Pawan Kumar

reported in 2006 SCC (L&S) 702” respondent is entitled

for back wages from the date of demand notice.

In the case of “State Bank of India vs. Ram

Chandra Dubey & Ors., (2001) 1 SCC 73”, the Apex

Court held as under: “When a reference is made to

an Industrial Tribunal to adjudicate the question not

only as to whether the termination of a workman is

justified or not but, to grant appropriate relief, it

would consist of examination of the question whether

the reinstatement should be with full or partial back

wages or none. Such a question is one of fact

depending upon the evidence to be produced before

the Tribunal. If, after the termination of the

employment, the workman is gainfully employed

elsewhere, it is one of the factors to be considered

in determining whether or not reinstatement should

be with full back wages or with continuity of

employment. Such questions can be appropriately

examined only in a reference. When a reference is

made under section 10 of the Act, all incidental

questions arising thereto can be determined by the

Tribunal and in this particular case, a specific

question has been referred to the Tribunal as to the

nature of relief to be granted to the workmen.

The law relating to the calculation and payment

of back wages to workers has been discussed at

length by the SC in various cases. In U.P State

Brassware Corporation Ltd., vs. Uday Narain Pandey,

it was laid down that there was no precise formula

to determine the circumstances under which a worker

is entitled to back wages. In “(2013) 10 SCC 324-

Deepali Gundu Surwase vs. Kranti Junior Adhyapak

Mahavidyalaya (D. Ed.) and Ors”., the Hon’ble

Supreme Court has held that in the case of wrongful

termination of a worker, reinstatement with continuity

of service and back wages was a normal rule.

However, the payment of back wages has to be

determined as per the facts and circumstances of each

case and cannot be automatically granted on an order

of reinstatement of the worker. The worker has to

specifically raise the claim for back wages, as well

as present supporting evidence demonstrating his

unemployment. The Court also set out various factors

for calculating the back wages, which include, among

others: (a) the length of service of a worker; (b) the

nature of misconduct, if any, proved against a

worker; and (c) the financial condition of an

employer.

It is a well known fact that the Industrial Disputes

Act is a welfare legislation. The intention behind the

enactment of this Act was to protect the employees from

arbitrary retrenchments. For this reason only, in a case

of retrenchment of an employee who has worked for a

year or more, section 25F provides a safeguard in the

form of giving one month’s prior notice indicating the

reasons for retrenchment to the employee and also

provides for wages for the period of notice. section 25B

of the Act provides that when a person can be said to

have worked for one year and the very reading of the

said provisions makes it clear that if, a person has

worked for a period of 240 days in the last preceding

year, he is deemed to have worked for a year. The theory

of 240 days for continuous service is that a workman is

deemed to be in continuous service for a period of one

year, if, he during the period of twelve calendar months

preceding the date of retrenchment has actually worked

under the employer for not less than 240 days. In

Surendra Kumar Verma and Others

vs. Central

Government Industrial Tribunal-cum-Labour Court, New

Delhi and Another (1980) 4 SCC 443;” wherein, the

Supreme Court has very categorically dealt with the

theory of 240 days as contemplated under section 25B

of the Act. When nobody can claim wages for the

period of his absence to the employment, without leave

or any justification, the principle ‘no work no wages’

will apply. Therefore, it is clear that for payment of

wages for the unauthorised absence of the worker for

long years is not justified.

Admittedly, the pay was fixed by the respondent

management and paid to the petitioner for the month of

January and February-2011 for ` 20,969 respectively.

But, the fact has been denied by the evidence of RWl

during his cross examination. To prove the same, the

petitioner has produced the salary receipt as Ex.P5,

which is form of receipts for payment of salary to the

petitioner and the signature of the company Manager

is contains in the receipts. It is deposed that the

calculation made in the claim statement for a sum of

` 12,33,253 from the year 1994 to 2011 is based on the

salary that is received by the junior of the petitioner

for the same period, which is mentioned under Ex.P4,

i.e., copy of claims after reinstatement, dated 23-12-2010.

Furthermore, from the perusal of the case records it is

found that there is no stay in the Second Appeal filed

by the respondent management staying the operation

of the Award and for the payment of subsequent wages.

The respondent/RWl stated that the petitioner was

given full monthly wages under section 17B of the

Industrial Disputes Act, 1947 as per the direction of the

Hon’ble High Court of Madras with effect from

01-07-1999 to 11-07-2008. But, the respondent has not

601

6 August 2019]

LA GAZETTE DE L’ETAT

produced relevant and sufficient documents to prove

that the petitioner was paid entire full wages for the

period covering from 01-07-1999 to 11-07-2008.

Admittedly, the petitioner's claim of unsettled wages

from 1994 the last drawn wages was only ` 5,000 and it

is contended that the petitioner can make a claim only

25% of wages of ` 5,000, since, the reinstatement of

the petitioner on 24-11-2010 was only on paper and the

petitioner was not worked between 24-11-2010 and

30-09-2011, when he was placed under suspension and

the management was lock out the company on

31-01-2012 and the respondent contended that there was

no question of payment of back wages or any wages

as alleged by the petitioner in his claim petition.

Though, the respondent has stated that they have

not liable to pay for lock out period, but, no document

is exhibited to prove the same. The respondent

contended that the full wages has been paid to the

petitioner in compliance of section 17 B of the Industrial

Disputes Act, 1947 , which is recorded in view of the

order of the Hon’ble High Court of Madras in W.P.No.

9128/2009, dated 11-07-2008. Here, there is no

documentary evidence to shows that the payment of

wages fully paid to the petitioner as alleged by the

respondent. The respondent ought to have been

produced the salary or pay receipts for the workers

during the company working period. It is to be proved

by the respondent that the above reinstatement of the

petitioner on 24-11-2010 was only on paper and the

petitioner asked to be on leave with pay eventhough

he was reinstated on 24-11-2010 and the petitioner had

not worked between 24-11-2010 and 30-09-2011. But, it

is clear from the available records and evidence of PWl

and RWl, it would clear that the petitioner has not

received full wages in view of the section 17B of the

Industrial Disputes Act. As seen from the records, there

is no relevant documents has been produced by the

respondent to disprove the claim of the petitioner. It is

clear from the claim statement and evidence of PWl that

the petitioner is claiming in C.P.No. 2 of 2012 for the

arrears of wages from the date of joining i.e., from

23-11-2010 and from 2’nd suspension order made by the

management respondent on 30-09-2011 and it is proved

that the petitioner was under suspension till date. It is

the categorical admission made by the petitioner/PWl

during his cross examination that he was suspended

second time on 13-09-2011 on allegations of forging

cheque for ` 24,66,506. It is admitted facts that the

petitioner was entitled for back wages 25%, with

reinstatement into the service as per the order in

W.A.No. 302 /2009 of the Hon’ble High Court of Madras,

which was still pending for adjudication. During the

pendency of the above W.A.No. 302 of 2009 , the matter

was referred for mediation before the High Court of

Madras for amicable settlement between the parties and

the respondent management was agreed for a sum of

` 7,00,000 with full retirement benefits payable of the

petitioner, but, the petitioner has not consented for the

above settlement and the same has been admitted by

the petitioner and the respondent.

From the facts and circumstances and based on

evidence of the parties, therefore, the claim made by the

petitioner for the year 1994 for July to 1998 -1999 in July

8 days @ 25% of wages for a sum of ` 36,269 and for

the period from 1998 for 26 days in July 1998 and from

1999-2000 to 2010-2011 for a sum of ` 16,22,284 and

totally a sum of ` 36,269 + 16,22,284 = 16,58,553 towards

back wages for the suspension allowance i.e., half of

the pay is absolutely correct and the wages paid

already as per the Hon'ble High Court's Order is as

` 2,04,000 and the respondent is liable to pay a sum of

` 14,54,553 and as such, the claim petition filed by the

petitioner workmen employed under the same employer

are entitled to receive from him any money or any

benefit capable of being computed in terms of money,

then subject to such rules as may be made in this behalf

under section 33C(2) of the Industrial Disputes Act, is

deserves to be allowed.

In the result, the claim petition is allowed and it is

hereby directed the respondent to pay ` 14,54, 553

(Rupees fourteen lakhs fifty-four thousand five hundred

and fifty-three) only to the petitioner claimed as per the

claim petition within three month, failing which the

amount should be paid by the respondent with 9%

interest from the date of the order till the date of

realization of the amount. The parties are hereby

directed to bear their respective cost of the petition.

The Order typed by me in laptop, corrected and

pronounced by me in the Open Court on this the 6'th

day of March, 2019.

C. KUMAR SARAVANAN,

Presiding Officer (FAC),

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of petitioner’s witness:

PW.1

—

01-03-2016

Sathyanarayanamurthy

(Petitioner)

List of petitioner’s exhibits:

Ex.P1 — 20-04-1999

Copy of Labour

Court

Award Gazette publication.

Ex.P2 — 11-07-2008

Copy of order passed in

W.P.No. 9128 of 1999.

602

LA GAZETTE DE L’ETAT

[6 August 2019

Ex.P3 — 24-11-2010

Copy of joining report of

the petitioner.

Ex.P4 — 23-12-2010

Copy of claim statement

submitted by the petitioner

t o

t h e

r e s p o n d e n t

management for dues after

reinstatement

of

the

petitioner.

Ex.P5 — —

Copy of wages receipt for

the month of January and

February, 2011.

Ex.P6 — 07-03-2011

Copy of representations

15-04-2011

given by the petitioner

29-07-2011

to the management.

Ex.P7 — 23-05-2011

Copy of management

25-05-2011

replies.

Ex.P8 — 02-11-2011

Copy

of

application

submitted to the Secretary

to Government (Labour),

Commissioner of Labour,

Government of Puducherry.

Ex.P9 — 02-12-2011

C o p y

o f

r e p l y

o f

respondent’s management

to

Commissioner

of

Labour, Puducherry.

Ex.P10 — 16-04-2011

C o p y

o f

r e p l y

o f

management with cheque,

dated 14-04-2011.

Ex.P11 — 25-10-2012

Copy of notification of

Labour Department.

List of respondent’s witness:

RW1

— 13-11-2017

Arun Prakash (Marketing

Officer of respondent’s

company)

List of respondent’s exhibits:

Ex.Rl

— 14-09-2016

Copy of the order passed

in W.A.No. 302 of 2009.

Ex.R2 — 08-11-2017

Letter of authorization to

Arun Prakash.

Ex.R3 — 12-01-2011

Copy of cheque bearing

No. 333655 drawn on State

Bank of India given by

one A.V.V. Kumar of

respondent company to

the petitioner containing

the figure as ` 3,14,400.

Ex.R4

—

09-04-2011

Copy of cheque bearing

No. 333655 drawn on

State Bank of India,

which is tempered by

petitioner in connivance

with A.V.V. Kumar for a

sum of ` 24,66,506.

Ex.R5

—

29-07-2011

Copy of complaint given

by the respondent to

Sub-Inspector of Police,

Yanam

against

the

petitioner.

Ex.R6

—

17-08-2011

Copy of Final/Form report

No. 99/2012 registered

by Station House Officer,

Yanam in FIR. No. 139/2011

against the petitioner.

Ex.R7

—

04-10-2011

Copy of letter along with

cheque bearing Sr No.

475811 drawn on State

Bank of India, Yanam

given by respondent to

petitioner for ` 16,211.

Ex.R8

—

31-07-2012

Copy of letter given by

respondent to petitioner

along with enquiry report,

dated 26-12-2011.

Ex.R9

—

04-11-2013

Copy of the show cause

notice

given

by

the

respondent to petitioner.

Ex.R10 —

16-11-2013

Copy of reply letter given

by

the

petitioner

to

respondent.

Ex.R11 —

10-04-2013

Copy of reference made by

the

Government

of

Puducherry in reference

NO.G.O.R.No. 50/AIL/

Lab./J2013 over the lock

out respondent’s company.

Ex.R12 —

15-07-2015

Copy of the order passed

by the Hon’ble High Court

in W.P.No. 12613/2013.

Ex.R13 —

11-07-2008

Copy of order of Hon’ble

High Court in W.P.No.

9128/1999.

C. KUMAR SARAVANAN,

Presiding Officer (FAC),

Industrial Tribunal-cum-

Labour Court, Puducherry.