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Award of the Labour Court .. 588
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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/
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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
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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
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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.