IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.04.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.1962 of 2007 and M.P.No.1 of 2007 .. M/s.Areva T&D India Ltd., (formerly known as GEC Alstom India Ltd.,) 19/1 GST Road, Pallavaram Chennai 600 043 rep. by its Director (HR) .. Petitioner vs. 1.Presiding Officer II Addl.Labour Court, Chennai. 2.T.M.Ramamurthy .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. For petitioner : Mr.T.S.Gopalan For respondents : M/s.Shalom Associates for R.2 .. ORDER
The writ petition is directed against the award passed by the Labour Court in C.P.No.827 of 1997 dated 10.11.2006, by which the Labour Court directed the petitioner/Management, to pay an amount of Rs.11,468/- to the second respondent/workman, by computing the same in the petition filed by the second respondent under Section 33-C(2) of the Industrial Disputes Act,1947.
2. The second respondent was working as an Operator in the petitioner Company, having been appointed as a casual labourer during 1975 and he was stated to be eligible for promotion as Assistant Foreman. Each employee is given a Job Card at the time of allotment of work and after completion of the work, the employee can leave the place even before the scheduled time and the employees are to fill up the timings in the Job Card.
(a) It is stated that from 15.07.1994, the petitioner refused to put the entire time allotted for each panel of work in spite of the fact that the second respondent had finished the work earlier and only the actual time taken for completion of the work was taken into consideration by disallowing the balance period.
(b) According to the petitioner/Management, during the period between 15.07.1994 and 01.10.1994, the second respondent, was working as an Operator in the Cubicle Gear Multi Motor Circuit Centre, for which the Group Leader used to allot work to the workers, who would also work along with them and at the end of the day, they had to fill up the work ticket, which is the Job Card and hand over the same to the Group Leader and in case where such work ticket was not given to the Group Leader, it would be considered as if the worker had not done his work and he would not be entitled for earning the wages and if the workman did not work as allotted by the Group Leader, he would be treated as absent, not entitled for wages.
(c) It was on that basis the second respondent was deprived of 15000 minutes in the Job Card, for which according to the second respondent, he was entitled for wages. It is, claiming the said amount, apart from 20% bonus + exgratia amount of Rs.1500/- for the disallowed work for 54 days, the second respondent has claimed an amount of Rs.11,468/-.
3. The claim of the second respondent was contested by the petitioner on the ground that during the period between 15.07.1994 and 01.10.1994, when the second respondent turned up for work, he did not fill up the work ticket and after issuing the charge memo he was suspended for two days. The second respondent has also filed a suit for declaration that he should have been made as Assistant Foreman and therefore, according to the petitioner/Management, during 15.07.1994 to 01.10.1994, the second respondent did not carry out any work in the manner he was required to do.
4. Before the Labour Court, the second respondent was examined as PW.1, apart from another workman P.Subramani, as PW.2 and marked Exs.P.1 to P.11 as documents, while on the side of the petitioner, who was the respondent before the Labour Court, RW.1 was examined while documents as Exs.R.1 to R.6 were marked.
5. As stated above, it has been the case of the second respondent/workman that it was due to the conduct of the petitioner/Management, in refusing to mark the entire time allotted to complete the panel of work of the second respondent, he suffered loss. Even though the second respondent being the senior most Operator, finished his work much earlier, the second respondent was deprived of 15,000 minutes and therefore, he was entitled for wages for the said period apart from the bonus and exgratia amount, however wages for 54 days was disallowed to the extent of Rs.9967.59, and adding the bonus and exgratia amount, he would be entitled for a total amount of Rs.11,468/-.
6. It has been the case of the petitioner/Management that while the second respondent was working as an Operator from 15.07.1994 to 01.10.1994, the Group Leader used to allot the work to workmen and at the end of the day, the worker would have to fill the ticket and hand over the same to the Group Leader. It is stated that from 01.7.1994 onwards, one V.Raman was the Group Leader to the second respondent and the second respondent refused to accept the said V.Raman as his Group Leader and refused to do work allotted by him and the workman did not submit the work ticket and therefore, the second respondent was treated as absent and not paid wages and that was during the period between 15.07.1994 and 01.10.1994.
7. It is also stated that during the relevant period, charges were issued against him and ultimately, the punishment of suspension for two days was passed. It is also stated that the second respondent has filed a suit for declaration that he was eligible for Assistant Foreman, viz., Group Leader, and for the period from 15.07.1994 to 01.10.1994, he did not do the work and earn wages. The Labour Court has found that an enquiry was conducted regarding the conduct of the second respondent/workman and the finding of the enquiry was marked under Ex.R.7 to the effect that the second respondent refused to handover the work ticket. Under Ex.P.4, letter of the superior addressed to the Management, marked through RW.1, as found by the Labour Court, it is stated that the second respondent working in M.M.C.C. Panel Assembly has refused to start new job on 15.07.1994 at 3.30 p.m. viz., for the remaining time.
8. It is also stated that the second respondent has refused to take up the job through the Group Leader V.Raman. The Labour Court has found on record that the charge framed against the second respondent/workman was not that who has not done the work assigned to him, but having completed the assigned work before time, he refused to do the further work and failed to fill up the work ticket. It is seen that as per Ex.P.4, the second respondent completed his work, which had been assigned to him as per job card by 3.30 p.m. and when he was requested to do further work after 3.30 p.m. he refused to do so and that resulted in disciplinary proceedings.
9. The Labour Court has also found from the affidavit filed by the petitioner/Management that the Management admitted the physical presence of the second respondent and in spite of it, he was treated as absent not being paid wages due to the reason that he did not fill up the work ticket, because he was directed to do the additional work since the second respondent completed the work before the end of time slot. It is in those circumstances, the Labour Court has passed the award directing the payment of wages.
10. On such factual finding having been given by the Labour Court, it is not possible to accept the contention of the learned counsel for the petitioner management that there is no pre-existing right on the part of the workman. On the facts of the present case, I do not see that there is any dispute regarding the eligibility of the second respondent for payment of wages, and the dispute, as found by the Labour Court, is in respect of additional work allotted, since the work assigned to the second respondent had been completed in advance and therefore, it is not proper for the petitioner to contend as if there is no work and hence, no pay. Therefore, the judgment of this Court in R.D.Rajendran vs. K.T.M.Abdul Khader (2003 (2) LLN 93), on which reliance was placed by the learned counsel for the petitioner has no relevance to the facts of the present case. As laid down by this Court in the above said judgment by relying upon the judgment of the Supreme Court, it is the well established principle for passing of an award under Section 33-C(2) of the Industrial Disputes Act, which is as follows:
” (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 calculate 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 requires adjudication by the Labour Court.”
11. The mere admission of the workman as PW.1 that he has not taken any steps in challenging the punishment given by the Management suspending him for two days, is not sufficient to come to a conclusion that the second respondent workman is not entitled for the wages for the work done. The very evidence of RW.1 in the cross examination, which is as follows:
VERNACULAR (TAMIL) PORTION DELETED
shows impliedly that it is admitted by the management that the second respondent has done the work and finished the same before the time assigned to him.
In such view of the matter, on the factual findings of the Labour Court, I am of the view that by exercising the jurisdiction under Article 226 of the Constitution of India, it is not for this Court to re-appreciate the evidence. Accordingly, the writ petition fails and the same is dismissed. No costs. Connected miscellaneous petition is closed.
Kh
To
The Presiding Officer
II Addl.Labour Court,
Chennai