ORDER
K.P. Sivasubramaniam, J.
1. The petitioner is the management of Kancheepuram Co-Operative House Mortgage Society, which seeks for a Certiorari to quash the orders of the Labour Court, Chennai in C.P.No.967/91 dated 5.6.1996.
2. The petitioner society is one of the societies registered under the Tamil Nadu Co-Operative Societies Act 1983. According to the management, there were six employees in 1979-80 including the claim petitioners/respondents 1 to 5 (hereinafter called as “employees”) and they were terminated from service with effect from 23.6.1980. They had filed appeals under Tamil Nadu Shops and Establishments Act. Ultimately, the order of termination was set aside in W.A. No.603 of 1991, against which, the management filed SLP (Civil) No.14861/91 and the Supreme Court by its order dated 30.9.1991, left it open to the management to approach the High Court for review of the claim of back wages. In the mean time, the employees had filed a claim petition No.967 of 1991 before the Labour Court. As the society was advised to agitate the issue of back wages through the Labour Court, the issue has been agitated before the Labour Court. By the impugned order dated 5.6.1996, the Labour Court granted the relief of back wages in entirety as prayed for by the employees and hence the above Writ Petition.
3. It is further stated that the respondents 1 to 3 were reinstated on 7.10.1993.
4. The petitioner contends that the back wages awarded by the Labour Court is not sustainable. During the period of non-employment of the respondents/employees, the society had the staff strength in conformity with the ceiling fixed by the Registrar. There was one Secretary, three clerks, one attender, and one clerk who had resigned from the post and a peon who had also resigned from the post.
5. The quantum of salary was dependent upon various factors like the nature of the business, extent of business, profit and loss earned by the society and the decision of the Board of Directors. Thus, a clerk in one society may be getting Rs.1000/- per month as salary and a similarly placed clerk in another society may be getting Rs.4,000/- per month. The attempt on the part of the employees to equate themselves to Government employees for being entitled to pay at Government scales, was falacious. However, the Labour Court had accepted the claim of the employees for the scale of pay equivalent to Government scales as correct. It is further stated that there were no analogous posts available in the society as claimed by the employees. The fixation of wages have to be in conformity with the bye laws of the petitioner society which are discretionary and have to be decided by the Board from time to time by keeping up with the over all guidelines and in terms of the performance of the society and the availability of surplus funds. The petitioner society is a non-profit welfare society.
6. It is further stated that the employees were being paid out of the surplus funds available during each year. The employees will be given their increments, dearness allowance etc., based only on the total funds available with the society. In the case of the petitioner society, each year, the amounts due towards increments and dearness allowance were calculated on the basis of the employees then in service and the financial status of the society. It is further submitted that there was no regular system of annual increment and any revision in pay was subject to the satisfaction of the Board. Likewise, there was also no dearness allowance payable to the society. With the result, according to the petitioners, the claim for back wages and other allowances on par with the salary of Government servants was not sustainable. Hence the impugned award of the Labour Court allowing the claim petition as prayed for by the employees is not sustainable. Hence the above Writ petition.
7. Mr. G. Krishnamurthy, learned counsel appearing for the petitioner society contends that the fixation of pay, salary, allowances, increments etc., are all dependent upon the decision of the Board and the employees are not entitled to fixation of salary and allowances as if they are in Government service. Salaries and allowances are fixed on the basis of the financial condition/income of the society for each year. The claim of the employees that they are eligible for Government scales has absolutely no basis. In the model bye laws issued by the apex body of Tamil Nadu Co-Operative Housing Society limited, it is made clear that subject to the budget allotment sanctioned by the general body, the strength of the establishment of the society and the scale of pay admissible for each category and post would be fixed from time to time by the Board with the approval of the Registrar.
8. The learned counsel further contends that as far as the claim of bonus is concerned, bonus could be declared only by the Board which would depend on the profit and loss of each financial year. Therefore, no regular bonus was payable to the employees and the employees were fully aware of the said position. The learned counsel further submits that the salary and allowances were paid only at the rate as may be fixed by the Board and the employees have been receiving the same without any demur. Therefore, it was not open to them now to claim wages and allowances at the Government rates. Learned counsel also referred to the oral evidence adduced on behalf of the claimants themselves and contends that the same clearly discloses that they were not receiving salary and allowances at the Government scale.
9. Learned counsel also refers to the bye laws of the society and in particular refers to the scale of pay as envisaged thereunder. Under the caption, “Scale of Pay”, it is indicated “as decided by the Board of Directors”. The Committee is also empowered to prescribe from time to time the strength of the establishment of the society and the scale of pay and allowances admissible to each member thereof, subject to budgetary allotment sanctioned by the general body.
10. Learned counsel for the respondents/employees, however, contends that the attitude of the petitioner society from the beginning has always been anti-labour and according to him, this Court on the previous occasions had come down very heavily on the manner in which the society was being administered with reference to the service conditions of the employees of the society. Learned counsel also refers to Ex.P.5 which had been issued with reference to one of the employees dated 14.8.1970 in which is made clear that he was being confirmed as Clerk-cum-Typist in the Scale of Pay of Rs.90-5-140 plus D.A., HRA., and Special Allowances etc., as per Government rates with effect from 1.7.1970. Reference is also made to the scales of pay as indicated against each of the employees in the society’s letter dated 1.2.1979 and that the revised scales of pay would disclose that the same corresponds to the Scale of Pay of Government servants/employees holding equivalent posts at the relevant point of time. Therefore, it was erroneous to contend that the employees were not eligible for salary and allowances as drawn by their equivalents in the Government service.
11. I have considered the submissions of both sides.
12. In this Writ Petition, the issue which arises for consideration is as to whether the employees while they were working were entitled to the salary and allowances at the Government rates or at the rates as fixed by the society from time to time.
13. In this context, it is in evidence that one of the employees viz., Balakrishnan came to be appointed on 6.6.1969 as a clerk under probation. He was confirmed as Clerk cum Typist by order dated 14.8.1970 which has been marked in evidence as Ex.P.5. A perusal of Ex.P.5 clearly shows that he was confirmed as Clerk cum Typist in the Scale of Pay of Rs.90-5-140 + D.A., HRA and Special Allowances as per the Government rates with effect from 1.7.1970.
14. Ex.P.2 gives comparative statement of revised scales of pay with effect from 1.2.1979, basic pay with effect from 1.2.1979 and revised House Rent Allowances with effect from 1.2.1979. The names of the employees are shown thereunder and a perusal of the scales of pay discloses that the scales of pay are equivalent to the scales of pay applicable to Government servants. At page 271 of Appendix-I the new scales of pay are enlisted. The scales of pay for Government servants holding equivalent posts as prevalent during 1979 prior to the revision during 1984, corresponds to the pay scales, ordered in favour of the employees under Ex.P.2. This assertion on the part of the learned counsel for the respondents is not controverted by the management.
15. Therefore, the contention of the employees that when they were appointed and as well as subsequently had been fixed with basic pay, dearness allowance, house rent allowance etc., as per Government rates has to be sustained. In the said back ground I am unable to accept the contention of the learned counsel for the petitioner that the pay and allowances will be governed only by a periodical resolution of the Board and that the employees were not eligible to receive pay and allowances at the Government rates.
16. It is true that as far as bonus is concerned, it will be dependent upon profits earned by the society during each year and also dependent on the bonus to be declared by the Board for each financial year. But, in the context of the basic pay and the allowances, increments etc., I am inclined to hold that the contention of the management that the same would be subject to fluctuation during each year and that the Board was authorised to fix the pay and allowances in terms of the profit and sales of the society cannot be sustained. It is not disputed before me that the society is governed by the provisions of the Industrial Disputes Act. Hence, with reference to the wages and allowances, if any alteration is contemplated to the detriment of the employees, the management is obliged to comply with the requirements under Section 9A of the Industrial Disputes Act. It is not the case of the management that the management had ever resorted to the requirements under Section 9A of the Act before they gave up Government scales. That being so, the contention of the management that it is entitled to alter the basic pay and allowances for each financial year at the will and pleasure of the Board cannot at all be accepted. Even ignoring the requirements under Section 9-A of the I.D.Act, it is too late for any management to contend that they can fix the salary and allowances for each financial year according to the unilateral decision of the Board without any notice to the employees or without any agreement between the Board and employees. Such contentions cannot be raised even by a private company, much less a public institution like a co-operative society.
17. It is also pertinent to note the oral evidence of G. Sambandam, the Secretary of the society, who has deposed as RW1. In the cross-examination, he has admitted that his salary as on date was Rs.5,100/- and that he was earning regular increment during every year. He has also stated that one Malliga was receiving Rs.2,082/-, Thilagavathi Rs. 1,886/-, Elumalai Rs.1,839/- and that they were receiving the said amounts after obtaining periodical increments for each year. It is also admitted that in terms of Ex.P.1 Bye-law, the claim of the employees would be sustainable, but according to the witness, the bye-law was not given effect to. He also admitted that if the petitioners had not been terminated from the service, they would have received periodical increments for every year.
18. I have also perused the award of the Labour Court in the claim petition. The Labour Court had taken into account, the bye law which has been marked as Ex.P.1 and has given reasons for rejecting the explanation of RW1 that it was not being implemented. It is true that the learned counsel for the petitioner/management contended that the said bye law had not been approved and was not given effect to. It is not disputed that in terms of the said bye law, the employees would be entitled to the reliefs as prayed for by them.
19. However, even without taking into account the bye law under Ex.P1 as stated above, the facts clearly establish that the employees came to be appointed only in terms of the scales of pay equivalent to the Government scales and that they were in fact receiving pay and allowances as allowed in favour of the Government servants. It is also in evidence that some of the employees have been receiving in the scale of pay equivalent to Government servants. RW.1 has also admitted the fact that if the employees had not been terminated from service, they would have also received the same benefits.
20. For the aforesaid reasons, I do not find any ground to interfere with the award of the Labour Court.
21. However, it is made clear that as far as bonus is concerned, the rate of bonus would be dependent upon the declaration of the same by the Board. Therefore, the employees/the respondents herein would be entitled to the bonus only in terms of the bonus as declared by the management for each financial year.
22. It is further made clear that the relief granted in this claim petition, which is the subject matter of the above Writ Petition, will be available only to the specific claimants/employees who had approached the Labour Court and the benefits conferred by them in the said claim petition cannot be availed by other employees who may be similarly placed. The right to claim such amounts would be dependent upon the assertion of such rights by each of the individuals. Therefore, individuals who have not asserted their claims/rights at the relevant point of time and have acquiesced with scales as fixed by the Society from time to time, cannot now be heard to put forth any claim retrospectively (as in the case of the respondents herein) by filing any claim petition on the basis of the impugned award.
23. Subject to the above observations, the Writ Petition is dismissed. No costs.