IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.10.2009
CORAM
THE HONOURABLE Mr. JUSTICE P.JYOTHIMANI
Writ Petition Nos 275 and 10473 of 2008
M.Bakthavatchalam .. Petitioner in WP.No.275/08
& R2 in WP.No.10473/08
vs.
1.The Presiding Officer
Labour Court
Cuddalore. .. R1 in both the petitions.
2. The Management
Arcot Primary Agricultural Co-operative
Bank Limited
Arcot Post, Tirukoilur Taluk
Villupuram District. .. R2 in WP.No.275/08 &
petr. in WP.No.10473/08.
Prayer: Writ Petition No.275 of 2008 is filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorarified Mandamus, to call for the order in C.P.No.58 of 2001, dated 25.09.2007 on the file of the Labour Court, Cuddalore, the 1st respondent herein, quash the same insofar as the remaining relief Rs.18,725/- and to direct the 2nd respondent herein to pay a sum of Rs.18,725/- towards educational expenses, encashment of earned leave benefits.
Writ Petition No.10473 of 2008 is filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorari, to call for the records in C.P.No.58 of 2001, dated 25.09.2007 and to quash the same.
For Petitioner in WP.No.275/08 : Mr.T.Dhanyakumar
For R2 in WP.No.275/08 : Mr.S.Parthasarathy
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COMMON ORDER
The petitioner-workman in W.P.No.275 of 2008, who was employed under the second respondent-Management, has earlier moved the Labour Court by filing I.D.No.95 of 1996, claiming permanent status and also questioning the termination order. In the said I.D., an award was passed by the Labour Court on 21.01.1999, directing the Management to reinstate the workman and also to make him permanent and to pay consequential benefits. In the said award, in respect of the quantum of monetary relief, the Labour Court has directed the workman to file a claim petition under Section 33-C(2) of the Industrial Disputes Act (hereinafter referred to as “the Act”).
2. The award passed in I.D.No.95 of 1996 came to be challenged by the second respondent-Management in Writ Petition No.13049 of 2002. By order dated 15.03.2007, this Court has confirmed the award passed by the Labour Court in I.D.No.95 of 1996, thereby holding that the workman is entitled for a permanent status and also for payment of salary. Thereafter, the petitioner filed C.P.No.126 of 1999 under Section 33-C(2) of the Act, claiming a sum of Rs.2,96,840/- and the Labour Court has passed an award on 27.03.2001 to an extent of Rs.2,75,252/-. The said award passed by the Labour Court was challenged by the second respondent-Management in Writ Petition No.13889 of 2001 and the said writ petition came to be dismissed on 15.03.2007 by a common order along with the writ petition filed by the Management against the award passed in I.D.No.95 of 1996 as stated above. In the said award passed by the Labour Court in C.P.No.126 of 1999, the Labour Court while considering about the benefit claimed under surrender of Earned Leave has decided that the same is possible only after getting permission from the second respondent-Management and also in respect of the Children’s Educational Allowance, the Labour Court in the said claim petition has held that inasmuch as there was no specific order in the earlier award passed in I.D.No.95 of 1996, the same was not succeeded too.
3. Thereafter, the petitioner has filed C.P.No.58 of 2001 before the Labour Court, claiming the following three benefits:
(i) The difference in payment of salary based on the pay fixation as per Section 18(1) settlement stated to have been entered between the Management and the Workmen, and on that basis, the basic pay should have been fixed at Rs.4,500/- and claiming the difference to which, he is entitled as per the settlement.
(ii) Educational Allowance was again claimed based on Section 18(1) settlement, wherein the allowance is permitted at Rs.400/- in respect of the employee having one child and Rs.800/- in cases more than one child. In that regard, the petitioner is claiming a sum of Rs.2,650/-, which is stated to be for the period between 01.03.1992 to 31.07.1999.
(iii) Encashment of Earned Leave benefit was also claimed between the period from 01.03.1992 to 31.07.1999 to the extent of Rs.16,075/- and that amount was claimed based on 18(1) settlement.
4. The Labour Court has accepted the plea of the workman regarding the fixation of basic pay on the basis that the same has been granted under Section 18(1) settlement and that it has also been paid to some other employees, as admitted by the witness examined on the side of the Management. However, in respect of the two other claims, namely, Educational Allowance and Encashment of Earned Leave benefits, it was decided that the present claim petition is not maintainable, since in the earlier claim petition filed by the workman in C.P.No.126 of 1999, there is a specific finding that those two heads cannot be granted, against which the Management has filed a writ petition, in which the said order was confirmed and in the absence of any objection by the workman against that portion at the earliest point of time, it has become final. Accordingly, the claims in respect of Educational Allowance and Encashment of Earned Leave benefit, were rejected by the Labour Court. It was as against the claim allowed by the Labour Court regarding the fixation of basic pay, the Management has filed Writ Petition No.10473 of 2008, while the workman has filed Writ Petition No.275 of 2008 as against the rejection of the claims on the heads of Educational Allowance and Encashment of Earned Leave benefits.
5. In respect of the writ petition filed by the Management against the fixation of basic pay at the rate of 4,500/- and direction issued by the Labour Court to the Management to pay a sum of of Rs.31,456/-, a reference to the impugned award passed by the Labour Court would make it clear that the witness examined on the side of the Management has clearly admitted that the said fixation has been effected by the Management in respect of another employee, namely, one Raja, who has worked for eight years and three months, while admitting that the petitioner has worked as Clerk between the period from 01.03.1992 and 01.08.1999. In fact, the Management Witness has also specifically admitted that the said fixation has been made in accordance with the settlement arrived at under section 18(1) of the Act and the same is applicable to all workmen. It was only taking note of the above said evidence on the side of the Management and after referring to the contents of Section 18(1) settlement entered between the Management and the Workmen, as marked as Exs.A4, A9 and B5, the Labour Court has come to a conclusion, in my view, correctly that the petitioner is entitled for the claim under the fixation of basic pay. There is absolutely no illegality in respect of the decision of the Labour Court under the impugned order regarding the fixation of basic pay and therefore, the writ petition filed by the Management in W.P.No.10473 of 2008 against that portion of the impugned award is liable to be dismissed and accordingly, the same is dismissed.
6. In so far as the claim of the workman under the two other heads, namely, Educational Allowance as well as Encashment of Earned Leave, a reference to the impugned award shows that the Labour Court having elaborately discussed about the applicability of Section 18(1) settlement in respect of fixation of pay, has not chosen to consider other clauses of Section 18(1) settlement, which also contained regarding the Educational Allowance as well as the Encashment of Earned Leave benefits. But, the Labour Court has rejected the claim only on the basis that in the earlier claim petition filed by the workman, the said claims were not favourably considered and that has become final in the writ petition filed by the Management and therefore, the petitioner cannot raise the same thing once again. The decision of the Labour Court in C.P.No.126 of 1999, relating to the Educational Allowance as well as the Suurrender of Earned Leave, is as follows:
“10. With regard to claim of other benefits, I would like to point out that the surrender leave is eligible only after getting permission from the respondent Management. Similarly, with regard to children’s educational allowance also, there is no specific order by the Court while giving award in I.D.No.95 of 1996.”
7. The Labour Court has concluded as if in the award passed in I.D.No.95 of 1996, there was no specific direction regarding the payment of children’s Educational Allowance as well as Encashment of Surrender Leave. But, admittedly, the Management has paid all other benefits to the workmen as per Section 18(1) settlement and including the benefits of Encashment of Surrender Leave and Educational Allowance in respect of the other workmen and it is also stated that in respect of the petitioner himself for the subsequent period, the encashment of Earned Leave has been granted based on section 18(1) settlement as on 29.04.2001 and the Educational Allowance has also been paid for the subsequent period and those amounts have been paid as per Section 18(1) settlement. While so, the petitioner has been rejected for the above said two benefits for the period from 01.03.1992 to 31.07.1999 only due to the reason that in the earlier claim petition, the Labour Court has passed such observation. It is true that as against that portion of the award in C.P.No.126 of 1999, the petitioner has not approached this Court by challenging the same, but, that will not be an embargo on the petitioner’s right available under Section 18(1) settlement, which is enforceable in law.
8. In my view, the Labour Court having elaborately discussed about the contents under Section 18(1) in respect of fixation of basic pay, ought to have considered the contents of the 18(1) settlement on these grounds also. The learned counsel for the workman submits that as per clauses in 18(1) settlement, the amount is identifiable and therefore, there is no necessity to send back the matter to try again. On the other hand, as rightly argued by the learned counsel for the Management, it is the duty of the petitioner to produce the documents to show as to whether the other persons, who are similarly placed as that of the petitioner, have been paid such Educational Allowance as well as Encashment of Earned Leave benefits and that requires appreciation of evidence. The learned counsel for the workman brought to the notice of this Court that the workman has produced evidence, namely, Ex.A3, which is the service record of one Raja, who was employed by the management, in respect of the said benefits paid to the similarly placed persons and that the same has not been considered.
9. In such view of the matter, the matter has to be remanded to the Labour Court for fresh consideration relating to the above said two issues, namely, Educational Allowance and Encashment of Earned Leave. In view of the same, the impugned award of the Labour Court with regard to the above said two heads are set aside and the matter is remanded to the Labour Court to decide about the two issues, namely, eligibility of the petitioner for the Educational Allowance and Encashment of Earned Leave. The Labour Court shall give opportunity to the parties to produce fresh documents. The Labour Court shall hear the parties, consider the contents of Section 18(1) settlement with regard to the said issues and decide the matter within a period of six months from the date of receipt of a copy of this order.
With the above direction, these writ petitions are disposed of. No costs.
KJ/ATR
To
The Presiding Officer
Labour Court
Cuddalore