IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2008 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.19309 of 1999 M/s.Tarapore and Co., Engineers and Contractors Represented by its Partner N.Radhakrishnan ... Petitioner -vs- 1.The Presiding Officer, Principal Labour Court, Chennai. 2.Swamy Achari ...Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records relating to C.P.No.401 of 1991 on the file of the first respondent Principal Labour Court, Chennai and quash the award dated 16.03.1999. For Petitioner : Mr.M.Ramalingam For Respondents : Mr.K.Singaravelu for R2 O R D E R
The petitioner is a construction company. Aggrieved by the order of the first respondent Labour Court made in C.P.No.401 of 1991 dated 16.03.1999, the present writ petition has been filed. The second respondent before this Court is admittedly employed by the petitioner company as a Foreman and whenever they are deputed to a project, they are entitled to get project allowance.
2. In the present case, at the relevant point of time, the second respondent was sent to a project at Farakka. Afterwards, his services were no longer required and he was paid retrenchment compensation and notice pay. The dispute arose with reference to the actual wages that has to be taken into account for the purpose of calculating his compensation and notice pay. Though the second respondent had received the amount which was actually paid to him by the petitioner company, he filed a claim petition before the first respondent Labour Court under Section 33C(2) of the Industrial Disputes Act, claiming the difference in the calculation of retrenchment compensation, notice pay, bonus and the difference in the unpaid salary for the months of December 1989 and January and February 1990. This was resisted by the petitioner by referring to Ex.P3 which is admittedly an acquittance receipt given by the second respondent in full and final settlement of the amounts received by him. A contention was also raised that the project allowance cannot be termed as “wages” within the meaning of Section 2(rr) of the I.D.Act.
3. Before the Labour Court, the petitioner examined one R.Deenadayalan as R.W.1 and the second respondent examined himself as P.W.1. On the side of the second respondent, five documents were filed and they were marked as Exs.P1 to P5. On the side of the petitioner, a working sheet of the account of the petitioner is filed as Ex.R1. The Labour Court on an analysis of the materials placed before it came to the conclusion that the second respondent was entitled to get a sum of Rs.83,164.50. But he was paid only Rs.53,839/-. Therefore, he is eligible for the balance amount of Rs.29,314.50. Aggrieved by the same, the present writ petition was filed.
4. The writ petition was admitted on 06.02.1999. By an interim order, this Court directed the petitioner to deposit 50% of the computed amount to the credit of the claim petition. Subsequently, on 30.12.2002, it was recorded that the petitioner Management has complied with the said interim order.
5. Mr.M.Ramalingam, learned counsel for the petitioner contended that by no stretch of imagination, the project allowance can be computed as wages in terms of Section 2(rr) of the I.D.Act. Since a person is entitled to be posted to different projects and it varies from place to place, it should not be counted as wages. But a reading of Section 2(rr) where the definition of wages found in the I.D.Act only excludes Bonus, PF/Pension contribution and gratuity from the purview of the said definition. But the definition of the wages found in its main part is an inclusive definition. Therefore what is not excluded should be deemed to have been included. Therefore, this Court has no hesitation to hold that the project allowance is also wage paid to the second respondent.
6. The submission that he has passed a full and final receipt to the management and received retrenchment compensation as offered to him cannot be accepted as an estoppel against the workman from claiming the difference in amounts. Since it is a claim falling under Chapter VA of the I.D.Act, Section 25 J will operate in his favour. Unless and until the management satisfies the Court that he has paid all the amounts as per law, a full and final receipt cannot defeat the claim of the workman.
7. As there are no infirmities or illegalities in the order passed by the Labour Court and hence, the writ petition stands dismissed. It is open to the second respondent to withdraw the amounts lying in the deposit with the Labour Court. He also claim the balance amount from the Management. No costs.
svki
To
The Presiding Officer,
Principal Labour Court,
Chennai