IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:28.02.2007
CORAM:
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
W.P. No.28555 of 2004
The Tamil Nadu Civil Supplies Corporation Limited
Represented by the Regional Manager
Vellore Region
Vellore ..Petitioner
vs.
1. The Tamil Nadu Civil Supplies Corporation Employees'
Union represented by its General Secretary
(in the matter of Mr. P. Subramanian)
2. The Labour Court
Vellore ..Respondents
Writ Petition filed under Article 226 of the
Constitution of India praying for a writ of certiorari as
stated therein.
For petitioner Mr. J.A. Selvakumar
For 1st respondent Mr. S. Venkataraman
- - - - -
O R D E R
The Tamil Nadu Civil Supplies Corporation Limited (in
short “the Corporation”) has filed this writ petition
seeking a writ of certiorari to call for the records of the
second respondent in I.D. No.234 of 2001 dated 19.12.2003
and to quash the same.
2. The case of the petitioner Corporation, in a
nutshell, as culled out from the affidavit, is as below:
a. One P. Subramanian, a member of the
first respondent Union (in short “the employee”)
joined the Corporation on 15.04.1976 as Junior
Assistant and due to some dispute with regard
to his age, his promotion was kept pending and
his immediate Junior by name S. Annamalai was
promoted as Assistant with effect from
04.12.1981 and thereafter, as Superintendent on
09.01.1987. The employee submitted a
representation dated 11.11.1982 to the Chairman
& Managing Director of the Corporation against
the fixation of his seniority and on 16.03.1994,
the latter passed an order in Appeal Petition
directing the Corporation to promote the
employee as Assistant with effect from
04.12.1981 and as Superintendent with effect
from 09.01.1987 on par with his immediate junior
and accordingly, he was promoted but without
monetary benefits.
b. Though the employee accepted the
notional promotion granted to him and started
working as Superintendent, the first respondent
union filed I.D. No.234 of 2001 before the
Labour Court, Vellore, the second respondent,
after a delay of over 7 years, claiming monetary
benefits for the period from 04.12.1981 to
06.10.1994. The Labour Court, on 19.12.2003,
passed an order directing the Corporation to
calculate the monetary benefits for the period
as claimed by the employee and also to pay him
the same. Questioning the legality of the said
order of the second respondent, this writ
petition has been filed by the Corporation.
3. The main grounds of challenge in this writ
petition are that: (i) the industrial dispute
preferred by the Union on behalf of the employee,
that too, after a delay of over seven years, is not
maintainable, especially when the employee has
accepted the notional promotion and (ii) when the
employee has not shouldered any higher responsibility
in the promoted posts, the claim of the union for
payment of differential wages is not maintainable.
4. The employee, who has since retired from
service, has filed his counter and his case, in
brief, is as under:
a. As the subject matter of the dispute
fell under the definition of industrial dispute
under Section 2K of the Industrial Disputes Act,
1947 and was not an individual dispute and as
such, the Union was competent in sponsoring the
dispute. As per the seniority list, he should
have been given promotion as Assistant on
04.12.1981 and as Superintendent on 09.01.1987
but not so. His appeal to the Chairman cum
Managing Director in this regard was allowed on
16.03.1994, nearly twelve years from the date of
his appeal but without eligibility for arrears
of pay and allowances for the period between
04.12.1981 to 06.10.1994. His representations
for re-consideration of the order dated
16.03.1994 were rejected by an order dated
19.04.1995. To get his right enforced, he raised
a dispute before the Labour Officer,
Conciliation with the strength of G.O. Ms.
No.977 P & A R Department dated 06.11.1986 which
was resisted by the Corporation on the ground
that only G.O. Ms. No.905 (P & A.R. (Pension)
(M) Department dated 19.09.1981 would be
applicable to him and that the Corporation would
place the Government Order relied on by him
before the Board of Directors for their
acceptance and adoption to the employees of the
Corporation. This submission of the Corporation
was recorded by the Labour Officer, Conciliation
who closed the dispute with a direction to the
Corporation to take steps for approval of G.O.
Ms. No.977 by the Board of Directors and to
confer the benefit on the employee on such
approval. The Labour Officer, Conciliation,
further gave liberty to the employee to renew
his plea if no positive action was taken by the
Corporation and accordingly, since no positive
action emanated from the Corporation for a
considerable period of time, he renewed his plea
before the Labour Officer, Conciliation and
since the Corporation pleaded that the
employee’s claim could be granted only if
G.O.Ms.No.977 was adopted by the Board of
Directors, the dispute was closed and hence,
reference was made by the Government to the
Labour Court, the second respondent herein in
I.D. No.234 of 2001.
b. Before the Labour Court, though the
Corporation admitted the factual position of the
retrospective grant of promotion initially as
Assistant and subsequently as Superintendent, it
resisted the claim on the ground that the
cumulative effect of G.O.Ms. Nos.905 and 977
does not confer the right to claim arrears of
pay on retrospective promotions. The Labour
Court, on 19.12.2003, considering the fact that
G.O.Ms.No.977 was approved and adopted by the
Corporation vide its Circular No.74 of 2001
dated 13.09.2001, upheld the employee’s claim as
against which, the present writ petition by the
Corporation.
5. Mr. J.A. Selvakumar, learned counsel for the
Corporation has contended that the employee could not
satisfactorily account for the fact that he was in due age
for employment and lost a considerable period in that
process and in view of that, his promotion got delayed and
not due to any lapse on the part of the Corporation. He
has further contended that the employee’s claim was not
considered favourably in the light of twin G.Os. in Ms.
Nos.905 and 977 dated 19.09.1981 and 16.10.1986
respectively which cumulatively are to the effect that an
employee overlooked for promotion cannot demand arrears of
pay from the date of deemed promotion but only from the
date of actual assumption of charge and this aspect was
totally overlooked by the Labour Court and that being the
case, the impugned order passed by the second respondent-
Labour Court has to be quashed and the writ petition
allowed.
6. Mr. Selvakumar, learned counsel for the
Corporation, in support of his arguments, has relied on a
judgment of the Supreme Court reported in (1990) 4 SCC 744
in the case of Bank of India vs. T.S. Kelawala & Others
(para 25)
“Apart from the aforesaid ratio of the
decisions and the provisions of the Payment
of Wages Act and similar statutes on the
subject, according to us, the relevant
provisions of the major legislation
governing the industrial disputes, viz.,
the Industrial Disputes Act, 1947 also lend
their support to the view that the wages
are payable pro rata for the work done and
hence, deductible for the work not done.
Section 2(rr) of the said Act defines
“wages” to mean “all remuneration. . .
which would, if terms of employment,
expressed or implied, were fulfilled, be
payable to workman in respect of his
employment or work done in such
employment…” while Section 2(q) defines
“strike” to mean “cessation of work” or
“refusal to continue to work of accept
employment by workman”. Reading the two
definitions together, it is clear that
wages are payable only if the contract of
employment is fulfilled and not otherwise.
Hence, when the workers do not put in the
allotted work or refuse to do it, they
would not be entitled to the wages
proportionately.”
7. In response, Mr. S. Venkataraman, learned counsel
for the first respondent union has contended that by the
time the Industrial Dispute was taken on file by the second
respondent-Labour Court, G.O. Ms.No.977 was approved and
adopted by the Board of Directors of the Corporation on
which basis, the Corporation should have considered the
employee’s claim for arrears of pay favourably. Secondly,
it his argument that when the employee’s plea for promotion
was considered after a long span of 12 years due to no
fault of his but on the part of the Corporation, the
contention of the Corporation that the employee’s claim for
arrears of pay and allowances cannot be considered as he
was given only notional promotion, cannot be sustained.
8. While replying to the contention of the counsel
for the Corporation that the cumulative effect of two G.Os.
namely, G.O.Ms.No.905 and 977 does not permit arrears of
pay and allowances, the counsel for the first respondent
has contended that when admittedly G.O. Ms. No.977
supersedes G.O. Ms. No.905, the latter automatically loses
its value and when the Corporation has approved and adopted
G.O. Ms.No.977 in the Meeting of its Board of Directors
held on 03.09.2001, the same holds good and on that basis,
the Corporation should have given its favourable
consideration to the employee’s claim.
9. It is the further contention of the counsel for
the first respondent that had the Corporation promoted the
employee at the time when his promotion fell due, he would
have shouldered higher responsibility and would have
accordingly discharged his duties and in that sense, the
contention of the counsel for the Corporation that the
arrears of pay and allowances cannot be granted for higher
responsibility not shouldered by him, does not have legs to
stand. Finally, it is the contention of the counsel for
the respondent that the second respondent-Labour Court has
rightly taken into consideration the approval and adoption
of G.O. Ms. No.977 by the Board of Directors while deciding
the dispute in favour of the employee and as such, the
present writ petition has to be dismissed as it deserves no
consideration.
10. In support of his contentions, Mr. Venkataraman,
learned counsel for the first respondent has relied on a
judgment of this Court reported in 1986 WLR 291 in the case
of G. Maria Selvaraj vs. The Joint Manager(Port Operation)
Food Corporation of India Madras – 1 and Zonal Manager,
Food Corporation of India, Madras – 6 (paras 2, 3 and 5)
“. . .Hence, it is contended
that, consequent to a change of declaration
of law, petitioner having succeeded, he
could only secure the notional promotion
from the retrospective date, but in so far
as the pay and emoluments are concerned, as
per the Circular dated 11.02.1986, the
monetary benefits could be only from the
actual date from which the employee has
joined the higher post.
The sole point which requires
consideration is, whether in spite of
securing promotion, from a date from which
he ought to have been allowed to function
in the said post, should he be rest content
with the seniority being refixed from the
date on which he had been deprived to hold
the promotional post or could he also claim
the monetary benefits which are attached to
the said promotional post.
It would be wrong to hold that it
is only by the pronouncement of a judgment,
a right accrues for the first time. A
right which had already existed is
recognised when a judgment is pronounced.
Equally, when the scope of a Constitutional
provision is interpreted, it would be
erroneous to construe as if it is only from
the date of judgment such a Constitutional
provision had come into existence. What is
spelt out in a decision is only in
recognition of what had been contemplated
under the law from the date on which it had
been brought into force. . .”
11. Further reliance has been placed by the counsel
for the first respondent on a judgment of the Supreme Court
reported in 1998 SCC (L & S) 1273 in the case of Secretary-
cum-Chief Engineer, Chandigarh vs. Hari Om Sharma & Others
(para 8)
“Learned counsel for the
appellant attempted to contend that when
the respondent was promoted in stop-gap
arrangement as Junior Engineer-I, he had
given an undertaking to the appellant
that on the basis of stop-gap
arrangement, he would not claim
promotion as of right nor would he claim
any benefit pertaining to that post.
The argument, to say the least, is
preposterous. Apart from the fact that
the Government in its capacity as a
model employer cannot be permitted to
raise such an argument, the undertaking
which is said to constitute an agreement
between the parties cannot be enforced
at law. The respondent being an
employee of the appellant had to break
his period of stagnation although, as we
have found earlier, he was the only
person amongst the non-diploma-holders
available for promotion to the post of
Junior Engineer-I and was, therefore,
likely to be considered for promotion in
his own right. An agreement that if a
person is promoted to the higher post or
put to officiate on that post, or, as in
the instant case, a stop-gap arrangement
is made to place him on the higher post,
he would not claim higher salary or
other attendant benefits would be
contrary to law and also against public
policy. It would, therefore, be
unenforceable in view of Section 23 of
the Contract Act, 1872.”
12. Mr. Venkataraman has relied on yet another
judgment of the Supreme Court reported in AIR 1977 Supreme
Court 1868 in the case of S. Krishnamurthy vs. the General
Manager, Southern Railway (paras 2 and 5):
“The appellant joined the Southern
Railway as a clerk way back in October 1948
and was confirmed as train clerk on April
1, 1949. He worked his way up and became a
wagon chaser in an ex cadre post.
Thereafter, he was entitled to become
Assistant Yard Master but, for reasons
which we need not go into, he continued as
wagon chaser. The promotion post for
Assistant Yard Master is that of traffic
inspector. Unfortunately, the appellant
was not considered for that post although
others similarly situated like him were
absorbed as traffic inspectors. The
Railway Administration discovered the
injustice and set right the error of not
treating the appellant as an Assistant Yard
Master by its order dated November 10,
1965; but by this time others had been
absorbed as traffic inspectors and the
appellant was not. His representation
proving unsuccessful, he moved the High
Court under Art. 226 for the relief of
being treated as traffic inspector with
effect from 1st January, 1959 when those
others similarly situated were so absorbed.
The conflicting fortunes of the case have
already been indicated and all that we need
say is that in the light of the order of
the Railway Administration dated November
10, 1965, there has been an injustice
inflicted on the appellant.
5. Yet another point that arises is
as to what is to happen regarding his
arrears of salary from December 20, 1967
and for the post-writ petition period. We
make it clear that while seniority is being
notionally extended to him from 01.01.1959,
the appellant will not be entitled to any
salary qua traffic inspector prior to 20th
December, 1967. However, he will be
entitled to salary on the terms indicated
above from 20th December 1967 as traffic
inspector that is to say, he will be
eligible to draw the difference between
what he has drawn and what he will be
entitled to on the basis we have earlier
indicated in this judgment.”
13. I have given heedful thought to the case of the
parties, the rival contentions of the counsel on either side
and the judgments relied on by them.
14. The date of joining of the employee in the
petitioner Corporation and the dates on which his promotion
as Assistant and Superintendent fell due, are not disputed.
This is clear from the order of the Chairman and Managing
Director of the petitioner Corporation dated 16.03.1994
granting him promotion with effect from the date it fell
due. Since the employee was not given promotion as
“Assistant” on the date it fell due, he had addressed a
representation dated 11.11.1982 to the Chairman and Managing
Director of the petitioner Corporation and the same has been
considered only on 16.03.1994, nearly after 12 years. In
that order dated 16.03.1994, the employee has been denied
the eligibility to get arrears of pay and allowances for the
period 04.12.1981 to 06.10.1984. His representations for
reconsideration of the order dated 16.03.1994 were rejected
by an order dated 19.04.1995 and in order to enforce his
right, he had raised a case with the second respondent
Labour Court in I.D. No.234 of 2001 under Section 2(k) of
the Industrial Disputes Act through the first respondent
union.
15. Before the second respondent Labour Court, the
first respondent union has marked as many as 20 exhibits and
no exhibit has been marked by the petitioner Corporation.
Ex.A.12 marked on the side of the first respondent union is
the G.O.Ms.No.977 dated 16.10.1986 which has been issued by
the Government in amendment of Fundamental Rule 27 with
regard to fixation of pay on promotion or appointment to
higher post after restoration of original seniority. In
that Government Order, a reference has been made to the
earlier G.O.Ms.No.905 dated 19.09.1981 and also to a
subsequent letter of the Department dated 08.06.1982. In
other words, while issuing G.O. Ms.No.977, the Government
has given due consideration to the earlier G.O. Ms.No.905
and also its subsequent communication. The amendment made
through G.O.Ms.No.977 is as under:
“AMENDMENT
In the said Fundamental Rules under Rule
27, after ruling (16), the following shall be
added, namely:
"(17) In case where a Government
servant has been overlooked for
promotion/appointment to the next higher post
but subsequently promoted/appointed to that
higher post after restoration of his original
seniority on appeal, his pay shall be fixed on
the date of assumption of charge in the higher
post on par with the pay of his junior provided
he has drawn the same rate of pay as his junior
in the lower post from time to time; if he has
not drawn the same rate of pay as his junior in
the lower post, his pay shall be fixed, on the
date of assumption of charge, at the stage at
which he would have drawn pay on that date had
he been promoted/appointed to the higher post
along with his junior. In cases where seniority
has been restored on or after 15th September
1981, arrears of pay and allowance consequent on
fixation of pay shall be admissible with effect
from the date of assumption of charge in the
higher post; in cases where seniority has been
restored prior to 19th September 1981, arrears
shall be admissible only with effect from the
above date”.
(By order of the Governor)
Sd/-(P.Eswaramurthi)
Deputy Secretary
to Government”
16. The above Government Order has been placed in the
331st Meeting of the Board of Directors of the petitioner
Corporation and the same was resolved to be adopted for the
petitioner Corporation and the petitioner Corporation has
also issued a Circular dated 13.09.2001 to the effect that
G.O.Ms.No.977 has been approved by the Board of Directors
and adopted for the Corporation. Al already stated, this
Government Order is for amendment of the Fundamental Rules
in fixation of pay on promotion or appointment to higher
post after restoration of the original seniority. The
object of the amendment is sought to be achieved through the
respective rule and having adopted the above Government
Order, the petitioner Corporation cannot interpret the
Government Order to the disadvantage of the employee who has
been denied his due promotion. Even before the Labour
Officer, Conciliation, it was the stand of the petitioner
Corporation that only G.O.Ms.No.905 is applicable and
G.O.Ms.No.977 would be applicable only after approval and
adoption of the Board of Directors. Before the second
respondent Labour Court, though the petitioner Corporation
has admitted that G.O.Ms.No.977 has been approved by the
Board and adopted by the Corporation, it has resisted the
claim on the ground that a cumulative reading of the two
Government Orders would not entitle the employee to receive
arrears of pay and allowances. This makes it clear that the
petitioner Corporation took two different stands before the
Labour Officer, Conciliation and the Labour Court. The
contention of cumulative reading of the Government Orders
raised by the petitioner Corporation cannot be sustained for
the reason that once an amendment to Fundamental Rule is
made through G.O.Ms.No.977 by referring to G.O. Ms.No.905,
G.O.Ms. No.977, which is issued subsequently in furtherance
to G.O.Ms. No.905 gets the superseding power and puts
G.O.Ms.No.905 in nullity and in that view of the matter, no
need whatsoever arises to give a cumulative reading of the
two Government Orders.
17. The other contention on the side of the petitioner
Corporation is that the first respondent union has
approached the Labour Court with a delay of nearly seven
years and by this long gap itself, the claim of the employee
should be denied. As the claim itself is for the period
04.12.1981 to 06.10.1994 during which the employee ought to
have been promoted and not for the period after 06.10.1994,
the contention of the petitioner Corporation cannot have
legs to stand. For the delay on the part of the employee in
approaching the Labour Court, the only claim he cannot make
is with regard to interest for seven years and it is not
justifiable to say that he is not entitled to the claim
itself.
18. In addition to the above, there is one more point
to be considered in regard to the matter. Though the
petitioner Corporation has contended the employee could not
account for his age and on account of that, there was some
delay in his promotion, the long span of twelve years taken
by the Chairman and Managing Director to dispose of the
representation of the employee in connection with his
seniority, is too big a pill to swallow and for this
inordinate delay, there has been no explanation on the side
of the petitioner Corporation.
19. Thus, having regard to the facts and circumstances
of the case and the judgments relied on by the counsel on
either side and considering the fact that G.O.Ms.No. 977 has
been approved by the Board of Directors of the petitioner
Corporation and adopted by the petitioner Corporation, I am
of the considered view that the conclusion of the second
respondent Labour Court in directing the petitioner
Corporation to calculate the monetary benefits of the
employee for the period 04.12.1981 to 06.10.1994 and also to
pay him the same, is perfectly in order and does not warrant
any sort of interference by this Court.
In view of the above findings, the writ petition, which
is devoid of any merit, does not deserve any favourable
consideration and is liable to be dismissed. Accordingly,
it is dismissed without any order as to costs.
cad
To
The Labour Court
Vellore