{"id":173259,"date":"2010-06-08T00:00:00","date_gmt":"2010-06-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-unnikrishnan-vs-deputy-commissioner-of-labour-on-8-june-2010"},"modified":"2017-08-10T14:11:30","modified_gmt":"2017-08-10T08:41:30","slug":"m-unnikrishnan-vs-deputy-commissioner-of-labour-on-8-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-unnikrishnan-vs-deputy-commissioner-of-labour-on-8-june-2010","title":{"rendered":"M.Unnikrishnan vs Deputy Commissioner Of Labour … on 8 June, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Unnikrishnan vs Deputy Commissioner Of Labour … on 8 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\t\t\t\nDATED:  08.06.2010\n\t\t\t\t\t\t\nCORAM:\n\t\t\t\t\nTHE HONOURABLE MR.JUSTICE K.CHANDRU\n\nW.P.No.16104 of 2000 and\nW.P.No.7412 of 2004\n\nM.Unnikrishnan \t\t... Petitioner in\nW.P.No.16104 of 2000\n\nThe General Manager,\nAeroflot Russian International Airlines,\nGround Floor, Tolstoy House,\nTolstoy Marg,\nNew Delhi -110 001.\t... Petitioner in\nW.P.No.7412 of 2004\n\n Vs\n\n1.Deputy Commissioner of Labour (Appeal),\n  Teynampet, Chennai  600 006.\n\n2.The Management,\n  Aeroflot,\n  Russian International Airlines,\n  Temple Towers,\n  Chennai  600 035.\n\n3.Aeroflot Russian International Airlines,\n  Tolstoy House,\n  15-17, Tolstoy Marg,\n  New Delhi  110 001.    \t\t...Respondents<\/pre>\n
 (R3 impleaded as per order of Court
\n  dated 04.09.2003 in WMP No.23160\/01)<\/p>\n
1.The Regional Labour Commissioner-I
\n  Chennai,
\n  Appellate Authority under the
\n  Payment of Gratuity Act, 1972,
\n  Shastri Bhavan, Chennai  600 006.\n<\/p>\n
2.The Assistant Labour Commissioner,
\n  Central  I,
\n  Controlling Authority under the
\n  Payment of Gratuity Act, 1972
\n  Shastri Bhavan, Haddows Road,
\n  Chennai  600 006.\n<\/p>\n
3.M.Unnikrishnan. \t…Respondents in
\nW.P.No.7412 of 2004
\nW.P.No.16104 of 2000
\nPRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records relating to the common order of the first respondent dated 19th May 1999 served on the petitioner on 26.02.2000 in so far as it relates to T.S.E.No.13\/97 and quash the same and consequently  direct the second respondent to reinstate the petitioner in service with full backwages, continuity of service and all other attendant benefits.\n<\/p>\n
W.P.No.7412 of 2004
\nPRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records pertaining to the order dated 09.03.2004 made in G.A.No.4 of 2004 bearing No.M.39\/4-PGA\/2004-D1 passed by the first respondent and quash the same.\n<\/p>\n
\t\tFor Petitioner
\n\t\t W.P.No.16104 of 2000 : Mr.Balan Haridas
\n\t\t W.P.No.7412 of 2004  : Mr.Jayesh B.Dolia<\/p>\n
\t\tFor Respondents
\n\t\t W.P.No.16014 of 2000 : Mr.Jayesh B.Dolia
\n\t\t\t\t\t\t    for R2 and R3
\n\t\t W.P.No.7412 of 2004  : Mr.Balan Haridas
\n\t\t\t\t\t\t    for R3<\/p>\n
C O M M O N  O R D E R<\/p>\n
\tHeard both sides.\n<\/p>\n
\t2. For the sake of convenience parties herein are referred to as the Management and the Employee.\n<\/p>\n
\t3. The first writ petition (W.P.No.16104\/2000) was filed by the Employee (M.Unnikrishnan) against the order passed by the Deputy Deputy Commissioner of Labour (Appeal), the Appellate Authority constituted under Section 41(2) of the Tamilnadu Shops and Establishments Act 1947 (for short Shops Act) made in T.S.E.No.13 of 1997 dated 19.05.1999.\n<\/p>\n
\t4. By the impugned order, the Appellate Authority dismissed the appeal filed by the Employee on the ground that there was a reasonable cause for dispensing with the services of the Employee on account of the closure of the Management’s office at Chennai.  That writ petition was admitted on 22.09.2000. Subsequently, the employee filed an application in WPMP No.23160 of 2001 to implead the third respondent, who is running the business of the Management at New Delhi. They were impleaded vide order dated 04.09.2003.\n<\/p>\n
\t5. During the pendency of the writ petition, the Employee claimed gratuity before the Assistant Labour Commissioner (Central) at Chennai and the Controlling Authority under the Payment of Gratuity Act in P.G.Application No.122 of 2000.  The Controlling Authority held that the Employee was eligible to get gratuity of a sum of Rs.1,03,039\/- together with interest at the rate of 10%.\n<\/p>\n
\t6. Aggrieved by the order passed by the Controlling Authority, the Management of the Airlines filed an appeal under Section 7(7) of the Payment of Gratuity Act before the Regional Labour Commissioner (Central), Chennai.  The Appellate Authority took up the same as P.G.Appeal No.4 of 2004. By an order dated, 09.03.2004, the  Appeal was dismissed as it was filed belatedly.  It is against that order dated 09.03.2004, the Management filed W.P.No.7412 of 2004. That writ petition was admitted on 24.03.2004.   However, this Court dismissed the application for stay.\n<\/p>\n
\t7.  When the matter came up on 12.01.2010, this Court recorded the statement of the learned counsel for the Management that they are willing to take the Employee as Ticket Reservation Officer at their Delhi Office for which proposal, the learned counsel for the Employee had also agreed.  It was offered that the Workman will be paid the salary which he was drawing before his termination. But  the Employee insisted that he should be paid on par with other employees who are employed at the New Delhi office.\n<\/p>\n
\t8. Subsequently, after several adjournments as the parties were at variance, it was reported that there was no possibility of a compromise. Hence the matters were heard on the merits of the case.\n<\/p>\n
\t9. In the writ petition filed by the Management regarding the non-entertainment of the gratuity appeal, it was agreed that there was delay in filing the appeal. It was also not done after due deposit of the amount.  But it was stated that this Court under Article 226 of the Constitution has wide power to entertain the claim notwithstanding the limited power of condonation of delay given to the Appellate Authority. However, this Court is unable to agree with the said submission. In a Division Bench of this Court in Indian Coffee Worker’s Co-op. Society Ltd. Vs. Commissioner of Commercial Taxes reported in 2002 (1) CTC 406, a division bench of this Court specifically referred to the case in MAHESWARI FIREWORKS INDUSTRIES Vs.  COMMERCIAL TAX OFFICER AND  OTHERS reported in 2001  STC  (Vol.121)  272 and held that it was not a good law. In paragraphs 22 and 23, it was held as follows:\n<\/p>\n
\t“22…..Of  course,  the  learned  counsel  for  the petitioner placed reliance on the Division  Bench  decision of   this  Court  reported  in  2001  STC  (Vol.121)  272         (MAHESWARI FIREWORKS INDUSTRIES Vs.  COMMERCIAL TAX OFFICER AND  OTHERS)  and  submitted  that  the  High  Court  while exercising  jurisdiction  under  Art.226 of Constitution of  India, even though appeal before  the  appellate  authority was  filed  beyond  60  days (prescribed time of 30 days to file appeal + 30 days  for  which  period  alone  appellate authority has power to condone) if the explanations offered by  the  assessee  for  not  filing  appeal within the said period are acceptable, then the High Court can  direct  the appellate authority to dispose of the appeal on merits.  In the present case, the request of the petitioner is that the appellate  authority may be directed to consider the appeal on merits and the assessee did not apply  in  time  as  the assessee  had by then applied for exemption and was waiting  for the orders from the Government and that the  Government granted exemption  for the year 1990-91.  The fact that the request of the assessee was then under consideration by the Government, cannot be an  acceptable  explanation  for  not filing the appeal in time.  That apart this court is of the view  that  the  ruling  of  the  Supreme Court reported in  2001(4) CTC 21 3 (cited supra), which came to  be  rendered after  the  ruling  of the Division Bench of this Court has laid that once the statute prescribed the  time  limit,  it cannot be  extended  further.    In  2001 STC (Vol.121) 272         (cited  supra),  a  Division  Bench  has  ruled  that   the limitation  prescribed  under  Section  31 of the Tamilnadu General Sales Tax Act cannot be made applicable to the High         Court while exercising jurisdiction under  Article  226  of Constitution of  India.    In  this case, we are not called upon to decide that issue.  But the question is whether  on that basis this Court can direct the appellate authority to consider   the   appeal  on  merits  after  the  expiry  of prescribed time.  In our considered view, this Court has no jurisdiction to pass such an order as otherwise it would be nothing but this Court re-writing the provisions of the Act         in exercise of its powers under article 226 of Constitution of India.  This Court is also inclined to  point  out  that the ruling  of the Supreme Court viz.  AIR 1976 SC 2161 and AIR 1961 SC 1047 ( both cited supra) were  not  brought  to the notice of that Division Bench.\n<\/p>\n
\t23.  The legal position is as follows:\n<\/p>\n
\t(a) An appeal under Section 30(1) of the Tamil Nadu General  Sales Tax Act, 1959 has to be filed within 30 days before the appellate Assistant Commissioner.  The appellate Assistant Commissioner is empowered to  condone  the  delay  for  further  period of 30 days if sufficient cause for not presenting the appeal in time is shown and satisfied by the        appellate authority.\n<\/p>\n
\t(b) Under no circumstances, the appellate authority has power to condone the delay beyond 30 days.\n<\/p>\n
    (c)   While   the   High   Court   exercising   the  jurisdiction under Article 226 of  Constitution  of  India, approves  the  correctness  of  the  order of the appellate        authority,  it  has  no  power  to  direct  the   appellate authority  to consider the appeal on merits as otherwise it would  be  nothing  but  Court  extending  the  period   of limitation.\n<\/p>\n
   (d)  Even if the High Court accepts the explanation given by the assessee for not filing the appeal within  the period  prescribed  under  the  Act,  it  cannot direct the         appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article  226  of  Constitution  of  India,  cannot re-write the provisions of  the Act.\n<\/p>\n
\t10. Hence, W.P.No.7412 of 2004 is liable to be dismissed.\n<\/p>\n
\t11. With reference to W.P.No.16104 of 2000, the Employee had joined the Airlines office on 28.06.1978. He was initially posted at Delhi.  On 01.11.1992, he was transferred to Chennai. The nature of work of his employment was ticketing, reservation, writing correspondences etc. However, by an order dated 27.02.1997, his services were terminated on account of the winding up of their operation at Chennai Office. The appeal filed under Section 41(2) of the Shops Act was rejected only on account of the closure of their business at Chennai. It was contended that the Authority did not go into the question of bonafide nature of closure and also the fact that ticketing business is being continued by an agent viz., Cozy Travels. Even otherwise, it was contended that the Management is an All India organisation and are continuing their business at Delhi. The employees are liable to be transferred from one place to another. The petitioner himself had come on transfer to Chennai.  Further, it was stated that the juniors of the employee viz., M\/s.Arvind Rathi, R.Mighlani c. Lakshminarayan  were retained in service, thereby  Section 25-G of the I.D.Act was violated. It was further contended that at the time of termination, the condition precedent under Section 25-F of the I.D.Act was not adhered to.\n<\/p>\n
\t12. Before the Authority, the Employee examined himself as P.W.1 and filed 18 documents which were marked as Exs.A1 to A18.  On the side of the Management, 20 documents were filed and they were marked as Exs.R1 to R20. They examined one Alexander Vidineev as R.W.1. Ex.A15 was filed to show certain amounts were refunded to a passenger beyond the alleged date of closure of operation at Chennai. Similarly, the Employee was transferred by Ex.A12 from Delhi to Chennai, as per the clause found in his appointment order. Ex.A4 is the appointment order given to one Renuka Mighlani who was found to be still working in the respondent office and who was junior to the Employee.\n<\/p>\n
\t13. Reliance was placed upon the judgment of this Court in Aeroflot Russian International Airlines v. Deputy Commissioner of Labour and<\/a> another reported in 1997 3 LLN 429 in respect of the very same Airlines, holding that the termination of the service of an employee retaining the junior most is clearly illegal and contrary to the provisions of Section 41(2) of the TNSE Act.  In paragraphs 20, 21 and 22 it was held as follows:\n<\/p>\n
“20. Further, the second respondent has also put forward an alternative case that even if the case of the management is accepted in fairness action could have been taken for termination of the service of her juniors. In the appeal grounds, the second respondent has specifically pleaded that there are other persons who are juniors to her like Unni Krishnan and Purushothaman and they have retained for the reasons best known to the management.  As a matter of fact, R.W.1 has admitted that juniors to the second respondent herein are still working in their management.  At this stage, learned counsel appearing for the petitioner submitted that the provisions of the Industrial Disputes Act are not applicable to the case of the second respondent, since he was in the managerial cadre.  We need not go into those aspects, though according to learned counsel  appearing for the second respondent those provisions are applicable to the second respondent, even on general principle due to financial crisis some one has to be sent out normally the Management has to adopt fair and reasonable method by sending the junior most person available in their concern.  Hence, the course adopted by the management in this regard is also unacceptable.\n<\/p>\n
21.Further, the appellate authority has also come to the conclusion that the Madras Branch of the management is still functioning, in those circumstances according to the appellate authority the reasons adduced for the termination of the second respondent herein cannot be held as genuine and bona fide.  Hence, after appreciation of the entire evidence, the appellate authority came to the conclusion that the termination of the second respondent herein is not for “reasonable cause”.\n<\/p>\n
22.As already stated, I am of the view that the  conclusion reached by the appellate authority holding that the petitioner-company has not suffered financial crisis and the reasons adduced for termination of the second respondent herein is not for “reasonable cause” are quite convincing and acceptable.  If such a conclusion is arrived at, the judicial review by this Court is very limited unless the finding recorded by the appellate authority is perverse or is based on no evidence. I have already held that the order of the appellate authority is supported by acceptable evidence. In those circumstances, this Court by exercising power under Article 226 of the Constitution cannot interfere with the conclusion reached by the appellate authority.”\n<\/p>\n
\t14. In the counter affidavit as well as the written submission filed by the Management, it was stated that closure compensation was paid to the Employee. The premises in which the Airlines office was operated at Chennai was surrendered to its landlord and the bank accounts were also closed and it was duly informed to the Reserve Bank. Other employees were also paid closure compensation.   Several other employees who challenged their termination along with the employee were satisfied with the final order passed by the Appellate Authority. It was only the Employee who alone has come forward to challenge the said order.\n<\/p>\n
\t15. All these issues are irrelevant in so far as the deciding the jurisdiction of the appellate authority was concerned.  The  Appellate Authority in the present case failed to see that the employee had come to Chennai on a transfer and so long as their Delhi Office is still working, nothing prevented the employee being retransferred to their Delhi office. The further allegation that his junior  Renuka Mighlani was retained was also not denied. In such circumstances, a Division Bench of this Court in Management of Addison and Company Limited v. Presiding Officer, Labour Court Madras<\/a> reported in 79(1) LLJ 465 held that if a person is transferred to another establishment and if that establishment is closed, then that employee cannot be sent out on account of the closure of the transferred establishment and he must be retransferred to his parent station.\n<\/p>\n
\t16. In the present case, it is admitted that the Delhi Office of the Management is still functioning and  no option was sought for from the employee for his retransfer to the Delhi Office. By way of some compromise, though the Management was willing to take him back to their Delhi Office, they were not willing to offer the same salary payable to similarly placed staff at Delhi.  Such a  stand of the Management cannot be accepted. In such circumstances, the concept of “Equal Pay for Equal Work” will apply.  A person holding the same position in the same establishment and doing similar work cannot be paid differently. Considering the fact that the Workman was transferred from Delhi Office and that the Delhi Office is still functioning and also the fact that  junior to the Employee is still working, the order of the Appellate Authority impugned in the writ petition cannot be sustained. The Employee is entitled to succeed.\n<\/p>\n
\t17. Accordingly, the writ petition W.P.No.16104 of 2000 stands allowed.  The order of the Appellate Authority in T.S.E.No.13 of 1997 dated 19.05.1999 (Unnikrishnan) is hereby set aside. The third respondent is hereby directed to reinstate the Workman at their Delhi Office with all backwages, continuity of service and other consequential benefits.  The amount paid by way of gratuity can be adjusted towards the backwages payable. This exercise shall be carried out within a period of eight weeks from the date of receipt of a copy of this order.\n<\/p>\n
\t18. In the result, W.P.No.16104 of 2000 stands allowed. W.P.No.7412 of 2004 stands dismissed. No costs.\n<\/p>\n
\t08.06.2010<\/p>\n
Index: Yes\/No
\nInternet :Yes\/No<\/p>\n
svki<\/p>\n
K.CHANDRU,J.\n<\/p>\n
Svki
\nTo\n<\/p>\n
1.Deputy Commissioner of Labour (Appeal),
\n  Teynampet, Chennai  600 006.\n<\/p>\n
2.The Management,
\n  Aeroflot,
\n  Russian International Airlines,
\n  Temple Towers,
\n  Chennai  600 035.\n<\/p>\n
3.Aeroflot Russian International Airlines,
\n  Tolstoy House,
\n  15-17, Tolstoy Marg,
\n  New Delhi  110 001.\n<\/p>\n
4.The Regional Labour Commissioner-I
\n  Chennai,
\n  Appellate Authority under the
\n  Payment of Gratuity Act, 1972,
\n  Shastri Bhavan, Chennai  600 006.\n<\/p>\n
5.The Assistant Labour Commissioner,
\n  Central  I,
\n  Controlling Authority under the
\n  Payment of Gratuity Act, 1972
\n  Shastri Bhavan, Haddows Road,
\n  Chennai  600 006.\n<\/p>\n
\tPre-Delivery order in
\nW.P.No.16104 of 2000 and
\nW.P.No.7412 of 2004<\/p>\n
08.06.2010<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Unnikrishnan vs Deputy Commissioner Of Labour … on 8 June, 2010 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.16104 of 2000 and W.P.No.7412 of 2004 M.Unnikrishnan … Petitioner in W.P.No.16104 of 2000 The General Manager, Aeroflot Russian International Airlines, Ground Floor, Tolstoy House, Tolstoy […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-173259","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Unnikrishnan vs Deputy Commissioner Of Labour ... on 8 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-unnikrishnan-vs-deputy-commissioner-of-labour-on-8-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Unnikrishnan vs Deputy Commissioner Of Labour ... on 8 June, 2010 - 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