{"id":218113,"date":"2004-09-23T00:00:00","date_gmt":"2004-09-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-management-of-vs-the-deputy-commissioner-of-labour-on-23-september-2004"},"modified":"2018-03-10T01:16:53","modified_gmt":"2018-03-09T19:46:53","slug":"the-management-of-vs-the-deputy-commissioner-of-labour-on-23-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-management-of-vs-the-deputy-commissioner-of-labour-on-23-september-2004","title":{"rendered":"The Management Of vs The Deputy Commissioner Of Labour on 23 September, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
The Management Of vs The Deputy Commissioner Of Labour on 23 September, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 23\/09\/2004\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE P.K. MISRA\nAND\nTHE HON'BLE MR.JUSTICE A.K. RAJAN\n\nWRIT APPEAL NO.2094 OF 2004 AND WRIT APPEAL NO.2691 OF 2004\nand\nW.A.M.Ps.No.3848 and 4973 OF 2004\n\n\nThe Management of\nThe Lakshmi Vilas Bank Limited\nAdministrative Office\nSalem Road,\nKathaparai\nKARUR-639006                                    .. Appellant in                       both the writ\n                                                appeals\n\n-Vs-\n\n1. The Deputy Commissioner of Labour,\n   Tiruchirapalli\n\n2. G. Krishnamurthy                             .. Respondents in\n                                                   W.A.No.2094\/2004\n\n1. G. Krishnamoorthy\n\n2. The Deputy Commissioner of Labour,\n   Tiruchirapalli                               .. Respondents in\n                                                   W.A.No.2691\/2004\n\n                Writ Appeals filed Clause 15 of the Letters Patent against the\nOrder passed by the learned Single Judge of this Court in W.M.P.Nos.  5720 and\n5721 of 2004 in W.P.No.22557 of 2003 dated 21.4.2004.\n\n!For Appellant          :       Mr.A.L.  Somayaji\n                                Senior Counsel for\n                                Mr.V.  Karthick of\n                                M\/s T.S.  Gopalan\n\n^For respondents        :       Mr.N.G.R.  Prasad\n                        for M\/s Row & Reddy\n:COMMON JUDGMENT\n\n\nP.K.  MISRA,J.\n<\/pre>\n
                The facts and circumstances leading to the present appeals may
\nbe stated in brief.\n<\/p>\n
        The second respondent in the Writ Appeal No.2094\/2004 had  joined  the
\nappellant  bank  as  Sub-Staff  in the year 1973 and in course of time, he was
\npromoted and posted as Accountant at Srirangam Branch.    In  November,  1996,
\nshow  cause notice was issued to him and ultimately, domestic enquiry was held
\nby the bank and on the basis of  the  report  of  the  Enquiry  Officer  dated
\n10.1.2000  the  second respondent was discharged from service of the appellant
\nbank.  The departmental appeal, having been rejected,  the  second  respondent
\npreferred  appeal  under Sec.4 1(2) of the Tamil Nadu Shops and Establishments
\nAct (hereinafter  called  the  Act).    The  appellate  authority,  the  first
\nrespondent  in  Writ  Appeal No.2094 of 2004, allowed the appeal and set aside
\nthe order of discharge.  Such order passed by the  appellate  authority  under
\nthe Act  has  been  challenged  by  the Bank in W.P.No.22557\/2003.  The second
\nrespondent, during pendency of such writ  petition,  filed  two  miscellaneous
\npetitions.   In  W.P.M.P.No.5721\/2004,  the  prayer was for a direction to the
\nbank to reinstate the employee or in  the  alternative,  pay  the  last  drawn
\nsalary  of  Rs.16,650\/- from the date of filing of the writ petition, till the
\ndisposal of the  writ  petition  and  in  the  other  petition,i.e.,  W.P.M.P.
\nNo.5720\/2004,  the  prayer  was  for a direction to the Management to pay back
\nwages of Rs.5,82,750\/- from the date of discharge  i.e.,  21.8.2000  till  the
\ndate of  filing  of  the writ petition.  Both the miscellaneous petitions were
\ndisposed of on 21.4.20 04 by separate orders by the learned Single Judge after
\nhearing the counsel for  both  the  parties.    In  W.P.M.P.No.5720\/2004,  the
\nlearned  Single  Judge  issued a direction directing the Management to deposit
\nthe back wages due to the present second respondent within a  period  of  four
\nweeks,  permitting  the  individual concerned to withdraw the interest once in
\nthree months.  In W.P.M.P.No.5721\/2004, the learned Single Judge directed  the
\nManagement   to  pay  “Monthly  salary  to  the  petitioner  at  the  rate  of
\nRs.6,000\/from the date of filing of writ petition till disposal”.\n<\/p>\n
                2.   W.A.No.2691\/2004  is  directed  against  the   order   in
\nW.P.M.P.No.572  0\/2004 and the connected W.A.No.2094\/2004, is directed against
\nthe order in  W.P.M.P.No.5721\/2004.    Since  the  same  question  of  law  is
\ninvolved,  both  the  appeals were heard together and shall be governed by the
\npresent common Judgement.\n<\/p>\n
                3.  Mr.A.L.  Somayaji, the learned  Senior  Counsel  appearing
\nfor  the  Management,  submitted  that  the  writ  petition  was  filed by the
\nappellant against the order passed by the appellate authority under  Sec.41(2)
\nof  the  Tamil  Nadu  Shops and Establishments Act, hereinafter referred to as
\nthe Act, but the appellant has not prayed for any stay and since no stay has
\nbeen prayed nor any stay has  been  granted,  it  is  open  to  the  concerned
\nemployee  to  enforce  the  order  passed  by  the  appellate  authority under
\nSec.41(2) of the Act in the forum available and the present second  respondent
\ncannot  utilise the writ petition filed by the Management as a means to secure
\nthe benefit of the order passed by the appellate authority  under  Sec.41(2)of
\nthe Act.   He has further submitted that the provisions containing 17-B of the
\nIndustrial Disputes Act are not applicable to the proceedings under  the  Act.
\nTherefore,  in the absence of any specific provision, the quondam employee has
\nno right to get such order implemented in the writ petition filed on behalf of
\nthe Management.  He also submitted that since the appellant bank is a  private
\nlimited  bank,  even  a writ of Mandamus cannot be issued against such bank to
\npay the salary of an employee in service and the second respondent  cannot  be
\nin  a  higher  position merely because the writ petition has been filed by the
\nmanagement challenging the order of the authority under Section 41(2)  of  the
\nAct.\n<\/p>\n
                4.  Mr.N.G.R.    Prasad, the learned counsel appearing for the
\ncontesting respondent No.2, on the other hand submitted that the remedy  under
\nArticle 226 of the Constitution of India, being discretionary remedy, the High
\nCourt  is  empowered to issue any interim order with a view to secure the ends
\nof justice and even if there is no specific provision in the Act in line  with
\nSec.17-B  of  the  Industrial  Dispute Act, the High Court is not powerless to
\nissue any interim order  during  pendency  of  the  writ  petition.    He  has
\nsubmitted  that  merely  because  the  employee  has chosen not to file a stay
\npetition, that would not alter the position so far as the jurisdiction of  the
\nHigh  Court  is  concerned and the High Court, during the pendency of the writ
\npetition, can pass any interim order.  He has further submitted that  even  in
\ncases,  where  an  employee  is  placed under suspension, during pendency of a
\ndisciplinary proceeding,  such  person  is  entitled  to  receive  subsistence
\nallowance,  under  the  Rules and the position cannot be worse for an employee
\nwho has succeeded  before  the  appellate  authority  contemplated  under  the
\nStatute.   He  has further submitted that in the absence of any stay order, it
\nis the duty of the appellant to reinstate the person and the appellant  cannot
\ntake advantage of the fact that there is no specific provision for enforcement
\nof the order of the appellate authority.\n<\/p>\n
                5.   The  question  as  to  whether  the  order  passed by the
\nappellate authority under Sec.41(2) of the  Act  can  be  enforced  against  a
\nprivate  employer  by issuing a writ of Mandamus does not crop up for decision
\nin the present appeal, and therefore, we are not called upon  to  decide  such
\nmatter.\n<\/p>\n
                6.   In  the  present  case, admittedly, the writ petition has
\nbeen filed by the management questioning the order  passed  by  the  appellate
\nauthority under  the  Act.   The learned senior counsel contended that had any
\nstay petition have been filed by the  writ  petitioner,  it  would  have  been
\npossible for the High Court, while considering the question of stay, to impose
\nany reasonable  condition  as  a condition-precedent for the stay.  But in the
\nabsence of any specific prayer for stay by the  writ  petitioner,  the  second
\nrespondent  could not have prayed for passing any order to implement the order
\nof the appellate authority.\n<\/p>\n
                7.  We are unable to  appreciate  such  contention  raised  on
\nbehalf of the appellant.  If such a contention is accepted, it would amount to
\nthe conclusion that if the Court finds sufficient reason for staying the order
\npassed  by  the  appellate  au  reby  preventing  the successful employee from
\nrejoining the service any condition regarding payment of salary in part or  in
\nfull  could  have  been  imposed, but such employee would be in worse position
\nmerely because the employer in its technical wisdom does not seek for stay  of
\nthe order  of  the  appellate authority.  The very fact that the employer does
\nnot seek for stay of the order passed by the appellate authority, even  though
\nhe has challenged the order of the appellate authority, would rather mean that
\nthe  employer  has  no  objection for reinstatement of the person for the time
\nbeing during pendency of the writ petition.  The  employer  cannot  circumvent
\nthe  necessary  and  inevitable consequence of order of an appellate authority
\nunder Sec.41(2) of the Act, by not choosing to file a  stay  petition  in  the
\nwrit  petition  filed  by him, and yet contend that he would neither reinstate
\nthe person nor pay  any  salary  or  any  allowance  even  in  the  nature  of
\nsubsistence allowance.\n<\/p>\n
                8.  Law is well settled that a person who seeks equity must do
\nequity.   By  filing a writ petition, obviously, the equitable jurisdiction of
\nthe High Court is being invoked.  The petitioner cannot be  heard  to  contend
\nthat  even  though there is statutory order passed by the appellate authority,
\nsetting aside the order of termination, and even though there is no  order  of
\nstay, he will not obey such order, but will pursue the remedy of filing a writ
\npetition.    Such  an  attitude  obviously  indicates  the  intention  of  the
\npetitioner to over reach the process of law.\n<\/p>\n
                9.  The High Court, dealing with a matter Under Article 226 of
\nthe Constitution, admittedly exercises a Constitutional as well  as  equitable
\njurisdiction.   While  discharging  such  Constitutional obligations, the High
\nCourt is obliged to follow any statutory provision, but in the absence of  any
\nstatutory  prohibition,  the  High Court is not powerless to pass any order in
\nconsonance with principles of justice, equity and good conscience.  It  is  no
\ndoubt  true  that  there  is  no corresponding provision in the Act similar to
\nSec.17-B of the Industrial Disputes Act.   However,  in  the  absence  of  any
\nspecific  provision  and in the absence of any specific bar, the High Court is
\nnot powerless to pass any interim order in the interest of justice.\n<\/p>\n
                10.  In W.P.M.P.No.9963\/1984 arising out of  W.P.NO.4115\/1984,
\nvide  order dated 6th September, 1984 Justice Mohan, as his Lordship then was,
\nwhile dealing with almost a similar application in a writ  petition  filed  by
\nthe  Management against the order under Sec.41(2) of the Act,in the absence of
\nany stay petition by the Management, observed as follows:\n<\/p>\n
        ” .  .  .  Though the petition for direction has been  taken  out  (by
\nthe respondent) in the writ petition filed by the petitioner, I am of the view
\nthat  having  regard  to the expanded jurisdiction of this Court under Article
\n226 of the Constitution of India, it is not necessary for  the  petitioner  in
\nthis petition (V.K.   Ramamoorthy) to go by way of execution.  This is for two
\nreasons.(1) The execution takes a long time.  (2) Even after execution,  there
\nare   further  proceedings  by  reason  of  which  all  the  attempts  to  get
\nreinstatement get  frustrated.    Therefore,  it  is  not  open  to  the  writ
\npetitioner  to say that is the absence of be having obtained any stay, it will
\nbe open to the person concerned to execute the order”.\n<\/p>\n
        On the aforesaid basis, in the said case, the employer was directed to
\nreinstate the employee or even otherwise to pay the salary to the employee and
\nthere was also direction for payment of back wages.\n<\/p>\n
                11.  The learned counsel appearing for the  second  respondent
\nhas  invited  our  attention  to various similar orders passed in many matters
\nsuch as in the order dated 17.4.1996 in W.P.M.P.Nos.1053, 3807 to  3809  \/1996
\nin  W.P.No.632\/1996 reported in 2001(4)LLN 997 (AEROFLOT RUSSIAN INTERNATIONAL
\nAIRLINES v.  DEPUTY COMMISSION OF LABOUR (APPEALS) MADRAS  AND  ANOTHER),  and<\/a>
\norder dated 16.9.1997 in W.P.M.P.NOs.  731, 18804 and 18805\/1997.  He has also
\ninvited attention  to  the order dated 12 .11.2003 in W.P.M.P.No.  31801\/2003,
\nwhich was confirmed with some modification by the Division Bench  by  Judgment
\ndated 17.3.2004 in W.A.  No.166\/2004.\n<\/p>\n
                12.   A  Division  Bench  of Gujarat High Court in 1981 Labour
\nIndustrial Cases 1497, (Bipinchandra  vs  Navin  Flusrine  Industries),  while
\nconsidering somewhat similar question, observed as follows:\n<\/p>\n
“….   Be that as it may, we do not agree that the petitioner is not entitled
\nto approach this Court by way of a petition  of  this  nature.    Indeed  this
\ncourse can more often be adopted with advantage when the demands of justice so
\nenjoin so that parties are not driven from pillar to post and obliged to incur
\ntime cost and money cost which neither they nor the society can afford”.\n<\/p>\n
                13.   That  the  High  Court has inherent power apart from the
\nprovisions contained  in  the  Industrial  Disputes  Act,  seems  to  be  well
\nrecognised as evident from the decisions of the Supreme Court.\n<\/p>\n
                14.    In  1986  (2)  SCC  614  (Bharat  Singh  vs  New  Delhi
\ntuberculosis Centre),while considering the question regarding applicability of
\nnewly amended provisions of Section 17-B of the  Industrial  Disputes  Act  in
\nrelation  to disputes, which had arisen before the said date of amendment, the
\nSupreme Court observed as follows:\n<\/p>\n
        “8.  It is common knowledge that even before Section 17-B was enacted,
\ncourts were, in their discretion, awarding wages to  workmen  when  they  felt
\nsuch  a  direction  was  necessary  but  that  was only a discretionary remedy
\ndepending upon court to court.  Instances are legion where workmen  have  been
\ndragged by the employers in endless litigation with preliminary objections and
\nother technical  pleas  to  tire  them out.  A fight between a workman and his
\nemployer is oftentimes an unequal fight.  The legislature was thus aware  that
\nbecause  of  the long pendency of disputes in tribunals and courts, on account
\nof the dilatory tactics adopted by the employer, workmen had suffered.  It  is
\nagainst this background that the introduction of this section has to be viewed
\nand its effects considered.\n<\/p>\n
                                (Emphasis added)<\/p>\n
                15.  In  (2001)5  SCC  169,  (DENA  BANK  Vs.  GHANSHYAM), the
\nSupreme Court observed thus:\n<\/p>\n
        “10.  It may be noticed that Section 17-B of the Act does not preclude
\nthe High Courts or this Court under Articles 226 and 136 of  the  Constitution
\nrespectively  from  passing appropriate interlocutory orders, having regard to
\nthe facts and circumstances of the case,in the interests of justice.  The High
\nCourt or this Court may, while entertaining the employer’s  challenge  to  the
\naward,  in  its  discretion,  in  appropriate cases, stay the operation of the
\naward in its entirety or in  regard  to  back  wages  only  or  in  regard  to
\nreinstatement  without interfering with payment of back wages or on payment of
\nwages in future irrespective of the result of the proceedings before  it  etc.
\nand\/or impose such conditions as to be payment of the salary as on the date of
\nthe  order or a part of the back wages and its withdrawal by the workman as it
\nmay deem fit in the interests of justice.  The Court  may,  depending  on  the
\nfacts of a case, direct payment of full wages last drawn under Section 17-B of
\nthe Act  only  by the employer to the workman.  The question whether a workman
\nis entitled to the full wages last drawn or full  salary  which  he  would  be
\nentitled  to  in the event of reinstatement while the award is under challenge
\nin the High Court or this Court depends upon the terms of the order passed  by
\nthe  Court, which has to be determined on interpretation of the order granting
\nrelief.”\n<\/p>\n
                                        (Emphasis added)<\/p>\n
                16.  In  1986(3)  SCC  131,  FAKIRBHAI  FULABHAI  SOLANKI  Vs.
\nPRESIDING  OFFICER  AND  ANOTHER  while considering the question of payment of
\nsubsistence allowance during pendency of dispute between  the  Management  and
\nthe  applicant,  under  Section 33(1) and 33(3) of the Industrial Dispute Act,
\nthe Supreme Court observed as follows:\n<\/p>\n
        “.  .  .  An unscrupulous management may by all possible  means  delay
\nthe  proceedings so that the workman may be driven to accept its terms instead
\nof defending himself in the proceedings under Section 33(3) of the  Act.    To
\nexpect  an  ordinary  workman to wait for such a long time in these days is to
\nexpect something which is very unusual to happen.  Denial  of  payment  of  at
\nleast  a  small  amount  by way of subsistence allowance would amount to gross
\nunfairness”.\n<\/p>\n
                17.  The underlying principles in the above cases relating  to
\nvarious   contingencies   under  the  Industrial  Disputes  Act,  support  the
\ncontention of the learned counsel for the respondent that the Courts  are  not
\npowerless to pass appropriate interim orders in the interest of justice.\n<\/p>\n
                18.   In  the  background  of  the  aforesaid  principle,  the
\ncontention of the learned senior counsel for the  appellant  that  the  second
\nrespondent  has no right to claim any amount in the writ petition filed by the
\nManagement and he can enforce his right by approaching the Civil Court or even
\nby initiating criminal proceedings as recognised under Sec.45 of  Act,  cannot
\nbe countenanced.   To accept such a contention would encourage multiplicity of
\nproceedings.  This is against  the  well  recognised  principle  that,  Courts
\nshould  always  try  to  pass  orders  with  a  view  to avoid multiplicity of
\nproceedings and not encourage unnecessary litigation.\n<\/p>\n
                19.  In view of the above, we have no doubt that in  the  writ
\npetition filed by the Management challenging the orders under Sec.41(2) of the
\nAct,  in  the  absence of any specific provision containing the Act similar to
\n17-B of the Industrial Dispute Act, the High Court is not powerless  to  issue
\nappropriate  interim direction regarding reinstatement or payment of salary or
\npayment of the part of  the  salary  obviously  depending  on  the  facts  and
\ncircumstances  of  the  particular case and such directions can be issued even
\nthough the Management has not sought for stay of the order  of  the  appellate
\nauthority.  In the above view of the matter, the main contention raised by the
\nappellant is bound to fall.\n<\/p>\n
                20.   The learned senior counsel has also submitted that there
\nwas no justification to direct the bank to deposit back wages  and  to  permit
\nthe  second  respondent to withdraw quarterly interest and necessary direction
\nregarding back wages can always be complied with after disposal  of  the  writ
\npetition.   It  is  to be remembered that the present writ appeals are against
\nthe interim direction issued by the learned Single Judge and such order passed
\nby the learned Single Judge is essentially discretionary order and  ordinarily
\nthe  appellate Court while deciding such appeal, should not interfere with the
\ndiscretionary order passed by the learned Single Judge unless  such  order  is
\nshown to  be  unsupportable  in law or unjust.  (see AIR 1974 SC 1 719 (SHANTI
\nKUMAR R.  CHANJI v.  THE HOUSE INSURANCE CO.  OF NEW YORK).<\/a>\n<\/p>\n
                21.  Keeping in view the fact that the second  respondent  was
\nreceiving  a  salary  of Rs.16,500\/- at the time of his dismissal, the present
\ndirection by the learned Single Judge directing the payment of Rs.6 ,000\/- per
\nmonth and further directing the Management to deposit the back wages  so  that
\nonly the quarterly interest would be withdrawn by the second respondent cannot
\nbe characterised as illegal or unjust or arbitrary.  In appeal, in the absence
\nof  any  compelling  reasons,  we  are  not inclined to take a different view.
\nTherefore, both the writ appeals are bound to be dismissed.  The order  should
\nbe complied with within a period of four weeks.  Keeping in view the facts and
\ncircumstances of the case, we further direct that the writ petition itself may
\nbe  listed  for  hearing  before  the  appropriate  Court  at  an  early date,
\npreferably within a period of six  months.    No  costs.    Consequently,  the
\nconnected W.A.M.Ps are closed.\n<\/p>\n
sr\/dpk
\nIndex:yes
\nWebsite:yes<\/p>\n
To
\nThe Deputy Commissioner of Labour,
\nTiruchirapalli<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Management Of vs The Deputy Commissioner Of Labour on 23 September, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23\/09\/2004 CORAM THE HON’BLE MR.JUSTICE P.K. MISRA AND THE HON’BLE MR.JUSTICE A.K. RAJAN WRIT APPEAL NO.2094 OF 2004 AND WRIT APPEAL NO.2691 OF 2004 and W.A.M.Ps.No.3848 and 4973 OF 2004 […]<\/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-218113","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Management Of vs The Deputy Commissioner Of Labour on 23 September, 2004 - 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\/the-management-of-vs-the-deputy-commissioner-of-labour-on-23-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Management Of vs The Deputy Commissioner Of Labour on 23 September, 2004 - 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