PRAYER IN W.P.NOS.21303 TO 21305 OF 2005: Writ Petitions filed under Article 226 of the Constitution of India by with a prayer to issue a Writ of Certiorarified Mandamus, to call for the records from the file of the 2nd respondent made in C.P.No.422 of 2004, C.P.No.959 of 2003 and C.P.No.202 of 2003 respectively, dated 08.02.2005 and quash the same and further direct the 1st respondent to compute the salary and other benefits payable to the petitioner keeping his monthly salary of Rs.13,760/-.
For Petitioner : Mr.K.M.Ramesh For Respondent 1: Mr.P.Narayanamoorthy PRAYER IN W.P.NO.159 OF 2011: Writ Petition filed under
Article 226 of the Constitution of India by with a prayer to issue a Writ of Certiorari by calling for the records from the files of the 1st respondent in C.P.No.202 of 2007 and quash its impugned order made therein dated 29.03.2010 insofar as the 1st respondent has negatived the claim of the petitioner for backwages and other legal dues and dismissed the Claim Petition.
For Petitioner : Mr.K.M.Ramesh For Respondent 2: Mr.P.Narayanamoorthy COMMON ORDER The brief facts that are required for adjudicating these four writ petitions are as under:
K.N.Murugesan was employed as Clerk in the Coimbatore District Cooperative Milk Producers Union Limited (hereinafter referred to as the Management) since 1968. It was alleged by him that he was illegally terminated from service by the Management without conducting any enquiry on 15.04.1974. K.N.Murugesan raised an industrial dispute and on the failure of the conciliation proceedings, the matter was referred to the Labour Court, Coimbatore in I.D.No.149 of 1977. The proceedings before the Labour Court was challenged by the Management before this Court and after protracted litigations, ultimately, the Labour Court passed an award in I.D.No.149 of 1977 on 12.10.1988 and the operative portion of which is as under:-
In the result, an award is passed directing the respondent to pay a sum of Rs.55860/- as compensation to Thiru E.R.Chokkalingam, the claimant in I.D.No.113/77 and to reinstate Thiru K.N.Murugesan, the claimant in I.D.No.149/77 with continuity of service and backwages. The claimants are also entitled to costs of Rs.1,000/- each.
2. Though a common award has been passed for the disputes raised by one E.R.Chockkalingam and K.N.Murugesan, in these writ petitions, we are concerned only with the case of K.N.Murugesan.
3. Challenging the award, the Management filed W.P.No.3059 of 1989 before this Court, which was dismissed on 30.06.1998. The Management filed W.A.No.2287 of 2000 before this Court, challenging the dismissal of the writ petition viz., W.P.No.3059 of 1989. During the pendency of the writ appeal, the Management was directed by this Court to comply with the provisions of
Section 17(B) of the Industrial Disputes Act, 1947 and to pay K.N.Murugesan the last drawn wages every month. Admittedly, K.N.Murugesan was drawing Rs.223.70 as wages at the time when he was terminated in the year 1974. The Management continued to pay the last drawn wages @ Rs.223.70 per month to K.N.Murugesan.
4. After the dismissal of W.P.No.3059 of 1989 and during the pendency of writ appeal in W.A.No.2287 of 2000, K.N.Murugesan filed four claim petitions under
Section 33(C)(2) of the Industrial Disputes Act, 1947, which are as follows:-
i) C.P.No.202 of 2003 - for the period from 21.11.1999 to 31.03.2003 ;
ii) C.P.No.498 of 1999 - for the period from 15.04.1974 to 20.11.1999 ;
iii) C.P.No.959 of 2003 - for the period from 01.04.2003 to 31.10.2003 ; and
iv) C.P.No.422 of 2004 - For the period from 01.11.2003 upto 11.04.2004, the date on which he would have attained superannuation had he been reinstated in service.
5. In C.P.No.498 of 1999, the Management entered appearance and filed a calculation memo, which has been marked as Ex.W3, in which, it is stated that K.N.Murugesan will be entitled to backwages of Rs.6,27,690.62 from 15.04.1974 to December 1999. In the calculation memo, it is clearly stated as follows:
This calculation memo is filed without prejudice to this respondent's contentions in all the prior proceedings and to their W.A.No.2286/2000.
6. Challenging the order passed by the Labour Court in C.P.No.498 of 1999, dated 24.03.2003, the Management filed W.P.No.18810 of 2003.
7. During the pendency of the writ appeal, the Labour Court conducted enquiry in C.P.Nos.202 of 2003, 959 of 2003 and 422 of 2004 and passed a common order dated 08.02.2005 holding that since the challenge to the award passed in I.D.No.149 of 1977 is pending in the High Court, K.N.Murugesan will be entitled to only backwages calculated in terms of
Section 17(B) of the Industrial Disputes Act, 1947, at the rate of Rs.223.70 per month.
8. Aggrieved by the common order dated 08.02.2005 passed by the Labour Court, in the aforesaid three Claim Petitions, K.N.Murugesan has filed the present three writ petitions namely against C.P.Nos.202 of 2003 - W.P.No.21305 of 2005; C.P.No.959 of 2003 - W.P.No.21304 of 2005; C.P.No.422 of 2004 - W.P.No.21303 of 2005.
9. The writ appeal in W.A.No.2287 of 2000 that was filed by the Management was ultimately dismissed by a Division Bench of this Court on 13.12.2006 and the award dated 12.10.1988 passed by the Labour Court in I.D.No.149 of 1977 was ultimately confirmed by the Division Bench of this Court.
10. It is represented by Mr.K.M.Ramesh, learned counsel appearing on behalf of K.N.Murugesan that the Special Leave Petition filed by the Management before the Supreme Court was also dismissed which is refuted by Mr.P.Narayanamoorthy, learned counsel appearing on behalf of the Management.
11. Be that as it may, that with the dismissal of W.A.No.2287 of 2000 filed by the Management, the award in I.D.No.149 of 1977 has attained finality and therefore, the Management should have to pay K.N.Murugesan his backwages till the date of his retirement i.e., till 11.04.2004.
12. In the light of the dismissal of W.A.No.2287 of 2000, this Court dismissed W.P.No.18810 of 2003 filed by the Management on 31.01.2017.
13. After the dismissal of W.A.No.2287 of 2000, K.N.Murugesan filed another claim petition in C.P.No.202 of 2007 claiming backwages for the period from 21.11.1999 to 11.04.2004 on the basis of revised pay scale. It is the contention of K.N.Murugesan that his earlier claim petitions in C.P.Nos.202 of 2003, 959 of 2003 and 422 of 2004 were ordered by the Labour Court for lesser amount on the ground that the writ appeal was pending and now, the dismissal of the writ appeal gave him a fresh cause of action to file a fresh claim petition.
14. Mr.P.Narayanamoorthy, learned counsel appearing for the Management submitted that K.N.Murugesan will not be entitled to backwages as claimed by him and that he would be entitled to claim backwages at the last drawn wages only, namely, at the rate of Rs.223.70 per month. He also submitted that K.N.Murugesan had not pleaded that he was not gainfully employed during the relevant period and in the absence of such plea, he would not be entitled to backwages as a matter of fact.
15. This Court gave its anxious consideration to the rival contentions.
16. The fact remains that the award in I.D.No.149 of 1977 has reached finality and the award in no uncertain term says that K.N.Murugesan would be entitled to reinstatement with continuity of service and backwages. This means that K.N.Murugesan's wages cannot be fixed at Rs.223.70 per month, being the wages he was drawing in the year 1974 when he was terminated. He would be entitled to the annual increments and other periodical pay increase had he continued in the service. He is not seeking backwages for notional promotion. Had he continued to work as a Clerk, there would have been increase in his salary periodically, which he is claiming in the light of the award passed in I.D.No.149 of 1977.
17. In the considered opinion of this Court, this claim of K.N.Murugesan cannot be said to be illegal. It will be against all canons of equity and justice to hold that K.N.Murugesan should have to be paid backwages @ Rs.223.70 per month from 1974 to 2004. That apart, in C.P.No.498 of 1999, the Management had taken a very clear stand by filing a calculation memo showing periodical increase in the pay of K.N.Murugesan from 1974 to 1999. Strangely, in the subsequent claim petitions filed by K.N.Murugesan, the Management had adopted a very hard stand by contending that he will not be entitled to any pay increase. In C.P.No.202 of 2007 that was filed by K.N.Murugesan after the dismissal of W.A.No.2237 of 2000, the Management once again took the same stand that he will not be entitled to any revision in backwages and that he will be entitled to backwages @ Rs.223.70 per month. The Labour Court has accepted this plea and dismissed C.P.No.202 of 2007 on 29.03.2010, challenging which, K.N.Murugesan has filed W.P.No.159 of 2011.
18. Mr.K.M.Ramesh, learned counsel appearing on behalf of K.N.Murugesan placed strong reliance on the judgment of the Hon'ble Supreme Court in GAMMON INDIA LIMITED VS. NIRANJAN DASS [1984 (1) LLN 90 (SC)] wherein the Supreme Court has held as follows:
4.In the course of hearing of this appeal, it was stated that the respondent has reached the age of superannuation therefore physical reinstatement in service is not possible. Appellant will have to establish that fact but in the event, the appellant shows that under a valid rule, respondent has reached the stage of superannuation and therefore physical reinstatement is not possible, it is hereby declared that the respondent shall continue to be in service uninterruptedly from the date of the attempted termination of service till the date of superannuation. Respondent would be entitled to all back wages including the benefit of revised wages or salary if during the period there is revision of pay-scales with yearly increment, revised dearness allowance or variable dearness allowance and all terminal benefits if he has reached the age of superannuation such as Provident Fund, Gratuity etc. Back wages should be calculated as if the respondent continued in service uninterrupted. He is also entitled to leave encashment and bonus if other workmen in the same category were paid the same. It appears that the respondent has been unlawfully kept out of service, therefore it is but just that the appellant-company shall pay all the arrears as calculated according to the directions herein given with 12% interest from the date the amount became due and payable till realisation. Appellant shall also pay costs to the respondent quantified at Rs. 5,000. The appellant is directed to pay the amount as herein directed to be paid within 3 months from today.
19. Per contra, Mr.P.Narayanamoorthy learned counsel for the Management placed reliance upon the judgment of the Supreme Court in DEEPALI GUNDU SURWASE VS. KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA (D.Ed.) AND OTHERS [CDJ 2013 SC 765] wherein the Supreme Court has held as follows:
33. The propositions which can be culled out from the aforementioned judgments are:
i) ....
ii) ....
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
20. Admittedly, in this case, K.N.Murugesan has not even pleaded in the claim petition that he was not gainfully employed and therefore, there was no cause of action for the Management to rebut the evidence. However, the Labour Court had not dismissed these claim petitions on that ground, but it has dismissed the claim petitions on the ground that he will not be entitled to periodical increase in pay, which plea is negatived by this Court.
21. In the result, all the writ petitions are allowed and the orders passed by the Labour Court are hereby set aside. The matter is remanded to the Labour Court for disposal on merits in accordance with law, within a period of three months from the date of receipt of a copy of this order. The Management is directed to file a calculation memo before the Labour Court showing the salary that would have been paid to K.N.Murugesan as Clerk from 21.11.1999 to 11.04.2004 had he continued in service. It is open to K.N.Murugesan to show that he was not gainfully employed during that period and the Management can also adduce rebuttal evidence to disprove the same.
22. In W.P.No.18810 of 2003, this Court had directed the Management to deposit Rs.5,82,277/- before the Labour Court with a further direction to the Labour Court to invest the amount in a Nationalised Bank and to pay interest to K.N.Murugesan.
23. Mr.P.Narayanamoorthy, learned counsel submitted that the Management had deposited the said amount and K.N.Murugesan is being paid interest which accrued periodically, which fact Mr.K.M.Ramesh also conceded.
24. With the dismissal of W.P.No.18810 of 2003, K.N.Murugesan will be entitled to withdraw the deposited amount without security. The said amount represents the backwages upto 20.11.1999. From 21.11.1999 to 11.04.2004, the computation shall be made based on the memo filed by the Management as directed by this Court above.
25. In the result, all the writ petitions are allowed and the matter is remanded to the Labour Court, Coimbatore as indicated above. No costs.
31.01.2017 (2/2) Index : Yes/No Internet : Yes/No TK Note : The Registry is directed to immediately despatch the back records, if received, to the Labour Court, Coimbatore.
P.N.PRAKASH, J.
TK To
1.The Management of Coimbatore District Co-operative Milk Producers Union Ltd.
Pachapalayam, Coimbatore 641 010.
2.The Presiding Officer Labour Court, Coimbatore.
W.P.NOS.21303 TO 20305 OF 2005 AND W.P.NO.159 OF 2011 31.01.2017 (2/2)