Heard both sides.
2. These two Writ Petitions have been filed against the same award in I.D.No.17 of 1996 dated 14.11.2002 passed by the Labour Court, Cuddalore. In W.P.No.24050 of 2003, the petitioner is the Management and in W.P.No.37842 of 2003, the petitioner is the Trade Union.
3. The dispute relate to one Nagarajan who was temporarily kept under suspension from 14.2.1970 to 30.1.1979 and the said period itself was treated as punishment by the Management of the Bank. The Union to which the said workman belonged viz. Thanjavur District General Workers' Union took up the cause of the said workman by raising an Industrial Disputes under
section 2(k) of Industrial Disputes Act, 1947 only during December 1990 i.e. after a period of eleven years.
4. It is also brought to the notice that subsequent to the suspension of the said Nagarajan, the Management of the Bank entered into a settlement under
section 18(1) of the Industrial Disputes Act. In the said settlement, the Management agreed to lift the suspension from 25.1.1979 and provide employment to the said Nagarajan without prejudice to the right of the Management to further proceed in the matter of disciplinary action initiated against the said workman. The Management was given the liberty to decide the quantum of punishment after concerned records were traced by them. It was also agreed in the said settlement by the concerned workman that he will not be entitled to any wages or allowances or subsistence allowance or any other allowance for the period from 15.2.1970 to 30.1.1979. After accepting the said settlement, after joining duty, subsequently the petitioner also got promotion as an Assistant Manager/Field Manager.
5. As against the punishment imposed by the Management, the workman moved this Court by W.P.No.9282 of 1982 to set aside the punishment order dated 8.4.1980. However, that writ petition was dismissed on 8.8.1990 directing the workman to seek appropriate relief under the provisions of the Industrial Disputes Act. It was thereafter the Dispute was raised by the Trade Union, which was finally referred for adjudication by the State Government vide G.O.No.998 Labour and Employment Department dated 7.10.1991. The issues that were referred for adjudication by the Labour Court was whether the punishment imposed on said Nagarajan treating the period of suspension from 14.12.1970 to 30.1.1979 as a punishment to be set aside, whether the workman is entitled to revision of wages and seniority for the said period and whether the action of the Management in reinstating the workman in the post of Clerk with lesser pay has to be set aside.
6. Initially the dispute was referred to the Additional Labour Court, Chennai, which took the Dispute as I.D.No.925 of 1991, subsequently on the formation of the Labour Court at Cuddalaore, the matter was transferred to the said Court and was re-numberred as I.D.No.478 of 1992. On notice from the Labour Court, the Trade Union filed a Claim Statement dated 26.12.1995, that too after three years and the Management of the Bank filed a counter statement dated 12.11.1997. Before the Labour Court, on behalf of the Union 13 documents were filed and they were marked as Exs. W1 to W13 and on the side the Management 14 documents were filed and they were marked as Exs. M1 to M14. The settlement reached between the workman Nagarajan and the Management was marked as Ex.M9.
7. Before the Labour Court, the Management raised two preliminary objections. The first objection was that the dispute is not maintainable as a collective dispute under section 2(k) of the I.D. Act and the second contention was that the workman Nagarajan cannot be treated as a workman under
section 2(s) of the I.D. Act. The Labour Court rejected both the contentions and held that the Dispute was maintainable. With reference to the merits of the disputes, the Labour Court held that the Labour Court was not specifically clothed with the power under
section 11-A of the Act to interfere with minor punishments and that it was not a case of dismissal of a workman. Therefore it refused to exercise the power under
section 11-A of the I.D. Act.
8. With reference to the suspension of wages it held that as per Ex.M10, the Management did not stipulate that he will not get any wages for the period of suspension and therefore treating the entire period of suspension as a punishment was without justification. It held that the workman is entitled to get wages for 100 months from 14.2.1970 to 29.6.1978 at the rate of Rs.250/- per month; arrears of wages of Rs.25,000/-; thereafter from 1.7.1978 to 26.1.1978 for a period of seven months at the rate of Rs.450/- per month and arrears of salary of Rs.3,150/-. With reference to payment of increments and revision of pay, the Labour Court refused to consider that question in favour of the Union. But on the question of equal pay for equal work, the Labour Court held that from the date of his promotion to the post of Assistant Manager, he is entitled to get wages on par with with others who were holding the said post. In that view of these findings, the Labour Court set aside the punishment order dated 8.4.1980 and granted Rs.25,000/- Plus Rs.3,150/- as arrears of wages. Further, from the date he had assumed the post of Assistant Manager, it was declared that he was entitled to pay on par with others.
9. Aggrieved by that Award, both the Union and Management have come before this Court with there two Writ Petitions. The first Writ Petition was admitted on 28.8.2003. Pending the Writ Petition this Court by an order dated 15.3.2004 held that the Management should deposit Rs.2 lakhs, within a period of six weeks and they must further deposit Rs.28.150/-within two weeks from the date of the order. The workman was entitled to get the said amount and he was also permitted to withdraw the interest accrued on the deposit of Rs.2 lakhs once in six months, pending disposal of the Writ Petition. Subsequently, on an Application filed by the Management in W.P.No.37842 of 2003, time was extended by a further period of four weeks for making the deposit. In other respects the Award was stayed by this Court.
10. It is now stated by Mr.R.Parthiban, learned counsel for the Petitioner Management that the amount had already been deposited and the workman is also getting interest from the said amount as directed by this Court. It was thereafter the Trade Union thought it fit to file the Cross Writ Petition in so far as the Labour had denied the wages and annual increments for ten years from 14.2.1970 to 29.6.1978. That Writ Petition was admitted on 24.12.2003. In view of the inter connectivity between the two Writ Petitions, both Writ Petitions were taken up together and disposed of by a common order.
11. At the outset, Mr.R.Parthiban, learned counsel for the Petitioner/management brought to notice of this Court the Judgment of the Supreme Court in Sanat Kumar Dwivedi vs. Dhar Jila Shakari Bhoomi Vikas Bank Maryadit and others reported in (2001) 9 SCC 402. In that Judgment, in paragraph Nos. 2 and 3 the Supreme Court had observed as follows:
"2. The admitted facts are that the appellant was reinstated in service by order dated 12.5.1978 with a condition that he will not get any back wages. Obviously, earlier on 8.3.1976 his services were terminated but by the aforesaid order, he was reinstated without back wages. He accepted such reinstatement without back wages by his joining report. Annexure R-4 at p.106 of the paper-book that he has joined his duty on 13.5.1978. By his own conduct, the appellant has accepted the correctness of the order of reinstatement without back wages. Under these circumstances, subsequent dispute raised by him regarding back wages was clearly not maintainable as held by this Court in State of Punjab v. Krishna Niwas. In view of the settled legal position, no interference is called for. The appeal is therefore dismissed.
3. It is clarified that this order will not be treated to be resulting in any break in service of the appellant. He will be deprived of only the back wages. The continuity of service and all other notional benefits on that basis will be available to him. It appears that when the order of reinstatement was granted, except depriving him of back wages, it necessarily meant that the continuity of service was implicit in the reinstatement. Even conditions 1 and 2 of the order of reinstatement clearly indicate that he is reinstated in service with continuity as pay scales and other benefits were also directed to be given."
12. On the strength of the Judgement, the learned counsel submitted that the Labour Court miserably failed to refer to Ex.M9, which is a settlement signed between the workman Nagarajan and the Management wherein the worker had given the undertaking to give up all claims for the period of suspension. It is only because of that undertaking he was restored to service by revoking the suspension. The learned counsel also brought to the notice of this Court that in identical circumstances between the same parties in W.P.No.3863 of 2005 dated 11.12.2009, this Court had set aside the Award in I.D.No.119 of 1998 dated 16.6.2003, wherein the Labour Court granted wages for the period of suspension notwithstanding the settlement.
12. In the light of the same, the Award passed by the Labour Court cannot be sustained and therefore W.P.No. 24050 of 2003 shall stand allowed.
13. Though Mr.Ajay Khosh, learned counsel submitted that that portion of the award namely grant of increments and wages cannot be sustained, it must be noted that in the present case the cause of action arose in 1980 and thereafter the workman though individually filed a Writ Petition before this Court and subsequently, he was directed to raise the dispute and such a dispute was raised by the Trade Union and the issues itself was referred to the Labour Court after twelve years and subsequently the matter was taken on file in the year 1996 and the Award was passed on 14.11.2002 and in the meanwhile the concerned workman has reached the age of superannuation and he is no longer in service, this Court is not inclined to grant that relief.
14. Considering the fact that by an interim order, the workman was paid a sum of Rs.28.150/- and he was also drawing semestral interest on the sum of Rs.2 lakhs deposited for a substantial period, this Court is not inclined to interfere with that portion of the Award namely denial of grant of increments and wages to the worker. Since, by way of an interim order granted by this Court the workman had already received a sum of Rs. Rs.28.150/- and he was also drawing semestral interest on Rs.2 lakhs deposited by the petitioner Management, the same will not recovered from the workman. Hence, W.P.No. 37842 of 2003 stands dismissed. In view of the Award being set aside, the Management is entitled to withdraw the amount lying in deposit with the Labour Court. No costs.
17.12.2009 rpa Index :Yes Internet:Yes K.CHANDRU J, rpa To
1. The Presiding Officer Labour Court, Cuddalore.
W.P.Nos.24050 and 37842 of 2003 17.12.2009