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Judgment
Honorable Mr. Justice K. Chandru
In all these four writ petitions, the petitioner is the management of Mahendravadi Primary Agricultural Cooperative Bank Limited represented by its Special Officer.
The first writ petition challenges an order passed by the Labor Court, Tirunelveli, the third respondent in C.P.No. 8 of 2007, dated 8.3.2008. By the said order, the Labor Court had computed a sum of Rs. 1,00,130/-, which was the salary due and payable from April, 2004 to January, 2007. The rate of wages was calculated at Rs. 2,945/ per month. The said claim petition came to be filed pursuant to an ex parte Award made in I.D.No. 71 of 2001, dated 20.11.2003. The petitioner even before filing C.P.No. 8 of 2007, had earlier filed three other claim petitions and one payment of Wages application. The first one was C.P.No. 10 of 2001, dated 8.5.2002, C.P.No. 31 of 2001 was dated 8.5.2002 and C.P.No. 32 of 2004 was dated 29.3.2006. His payment of wages application in P.W.No. 18 of 2000 was dated 22.10.2001. In the writ petition, notice of motion was ordered. Pending the notice of motion, no interim order was granted by this court. Curiously, the fourth respondent S. Durairaj (hereinafter referred to as the Workman) had impleaded in the claim petition the Joint Registrar of Cooperative Societies, Tirunelveli and the Deputy Registrar of Cooperative Societies, Tirunelveli as party respondents. Therefore, they were also shown as party respondents in the writ petition. On notice being issued, the first respondent Deputy Registrar of Cooperative Societies has filed a counter affidavit, dated 28.01.2009.
In the counter affidavit, it was stated that the contesting respondent workman was working as a Salesman. In view of the direction issued by the District Collector, the fair price shop run by the petitioner society was directed to be handed over to other cooperative stores at Sankarankoil. The petitioner society was running in financial loss. The fourth respondent had never rendered any service so as to claim any wages. It was also stated that the elected Board of Directors of the society was superseded and a Special Officer was appointed.
In any event, the contentions raised between the parties before the Labor Court were as follows: W.P.(MD)No. 8456 of 2008 :
4.1.The workman in his claim petition in C.P.No. 8 of 2007 had admitted that the fair price shop was handed over to the Sankarankoil Cooperative Stores. What was entrusted was only the public distribution system and the future of the petitioner was not set out in the order. Therefore, inspite of reporting to work, he was not given any work. When he had raised a dispute in I.D.No. 71 of 2001, an ex-parte Award was made on 20.11.2003. As per the ex-parte Award, he was eligible to get backwages, service continuity and other attendant benefits. Therefore, for the period of non employment, i.e., from 12.7.2000, he was eligible for payment of wages. In his earlier claim petition in C.P.No. 10 of 2001, his wages was fixed at Rs. 2666/-by the Labor Court. Therefore, when he claimed salary in C.P.No. 8 of 2007, he had claimed salary at the rate of Rs. 2945/-per month. Thus, he claimed Rs. 1,00,130/-as wages payable upto January, 2007.
4.2.On the said C.P., when notice was ordered, the petitioner society had filed a counter statement stating that the contesting respondent workman had committed irregularities. An audit was made for the society from 1.10.1987 to 12.7.2000 and that several irregularities were found. The workman had committed financial loss of Rs. 92,195/-. In order to avoid any future action, he had stopped coming to work though he was asked to come. Therefore, he was not eligible for any wages. But, however, on the question of ex-parte Award, it was stated that the then Management was careless which gave rise to the ex-parte Award. The management had filed a writ petition being W.P.No. 50129 of 2006 and its result is not known. Therefore, when the petitioner filed C.P.No. 34 of 2004, the management had already paid Rs. 93,397/-upto March, 2004. Despite the workman was asked to come to work by a telegram sent on 19.3.2007, he did not come to work. He was also directed to make good the loss caused to the society. Despite notice, he has not paid the amount.
4.3. Before the Labor Court, on behalf of the workman, he examined himself as P.W.1 and on the side of the society one Ganesan was examined as R.W.1. The workman had filed six documents which were marked as Exs.P.1 to P.6. On the side of the management, five documents were filed and they were marked as Exs.R.1 to R.5. Ex.R.5 is the copy of the telegram. It also transpires that they have also produced a receipt showing that the earlier amount of Rs. 93,397/-was paid by way of two cheques. The receipt produced by the workman was also enclosed at page 17 of the typed set and there is no dispute on the same.
4.4. The Labor Court on the basis of these materials found that Ex.P.6 was the letter sent by the registered post, by which the workman had expressed his willingness to report for duty. But, with reference to Ex.R.5 telegram, the Labor Court had recorded that it was not known to the court whether the workman had reported for duty pursuant to the telegram. Therefore, the Labor Court in paragraph 6 of the order had recorded that there was no clinching evidence from the management as to what had happened to the writ petition filed by them in the High Court. In the absence of the management proving that they were prepared to comply with the Award passed in I.D.No. 71 of 2001 and that the management had requested him to join duty prior to 19.3.2007, there was no other way except to accept the claim of the workman. Since the amount in the earlier C.P.No. 32 of 2004 was computed, once again the Labor Court on the basis of the earlier computation had computed for the balance period from April, 2004 to January, 2007. But the labor court did not go for further evidence with reference to the status of the parties. If C.P.No. 32 of 2004 was rendered pursuant to the Award and amounts were paid and if the stand of the management was that they had already asked the workman to come to work and he did not come to work. There was a factual dispute with reference to the workman attending or not attending work. As against that order, W.P.(MD)No. 8456 of 2008 was filed. In that writ petition, notice of motion was ordered on 23.09.2008. No interim order was granted.
4.5. In that case, the workman himself in his claim statement had stated that he was employed in the fair price shop and there was no further employment in it. It had been handed over to a cooperative society under the orders of the District Collector. Therefore, the fact was that the petitioner was employed in the fair price shop and subsequently, the activities of the fair price shop was entrusted to an another society and that there can be no scope of employment for the workman. Notwithstanding these facts, the workman had technically contended that it was a case of retrenchment and that he was eligible for retrenchment compensation. On account of non payment of retrenchment compensation, he is entitled for salary as if he had continued in service and also for further increments. This stand of the workman is completely unreasonable. In fact, in the first claim petition, the petitioner had claimed monthly salary of Rs. 1521/-as evidenced in Ex.P.5 which is ordered in the Payment of Wages application filed before the Deputy Commissioner of Labor in P.W.No. 18 of 2000. It is not clear when there was no work for the workman and it has been specifically admitted that the fair price shop was no longer attached to the petitioner society, the workman went on filing successive claim petitions claiming alleged arrears of salary and that too on the basis of enhanced rate of wages. The labor court merely went by the previous orders passed by it in the earlier claim petitions and did not render any specific finding that even after Ex.R.5 whether the workman can claim wages without reporting to work. W.P.(MD)No. 10460 of 2009 :
Having succeeded in the order, dated 8.3.2008 in C.P.No. 8 of 2007, the workman filed another claim petition in C.P.No. 5 of 2008. In that claim petition, he had claimed wages for the period from February, 2007 to January, 2008. Even there, the workman had claimed wages from February, 2007 to September, 2007 for eight months at the rate of Rs. 2945/-, from October, 2007 to January, 2008 at the rate of Rs. 5025/-and in total a sum of Rs. 43,660/-. Even in the claim petition, the petitioner''s claim was doubled on the rate of wages based upon G.O.No. 289, Cooperation, Food and Consumer Protection Department, dated 28.9.2007.
5.1. In C.P.No. 5 of 2008, when notice was ordered, a counter statement was filed by the petitioner on 28.7.2009. In the counter statement, the management had stated not only a telegram was sent (as evidenced in the earlier order on 19.3.2007), but also on 7.7.2007, an another letter was sent to the workman asking him to report for duty within one week, failing which he was asked to write a letter to the contrary. In the meanwhile, since the workman had taken recourse to recovery of amount through revenue recovery proceedings, the management had also informed that they were willing to pay a further amount of Rs. 1,26,494/-pursuant to the order issued in W.P.No. 20243 of 2008 filed by the workman to enforce the revenue recovery order.
5.2. The Labor Court in C.P.No. 5 of 2008 once again had examined the workman as P.W.1 and one S. P. Subramanian as R.W.1. Unfortunately, the management did not even file documents asking the workman to report for work which were filed in the earlier C.P. Though they were represented by the counsel, for reasons best known the counsel did not produce any such document and it is now sought to be introduced before this court. The labor court did not go into the rival contentions and merely went by its previous order. It also did not go into the other issues as to the question that if the workman was retrenched and directed to be reinstated by an Award only on the ground of violation of Section 25-F and if the workman was not restored can continue to maintain successive claim petitions without reporting to work. Whether he was entitled to subsequent revision of wages when there was no post of salesman available in the petitioner society. Without answering these issues, the Labor court had computed a sum of Rs. 43,600/-as claimed by the workman. This became the subject mater of W.P.(MD)No. 10460 of 2009. That writ petition was admitted on 15.10.2009. Pending the writ petition, no interim order was passed by this court. W.P.(MD)No. 7322 of 2010 :
6.1. Thereafter, the workman had filed C.P.No. 41 of 2008 claiming salary for a period from February, 2008 to October, 2008 at the rate of Rs. 5755/-amounting to a sum of Rs. 51,745/-. That claim petition was taken on file and notice was ordered to the management. The management filed a counter statement contending that the claim petition u/s 33-C(2) was not maintainable. The workman as long as was not reporting for work, cannot be paid salary. It should be treated as the case for ''no work no pay''. The workman was directed to report for duty from 10.11.2008 and he was taken into service. Once again the Labor Court in C.P.No. 41 of 2008 had recorded evidence of the workman as P.W.1 and one Ganesan as R.W.1. The workman had only placed the Award in I.D.No. 71 of 2001 as Ex.P.1 and a copy of the Government''s order in G.O.No. 75 as Ex.P.2. The management had filed four exhibits and they were marked as Exs.R.1 to R.4. Ex.R.1 was the letter dated 8.3.2007. The copy of the telegram was marked as Ex.R.2. Ex.R.3 was the acknowledgement due receipt from the workman and the letter sent by the Special Officer to the workman was marked as Ex.R.4.
6.2. The Labor court simply went by Ex.P.2 which is the revised wages notified by the Government in G.O.No. 75 and payable to employees under the Tamil Nadu Shops and Establishments Act, 1947. It had calculated the wages at the rate of Rs. 5755/-. But no finding was rendered as to how the workman was eligible to get the salary when he had not reported for work. The labor court also failed to take note of the fact that the management had retrenched the workman after his restoration and there was no employment for the workman. The labor court curiously recorded that since the claim petition was pending before the labor court, prior approval should have been obtained for retrenching the workman pending the C.P. Therefore, the management ought not to have retrenched him from service.
6.3. As against the order passed in C.P.No. 41 of 2008, dated 29.1.2010, W.P.(MD)No. 7322 of 2010 was filed before this court. It was admitted on 9.6.2010 and was directed to be posted along with other writ petitions. Pending the writ petition, this court had granted an interim stay on the condition that the management should deposit 50% of the claim amount. It is now agreed that an amount of Rs. 51,745/-has been deposited pursuant to the interim order. W.P.(MD)No. 10005 of 2010 :
7.1. Thereafter, the workman having succeeded in the continuous claim petitions filed yet another claim statement in C.P.No. 23 of 2010. In that claim petition, he had claimed a sum of Rs. 42,067/-towards the salary from October, 2008 to December, 2008 at the rate of Rs. 5755/-and from January, 2009 to April, 2009 at the rate of Rs. 6322/-. The said claim petition was taken on file as C.P.No. 23 of 2010. On notice being issued, the petitioner society filed a counter statement resisting the claim made by the workman. Apart from the earlier contentions, in the counter statement it was stated that the society itself was defunct for over 10 years. Therefore, the workman could not have rendered any service and worked as a salesman. There was no income for the bank during these years.
7.2. Before the labor court, once again the same ritual of marking documents were made between the parties and oral evidence was let in. While on the side of the workman, seven documents were filed and marked as Exs.P.1 to P.7. On the side of the management, two documents were filed and marked as Exs.R.1 and R.2. The workman had examined himself as P.W.1 and the same Ganesan was examined as R.W.1. The labor court found that pursuant to the order dated 10.11.2008, the workman had attended for duty. With reference to working for the period from October, 2008 to April, 2009, the labor court had agreed that he had worked only from 10.11.2008 to 31.12.2008 and thereafter, he did not work. Hence he was eligible for salary from 10.11.2008 to 31.12.2008. Hence a sum of Rs. 9975/-was directed to be paid to him. As against the order computing Rs. 9975/-, the fourth writ petition in W.P.(MD)No. 10005 of 2011 came to be filed. That was admitted on 6.9.2011. Pending the writ petition, this court had granted an interim stay on condition that the petitioner society should deposit Rs. 9975/-to the credit of C.P.No. 23 of 2010. It is now stated that the said amount has also been deposited.
In view of the inter-connectivity between these writ petitions, they were grouped together and a common order is passed.
It also transpires that the workman on being retrenched from 25.4.2009 after being allowed to join duty with effect from 10.11.2008 (actually he did not report for work till 31.12.2008) had raised an industrial dispute for the second time. That I.D was taken on file by the Labor Court, Tirunelveli as I.D.No. 22 of 2010. After notice to the management, the industrial dispute was tried and an award was passed on 13.6.2011 rejecting the case of the workman. The Labor court held that retrenchment made was legal and justified and the workman was not eligible for any relief. The court also found that for the last 10 years, the society has been working in loss and there was no scope for employing any salesman as the fair price shop had been handed over to some other cooperative society. The said award is not under challenge till date.
In the light of the above, the following four questions arise for consideration in these writ petitions:
(i)Whether the workman was entitled to file successive claim petitions on the basis of an ex-parte award obtained by him?
(ii)When evidence was let in by the society that a telegram followed by a letter was sent to the workman asking him to report for work and notwithstanding this fact, the workman did not report for work, whether in such circumstances, the labor court without directing the workman to get as adjudication on the said issue can compute wages on the basis of the successive applications?
(iii)Whether the labor court''s finding in C.P.No. 41 of 2008 that pendency of the claim petition u/s 33-C(2) prohibits the management from terminating the service of an employee without prior approval was legally valid? and
(iv)In the light of the subsequent award in I.D.No. 22 of 2010, dated 13.6.2011 where the workman''s non employment was found justified on the ground that there was no employment for any one after the fair price shop was handed over to an another cooperative society and the society was defunct or dormant for the last 10 years the claim for wages was valid?
In the present case, it is admitted that the earlier Award in I.D.No. 71 of 2001, dated 20.11.2003 was not upset by any higher court and that the fate of the writ petition challenging it is not made known to this court. Though the counsel for the workman alleged that the writ petition had been dismissed, no order has been produced. In any event, when the workman was employed in the fair price shop attached to the cooperative society, the administrative control of the shop vest with the supply authorities headed by the District Collector. Therefore, under the provisions of the Essential Commodities Act, it is open to him to transfer the business to some other society in the interest of general public. It was also held by this court that the employees attached to the fair price shop are eligible for salary only what was fixed and paid to them and not covered by the Government''s Order applicable under the Tamil Nadu Shops and Establishments Act. (See for reference : (2010) 5 MLJ 37 (DB). Therefore, the workman''s successive claim petitions based upon the Government notification under the Minimum Wages Act in relation to the Shops and Establishments and also claiming revision of salary when there was no work rendered by him is clearly not justified. The workman could not have claimed any amount except last drawn salary which was admitted as Rs. 1521/-.
Even in case of an illegal retrenchment of a temporary employee u/s 25-F of the I.D. Act, the Supreme Court has held in The State Bank of India Vs. Shri N. Sundara Money, that on account of infraction of Section 25-F and illegally retrenched an employee, the employee can be restored with same status with the right to get last drawn salary received by him. This is in view of the fact that such restoration takes place because of the technical non compliance of Section 25-F of the I.D. Act. Therefore, the workman even if he was allowed to file successive claim petitions on account of non compliance of Section 25-F, he could have claimed only the last drawn salary and not the salary revised at periodical intervals by the State Government in relation to Shops and Establishments Act.
Further, this court has also held that such a notification will not apply to fair price shop employees attached to cooperative stores. Hence even if successive applications were filed by the workman was legally allowed to be filed, his claim for salary of Rs. 6322/-instead of Rs. 1521/-is clearly impermissible. The labor court did not bestow its mind on these aspects and decided the legality of the workman''s claim.
The other question, i.e., pendency of claim petition u/s 33-C(2) will disentitle the employer from terminating the service of employee on account of infraction of Section 33 is concerned, the said finding of the lower court reveals that the labor court did not even peruse the provisions of the I.D Act. A claim petition u/s 33-C(2) is in the nature of execution proceedings. It is not a matter of pending adjudication or conciliation before any authority for which alone prior permission has to be obtained regarding termination. The petition u/s 33-C(2) cannot be said to be a proceeding which attracts the provisions of Section 33. In fact even if a dispute is raised u/s 2A of the I.D. Act relating to non employment of an individual workman will not attract Section 33(2)(b) as held by the Calcutta High Court in A.K. Corporation (P) Ltd. Vs. State of West Bengal and others reported in 1977 LIC 1035. Therefore, the findings of the labor court that no prior approval was obtained and hence the subsequent termination was clearly illegal, erroneous is contrary to law.
Further, when the employer leads evidence intimating that a telegram was sent followed by a letter for which an acknowledgement was produced and when it was not denied, the employer satisfies his obligation in asking the employee to come for work pursuant to the earlier Award. It is for the workman to disprove by stating that either he did not receive those communication or he was denied work when reported for work. In the present case, it was admitted by both sides that the workman was restored to service on 10.11.2008 but he had reported for work only on 31.12.2008. He was once again retrenched on 25.4.2009. When he claimed that the second retrenchment was illegal in the subsequent I.D.No. 22 of 2010, the same Labor Court by its Award, dated 13.6.2011 had negatived his claim.
Therefore, under these circumstances, this court is of the opinion that the workman is not entitled for any payment as ordered in three claim petitions. Even the subsequent non employment was held against the workman as evidenced in the Award in I.D.No. 22 of 2010, dated 13.6.2011. But, payment ordered in respect of two earlier claim petitions earlier mentioned need not be recovered from the workman. But with reference to any future claim, certainly the claim made by way of proceedings u/s 33-C(2) is not maintainable as the subsequent dispute raised was also negatived by the labor court.
In the light of the above, W.P.(MD)Nos.8456 of 2008, 10460 of 2009 and 7322 of 2010 will stand allowed and the impugned orders of the labor court in C.P.Nos.8 of 2007, dated 8.3.2008, C.P.No. 5 of 2008, dated 14.08.2009 and C.P.No. 41 of 2008, dated 29.1.2010 will stand set aside. Hence the petitioner society can withdraw the amounts lying in deposit with the labor court in C.P.No. 41 of 2008 in WP.(MD)No. 7322 of 2010. However, the parties are allowed to bear their own costs. Consequently connected miscellaneous petitions stand closed.
In respect of W.P.(MD)No. 10005 of 2011, it is only the payment made in respect of the period for which the workman had worked from 10.11.2008 to 31.12.2008, but certainly not at the rate in which he had claimed wages as it runs contrary to the earlier findings. But, in view of the fact that the workman was drawn to this court due to several litigations and without going into the technicality of the rate of the amount involved, this court permits the workman to withdraw Rs. 9975/-from the labor court. Accordingly, W.P.(MD)No. 10005 of 2011 will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.