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2012 Supreme(Mad) 42
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
Madras Corporation Red Flag Union Rep.by its General Secretary & Another
Versus
The Govt.of Tamil Nadu Rep.by the Secretary to Government Municipal Administration & Water Supply Department & Another
W.P.Nos.480 of 2005 & 1322 of 2007 & WPMP Nos.555 of 2005 & 18539 of 2006 in W.P.NO.480 OF 2005
Decided on : 03-01-2012
For the Petitioners:Ms. R. Vaigai, Ms. D. Nagasaila, Advocates.
For the Government:P.S. Siva Shanmugasundaram, Advocate, For the Corporation:V. Bharathidasan, Advocate.
The main legal point established in the judgment is that recovery of excess payment from workers covered by the Industrial Disputes Act should be done in accordance with the provisions of the Act and in equity, exercising judicial discretion to relieve the employees from hardship.
Headnote:
Trade Union - Pay Scale Dispute - G.O.(4D) No.5, Municipal Administration and Water Supply Department - 12(3) of the Industrial Disputes Act - G.O.No.161, MAWS Department dated 12.3.1985 - Recovery of Excess Payment - Industrial Disputes Act
Fact of the Case:
The case involves a dispute over the pay scale of workers who were initially employed in a stone quarry and later absorbed by the Corporation of Chennai. The workers were initially absorbed as Night Watchmen in the Education Department of the Corporation.
Finding of the Court:
The court found that the Corporation cannot recover any amount from the workers covered by the two unions on the ground that the payments were made in excess of the amount due to them. The workers, being covered by the settlement under Section 12(3) of the Industrial Disputes Act, cannot have the amount recovered unless the settlement is terminated and proper notice is given under Section 9-A of the Industrial Disputes Act.
Issues: The issues involved the legality of the pay scale set by the State Government, the recovery of excess payment, and the workers' rights under the Industrial Disputes Act.
Ratio Decidendi: The court relied on the provisions of the Industrial Disputes Act to determine that recovery of excess payment from the workers was improper and not justified. It also cited a Supreme Court decision to support its finding that relief against recovery of excess payment is granted in equity, exercising judicial discretion to relieve the employees from hardship.
Final Decision: The Writ Petitions are allowed to the extent that the Corporation is restrained from recovering any amount from the workers covered by the two unions. The workers are given liberty to raise appropriate dispute or represent the State Government for a different scale of pay.
1. The 1st Writ Petition is filed by Madras Corporation Red Flag Union, which is a registered Trade Union with Registration No.185/MDS. It is the case of the petitioner union that the Circular issued by the Corporation pursuant to G.O.(4D) No.5, Municipal Administration and Water Supply Department dated 1.7.1993 is illegal and unconstitutional and for a consequential direction to the respondents to grant higher scale of pay relatable to the pay scales as they were drawing in the quarry with all attendant benefits. That Writ Petition was admitted on 6.1.2005. Pending the Writ Petition, this Court granted interim stay of recovery alone until further orders and this Court also observed that when the pay of an employee is fixed in a particular scale of pay, payment of increment would automatically follow. In the Miscellaneous Petition in M.P.No.18539 of 2006 seeking for interim direction to pay the Special Grade scales with effect form 1.10.1998 with annual increments, House Rent Allowance, Dearness Allowance and other allowance, no orders have been passed. On notice from this Court, the 2nd respondent has filed a counter affidavit dated 8.1.2007. Though the matter was adjourned from time to time, there has been no counter affidavit on the side of the State Government, though their Order is under challenge.
2. Even during the pendency of that Writ Petition, another trade Union by name Corporation of Labour Union with Registration No.2601 represented by its President filed the second Writ Petition No.1322 of 2007 claiming for a Declaration that the very same G.O., dated 14.7.1993 issued by the State Government is illegal and unconstitutional and for a consequential direction to fix the pay scale to the members of the trade union, whose names are mentioned in the annexure, in the pay scale of Rs.265-425 with increments and revisions. That Writ Petition was admitted on 10.1.2007. Though the matter was adjourned several times, there has been no counter affidavit either on the side of the Corporation or on the side of the State Government. Therefore, this Court is forced to pass orders on the basis of available materials.
3. The case of the workers represented by the two Unions has a chequered history. Initially, they were employed in the Stone Quarry at Pallavaram operated by the Corporation of Chennai. Subsequently, the quarries were closed and the hillock was handed over to the Structure Testing Centre attached to ICSR and thereby its workmen were unemployed. To the efforts taken by the Unions, the Corporation was forced to absorb these workers pursuant to the settlement under Section 12(3) of the Industrial Disputes Act. As most of the workers were not recruited for any service in the Corporation, the Corporation has agreed to accommodate them in the Education Department as Night Watchmen in the various Schools run by the Corporation.
4. Pursuant to the settlement dated 12.10.1978, the workers were posted in various Corporation Schools as Night Watchmen and their pay was also fixed depending upon the length of service and also by giving advance increments. The State Government issued G.O.No.161, MAWS Department dated 12.3.1985 with reference to the absorption of Pallavaram Quarry Workers by creating supernumerary posts in the Corporation. In the said G.O, the Corporation of Chennai was permitted to absorb the staff with pay protection given to them by which they were directed to be continued with their last drawn pay in the original scale till their retirement or absorption elsewhere.
5. Notwithstanding the said G.O., since the workers were paid increment on the last drawn pay, the Commissioner of Local Fund Audit attached to Corporation raised an objection that payment of increment and revision of scale of pay in respect of those workers was not valid and it is contrary to G.O.Ms.No.161, MAWS Department dated 12.3.1985. This necessitated the Commissioner to address a letter to the State Government with reference to t
