Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 162

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Pushpa Sathyanarayana, S. Kannammal, JJ.
The Chairman cum Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Chennai & Another – Appellants
Versus
A. Paneerselvam – Respondent
W.A(MD)No. 1168 of 2012 & M.P(MD) No. 1 of 2012
Decided On : 12-03-2021

Advocates:
Advocate Appeared:
For the Appellant : K.P. Narayanakumar, Special Govt. Pleader.
For the Respondent:K. Baalasundharam, Advocate.

Point of Law: Desertion of Service – Wages – Entitlement of - respondent is entitled to the award from the date of Industrial Dispute, which was confirmed in the Writ Petition.

Headnote:
Industrial Disputes Act – Section 17 – Desertion of Service – Wages – Writ Appeal is directed against the order made in W.P(MD), in dismissing the Writ Petition filed by the respondent herein, giving certain directions – Respondent herein was appointed as a causal labourer through Employment Exchange in Modern Rice Mill, Thiruvarur in the year 1977. – In the year 1979, he was promoted to the post of Assistant. – In the year 1985, he was terminated from service on the allegation that he had deserted the service. – Admittedly, the respondent had travelled abroad and he was gainfully employed. – After his return in the year 1988, he opted to join the duty. – But his application was rejected. – Hence, an Industrial Dispute was raised in I.D. before the Labour Court – Aggrieved by the order passed in the said Industrial Dispute, the appellants herein had preferred a Writ Petition in W.P. before this Court and this Court, had dismissed the same and confirmed the order passed in the Industrial Dispute.
Findings of Court : When the Writ Petition was dismissed, the direction given ought not to have been given effect to. – Secondly, it was stated that during the period for which the respondent has claimed wages, he had not contributed any service to the employer. – Though the ID award had specifically directed that he should be re-instated from 18.10.1995, the appellants had challenged the same by way of Writ Petition and obtained an order of stay and had permitted the respondent to join duty. – The respondent was permitted to join duty only after the dismissal of the Writ Petition in W.P(MD) – Therefore, the respondent cannot be found fault with. – Special Government Pleader had also admitted that in the Writ Petition, the respondent had not asked for the consequential prayer, without which, the amounts cannot be paid. – The said contention is only to be rejected as hyper-technical when the impugned order is wrong, automatically the arrears have to be paid. It is stated that the respondent had retired from service long back and aged about 70 years now. – It is not in dispute that the respondent is entitled to the award from the date of Industrial Dispute, which was confirmed in the Writ Petition. – Therefore, the impugned order passed by the second appellant, based on the opinion of the Additional Advocate General-IV is incorrect and the respondent is entitled to the back-wages
Result: Writ Appeal Disposed of

JUDGMENT :

Pushpa Sathyanarayana, J.

(Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act praying this Court to set aside the order passed by this Court in W.P(MD)No.10609 of 2007, dated 24.07.2012.)

1. This Writ Appeal is directed against the order made in W.P(MD)No.10609 of 2007, dated 24.07.2012, in dismissing the Writ Petition filed by the respondent herein, giving certain directions.

2. Heard the learned counsel appearing on either side and perused the materials placed before this Court.

3. The respondent herein was appointed as a causal labourer through Employment Exchange in Modern Rice Mill, Thiruvarur in the year 1977. In the year 1979, he was promoted to the post of Assistant. In the year 1985, he was terminated from service on the allegation that he had deserted the service. Admittedly, the respondent had travelled abroad and he was gainfully employed. After his return in the year 1988, he opted to join the duty. But his application was rejected. Hence, an Industrial Dispute was raised in I.D.No.5071992 before the Labour Court, Cuddalore. On 18.10.1995, the Labour Court had passed an order, which reads as follows:

“TAMIL”

4. Aggrieved by the order passed in the said Industrial Dispute, the appellants herein had preferred a Writ Petition in W.P.No.16658 of 1996 before this Court and this Court on 09.03.2004, had dismissed the same and confirmed the order passed in the Industrial Dispute. The order of which is as follows:

“10. As already seen, the Petitioner herein has terminated-the service of the second respondent without holding a domestic enquiry and the Labour Court has rightly held that such termination is illegal and passed an award reinstating the second respondent without back-wages and giving liberty to the Petitioner Management to take disciplinary action for the unauthorized absence. The award of the Labour Court does not call for any interference and there are no merits in the Writ Petition.

11. The Writ Petition is dismissed. No costs.”

5. From the above, it is clear that the order made in the Industrial Dispute on 18.10.1995, was confirmed by this Court on 9.3.2004. Therefore, the respondent ought to have been re-instated into service on 18.10.1995 itself. But as per the order of this Court in W.P.No.16658 of 1996, the respondent was reinstated on 14.4.2004. While-so, the first appellant had issued a letter to the second appellant, dated 29.6.2007, based on the legal opinion of the Additional Advocate General-IV not to disburse the salary from 27.3.1996 to 15.4.2004, because as the interim relief of Rs.415/- p.m. was paid for the above said period, the question of payment of arrears as claimed by the respondent does not arise. The letter further stated that the term “continuity of service” means the individual is entitled only to pension or retirement benefit by treating him as if he is in continuous service and he is not entitled to any other benefit. Accordingly, it was opined that the respondent was not entitled to any increment from the period from 27.03.1996 to 15.04.2004 for which period, he had not rendered any service to his employer. Based on the said opinion, on 17.07.2007, a show-cause notice was issued by the second appellant and an order was passed on 06.07.2012 holding that the respondent is not liable to pay for the period during which period he had not rendered any service. Challenging the above said order, a Writ Petition in W.P(MD)No.10609 of 2007 was filed by the respondent herein.

6. Interestingly, in paragraph 6, the learned Judge has stated that the respondent was not paid any wages as per the award and he was paid only the last drawn wages under Section 17(B) of the Industrial Disputes Act until he was reinstated and further held that the respondent was entitled to wages as per the award, dated 18.10.1995 until he was reinstated on 16.04.2004. The learned Judge also held that since the award in the Industrial Dispute had attained its finality, the appellants had to pay the re

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