Court ruled non-employment of an employee was illegal, awarding compensation instead of reinstatement.

ORDER :

D.BHARATHA CHAKRAVARTHY, J.

These two Writ Petitions challenge the order of the appellate authority under the Tamil Nadu Shops and Establishments Act, 1947 in T.N.S.E-I/3/2007, dated 13.09.2021. The management namely, Neptune Travels India Private Limited, had filed W.P.No.25448 of 2021 challenging award inasmuch as it orders compensation to the employee. W.P.No.5038 of 2022 is filed by the employee inasmuch as the award denies reinstatement with full backwages.

2. The case of the employee is that she was appointed by the management by the order dated 29.05.2006 and she joined the services with effect from 01.06.2006. Her employment was with relation to the business of the management. Though she was called as a Manager, there was absolutely no managerial activity. While so, from the month of July, 2006, the management did not pay wages to the employee. They promised to settle the entire arrears in the first week of January, 2007. Even thereafter, they did not settle and a legal notice was issued on 07.02.2007. Thereafter, with effect from 01.03.2007, the petitioner was denied employment. Therefore, the termination was without any justifiable cause.

3. Simultaneously, the employee also filed C.P.No.229 of 2007 to compute the arrears of wages from the month of June, 2003 to March, 2007 under Section 33C(2) of the Industrial Disputes Act, 1947. Thereafter, on 19.09.2007, the management was set ex parte in the above appeal in T.N.S.E-I/3/2007 and the appeal was allowed as prayed for. Thereafter, C.P.No.213 of 2013 was filed under Section 33C(2) of the Industrial Disputes Act, 1947 for computation of the back-wages from 01.03.2007 upto 01.04.2013. The management remained ex parte in the said C.P.No.213 of 2013 also and therefore, the sum of Rs.21,77,224/- was computed and the management was directed to pay by the award, dated 26.11.2013.

4. The management filed W.P.No.25830 of 2012 challenging the order, dated 14.03.2012 passed in C.P.No.229 of 2007. Thereafter, the management had filed W.P.No.10935 of 2019 challenging the award in T.N.S.E.No.1/3/2007. By the order, dated 17.09.2020, the ex parte award, made in T.N.S.E-I/3/2007 was set aside on payment of costs of Rs.35,000/- and an opportunity was directed to be given to the management. On the same day, W.P.No.25830 of 2012 was also allowed stating that in view of the setting aside of the award in T.N.S.E-I/3/2007, the order passed in C.P.No.229 of 2007 shall no longer stand and the proceedings were treated to be closed.

5. Thereafter, the management filed a detailed counter-affidavit by stating that since the appointment order categorically designates the employee as manager, she will not come under the definition of workman and she cannot claim benefits under Section 33C(2) of the Industrial Disputes Act, 1947. Simultaneously, she had filed the present appeal under the Tamil Nadu Shops and Establishments Act, 1947, which should not be allowed. It is stated that the employee had voluntarily stopped reporting for work and it is not the management which had orally terminated from 01.03.2007. The appeal is not maintainable since only oral termination is complained of. The employee is undertaking parallel remedies under Section 33C(2) of the Industrial Disputes Act, 1947 and also under the Tamil Nadu Shops and Establishments Act, 1947.

6. A detailed rejoinder was also filed on behalf of the employee. In the rejoinder, subsequent events of filing the Claim Petition and the order of the High Court, are all pleaded. On the strength of the said pleadings, in the enquiry, employee examined herself and Ex.P-1 to Ex.P-5