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Judgment
K. Chandru
Heard Mr. S. Arunachalam, appearing for Ms.S.Girija, learned counsel for the petitioner and Mr.M.R.Raghavan, learned counsel for the
second respondent Management.
The writ petition is filed challenging the Award passed by the first respondent Labour Court, Salem in C.P. No. 203 of 2003 dated
25.11.2005. By the impugned Award, the Labour Court dismissed the claim petition filed by the petitioner workman and declined to compute the
amount as claimed by him.
The writ petition was admitted on 03.07.2007. Subsequently, attempts were made to bring about conciliation between the parties and the
matter was adjourned. Finally on 09.07.2010, this Court noted the fact that despite the writ petition was of the year 2007, the second respondent
Management had not filed any counter affidavit. On the contrary, on behalf of the writ petitioner, an additional typed set of documents dated
02.03.2010 was filed.
It is seen from the records that the petitioner who was working as a Typist from 21.12.1990 under the second respondent was terminated from
service on 31.10.1991 without assigning any reason. The workman filed a petition u/s 2(A)(2) of the Industrial Disputes Act, 1947 (for short
I.D.Act.) in I.D. No. 353 of 1992 before the Labour Court, Coimbatore, for a direction to pass an order, directing the Management to reinstate
the petitioner in service with full backwages, continuity of service etc., Subsequent to the formation of the Labour Court at Salem, the matter was
transferred to the Labour Court, Salem and re-numbered as I.D. No. 541 of 1992 and notice was issued to the second respondent Management.
The Labour Court upon considering the oral and documentary evidence came to the conclusion that nonemployment of the petitioner was not
valid. The plea taken that at the time of his employment, he was overaged was not considered as a ground for denying employment. It held that his
termination was illegal and therefore, he was entitled for reinstatement with full backwages, service continuity and other benefits.
Before the Labour Court, in their counter statement, the second respondent Management except pleading that the petitioner was overaged did
not take any other plea i.e., that he was gainfully employed elsewhere or that he was not entitled for any wages. As against the Award passed by
the Labour Court, the Management preferred a writ petition before this Court, being W.P. No. 1776 of 1997. The said writ petition was
dismissed by this Court by an order dated 07.03.2002. It was after the dismissal of the writ petition, the petitioner moved the Labour court with a
claim petition seeking for the benefit of the Award.
In the claim petition filed u/s 33-C(2) of the I.D.Act, he had stated that he got a temporary employment as Typist in the District Munsif-cum-
Judicial Magistrate Court, Cheranmahadevi and he had resigned his job on 13.05.2002. His employment there was only from 22.01.1997 to
13.05.2002. Subsequent to the confirmation of Award by this Court, he claimed that he is entitled for reinstatement under the second respondent
Management and he claimed a sum of Rs. 6,56,335/-. The amount was claimed for the period from 31.10.1991 till October 2002.
The Management in their counter statement stated that without prejudice to the writ petition, he was asked to report for duty by a letter dated
12.08.1996 but the petitioner did not report for duty. It was further stated that since the petitioner was employed at Cheranmahadevi Court, he
was not entitled for reinstatement and once an Award is passed in favour of the worker, he is expected to come back to work within a reasonable
time. Since he had not reported for work, it is deemed that he is not interested in the employment. They also filed an additional counter statement
contending that after a period of eight years, the worker is not eligible to get any wages. It was also stated since the post of Typist is not available
in the cadre strength, he will not come within the cadre strength. They also stated that they have preferred a writ appeal before this Court being
W.A. No. 2848 of 2002 and that the order passed by the learned Judge is not final.
Before the Labour Court, on the side of the petitioner, 4 documents were filed and marked as Exs.P1 to P4. Ex.P4 is the salary details obtained
by the petitioner while working as Typist in the District Munsif-cum-Judicial Magistrate Court, Cheranmahadevi for the period from 22.01.1997 to
30.04.2002. On the side of the Management, one Rajagopal was examined as R.W.1 and on their side, 6 documents were filed and marked as
Exs.MR to R6.
The Labour Court by the impugned Award dated 25.11.2005 dismissed the claim petition by holding that it was only after his temporary
employment in the District Munsif-cum-Judicial Magistrate Court, Cheranmahadevi, he had written a letter seeking for employment. He had not
shown any interest to get back to employment. Even though the Management asked him to report for work, he had not reported for work pending
the writ petition.
It has to be seen whether the Labour Court was right in rejecting the claim petition made by the petitioner workman. A perusal of the order
passed by this Court in W.P. No. 1776 of 1997 shows that the Management did not raise the issues viz., the workman''s employment in some
other establishment and that the Labour Court''s Award that he is eligible for wages was invalid. On the other hand, the only point argued was
whether due to non-compliance of Section 25-F of the I.D.Act, the worker was eligible for wages and reinstatement. Subsequent to the order, it is
seen that a Division Bench by its order dated 07.03.2007 dismissed the writ appeal filed by the Management. The Division Bench rejected the
case of the Management and held that the workman was overaged at the time of employment cannot be accepted as a ground to deny him
employment. It held that the Award passed by the Labour Court and confirmed by the learned Judge was perfectly valid and in that view of the
matter, the appeal was dismissed.
The contention raised by the Management before the Labour Court was never raised before the learned Judge or before the Division Bench. It
is not open to the Labour Court to go behind the Award. Before passing the Award, the Management never raised the issue relating to any
alternative employment engaged by the petitioner and only when the worker claimed the amount of backwages that too honestly admitting his
temporary employment in the Munsif court and gave the salary particulars, it is not open to the Labour Court to go behind the Award. It must be
noted that the Labour Court while exercising power u/s 33-C(2) of the I.D.Act is only acting like an executing court and it is not open to the
executing court to go behind the decree passed by the Court in its original jurisdiction. If a particular worker is employed elsewhere, it can only at
the maximum go to the extent of denying backwages for the period which he was gainfully employed. Even in the counter filed before the Labour
Court, the Management was only contending about the pendency of the writ appeal filed by them as an impediment for the worker in claiming the
amount. So long as the Award passed by the Labour Court was found to be correct by the learned Judge and subsequently upheld by the Division
Bench as late as 07.03.2007, it would not be open to the Management to contend to the contra. If the Management wanted to raise such issues,
they should have brought the same in the form of further additional pleadings before this Court and should have got suitable modification of the
Award. This Court do not find that the Labour Court was right in rejecting the claim made by the workman.
Under the said circumstances, the impugned order passed by the Labour Court stands set aside and C.P. No. 203 of 2003 will stand remitted
back to the Labour Court, Salem for fresh consideration. During the trial, it would be open to the parties to lead evidence. With reference to the
actual wages earned by the worker, the Labour Court will also be right in adjusting the amount earned by the worker during his service as Typist in
the Munsif Court at Cheranmahadevi. Except for this, the Labour Court shall decide the actual quantum of wages receivable by the workman.
Since the matter is already 8 years old, the Labour Court shall give preference for deciding the claim petition, in any event decide the matter within
three months from the date of receipt of the order after giving due notice to both parties.
The writ petition is allowed to the extent indicated above. Since the earlier claim petition was limited only to the date of the claim petition, the
worker is also entitled to file additional claim petition which can be heard along with the earlier claim petition.