Management, The Coimbatore District Consumer Co-operative Wholesale Stores Ltd. vs The Presiding Officer, Labor Court, The Secretary to Government, Labor and Employment Department and S.R. Sundaramurthy

M. Venugopal, J.—The Petitioner (in all the writ petitions) has filed the present writ petitions seeking for the relief of Writ of Certiorari, to

call for the records of the first Respondent Labor Court relating to its order dated 24.10.2001 in C.P. Nos. 67 of 1999, 71 of 1999, 87 of 1999

and 75 of 1999 and also the records of the second Respondent relating to his order in No. 30491/D1/2002 Labor and Employment Department

dated 30.10.2002 and quash the said orders dated 24.10.2001 and 30.10.2002.

Before proceeding to consider the matters on merits, the necessary facts are stated as hereunder:

The Petitioner/Management (The Coimbatore District Consumer Co-operative Wholesale Stores Ltd.,) in all the writ petitions, has launched the

Voluntary Retirement Scheme to the employees and a large number of employees have opted to come under the Voluntary Retirement Scheme.

The retirement benefits of the employees have been paid borrowing funds and mortgaging the properties. The respective third Respondents in all

the writ petitions are the employees who availed the Voluntary Retirement Scheme.

The Petitioner/Management announced the Voluntary Retirement Scheme as per G.O. (Ms) No. 212, Co-operation, Food and Consumer

Protection Department dated 06.08.1997. 224 employees have given their options to go on Voluntary Retirement Scheme. The said scheme has

been valid for a period of nine months from 15.08.1997 to 14.05.1998. The Petitioner/Management relieved the employees including the

respective third Respondents in all the writ petitions on the specified last date of expiry of the scheme i.e. 14.05.1998. The financial benefits under

the scheme have been disbursed to the employees from 29.07.1998 onwards due to some time lag in securing the finance. In the meantime, the

employees have gone on agitation and refused to receive the relieving orders. As such, the Petitioner/Management has issued a publication in the

local newspaper stating that the employees were relieved from 14.05.1998. When the agitation of the employees has been in the peak and the

situation has been tense, the District Collector has intervened and the talks have been held between the employees and the Management in his

presence, but no settlement has been made. However, the Petitioner/Management in order to purchase peace and tranquility, has agreed to extend

the employment of the respective third Respondents in all the writ petitions and others upto 10.06.1998 when there has been no work. All the

financial benefits have been calculated upto 10.06.1998 and settled to the third Respondents in all the petitions on 30.11.1998.

The employer and employee relationship between the Petitioner and the third Respondents in all the petitions has been severed on 14.05.1998

when the applications of the third Respondents in all the petitions have been accepted.

However, the notional extension of service has been given upto 10.06.1998 purely on humanitarian grounds in view of the unavoidable delay in the

payment of terminal benefits. Several units of the Petitioner/ Management Stores have been closed in December 1998 and the employees have no

work at all in the establishment of the Stores.

The third Respondents in all the petitions and others have projected the Claim Petitions in C.P. Nos. 62 of 1999 to 146 of 1999, claiming the

benefits hereunder:

(a) Wages for the period from 10.06.1998 to 30.11.1998.

(b) Arrears of salary under the 12(3) settlement made in 1993.

(c) Refund of Security Deposit.

(d) Financial benefits by way of additional compensation, additional provident fund and additional leave encashment from 10.06.1998 to

30.11.1998.

The Petitioner/Management has contested the claim petitions on the basis that the claim petitions are not maintainable as per Section 33-C(2) of

the Industrial Disputes Act, 1947, because of the fact that the employer and the employee relationship has already got severed on 14.05.1998.

Further, no wages have been due for the period of ''No work, No pay'' and the amounts claimed have not been calculated properly. The first

Respondent/Labor Court, Coimbatore, ignored the contentions of the Petitioner/Management and passed an order in the aforesaid claim petitions,

as follows:

Sl. No. Claim Petition Nos. Amount awarded (Rs. )

C.P. No. 67 of 1999 Rs.45,526/

C.P. No. 71 of 1999 Rs.50,226/

C.P. No. 87 of 1999 Rs.45,748/

C.P. No. 75 of 1999 Rs.49,353/

It is the contention of the learned Counsel for the Petitioner/Management that the first Respondent/Labor Court has not appreciated the facts

that the Petitioner/Management has paid the terminal benefits till 10.06.1998 as agreed by it in the negotiation between the employer and the

employees in the presence of the District Collector and as such, the third Respondents/employees in all the writ petitions are not entitled to recover

any amount beyond 10.06.1998 and therefore, the order passed in the claim petitions are illegal, arbitrary and without jurisdiction.

The learned Counsel for the Petitioner/Management urges before this Court that the impugned order of the first Respondent/Labor Court, dated

24.10.2001 in C.P. Nos. 67 of 1999, 71 of 1999, 87 of 1999 and 75 of 1999 and the consequential order of the second Respondent in No.

30491/D1/2002 Labor and Employment Department dated 30.10.2002, are arbitrary, illegal and unsustainable in law and also that the mere delay

in payment of the retirement benefits will not extend the service of the employees which has not been taken into account by the first

Respondent/Labor Court in a proper and real perspective.

Advancing his arguments, it is the contention of the learned Counsel for the Petitioner/Management that the first Respondent/Labor Court has no

jurisdiction as per Section 33-C(2) of the Industrial Disputes Act, 1947, to examine and adjudicate the dispute as to whether there is a master and

servant relationship between the Petitioner/Management and the employees, based on which the question of payment of wages will arise.

Further, it is the submission of the learned Counsel for the Petitioner that the claim of the third Respondents namely Rs. 9,538/-, Rs. 9,538/-,

Rs. 5,751/-and Rs. 7,016/-respectively in all the petitions, as arrears of wages as per Section 12(3) settlement dated 22.12.1993 which is time

barred and therefore, the first Respondent/Labor Court has misdirected itself to consider the stale claim of the third Respondents in all the

petitions.

Added further, the learned Counsel for the Petitioner/Management contends that the first Respondent/Labor Court has ordered for repayment

of security deposit of Rs. 900/-, Rs. 1,500/-, Rs. 1,500/-and Rs. 1,500/-respectively to the third Respondents in all the writ petitions and further

that, there is no existing agreement or contract to repay the security deposit on the date of relief of the employee and when there is no pre-existing

right for the claim of the security deposit, then the first Respondent/Labor Court as per Section 33-C(2) of the Industrial Disputes Act, 1947, has

no jurisdiction to entertain the claim petitions.

The learned Counsel for the Petitioner/Management in support of the contention that there is no existing right on the part of the

employees/workers to file the claim petitions, relies on the decision of the Honorable SupreHonorablen State of U.P. v. Brijpal Singh reported in

2005 III LLJ 1003, whereby and where under, it is held thus:

The Supreme Court observed proceeding u/s 33-C(2) was one in the nature of execution proceeding. The right of the workman to the money

claimed in such application must therefore be an existing right that is to say, a right already adjudicated upon.

He also cites the decision of this Court in EID Parry (India) Ltd. v. M.N. Padmanabhan reported in 2008(3) CTC 746, at page 747, wherein

it is laid down as follows:

If the workman claims a matter for reference u/s 2-A, it must be construed that there exists a dispute. However, on an appraisal of Voluntary

Retirement Scheme, dated 01.06.1993, the settlement dated 21.7.1993 between the Appellant and the first Respondent and also Clause 9

thereof, what comes to be known is that the first Respondent had agreed that apart from the amounts disbursed as per the settlement, he would not

be eligible or entitled to any other claim or retirement benefit such as retiring allowance (pension) or like, even if other employees are held entitled

to retiring allowance or any other retirement benefit by any award or settlement or Court verdict. Therefore, in this case, no dispute with regard to

pension does exist.

The First Respondent having opted for Voluntary Retirement Scheme and after entering into the Settlement having fully understood the terms of

settlement and particularly Clause 9 thereof and also encasing the amount of settlement arising thereon, claimed further benefits in the name of

pension. If the first Respondent is permitted to raise such a grievance even after he has opted for Voluntary Retirement Scheme and accepted the

amount paid to him there under, the very object and purpose of introducing the scheme will be defeated. As the first Respondent has already

ceased to be a Workman and on cessation of the jural relationship and on claiming the entire amount of settlement and receiving the same, there

cannot be any scope to construe that there is a dispute still existing to raise a claim u/s 2-A of the Act. Therefore, this Court has no reason to

believe that there exists any dispute. The Learned Single Judge, without going into the entire facts and circumstances of the case, has come to the

conclusion that Pension being an amount which would be payable only to an ex-employee has an intimate link with termination and therefore, the

reference u/s 2A cannot be rejected, which in our considered opinion, cannot be sustained.

Per contra, it is the contention of the learned Counsel for the employees/third Respondents in all the petitions, that the Petitioner/Management

announced the Voluntary Retirement Scheme and in that, 224 employees have opted for the same ad also that the said scheme expired on

14.05.1998 and as per the Voluntary Retirement Scheme, the Petitioner/Management is bound to settle all the benefits to the employees who

opted for the Voluntary Retirement Scheme on the date of retirement, but the Petitioner/Management without paying even a single paise, insisted

the employees to quit their services.

Continuing further, it is the submission of the learned Counsel for the employees/third Respondents in all the petitions that the employees

resorted to peaceful agitation since they have not been paid the money and at the intervention of the District Collector, the Petitioner/Management

agreed to reinstate all the employees and also agreed to engage the employees till the date of settlement of their dues. All the employees have

resumed work from 10.06.1998 and the arrangement of the Management agreeing to settle the dues of the employees has been made in the

presence of the District Collector, Coimbatore.

It is the further plea of the learned Counsel for the employees/third Respondents in all the petitions that the Petitioner/Management has not paid

the wages to the workers for the period between 10.06.1998 and the actual date of their relief and that apart, the Petitioner/ Management has not

paid the wage arrears to the workers as per the 12(3) settlement dated 22.12.1997 entered into between the employees/workers and the

Petitioner/ Management. Added further, the Petitioner has also not paid the arrears of fringe benefits like, Gratuity and Provident Fund and

therefore, the employees have filed the claim petitions in C.P. Nos. 62 of 1999 to 146 of 1999 before the first Respondent/Labor Court.

The learned Counsel for the employees/third Respondents brings it to the notice of this Court that the common order in C.P. Nos. 62 of 1999

to 146 of 1999 has been passed by the first Respondent/Labor Court on 24.10.2001, but the writ petitions have been projected only during the

year 2003 belatedly after the initiation of Revenue Recovery proceedings by the Government of Tamil Nadu. Before the first Respondent/Labor

Court, common evidence has been recorded for the claim petitions and that the Petitioner/Management has been given adequate opportunity by

the first Respondent/Labor Court to let in oral and documentary evidence and therefore, to aver anything contra by the Petitioner/Management is

an incorrect one. There is no limitation to the claim proceedings u/s 33-C(2) of the Industrial Disputes Act, 1947.

The learned Counsel for the employees/third Respondents in all the petitions, relies on the decision of the Honorable Supreme Court in A.K.

Bindal and Another Vs. Union of India (UOI) and Others, , wherein it is inter alia observed as follows:

... After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights

and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to

enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a

retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of

introducing the Scheme would be totally frustrated.

and submits that in the present case on hand, there is no ''golden hand shake'' and since the benefits have not been given to the employees/workers

in regard to the settlement of their dues and also that the employees/workers have continued in service even after 14.05.1998, the

Petitioner/Management is bound to pay to the employees/workers for the period between 10.06.1998 and the actual date of their relief and

therefore, the claim petitions filed by the employees/workers are perfectly maintainable in law.

He also seeks in aid the decision of this Court inManagement, R.S.L''.B'' Tannery, Vaduvanthangal v. The Presiding Officer, Labor Court,

Vellore and 42 Ors., reported in 2008 Indlaw Mad 1386, at paragraph 23, wherein it is held hereunder:

Applying the above principles, if the facts of the case on hand are analyzed, as rightly pointed out by the learned Counsel for the Respondent,

the ''money due'' to the workmen arise out of the pre-existing right. The said right emanates from Section 25O of the Act. Section 25(O) of the

Act falls in Chapter V(B) of the Act. Though there is a specific mention made of Chapter V(A) and V(B) of the Act in Section 33C(1) of the Act

and no such mention has been made in Section 33C(2) of the Act, Section 33C(2) should not be read in isolation so as to interpret that Section

33C(2) does not cover the existing rights of the workman emanating from Chapter V(A) or V(B) of the Act. It is trite law that Section 33C(2) is

larger in it''s scope than Section 33C(1) of the Act. Section 33C(1) empowers an administrative authority, where there is only a limited scope for

any enquiry, whereas, Section 33C(2) of the Act empowers a judicial authority where there is a larger scope for enquiry. If a conjoint reading of

Section 33C(1) and Section 33C(2) is made, there may not be any difficulty to conclude that Section 33C(2) of the Act embraces into its ambit

the pre-existing rights of workmen emanating from Chapter V(A) or V(B) of the Act. As pointed out earlier, in the instant case, the workmen claim

that their right is a pre-existing one u/s 25(O) of the Act falling in Chapter V(B) of the Act and same needs to be accepted.

Yet another decision of this Court in Management of Madras Aluminium Company Limited, Mettur Dam, Salem (District) v. R. Paulmanickam

(Deceased) and 31 Ors. reported in 2007 Indlaw Mad 540, at paragraphs 27 and 28, it is observed as follows:

According to him, the above information makes it clear that the persons worked in essential services are entitled to normal wages. He further

contended that inasmuch as the same is an existing right, their petition u/s 33-C(2) of the Industrial Disputes Act before the Labor Court, Salem, is

maintainable.

On the other hand, Mr. AL. Somayaji, learned Senior Counsel appearing for the Management contended that in view of the Sub Clause 2 of

the settlement dated 22.09.1994, even the persons worked to maintain essential services are not entitled to wages or salaries as agreed to. Though

the said clause prohibits the workmen from claiming regular wages, it is demonstrated before us that the fact that the persons worked to maintain

essential services stand in a different clause and the same was not brought to the notice of the Conciliation Officer. In other words, according to the

workmen, the Conciliation Officer has not applied his mind before giving approval for the settlement. It is also stated that he has not acted fairly in

safeguarding the interest of all the workmen including those, who were in essential service. It is also brought to out notice that these workmen were

not represented before the Conciliation Officer. It is relevant to note that the evidence of G. Swaminathan, who was examined on the side of the

workmen. ...

In the aforesaid decision, at paragraph 32, it is further held thus:

In such circumstances, as rightly observed by the learned single Judge, the Conciliation Officer had not applied his mind to the claim of the

Petitioners-workers, which has been over looked by the Labor Court. Though it is settled law that the workman cannot challenge the settlement in

an application u/s 33-C(2) of the Act, in view of the infirmities pointed above and of the fact that the settlement dated 22.09.1994 u/s 12(3) of the

Act had deprived a substantial portion of their salary for the period from 01.04.1992 to October, 1994, the learned single Judge is perfectly right

in quashing the order of the Labor Court and setting aside the same.

It is to be noted that when an employee seeks Voluntary Retirement from service, it cannot be automatically accepted unless it is initially

accepted by an employer in an unequivocal terms, in the considered opinion of this Court. Moreover, in a contract between the employer and the

employees relating to the option for the Voluntary Retirement Scheme, it is not for a Court of law to re-write the terms of the contract, as opined

by this Court. Added further, as per Section 33-C(2) of the Industrial Disputes Act, 1947, a Labor Court is empowered to determine the

suspension allowance. In this connection, this Court pertinently points out that a worker can recover the security amount as deposited with the

employer as per Section 33-C(2) of the Industrial Disputes Act, 1947.

The Voluntary Retirement Scheme is similar to that of a resignation of an employee. A claim for monitory benefits will be sustainable as per

Section 33-C(2) of the Industrial Disputes Act, 1947 when the employees/third Respondents in all the petitions have continued in service even

after the expiry of the Voluntary Retirement Scheme n 14.05.1998 and also as per the arrangement made between the Petitioner/Management and

the employees in the presence of the District Collector, Coimbatore. Therefore, till the actual date of their relief from service, the employees/third

Respondents in all the petitions are entitled to claim the wages since they have resumed work from 10.06.1998. Till the actual date of relief, the

employees/workers of the Petitioner/Management are deemed to be continued in service and as such, till the actual date of relief, they are entitled

to claim wages and other benefits in accordance with law.

The first Respondent/Labor Court in its order has clearly stated that W.W.1 (witness examined on behalf of the employees/workers) has

clearly stated that even after 10.06.1998, all the employees have served in the Petitioner/Management and they have not been relieved from their

service and on 14.05.1998 and on different dates, they have been relieved from service and therefore, till the actual date of relief, they are entitled

to get the benefits. Also, the first Respondent/Labor Court has stated that in Ex.M.8, affidavit of undertaking executed by the employees/workers

in favor of the Petitioner/Management, it is mentioned that the employees/workers have been relieved on 14.05.1998 and that on perusal of

Ex.M.8, though it is mentioned that they have been relieved before 14.05.1998, yet the stamp papers that have been purchased, are only after the

date of 14.05.1998 and this is not a favorable circumstance in favor of the Petitioner/Management, in the considered opinion of this Court.

A perusal of paragraph 18 of the order of the first Respondent/Labor Court goes to show that one Renganathan who has received the salary

for his out-turn of work on 29.09.1998 as per Ex.M.13, the Salary Register''s copy, has also executed an affidavit of undertaking, Ex.M.8 and

further, Ex.M.5, the relieving order under the Voluntary Retirement Scheme has been given to the said Renganathan. If the case of the Petitioner/

Management is to be accepted that the said Renganathan has been relieved from service on 14.05.1998, then certainly he would not have received

his salary on 29.09.1998. In effect, the version projected by the Petitioner/Management that the employees/workers have been relieved from

service on 14.05.1998 is unworthy of credence and therefore, this Court is not accepting the same. Before the first Respondent/Labor Court, the

Attendance Register has not been produced or filed on behalf of the Petitioner/ Management. Therefore, an adverse inference is drawn against the

Petitioner/Management by this Court in this regard. Even the Petitioner/Management witness, M.W.1, in his evidence before the first

Respondent/Labor Court, has clearly deposed that till 30.09.1998, 12 employees have not been relieved and one Premasundari has been relieved

on 30.09.1998 and on 31.12.1998, 11 persons have been relieved from service and they have been given the salary and from them, Ex.M.8, the

affidavit of undertaking, has been obtained.

Coming to the aspect of the employees/third Respondents in all the petitions claiming that they are entitled to receive the salary arrears as per

12(3) settlement dated 22.12.1997, the Petitioner/Management has not raised any objection, as made mention of by the first Respondent/Labor

Court in its common order in the claim petitions dated 24.10.2001. Furthermore, in the said 12(3) settlement under the Industrial Disputes Act,

1947, from 01.10.1994, it is mentioned that new salary has to be paid and during that period, the employees/third Respondents have served with

the Petitioner/Management and as such, they are entitled to claim the arrears of amount in this regard.

As regards the claim of the employees/third Respondents in all the petitions in regard to the security deposit, the Petitioner/Management has

stated that the security deposit will be paid after completion of audit for the year 1998-1999 and therefore, the employees/third Respondents in all

the petitions are entitled to get back the security deposit deposited by the employees/third Respondents in all the petitions. Although the

employees/third Respondents in all the petitions in their claim petitions have claimed the respective amounts due to them together with interest at

the rate of 12% p.a., it is to be pointed out that there is no agreement between the Petitioner/Management and the employees/third Respondents in

all the petitions in regard to the payment of interest at the rate of 12% p.m.

As such, this Court negatives the plea of the employees/third Respondents in all the petitions for the claim of interest at the rate of 12% p.a.

At this stage, this Court aptly points out that the expression ''money due'' u/s 33-C(1) of the Industrial Disputes Act, 1947, refers to a sum

which is ascertained and has become payable one. The back wages or any wages due for the period worked by the employees due to the

employees will also squarely come within the ambit of ''money due'' within the meaning of Section 33-C(1) of the Industrial Disputes Act, 1947.

Further, a jurisdiction of the Labor Court u/s 33-C(2) of the Industrial Disputes Act, 1947, extends to recovery of dues under existing rights

besides dues occurring out of settlement or an award.

The first Respondent/Labor Court has passed a common order in C.P. Nos. 62 of 1999 to 146 of 1999 as early as on 24.10.2001.

However, the Petitioner/Management has projected the writ petitions only during the year 2003 and that too, after the Revenue Recovery

proceedings have been initiated by the Government of Tamil Nadu. Therefore, the act of the Petitioner/Management in approaching the writ

jurisdiction is not diligent and bonafide one.

In the light of the qualitative and quantitative discussions mentioned supra and on a deep scrutiny of the facts and circumstances of the case in a

cumulative and integral manner, this Court comes to an inevitable conclusion that the writ petitions filed by the Petitioner/Management san merits

and the Petitioner/ Management is not entitled to the reliefs sought for in the writ petitions and resultantly, the writ petitions fail.

In the result, the writ petitions in W.P. Nos. 5578 of 2003 and 5587 to 5589 of 2003 are dismissed leaving the parties to bear their own

costs. Consequently, the connected Miscellaneous Petitions are dismissed.