Madras High Court
The Managing Director vs The Presiding Officer on 22 August, 2022
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.39123 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.08.2022
CORAM:
THE HON'BLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.39123 of 2005
and W.V.P.No.989 of 2006 & W.M.P.No.41899 of 2005
The Managing Director,
M/s.Kone Elevators,
No.50, Vanagaram Road,
Ayanambakkam, Chennai. ...Petitioner
-Vs-
1.The Presiding Officer,
Principal Labour Court,
Chennai.
2.M.Narendran ...Respondents
Prayer: Writ Petition filed under Section 226 of the Constitution of India,
praying for the issuance of writ of certiorari calling for the records of the first
respondent in C.P.No.811 of 1999 and quash its order dated 05.08.2005.
For Petitioner : Mr.S.Haroon
For Respondent – 1 : Court
For Respondent – 2 : Mr.R.Lawrence
https://www.mhc.tn.gov.in/judis
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W.P.No.39123 of 2005
ORDER
The relief sought by the petitioner in this writ petition is to quash the order passed by the first respondent in C.P.No.811 of 1999 dated 05.08.2005.
2. The case of the petitioner is that petitioner Company is engaged in the business of manufacture of elevators and escalators and has 1095 number of employees on its rolls. The second respondent was working as a Supervisor having joined the petitioner Company on 01.11.63 and was to retire on 11.12.98 on reaching the age of superannuation of 58 years. As a practice, the petitioner Company issued a letter to the second respondent on 09.04.98, informing the second respondent that he was superannuated on 11.12.98 on his completion of 58 years of age. The performance of the second respondent was found lacking and therefore, the petitioner Company contemplated disciplinary action against the second respondent. However, the second respondent submitted his letter of resignation on 02.11.98 and did not report for duty from the next day onwards. On 25.11.98, the petitioner issued a charge sheet to the second respondent charging him for dereliction of duty, deliberation, non-compliance of superior's instructions, and acts subversive of https://www.mhc.tn.gov.in/judis 2/14 W.P.No.39123 of 2005 discipline. On 29.11.98 the second respondent submitted his explanation denying the charges levelled against him and as the petitioner found that the explanation was not satisfactory, a domestic enquiry was sought to be conducted. On 12.12.98, the second respondent was informed about the initiation of the domestic enquiry and he was required to attend the enquiry to be held on 18.12.98 and 29.12.98 respectively and he attended the same. On 06.01.99, the second respondent sent a letter to the petitioner Company stating that since he had retired from service on 11.12.98 the petitioner Company should settle his retirement benefits without any delay. On 11.01.99 the petitioner replied to the second respondent informing him that the matter would be decided after receipt of the findings of the Enquiry Officer. On 13.01.99 the Enquiry Officer submitted his findings to the petitioner Company, wherein the Enquiry Officer had held that the charges levelled against the second respondent had been proved. The second respondent wrote a letter on 24.02.99 seeking for settlement of his retirement benefits immediately and another representation was received by the petitioner on 21.04.99 and the petitioner Company by letter dated 17.05.99 replied to the second respondent stating that the matter would be decided only after perusal of the findings of the Enquiry Officer. On 20.07.99 the second respondent sent a letter to the petitioner Company stating that he was https://www.mhc.tn.gov.in/judis 3/14 W.P.No.39123 of 2005 withdrawing the letter of resignation dated 02.11.98 with immediate effect, to which the petitioner Company requested the petitioner by letter dated 27.07.99 to come for a discussion on 02.08.99. The petitioner held discussions with the second respondent and it was decided and agreed upon, that the cessation of employment would be treated as one of resignation w.e.f. 02.11.98 and accordingly the second respondent was paid gratuity of Rs.1,02,062/- after adjusting the amount outstanding and payable by him to the petitioner and also after giving credit to the salary of the second respondent for 2 days for which he had worked. A receipt dated 31.08.99 was also issued, without any demur, by the second respondent and he had accepted the cessation of employment as one of resignation w.e.f. 02.11.98. However the second respondent alleged that he was due certain amounts namely (a) retrenchment compensation for 35 years on a salary of Rs.8327.84/- per month amounting to Rs.1,45,037.20/-, (b) 3 months notice pay of Rs.23,903.52/-, (c) leave wages for 120 days at Rs.33,511.36/- (d) unpaid Exgratia of Rs.2,500/- and (e) illegal deduction of Rs.12,652.92/- in all totalling Rs.2,10,605/-. He filed a computation petition in C.P.no.811 of 1999 before the first respondent. The petitioner entered appearance before the first respondent and pointed out that the Exgratia amount was not paid to the second respondent as it was paid by the petitioner to employees who were https://www.mhc.tn.gov.in/judis 4/14 W.P.No.39123 of 2005 not covered under the Bonus Act for the year 1998, and who were on the rolls of the Company as on date of payment dated 14.05.89 and since the second respondent was not in the service of the petitioner Company, he was not entitled to the amount. It was also submitted that the deductions were made towards tools and instruments lost by the second respondent and the same was accepted by the second respondent without any demur. The salary stated by the second respondent was not correct and his last drawn salary was only Rs.6028.44p and the second respondent marked 6 documents and the petitioner Company marked 27 documents. After hearing arguments, the first respondent passed order in C.P.No.811 of 1999 dated 05.08.2005 directing the petitioner to pay a sum of Rs.36,011/- to the second respondent. Aggrieved by the above order, the petitioner has come forward with the present writ petition.
3. The learned counsel appearing for the petitioner drew the attention of this Court to a copy of the interim order passed by this Court in W.M.P.No.41899 of 2005 dated 05.12.2005 in which it is stated as follows:
“The petitioner deposits a sum of Rs.18,000/- [Rupees Eighteen Thousand Only] with the first respondent.” https://www.mhc.tn.gov.in/judis 5/14 W.P.No.39123 of 2005 He further submitted that the petitioner deposits a sum of Rs.18,000/-
being the 50% of the amount has been deposited.
4. A counter affidavit was filed on behalf of the second respondent.
5. The learned counsel appearing for the second respondent submitted that the petitioner employer is a multi national company and the petitioner is entitled to retrenchment compensation and 3 months notice pay at Rs.1,45,037.20/- and Rs.24,903.52/- respectively for his 36 years of service under the petitioner – employer. The second respondent has also claimed leave wages for 120 days amounting to Rs.33,511.36/- and exgratia as paid to other amounting to Rs.2500/- and in all, the petitioner employer is liable to pay Rs.2,10,605.00/- to the second respondent workman. The learned counsel further submitted that in the counter affidavit in which, particularly, in paragraph nos.7 and 8, it is stated as follows:
“7. The petitioner employer admits that he has adjusted from workman money payable under 18(1) settlement dues viz., from Gratuity amounting to Rs.12,652.92/- under the head of missing tools which is https://www.mhc.tn.gov.in/judis 6/14 W.P.No.39123 of 2005 again contrary to Gratuity Act as the gratuity Act says there can be no deduction from gratuity which is a statutory payment like pension for the past services rendered. Further from the settlement benefit payable to the workman only the petition under 33c2 of the I.D., Act 1947 is the remedy for workman as per Supreme court ruling and the workman can ask his money without deduction in his statutory payment.
8. The petitioner – employer has not paid the workman his statutory dues claimed in the 33c2 petition for retrenchment compensation and notice pay, accumulated leave wages etc., in accordance with Law and if he has been paid less the Courts have ruled including Supreme Court and Madras High Court that the employer cannot plead full and final settlement was paid and the workman has received it and he cannot claim further the balance and directed the employer to pay the balance of the statutory amount. Kindly refer the following judgments. Benette colemans co. pvt. Ltd., vs Punia Priya Das Gupta. In this case employer directed to pay leave wages, Gratuity, 970 AIR P.r26 sc. So also in another case Selvaraj vs Sharlow India in W.A.No.1478 of 2006, the Division Bench of Madras High Court held that no estoppel will apply. Held if https://www.mhc.tn.gov.in/judis 7/14 W.P.No.39123 of 2005 Gratuity was paid less it can be asked even if full and final settlement was made.”
6. Heard the rival submissions made by the learned counsel on either side and perused the materials available on record.
7. It is an admitted fact that the second respondent joined the services of the petitioner Management on 01.11.63 and was retired on 11.12.98 and his salary to a sum of Rs.8327.84p per month. The second respondent submitted his letter of resignation on 02.11.98 and the same was also not denied by the petitioner under Ex.R3. The second respondent issued charge sheet develling the allegation of dereliction of duty and enquiry findings were given under Ex.R10. The second respondent himself has given a letter to the petitioner Management under Ex.P2 dated 20.07.99 seeking for withdrawal of resignation. The second respondent's resignation was accepted by the petitioner Management under Ex.P4 dated 16.08.99 and the superannuation of the second respondent was on 12.11.98 and his resignation was accepted only on 16.08.99. The contention of the petitioner Management is that after the letter of withdrawal of resignation, the second respondent was called for settlement and it was settled under Ex.P21 dated https://www.mhc.tn.gov.in/judis 8/14 W.P.No.39123 of 2005 23.08.99. The resignation letter under Ex.R3 was accepted by the petitioner Management under Ex.P4 dated 16.08.99. The final settlement of accounts also was effected under Ex.R.21 in connection with the request made by the second respondent for early settlement of the second respondent dated 21.04.99 under Ex.R.13. Having resigned from duty the second respondent cannot claim retrenchment compensation under Section 25D of the I.D., Act and the notice pay of three months claimed by the second respondent also under section 25N of the I.D., Act.
8. It is pertinent to note that the resignation of the second respondent was accepted vide letter dated 16.08.99 w.e.f. 02.11.98 under Ex.P4 and the second respondent has also accepted the full and final settlement without any protest. In view of the resignation of the second respondent from duty and not attending the duty thereafter, the second respondent was terminated from service by the petitioner Management. In view of the voluntary absence of the second respondent from 02.11.98, he is not entitled for either retrenchment compensation or notice pay. The petitioner Management witness RW.1 would state that the salary of the second respondent was Rs.5933.24p. The petitioner Management has not produced document to show that the monthly salary of the second respondent https://www.mhc.tn.gov.in/judis 9/14 W.P.No.39123 of 2005 was Rs.5933.24p. The petitioner Management being the employer who maintains the leave account of the employee ought to have produced the leave eligibility of the second respondent when the second respondent has specifically claimed leave salary for 120 days. But the petitioner Management has not produced any document in this regard. When the second respondent has clearly asserted 120 days of leave salary, it is for the petitioner Management to disprove the same by production of records and the petitioner Management failed to produce the leave account. Considering the admission of the petitioner Management under Ex.R.12 letter dated 09.04.98 the second respondent is entitled for leave salary as claimed by him. He claimed Rs.2500/- towards exgratia amount. It is not in dispute by the petitioner Management that the second respondent is entitled for bonus, but the petitioner Management used to pay exgratia amount to the employees. The second respondent also claimed exgratia amount for the year 1998 prior to the date of superannuation. It is the bounden duty of the petitioner Management to prove that the second respondent is not entitled for exgratia on the ground that on the date of exgratia payment the second respondent was not in service under the petitioner Management. But the petitioner Management has not furnished the date of disbursement of exgratia amount to the employees. In this regard the second respondent is entitled for exgratia https://www.mhc.tn.gov.in/judis 10/14 W.P.No.39123 of 2005 amount of Rs.2500/-. Hence the first respondent / Labour Court came to the conclusion that the second respondent employee is entitled to leave wages for 120 days and exgratia amount not paid to the second respondent employee is correct.
9. It is well settled principle / law that this Court cannot interfere with the findings of the Labour Court unless it is perverse, discriminatory, arbitrary, error apparent on the face of the record, illegal and unsustainable in law.
10. Considering the above facts and circumstances of this case, this Court is not inclined to interfere with the order passed by the first respondent / Labour Court, Chennai in C.P.No.811 of 1999 dated 05.08.2005 and the same is hereby confirmed and, this Court, directs the petitioner Management to pay a sum of Rs.18,000/- being the balance 50% of the amount as per the order passed by the first respondent / Labour Court in C.P.No.811 of 1999 dated 05.08.2005 along with 5% interest per annum as expeditiously as possible, preferably within a period of six weeks from the date of receipt of a copy of this order. The second respondent is permitted to withdraw the 50% of the Award amount that is a sum of Rs.18,000/- which is already deposited https://www.mhc.tn.gov.in/judis 11/14 W.P.No.39123 of 2005 to the credit of CP.No.811/1999 on the file of the first respondent/Labour Court as per the orders of this Court on 05.12.2005 along with accrued interest for which the second respondent shall file the copy application for the said order and to withdraw the amount.
11. With the above direction, this writ petition stands disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
22.08.2022 Index : Yes/No Speaking/Non Speaking order cda To
1.The Presiding Officer, Principal Labour Court, Chennai.
https://www.mhc.tn.gov.in/judis 12/14 W.P.No.39123 of 2005
2.The Managing Director, M/s.Kone Elevators, No.50, Vanagaram Road, Ayanambakkam, Chennai.
J.SATHYA NARAYANA PRASAD, J.
cda https://www.mhc.tn.gov.in/judis 13/14 W.P.No.39123 of 2005 W.P.No.39123 of 2005 22.08.2022 https://www.mhc.tn.gov.in/judis 14/14