Madras High Court
Natham Co-Operative Agricultural Bank ... vs The Presiding Officer, Principal ... on 10 September, 1996
Equivalent citations: (1997)ILLJ164MAD
ORDER
1. This writ petition is for writ, of certiorari to quash the orders in Claim petition No. 369 of 1984 dated February 4, 1986 on the file of the first respondent.
2. The petitioner is Natham Co-operative Agricultural Bank registered under the provisions of the Tamil Nadu Co-operative Societies Act, 1961. The Second respondent was working as clerk-cashier. He was suspended on May, 23. 1983 for grave irregularities involving criminal misappropriation and breach of trust. Further, the financing bank viz. Madurai District Central Co-operative Bank, on enquiries reported that the second respondent had acted against the interests of the Bank and on receipt of the said report, the petitioner made further verification of the bank report and issued charge memos on July 27, 1984 and August 8, 1984. The second respondent submitted his explanations on December 20, 1984 and December 26, 1984. The explanations were submitted after the notice for the enquiry was served on the second respondent for enquiries on October 24, 1984. When the enquiry commenced, the petitioner received a telegram from the second respondent requesting the petitioner for adjournment. Accordingly, the enquiry was posted to November 28, 1984. But the second respondent wanted further adjournment. Hence the enquiry was adjourned to December 8, 1984. On December 8, 1984 also another telegram was received requesting further adjournment of the enquiry and the enquiry was adjourned to March 4, 1985. In the enquiry on March 4, 1985, the second charge memo was taken up; witnesses for the management deposed on March 4, 1985. But the petitioner wanted further adjournment. Hence the enquiry was adjourned to March 19, 1985. On that date, the second respondent himself was examined. The second enquiry was adjourned from April 3, 1985 to different dates at the request of the second respondent. The enquiry was finally taken up on August 21, 1985. On that date, the second respondent has represented that he could not produce his witnesses. On September 20, 1985 the enquiry report was submitted finding the charges proved. Hence on March 7, 1986 the second respondent was dismissed from service.
3. Subsequently the second respondent filed Claim Petition No. 369 of 1984 before the first respondent herein under Section 33(c)(2) of the Industrial Disputes Act hereinafter referred to as the Act) claiming a sum of Rs. 2.393.24 as subsistence allowance. The Claim was under Section 3 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. The petitioner contended that application under Section 33(c)(2) of the Act was not maintainable since the claim is covered by Section 3 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. The First respondent overruling the objection passed an order on February 4, 1986 computing the claim at Rs. 2,373.24. Hence, the writ petition has been filed by the management.
4. No counter affidavit filed on behalf of the respondents.
5. Learned counsel for the petitioner contended that the claim for subsistence allowance is governed by the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 and the petition before the Labour Court under Section 33(c)(2) of the Act is not maintainable. According to him a special forum has been created under the said Act. As per Rule 5-A an appeal is also provided to another forum i.e. before the Deputy Commissioner of Labour.
6. He also relied upon a decision in State Of Punjab v. Labour Court (1981 I-LLJ 354). In the said decision the Supreme Court has held that Parliament intended that the Proceedings for payment of gratuity due under the Payment of so Gratuity Act must be taken under the Act and not under any other forum. It further held that application filed under Section 33(c)(2) of the Act did not lie. Counsel for the petitioner further contended that the second respondent cannot straightaway file an application under Section 33(c)(2) of the Act. There must be a prior adjudication. In the absence of such adjudication, the application under Section 33(c)(2) of the Act is not maintainable. On the other hand learned counsel for the respondent vehemently contended that the petitioner under Section 33(c)(2) of the Act before the Labour Court is maintainable. According to him there is an implied permission under the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Section 4 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, specifically states that without prejudice to any other mode of recovery make an application to the Government in such a manner as may be prescribed. He also relied upon the words in Section 5 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, which states that nothing in that Act shall affect any right or privilege to which any employee is entitled on the date of the commencement of that Act, under any law for the time being in force or any contract, custom or usage which is more favourable to him. He also contended that once the second respondent removed from service with effect from May 23, 1983 i.e. from the date of order of suspension he is not eligible to claim subsistence allowance.
7. Mr. G. Venkataraman learned counsel for the second respondent cited the following authorities in support of his contentions :
1) 1975-II-LLJ-39 (Mad)
2) 1977 LIC 432
3) 1983-I-LLJ-342 (Ker)
4) 1993-II-LLJ-193 (Ker) In Ananda Transport. Tirupathur v. M. Chelliah And Others (1975-II-L.L.J-39) the question was whether the allowance for uniforms and chappals and washing allowance, form part of wages. In the said case a Division Bench of this Court has accepted the contention that the benefits such as the allowance for uniforms and chappals form part of wages and therefore the forum for claiming the same was the forum created under the payment of wages Act. Learned Judges took the view that they are claiming benefits which can be computed under Section 33(c)(2) of the Industrial Disputes Act, 1947
8. Incidentally the Bench has also pointed out I that Section 33C(2) of the Act creates a Tribunal which has all the trappings of an executing Court as is ordinarily understood in civil law. Therefore, the said decision is not helpful to the respondent.
9. In M. Krishnaswamy V. Assam Tea Depot is 1977 LAB. I.C. 432 a Bench of the Andhra Pradesh High Court has held that not only the benefit under the Industrial Disputes Act can be computed, the benefits conferred on workmen under any other law can also be computed under Section 33C(2) of the Act. The facts of the said case show that the workman filed a petition before the Labour Court claiming salary in lieu of p notice, salary for any unavailed leave gratuity and bonus. The management took the objection that the provisions of the Tamil Nadu Shops and Establishments Act, and rules there under are also applicable to the claims of the workman. Therefore, he should have resorted to the said forum. Interpreting Section 63 of Andhra Pradesh Shops and Establishments Act, 1966 which state that.
"The Act shall not affect any rights or privileges which any employee in any establishment is entitled to, on the date on which this Act comes into operation in respect of a such establishment, under any other law, contract, custom or usage applicable to such establishment if such rights or privileges are more favourable to him than those to which he would be entitled under this Act."
The learned Judges found that Section 63 enables the employee to move the forum under the Shops & Establishments Act or the Labour Court. Hence the said case is also not on the point.
11. In Delhi Transport Corporation v. D. D. Gupta (1977 LIC 1757) also the question was whether the benefits accrued to the motor transport worker under Motor Transport Workers Act, 1961 viz., subsistence allowance payable under the said Act should be claimed only under the said Act in the forum. In the said case it was held that the Motor Transport Workers Act, 1961 did not bar the claim tinder the Industrial Disputes Act. It is also a case where the benefits were available under two enactments. Therefore, the workman was entitled to choose either of the two but it is not contended before me that the subsistence allowance is provided under the Industrial Disputes Act.
12. In Vimal Printers V. Omana (1983-I-LLJ-342) a single Judge of the Kerala High Court has taken the view that "The Minimum Wages Act, is not a self-contained code incorporating all the provisions relating to payment of wages, or even minimum wages and the Act discloses no intention that proceedings for the payment of minimum wages shall be exclusive preserve of the authority appointed under Section 20". Therefore, in that case also, it is clear that minimum wages can be claimed by resorting to Section 33C(2) of the Act or under Minimum Wages Act, 1948. Therefore, in that case also, the benefit is available under both the enactments. Hence the workman has a choice.
13. In Chennamangalam Nair Sama Jam v. Sarada (1993-II-LLJ-150) the learned single Judge of the KERALA High Court has held that the payment of subsistence allowance can be claimed under Section 33C(2) of the Industrial Disputes Act, 1947. As per Section 4 of the Kerala Payment of Subsistence Allowance Act, 1973, a specific provision is "without prejudice to any other mode of recovery". Therefore, according to the learned Judge when a benefit can be recovered by a person by resorting to number of modes he can choose one.
14. In Kerala State Co-operative Coir Marketing Federation v. Labour Court And Others (1993-II-LLJ-193), learned Judge of the Kerala High Court relied upon the earlier decision of the same High Court in Chennamangalam Nair Samajam V. Sarada (Supra) These two cases appear to be of some help to the contention of the counsel for the respondent. With great respect to the learned Judge, I am not in a position to agree with the same.
15. When a benefit is conferred upon an employee under two enactments or two or more enactments and when there are modes prescribed for recovery of the said benefit under each of the said enactment, it is no doubt possible for the employee to make a choice. But when a specific benefit is conferred under a specific enactment prescribing a specific procedure to recover or to realise the said benefits, the normal rule is that the procedure under the said enactment alone has to be resorted.
16. In Dharmapuri District Co-op Sugar Mills Ltd. v. P. Viswanathan & Others (1994-II-LLJ-359), the first Bench of this Court has upheld the contention of the learned counsel that the claim petition under Section 33C(2) of the Act is maintainable where the employee seeks monetary benefits under order of promotion and Section 15 of the Payment of Wages Act. The following passage in para 3 of the said Judgment is relevant :
"Therefore it follows that in all other cases, as also the case before us, where the employer is refusing to pay the wages as per their own promotion order, there is no reason at all as to why Section 33-C(2) of the Industrial Disputes Act cannot be invoked. Even in cases which are covered by Section 15 of the Payment of Wages Act there seems to be absolutely no bar to deal with a claim of an employee under section 33-C(2) of the Industrial Disputes Act. We may here record that the case of the first respondents was not one relating to either delay in the Payment of wages or deduction in the payment of wages."
In the said case the claim of the employee was not under Section 15 of the Payment of Wages Act, because the Judges have found that the claim was not in respect of either delay in payment of the wages or deduction in the payment of wages. Counsel's contention in that case was that the claim would fall under the said Section. Therefore the resort must be under Section 15 of the Payment of Wages Act. Another important thing to he noticed is that as per Section 15 of the Payment of Wages Act, the Presiding Officer of any Labour Court or Industrial Tribunal constituted under the Industrial Disputes Act, 1947 or any other corresponding law relating to settlement on industrial disputes can be appointed as authorities under the said Act. The contention by the learned counsel for the appellant before the Bench was with reference to the provisions-cited on the application for payment of monetary benefit under the order of promotion and not to the forum. Therefore, in my view the Bench decision is also not in support of the counsel for the respondent.
17. Section 4 of the Tamil Nadu Payment of Subsister, Allowance Act as well as Kerala Payment of Subsistence Allowance Act, 1972 are almost identical which is as follows :
"Recovery of money due from an employer :- Where any money is due to an employee from an employer under this Act, the employee himself or any other person authorised by him in this behalf, or in the case of death of the employee, his legal representative may, without prejudice to any other mode of recovery make an application to the Government in such manner as may be prescribed for the recovery of money due to him, and if the Government after giving the employer an opportunity of being heard in such manner as may be prescribed, is satisfied; that any money is so due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue.
It is clear from Section 4 itself that this remedy is without prejudice to any other mode of recovery. It is argued by learned counsel on the basis of general principle of interpretation that normally when a special statute is enacted for the purpose of enforcincing some rights and a machinery is provided thereunder, recourse will be had to that machinery and to none else. However, that principle can hardly have an application in the instant case, in as much as Section 4 expressly states that the machinery provided under Section 4 is only without prejudice to any other mode of recovery.
A reading of the Section will clearly show that where, the money is due, to an employee from an employer under the payment of Subsistence Allowance Act, it can he recovered ~from the employer by making an application to the Government etc., in such a manner as may be prescribed. The said application for recovery of the said amount is without prejudice to any other mode to recover. Therefore, the plain meaning of the section is that for recovery of the money due under the Payment of Subsistence Allowance Act, if there is any other mode, then that mode of recovery also can be resorted to. Even though learned counsel for the respondent cited number of decisions as referred to above, he was not in a position to bring to my notice any other mode or modes for recovery of the subsistence allowance provided under any other enactment, including the Industrial Disputes Act. Further, the other mode of recovery must be read together with money due to an employee from an employer. If both these phrases are read together, it would mean that the employee can file a suit for recovery of the money. Because the other common law procedure for recovery of money. is a regular suit, such an interpretation will be the intention of the legislature. For recovery of money, the common law remedy is effective because, attachment of property and prohibitory orders to garnishee are also available. Hence the legislature thought that prejudice to such an effective remedy should not be caused.
18. We have already noticed that the counsel for the respondent referred to Section 5 of the Tamil Nadu Payment of Subsistence Allowance 4, Act, 1981. I do not understand how this Section is helpful to the contention of the learned counsel for the respondent viz., that instead of moving the forum under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 resort can be made to the Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947. Section 5 reserves the right of an employee to claim better benefit under any other enactments. If better privileges or benefits are provided as a substitute for the subsistence allowance under any other enactment or contract or custom or usage, then the employee can have recourse to any one forum for recovery of these better benefits.
19. Now I will go back to the other contentions raised by the learned counsel for the petitioner, which were set out earlier viz., that there was no prior adjudication before resort is made under Section 33C(2) of the Act and that the second respondent has been dismissed from service with effect from May 23, 1983 and hence he is not entitled to claim any subsistence allowance.
20. The second contention referred to above is untenable. The Payment of Subsistence Allowance Act operates independently and becomes applicable to him. Whenever, there is an order of suspension with reference to the employees, he is governed by the provisions of the said Act. It creates liability immediately on the passing of an order of suspension. Therefore, the principles of merger of the period of suspension with removal cannot be applied. There is no provision in the Taniil Nadu Payment of Subsistence Allowance Act or Rules or Regulations governing the order of suspension to the said effect.
21. The other contention viz., resort can be made to the Labour court under Section 33C(2) of the Act only when there is a prior adjudication has also some force, in view of the latest judgment of the supreme Court in Municipal Corpo-ration of Delhi v. Ganesh Razah and Another (1995-1-LLJ-395). In the said case the Supreme Court has categorically held that the Labour Court exercising power under Section 33-C(2) is an execution Court; there must he already something to be executed.
22. After considering all the facts and circumstances of the case and the decisions referred to above, I am of the view that the claim petition under Section 33-C(2) of the Industrial Disputes Act, before the first respondent is not maintainable. The writ petition deserves to be allowed. Accordingly, this writ petition is allowed. However, there will be no order as to costs.