Madras High Court
Unknown vs . on 25 September, 2018
W.P.Nos.24642,31384 and 33399 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on:21.06.2023 Delivered on:
28.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
W.P.Nos.24642,31384 and 33399 of 2018
&
W.M.P.Nos.36569,38769,28678 and 28679 of 2018
W.P.No.24642 of 2018
1.V.R.Venkatesan (S1352)
2. J.Kumar (S1355)
3. R.Senthamaraikannan (S1359)
4. N.Sampathkumar (S1360)
5. V.Y.Sivakumar (S1361)
6. A.Kesavan (S1367)
7. V.Srinivasan (S1540)
8. S.Velayoudam (S1546)
9. A.G.Venkatapathy (S1553)
10. R.Mani (S1562)
1/23
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W.P.Nos.24642,31384 and 33399 of 2018
11. V.Govindaraj (S1564)
12. C.Rajaraman (S1565)
13. B.Shanmugam (S1646)
14. C.Ravy (S1678)
15. A.Amuthavanan (S1554)
16. K.Sandirasegaran (S1557)
17. D.Sankar (S1620)
18. V.Vasantha Coumare (S1655)
19. K.Anandan (S1657)
20. J.Ganesan (S1659)
21. M.Peroumal (S1661)
22. P.Rangarasu (S1666)
23. K.Djeamourthy (S1667)
24. M.Kumarasamy (S1684)
25. V.Baskaran (S1685)
All are Employed as Technical Supervisors in
Anglo French Textiles Mudaliarpet
Puducherry 605 004
2/23
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W.P.Nos.24642,31384 and 33399 of 2018
Vs.
1. Anglo French Textiles
(Unit of Pondicherry Textile Corporation
Limited) Rep by its Managing Director
Mudaliarpet Puducherry 605004
2 Pondicherry Textile
Corporation Limited Rep by its Chairman and
the Chief Secretary to the Government of
Puducherry Puducherry 605 001
3 The Government of Puducherry
represented by its Chief Secretary
Puducherry-605 001
(R3 impleaded
vide order dated 25.09.2018
in W.M.P.No.29350 of 2018
in W.P.No.24642/18)
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus Directing the Respondents herein to pay
to the Petitioner (i) Monthly salary and allowances at the rates applicable
from time to time for the period from 01.01.2013 till 30.04.2020 (ii)
Employers contribution towards EPF accounts of the Petitioners for the
period from 01.01.2013 to 30.04.2020 and (iii) Salary for the months of July
and August 2012 taken by the 1st respondent Mill as Working Capital.
3/23
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W.P.Nos.24642,31384 and 33399 of 2018
(PRAYER AMENDED VIDE ORDER DT 20.09.2022 MADE IN
WMP.24355/2022 IN WP.24642/2018 BY AQJ)
For Petitioners : Mr.Kandan Doraisami
For Respondents : Mr.S.Kingston Jerold for R1
Mr.M.Nirmal Kumar, Govt.Adv for R2 and 3
W.P.No.31384 of 2018
1.P.Sankar(S1349)
2.P.Elayaperumal (S1350)
3.B.Segar (S1353)
4.R.Devarajan (S1475)
5.J.Anvar Sheriff (S1501)
6.S.Arul Selvan (S1543)
7.V.Mohan (S1551)(died)
8.K.Balasubramanian(S1558)
9.D.Ganesan (S1654)
10.V.Sittaramane(S1677)
4/23
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W.P.Nos.24642,31384 and 33399 of 2018
11.D.Thamilchelvi
12.M.Harini
13.Minor Harish Bala
rep by his mother and next friend
D.Thamilchelvi
14.V.Saroja ... Petitioners
(P11 to P14 substituted as
LR's of deceased petitioner P7 vide
order dated 12.09.2022
in W.P.No.31384 of 2018)
made in W.M.P.No.4833/2022
Vs.
1. Anglo French Textiles
(Unit of Pondicherry Textile Corporation
Limited) Rep. by its Managing Director
Mudaliarpet Puducherry - 605004
2 Pondicherry Textile Corporation Limited
Rep. by its Chairman and The
Chief Secretary to the Government of
Puducherry Puducherry - 605001
3 Union Territory of Puducherry
Rep. by The Chief Secretary to Government
Puducherry – 605001 ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the respondents herein to pay
5/23
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W.P.Nos.24642,31384 and 33399 of 2018
to the Petitioner (i) Monthly salary and allowances at the rates applicable
from time to time for the period from 01.01.2013 till 30.04.2020 (ii)
Employers contribution towards EPF accounts of the Petitioners for the
period from 01.01.2013 to 30.04.2020 and (iii) Salary for the months of July
and August 2012 taken by the 1st respondent Mill as Working Capital.
(PRAYER AMENDED VIDE ORDER DT 20.09.2022 MADE IN
WMP.24352/2022 IN WP.31384/2018 BY AQJ)
For Petitioners : Mr.Kandan Doraisami
For Respondents : Mr.S.Kingston Jerold for R1
Mr.M.Nirmal Kumar, Govt.Adv for R2 and 3
W.P.No.33399 of 2018
1. M. Ragupathi
2. N.Meenatchisundraram
3. K.Kannan
4. V.S.Shanmugham
5. T.Rajakumar
6. Christopher Fernandez
7. R.Balasubramanian
8. S.Jeyamoorthy
6/23
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W.P.Nos.24642,31384 and 33399 of 2018
9. N.Selvakumar
10. P.K.Kuppusamy
11. R.Krishnakumar
12. T.Kuppusamy
13. P.L.Sockalingam
14. G.Rajan
15. N.V.Srinivasan
16. R.Chandravathanam
17. N.Krishnamoorthy
18. S.Sivashanmugam
19. S.Adinarayanan
20. R.Pandian
Vs.
1.Union Territory of Puducherry
Rep by the Chief Secretary
Government of Puducherry
Puducherry 605 001
2.The District Collector of
7/23
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W.P.Nos.24642,31384 and 33399 of 2018
Puducherry,Saram, Puducherry 605 013
3. Anglo French Textiles
Unit of Puducherry Textile Corporation
Limited Rep by its Managing Director
Mudaliarpet Puducherry 605004 ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the respondents herein to pay
the arrears of salary for the months of January to October 2013 together with
interest at 10% after adjusting the advance of Rs.40,000/-.
For Petitioners : Mr.Kandan Doraisami
For Respondents : Mr.M.Nirmal Kumar, Govt.Adv for R1 and 2
Mr.S.Kingston Jerold for R3
COMMON ORDER
W.P.No.24642 of 2018 This writ petition was originally filed seeking issuance of a writ of mandamus to direct the respondent to pay salary and allowances to the petitioners. However subsequently, pending the writ petition, the petitioners have taken out an application to amend the prayer and the said application was also ordered by this Court. In view of the amended prayer the directions 8/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 sought for is for payment of salary and allowances for the period 01.01.2013 – 30.04.2020 and employer’s contribution for the same period namely 01.01.2013 – 30.04.2020 and for salary for the month of July and August 2012 (amendment order vide WMP No.24355 of 2022 dated 20.09.2022) W.P No.33399 of 2018.
This writ petition has been filed seeking issuance of awrit of mandamus to direct the respondent to pay arrears of salary for the months January to October 2013, together with interest as 10% p.a. after adjusting the advance of Rs.40,000/-.
W.P No.31384 of 2018
This writ petition was filed originally filed seeking issuance of a writ of mandamus to direct the respondent to pay salary and allowances to the petitioners. However subsequently, pending the writ petition,the petitioners have taken out an application to amend the prayer and said application was ordered by this Court. In view of the amended prayer, the directions sought 9/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 for is for payment of salary and allowances for the period 01.01.2013 – 30.04.2020 and employer’s contribution for the same period namely 01.01.2013 – 30.04.2020 and for salary for the month of July and August 2012 (amendment order vide WMP No.24352 of 2022 dated 20.09.2022).
2. The prayer in two of the three writ petitions is one and the same. The facts that are common in these writ petitions are that the petitioners are all newly appointed to the 1st respondent, Anglo French Textiles, which is a unit of the 2nd respondent and a Government of Puducherry undertaking. It is not in dispute that the terms and conditions of appointment of the petitioners were the same as applicable to central government employees.
3. W.P.No. 7731 of 2014, was filed by the Anglo-French Textiles Technical Supervisor’s Welfare Association seeking implementation of the sixth central pay commission recommendations and pending the said writ petition, the 1st respondent was severely affected by the ‘Thane Cyclone’ on 29th and 30th of December 2011. As a result, workmen were laid off with 10/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 effect from 05.11.2014. However, the petitioners being technical supervisors and not governed by Industrial Disputes Act, 1947 were not treated on par with the laid off workmen who were paid 50% of the wages as lay off compensation. In the case of the petitioners, the management decided to pay them Rs.15,000/-per month under the head of salary advance. After February 2017, the head salary advance was treated by the management as ex- gratia payment. According to the petitioners, even the said the meagre amount of Rs. 15000/- was not paid from March 2018, thereby crippling the petitioners. Despite request for re-deployment to suitable and other posts, no action was taken and it is also the specific case of the petitioners that as they continued to be the employees of the respondent, they were also restrained from taking up any other employment. Under such circumstances, the petitioners approached this court seeking issuance of a writ of mandamus.
4. In so far as W.P.No. 33399 of 2018, the petitioners in the said writ petition have narrated the same facts that have been set out in the other two writ petitions. Besides the same, they have also stated that on 17.12.2015 an 11/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 18(1) Settlement was reached, agreeing to pay the salary of the petitioners for the months beginning January 2013 and ending October 2013, and after adjusting the advance of Rs. 40,000/- paid to them. It is the case of the petitioners in this writ petition that despite the 18 (1)Settlement on 17.12.2015, the 3rdrespondent did not take any steps to sell its lands and consequently settle the admitted dues to the petitioners.
5. The 1st respondent has filed a counter as well as an additional counter stating that right from 2014 that there was no production and consequently no work was done by the petitioners. Invoking the principles of ‘no work, no pay’, the 1st respondent contented that the petitioners are not entitled to seek any monetary benefits, much less the amounts claimed in the writ petitions. It is also contended that the 1st respondent has been practically shut down and liabilities are running to hundreds of crores. In so far as the interim payment that has been made to the petitioners, it is contended that even though the petitioners were not covered under the Industrial Disputes Act, on humanitarian grounds the petitioners were paid the ex-gratia payment 12/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 of Rs.15000/- and subsequently the board also took a decision to stop paying the said sum of Rs.15,000/-in view of the precarious financial position of the mill.
6. The 3rd respondent has filed a separate Counter Affidavit toeing the very same of the line of the government. In so far as the sale of the said assets of the mill, it has been mentioned that the steps have been taken in that regard. However, applying the principle of ‘no work, no pay’, the claim of the petitioners is sought to be rejected.
7. Heard Mr.Kandan Doraisamy, counsel for petitioners in all the three cases, Mr. Kingson Jerald, Counsel for the mill i.e.. 1st respondent and Mr.M.Nirmal Kumar,Government Advocate for the Government of Pondicherry. This court has also perused the documents in support of the writ petitions, as well the decisions that have been relied on by the counsel for petitioners.
13/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018
8. At the outset, it is not in dispute that the petitioners in all the cases is employed in the 1st respondent mill. The fact that the 1st respondent mill fell into financially troubled waters is also admitted. Equally, the payment of Rs.15,000/- every month to the petitioners were also not denied. Most importantly, the respondent do not deny the fact that the petitioners continued to be the employees of the 1st respondent in W.P.No.31384 of 2018 and W.P.No.24642 of 2018 and 3rd respondent in W.P.No. 33399 of 2018. It is also a matter of the fact that, pending the writ petitions, interim direction were given and the amounts were released to the petitioners at the rate of 15,000/- per month for a particular period. It is also seen that by the end of April 2020, the mill was completely shut. The petitioners also do not dispute the fact that the closure compensation and gratuity were duly paid to them. The counsel for the petitioners also states that close to 97 workers were actively working in the spinning unit upto30.04.2022 and the contention of the respondents that the mill was closed even in 2013 cannot be countenanced. Further this court also finds that even in the appointment order issued to the petitioners, it has been made clear that the petitioners would not be permitted to engage 14/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 themselves in part time profession, business or other work or interest in any business,directly or indirectly. The only contentious issue is as to salary as claimed by the petitioners which is denied by the respondent on the ground that the petitioners have not worked during the said period for which they claim salary and therefore they were not entitled to seek relief by way of a writ petition, that too in a nature of a positive direction by issuance of writ of mandamus to pay specified amounts to the petitioners. The counsel for petitioners would make his submissions citing several judgments of Hon’ble Supreme Court and also with regard to the fact that the mill was partly functioning upto April 2020, and only towards the end of April 2020 the mill was fully closed and therefore to state that even in 2013 after the Thane Cyclone, the mill was not functioning was wholly unjustified. It is also contended that the employer’s contribution of Employment Provident fund contribution also not paid in the case of the petitioners in the W.P Nos.24642 and 31384 of 2018.
9. In so far as the main ground of defence taken by the respondent viz., 15/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 ‘no work, no pay’, the counsel for petitioners would state it was not the case that the petitioners had voluntarily abstained from doing the work and on the contrary, it was a case where the 1st respondent was not in a position to give any work to the petitioners. Therefore, he would contend that the principle “no work, no pay”, cannot be applied to the facts on hand. In so far as in W.P 33399 of 2018 the counsel for the petitioners would state that the petitioners have sought only limited relief of 10 months salary, pursuant to 18 (1)Settlement arrived at with the 1strespondent and it is not open to the respondent to go back on the agreed terms and deny payment of salary to the petitioners.
10. Per contra, the counsel for the respondents would state that considering the financial position of the 1st respondent,a one-man committee was appointed who recommended the 1st respondent mill to be closed for good in April 2020 and accordingly the mill was closed and all employees, including the petitioners were paid closure compensation also. In so far as salary claimed the petitioners, the counsel for respondent would fall back on 16/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 the principle of no work no pay to deny them their claim for salary. They would also argue that it was an Act of God that had resulted in the compelling circumstances to close the mill once and for all. Citing the Thane cyclone and when the situation arose beyond the control of the respondent, the respondent cannot be held responsible for the non-payment of dues to the petitioners. Advancing these arguments, the counsel for respondents prayed for dismissal of the writ petitions.
11. The counsel for petitioners would place reliance on the following judgments:
i) Union of India &ors Vs. K.V. Janakiraman&ors reported in (1991) 4 SCC 109.
ii) J.N.Srivatstava Vs. Union of India & another reported in (1998) 9 SCC 559
iii) Burn Standard Co.Ltd and another Vs. Tarun Kumar Chakraborty & ors reported in (2002) 10 SCC 585
iv) Punjab National Bank Vs. Virender Kumar Goel and others 17/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 reported in (2004) 2 SCC 193
v) State of Uttar Pradesh Vs. Dayanand Chakrawarty and Others reported in (2013) 7 SCC 595
vi) Shoba Ram Raturi Vs. Harayana Vidyut Prasaran Nigam Ltd reported in (2016) 16 SCC 663
12. The ratio laid down by the Hon’ble Supreme Court in all the above cases is more or less identical. To summarise the position, when the employee was ready and willing to work, but the employer did not allow him to work or where the employee was kept away from work by the employer, for no fault of the employee and in cases where the employee is out of job and then fault lies with the employer in not having utilised the services of the employee, then the employer cannot take shelter under the principle of no work, no pay and deny the payment of salary to the employee. The ratio laid down by the Apex court in the above cases would also squarely apply to the facts of the present cases. The petitioners, admittedly continued to be the employees of 1st respondent. The fact that the petitioners were paid closure compensation after 18/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 the mill was closed on 30.04.2020 clinches the issue in favour of the petitioners. Admittedly, there is a ban on taking any other employment as long as the petitioners were employed in the 1st respondent mill, which is fact not disputed by the respondents when the respondents were not in a position to assign any work to petitioners, they cannot take umbrage under the principle of no work, no pay and deny payment of salary to the petitioners.
13. The other contention raised by the respondent is that the it was an Act of God. Therefore, no fault cannot be attributed to the respondent and consequently the petitioners cannot be entitled to payment of salary. This court does not find any merit in the said argument. Admittedly the mill continued to run even after the Thane cyclone, though in a truncated manner. Even according to the respondents only pursuant to the recommendations of the one-man committee, the mill was once and for all closed on 30.04.2020. It is also contented specifically by the counsel for petitioners that the spinning unit was functioning till mid of April 2020 and close to 100 workers were working. The reliance placed on ‘Act of God’ cannot be applied to the facts of 19/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 the present case in order to come to the rescue of the respondents. It is not the case of the respondents that because of the Thane cyclone no further activities were possible the mill was shut down thereafter. Even in their counter, the respondent have admitted that in 2013 few sections of the mill were partially functioning and lay off was declared only on and from 05.11.2013. Infact, it is seen that from the counter of the 3rd respondent that ‘C’ unit spinning department has been functioning and producing yarn as against the earlier production from cotton to printed fabric. This court, therefore, does not see any ground for invoking ‘Act of God’ to hold that non-payment of salary to the petitioners was only a direct consequence of an Act of God. This court has already held that “no work, no pay” would not be applicable to the facts of the present cases. Consequently, the petitioners are entitled to relief.
14. In so far as the claim with regard to employer ‘s contribution of EPF, admittedly, the respondent has not paid the same. Though the respondent may cite financial losses and hardships, statutory payments cannot be denied, citing such excuses. Therefore, the petitioners are entitled to 20/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 this relief as well.
In fine, the writ petitions are allowed as prayed for and the respondents shall take earnest steps to settle the amount due and payable to the petitioners. This court, considering that the respondents have denied petitioner’s due salary, directs the respondents to settle the amounts due and payable to the petitioners within a period of 12 weeks from date of receipt of a copy of this order. No costs. Consequently, connected Writ Miscellaneous Petitions are closed.
28.07.2023.
Internet:Yes Index:Yes/No Neutral Citation:Yes/No kpr 21/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 To
1. The Managing Director Anglo French Textiles (Unit of Pondicherry Textile Corporation Limited) Mudaliarpet Puducherry 605004 2 The Chairman and Chief Secretary Government of Puducherry, Pondicherry Textile Corporation Limited Puducherry 605 001 3 The Chief Secretary Government of Puducherry Puducherry-605 001 P.B.BALAJI, J., kpr 22/23 https://www.mhc.tn.gov.in/judis W.P.Nos.24642,31384 and 33399 of 2018 Pre-delivery order in W.P.Nos.24642,31384 and 33399 of 2018 28.07.2023 23/23 https://www.mhc.tn.gov.in/judis