Madras High Court
K.Dharmalingam vs The Labour Court on 24 August, 2012
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.08.2012
CORAM:
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.P.No.789 of 2012
K.Dharmalingam .. Petitioner
v.
1.The Labour Court, Coimbatore
Rep. By its Presiding Officer,
Coimbatore 641 018.
2.Management of Coimbatore District
Consumer's Co-op, Wholesale Stores Limited,
No.K-881, Post Box No.1098,
R.S.Puram, Coimbatore 641 002.
Rep. By its Special Officer .. Respondents
Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus, calling for the records relating to the Award dated 14.03.2011 in C.P.No.397 of 2006 of the first respondent and quash the same as being illegal, arbitrary and perverse and consequently direct the second respondent to pay the wages due to the petitioner with penal interest and all other attendant benefits.
For Petitioner : Mr.C.K.Chandrasekkar
For Respondent : Mr.P.Anbarasan for R2
O R D E R
The petitioner was an employee of the second respondent Co-operative Society. He retired from service on 31.10.2004. A sum of Rs.86,000/- was deducted from the salary of the petitioner from August 2003 to October 2004 i.e., till he retired from service.
2. The petitioner filed a claim petition in C.P.No.397 of 2006 before the first respondent-Labour Court under section 33(C)(2) of the Industrial Disputes Act, 1947 claiming the aforesaid amount.
3. The second respondent-Management took a plea that the second respondent incurred loss in running a liquor shop. The loss was taken as Rs.4,30,000/- and the same was apportioned among the five employees including the petitioner. As per the apportionment, Rs.86,000/- was recovered from the salary of the petitioner. Further, the issue as to the validity of the recovery could not be gone into under section 33(C)(2) of I.D. Act and the remedy is by way of raising an industrial dispute.
4. The Labour Court passed an order dated 14.03.2011 rejecting the claim of the petitioner stating that the above Computation Petition under section 33(C)(2) of the Industrial Disputes Act, 1947 is not maintainable, since the issue as to whether the recovery shall be made from the salary of the petitioner or not is a disputed one and the same shall be resolved only by way of an Industrial Dispute under section 10 of the Industrial Disputes Act.
5. The petitioner has filed this writ petition to quash the order dated 14.03.2011 of the first respondent and for a direction to the second respondent to repay the amount that was recovered from his salary.
6. A counter affidavit is filed by the second respondent refuting the allegations.
7. Heard both sides.
8. The learned counsel for the petitioner submits that the above recovery was made illegally contrary to sections 34(2)(c) and 37 of the Tamil Nadu Shops and Establishments Act, read with By-Law No.7 in annexure to the Regulations framed under Special By-Laws No.20 relating to the service conditions of the employee.
9. On the other hand, the learned counsel for the second respondent has submitted that Tamil Nadu Shops and Establishments Act, 1947 is not applicable to the second respondent-Establishment except section 41, since the same was exempted under section 6 of the Tamil Nadu Shops and Establishments Act.
10. In reply, the learned counsel for the petitioner submitted that sections 34(2)(c) and 37 of the Tamil Nadu Shops and Establishments Act, as such, would not apply to the second respondent-Establishment, but, the same sections are getting incorporated into the By-Laws referred to above and in support of his contentions, he has relied on the Division Bench judgements of this court in W.A.No.1372 to 1375 of 2006, dated 08.01.2007 and W.A.No.1264 of 2009, dated 07.10.2009 .
11. I have considered the submissions made on either side.
12. A sum of Rs.86,000/- was recovered from the salary of the petitioner from August 2003 to 31.10.2004. The petitioner has questioned the recovery on the ground that the recovery was made illegally contrary to the provisions of the By-Laws framed under the Tamil Nadu Co-operative Societies Act. There is no bar for the Labour Court under section 33(C)(2) of the Industrial Disputes Act to decide as to whether the recovery- from the earned wages was made in violation of the By-laws of the second respondent co-operative society. If it is the case of the second respondent that punishment of recovery from wages was imposed pursuant to disciplinary action, then it is different. If an employer makes illegal deduction from the earned wages, the employee shall not be directed to seek remedy by raising industrial dispute under section 2(k) of the I.D. Act and to get the same adjudicated by the Labour Court after reference under section 10 of I.D. Act is made by the Government.
13. The relevant By-Law relied on by the petitioner is extracted hereunder:-
"7. Deductions which may be made from wages shall be in accordance with the relevant provisions of Chapter VII of the Madras Shops and Establishment Act, 1947 as amended from time to time."
14. It is not in dispute that the provisions of the Tamil Nadu Shops and Establishments Act, 1947 are exempted for the second respondent except section 41. Therefore, in the normal course, sections 34(2)(c) and 37 of the Tamil Nadu Shops and Establishments Act, relied on by the petitioner, could not be of any use.
15. The By-Laws say that any deduction from the wages of the employee shall be made only in accordance with the provisions contemplated under chapter VII of the Tamil Nadu Shops and Establishments Act. Sections 34 and 37 come under Chapter VII of the Tamil Nadu Shops and Establishments Act, 1947.
16. Sections 34 and 37 of the Tamil Nadu Shops and Establishments Act, 1947are extracted hereunder:-
"34. Deductions which may be made from wages:- (1) The wage of a person employed shall be paid to him without deductions of any kind except those authorised by or under this Act.
Explanation.- Every payment made by a person employed to the employer shall, for the purpose of this Act, be deemed to be a deduction from wages.
(2) Deduction from the wages of a person employed shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely:-
(a) fines;
(b) deductions for absence from duty;
(c) deductions for damage to, or loss of goods expressly entrusted to the employed person for custody, or for loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default;
(d) deductions for house accommodation supplied by the employer;
(e) deductions for such amenities and services supplied by the employer as the (State) Government may, by general or special order, authorise;
(f) deductions for recovery of advances or for adjustment of over payments of wages;
(g) deductions of income-tax payable by the employed person;
(h) deductions required to be made by order of a court or other authority competent to make such order;
(i) deductions for subscription to, and for payment of advances from, and provident fund to which the Provident Funds Act, 1952 applies or any recognised provident fund as defined i n section 58-A of the Indian Income-tax Act, 1922, or any provident fund approved in this behalf by the (State) Government during the continuance of such approval.
(j) deductions for payments to co-operative societies approved in this behalf by the (State) Government or to a scheme of insurance maintained by the Indian Post Office or by any insurance company approved in this behalf by the (State) Government.
(k) deductions made with the written authorization of the employed person in furtherance of any savings scheme approved by the (State) Government for the purchase of securities of the Central or (State) Government.
37. Deductions for damage or loss:- (2) A deduction under clause (c) of sub-section (2) of section 34 shall not exceed the amount of the damage or loss caused to the employer by the neglect or default of the person employed and shall not be made until the person employed has been given an opportunity of showing cause against the deduction, or otherwise than in accordance with such procedure as may be prescribed for the making of such deductions.
(2) All such deductions and all realizations thereof shall be recorded in a register to be kept by the employer in such form as may be prescribed."
17. As rightly pointed by the learned counsel for the petitioner, Sections 34 and 37 of the Tamil Nadu Shops and Establishments Act got incorporated into the By-Laws of the Co-operative Society that was extracted above as per the Division Bench judgments of this court made in W.A.No.1372 to 1375 of 2006, dated 08.01.2007 and W.A.No.1264 of 2009, dated 07.10.2009. The relevant paragraphs in the aforesaid judgments are extracted hereunder:-
" W.A.No.1372 to 1375 of 2006, Paragraph Nos. 13 & 17.
"13. The law on the subject is well settled. When an earlier Act or certain of its provisions are incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. But this must be distinguished from a referential legislation which merely contains a reference or the citation of the provision of an earlier statute. In a case where a statue is incorporated, by reference, to a second statute, the repeal of the first statue by a third does not affect the second. The later Act along with the incorporated provisions of the earlier Act constitute an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. However, where in later Act there is a mere reference to an earlier Act, the modification repeal or amendment of the statue that is referred, will also have an effect on the statute in which it is referred. It is equally well settled that the question whether a former statute is merely referred to or cited in a later statute, or whether it is wholly or partially incorporated therein, is a question of construction.
17. In the instant case, the definition of establishment is virtually lifted from the Shops Act and has been incorporated in the Permanent Status Act. Therefore, the provisions of Clause(c) of Sub Section (1) of Section 4 of the Shops Act which exempt the establishments under the Central Government is of no consequence and the Permanent Status Act would continue to apply for such establishments unless and until exemption has been obtained from the State Government under Section 9 of the Permanent Status Act. In C.V. Raman's case, which was referred to by the learned single Judge, the court was concerned with the question as to whether the provisions of Shops Act would be applicable to the Nationalised Bank in view of exemptions granted under section 4(1)(c). Therefore, the above decision has no relevance for the determination of the issue involved in the present case. Consequently, we hold that the provisions of the Permanent Status Act will apply to the Banks including Nationalised Banks."
" W.A.No.1264 of 2009, Paragraph No.6
6. In our view, the Division Bench in the case Kanagaabapathy, M. v. The special Officer, S-390, Pothanoor Primary Agricultural Co-operative Bank Ltd(supra) was not required to go into this question. Further, the above referred to para-9 of the judgment in the case of 11.558 Kuthiraichandal Primary Co-Op. Bank Ltd. v. A.Asokan (supra) only makes a statement that an employee of the co-operative bank is not entitled to the benefits of the Subsistence Allowance Act. In our view, this paragraph cannot be read to take away the right of the employee to receive the subsistence allowance under the Regulations as framed under the Co-operative Societies Act. Similar is the view expressed in paragraph-14 of the judgment in 11.558 Kuthiraichandal Primary Co-op. Bank Ld. v. A.Ashokan (supra)."
18. Admittedly, sections 34(2)(c) and 37 of the Tamil Nadu Shops and Establishments Act, 1947 read with By-Law No.7 in annexure to the Regulations framed under Special By-Laws No.20 was not complied with before making recovery. That is, no opportunity was given to the employee with regard to the deduction that was made from his salary. Hence, recovery is illegal and therefore, the impugned order is liable to be set aside. Accordingly, the impugned order is set aside. A direction is issued to the second respondent to pay the deducted amount to the petitioner within a period of eight weeks from the date of receipt of a copy of this order.
19. The writ petition is disposed of on the above terms. No costs.
24.08.2012 Index : Yes Internet: Yes rj To
1.The Presiding Officer Labour Court Coimbatore 641 018.
2.The Special Officer, Management of Coimbatore District Consumer's Co-op, Wholesale Stores Limited, No.K-881, Post Box No.1098, R.S.Puram, Coimbatore 641 002.
D.HARIPARANTHAMAN, J rj W.P.No.789 of 2012 24.08.2012