Madras High Court
V.Murugaiyan vs Presiding Officer
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
30.08.2019 18.10.2019
Coram
THE HONOURABLE Mr. JUSTICE S.VAIDYANATHAN
W.P.21916 of 2013
V.Murugaiyan ... Petitioner
-vs-
1. Presiding Officer,
Labour Court,
Cuddalore.
2. Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Railway Station Road, Kumbakonam. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for the
records on the files of the 1st respondent pertaining to the Award passed in
I.D.No.136 of 2003 dated 23.03.2011 insofar as the stoppage of the backwages
alone of the petitioner concerned and the consequential settlement under
Section 18(1) of the Industrial Dispute Act, 1947, bearing
Ref:TNSTC/Legal/L2/15/2011 dated 02.12.2011 and the consequential order
issued by the 2nd respondent vide its proceedings NO.ThaApo/T8/Vea/179/2000
dated 26.12.2011 and quash all the proceedings and consequently direct the
2nd respondent to re-fix the basic pay and all other allowances with continuity
of service along with back wages and all other attendant benefits and to
disburse the arrears.
For Petitioner : M/s.A.V.Bharathi
For Mr.L.N.Praghasam
For R1 : Court
For R2 : Mr.D.Venkatachalam
*****
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ORDER
This Writ Petition has been filed, seeking to quash a) the Award passed in
I.D.No.136 of 2003 dated 23.03.2011, insofar as the stoppage of the backwages
alone of the petitioner is concerned; b) the consequential settlement under
Section 18(1) of the Industrial Dispute Act, 1947, bearing
Ref:TNSTC/Legal/L2/15/2011 dated 02.12.2011 and c) the order issued by the
2nd respondent in No.ThaApo/T8/Vea/179/2000 dated 26.12.2011, by which a
punishment of two years increment cut with cumulative effect was inflicted on
the petitioner as per settlement dated 02.12.2011. The petitioner also sought a
direction to the 2nd respondent to re-fix the basic pay and all other allowances
with continuity of service along with back wages and all other attendant
benefits with disbursement of arrears.
2. For the sake of brevity, the parties, namely, the petitioner and the 2nd
Respondent would be referred to as 'the Workman' and 'the Management'
respectively.
3. The case of the Workman was that he joined the Management as Driver
on 27.11.1989 and his services were regularized with effect from 01.11.1990.
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While so, when he was driving the bus bearing Reg.No.TN-49-N-1029 from
Vedaranyam to Nagapattinam on 28.11.2000, an accident had occurred due to
rash and negligent driving of an opposite vehicle / lorry, which resulted in
toppling of the bus in order to save the passengers on board. It was the further
case of the Workman that for the accident caused, departmental action was
initiated and domestic enquiry was conducted and he, after receiving the
report, had sent a reply to the Management and the Management, being not
satisfied with the explanation, dismissed him from service on 16.01.2002 and
the consequential memorandum of appeal had also gone against him. Aggrieved
by the order of dismissal from service, he had raised an industrial dispute under
Section 2-A (2) of the Industrial Disputes Act, 1947 (in short 'the I.D.Act, 1947'),
in which, the 1st Respondent, though set aside the order of dismissal dated
23.03.2011, had wrongly denied backwages and other attendant benefits.
4. It was also the case of the Workman that subsequently, a Memorandum
of Settlement dated 02.12.2011 was arrived at between the Management and
the Workman, by which it was resolved that instead of dismissing him from
service, it was agreed to impose a punishment of two years increment cut with
cumulative effect and on the basis of the said settlement, the Management had
also passed an order to that effect. Now, the Workman has come up with the
present writ petition, questioning the particular portion of the Award and the
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settlement. In the meanwhile, in the pending criminal case in C.C.No.22 of
2004 for causing the accident, he was acquitted by the Criminal Court on
12.10.2004.
5. The Management has filed a counter affidavit, stating that in
obedience to the Award of the Labour Court, the Workman was reinstated into
service with continuity of service based on the consensus between the
Management and the Workman by way of settlement dated 02.12.2011. It was
further stated that the Workman, on rendering the remaining period of service
in Thiruthiraipoondi Branch, had attained superannuation on 29.02.2016 and his
retiral benefits were also settled by sanctioning a monthly pension of
Rs.5,529/- to him. There were two settlements entered into between the
Management and the employees of the Corporation under Section 12(3) of the
I.D.Act, 1947, in respect of revision of wages in the year 2003 and 2007
respectively and the benefits of those two settlements were given to the
Workman and accordingly, his pay was also hiked gradually.
6. It was also stated in the counter affidavit that the Workman was
imposed punishments of increment cut for four times and therefore, he cannot
claim the benefits on par with other employees, who had rendered
unblemished services. Moreover, he had given up the attendant benefits in the
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settlement under Section 18(1) and therefore, his salary would be naturally
lower than that of other employees. The allegation made by the Workman that
the inscription of the settlement was in an unknown language, namely, English
was opposed to by the Management that before arriving at settlement, the
terms and conditions of the settlement was duly explained to the Workman by
following the procedures and therefore, there is no arbitrariness and illegality
committed by the Management while arriving at the settlement. Hence, it was
prayed that the Writ Petition is liable to be dismissed as not maintainable.
7. The learned counsel for the Workman has submitted that the Labour
Court, having found that the Workman was not solely responsible for the
accident, ought to have granted continuity of service with back wages and all
other attendant benefits and such deprivation is indeed illegal and inhumane.
It was submitted that both the denial of wages and stoppage of two increments
to the Workman are hit by the doctrine of double jeopardy and the order of the
2nd respondent based on 18(1) settlement cannot be allowed to traverse
beyond the boundary laid down by the 1st respondent, as the same erodes the
rights and benefits accrued to the Workman by means of Award rendered by
the 1st respondent herein. The learned counsel for the Workman has relied
upon a judgment of the Hon'ble Supreme Court in the case of Central Inland
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Water Transport Corporation Ltd., and another vs. Brojo Nath Ganguly and
another, reported in (1986) 3 SCC 156 to state that when a contract is
apparently unenforceable and opposed to public policy, the said contract /
agreement can be non-suited and the relevant observation made in the
judgment (supra) is extracted below:
“93. The normal rule of Common Law has been that a party
who seeks to enforce an agreement which is opposed to public
policy will be non-suited. The case of A. Schroeder Music
Publishing Co. Ltd. v. Macaulay, however, establishes that where
a contract is vitiated as being contrary to public policy, the party
adversely affected by it can sue to have it declared void. The
case may be different where the purpose of the contract is illegal
or immoral. In Kedar Nath Motani and others v. Prahlad Rai and
others, [1960] 1 S.C.R. 861 reversing the High Court and restoring
the decree passed by the trial court declaring the appellants' title
to the lands in suit and directing the respondents who were the
appellants' benamidars to restore possession, this Court, after
discussing the English and Indian law on the subject, said (at page
873):
"The correct position in law, in our opinion, is that what
one has to see is whether the illegality goes so much to the
root of the matter that the plaintiff cannot bring his action
without relying upon the illegal transaction into which he
had entered. If the illegality be trivial or venial, as stated
by Willistone and the plaintiff is not required to rest his
case upon that illegality, then public policy demands that
the defendant should not be allowed to take advantage of
the position. A strict view, of course, must be taken of the
plaintiff's conduct, and he should not be allowed to
circumvent the illegality by restoring to some subterfuge
or by mis-stating the facts. If, however, the matter is clear
and the illegality is not required to be pleaded or proved
as part of the cause of action and the plaintiff recanted
before the illegal purpose was achieved, then, unless it be
of such a gross nature as to outrage the conscience of the
Court, the plea of the defendant should not prevail."
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The types of contracts to which the principle formulated by
us above applies are not contracts which are tainted with
illegality but are contracts which contain terms which are so
unfair and unreasonable that they shock the conscience of the
court. They are opposed to public policy and require to be
adjudged void.
Thus, it was finally submitted by the learned counsel that the stoppage of two
increments would be a great financial and mental hardship to the Workman and
the same needs interference by this Court.
8. Per contra, the learned Standing Counsel appearing for the
Management has contended that the Workman, being aware of the fact that
the Labour Court had directed for reinstatement with continuity of service and
without back wages, had himself consented for a settlement under Section
18(1) of the I.D.Act, 1947 and accepted the punishment of two increment cuts
on reinstatement and also signed the memorandum of settlement. Therefore,
he cannot make any hue and cry on the punishment imposed and moreover,
after settlement, he had joined duty immediately in the year 2011 and filed
this petition after a lapse of two years, viz., in the year 2013. Hence, there is
no need to interfere either with the Award of the Labour Court or with the
consequential order passed by the 2nd Respondent on the basis of 18(1)
settlement and the Writ Petition has got to be dismissed in entirety.
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9. Heard the learned counsel for the Petitioner and the learned Standing
Counsel for R2 and perused the material documents available on record.
10. From the facts pleaded on both side, it could be visualized that the
Workman joined the service on 27.11.1989 and got his service regularized with
effect from 01.11.1990. After rendering sufficient years of service, he was
designated as a Senior Driver and there was an accident caused by him,
pursuant to which, he was suspended from service, followed by departmental
action. In the industrial dispute raised in I.D.No.136 of 2003, an Award dated
23.03.2011 was passed, holding that though the Workman is entitled to
reinstatement, he would not be entitled to back wages and other attend
benefits. After the said Award, the Workman and the Management have
entered into a settlement dated 02.12.2011 under Section 18(1) of the I.D. Act,
1947 and the Terms of Settlement are extracted below:
“TERMS OF SETTLEMENT
1. The Management agrees to reinstate Thiru V.Murugaiyan,
St.No.89 DY 419 LX-senior driver as driver with continuity of
service and without any back wages and other attendant benefits
till the date of joining duty by virtue of this settlement.
2. It is agreed by the workman that a punishment of 2 years
increment cut with cumulative effect be inflicted to him in lieu of
dismissal order dated 16.1.2002.
3. The reinstatement order will be issued separately by the
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personnel section and his pay will be fixed as per the clause No.2
of this settlement and he will abide by the same.
4. It is also agreed by the workman that he will not go in for
any litigation with the management regarding the claim of back
wages and other attendant benefits from the date of Labour Court
award to the date of joining duty subsequent to this settlement.
5. Both the parties agree to the above terms.”
11. Consequent to the settlement, the Workman was reinstated and it was
also not in dispute that he was acquitted by the Criminal Court in C.C.No.22 of
2004 by order dated 12.10.2004, which culminated on account of the accident
caused by him. After entering into the settlement, the Workman has
approached this Court, challenging the Award dated 23.03.2011, concerning
the stoppage of backwages alone due to the petitioner, the settlement under
Section 18(1) of the Industrial Dispute Act, 1947, bearing
Ref:TNSTC/Legal/L2/15/2011 dated 02.12.2011 and the consequential order
issued by the 2nd respondent vide its proceedings No.ThaApo/T8/Vea/179/2000
dated 26.12.2011. A direction was also sought to re-fix the basic pay and all
other allowances with continuity of service along with back wages and other
attendant benefits.
12. It is seen that the Workman was imposed stoppage of increment for
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two years by the Management in terms of settlement and when the Labour
Court had rendered a finding and given its verdict, the normal remedy open to
the Workman to challenge the settlement is only before the Labour Court and
not before this Court, as its fairness cannot be decided on disputed facts. It is
appropriate to mention here that after passing of an Award by the Labour
Court, depriving the backwages to the Workman, the Management ought not to
have imposed the punishment of two years increment cut with cumulative
effect, as it will definitely have a bearing on the pensionary and other benefits.
Similarly, the Workman, having signed the settlement, cannot go back and
endeavour to unsettle the settled issues. Anyhow, the Management in this case
makes an attempt to defeat the very purpose of the Award by way of
settlement and wants to impose higher punishment indirectly than the one
given by the Labour Court.
13. Even though the Workman had knowingly or unknowingly signed the
settlement dated 02.12.2011 for the betterment of his family, in the light of
the judgment of the Hon'ble Supreme Court in Central Inland Water
Transport Corporation Ltd., and another vs. Brojo Nath Ganguly and
another (referred to supra), there is force in the contention of the learned
counsel for the petitioner that what was not able to be achieved by the
Management before the Labour Court was attempted to be achieved by way of
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settlement. In the very same judgment, it was held that in the negotiation
table, the relationship between the employer and the employee is like a lion
and a lamb and both the lion and the lamb will be free to roam about in the
jungle and each will be at liberty to devour the other. When one considers the
unequal position of the Corporation and its employees, the argument of
mutuality becomes laudable.
14. If the settlement arrived at between the Workman and the
Management in the present case is tested in the light of the aforestated
judgment, no other conclusion than the one that the settlement requires
interference by this Court, can be arrived at, as the settlement entered into is
not fair and if the contention of the management is accepted, then all the
employers will force their employees to sign the settlement for accepting the
punishment, thereby depriving the legitimate rights due to them, as the
Management had acted as an Appellate Authority for the Labour Court and
therefore, this Court has no other option, but to hold that the settlement
dated 02.12.2011 is obnoxious.
15. It is not in dispute that any Award passed under the provisions of the
Industrial Disputes Act, 1947 can be modified by means of settlement, but, at
the same time, in the garb of settlement, further punishment should not be
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inflicted on employees in addition to the one imposed by the Labour Court. The
Management had exactly committed such error in this case, ignoring the fact
that the Labour Court had already deprived back wages to the Workman for the
accident caused by him, even though he was not solely responsible for the
same. That being the case, adding one more punishment will amount to double
jeopardy and though the Management is entitled to modify the punishment by
way of settlement, it does not mean that it is absolutely necessary for them to
incorporate additional punishment in the settlement so as to defeat the very
purpose of the Award.
16. Of course, it is true that as per the ratio laid down by the Hon'ble
Supreme Court in the case of Tata Engineering and Locomotive Co. Ltd., vs.
Workman, reported in (1981) 4 SCC 627, a settlement cannot be weighed in
any golden scales and the question whether it is just and fair has to be
answered on the basis of principles different from those which come into play
when an industrial dispute is under adjudication, but at the same time, the
basic question which has to be asked and answered as in the case of any other
order made in exercise of administrative discretion is, whether the said order is
vitiated by mala fides, abuse of power or though worded in innocuous terms,
really camouflages collateral or oblique purposes like unduly favouring one at
the expense of another or is to penalise or victimise or harass the concerned
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employee and the answer, which courts have given over the years has been
that if such vitiating circumstances are shown to exist, the courts will step in,
review the order and grant such relief, as the justice of the cause demands.
17. This Court has not lost sight of the fact that the Workman was a party
to the settlement and had signed the contract and therefore, this Court is not
inclined to grant monetary benefits to the Workman and the monetary benefits
that may be available to the Workman shall be calculated, except for the
punishment imposed in terms of Clause No.II of the settlement and the benefits
should be notionally calculated for giving effect to retiral benefits, like gratuity
and pension.
18. Insofar as the challenge to the Award of the Labour Court dated
23.03.2011 is concerned, since it is a finding of fact rendered in an application
filed under Section 2A(2) of the I.D.Act, 1947; that the Labour Court, by
invoking Section 11-A of the I.D.Act, 1947 had interfered with the punishment
and that no valid ground has been urged by the Workman to establish that the
particular portion of the Award is bad in the eye of law, this Court does not
want to interfere with the Award of the Labour Court and the same is upheld.
Apart from this, there is a delay of two years in challenging the Award and
therefore, the challenge to the Award of the Labour Court has no legs to stand
on the ground of laches too.
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19. In the result,
i) the Writ Petition is partly allowed;
ii) While confirming the Award of the Labour Court dated 23.03.2011, the
settlement under Section 18(1) of the Industrial Dispute Act, 1947, bearing
Ref:TNSTC/Legal/L2/15/2011 dated 02.12.2011 and the consequential order
dated 26.12.2011, issued by the 2nd respondent are set aside;
iii) there shall be a direction to the Management to re-fix the amount due
to the Workman, but for the period of punishment imposed in terms of Clause
No.II of the settlement dated 02.12.2011, notionally calculate the amount due
to the Workman and extend the benefit as if there is no punishment impose at
all;
iv) Since the settlement is being struck down by this Court today, the
Management is expected to implement the Award within a period of 90 days
from the date of receipt of a copy of this order in the light of the decision of
the Hon'ble Apex Court in the case of Tamil Nadu State Transport
Corporation vs. Neethivilangan, Kumbakonam, reported in (2001) 9 SCC 99.
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It goes without saying that if any complaint is made by the Workman under
Section 29 of the Industrial Disputes Act, 1947, the persons who are falling
under Section 32 of the Industrial Disputes Act, 1947, need to be prosecuted
and the Government shall sanction prosecution taking note of the decision
of Apex Court in the case of Rajkumar Gupta vs. Lt. Governor, Delhi
reported in 1997 (1) LLJ 994. Once the
S.VAIDYANATHAN, J.
ar prosecution is launched, the appropriate criminal court is expected to take up the matter and it shall proceed with the matter on a day-to-day basis without adjourning the matter beyond fifteen working days at any point of time so as to bring the issue to a logical end;
v) If the admitted amount is not paid, it is open to the Workman to seek remedy under Section 33C(1) of the Industrial Disputes Act, 1947 in view of the decision of the Apex Court in the case of Fabril Gasosa vs. Labour Commissioner, reported in (1997) 3 SCC 150 and in case of disputed amount, the computation lies only by invoking Section 33C(2) of the Industrial Disputes Act, 1947. No costs.
Index: Yes 18.10.2019 15/16 http://www.judis.nic.in Internet: Yes Speaking Order: Yes ar To: The Presiding Officer, Labour Court,Cuddalore. PRE-DELIVERY ORDER IN W.P.21916 of 2013 18.10.2019 16/16 http://www.judis.nic.in