Dismissed

The Coimbatore District Centra v. Presiding Officer

Madras HC15 Mar 2013WP/17558/2006

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Labour Court award. The Court upheld the finding that a settlement agreement was binding and that the employee, not being an accused in the criminal case involving spurious jewels, was entitled to salary for the suspension period under Section 33-C of the Industrial Disputes Act.

What did the court decide?

The Writ Petition is dismissed with a permission to withdraw the balance amount from the Court deposit by filing a petition before the Labour Court.

The Coimbatore District Centra Vs Presiding… — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 15.03.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S. TAMILVANAN

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W.P. No.17558 of 2006

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The Coimbatore District Central Co-operative Bank Ltd., rep. by its Special Officer, Coimbatore 641 018 ... Petitioner -vs1. Presiding Officer, Labour Court, Coimbatore 2. A.Moses ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying for issuance of writ of certiorari calling for the records of the first respondent, Labour Court, Coimbatore relating to order in Computation Petition No.1045 of 2002 dated 06.12.2005 and quash the same.

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For Petitioner : Mr.P.Anbarasan For Respondents : R1 Court Mrs. G.Thilakavathi for R2 O R D E R

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The Writ Petition has been filed under Article 226 of the Constitution of India challenging the Award dated 06.12.2005 made in Computation Petition No.1045 of 2002 on the file of the Labour Court, Coimbatore, the first respondent herein.

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It is an admitted fact that the second respondent herein was employed by the petitioner from 18.07.1964 and he retired from service on 31.01.2000, on attaining the age of superannuation.

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The petitioner has stated that the second respondent retired from service as a Manager of the petitioner Bank at Thondamuthur Branch and he served in the Branch between May 1990 and June 1993. The second respondent was managing the Valparai Branch of the petitioner Bank. On 31.05.1991, while the second respondent was working in the Bank, jewel loans were sanctioned by him. Subsequently, due to non re-payment of the loan amount, the jewels pledged were brought for sale, at that time, the jewels were found to

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be spurious. Hence, the second respondent was suspended from service by an order dated 05.07.1993 in Order No.Rc.1/93/CEO and accordingly a charge memo was issued on 30.03.1994 for which the second respondent submitted his reply, on 25.05.1994. Subsequently, the Special Officer of the petitioner Bank passed an order dated 30.06.1994 in Order No.Rc.1/93 Tha.Aa, whereby treated the suspension period as punishment. The suspension was subsequently revoked on 30.06.1994 and the second respondent joined duty. After revocation of the suspension order, the second respondent preferred an appeal against the order of punishment to the Management of the petitioner Bank on 25.10.1999, however, the same was dismissed on 24.01.2000 on the ground that as per the provision of the special bylaw of the petitioner Bank, the appeal could have been filed within three months, but, the same was filed after a lapse of five years. However, the second respondent herein approached the Labour Court, the first respondent herein, based on the settlement arrived at between the Union and the Management. Pursuant to the same, the order in CP. No.1045/2002 dated 06.12.2005 was passed by the Labour Court holding that the second respondent herein was entitled to a sum of Rs.68,939/- representing 50% wages for the period of suspension and arrears of increment from July 1993 to January 2000. Challenging the said Award, the writ petition has been preferred by the petitioner herein.

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Mr.P.Anbarasan, learned counsel appearing for the petitioner submitted that the second respondent could not have been construed as workman, since he was functioning as Manager, hence, the first respondent, Labour Court has no jurisdiction to pass the impugned Award. The second point raised by the learned counsel appearing for the petitioner is that the relief sought for by the second respondent before the Labour Court was not a pre-existing right, as per Section 33-C of the Industrial Disputes Act, 1947 and further contended that merely because the criminal case entered into acquittal, the second respondent was not entitled to claim salary for the period of suspension on the principle that no work no pay. In support of his contention, learned counsel appearing for the petitioner relied on the following decisions:

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Management of Reserve Bank of India vs Shri Bhopal Singh Panchal reported in 1994 (I) LLJ 642;

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Air India Cabin Crew Association and others vs Union of India and others reported in 2012 (1) SCC 619;

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Unreported decision of this Court (K.Chandru.J) in W.P. No.18600 of 2007 dated 30.03.2012;

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R.D.Rajendran vs K.T.M.Abdul Khader, Chairman H Brite Lamps Ltd., Madras and others reported in 2003 (2) L.L.N. 93;

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Gouri Charan Kanungo vs Presiding Officer, Industrial Tribunal, Orissa and another reported in 1977 Lab I.C. 1154;

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Madikal Service Co-op. Bank Ltd. and another vs. Labour Court, Kozhikode and another reported in 1988 II LLJ 49;

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State of U.P. and another vs Brijpal Singh reported in 2005-IIILLJ 155.

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Per contra, Mrs. G.Thilakavathi, learned counsel appearing for the second respondent submitted that there is a categorical finding by the Labour Court that the second respondent was only a workman. Learned counsel drew the attention of this Court to page No.53 of the typed set, wherein the Labour Court has given a clear finding, based on the evidence that on a careful consideration of the evidence of M.W.1, it was made clear that the function of the second respondent herein, petitioner therein would show that his post was neither supervisory nor Managerial in nature, no positive materials were adduced on the side of the petitioner herein to prove that the second respondent herein was exercising any Supervisory power in a Managerial post. The evidence of M.W.1 made it clear that the nature of work done by the second respondent herein was only clerical in nature, under such circumstances, the claim of the petitioner herein that the function of the second respondent was supervisory or managerial in nature, could not be accepted.

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It is seen that the first respondent has specifically found in the award that as per the evidence of M.W.1, the second respondent was not in a position to sign in cheques or sanctioning leave on behalf of the petitioner herein and similarly he cannot take any disciplinary action against any subordinate official and he cannot entered into any agreement on behalf of the petitioner and therefore the second respondent could not be construed as an officer in the Managerial cadre, but only a workman.

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Mrs. G.Thilakavathi, learned counsel appearing for the second respondent contended that the finding of the Labour Court is based on evidence, hence, the writ petitioner cannot raise a plea that the finding is perverse. In order to consider a finding perverse, the finding must be against evidence or without evidence. As per the impugned award, it is made clear that the first respondent has passed only a speaking order, supported by evidence, hence, the same cannot be construed as perverse.

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Learned counsel appearing for the petitioner cited the decision in Madikal Service Co-op. Bank Ltd. and another vs. Labour Court, Kozhikode and another reported in 1988 II LLJ 49, wherein learned Single Judge of Kerala High Court has held that the Subsidiary Rules framed by the Bank relating to the management of the Bengalam branch of the Co-operative Bank would show that the Manager was in immediate and near total control of the functions of the branch which was responsible for the executive administration, though he had to function under the Secretary and subject to the control of the Board of Directors.

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This Court is of the view that the aforesaid decision is not applicable to the facts and circumstances of the case, hence, the second respondent herein was entitled to maintain the industrial dispute before the Labour Court under the Industrial Disputes Act. So far as the second point raised by the learned counsel for the petitioner is concerned, to maintain the claim, there must be pre-

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existing right available to the second respondent as per Section 33-C of the Industrial Dispute Act. In support of his contention, learned counsel appearing for the petitioner relied on the decision rendered by the Hon'ble Supreme Court, in Air India Cabin Crew Association and others vs Union of India and others reported in 2012 (1) SCC 619, in para 72, it has been held as follows:

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"72. We are also unable to accept the further submission made on behalf of the appellants that those workmen who had been promoted to the executive category would continue to be governed by the settlements arrived at when they were workmen and were represented by the Association. In our view, once an employee is placed in the executive cadre, he ceases to be a workman and also ceases to be governed by settlements arrived at between the Management and the workmen through the trade union concerned. It is not a question of an attempt made by such employees to wriggle out of the settlements which had been arrived at prior to their elevation to the executive cadre, which, by operation of law, cease to have any binding force on the employee so promoted by the Management."

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In an Unreported decision of this Court (K.Chandru.J) in W.P. No.18600 of 2007 dated 30.03.2012 held that once the workman got promotion, he ceased to be a workman and even the earlier settlements governing service conditions will have to disappear.

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In Management of Reserve Bank of India vs Shri Bhopal Singh Panchal reported in 1994 (I) LLJ 642, in para 14 it has been held as follows:

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"14. ... In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. ...."

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In State of U.P. and another vs Brijpal Singh reported in 2005-III-LLJ 155, it has been held that the Supreme Court observed proceeding under Section 33-C(2) was one in the nature of execution proceeding and the right of the workman to the money claimed in such application must therefore be an existing right that is to say, a right already adjudicated upon.

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In R.D.Rajendran vs K.T.M.Abdul Khader, Chairman H Brite Lamps Ltd., Madras and others reported in 2003 (2) L.L.N. 93, this Court (D.Murugesan,J.) has held that the settled position in law for invoking Section 33C(2) of Industrial Disputes Act, 1947, is:

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(1) There must be a pre-existing right on the workman to file an application under Section 33C(2) o f the Act;

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(2)While dealing with an application under Section 33C(2) of the Act, the Labour Court is in a position of an executing Court;

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(3) The Labour court is called upon to compute and calculate the monetary benefits only on the basis of pre-existing right of the workman;

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(4) The Labour court cannot entertain and adjudicate upon a petition under Section 33C(2) when the entitlement itself is in dispute; and (5) An application under Section 33C(2) is not maintainable, if the petition is filed on a disputed fact which requires adjudication by the Labour Court.

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It was argued on the side of the second respondent that in the award, there is a categorical finding in respect of the preexisting right. Therefore, the aforesaid decisions are not applicable to the facts and circumstances of the case to decide anything against the second respondent herein.

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However, learned counsel appearing for the writ petitioner submitted that there is no pre-existing right available to the second respondent. It is contended by the learned counsel appearing for the second respondent that there is pre-existing right available to the second respondent as per Section 33-C of the Industrial Disputes Act and also drew the attention of this Court to the settlement made between the workman and the writ petitioner-Management. It is seen that Clause 18 of the Settlement reads as follows:

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"18. It is agreed that paying full salary for the period of suspension in respect of employees, who are acquitted by the Criminal Court and who are not included as accused by the police in their charge sheets, will be considered on merits of each individual case."

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As per the Clause, it has been agreed by both the Management and the Union of Workmen that for the period of suspension, there will be full salary for the employees who were acquitted by the Criminal Court and who were not impleaded as accused by the police in the charge sheet.

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At this juncture, it is relevant to refer the judgment rendered by Criminal Court in C.C. No.79 of 2004 on the file of the Judicial Magistrate, Valparai, wherein the petitioner herein was not arrayed as one of the accused and the case was prosecuted only against one Maharajan and Shantha Kumari. As the second respondent herein was not arrayed as an accused, based on any charge, there is no question of acquittal of discharge. According to the learned counsel appearing for the petitioner, as per the settlement referred

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to above, the period for the settlement only for three years from the date of settlement. It is seen that the date of settlement is 30^th March 1979. However, it is brought to the notice of this Court by the learned counsel appearing for the second respondent that as per Section 9-A of the Industrial Disputes Act, the aforesaid clause 18 of the Settlement could have been specifically stated about the expiry of the Clause, however, the same was not done. Therefore, the petitioner cannot raise a plea that Clause 18 of the Settlement arrived at between the petitioner and the second respondent, expired three years after the date of settlement. In this regard, learned Presiding Officer of the Labour Court has categorically stated as follows:

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".... Countering the arguments of the respondent, the learned counsel for the petitioner would contend Sec.12(3) settlement recorded between the employer and the employees is based on a higher pedestal that an award passed after adjudication and the said award or clause in the said award can be nullified only after issuing notice under Section 9A of the I.D. Act till then it will bind the parties to the settlement as per Section 9(2) of the I.D. Act."

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On the said circumstances, I could find no error in the finding given by the first respondent. It is not in dispute that the second respondent was not arrayed as one of the accused in the criminal case relating to spurious jewels pledged in the Bank. The liability cannot be fixed on the second respondent, in view of the certificate of the appraiser for the said jewels and the second respondent is not an expert to be an appraiser so as to fix the liability on the second respondent, unless he had colluded with some other person in committing the offence. There is no other evidence available on record against the second respondent herein. This Court has to consider and take note of the fact that the second respondent was not arrayed as an accused in the criminal case and further only based on the evidence available on record, the award has been passed by the first respondent.

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It is not in dispute that clause 18 of the settlement arrived at between the writ petitioner and the labour union is binding on both the parties. Hence the petitioner has to pay salary for the period of suspension of the workman, the second respondent herein, as he was not even arrayed as accused in the criminal case and in view of Section 9(2) of the Industrial Dispute Act, it cannot be said that clause 18 of the settlement is not in force as found by the Labour Court.

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Hence, I could find no error or infirmity in the impugned award passed by the first respondent so as to warrant any interference by this Court, therefore, the writ petition is liable to be dismissed.

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While pronouncing the order, learned counsel appearing for the second respondent submitted that already the second respondent was permitted to withdraw Rs.20,000/- of the amount deposited by the petitioner herein, as per order dated 27.03.2008 in M.P. No.1 of 2006 in M.P. No.1 of 2008 and M.P. No.2 of 2008 and he may be permitted to withdraw the balance amount, deposited by the writ petitioner.

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Having considered the facts and circumstances, to meet the ends of justice, the second respondent is permitted to withdraw the balance amount, available in the Court deposit, by filing a petition before the Court below.

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With the above observation, the Writ Petition is dismissed. No order as to costs.

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Sd/-
Asst. Registrar.
/true copy/
Sub Asst. Registrar.
vga
To
Presiding Officer,
Labour Court, Coimbatore.
1 CC To Mr.P.Anbarasan, Advocate SR NO.15526
1 CC To Mr.G.Thilakavathi, Advocate SR NO.15532
W.P. No.17558 of 2006
pur[co]
gp/4.6

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The Coimbatore District Centra v. Presiding Officer

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The Coimbatore District Centra v. Presiding Officer

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