IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.06.2010 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.20762 of 2004 and W.M.P.No.25001 of 2004 J.N.Agnihotri .. Petitioner Vs 1.M/s.Hindustan Construction Co. Ltd., 53-B, Edward Ellis Road, Chennai- 600 006. 2.The Presiding Officer, Labour Court, Chennai  600 104. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent herein culminating in the order dated 23.2.2004 made in claim petition No.297 of 2000 and quash the same in so far as it denied the claim made by the petitioner and direct the 1st respondent to calculate and pay the arrears of salary and other allowance as per the claim made by the petitioner in C.P.No.297 of 2000 together with interest. For Petitioner : Mr.M.Jayaraman For RR 1 : Mr.C.Mohan For M/s.King & Partridge O R D E R The Writ Petitioner/Claim Petitioner has filed this Writ Petition praying for an issuance of Writ of Certiorarified Mandamus in calling for the records of the Second Respondent pertaining to the order dated 23.2.2004 made in Claim Petition No.297 of 2000 denying the claim so made and to quash the same and further to direct the First Respondent to calculate and pay the arrears of salary and other allowances as per the claim made in C.P.No.297 of 2000 along with interest. 2.The Principal Labour Court, while passing orders in Claim Petition No.297 of 2000 on 23.2.2004, has, inter alia, observed that 'The Petitioner has not adduced any satisfactory and acceptable evidence for the claim amount of Rs.7,35,222.10. Since the Respondent has admitted in para 14 of the counter that the Petitioner is entitled to a sum of Rs.3,25,328.07. I hold that the petitioner is entitled to a sum of Rs.3,25,328.07 and consequently, computed the money value of the benefits due to the petitioner at Rs.3,25,328.07p.' 3.The short summation of the Petitioner's case: The Petitioner was employed as a Store Clerk Mechanic in the First Respondent/Construction Company. The Petitioner and others by means of an order dated 17.3.1973 were terminated from services on 20.3.1973 by the First Respondent by an illegal order. This culminated in a reference being made by the Government to the Principal Labour Court, Chennai in I.D.No.45 of 1975. By an Award dated 28.3.1990, the Principal Labour Court held that the termination was an illegal one. 4.The Principal Labour Court held that the Writ Petitioner is entitled to the backwages from the date of illegal termination i.e. 20.3.1973 till date of order i.e. 28.3.1990. Inasmuch as the amount due was not determined, the Petitioner was directed to file a claim petition. The Petitioner was drawing a salary of Rs.365/- per month. As his termination was found to be an illegal one, he was deemed to be in service without any interruption till the date of an Award and as such, he is entitled to the benefits of the salary of respective categories made from time to time till 28.3.1990 with interest. 5.The Petitioner, pending the Claim Petition, filed a Writ Petition No.15434 of 1990 before this Court questioning the Award dated 28.3.1990 on the basis that the Principal Labour Court committed an error in denying his reinstatement into service. The said Writ Petition was allowed by this Court on 11.9.1996. This Court modified the impugned award directing the reinstatement of the Petitioner into service of Management with all consequential benefits. In regard to the backwages, the contentions of the parties are left open to be raised before the Principal Labour Court in Claim Petition No.806 of 1990. In Claim Petition No.806 of 1990, the Principal Labour Court passed an order in regard to the backwages. The Principal Labour Court passed an order directing the Management to pay an amount of Rs.1,37,185.90p to the Petitioner for the period from 23.3.1973 to 28.3.1990, which does not include any allowance as per the terms of the Memorandum of Settlement. Since the Petitioner is entitled to backwages till the date of reinstatement into service as per order of this Court dated 11.9.1996 in W.P.No.15434 of 1990, he is entitled to an amount of Rs.7,35,222.21p. 6.According to the Petitioner, he is entitled to the monetary benefits being the backwages and other benefits payable to him from 28.3.1990 till the date of his reinstatement into service of the Management. On 17.11.1999, at the values in accordance with the agreement dated 5.9.1994. As per the agreement, the basic salary is Rs.2,445/- and the D.A. payable is Rs.2,479.70p, amounting in all to Rs.4,924.70p. The House Rent Allowance is 30% while the Medical Allowance is Rs.500/- per annum. The Leave Travel Allowance is Rs.3,600/- per annum. 7.The First Respondent/Management Contended that the Petitioner is not entitled for the salary for the period from 26.7.1991 to 30.9.1992 and for the period from 3.8.1993 to 28.3.1995, totalling in all for a period of about 34 months. Though the First Respondent/Management considered that the Petitioner is entitled for an arrears of salary from 28.3.1990 to 17.11.1999 i.e. for 115 months, its main contention was that whenever there was no work, the redundant employees would be sent on leave initially special leave with wages and thereafterwards long leave without wages. For the aforesaid 34 months, the Petitioner would have been on long leave without salary and also not earned any increments and this was calculated based on the individual similarly placed who are on long leave without salary. Thus, the Petitioner claimed the salary and increment for the aforesaid 34 months. The Management had not filed any documentary proof or examined any witnesses to prove the aforesaid contention. 8.The Second Respondent had failed to consider the admission of the of the Management in regard to the entitlement of salary to the Petitioner for the entire period of 115 months. When the First Respondent/Management had not proved the contention that the Petitioner was deemed to be on long leave without salary for 34 months and therefore, he is not entitled to claim salary for 34 months, then the Second Respondent should have granted the relief in respect of 34 months, the arrears of salary and increment to the Petitioner as per the calculation of the Management. 9.The Petitioner claimed arrears of House Rent Allowance, Medical Allowance and Leave Travel Allowance. The First Respondent/Management gave only the Leave Travel Allowance and Medical Allowance. These two allowances were not given for the year 1992 and 1994. 10.The Second Respondent has failed to direct the First Respondent/Management to pay the House Rent Allowance to the Petitioner. Hence, the order of the Second Respondent in calculating Rs.3,25,328.07p as the money value of benefits due to the Petitioner is not correct. In fact, there is no explanation whatsoever forthcoming from the First Respondent as to why they have withheld the amount payable to the Petitioner since 11.9.1996. As such, the Second Respondent should have directed the First Respondent/Management to pay interest at 24% per annum. 11.Petitioner's contentions: According to the Learned Counsel for the Petitioner, the decision of the Principal Labour Court, Chennai in awarding only a sum of Rs.3,25,328.07p to the Petitioner is not correct in the eye of law because of the fact that the said decision has been arrived at based on no evidence and therefore, Article 226 of the Constitution of India will come to the aid of the Petitioner and before the Principal Labour Court in C.P.No.297 of 2000, the First Respondent/ Management has not let in any oral evidence to substantiate their case and in short, the Principal Labour Court, Chenni has accepted the counter filed by the First Respondent/ Management in C.P.No.297 of 2000 without any evidence and further, the First Respondent/Management on what basis they deducted the salary is not known and in the absence of these details, the Principal Labour Court placing reliance the averments made in the counter is clearly unsustainable in law. 12.Contentions of the First Respondent/Management: Per contra, the Learned Counsel for the First Respondent submits that the Writ Petitioner is entitled to Rs.3,25,328.07p inclusive of allowances for the period from 28.3.1990 to 17.11.1999 and in the annexure to counter in C.P.No.297 of 2000 details have been made mention of and in fact, the Petitioner cannot claim wages for all the period of his non employment and that the details of salary furnished by him is not correct and in a claim petition filed under Section 33C(2) of the Industrial Disputes Act no interest can be claimed in a claim petition and as such, the Writ Petitioner is not entitled to claim the interest and that the Principal Labour Court has rightly computed the monetary benefits due to the Petitioner as Rs.3,25,328.07p which at this stage need not be interfered with by this Court. 13.The Learned Counsel for the First Respondent/ Management contends that it is for the Writ Petitioner to prove the receipt of salary or wages concerned and to lend support of his contention, he relies on the decision of Honourable Supreme Court in Range Forest Officer V. S.T.Hadimani (2002) 3 Supreme Court Cases at page 25 wherein it is held as follows: "It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for that period was produced by the workman. On this ground alone, the award is liable to be set aside." 14.He also relies on the decision of Honourable Supreme Court in Agnani V. Badri Das and others 1963 I LLJ 684 at page 688 wherein it is observed as follows: "In dealing with this appeal, it is necessary at the outset to emphasize the limits of the jurisdiction of the High Court in entertaining a plea for a writ of certiorari under Art.226. This question has been the subject matter of several decisions of this Court, and the law in relation to it is no longer in doubt. In order to justify the issue of a writ of certiorari. It must be shown that the impugned order suffers from an error apparent on the face of the record. It is clear that the error must be an error of law, not an error of fact, because an error of fact, though serious, and though it may be apparent on the face of the record, cannot sustain a claim for the writ of certiorari. It is only errors of law that justify the issue of the said writ, provided, of course, they are of such a character as would reasonably be treated as errors apparent on the face of the record. If a finding of fact is made by the impugned order and it is shown that it is based on no evidence, that would no doubt be a point of law open to be urged under Art.226-vide Nagendra Nath Bora and another V. Commissioner of Hills Division and Appeals, Assam, and others [1958 S.C.R. 1240]. If this distinction is not borne in mind, it is not unlikely that in entertaining an application for a writ under Art. 226, the High Court may unwittingly assume the jurisdiction of an appellate Court which clearly is distinct from the jurisdiction of the writ Court under Art. 226. This position has not been and cannot be disputed." 15.The Learned Counsel for the First Respondent brings it to the notice of this Court to the decision of Honourable Supreme Court in High Court of Judicature at Bombay V. Shashikant S. Patil and another (2000) 1 Supreme Court Cases 416 at page 417 wherein it is laid down as follows: "The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/ disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But it cannot be overlooked that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution." 16.He seeks in aid of the decision in Sita Ram and others V. Moti Lal Nehru Farmers Training Institute (2008) 5 Supreme Court Cases 75 at page 76 wherein the Honourable Supreme Court has held that 'It would be on the workmen to prove that he had worked for two hundred and forty days in a year etc. and although at one point of time, the burden of proof used to be placed on the employer, in view of a catena of recent decisions, it must be held that the burden of proof is on the workman to show that he has completed 240 days in a year.' 17.In regard to the contention that the Labour Court as per Section 33C(2) of the Industrial Disputes Act is only to interrupt an award or settlement and it cannot create right, the Learned Counsel for the First Respondent cites the decision of this Court in Union of India, rep. By the Divisional Railway Manager, Chennai V. The Presiding Officer, Central Government Labour Court, Chennai 2 and another 2007 (3) CTC 745 wherein it is held that 'a dispute relating to entitlement has to be preceded by earlier adjudication or recognition by an employer.' 18.The Learned Counsel for the First Respondent cites the decision of Honourable Supreme Court in Municipal Corporation of Delhi V. Ganesh Razak and another 1995 (I) LLJ 395 at page 398 wherein it is observed as follows: "This decision itself indicates that the power of the Labour Court under Section 33C(2) extends to interpretation of the award or settlement on which the workman's right rests like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents." 19.He also relies on the further observation made in the aforesaid decision, at page 400 in para 12, which runs as follows: "The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C(2) of the Act. The Labour Court, has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution." 20.He also invites the attention of this Court to the decision of Honourable Supreme Court in State Bank of India V. Ram Chandra Dubey and others (2001) 1 Supreme Court Cases 73 wherein it is held that 'where in a reference of the question of validity of termination of workmen concerned to be entitled to reinstatement from the date of application filed under S.33-C(2) for computation of back wages on the basis of such award is not maintainable and the proper forum to determine the question was the forum to which the reference was made.' 21.On the side of the First Respondent the decision of Honourable Supreme Court in Central Bank of India Limited and others V. Rajagopalan (P.S.) and others 1963 (II) LLJ 89 at page 95 and 96 is relied on to the following relevant observations: "... Instruction of Sub-sec.(2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the labour court. Before proceeding to compute the benefit in terms nof money, the labour court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the labour court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the labour court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the labour court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of Sub-sec.(2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause "where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit." The appellant's construction would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by Sub-Sec.(2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the labour court to entertain the workman's application. The claim under S.33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of that right and such an enquiry must be held to be incidental to be main determination which has been assigned to the labour court by Sub-sec.(2). As Maxwell has observed: "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution." [Maxwell on Interpretation of Statutes, p.350.]" "... Besides, there can be no doubt that when the labour court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well-settled that it is open to the executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provisions of the decree. These limitations apply also to the labour court; but like the executing Court, the labour court would also be competent to interpret the award or settlement on which a workman bases his claim under S.33C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under S. 33C(2), it would, in appropriate cases, be open to the labour court to interpret the award or settlement on which the workman's right rests." 22.Besides the above, the Learned Counsel for the First Respondent cites the following decisions of Honourable Supreme Court. (a)In State of U.P. and another V. Brijpal Singh (2005) 8 Supreme Court Cases 58, the Honourable Supreme Court has observed that 'The Labour Court cannot first decide workman's entitlement and then compute the benefit so adjudicated. It is only when the entitlement has been earlier adjudicated or recognised by the employer, and thereafter for the purpose of implementation thereof some ambiguity requires interpretation that power of interpretation is treated as incidental to Labour Court's power under S.33-C(2), like that of executing court's power to interpret the decree for purposes of its execution. The workman can proceed under S.33-C(2) only after Tribunal has adjudicated on a complaint under S.33-A or reference under S.10 that order of dismissal was not justified, and has set aside the same and reinstated the workman.' (b)In D.Krishnan and another V. Special Officer, Vellore Cooperative Sugar Mill and another (2008) 7 Supreme Court Cases 22, the Honourable Supreme Court has laid down as follows: "The proceedings under Section 33-C(2) are in the nature of execution proceedings. Such proceedings presuppose some adjudication leading to determination of a right, which has to be enforced. There has been no such adjudication in the present case. The appellants' case is exclusively based on documentary evidence which consisted primarily of punch time cards and the representations they filed from time to time before the respondents. Claim raised by the appellants had been hotly disputed by the respondents." 23.In regard to the preposition that in the absence of any provision in the impugned award itself towards the claim of interest, the same cannot be granted, the Learned Counsel for the First Respondent cites the decision of this Court in G.Ramadoss and others V. Management of Tansi Die Castings Industrial Estate, Chennai and two others 2000 (4) LLN 914 wherein it is held as follows: "Though Labour Court has power to award interest in appropriate cases, in the absence of any provisions in the main award itself for interest, the same cannot be granted while computing the amount in a S.33C(2) application." 24.It is useful to refer to the averments in Claim Petition No.297 of 2000 filed by the Writ Petitioner before the Principal Labour Court, Chennai wherein he has among other things stated that he was drawing a salary of Rs.365/- per month and since the termination was found illegal, he was found to be in service without any interruption till the date of award and further in the due course Memorandum of settlement was registered on 5.9.1994 as per Section 2(b) of the Industrial Disputes Act and as per the Memorandum, the term of settlement was arrived at in following six parts: Part I - Employment (Appointment/Recruitment) Policy Part II - Financial package Part III - Social Security and welfare Part IV - General Part V - Applicability of the Settlement Part VI - Implementation of the Settlement to which the Petitioner is entitled to. 25.Significantly, the Writ Petitioner in part of the Claim Petition No.297 of 2000 has mentioned that the basic salary in accordance with the