IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09-02-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.23929 of 2006 K.S.Natarajan .. Petitioner vs. 1. The Presiding Officer Principal Labour Court Chennai 2. M/s.Ananda Vikadan Vasan Publication Ltd., Old No.757, New No.191, Anna Salai Chennai-2 .. Respondents. PRAYER: Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorari to call for the records of the first respondent herein made in C.P.No.590/2001 and quash the order of the first respondent dated 5.12.2005 as illegal. For petitioner : Mr.S.Ayyadurai FOR M/S.V.Sairam L.K.Magesh For respondents : Mr.Saiprasad (R2) O R D E R This writ petition has been filed praying for a writ of Certiorarifed Mandamus to call for and quash the order of the first respondent labour Court, dated 5.12.2005, made in C.P.No.590 of 2001. 2. The petitioner has stated that he had joined in the service of the second respondent company, on 15.11.1977, as a Press Assistant. Thereafter, having served in various posts, he was promoted as a Section Head (Press) and his scale of pay had been fixed as per the Bhatchawad Award and in accordance with the working journalists and Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, 1955. Thereafter, the petitioner’s salary had been revised, as per the terms and conditions prescribed by the wage board. 3. It has also been stated that, after the petitioner had attained superannuation, on his attaining the age of 58 years, his https://hcservices.ecourts.gov.in/hcservices/ service had been extended by the second respondent, from 1.4.1998 to 31.3.2000. During the period of his extended service, the petitioner had submitted his request for voluntary retirement from service, on medical grounds. The second respondent, instead of accepting the request of the petitioner for voluntary retirement, had accepted the request as though it was a request for resignation, without giving an opportunity of hearing to the petitioner. 4. It has also been stated that the second respondent had failed to pay the overtime wages, festival incentives and other monetary benefits, that the petitioner is entitled to. Therefore, the petitioner was constrained to raise a dispute before the Conciliation Officer, on 11.4.2001. The Conciliation Officer had directed the petitioner to approach the labour Court, under Section 33(C)(2) of the Industrial Disputes, Act, 1947. Accordingly, the petitioner had filed a petition before the first respondent labour Court, in C.P.No.590 of 2001. 5. The main contentions raised on behalf of the second respondent Management are that the petitioner was not a ‘workman’, as he was employed in a Supervisory capacity and that he was drawing wages in excess of Rs.1,600/-, per month. Further, the petitioner is not entitled to raise an industrial dispute, as the petitioner had not been dismissed, discharged, retrenched or otherwise terminated from service. In fact, he had resigned from his service, voluntarily and his accounts had been fully and finally settled. 6. It has been further stated that the first respondent labour Court had, erroneously, come to the conclusion, without going into the merits of the case, that the petitioner cannot claim the benefits, as prayed for by him, in the absence of pre-existing rights, either under an award or settlement and therefore, a petition, under Section 33(C)(2) of the Industrial Disputes, Act, 1947, is not maintainable. The first respondent labour Court had also erred in coming to the conclusion that the question as to whether the petitioner is a ‘workman’ or not could be decided only by a labour Court in an industrial dispute raised before it. 7. It has also been stated that the first respondent labour Court had, erroneously, come to the conclusion that the petitioner is not entitled to the reliefs sought for by him, without properly appreciating the evidence on record. 8. In the counter affidavit filed on behalf of the second respondent Company, the averments and allegations made by the petitioner have been denied. It has been stated that the first respondent had rightly rejected the various claims made by the petitioner, under Section 33(C)(2) of the Industrial Disputes, Act, 1947. The petitioner, having been employed as a Section Head, in a Supervisory capacity, cannot be said to be a 'workman', under the https://hcservices.ecourts.gov.in/hcservices/ provisions of the Industrial Disputes Act, 1947. Since, the petitioner had resigned from his service, voluntarily, he cannot claim the reliefs, as though he had been dismissed, discharged, or retrenched from the service of the second respondent Company. The petitioner had not established any pre-existing right in order to maintain the petition, under Section 33(C)(2) of the Industrial Disputes, Act, 1947. 9. It has also been stated that the petitioner having received all the amounts due to him, fully and finally, at the time of his retirement, on completion of 58 years of age, cannot maintain his claim, regarding the payment of overtime wages and other monetary benefits, from the year. 1978, that too, belatedly. Since, the petitioner had resigned from his service, voluntarily, he cannot be entitle to the benefits, which he is claiming. 10. It had also been stated that there was no scheme for voluntary retirement available for the employees of the second respondent Company. It had also been stated that no document had been produced by the petitioner for claiming overtime wages. 11. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions: "1) Desikachari V. The "MAIL" (1961 II LLJ 771) 2) Ramakrishna V. State of Maharashtra (1975 LAB. I.C. 1561) 3) Bhawsar Home Furnishers & Decorators V. Dattaram Pandurang Mistri & Ors. (1993 III L.L.J. 702)" However, this Court does not find the above decisions to be directly relevant for the purpose of deciding the issues involved in the present case. 12. The learned counsel appearing for the petitioner had submitted that, since the petitioner’s service had been extended by the second respondent Management, there was no question of the petitioner attaining superannuation before he had completed 58 years of age. When the petitioner had submitted a request for voluntary retirement from service, it is improper for the second respondent Management to accept the request, as though it was a request for resignation from service. The act of the second respondent Management in treating the request of the petitioner, as resignation from service, would amount to retrenchment of the petitioner, as per section 2(oo) of the Industrial Disputes Act, 1947. 13. It has also been submitted that the petitioner is entitled to claim overtime wages under the provisions of the Factories Act, 1948. The first respondent labour Court had erred in asking the petitioner to raise a dispute before the labour Court, to establish the fact that he is a workman, as per Section 2(s) of the Industrial Disputes Act, 1947. In fact, the first respondent labour Court could https://hcservices.ecourts.gov.in/hcservices/ have decided the issue, collaterally. There was a pre-existing right to claim overtime wages, from the year, 1978, as per the provisions of the Factories Act, 1948. Since, the second respondent Management had not been in a position to show that overtime wages had been paid to the petitioner, the first respondent labour Court ought to have held that the petitioner was entitled to such wages. Therefore, the order of the first respondent labour Court, dated 5.12.2005, is to be set aside and the matter is to be remitted back to the first respondent to render a clear finding, with regard to the reliefs sought for by the petitioner. 14. Per contra, the learned counsel appearing on behalf of the second respondent had submitted that the petitioner had never claimed overtime wages during his service, nor had he raised the issue at the time of his retirement from service, on his completion of 58 years of age. The petitioner cannot raise the issue, regarding payment of overtime wages, belatedly, after more than 2 decades, after he had joined in service. The petitioner cannot invoke Section 33(C)(2) of the Industrial Disputes Act, 1947, to claim the relief, as he was not a workman coming under the definition of 2 (s) of the Industrial Disputes Act, 1947. Further, the petitioner cannot be said to be entitled to receive the overtime wages and other monetary benefits, as there was no settlement or award or pre-existing right to make such a claim. 15. It has also been stated that the second respondent Management had not prescribed the manner and methodology for his employees to perform overtime work, as per the relevant provisions of the Factories Act, 1948. The petitioner had not produced even a single document to show that he is entitled to the overtime wages, as claimed by him. There was not even a whisper from the petitioner from the year, 1978, claiming overtime wages. Since, the petitioner had not established that he had a pre-existing right, his claims cannot be considered. Further, the first respondent labour Court had given a clear and adequate reasons for rejecting the claims made by the petitioner. In such circumstances, the writ petition filed by the petitioner is liable to be dismissed, as being devoid of merits. 16. The learned counsel for the second respondent had relied on the following decisions in support of his contentions. 16.1. In MUNICIPAL CORPORATION OF DELHI Vs. GANESH RAZAK AND ANR. (1995 I LLJ 395), the Supreme Court had held as follows: 4. It is clear that there has been no earlier adjudication by any forum of the claim of these workmen of their entitlement to be paid wages at the same rate at which the regular workmen of the establishment are being paid and there is no award or settlement to that effect. In short, this claim of the workmen has neither been adjudicated nor https://hcservices.ecourts.gov.in/hcservices/ recognised by the employer in any award or settlement. The real question therefore is : Whether in these circumstances, without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claimed by them on that basis are maintainable under Section 33-C(2) of the Act? 12. 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 workmen 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 33-C(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 33-C(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 33-C(2) like that of the Executing Court’s power to interpret the decree for the purpose of its execution. 16.2. In UTTAR PRADESH Vs. BRIJPAL SINGH (2005 (8) SCC 58), the Supreme Court had held as follows: 7. It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages (P) Ltd. v. Suresh Chand1 held that a proceeding under Section 33-C (2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship https://hcservices.ecourts.gov.in/hcservices/ between the industrial workman, and his employer. This Court further held as follows: “It is not competent to the Labour Court exercising jurisdiction under Section 33-C(2) to arrogate to itself the functions of an Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the Act.” 16.3. In CEAT LTD., Vs. ANAND ABASAHEB HAWALDAR AND ORS (2006 I LLJ 1096), the Supreme Court had held as follows: 9. According to learned counsel for the appellant, a complaint of unfair labour practice can be made only by the existing employees. Under clause (5) of Section 3 of the Act the expression “employee” only covers those who are workmen under clause (s) of Section 2 of the Industrial Disputes Act, 1947 (in short “the ID Act”). The expression “workman” as defined in clause (s) of Section 2 of the ID Act relates to those who are existing employees. The only addition to existing employees, statutorily provided under Section 2(s) refers to dismissed, discharged and retrenched employees and their grievances can be looked into by the forums created under the Act. In the instant case, the complainants had resigned from service by voluntary retirement and, therefore, their cases are not covered by the expression “workman”. On the factual scenario, it is submitted that after 337 employees had accepted VRS I, others had raised disputes and had gone to court. Order was passed for paying them the existing salary and other emoluments. This went on for nearly two years and, therefore, with a view to curtail litigation a memorandum of understanding was arrived at in 1994. This basic difference in the factual background was not noticed by either the Industrial Court or the High Court. 16.4. In THE SPECIAL OFFICER, VELLORE CO-OPERATIVE SUGAR MILLS Vs. THE PRESIDING OFFICER, LABOUR COURT, K.SHANMUGAM AND D.KRISHNAN (2005 III LLJ 141), the Division Bench of this Court had held as follows: 5. A written statement was filed by the management in reply to those claim petitions. The writ petitioner-Mill denied and repudiated the claim of overtime allowance and alleged that the concerned employees were never asked to do overtime work. In paragraph – 6 of the written statement the claim of the employees were denied and it was alleged that they were never ordered to work overtime. It was alleged in paragraph 13 of the written statement that mere production of punch cards does not establish the right to any overtime allowance. The punch cards would only show at https://hcservices.ecourts.gov.in/hcservices/ what time an employee entered the gate of the factory and at what time he left. There can be various reasons as to why an employee stays inside the factory compound. Unless there is a specific direction from the factory manager or any other authorised person to do overtime work, the employees cannot claim overtime allowance, and they cannot claim overtime allowance merely because they were inside the factory beyond the working hours. More over, the claim made after a long lapse of time, without an iota of evidence, cannot be sustained at all. 7. We have carefully perused the order of the labour Court dated 24.5.2002. It may be noted that no oral evidence was adduced on behalf of the claimants before the labour Court and no exhibits were marked. In our opinion, whenever there is a claim for overtime allowance, it is incumbent on the workmen concerned to at east come into the witness box and state on oath before the labour Court that he/she worked overtime. When he/she does not even adduce his/her own oral evidence it is difficult to accept the claim for overtime allowance. In this case, the claimants/workmen never adduced any oral evidence before the labour Court. Only claim petitions were filed, and the only material which has been relied upon is the time cards filed by the respondent/management (appellant in the present writ appeals). In our opinion, the time cards only reflect the time of entry of the workman into the factory and time of exit. In our opinion, the punch card by itself cannot substantiate a claim for overtime allowance, as it does not prove that in fact the workman concerned worked overtime. All that the time cards show is the time of entry into the factory and the time of exit. It is quite possible that even after the working hours of the workman concerned, he may be loitering around inside the factory premises without being told to do more work. 15. There was nothing on record to prove that the manger or any authorised person ordered the workmen concerned to work overtime. 16.5. The said decision of the Division Bench of this Court in THE SPECIAL OFFICER, VELLORE CO-OPERATIVE SUGAR MILLS Vs. THE PRESIDING OFFICER, LABOUR COURT, K.SHANMUGAM AND D.KRISHNAN (2005 III LLJ 141) had been upheld by the Supreme Court in the decision in D.KRISHNAN AND ANR. Vs. SPECIAL OFFICER, VELLORE CO-OPERATIVE SUGAR MILL AND ANR. (2008) 7 SCC 22). 16.6. In K.V.JOSEPH Vs. PIERCE LESLIE INDIA LTD. AND ORS. (1995 III LLJ 391), the Supreme Court had held as follows: https://hcservices.ecourts.gov.in/hcservices/ 5. Even though there is no period of limitation under Section 33-C(2), the second respondent was justified in dismissing the stale claims of the petitioner. If stale claims are allowed, it would lead to undesirable results including financial anarchy and chaos in the industrial field. Unless there is a satisfactory explanation for the delay, the labour Court is not expected to entertain petitions especially when it would have far-reaching pecuniary consequences on the employers. In the present case, the claims are made after a long lapse of time. Whether a claim has become stale or not depends upon facts of each case and hard and fast rule cannot be laid down one way or the other. In Inder Singh & Sons Ltd., Vs. Their Workmen 1961 II LLJ 89, the Supreme Court held: "On the other hand, it is well-accepted principle of industrial adjudication that over- stale claims should not generally be encouraged or allowed, unless there is satisfactory explanation for the delay. Apart from the obvious risk to industrial peace from the entertainment of claims after a long lapse of time, it is necessary also to take into account the unsettling effect this is likely to have on the employer's financial arrangements. Whether a claim has become too stale or not will depend on the circumstances of each case. While there is no absolute proposition of law that in no case relief could be granted for a period prior to the demand, the Industrial Tribunal ought to pay particular attention to the date on which the demand was first made". 17. The learned counsel appearing for the respondents had also relied on the decision of this Court, reported in K.Jayapal V. Union of India (UOI), rep. By its Secretary to Government (Manu/TN/8392/2007), and the judgment, reported in Limbaji Baburao Shinde Vs. Osmanabad District Central Co-operative Bank Ltd. (2010 L.L.R. 15), to stress that the request of the learned counsel appearing for the petitioner, to remit the matter back to the first respondent Labour Court, cannot be accepted, as the said attempt is made only for the purpose of prolonging the proceedings. He had submitted that in the above cited decisions, the contention of the petitioner therein had been rejected holding that there was nothing perverse in the findings recorded by the respondents therein. 18. In view of the contentions made by the learned counsels appearing for the petitioner, as well as the second respondent and on a perusal of the documents available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for https://hcservices.ecourts.gov.in/hcservices/ setting aside the order of the first respondent labour Court, dated 5.12.2005, made in C.P.No.590 of 2001. 19. There is nothing shown by the petitioner in support of his claim for overtime wages. It is clear that the petitioner had not raised the issue regarding the payment of overtime wages, during his service from the year, 1978, till he had submitted his resignation from service. Such a claim having been made, belatedly, after more than 2 decades, cannot be countenanced. The first respondent labour Court had rightly held that the petition filed by the petitioner, under Section 33(C)(2) of the Industrial Disputes Act, 1947, cannot be maintained, unless there was a pre-existing right or entitlement in favour of the petitioner. Further, the petitioner had not been in a position to show that he was a workman, within the meaning of Section 2(s) of the the Industrial Disputes Act, 1947. 20. It is also clear that the petitioner had requested for voluntary retirement from his service, even before he had attained the age of 58 years. Merely for the reason that the second respondent Management had accepted the request of the petitioner, as though it was resignation from service, since there was no scheme of voluntary retirement for the employee, it cannot be held that the petitioner would be entitled to the reliefs, as sought for by him. As such, the writ petition is liable to be dismissed, as being devoid of merits. Hence, it stands dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan/csh To 1. The Presiding Officer Principal Labour Court, Chennai 1 cc to Mr.S.Ayyathurai, Advocate, Sr 8054 Writ Petition No.23929 of 2006 NG (CO) RH (18.2.10) https://hcservices.ecourts.gov.in/hcservices/