IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.37772 of 2004 Mr.P.Chandrasekaran ... Petitioner Vs. 1.The Presiding Officer, I Additional Labour Court, High Court Complex, Chennai – 600 104. 2.The Management of EID Parry (I) Ltd., Parry & Co. Ltd., Dare House, Chennai – 600 001. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus to call for the records on the file of the I Additional Labour Court, Chennai in connection with the order dated 07.04.2004 passed in C.P.No.34 of 1998 and IA No.93/02 and quash the same and direct the respondent to pay all the pensionary benefits to the petitioner as paid to other employees as per the Office Order No.26 with interest at 18% per annum and with costs. For Petitioner :Mr.R.Singaravelan For Respondents :Mr.S.Ravindran for M/s.T.S.Gopalan & Co. For R2 ORDER The petitioner has filed the present writ petition challenging the order passed by the I Additional Labour Court, Chennai in connection with the order dated 07.04.2004 passed in C.P.No.34 of 1998 and IA No.93/02 and quash the same and direct the respondent to pay all the pensionary benefits to the petitioner as paid to other employees as per the Office Order No.26 with interest at 18% per annum. https://hcservices.ecourts.gov.in/hcservices/ 2. The claim of the petitioner is that he is entitled to pension for the period from 01.01.91 to 31.12.97 amounting to Rs.1,07,520/- and the General Office Order No.26 provides for payment of retiring allowance to employees, who retired, on reaching the age of superannuation with 30 years of service or more. The said General Office Order No.26 also provides for gratuity to permanent employees, who were in the company's service prior to 01.01.1947. 3. In the year 1968, the workmen of the respondent company raised an Industrial Dispute demanding that all the employees irrespective of their date of entry into service should be given right to exercise option either gratuity or in lieu of gratuity for retiring allowance. The said dispute was referred to the Industrial Tribunal, Madras for adjudication. In the meanwhile, the payment of Gratuity Act came into force with effect from 16.09.72 and award was passed holding that as gratuity was statutorily payable, there is no question of any employee opting for retiring allowance in lieu of gratuity. The said award was challenged by the workmen in W.P.No.46968/75 and the same was dismissed on 19.10.78. Thereafter, the said order was not challenged by the workmen. The petitioner was also a party to the dispute in I.D.55/68 and the judgment of this Court in W.A.No.4696/75 dated 19.10.78. Both the workmen and the management of the respondent company applied to the Government of India seeking exemption from the provisions of payment of Gratuity Act, so that the eligible employees could have an option either for payment of gratuity or in lieu of gratuity for payment of retiring allowance. But, the Government of India rejected the application to grant exemption. 4. Aggrieved by the rejection order, the workmen filed W.P.No.756/77 and the same was also dismissed on 19.10.78. In the meanwhile, the workmen submitted charter of demand for revision of wages, allowance and other service conditions including payment of retiring allowance. Subsequently, on 21.04.78, a settlement was made and under the settlement, the workmen did not press for retiring allowance and accepted the order of the Government rejecting the application for exemption. This settlement was followed by another long term settlement dated 17.05.85, by which the demand for retiring allowance was also given up. Further, some of the former workmen filed claim petition claiming retiring allowance. Finally, this matter was carried to the Supreme Court and became the subject of Civil Appeal Nos.2138 to 2140 of 1997. The Apex Court, by order dated 21.03.97, held that in respect of workmen in a commercial establishment, there are two separate settlements between the workers and the management dated 07.04.98 and 17.05.85. Under both these settlements, the claim of workmen in commercial establishment for a retiring allowance, was rejected. The latter settlement is under Section 12(3) of I.D. Act before the Special Deputy Commissioner (Labour), Madras. The understanding between both these parties was that the workers in the commercial department would not get any https://hcservices.ecourts.gov.in/hcservices/ retiring allowance. The Supreme Court also gave a direction that the order of the Division Bench of this Court in W.P.No.4696/75 shall be binding on the respective parties to those proceedings. The above said order confirmed the award of the Tribunal in I.D.No.55/68 holding that after passing of the payment of Gratuity Act, the workmen were not entitled to payment of retiring allowance. In view of the order passed by the Supreme Court, dated 21.03.97, the petitioner being an employee of the commercial establishment, has no right to claim retiring allowance. Since the said judgment passed in W.P.No.4696/75 is binding upon the petitioner, the claim of the petitioner cannot be considered. 5. Learned counsel appearing for the petitioner submits that the petitioner after putting in 37 ½ years of unblemished service in the management of E.I.D. Parry (I) Ltd., retired from service on 31.12.90. The 2nd respondent company was originally a British firm known as Parry & Co., which was later on bifurcated as E.I.D. & S.F.Ltd., and Parry & Co. Ltd. The employees were inter-transferable between these two companies. Any dispute between the employer and employee are to be resolved only by General Office Order No.26, which states that the employees, who rendered 30 years or more service are eligible for full retiring allowance. It was also submitted that the retiring allowance was paid to all employees, who were eligible as per the General Office Order No.26. But, after the enactment of Payment of Gratuity Act, 1972, the management informed the employees that in view of the gratuity, they had scraped the pension scheme itself. Subsequently, in the year 1978, a Division Bench of this Court, has held that after the introduction on the Gratuity Act, the workmen would be eligible only for gratuity. In the year 1981, the Apex Court in the case reported in 1981 (I) LLJ (SC) 79, while interpreting Section 14 of the Gratuity Act has held that Section 14 of the Payment of Gratuity Act was a protective clause and no existing retiral benefits could be reduced. On the basis of the judgment, 54 employees of the Ranipet Factory filed claim petition under Section 33(c)(2) of the Industrial Disputes Act before the Labour Court. The Labour Court allowed the claim petition, but the said award was taken up to the Division Bench of this Court in W.A.No.864 to 870 of 1988 and this Court has held in favour of the workmen. Subsequently, the issue was taken up before the Supreme Court and the same was also upheld by the Supreme Court. Subsequent to this development, a Full Bench of this Court has taken a view in W.A.No.332 of 1994 that every kind of severance of service, whether it is by way of superannuation or voluntary retirement or resignation or removal or dismissal from service or compulsory retirement, would amount to retirement entitling the workmen to a retiring allowance. 6. Per contra, learned counsel appearing for the 2nd respondent submits that the case of the petitioner cannot be considered, for the simple reason that, when the Supreme Court has made a cut off date for the purpose of making the pensionary benefit as March 1, 1997, https://hcservices.ecourts.gov.in/hcservices/ which is not only against the petitioner, but also applicable to a claim made by any one. Even if a person makes his claim on 02.03.97, such concession, if granted, would go against the judgment of the Supreme Court. Therefore, the same cannot be considered. 7. Heard the learned counsel appearing on either side and perused the materials available on record. 8. In the present case, it is pertinent to note that the workmen went an appeal to the Supreme Court in C.A.No.2137/97. During the pendency of the matter, when the matter was reserved for judgment, a joint Memorandum was filed by the parties that the claim for retiring allowance was made by the employees as per General Office Order No.26 and the same was also accepted by the Supreme Court. The relevant portion of the judgment is extracted hereunder:- 3(A) Claimants who are superannuated or left service under Voluntary Retirement or Early Retirement Schemes or retired on Medical Grounds after the payment of Gratuity Act coming into force and are parties to the present proceedings in these SLPs or claims pending in the Labour Courts at Madras, Vellore, Cuddalore and Guntur and High Court, Madras as on March 1, 1997 will be paid a lumpsum amount equal to the amount of Retiring Allowance computed as per General Office Order No.26 with no annual review of the period commencing from three years prior to the date of filing of such claim petitions till December 31, 1996 or form the date of leaving service till December 31, 1996 whichever is less, after deducting therefrom whatever amounts that were paid. As per the above said judgment of Supreme Court, the claimants, who are superannuated as on March 1, 1997, will be paid a lump sum amount equal to the amount of retiring allowance computed as per General Office Order No.26 with no annual review for the period commencing from three years prior to the date of filing of such claim petitions, till December, 1996. 9. In para 3(b) of the Apex Court judgment, it was further held that whoever is party to the proceedings in the Supreme Court or to the claims pending in the Labour Courts at Madras, Vellore, Cuddalore and Guntur, as on March 1, 1997 and who are alive, will be paid a one time lump sum amount at the rate of Rs.90,000/- for those who had put in not less than 20 years of completed service on the date of cessation of employment with an addition of Rs.2,000/- for every completed year. But, unfortunately, the petitioner has filed his application after the cut off date i.e., on 31.12.97, and, therefore, the petitioner was denied the benefit of pension. Further, it was argued that the petitioner being a single individual, the respondent management should come forward to consider the claim https://hcservices.ecourts.gov.in/hcservices/ of the petitioner for payment of reasonable compensation on compassionate ground. In reply, learned counsel appearing for the respondents politely submitted that if the request as placed by the petitioner is compassionately considered, such concession would violate the judgment of the Supreme Court, since the Supreme Court, has on agreement between the parties made a cut-off date for the purpose of making pensionary benefit by marking 1st March, 1997 as the last date for considering the case for pensionary benefit. On that basis, it was prayed to consider the claim of the petitioner. 10. In the light of the above said legal position and judgment of the Supreme Court, this Court also cannot entertain the present writ petition, since the prayer made by the petitioner has already been considered by the Supreme Court in review petition, by putting a cut off date as on March 1, 1997. Therefore, the present writ petition cannot be considered, as otherwise, the same will amount to re-writing the judgment of the Supreme Court. 11. As rightly contended by the learned counsel appearing for the respondent, once the Supreme Court has fixed a cut off date as March 1, 1997, whereas the petitioner has filed his application on 31.12.97, which is much later than the cut off date fixed by the Supreme Court, therefore, this Court cannot extend the cut off date nor consider the prayer of the petitioner. Accordingly, the writ petition is dismissed. No Costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar rkm To 1.The Presiding Officer, I Additional Labour Court, High Court Complex, Chennai – 600 104. 2.The Section Officer, V.R.Section, High Court, Madras-104. 1 cc to M/s.T.S.Gopalan & Co., Advocate, Sr.No.27059 1 cc to Mr.R.Singgaravelan, Advocate, Sr.No.27288 Order in W.P.No.37772/2004 RK {CO} TP/30.4.2010. https://hcservices.ecourts.gov.in/hcservices/