THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31-1-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No. 29623 of 2007 & M.P.Nos. 1,2 & 3 of 2007 Metropolitan Transport Corporation Division - I, rep.by the Managing Director Pallavan Salai Chennai-600 002. ... Petitioner Vs. 1. The Presiding Officer I Additional Labour Court Chennai-600 104. 2. V. Venkatesan ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari calling for the records pertaining to the order passed in C.P.No.138 of 2005 dated 22.12.2006 on the file of the I Additional Labour Court, Chennai, the first respondent herein and quash the same. For Petitioner : Mr. Kamalanathan for Ms. S. Hemalatha 1st Respondent : Court For 2nd Respondent : Mr.S. Kanniah O R D E R The prayer in the writ petition is to quash the order of the Labour Court dated 22.12.2006 passed in C.P.No.138 of 2005. 2. (a) The Transport Corporation has filed the above writ petition challenging the order passed in Claim Petition No.138 of 2007 by the first respondent in favour of the second respondent. The second respondent was appointed as Conductor in the petitioner Transport Corporation on 7.5.1980 with Staff No.11156. The second respondent being a graduate, he was posted as Junior Assistant and then promoted as Assistant. He also passed M.A.( Socialogy) and B.L. Degrees. As he had https://hcservices.ecourts.gov.in/hcservices/ possessed B.L. Degree, he made an application to consider him for the post of Superintendent (Legal) Trainee. He was provisionally selected for the post of Superintendent (Legal) Trainee without any monetary benefits and was posted in the legal section. During the period of training, his performance in legal section was found not satisfactory. Consequently, the said order of posting the petitioner as Superintendent (Legal) Trainee was cancelled and he was transferred and posted at Poonamallee by order dated 20.12.1994. (b) Challenging the said order, the second respondent filed Writ Petition No.94 of 1995 and the same was dismissed by this court on 25.1.1995. Consequently, the second respondent was relieved from the legal section on 31.1.1995 and he was directed to join duty at Poonamallee, by order dated 17.2.1995. However he remained absent from duty without joining duty at Poonamallee. Pursuant to the same, charges were framed on 28.3.1995 for his unauthorised absence with effect from 1.2.1995. The charge memo was displayed in the notice board. But the second respondent neither reported for duty nor submitted his explanation. Therefore, a domestic enquiry was conducted, in which the second respondent failed to attend. Paper publication was also issued in the Tamil Daily "Dina Thanthi" on 4.9.1995 and thereafter he attended the enquiry. The enquiry was concluded on 30.4.1996 and a finding was given stating that the charges levelled against the second respondent were proved. (c) Pursuant to the enquiry finding, a show cause notice was issued as to why the second respondent shall not be dismissed from service. The said notice having not been served, was published in "Dina Malar" dated 18.10.1996 and called upon the second respondent to submit his reply to the show cause notice. Even thereafter, the second respondent has not submitted his explanation. Therefore he was removed from service by order dated 12.12.1996. (d) It is the case of the petitioner Management that since the second respondent abandoned the service, Approval Petition under Section 33(2)(b) of the Industrial Disputes Act need not be filed. Even though the common issue was pending in I.D. No.62 of 1982, the second respondent filed Complaint No.15 of 1999 by stating that before getting approval from the Labour Court, he was terminated, which was allowed on 11.7.2003 thereby setting aside the order of termination. As against the said order, the petitioner-Management filed W.P.No.11472 of 2004 and the said writ petition was dismissed by this court on 30.8.2006. During pendency of the writ petition, the second respondent was reinstated in service by order dated 15.6.2006, without prejudice to his rights in the writ petition. (e) The second respondent filed C.P.No.138 of 2005 before the first respondent and claimed a sum of Rs.8,08,698/- towards backwages for the period from 12.12.1996 to 30.6.2004. The first respondent by order dated 22.12.2006 arrived at a sum of Rs.6,54,766/- payable to the second respondent towards backwages and other benefits. The said order of the https://hcservices.ecourts.gov.in/hcservices/ first respondent is challenged in this writ petition on the ground that since the second respondent had abandoned the service, he is not entitled to get backwages. 3. An additional affidavit was filed by the writ petitioner- Management on 19.1.2008, wherein it is stated that the second respondent enrolled his name as an Advocate on 12.7.2000 with Enrollment No.936 of 2000 and was practising as an Advocate for seven years and as he was gainfully employed from the date of his enrollment, awarding of backwages for the period from 12.12.1996 to 30.6.2004 is unsustainable. Relying on this additional affidavit, the petitioner-Management contended that, in any event, the second respondent is not entitled to get backwages from the date of his enrollment i.e. from 12.7.2000 as he was earning through advocate profession. 4. The second respondent filed counter affidavit by stating that the petitioner-Management has not obeyed the orders passed by this court in W.P.M.P.No.13562 of 2004 in W.P.No.11472 of 2004 dated 26.4.2004 and the order made in the main writ petition on 30.8.2006, which was also confirmed in Writ Appeal No.1421 of 2007 by order dated 19.11.2007. The writ petitioner Management also failed to obey the award dated 22.12.2006 passed in C.P.No.138 of 2005. 5. Insofar as the contention of the petitioner that the second respondent has enrolled his name as an Advocate and actively practising for seven years, the second respondent has filed additional counter affidavit on 23.1.2008 by specifically stating that he never practised as an Advocate before any Court and not even undertaken any consultancy work and no vakalath is filed either individually or in association with any other counsel before any Court, Tribunal or any Forum. Therefore the second respondent earned nothing after his enrollment as he never practised as an advocate. The second respondent was reinstated in service from 1.7.2004 and he relinquished the same on 1.3.2006 due to ill- treatment meted out to him by the writ petitioner Management. It is further stated that if the second respondent is actively practising as contended in the additional affidavit, there is no necessity for the petitioner to rejoin the Corporation on reinstatement and do the sundry works allotted by the petitioner from time to time. 6. Heard the learned counsel for the petitioner as well as the learned counsel for the second respondent. 7. In Complaint No. 15 of 1999 in I.D.No.62 of 1982, the Labour Court held that the dismissal order passed on 12.12.1996 by the petitioner Management against the second respondent was set aside and it was ordered that the second respondent deemed to have continued in service entitling him to all the benefits available. The said order dated 11.7.2003 was challenged in W.P.No.11472 of 2004 and while admitting W.P.M.P.No.13502 of 2004, this court on 26.4.2004 passed the following order: https://hcservices.ecourts.gov.in/hcservices/ "Interim stay on condition that the petitioner deposits the entire backwages awarded by the Labour Court within six weeks and also complying with the procedure contemplated under Section 17-B of the Industrial Disputes Act. If the petitioner defaults anyone of the conditions, stay granted shall stand vacated automatically ....." 8. The said conditional order was not complied with and therefore the interim stay granted was vacated by this court on 23.12.2004. Writ Petition No.11472 of 2004 was also dismissed by this court on 30.8.2006 following the judgment of the Supreme Court reported in (2002) 2 SCC 244 (Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma). Writ Appeal was filed against the said order in W.A.No.1421 of 2007 and by judgment dated 19.11.2007, this court upheld the order of the learned Single Judge, which reads as follows:- " It is admitted position that at the relevant point of time, there was an Industrial Dispute in I.D.No.62 of 1982 pending before the Tribunal between the appellant and workmen. The appellant, without seeking approval as provided under Section 33(2)(b) of the Industrial Disputes Act, passed the order of removal against the first respondent. The first respondent therefore, filed a complaint before the second respondent for setting aside the order of removal dated 12.12.1996 passed against him. The Industrial Tribunal after taking into consideration non-compliance of the provision under Section 33(2)(b) of the Industrial Disputes Act and in view of the decision of the Apex Court in JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. v. RAM GOPAL SHARMA (2002 (2) S.C.C., 244) set aside the order of removal against the first respondent as void and ab initio. In the above case, the Supreme Court has clearly held that if the employer fails to apply for approval under Section 33(2) (b) of the Industrial Disputes Act or if the application for the approval is rejected the employee shall be deemed to be in continuous service as if the order of discharge or dismissal had never been passed and the employee shall be liable to be reinstated with all attendant benefits. Under the circumstances, no interference is called for with the award passed by the Industrial Tribunal, which has been confirmed by the order of the learned single Judge. " Thus the termination order passed by the petitioner Management, which was set aside with reinstatement , backwages and other benefits, has become final. https://hcservices.ecourts.gov.in/hcservices/ 9. The only question remains to be decided is whether the claim petition filed in Claim Petition No.138 of 2005 for computing backwages and the order passed therein are justified or not. 10. It is noted in the said order that the petitioner was dismissed on 12.12.1996 and was re-employed on 1.7.2004. The amount of arrears of salary was computed at Rs.6,54,766/- by award dated 22.12.2006. The said award was not challenged immediately by the petitioner Management. The second respondent submitted a representation on 12.3.2007 to implement the award. Since no action was taken, the second respondent filed W.P.No.19852 of 2007 and prayed for issuance of a writ of Mandamus directing the Secretary to Government, Labour and Employment Department, Chennai, to issue necessary certificate to the District Collector, Chennai, to recover the amount from the petitioner-Management and pay the same to the second respondent. The State Government was directed to issue necessary certificate to the District Collector within four weeks. Thereafter the State Government issued G.O.Ms.No.647 Labour and Employment, dated 3.9.2007, directing the District Collector, Chennai, to initiate Revenue Recovery Proceedings for the payment of the sum of Rs.6,54,766/- to the second respondent. The District Collector, Chennai, through his proceedings dated 9.10.2007 issued directions to the Tahsildar, Tondiarpet, to implement the order of the Government. During that time, this writ petition was filed by the petitioner Management, challenging the order dated 12.12.2006. 11. The learned counsel for the second respondent submitted that all the earlier proceedings were suppressed by the writ petitioner Management and the order of interim stay for twelve weeks was obtained. 12. Learned counsel for the petitioner Management at the time of arguments submitted that there is no proof for the gainful employment of the second respondent from 12.12.1996 to 12.7.2000 and therefore the writ petitioner management is willing to pay backwages for the said period and for the period after 12.7.2000 till reinstatement, the second respondent is not entitled to get any backwages as he enrolled his name as an Advocate and was actively practising. The said fact was not placed before the Labour Court, for which the petitioner-Management submitted that the same was known to the Management only now and on knowing the details an additional affidavit is filed on 19.1.2008. In the said affidavit even though the date of his enrollment is given, except a vague averment that the second respondent was gainfully practising as an Advocate, no other details with regard to his income, number of vakalaths filed etc., has been given. 13. Per contra, the second respondent filed additional counter affidavit denying the factum of earning anything after his enrollment and in that affidavit he had specifically stated that he never practised as an Advocate and he did not file any vakalath, either individually or in association with any other counsel, before any Court, Tribunal or any other forum. https://hcservices.ecourts.gov.in/hcservices/ 14. A similar issue was considered by the Supreme Court in the decision reported in AIR 2006 SC 584 (Administrator, Kamala Nehru Memorial Hospital v. Vinod Kumar). In the said case, the question arose was as to whether a workman enrolled as an advocate, can be denied 17B wages during his actual practice. In the said case, the management adduced ample materials to show that the workman was enrolled as an advocate and was a busy practitioner with decent professional income. The management also gave a list of large number of cases in which the workmen after enrollment as an advocate, appeared. In such contingency, the Supreme Court held that the High Court was not justified in ignoring the said materials and gave a finding that because of the compulsion of unemployment, he had no option but to continue as a practising advocate for a short period. 15. The writ petitioner management has not discharged its liability of proving the gainful employment of the second respondent after his enrollment. In the absence of any proof that the second respondent was earning even after 12.7.2000, I am not in a position to reject backwages from 12.7.2000, which was ordered by the Tribunal. The scope of interference in the award of the Labour Court is very limited. Admittedly no proof of gainful employment and income earned by the second respondent is produced either before the Labour Court or before this Court by the writ petitioner Management. 16. In the result, I hold, the finding given by the Labour Court cannot be treated as perverse finding. There is no merit in the writ petition and the same is dismissed. As the order of the first respondent is upheld, the writ petitioner is directed to pay the sum fixed in the order of the first respondent dated 22.12.2006, to the second respondent on or before 29.2.2008. Connected miscellaneous petitions are closed. No costs. Tr/vr Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To The Presiding Officer, I Additional Labour Court, Chennai-600 104. +1 cc to Mr.S.Kanniah, Advocate Sr.No.4420. MDR(CO) dcp/5.2 W.P.No.29623 of 2007 & connected MPs. https://hcservices.ecourts.gov.in/hcservices/