IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.6.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.10132 of 2002 and W.M.P.No.13712 of 2002 G.Gunasekaran. ...Petitioner vs. 1. The Chairman, Chennai Port Trust, Chennai-600 001. 2. The Deputy Port Conservator, Chennai Port Trust, Chennai-600 001. ...Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the second respondent in his proceeding No.E2/3478/1999/M dated 10.9.2001 and the proceeding of the second respondent in No.A6/5337/2001/M dated 20.10.2001 and quash the same and consequently direct the respondents to pay 25% of backwages with effect from 18.4.1990 to 28.4.1999 with attendant benefits on the past service, leave and monetary effect for promotion etc., from retrospective effect. For Petitioner : Mr.K.Raja For Respondents : Mr.M.Jagadeesan O R D E R This Writ Petition is filed to issue a Writ of Certiorarified Mandamus calling for the records of the second respondent in his proceeding No.E2/3478/1999/M dated 10.9.2001 and the proceeding of the second respondent in No.A6/5337/2001/M dated 20.10.2001 and quash the same and consequently direct the respondents to pay 25% of backwages with effect from 18.4.1990 to 28.4.1999 with attendant benefits on the past service, leave and monetary effect for promotion etc., with retrospective effect. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petitioner, Lascar Grade-II was reinstated by order of the Industrial Tribunal in its award dated 20.8.1998 in I.D.No.56 of 1995. The Tribunal ordered that on reinstatement, the petitioner will be entitled to 25% backwages and other attendant benefits. It appears that the petitioner and the second respondent entered into a Memorandum of Settlement in terms of Section 18(1) of the Industrial Disputes Act, 1947 whereby and whereunder the petitioner agreed to settle his claim by accepting 15% backwages. The said amount was paid by the second respondent and was received by the petitioner. A copy of Memorandum of Settlement under Section 18(1) of the Industrial Disputes Act, 1947 has been furnished to this Court and it is not disputed. There is no specific clause in the Settlement as to how the pay will be fixed on reinstatement. 3. Consequent to the settlement, the petitioner was reinstated into service on and from 29.4.1999 and was assigned with Lascar No.250 in Lascar Grade-II(Y). He continued to serve as Lascar Grade- II for more than two years. On 10.9.2001, a memo was issued by the Deputy Port Conservator, the second respondent, as follows:- "MEMO: Sub:ESTABLISHMENT – Staff – Shri G.Gunasekaran – Reinstated in Trust's service w.e.f. 29.4.99 as Lascar Gr.II(Y) – Pay fixation in the post of Lascar Gr.II(Y) – Intimation – Reg. ..... The Industrial Tribunal, Chennai in its award dated 20.8.98 (I.D.No.56/95) has ordered for his reinstatement with 25% of Back wages and other attendant benefits. Whereas, he has voluntarily agreed to receive 15% of back wages instead of 25% by executing a bond on 3.4.99 and further agreed as not to raise any other claim against the Trust. As he has obviously agreed to receive the 15% of back wages from 18.4.90 to 28.4.99 as per settlement dated 22.3.99, the question of claiming attendant benefits on the past service, Leave and monetary effect for Promotion etc., from a retrospective effect does not arise. In the light of the above, he has been reinstated in Trust's service with effect from 29.4.99, is assigned with Lascar No.250. As such, his reinstatement as Lascar Gr.II(Y) with effect from 29.4.99 is treated as a new recruit and his https://hcservices.ecourts.gov.in/hcservices/ pay in the post of Lascar Gr.II(Y) is fixed as follows:- Rs.3840 - 29.4.99. Rs.3920 - 1.4.2000. Rs.4000 - 1.4.2001. Any arrears/excess paid due to him towards his pay and allowances will be paid/recovered in due course." Consequent to the said memo, on 20.10.2001, recovery order was issued as follows:- "MEMO: Sub: Establishment – Staff – Shri G.Gunasekaran – Reinstated in Trust's service with effect from 29.4.99 as Lascar 11313 Grade-II – Excess payment of Pay and allowances recovery – Intimation – Regarding. Ref: This office memo.No.E2/3478/99/M, dtd 10.9.2001. ----- He is informed that he has been re-instated in Trust's service with effect from 29.4.99 treated him as a new recruit and his initial basic pay has been fixed at Rs.3840/- in the post of Lascar Gr.II(Yard) from 29.4.99, Consequent of his pay fixation in the memo cited the excess amount of Rs.1,06,749.30 which has already been paid to him towards the pay and allowances will be recovered in 107 instalments at Rs.1000/- p.m. for 106 instalments and Rs.749.30 in the last instalment from his salary commencing from the month of October 2001 payable in November 2001." The memo dated 10.9.2001 and consequential recovery order dated 20.10.2001 is challenged stating that on reinstatement and after serving more than two years in the post of Lascar Grade-II with effect from 29.4.99, without any valid reason or justification, the second respondent has proceeded to treat the petitioner as a new recruit and fixed the pay and ordered recovery arbitrarily and capriciously. The respondents have not stated the basis on which the https://hcservices.ecourts.gov.in/hcservices/ above stated proceedings were initiated that too after a lapse of two years on reinstatement. The respondents cannot treat the petition as a fresh entrant when admittedly he is reinstated as per the award of the Industrial Tribunal. 4. Counter has been filed by the respondents stating that the petitioner has voluntarily agreed to receive 15% backwages as against 25% fixed by the Industrial Tribunal. Therefore, the petitioner was treated as a new recruit on reinstatement. The reason stated in the counter-affidavit is that in the Memorandum of Settlement under Section 18(1) of the Industrial Disputes Act, there is a clause which says that the petitioner will not raise any other claim or dispute against the respondent Port Trust. Clause (e) of the settlement reads as follows:- "e) Shri Gunasekaran, agreed not to raise any other claim or dispute against the Trust in any other forum since the Trust agreed to reinstate him and he agreed to receive 15% of the Backwages as per the Award." 5. The interpretation given by the respondents to the Memorandum of Settlement entered in terms of Section 18(1) of the Industrial Dispute Act on 3.4.1999, particularly clause (e) as above does not state that the petitioner will be treated as a new recruit on reinstatement. In any event, the award of the Industrial Tribunal directing the reinstatement of the petitioner has been accepted by the respondents and the petitioner joined duty on and from 29.4.1999. He has been paid the salary as a Lascar Grade-II as applicable. There is no justification to treat the petitioner as a new recruit when the award of the Industrial Tribunal has been accepted with regard to reinstatement. The settlement is only with regard to quantum of backwages. There is no basis for the respondents to issue the memo and the recovery order treating the petitioner as new recruit and the proceedings are bereft of reasons. In any event, both in memo dated 10.9.2001 and in the recovery order dated 20.10.1991 which are under challenge no reason has been stated as to why the petitioner has been treated as new recruit. In such circumstances, memo and the order for recovery sans reasons is an arbitrary exercise of authority. This court is, therefore, inclined to interfere with the proceedings under challenge. 6. In the result, the impugned proceedings are set aside. The petitioner will not be entitled to the 25% of backwages as prayed for as he is bound by the settlement. If any recovery is made from the petitioner consequent to the impugned proceedings, the same should be https://hcservices.ecourts.gov.in/hcservices/ refunded to the petitioner. The Writ Petition is ordered as above. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ts To 1. The Chairman, Chennai Port Trust, Chennai-600 001. 2. The Deputy Port Conservator, Chennai Port Trust, Chennai-600 001. +1 cc To Mr.K.Raja, Advocate, SR.No.21850 +1 cc To Mr.M. Jagadeesan, Advocate, SR.No.21949 W.P.No.10132 of 2002 SGL (CO) A.S. (03.07.2009) https://hcservices.ecourts.gov.in/hcservices/