IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.01.2011 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.Nos.5578 of 2003 and 5587 to 5589 of 2003 and W.P.M.P.Nos.7189, 7190, 7192, 7193, 7195 and 7196 of 2003 W.P.No.5578 of 2003: Management, The Coimbatore District Consumer Co-operative Wholesale Stores Ltd., represented by its General Manager, Coimbatore - 641 002. ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Secretary to Government, Labour and Employment Department, Secretariat, Chennai - 9. 3.S.R.Sundaramurthy ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records of the first respondent Labour Court relating to its order dated 24.10.2001 in C.P.No.67 of 1999 and also the records of the second respondent relating to his order in No.30491/D1/2002 Labour and Employment Department dated 30.10.2002 and quash the said orders dated 24.10.2001 and 30.10.2002. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.P.Anbarasan For Respondents : Mr.Bharathchakaravarthy for R.3 R1 - Court. Mr.N.Senthilkumar, Addl.Govt.Pleader for R.2 W.P.No.5587 of 2003: Management, The Coimbatore District Consumer Co-operative Wholesale Stores Ltd., represented by its General Manager, Coimbatore - 641 002. ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Secretary to Government, Labour and Employment Department, Secretariat, Chennai - 9. 3.M.Shanmugam ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records of the first respondent Labour Court relating to its order dated 24.10.2001 in C.P.No.71 of 1999 and also the records of the second respondent relating to his order in No.30491/D1/2002 Labour and Employment Department dated 30.10.2002 and quash the said orders dated 24.10.2001 and 30.10.2002. For Petitioner : Mr.P.Anbarasan For Respondents : Mr.Bharathchakaravarthy for R.3 R1 - Court. Mr.N.Senthilkumar, Addl.Govt.Pleader for R.2 https://hcservices.ecourts.gov.in/hcservices/ W.P.No.5588 of 2003: Management, The Coimbatore District Consumer Co-operative Wholesale Stores Ltd., represented by its General Manager, Coimbatore - 641 002. ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Secretary to Government, Labour and Employment Department, Secretariat, Chennai - 9. 3.V.Srinivasan ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records of the first respondent Labour Court relating to its order dated 24.10.2001 in C.P.No.87 of 1999 and also the records of the second respondent relating to his order in No.30491/D1/2002 Labour and Employment Department dated 30.10.2002 and quash the said orders dated 24.10.2001 and 30.10.2002. For Petitioner : Mr.P.Anbarasan For Respondents : Mr.Bharathchakaravarthy for R.3 R1 - Court. Mr.N.Senthilkumar, Addl.Govt.Pleader for R.2 W.P.No.5589 of 2003: Management, The Coimbatore District Consumer Co-operative Wholesale Stores Ltd., represented by its https://hcservices.ecourts.gov.in/hcservices/ General Manager, Coimbatore - 641 002. ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Secretary to Government, Labour and Employment Department, Secretarit, Chennai - 9. 3.M.Valliammal ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records of the first respondent Labour Court relating to its order dated 24.10.2001 in C.P.No.75 of 1999 and also the records of the second respondent relating to his order in No.30491/D1/2002 Labour and Employment Department dated 30.10.2002 and quash the said orders dated 24.10.2001 and 30.10.2002. For Petitioner : Mr.P.Anbarasan For Respondents : Mr.Bharathchakaravarthy for R.3 R1 - Court. Mr.N.Senthilkumar, Addl.Govt.Pleader for R.2 COMMON ORDER The petitioner (in all the writ petitions) has filed the present writ petitions seeking for the relief of Writ of Certiorari, to call for the records of the first respondent Labour Court relating to its order dated 24.10.2001 in C.P.Nos.67 of 1999, 71 of 1999, 87 of 1999 and 75 of 1999 and also the records of the second respondent relating to his order in No.30491/D1/2002 Labour and Employment Department dated 30.10.2002 and quash the said orders dated 24.10.2001 and 30.10.2002. 2. Before proceeding to consider the matters on merits, the necessary facts are stated as hereunder: https://hcservices.ecourts.gov.in/hcservices/ The petitioner/Management (The Coimbatore District Consumer Co-operative Wholesale Stores Ltd.,) in all the writ petitions, has launched the Voluntary Retirement Scheme to the employees and a large number of employees have opted to come under the Voluntary Retirement Scheme. The retirement benefits of the employees have been paid borrowing funds and mortgaging the properties. The respective third respondents in all the writ petitions are the employees who availed the Voluntary Retirement Scheme. 3. The petitioner/Management announced the Voluntary Retirement Scheme as per G.O.(Ms)No.212, Co-operation, Food and Consumer Protection Department dated 06.08.1997. 224 employees have given their options to go on Voluntary Retirement Scheme. The said scheme has been valid for a period of nine months from 15.08.1997 to 14.05.1998. The petitioner/Management relieved the employees including the respective third respondents in all the writ petitions on the specified last date of expiry of the scheme i.e. 14.05.1998. The financial benefits under the scheme have been disbursed to the employees from 29.07.1998 onwards due to some time lag in securing the finance. In the meantime, the employees have gone on agitation and refused to receive the relieving orders. As such, the petitioner/Management has issued a publication in the local newspaper stating that the employees were relieved from 14.05.1998. When the agitation of the employees has been in the peak and the situation has been tense, the District Collector has intervened and the talks have been held between the employees and the Management in his presence, but no settlement has been made. However, the petitioner/Management in order to purchase peace and tranquility, has agreed to extend the employment of the respective third respondents in all the writ petitions and others upto 10.06.1998 when there has been no work. All the financial benefits have been calculated upto 10.06.1998 and settled to the third respondents in all the petitions on 30.11.1998. 4. The employer and employee relationship between the petitioner and the third respondents in all the petitions has been severed on 14.05.1998 when the applications of the third respondents in all the petitions have been accepted. However, the notional extension of service has been given upto 10.06.1998 purely on humanitarian grounds in view of the unavoidable delay in the payment of terminal benefits. Several units of the petitioner/ Management Stores have been closed in December 1998 and the employees have no work at all in the establishment of the Stores. https://hcservices.ecourts.gov.in/hcservices/ 5. The third respondents in all the petitions and others have projected the Claim Petitions in C.P.Nos.62 of 1999 to 146 of 1999, claiming the benefits hereunder: (a) Wages for the period from 10.06.1998 to 30.11.1998. (b) Arrears of salary under the 12(3) settlement made in 1993. (c) Refund of Security Deposit. (d) Financial benefits by way of additional compensation, additional provident fund and additional leave encashment from 10.06.1998 to 30.11.1998. 6. The petitioner/Management has contested the claim petitions on the basis that the claim petitions are not maintainable as per Section 33-C(2) of the Industrial Disputes Act, 1947, because of the fact that the employer and the employee relationship has already got severed on 14.05.1998. Further, no wages have been due for the period of 'No work, No pay' and the amounts claimed have not been calculated properly. The first respondent/Labour Court, Coimbatore, ignored the contentions of the petitioner/Management and passed an order in the aforesaid claim petitions, as follows: Sl. No. Claim Petition Nos. Amount awarded (Rs.) 1. C.P.No.67 of 1999 Rs.45,526/- 2. C.P.No.71 of 1999 Rs.50,226/- 3. C.P.No.87 of 1999 Rs.45,748/- 4. C.P.No.75 of 1999 Rs.49,353/- 7. It is the contention of the learned Counsel for the petitioner/Management that the first respondent/Labour Court has not appreciated the facts that the petitioner/Management has paid the terminal benefits till 10.06.1998 as agreed by it in the negotiation between the employer and the employees in the presence of the District Collector and as such, the third respondents/employees in all the writ petitions are not entitled to recover any amount beyond 10.06.1998 and therefore, the order passed in the claim petitions are illegal, arbitrary and without jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned Counsel for the petitioner/Management urges before this Court that the impugned order of the first respondent/Labour Court, dated 24.10.2001 in C.P.Nos.67 of 1999, 71 of 1999, 87 of 1999 and 75 of 1999 and the consequential order of the second respondent in No.30491/D1/2002 Labour and Employment Department dated 30.10.2002, are arbitrary, illegal and unsustainable in law and also that the mere delay in payment of the retirement benefits will not extend the service of the employees which has not been taken into account by the first respondent/Labour Court in a proper and real perspective. 9. Advancing his arguments, it is the contention of the learned Counsel for the petitioner/Management that the first respondent/Labour Court has no jurisdiction as per Section 33-C(2) of the Industrial Disputes Act, 1947, to examine and adjudicate the dispute as to whether there is a master and servant relationship between the petitioner/Management and the employees, based on which the question of payment of wages will arise. 10. Further, it is the submission of the learned Counsel for the petitioner that the claim of the third respondents namely Rs.9,538/-, Rs.9,538/-, Rs.5,751/- and Rs.7,016/- respectively in all the petitions, as arrears of wages as per Section 12(3) settlement dated 22.12.1993 which is time barred and therefore, the first respondent/Labour Court has misdirected itself to consider the stale claim of the third respondents in all the petitions. 11. Added further, the learned Counsel for the petitioner/Management contends that the first respondent/Labour Court has ordered for repayment of security deposit of Rs.900/-, Rs.1,500/-, Rs.1,500/- and Rs.1,500/- respectively to the third respondents in all the writ petitions and further that, there is no existing agreement or contract to repay the security deposit on the date of relief of the employee and when there is no pre- existing right for the claim of the security deposit, then the first respondent/Labour Court as per Section 33-C(2) of the Industrial Disputes Act, 1947, has no jurisdiction to entertain the claim petitions. 12. The learned Counsel for the petitioner/Management in support of the contention that there is no existing right on the part of the employees/workers to file the claim petitions, relies on the decision of the Honourable Supreme Court in State of U.P. v. Brijpal Singh reported in 2005-III-LLJ 1003, whereby and whereunder, it is held thus: https://hcservices.ecourts.gov.in/hcservices/ "The Supreme Court observed proceeding under Section 33-C(2) was one in the nature of execution proceeding. The right of the workman to the money claimed in such application must therefore be an existing right that is to say, a right already adjudicated upon." 13. He also cites the decision of this Court in EID Parry (India) Ltd. v. M.N.Padmanabhan reported in 2008(3) CTC 746, at page 747, wherein it is laid down as follows: "If the workman claims a matter for reference under Section 2-A, it must be construed that there exists a dispute. However, on an appraisal of Voluntary Retirement Scheme, dated 01.06.1993, the settlement dated 21.7.1993 between the appellant and the first respondent and also Clause 9 thereof, what comes to be known is that the first respondent had agreed that apart from the amounts disbursed as per the settlement, he would not be eligible or entitled to any other claim or retirement benefit such as retiring allowance (pension) or like, even if other employees are held entitled to retiring allowance or any other retirement benefit by any award or settlement or Court verdict. Therefore, in this case, no dispute with regard to pension does exist. The First Respondent having opted for Voluntary Retirement Scheme and after entering into the Settlement having fully understood the terms of settlement and particularly Clause 9 thereof and also encashing the amount of settlement arising thereon, claimed further benefits in the name of pension. If the first respondent is permitted to raise such a grievance even after he has opted for Voluntary Retirement Scheme and accepted the amount paid to him thereunder, the very object and purpose of introducing the scheme will be defeated. As the first respondent has already ceased to be a Workman and on cessation of the jural relationship and on claiming the entire amount of settlement and receiving the same, there cannot be any scope to construe that there is a dispute still existing to raise a claim under Section 2-A of the Act. Therefore, this Court has no reason to believe that there exists any dispute. The Learned Single Judge, without going into the entire facts and circumstances of the case, has come to the conclusion https://hcservices.ecourts.gov.in/hcservices/ that Pension being an amount which would be payable only to an ex-employee has an intimate link with termination and therefore, the reference under Section 2-A cannot be rejected, which in our considered opinion, cannot be sustained." 14. Per contra, it is the contention of the learned Counsel for the employees/third respondents in all the petitions, that the petitioner/Management announced the Voluntary Retirement Scheme and in that, 224 employees have opted for the same ad also that the said scheme expired on 14.05.1998 and as per the Voluntary Retirement Scheme, the petitioner/Management is bound to settle all the benefits to the employees who opted for the Voluntary Retirement Scheme on the date of retirement, but the petitioner/Management without paying even a single paise, insisted the employees to quit their services. 15. Continuing further, it is the submission of the learned Counsel for the employees/third respondents in all the petitions that the employees resorted to peaceful agitation since they have not been paid the money and at the intervention of the District Collector, the petitioner/Management agreed to reinstate all the employees and also agreed to engage the employees till the date of settlement of their dues. All the employees have resumed work from 10.06.1998 and the arrangement of the Management agreeing to settle the dues of the employees has been made in the presence of the District Collector, Coimbatore. 16. It is the further plea of the learned Counsel for the employees/third respondents in all the petitions that the petitioner/Management has not paid the wages to the workers for the period between 10.06.1998 and the actual date of their relief and that apart, the petitioner/ Management has not paid the wage arrears to the workers as per the 12(3) settlement dated 22.12.1997 entered into between the employees/workers and the petitioner/ Management. Added further, the petitioner has also not paid the arrears of fringe benefits like, Gratuity and Provident Fund and therefore, the employees have filed the claim petitions in C.P.Nos.62 of 1999 to 146 of 1999 before the first respondent/Labour Court. 17. The learned Counsel for the employees/third respondents brings it to the notice of this Court that the common order in C.P.Nos.62 of 1999 to 146 of 1999 has been passed by the first respondent/Labour Court on 24.10.2001, but the writ petitions have https://hcservices.ecourts.gov.in/hcservices/ been projected only during the year 2003 belatedly after the initiation of Revenue Recovery proceedings by the Government of Tamil Nadu. Before the first respondent/Labour Court, common evidence has been recorded for the claim petitions and that the petitioner/Management has been given adequate opportunity by the first respondent/Labour Court to let in oral and documentary evidence and therefore, to aver anything contra by the petitioner/Management is an incorrect one. There is no limitation to the claim proceedings under Section 33-C(2) of the Industrial Disputes Act, 1947. 18. The learned Counsel for the employees/third respondents in all the petitions, relies on the decision of the Honourable Supreme Court in A.K.Bindal and another v. Union of India and others reported in (2003) 5 Supreme Court Cases 163, at page 187, wherein it is inter alia observed as follows: "... After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated." and submits that in the present case on hand, there is no 'golden hand shake' and since the benefits have not been given to the employees/workers in regard to the settlement of their dues and also that the employees/workers have continued in service even after 14.05.1998, the petitioner/Management is bound to pay to the employees/workers for the period between 10.06.1998 and the actual date of their relief and therefore, the claim petitions filed by the employees/workers are perfectly maintainable in law. 19. He also seeks in aid the decision of this Court in Management, R.S.L'.B' Tannery, Vaduvanthangal v. The Presiding Officer, Labour Court, Vellore and 42 others, reported in 2008 INDLAW MAD 1386, at paragraph 23, wherein it is held hereunder: "23. Applying the above principles, if the facts of the case on hand are analysed, as rightly pointed out by the learned counsel for the respondent, the https://hcservices.ecourts.gov.in/hcservices/ 'money due' to the workmen arise out of the pre- existing right. The said right emanates from Section 25 O of the Act. Section 25(O) of the Act falls in Chapter V(B) of the Act. Though there is a specific mention made of Chapter V(A) and V(B) of the Act in Section 33C(1) of the Act and no such mention has been made in Section 33C(2) of the Act, Section 33C(2) should not be read in isolation so as to interpret that Section 33C(2) does not cover the existing rights of the workman emanating from Chapter V(A) or V(B) of the Act. It is trite law that Section 33C(2) is larger in it's scope than Section 33C(1) of the Act. Section 33C(1) empowers an administrative authority, where there is only a limited scope for any enquiry, whereas, Section 33C(2) of the Act empowers a judicial authority where there is a larger scope for enquiry. If a conjoint reading of Section 33C(1) and Section 33C(2) is made, there may not be any difficulty to conclude that Section 33C(2) of the Act embraces into its ambit the pre-existing rights of workmen emanating from Chapter V(A) or V(B) of the Act. As pointed out earlier, in the instant case, the workmen claim that their right is a pre-existing one under section 25(O) of the Act falling in Chapter V(B) of the Act and same needs to be accepted." 20. Yet another decision of this Court in Management of Madras Aluminium Company Limited, Mettur Dam, Salem (District) v. R.Paulmanickam (Deceased) and 31 others reported in 2007 INDLAW MAD 540, at paragraphs 27 and 28, it is observed as follows: "27. According to him, the above information makes it clear that the persons worked in essential services are entitled to normal wages. He further contended that inasmuch as the same is an existing right, their petition under Section 33-C(2) of the Industrial Disputes Act before the Labour Court, Salem, is maintainable. 28. On the other hand, Mr.AL.Somayaji, learned Senior Counsel appearing for the Management contended that in view of the Sub Clause 2 of the settlement dated 22.09.1994, even the persons worked to maintain essential services are not entitled to wages or salaries as agreed to. Though the said clause prohibits the workmen from claiming regular wages, it https://hcservices.ecourts.gov.in/hcservices/ is demonstrated before us that the fact that the persons worked to maintain essential services stand in a different clause and the same was not brought to the notice of the Conciliation Officer. In other words, according to the workmen, the Conciliation Officer has not applied his mind before giving approval for the settlement. It is also stated that he has not acted fairly in safeguarding the interest of all the workmen including those, who were in essential service. It is also brought to out notice that these workmen were not represented before the Conciliation Officer. It is relevant to note that the evidence of G.Swaminathan, who was examined on the side of the workmen. ..." In the aforesaid decision, at paragraph 32, it is further held thus: "32. In such circumstances, as rightly observed by the learned single Judge, the Conciliation Officer had not applied his mind to the claim of the petitioners-workers, which has been over looked by the Labour Court. Though it is settled law that the workman cannot challenge the settlement in an application under Section 33-C(2) of the Act, in view of the infirmities pointed above and of the fact that the settlement dated 22.09.1994 under Section 12(3) of the Act had deprived a substantial portion of their salary for the period from 01.04.1992 to October, 1994, the learned single Judge is perfectly right in quashing the order of the Labour Court and setting aside the same." 21. It is to be noted that when an employee seeks Voluntary Retirement from service, it cannot be automatically accepted unless it is initially accepted by an employer in an unequivocal terms, in the considered opinion of this Court. Moreover, in a contract between the employer and the employees relating to the option for the Voluntary Retirement Scheme, it is not for a Court of law to re-write the terms of the contract, as opined by this Court. Added further, as per Section 33-C(2) of the Industrial Disputes Act, 1947, a Labour Court is empowered to determine the suspension allowance. In this connection, this Court pertinently points out that a worker can recover the security amount as deposited with the employer as per Section 33-C(2) of the Industrial Disputes Act, 1947. https://hcservices.ecourts.gov.in/hcservices/ 22. The Voluntary Retirement Scheme is similar to that of a resignation of an employee. A claim for monitory benefits will be sustainable as per Section 33-C(2) of the Industrial Disputes Act, 1947 when the employees/third respondents in all the petitions have continued in service even after the expiry of the Voluntary Retirement Scheme n 14.05.1998 and also as per the arrangement made between the petitioner/Management and the employees in the presence of the District Collector, Coimbatore. Therefore, till the actual date of their relief from service, the employees/third respondents in all the petitions are entitled to claim the wages since they have resumed work from 10.06.1998. Till the actual date of relief, the employees/workers of the petitioner/Management are deemed to be continued in service and as such, till the actual date of relief, they are entitled to claim wages and other benefits in accordance with law. 23. The first respondent/Labour Court in its order has clearly stated that W.W.1 (witness examined on behalf of the employees/workers) has clearly stated that even after 10.06.1998, all the employees have served in the petitioner/Management and they have not been relieved from their service and on 14.05.1998 and on different dates, they have been relieved from service and therefore, till the actual date of relief, they are entitled to get the benefits. Also, the first respondent/Labour Court has stated that in Ex.M.8, affidavit of undertaking executed by the employees/workers in favour of the petitioner/Management, it is mentioned that the employees/workers have been relieved on 14.05.1998 and that on perusal of Ex.M.8, though it is mentioned that they have been relieved before 14.05.1998, yet the stamp papers that have been purchased, are only after the date of 14.05.1998 and this is not a favourable circumstance in favour of the petitioner/Management, in the considered opinion of this Court. 24. A perusal of paragraph 18 of the order of the first respondent/Labour Court goes to show that one Renganathan who has received the salary for his out-turn of work on 29.09.1998 as per Ex.M.13, the Salary Register's copy, has also executed an affidavit of undertaking, Ex.M.8 and further, Ex.M.5, the relieving order under the Voluntary Retirement Scheme has been given to the said Renganathan. If the case of the petitioner/ Management is to be accepted that the