IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.01.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.24284 of 2004 Tamil Nadu State Transport Corporation (Salem Division-i) Ltd., rep. by its Managing Director, 12, Ramakrishna Road, Salem-636 007. ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Salem. 2.B.Buspha. 3.B.Rajeswari. 4.B.Manimaran 5.B.Kiruthika 6.T.Subburathinam ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorari or any other appropriate Writ or order or direction in the nature of a Writ call for the records of the 1st Respondent in C.P.No.572 of 1997 dated 30.12.2002 and quash the same. For Petitioner : Mr.M.Ravi Bharathi For Respondents 2 to 6 : No Appearance. O R D E R Petitioner-Tamil Nadu State Transport Corporation seeks Writ of Certiorarified Mandamus to quash the orders passed by the 1st Respondent in C.P.No.572 of 1997 dated 30.12.2002. 2. It is the case of Petitioner-Corporation that deceased T.Balathandayuthapani was working as driver in the Petitioner- Corporation. Due to his ill-health, he was on medical leave from 25.4.1996 to 08.6.1996 and later reported for duty on 09.6.1996. Petitioner Management refused to decline to assign any work. He was asked to appear before the Medical Board to assess his suitability for the post of Heavy Motor Vehicle driver. By its report dated 14.10.1996, the Medical Board advised the workman to undergo surgery as he was afflicted with umblical Herina. https://hcservices.ecourts.gov.in/hcservices/ According to workman he has to wear abdomen belt and reported for duty and the Management refused to assign him the duty. The workman was discharged from duty on 16.9.1997. Claiming his salary for the period from 09.1.1996 to 31.12.1996, workman Balathandayuthapani had earlier filed C.P.No.1 of 1997. In the said C.P., Labour Court has directed the Management to pay salary for two months i.e. w.e.f. 01.11.1996 to 31.12.1996 and C.P.No.1 of 1997 was partly allowed. Petitioner Management has challenged the said order passed in C.P.No.1 of 1997 in W.P.No.10179 of 1998. 3. Subsequently, the workman had filed another Computation Petition in C.P.No.572/1997 claiming wages of Rs.35,478/- for the subsequent period from 01.1.1997 to 16.9.1997 and Rs.15,000/- towards bonus, exgratia and pongal gift for the year 1995-96, 1996-97. Management resisted the said Petition contending that workman had not worked even for a single day during 1997 and therefore, he is not eligible for salary as well as bonus, ex- gratia and pongal gift as alleged by him. During the pendency of Computation Petition, workman Balathandayuthapani died on 18.1.2000 and his legal representatives Respondents 2 to 6 were brought on record. Labour Court has passed an order dated 30.12.2002 in C.P.No.572/1997 directing the Petitioner Management to pay Rs.35,000/- towards salary for the period from 01.01.1997 to 16.09.1997 and Rs.5000/- towards bonus, ex-gratia and pongal gift totalling Rs.40,000/- payable with interest at the rate of 9% p.a. Challenging the said order, Petitioner Management has filed this Writ Petition. 4. Mr.M.Ravi Bharathi, learned counsel for Petitioner has contended that workman has not performed duty during the claim period and there was no document to show that workman has worked even for a single day and while so, Labour Court erred in directing payment of salary during period from 01.1.1997 to 16.09.1997. It was further contended that when the workman has not worked, Labour Court ought not to have awarded any amount towards bonus, ex-gratia and pongal gift and the learned counsel seeks for setting aside the order passed in C.P.No.572 of 1997 dated 30.12.2002. 5. Respondents 2 to 6 were served. But they have not entered appearance. Their names were printed in the cause list. During the pendency of Writ Petition, 6th Respondent died and as per the Memo filed by the Management Respondents 2 to 5 are recognised as legal representatives of the deceased 6th Respondent. 6. Notwithstanding the non-appearance of Respondents, this Court has carefully considered the impugned order and submissions of the learned counsel for Petitioner Management and the materials on record. https://hcservices.ecourts.gov.in/hcservices/ 7. After the medical leave when the workman has reported for duty on 09.6.1996, Management had declined to assign any work to the workman. He was asked to appear before the Medical Board. By its report dated 14.10.1996, the Medical Board advised the workman to undergo surgery. On the other hand, he has made representation on 31.10.1996 enclosing the medical certificate issued by the Perundurai Medical College Hospital and requesting to allot duty as Light Motor Vehicle driver. Per contra, according to workman even though he has appeared before the Management by wearing abdomen belt, the Management refused to assign any duty. Ultimately, the workman was discharged from service on medical ground on 16.9.1997. 8. Till the workman was discharged from service on medical ground on 16.9.1997, it must be deemed that he continued to be in service. As pointed out by the Labour Court, the Medical Board in its report has stated that workman has to undergo surgery as he was suffering from umblical Hernia. Report of the Medical Board does not disclose that the workman was unfit to discharge his duty. When the Medical Board has opined that workman has to undergo only surgery, as pointed out by the Labour Court, the Management was not justified in declining to assign duty to the workman. As pointed by the Labour Court when the workman insisted to assign duty as Light Motor Vehicle driver, the Management was not justified in insisting the workman to drive only Heavy Motor Vehicle. The said finding of the Labour Court cannot be said to be perverse warranting interference. 9. Till the workman was discharged from service on 16.09.1997, he is entitled to draw the salary as per the Service Rules of the Management. Since the workman has not worked even for one day, the learned counsel for Petitioner contended that Labour Court erred in ordering payment of salary. In support of his contention, learned counsel for Petitioner placed reliance upon 2008 STPL (LE) 40336 SC [Airport Authority of India and others v. Shambhu Nath Das @ S.N.Das]. As pointed out earlier, till the workman was discharged on 16.9.1997, he was deemed to be in service and entitled to get the salary subject to the service rules of the Petitioner Management. Petitioner Management has not produced any document before the Labour Court to disentitle him from getting salary for the period from 1.1.19997 to 16.9.1997. In the Petition, workman has stated that he was getting salary of Rs.4118/- per month. On that basis, Labour Court has rightly ordered payment of salary of Rs.35,000/- for the period from 1.1.1997 to 16.9.1997 and the same cannot be interfered with. 10. In so far as claim for the bonus, ex-gratia and pongal gift for the year 1995-96, Labour Court has awarded Rs.5000/-, as pointed out earlier, workman has already filed C.P.No.1 of 1997 claiming salary for the year 1995-1996. If bonus and ex- gratia is payable for the year 1995-96, the workman ought to have https://hcservices.ecourts.gov.in/hcservices/ claimed in that Petition itself and workman was not right in making such a Claim in the subsequent claim petition [C.P.No.572/1997. In so far as claim for bonus and ex-gratia amount from 1.1.1997 to 16.9.1997, since the workman has not worked during the said period, he is not entitled to claim bonus and ex-gratia amount for the said period. The amount of Rs.5000/- ordered by the Labour Court towards payment of bonus, ex-gratia payment and pongal gift cannot be sustained. The Labour Court has awarded interest at 9% p.a. Considering the facts and circumstances of the case, the rate of interest is reduced to 6% p.a. 11. In the result, this Writ Petition is partly allowed. The order of the Labour Court, Salem in C.P.No.572 of 1997 dated 30.12.2002 is modified and the amount is reduced to Rs.35,000/- payable with interest at the rate of 6% p.a. from the date of Computation Petition till the date of realisation. The above said amount of Rs.35,000/- together with interest is ordered to be apportioned amongst the Respondents 2 to 5 equally. Consequently, connected M.P. is closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. bbr To The Presiding Officer, Labour Court, Salem. 1 cc to Mr.M. Ravibharathi, Advocate, Sr. 6279 W.P.No.24284/2004 KJ (CO) kk 18/2 https://hcservices.ecourts.gov.in/hcservices/