IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 WP(C).No. 18120 of 2006(F) -------------------------- PETITIONER(S): --------------- M.J. JOSEPH, MUKKADAYIL HOUSE, MAZDOOR, INDIAN NAVAL CANTEEN SERVICE, NAVAL BASE, COCHIN-682 004. BY ADVS. SRI.A.V.XAVIER SRI. JOLLY JOHN.K. SRI.JIMMY GEORGE SMT.THUSHARA JAMES SMT.KACHANA KURIAKOSE RESPONDENT(S): --------------- 1. INDIAN NAVAL CANTEEN SERVICE, NAVY NAGAR, COLABA, MUMBAI-400 005, REPRESENTED BY ITS GENERAL MANAGER. 2. INDIAN NAVAL CANTEEN SERVICE, NAVAL BASE, COCHIN-682 004, REPRESENTED BY ITS AREA MANAGER (SG). BY ADVS. SRI.M.L.SURESH KUMAR, CGC FOR RSPTS. SRI.N.HARIDAS FOR R.1,2 SRI.H.SUNDEEP FOR R.1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18120 of 2006(F) APPENDIX EXHIBITS FOR THE PETITIONER :- EXT.P1 : PHOTOCOPY OF THE AWARD IN I.D.No.1/89 OF THE LABOUR COURT, ERNAKULAM ©. EXT.P2 : PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 31.8.2004. EXT.P3 : PHOTOCOPY OF THE STATEMENT REGARDING THE CALCULATION OF BACK WAGES OF THE PETITIONER. EXT.P4 : PHOTOCOPY OF THE REPRESENTATION DATED 8-8-2005 SENT BY THE 1st PETITIONER TO THE 2nd RESPONDENT. EXT.P5 : PHOTOCOPY OF THE LETTER OF THE 2nd RESPONDENT WITH THE SUBJECT “PAYMENT OF BACK WAGES”. EXT.P5(a):PHOTOCOPY OF THE WARNING LETTER ISSUED BY THE 2nd RESPONDENT TO THE PETITIONER. EXT.P6 (exhibit W-1 in Ext.P1 Award)- TEMPORARY PERMIT DATED 03/09/1984. EXHIBITS FOR THE RESPONDENTS :- EXT.R1(a) : TRUE PHOTOSTAT COPY OF LETTER OF APPOINMENT NO.C/305/NJS DATED 6-3-1981 ISSUED BY THE THEN 2nd RESPONDENT TO SRI.N.J.SEBASTIAN TO THE POST OF SWEEPER-CUM-MAZDOOR. EXT.R1(b) : TRUE PHOTOSTAT COPY OF LETTER OF APPOINMENT NO.C/305/VPT DATED 17-2-1987 ISSUED BY THE THEN 2nd RESPONDENT TO SRI.V.P.TOMY TO THE POST OF SWEEPER-CUM-MAZDOOR. EXT.R1(c) : TRUE PHOTOSTAT COPY OF PROCEEDINGS NO.16/82 DATED 9-12-1982 ISSUED BY THE THEN 2nd RESPONDENT. EXT.R1(d) : TRUE PHOTOSTAT COPIES OF RELEVANT PAGES VIZ. PAGES 17 TO 24 OF THE INCS CONSTITUTION AND REGULATIONS IN CHAPTER VI, CONTAINING FOUR GROUPS OF STAFF MEMEBERS OF THE INCS. EXT.R1(e) : TRUE PHOTOSTAT COPY OF ORDER NO.09/2000 DATED 30-9-2000 ISSUED BY THE THEN 2nd RESPONDENT (THE THEN AREA MANAGER) STIPULATING THE DUTIES AND RESPONSIBILITIES OF GROUP IV EMPLOYEES IN INCS, KOCHI. EXT.R1(f) : TRUE PHOTOSTAT COPIES OF PAGE NOs.32 & 33 OF CHAPTER VII CONTAINING REGULATION NO.0737. EXT.R1(g) : TRUE PHOTOSTAT COPY OF COVERING LETTER NO.HO/325 DATED 23-8-2004 ISSUED BY THE 1st RESPONDENT. EXT.R1(g1):TRUE PHOTOSTAT COPY OF SENIORITY LIST OF STAFF OF INCS INCLUDING LAST GRADE EMPLOYEES PUBLISHED BY THE 1st RESPONDENT. EXT.R1(h) : TRUE PHOTOSTAT COPY OF COVERING LETTER NO.HO/325 DATED 4-2-2005 SIGNED ON BEHALF OF THE 1st RESPONDENT. WP(C).No. 18120 of 2006(F) EXT.R1(h1):TRUE PHOTOSTAT COPY OF SENIORITY LIST OF STAFF MEMBERS OF INCS ISSUED BY THE 1st RESPONDENT. EXT.R1(i) : TRUE PHOTOSTAT COPY OF LETTER NO.HO/318/MJJ DATED 29-7-2010 ISSUED BY THE 1st RESPONDENT TO THE PETITIONER. //TRUE COPY// P.A.TO JUDGE ami/ P.N.RAVINDRAN, J. ------------------------------- W.P.(C).No.18120 of 2006 ------------------------------- Dated this the 11th day of January, 2011. J U D G M E N T The petitioner who is an employee of the Indian Naval Canteen Service at Kochi, is presently working as a Senior grade Sweeper-cum-Mazdoor. He was promoted to that post with effect from 1.8.2010. The petitioner was initially engaged as Mazdoor on daily wages on 10.11.1983. He was denied employment w.e.f. 17.9.1984. During the period from 10.11.1983 to 17.9.1984, the petitioner was being paid the sum of ` 18/- per day as wages, on the days on which he was engaged to work as Mazdoor. When he was denied employment, he raised a dispute which was referred by the Government of India to the Central Government Labour Court, Ernakulam. The issue referred for adjudication was, “ Whether the action of the Indian Naval Canteen Service, Cochin in not offering re-employment to Sri.M.J.Joseph, Mazdoor engaged on daily wages is legal and justified ? If not, to what relief the workman is entitled ? ” In his claim statement, before 2 W.P.(C).No.18120 of 2006 the Labour Court, the petitioner contended that except on holidays, he was engaged on all other days and was paid ` 18/- per day as wages. He had however stated that, payment was made at the end of every week. By Ext.P1 award passed on 16.6.1998, the Labour Court held that, there was denial of employment to the petitioner and that he is entitled to be reinstated in service with the entitlement to get 50 % of the back wages. The Labour Court also directed that, the back wages have to be reckoned on the basis of the wages paid from time to time from 17.9.1984 onwards to his “immediate superior”. The operative portion of Ext.P1 award reads as follows. “ In this manner I can inescapably conclude that the present claimant is a workman. He has completed more than 240 days of continuous service. No notice or notice pay is given to him. No compensation is paid. So the termination is illegal. The reference by the Central Government is valid. The workman is entitled to be reinstated, in the same position as he would have been as on date of termination of service namely 17.9.1984. He is entitled to get 50% back wages which have to be reckoned on the basis of the wages paid from time to time from 17.9.1984 onwards to his immediate superior. He is also entitled to get other attendant service benefits and continuity of service. 3 W.P.(C).No.18120 of 2006 In the result, an award is passed directing the management to reinstate the workman with continuity of service and other attendant benefits, as he would have been on 17.9.1984 and he is entitled to get 50% back wages as stated above.” (emphasis supplied) 2. The respondents challenged Ext.P1 award by filing O.P.No.22183 of 1998 in this Court. By judgment delivered on 20.1.2000 a learned Single Judge allowed the writ petition. Aggrieved thereby, the petitioner filed Writ Appeal No.832 of 2000. By judgment delivered on 13.1.2004 the Division Bench of this Court allowed the appeal, dismissed O.P.No.22183 of 1998 and restored Ext.P1 award. The respondents thereupon filed S.L.P.(Civil) No.10742 of 2004 in the Apex Court. In the Special Leave Petition filed by the respondents, the Apex Court passed an interim order directing the respondents to reinstate the petitioner in service. Thereupon the second respondent issued Ext.P2 letter of appointment dated 31.8.2004, appointing the petitioner as Sweeper-cum-Mazdoor with seniority from 8.10.1984. He was also placed in the scale of pay of ` 2550-55- 2660-60-3200 and his pay was fixed as ` 3200/- in that scale of 4 W.P.(C).No.18120 of 2006 pay. He was also entitled to admissible allowances and other service benefits. Pursuant to Ext.P2, the petitioner joined duty as Sweeper-cum-Mazdoor on 2.9.2004. Shortly thereafter, the Apex Court dismissed S.L.P.(Civil) No.10742 of 2004 by judgment delivered on 4.1.2005. Ext.P1 award thus became final. The respondents thereupon disbursed to the petitioner by cheque No.187298 dated 24.3.2005, the sum of ` 3,34,282.92, towards the back wages after deducting the employee's share of contribution to the Employees' Provident Fund. Ext.P3 is the calculation statement prepared by the respondents, for the purpose of effecting the aforesaid payment. The petitioner encashed the cheque in March 2005 itself. Five months later, he submitted Ext.P4 representation dated 8.8.2005 to the respondents, wherein he contended that he ought to have been reinstated in service as Mazdoor with continuity of service and seniority from 10.11.1983 and that 50% of the back wages was illegally deducted after the award, namely during the period from 16.6.1998 to 31.8.2004. In Ext.P4, he requested the 5 W.P.(C).No.18120 of 2006 respondents to disburse to him the withheld portion of the wages and to categorize him as Mazdoor, counting his seniority from 10.11.1983, the date of his original entry in service. By Ext.P5 letter dated 2.9.2005, the second respondent informed the petitioner that the benefits payable under Ext.P1 award have been correctly computed and disbursed. By Ext.P5(a) letter dated 2.9.2005, the second respondent also warned him for directly addressing the first respondent without bringing his grievances to the notice of the second respondent or his immediate superior with whom the petitioner is in close personal contact on a daily basis. This writ petition was thereupon filed on 10.7.2006 challenging Ext.P5(a) letter and seeking the following reliefs : i) Call for the records leading to exhibit P-5(a) warning letter issued by the 2nd respondent to the petitioner and quash it by a writ of certiorari as far as the petitioner has appraised his entire grievance before the 2nd respondent also as evident from exhibit P-4. ii) Call for the records leading to exhibit P-2 appointment letter issued by the 2nd respondent to the petitioner and quash it by a writ of certiorari as far as the designation and the seniority of the petitioner 6 W.P.(C).No.18120 of 2006 mentioned in it is not correct. iii) Call for the records leading to exhibit P-3 statement, regarding the calculation of back wages and attendant benefits of the petitioner and quash it by a writ of certiorari as far as the calculation of the same is not in conformity with exhibit P-1 Award. iv) Issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents to disburse an additional amount of Rs.1,77,041/- towards back wages and Rs.7,500/- towards attendant benefits over and above the amount already paid to the petitioner and to direct the respondents to remit Rs.20,539/- form the above said amount to the P.F.Account of the petitioner along with the respondent's share. v) Issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents to designate the petitioner as Mazdoor and to count his seniority from 10-11-1983, the original date of his entry into the service of the 2nd respondent and direct to give the benefits of such seniority.” 3. The petitioner contends that as the Labour Court, Ernakulam, had by Ext.P1 award directed the second respondent to reinstate him in his service with 50% of the back wages reckoned on the basis of the wages paid from time to time from 17.9.1984 onwards to his immediate superior, he is entitled to 50% of the back wages from 17.9.1984, the date on which employment was denied to him till 16.6.1998, the date of 7 W.P.(C).No.18120 of 2006 Ext.P1 award and from 16.6.1998 onwards he is entitled to get the full wages paid from time to time to his immediate superior. It is also contended that as a copy of Ext.P4 was submitted to the second respondent also, the reason stated in Ext.P5(a) memo to administer the warning, is not tenable. 4. The respondents have filed a counter affidavit contending that, pursuant to the interim order passed by the Apex Court, the petitioner was reinstated in service and that within two months after the disposal of the SLP, the benefits payable under Ext.P1 award were also disbursed to him. Relying on the regulations, the respondents contend that, the petitioner who was only a Mazdoor on daily wages, was reinstated in service as Sweeper-cum-Mazdoor, a post carrying a scale of pay and that his pay was fixed with reference to the salary which Sri.M.G.Mohanan Nair, his immediate senior in service in the category of Sweeper-cum-Mazdoor, appointed on 8.10.1984 was drawing. The respondents have also stated that by R1(i) letter dated 29.7.2010, the petitioner was also promoted as 8 W.P.(C).No.18120 of 2006 Senior grade Sweeper-cum-Mazdoor w.e.f. 1.8.2010. The respondents have also contended that the amounts payable to the petitioner under Ext.P1 award have been rightly computed and disbursed and no further amount is payable to him. It is also stated that in the seniority list, the petitioner has been ranked immediately below Sri.M.G.Mohanan Nair. 5. I heard Sri.A.V.Xavier, learned counsel appearing for the petitioner and Sri.N.Haridas, learned counsel appearing for the respondents. I have also considered the pleadings and the materials on record. The short question that arises for consideration in this writ petition is, whether the monetary benefits payable to the petitioner under Ext.P1 award passed by the Central Government Labour Court, Ernakulam, in I.D.No.1 of 1989, have been disbursed to him and whether the petitioner's reinstatement in service on a regular basis as Sweeper-cum- Mazdoor is in order. It is not in dispute that the petitioner was initially engaged only as Mazdoor on daily wages. The engagement commenced on 10.11.1983 and lasted till 9 W.P.(C).No.18120 of 2006 17.9.1984 when he was denied employment. That led to a dispute which was referred to the Central Government Labour Court. By Ext.P1 award passed on 16.6.1998, the Labour Court held that the petitioner is a workman governed by Industrial Disputes Act and as no notice or notice pay was given, the termination of his service was illegal. The Labour Court held that he is therefore entitled to be reinstated in the same position which he would have occupied on 17.9.1984 had his service not been terminated and that he is entitled to get 50% of the back wages reckoned on the basis of the wages paid from time to time from 17.9.1984 onwards to his immediate superior. The petitioner however has not produced any cogent material in support of his contention that besides the amount paid to him as per cheque dated 24.3.2005, which is referred to in para 4 of the writ petition, he is entitled to any further amount having regard to the wages paid to his immediate superior. The writ petition is totally silent as regards the wages paid to the petitioner's immediate superior from 17.9.1984 onwards. The petitioner has 10 W.P.(C).No.18120 of 2006 also not quantified the amount which is due to him, calculated on that basis. Ext.P3 statement produced alongwith the writ petition discloses that monetary benefits payable to the petitioner pursuant to Ext.P1 award, were quantified with reference to the scale of pay applicable to the post of Sweeper- cum-Mazdoor. Ext.P1 award takes note of the fact that, the petitioner was only a daily rated Mazdoor and not a regular employee in the service of the respondents. In Ext.P1 award, the Labour Court did not direct the petitioner's reinstatement in service as a regular employee. On the terms of Ext.P1 award, the respondents were only bound to reinstate him in service as Mazdoor on daily wages, since the direction was to reinstate him in the same position which he would have occupied, had he continued in service. The petitioner has no case that the Labour Court had directed his regularisation in service. Therefore, the direction issued by the Labour Court in Ext.P1 award to pay 50% of the back wages has to be understood as 50% of the back wages which the petitioner would have received, had he 11 W.P.(C).No.18120 of 2006 continued in service. The petitioner was not entitled to receive 50% of the back wages calculated on the basis of a scale of pay, since he was being paid only ` 18/- per day as wages. The respondents however understood the award as one, directing them to pay 50% of the back wages paid from time to time to his immediate senior. It is evident from the findings and observations in Ext.P1 award that, what the tribunal meant by directing payment of 50% of the back wages paid from time to time to his immediate superior was, 50% of the wages paid to his immediate senior. The words “immediate superior” can only be a mistake for the reason that, the petitioner was not a regular employee of the respondents but only a Mazdoor engaged on daily wages. The entitlement of the petitioner to claim and receive salary and allowances in a regular scale of pay was not the subject matter of the dispute and that was not an issue referred to the Labour Court. No issue was also framed in that regard. In such circumstances, the direction issued by the Labour Court in Ext.P1 award to pay 50% of the back wages 12 W.P.(C).No.18120 of 2006 “paid from time to time from 17.9.1984 onwards to the petitioner's immediate superior” has to be understood as, 50% of the wages paid to his immediate senior. The respondents however calculated the monetary benefits payable to the petitioner, based on the scale of pay applicable to the post of Mazdoor-cum-Sweeper, the post held by the petitioner's immediate senior Sri.M.G.Mohanan Nair. The petitioner has thus received monetary and other benefits in excess of his entitlement under the award. As a matter of fact, no real prejudice has been caused to the petitioner in the matter of payment of monetary benefits payable to him under the award. 6. Yet another claim made by the petitioner in the writ petition is that, the respondents should have paid the entire back wages from 16.6.1998 and ought not have deducted 50% of the back wages from 16.6.1998 till 1.9.2004. On that basis, he claims payment of ` 1,77,041/- as back wages. In the view that I have taken, as the petitioner has been paid in excess of his entitlement, the said claim cannot be sustained. If monetary 13 W.P.(C).No.18120 of 2006 benefits are computed with reference to the wages which the petitioner was drawing as on 17.9.1984, he would have been entitled to receive only a much lower amount. The claim made by the petitioner for monetary benefits in addition to the sum of ` 3,34,282.92 which was paid by cheque dated 24.3.2005, is without any basis and cannot be sustained. 7. I shall now deal with the claim made by the petitioner, that he should have been appointed as Mazdoor and not as Mazdoor-cum-Sweeper on a regular basis. As per Ext.R1(d), the Recruitment and Promotion Rules applicable to the Indian Naval Canteen Service, the post of Mazdoor-cum-Sweeper and Mazdoor-cum-Sweeper-cum-Messenger are the lowest class-IV posts. The next higher post is Special Grade Peon-cum- Watchman and Special Grade Mazdoor-cum-Sweeper. Only those employees who have completed 8 years of service as Mazdoor-cum-Sweeper-cum-Messenger can be promoted as Special Grade Peon-cum-Watchman and only those employees who have completed 10 years of service as 14 W.P.(C).No.18120 of 2006 Mazdoor-cum-Sweeper-cum-Messenger can claim promotion as Special Grade Mazdoor-cum-Sweeper. As noticed earlier, the petitioner was not a regular employee of the respondents. He became a regular employee only by virtue of Ext.P2 order dated 31.8.2004, which was issued in the wake of Ext.P1 award. Since the Labour Court had not directed his regularisation in service and had only directed his reinstatement in service, the petitioner who was only a Mazdoor on daily wages cannot be said to be aggrieved by his regular appointment as Sweeper- cum-Mazdoor. Further the petitioner has also accepted promotion as Senior grade Sweeper-cum-Mazdoor w.e.f. 1.8.2010. In such circumstances, the claim made by the petitioner that he should have been regularised in service as Mazdoor is without any merit. 8. I shall now deal with the challenge to Ext.P5(a) memo. Ext.P5(a) memo was issued on the short ground that the petitioner had directly addressed the first respondent without bringing his grievances to the notice of the second respondent 15 W.P.(C).No.18120 of 2006 or his immediate superior. Ext.P4 representation discloses that a copy thereof was sent to the second respondent also. In such circumstances, as the second respondent is the superior officer of the petitioner stationed at Kochi, I am of the opinion that the first respondent erred in issuing Ext.P5(a) memo. The first respondent appears to have lost sight of the significant fact that, a copy of Ext.P4 was submitted to the second respondent also and that the second respondent is a superior officer of the petitioner stationed at Kochi. I accordingly hold that Ext.P5(a) memo cannot be sustained. In the result, I allow the writ petition in part and quash Ext.P5(a) memo. The writ petition shall stand dismissed in all other aspects. The parties shall bear their respective costs. P.N.RAVINDRAN, Judge. ami/