IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.10.2018 Coram The Hon'ble Mr.Justice R. SURESH KUMAR W.P.No. 4199 of 2003 The Management of India Cements Ltd., Sankar Nagar, Tirunelveli ......Petitioners Vs. 1. The Presiding Officer Labour Court, Tirunelveli. 2. S.Jacob (Deceased) 3. Ranjithan 4. Rebakkal Pushparani 5. Isac Jayapaul 6. Jayakumar Dhanapal 7. Marry Chellathai 8. Jamesraj .....Respondents (R3 to R8 are substituted as LRs of Deceased R2 as per order dated 29.08.2018 by RSKJ in W.P.M.P.No.609 of 2010 in W.P.No.4199 of 2003) Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorari, calling for the record from the file of the first respondent herein in C.P.No.97/97 and to quash its order, dated 18.07.2002. For Petitioner: Mr.S.Jayaraman For Respondents: R1 - Court No Appearance for R3 to R8 ORDER The prayer sought for herein is for a writ of certiorari, calling for the record from the file of the first respondent herein in C.P.No.97/97 and to quash its order, dated 18.07.2002. 2. The necessary facts which are required to be noticed for the disposal of this writ petition are as follows : (i) The second respondent, one S.Jacob was working at the petitioner's company from 1960 onwards as a driller. While so, he had been implicated in a criminal case on 06.05.1988, with the result he had been arrested and he had been in judicial custody from 07.05.1988 to 15.02.1989. Because the second respondent had been in judicial custody for the aforesaid period, he had only applied for leave and based on which, the petitioner management had paid salary from 15.02.1989 to 1992, the other allowances had not been paid to him. In the meanwhile, the second respondent reached the superannuation on 30.12.1995. Thereafter, the criminal case ended in acquittal. However in the meanwhile, since he attained superannuation, he cannot be reinstated. At the same time, he shall be entitled to get backwages and other benefits from June 1992 to December 1995. (ii) Since the said benefits had not been given by the petitioner management to the second respondent, the second respondent filed Civil Suit in O.S.No.477 of 1993 before the District Munsif Court, Tirunelveli. Resisting the said suit, written statement was filed on behalf of the petitioner, who was the defendant therein, inter alia raised an issue that, for getting the benefits as has been sought for by the plaintiff in the suit, he should approach only the Labour Court and the Civil Suit would not be maintainable. (iii) Subsequently the suit was dismissed for default and thereafter even though some efforts had been taken by the second respondent to restore the suit, conditional order was passed by the Civil Court to pay a sum of Rs.250/- to the other side. Since the said cost was not paid, the suit was dismissed and thereafter it has not been restored. Subsequently the second respondent approached the first respondent, Labour Court by filing a claim petition under Section 33(C) (2) of the Industrial Disputes Act, seeking computation of the due, where the issue was contested by the petitioner management also and ultimately the first respondent / Labour Court by order, dated 18.07.2002 passed an Award directing the petitioner management to pay the salary due as well as bonus to the second respondent for the period between August 1992 and December 1995 with interest. Aggrieved over the said order passed by the first respondent / Labour Court, the present writ petition has been filed with the aforesaid prayer. 3. Heard Mr.S.Jayaraman, learned counsel appearing for the petitioner management who would submit that, admittedly the second respondent was not working with the petitioner company for the said period, for which he claimed the entire salary and other benefits. He would also submit that, he had been arrayed as an accused in a criminal case, that too a murder case and therefore he had been in judicial custody for a long time. In view of the same, he had not attended the duty. Subsequently when he filed a suit before the Civil Court, seeking the benefits, where, even though written statement was filed by the petitioner management, the suit was allowed to be dismissed for default and the chance to restore the same given to the second respondent was also not utilised by him and therefore it became final. 4. Therefore once again the said issue was raised before the Labour Court, where the entitlement of salary and other benefits as claimed by the second respondent has not at all been adjudicated, instead the Labour Court had straightaway taking into account the claim petition and the submissions made therein, passed an Award, directing the petitioner management to pay the salary and other perquisites with interest. Therefore the learned counsel appearing for the petitioner would submit that, the second respondent is not entitled to claim the said benefits. Therefore the impugned order passed by the Labour Court is liable to be interfered with. 5. During the pendency of the writ petition, the second respondent died. Therefore in whose place, respondents R3 to R8 had been impleaded as party respondents. However, no one is representing them and there is no appearance for the respondents 3 to 8 before this Court. 6. I have heard the arguments of the learned counsel appearing for the petitioner and perused the materials placed before this Court. 7. It is not in dispute that the second respondent was the employee of the petitioner company for long years, i.e., from 1960 onwards and was working as a driller and he was implicated in a criminal case in the year 1988 and he was continuously working as driller. Subsequently because of the judicial custody, he was not able to attend the duty and therefore since the criminal case was pending and in the meanwhile since the second respondent reached superannuation on 30.12.1995, for the rest of the service of the second respondent from 1988 onwards till his superannuation, he could not attend the duty. However it seems that, the petitioner management had paid the salary alone from 1988 to 1992 to the second respondent, only for the subsequent period up to the superannuation period, he has not been paid salary or any other perquisites. 8. In this regard even though the second respondent originally approached the Civil Court by filing a Civil Suit, which was dismissed for default, subsequently had approached the first respondent, Labour Court by filing the claim petition. Since the very stand of the petitioner management before the Civil Court that the second respondent should not have filed a Civil Suit and he should approach only the Labour Court, since it is an Industrial Dispute and the said stand since had been taken by the petitioner management in the written statement filed before the Civil Court, now the petitioner cannot take a stand that after having lost the Civil Suit by leaving it to be dismissed for default, the second respondent ought not to have approached the Labour Court and therefore the claim petition should not have been entertained. The said stand taken by the management side cannot be accepted. 9. Because of the wrong implication of the second respondent in the criminal case, he was unable to attend duty and he has been arrested and he had been in judicial custody for some time. Taking all these aspects into account, the Labour Court has given the following findings : "2/ rk;gsk; kDjhuh; 7/5/88 Kjy; 15/2/89 tiuapy; U:/22471/66 rk;gsk; nfhhpa[s;shh; vjph;kDjhuh; jug;gpy; ,t;tHf;fpy; kDjhuuhy; t/tp/vz;195/01y; gpwg;g[tpf;fg;gl;l cj;juit mDrhpj;J jhf;fy; bra;ag;gl;Ls;s Fwpg;ghizapy; 7/5/88 Kjy; 14/2/89 tiuapy; kDjhuh; ePjpkd;wf; fhtypy; ,Ue;jhh; vd;gJ xj;Jf; bfhs;sg;gl;Ls;sikahy; nkw;Twpa fhyfl;lj;jpw;F kDjhuh; bjhif nfhuf;Toajpy;iy vd Fwpg;gpl;Ls;shh; kDjhuUk; jd;Dila kDtpYk; nkw;Twpa fhyf; fl;lj;jpy; jhd; ePjpkd;wf; fhtypy; ,Ue;jjhf xg;g[f; bfhz;Ls;sh;/ Mfnt nkw;Twpa R{H;epiyapy; nkw;Twpa fhy fl;lj;jpw;F kDjhuh; vt;tpj bjhifa[k; nfhu Toajy;y/ mLj;J kDjhuh; 15/2/92 Kjy; 30/12/95 tiuapy; rk;gsk; U:/1.87.671/66 nfhhpa[s;shh;/ vjph;kDjhuh; jd;Dila vjph; ciuapy; gpd; rk;gsk; Fwpj;J nfhhpf;if vGg;gyhk; vdf; Twpa[s;shh;/ 22/3/02y; jhf;fy; bra;ag;gl;Ls;s Fwpg;ghizia mDrhpj;J 1/2/89 Kjy; $%iy 92 tiuapy; kDjhuh; KG rk;gsk; bgw;Wf; bfhz;ljhf xj;Jf; bfhz;Ls;shh;/ Mfnt nkw;Twpa fhy fl;lj;jpw;F kDjhuUf;F vt;tpjj; bjhifa[k; fpilf;ff;Toajpy;iy/ nkYk; 22/3/02y; jhf;fy; bra;ag;gl;Ls;s Fwpg;ghiz K:ykhf Mf!;L 92 Kjy; ork;gh; 95 tiuapy; kDjhuUf;F fpilf;f ntz;oa bjhif Fwpj;J tpsf;fkhf gl;oay; vjph;kDjhuh; eph;thfj;jhy; jhf;fy; bra;ag;gl;Ls;sJ/ ,k;kDtpy; kDjhuh; 30/12/95y; Xa;t[ bgw;W tpl;lhh;. vd;gJ Fwpj;J vt;tpj jhtht[k; ,y;iy/ jtput[k; kDjhuUf;F chpa tprhuiz elj;jp ntiy ePf;fk; bra;jjw;F vt;tpj Mtz';fSk; jhf;fy; bra;ag;glt[k; ,y;iy/ kDjhuh; Kiwfhf mjpfhug;g{h;tkhf Xa;t[ bgw;whh; vd;gjw;F mwpf;ifnah cj;junth jhf;fy; bra;ag;glt[k; ,y;iy/ mJ Fwpj;J vt;tpj jhtht[k; vjph;kDjhuh; jug;gpy; vGg;gg;glt[k; , y;iy/ Mfnt Mf!;L 92 Kjy; ork;gh; 95 tiuapy; kDjhuUf;F 22/3/02 y; jhf;fy; bra;ag;gl;Ls;s gl;oaiy mDrhpj;J tUk; bjhif rk;gs ghf;fp kDjhuUf;F fpilf;fj; jf;fJ vd Kot[ bra;ag;gLfpwJ/ 3/ nghd!; kDjhuh; nghd!; rl;lj;jpy; Fwpg;gplg;gl;Ls;s Fiwe;j gl;r nghdrhd 8/33% nfhhpa[s;shh;/ vjph;kDjhuh; jug;gpy; jhf;fy; bra;ag;gl;l vjpUiuapy; tpsk;g[if bra;ag;gl;l nghd!; kl;Lnk nfhu Koa[k; vd vjpUiu jhf;fy; bra;agl;Ls;sJ/ nghd!; rl;lk; gphpt[ 22d; fPH; Fiwe;jgl;r nghd!; vd;gJ xU rl;lg; g{h;tkhd Kd;dpU chpik vd;gjhYk; nkw;Twpa bjhif Fwpj;J vt;tpj jhtht[k; vjph;kDjhuh; jug;gpy; vGg;gg;gltpy;iy vd;gjhYk; nghd!; tifapy; 9.595- nfhhpa[s;sJ kDjhuUf;F fpilf;fj;jf;fJ vd Kot [ bra;ag;gLfpwJ/ o , jiyg;g[fspy; nfhhpa[s;s vf;fpuc&pah kw;Wk; yk;g;rk; bjhif me;je;j tUl R{H;epiyf;F Vw;wthW tH';fg;gLk; vd vjph;kDjhuh; jug;gpy; Twg;gl;Ls;sJ/ kDjhuh; jug;gpy; rk;ge;jg;gl;l MizapYk; vt;tst[ vf;tpuc&pah kw;Wk; yk;g;rk; bjhif vd;bdd;d R{H;epiyapy; vj;jid rjtPjk; vd;dd;d jFjp cs;sth;fSf;F vg;go tH';fg;gl;lJ vd;gjw;F vt;tpj Mtz';fSk; jhf;fy; bra;J epU:gpf;fg;glt[k; ,y;iy/ nkYk; nkw;Twpa bjhiffs; vjph;kDjhuh; eph;thf Ms;tiuf;Fk; cl;gl;L rk;ge;jg;gl;l Ml;fspd; cw;gj;jp kw;Wk; bray;jpwd; eph;thfj;jpw;F tH';fpa xj;JiHg;g[ Mfpa fhuz';fspd; mog;gilapy; tH';fg;gl ntz;Lk; vd;gjhy; kDjhuh; nkw;Twpa fhy fl;lj;jpy; gpizapy; ,y;iy vd xj;Jf; bfhs;sg;gl;Ls;sjhy; nkw;Twpa bjhif gpur;id 2 nkw;Twpa fz;lwpjy;fspd; mog;gilapy; Kot [ bra;ag;gLfpwJ/" 10. The said findings given by the Labour Court, in the opinion of this Court does not warrant any interference. However in so far as interest directed to be paid, as directed by the Labour Court, may not be warranted because, the issue with regard to the entitlement of the salary and other dues from the petitioner management to the second respondent was not at all decided prior to the order passed by the Labour Court in the claim petition. Once the issue is adjudicated, for which already the employee approached the other forum, where he spend some time and he allowed the said suit filed by him to be dismissed for default, for all these purpose, the management cannot be penalized by imposing payment of interest. Moreover the second respondent also is no more and the legal heirs of the second respondent though got impleaded seems to have not shown any interest in pursuing the same. 11. Be that as it may, since the Labour Court having considered the merits of the claim made by the second respondent had come to a conclusion that he is entitled for the salary and other perquisites for the period between 1992 and 1995 and the same has been calculated in the said claim petition itself, the said order passed by the Labour Court is to be confirmed. At the same time, the interest portion awarded by the Labour Court may not be justifiable and therefore this Court is of the view that, while affirming the decision taken by the Labour Court with regard to the computation and direction, is setting aside the portion of the direction directing the petitioner management to pay interest. 12. In the result, the following orders are passed in the writ petition : That the impugned order of the Labour Court is modified to the extent that as directed by the Labour Court through the impugned order, the petitioner management shall give the salary and other arrears as calculated and computed by the Labour Court through the impugned order to the second respondent / respondents, however without any interest as directed by the Labour Court, within a period of three months from the date of receipt of a copy of this order. With these modification of the impugned order, this writ petition is ordered. No costs. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar To The Presiding Officer, Labour Court, Tirunelveli. +1cc to Mr.S.Jayaraman, Advocate Sr.70013 W.P.No.4199 of 2003 pvs[co] srg 26/11/2019