IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 16.03.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.24331 OF 2003 The Superintending Engineer Madurai Electricity Distn. Circle Tamil Nadu Electricity Board Madurai. .. Petitioner Versus 1.R.Chithrabai 2.The Presiding Officer Labour Court, Madurai. .. Respondents PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the 2nd respondent/Labour Court, relating to its order dated 25.02.2003 passed in C.P.No.101/98 and quash the same as illegal and without jurisdiction. For Petitioner : Mr.M.Vaidyanathan For Respondent-1 : Mr.V.Prakash Senior Counsel for Mr.P.Chandrasekaran For Respondent-2 : Court O R D E R This Writ Petition has been filed by the petitioner challenging the order passed by the second respondent in C.P.No.101 of 1998, directing him to pay a sum of Rs.4,89,268/- to the first respondent together with interest at the rate of 6% from the date of the order till the date of payment. 2.The first respondent was temporarily appointed by the petitioner as an Assessor on 03.01.1983. Her service was terminated on 09.09.2003 on the ground that, they were not satisfactory. Challenging the order of termination, the first respondent filed an https://hcservices.ecourts.gov.in/hcservices/ application in T.N.S.E. No.5 of 1992 under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947. An application was also filed in I.A.No.2 of 1992 by the first respondent seeking to condone the delay in filing the application to set aside the order of termination. The said application was allowed by the authority constituted under the Tamil Nadu Shops and Establishment Act, 1947. The petitioner earlier filed a Writ Petition before this Court challenging the said order. This Court in W.P.No.6015 of 1993, dated 28.10.1996 was pleased to dismiss the Writ Petition. 3.Thereafter, the appellate authority constituted under the Tamil Nadu Shops and Establishment Act, 1947 allowed the appeal filed by the first respondent, in and by the order dated 28.08.1997. Accordingly, the order of termination made by the petitioner against the first respondent is set aside. The petitioner complied with the said order dated 28.08.1997 passed in T.N.S.E. No.5 of 1992, by reinstating the first respondent. Thereafter, the first respondent made a claim by filing a Claim Petition in C.P.No.101 of 1998 before the second respondent, seeking payment of salary for a total sum of Rs.4,89,868/- consequent to the order passed in T.N.S.E. No.5 of 1992. The second respondent, making reliance upon Regulation 57-A (3) of the Tamil Nadu Electricity Board Service Regulations has allowed the Claim Petition. Challenging the same, the petitioner has come forward to file the present Writ Petition. 4.The learned counsel appearing for the petitioner submitted that the Labour Court has committed error in making the entire payment for the period of non-employment of the first respondent, without considering the scope of Clause-5 of the Regulation 57-A of Tamil Nadu Electricity Board Service Regulations, which provides that the payment made in pursuant to the reinstatement is subject to the adjustment of any amount, during which time a delinquent employee was in service. It is further submitted that, the onus is on the first respondent to show that she was not gainfully employed anywhere during the period in which she was undergoing non- employment due to the termination order. It is his further submission that, Regulation 57-A(1) of the Tamil Nadu Electricity Board Service Regulations cannot be made applicable to the first respondent and therefore, the Labour Court ought to have applied Regulation 57-A 2 or (3) of the Tamil Nadu Electricity Board Service Regulations which fixed an outer limit of three years of salary payable to the employee. Inasmuch as the authority constituted under the Tamil Nadu Shops and Establishment Act, 1947 has allowed the appeal only on the ground that there is a procedural violation and an order of termination was passed by an authority who did not have jurisdiction, the Labour Court ought to have adopted the provision contained in Regulation 57-A-2 of the Tamil Nadu Electricity Board Service Regulations by restricting the payment for a period of three years. According to the learned counsel, the first respondent approached the authority belatedly while challenging the order of termination and https://hcservices.ecourts.gov.in/hcservices/ therefore, for the negligence on her part, the petitioner cannot be made liable to pay the salary. 5.In support of his contention, the learned counsel has made reliance upon the judgment of the Honourable Apex Court in MUIR MILLS UNIT OF NTC (U.P.) LTD. vs. SWAYAM PRAKASH SRIVASTAVA [(2007) 1 SCC 491]. Therefore, the learned counsel submitted that the Writ Petition will have to be allowed. 6.Per contra, Mr.V.Prakash, learned senior counsel appearing for the first respondent submitted that the application filed for condonation of delay has been allowed by the appropriate authority on merits. A challenge was made by the petitioner before this Court, which was also rejected. Therefore, the question of delay on the part of the first respondent, cannot be raised by the petitioner. The order passed in T.N.S.E. No.5 of 1992 was on merits as well as on the question of jurisdiction. Therefore, in the present case on hand, neither Regulation 57-A (1) nor Regulation 57-A (2) of the Tamil Nadu Electricity Board Service Regulations would apply and on the contrary Regulation 57-A (3) of the said regulations would be made applicable. 7.The learned senior counsel further submitted that it has been stated in the petition filed before the Labour Court that the first respondent has not been engaged elsewhere during the period of non-employment due to termination and no counter affidavit has been filed denying the said fact. The one and the only contention raised in the counter affidavit before the Labour Court was that the appellate authority while passing the order in T.N.S.E. No.5 of 1992 has not ordered reinstatement with backwages. Therefore, the application filed before the Labour Court is maintainable in law and on facts. The learned senior counsel also submitted that the order passed by the authority under the Tamil Nadu Shops and Establishment Act, 1947, would result in setting aside the order of termination and therefore, a delinquent employee, who has got a favourable order, would be deemed to be in service on the date of termination. In support of the said contention, the learned senior counsel has made reliance upon the Division Bench judgment of this Court in THE TATA IRON AND STEEL CO., LTD. vs. G.RAMAKRISHNA AYYAR AND P.NARAYANASWAMI [(1950) LLJ 1043 MADRAS]. Finally, the learned senior counsel submitted that the power of judicial review is very much limited, while considering the order passed by the competent authority under the Industrial Disputes Act. 8.In support of the said contention, the learned senior counsel has made reliance upon the judgment of this Court rendered in MANAGEMENT OF BATA INDIA LIMITED, HOSUR AND ANOTHER vs. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL TAMIL NADU AND OTHERS [2010-II-LLJ-175 (MAD)] and submitted that inasmuch as there is no lack of jurisdiction or perversity in the order passed by the second https://hcservices.ecourts.gov.in/hcservices/ respondent, this Court need not exercise the extraordinary and discretionary jurisdiction provided under Article 226 of the Constitution of India. Hence, the learned senior counsel submitted that the Writ Petition will have to be dismissed as devoid of merits. 9.As submitted by the learned senior counsel for the first respondent, a perusal of the order passed by the authority under the Tamil Nadu Shops and Establishment Act, 1947 in T.N.S.E. No.5 of 1992 dated 28.08.1997 would make it very clear that the order was passed on merits. It has been specifically stated in the order that the petitioner herein has not proved the allegation that the first respondent has not worked to the satisfaction on a comparison with the other employees. Apart from holding on merits against the petitioner, the authority was also pleased to hold that, the order impugned passed by the petitioner was one without jurisdiction and lacks of competency. 10.Therefore, on a reading of the order passed in T.N.S.E. No.5 of 1992, which has become final between the parties, this Court is of the view that the said order has been passed on merits against the petitioner and in favour of the first respondent. The scope of the order passed and the effect of the order by an authority in exercising the power under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 has been considered by the Honourable Division Bench of this Court in THE TATA IRON AND STEEL CO., LTD. vs. G.RAMAKRISHNA AYYAR AND P.NARAYANASWAMI [(1950) LLJ 1043 MADRAS]. The following paragraph of the said judgment is apposite: "4.It is next contended by Mr.Ramakrishna Ayyar that in any event the order of the Commissioner was bad in so far as it directed a reinstatement in service of the first respondent. The argument was that there is no specific provision in the Act which enabled the authority to make an order of reinstatement. He referred us by way of analogy to the jurisdiction of Industrial Tribunals to make orders of reinstatement, but we think such reference is wholly irrelevant. To a certain extent we agree with the learned Counsel, namely, that the authority should not have said that the employee would be entitled to reinstatement. But this is only quarrelling with his language. Actually the legal position is this. The employer passes an order dispensing with the services of an employee. That order is carried on appeal to a higher authority. That authority reverses the decision of the employer and the result is that the order of the employer is set aside. It is no longer in existence. It follows that the effect of the original order of the employer also https://hcservices.ecourts.gov.in/hcservices/ disappears and it is as if the order is nonesse. Though, therefore, it may not be quite accurate to say that the employee will entitled to reinstatement in service, yet the result of the order of the appellate authority is virtually the same. Probably, the result of the appellate order is even Better than an order of reinstatement. It is as if the employee had never been properly dismissed from service. In this view it is not necessary to quash the order of the appellate authority even in this respect." 11.Therefore, on a consideration of the ratio laid down by the Honourable Division Bench, it is clear that once an order is set aside by the authority, then the employee concerned would be entitled to get reinstatement with consequential benefits. In other words, as a result of the order being set aside, the employee is deemed to have been in service on the date of passing such an order. The benefits to the employee would follow in pursuance to the order passed by the competent authority by setting aside the order of termination. 12.Coming to the Regulations of the petitioner, substantial submission was made on the interpretation of Regulation 57-A. Regulation 57-A (1) of the Tamil Nadu Electricity Board Service Regulations deals with reinstatement of an employee, whose dismissal, removal or compulsory retirement is set aside by a Court of law in pursuance to the same, there was no further enquiry. In such a case, the period of absence from duty shall be regularised and the employee shall be entitled for all the pay and allowance. Regulation 57-A(2) (i) deals with the case in which an order of dismissal, removal or compulsory retirement of an employee is set aside by the Court solely on the ground of non-compliance with the requirements of the provisions contained in Regulation 8(b) of the Tamil Nadu Electricity Board Employee's Discipline and Appeal Regulations, and such an employee has not been exonerated on merits. In such a case, the payment will be restricted only for a period of three years. A reading of Regulation 57-A(2)(i) exemplifies the fact that it can be invoked in a case where an order is set aside by the Court solely on the ground of violations of the provisions contained in Regulation 8 (b) of the Tamil Nadu Electricity Board Employee's Discipline and Appeal Regulations. Therefore, Regulation 57-A(2)(i) is an exception of Regulation 57-A(1) and (3). In case, if an order is set aside by the Court on any other ground which is not covered under Regulation 8 (b), then the employer cannot deny the benefits by applying Regulation 57-A(2)(i). Regulation 57-A(2)(i) also imposes one more condition to the effect that such an employee is not exonerated on merits. Therefore, until and unless both these conditions are complied with, the regulation contained in 57-A (i) of the Tamil Nadu Electricity Board Service Regulations cannot be made applicable. https://hcservices.ecourts.gov.in/hcservices/ 13.In the present case on hand, as rightly found by the Labour Court, what is applicable to the first respondent is Regulation 57-A (3) of the Tamil Nadu Electricity Board Service Regulations. As per Regulation 57-A (3), in a case where an order is set aside by the Court on merits, then the period of intervention between the date of dismissal, removal and the date of reinstatement shall be treated as "duty" for all purposes and he shall be paid the full pay and allowances for the said period to which he would have been entitled, had he not been dismissed, or removed as the case may be. Therefore, on a reading of Regulation 57-A (3), considering the fact that the first respondent has been reinstated in pursuance to the order passed in T.N.S.E. No.5 of 1992 which was passed on merits of the case, what is applicable to the present case on hand is Regulation 57-A (3) alone. Hence, by applying the above said regulation, the Labour Court has correctly come to the conclusion that the first respondent is entitled for the monetary benefits. 14.The other contention of the learned counsel for the petitioner regarding the quantum of backwages is concerned, this Court is of the view that the same also cannot be countenanced. The Labour Court was directed to compute the amount payable based upon the order passed in T.N.S.E. No.5 of 1992 and the regulation contained in Tamil Nadu Electricity Board Service Regulations, particularly Regulation 57-A. Therefore, the Labour Court cannot go beyond the regulation and go into the question of employment of the first respondent, while fixing the amount payable. As submitted by the learned senior counsel appearing for the first respondent, it is not the case of the petitioner that the first respondent was gainfully employed anywhere and Clause 57-A of the regulation mandates that it is for the employer concerned to make the payment. Therefore, the contention of the learned counsel for the petitioner that it is mandatory on the part of the Labour Court to give a finding as to whether the first respondent was gainfully employed elsewhere or not during the period of termination, does not merit acceptance. 15.The judgment relied upon by the learned counsel for the petitioner in MUIR MILLS UNIT OF NTC (U.P.) LTD. vs. SWAYAM PRAKASH SRIVASTAVA [(2007) 1 SCC 491] does not have any application to the present case on hand. In the said case, the Honourable Apex Court was dealing with the case in which consequent on the reinstatement, what is the quantum of backwages to be made. In the present case on hand, the facts are entirely different. The first respondent claims her right based upon the order passed by the authority constituted under the Tamil Nadu Shops and Establishment Act, 1947 and Regulation contained under 57-A of the Tamil Nadu Electricity Board Service Regulations. Therefore, the judgment relied upon by the learned counsel for the petitioner, is not applicable to the facts on hand. https://hcservices.ecourts.gov.in/hcservices/ 16.In the judgment rendered in MANAGEMENT OF BATA INDIA LIMITED, HOSUR AND ANOTHER vs. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL TAMIL NADU AND OTHERS [2010-II-LLJ-175 (MAD)], this Court after considering the entire judgments on the scope of Article 226 of the Constitution of India in interfering with an order passed by the Labour Court, has held as follows: "18.From the above said categorical legal position, it is clear that the scope of jurisdiction of this Court under Article 226 of the Constitution of India in issuing writ of certiorari is restricted to cases where there are manifest error in the impugned order or the order is contrary to the provisions of law or the order has been passed without jurisdiction or in cases where the authority, while passing orders has taken into consideration certain extraneous matters which are not relevant or in cases where the authority has failed to take into consideration certain relevant factors, particularly the basic principle that on the materials available, no ordinary reasonable person would come to such a conclusion." 17.It is settled principle of law that this Court while exercising the power in issuing the writ of certiorari, is concerned with the decision making process and not the decision by itself. Therefore, this Court is of the considered view that after going through the award passed by the second respondent, there is no apparent error warranting jurisdiction by this Court to exercise the discretionary power under Article 226 of the Constitution of India. 18.In the light of the discussion made above, the Writ Petition is dismissed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sri To 1. The Superintending Engineer Madurai Electricity Distn. Circle Tamil Nadu Electricity Board Madurai. https://hcservices.ecourts.gov.in/hcservices/ 2. The Presiding Officer Labour Court, Madurai. 1 cc To Mr.K.Suddaikannu, Advocate, SR.19145 W.P. NO.24331 OF 2003 LA (CO) RH (11.4.11) https://hcservices.ecourts.gov.in/hcservices/