IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.1.2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.6819 of 2006 C.DASARATHAN [ PETITIONER ] Vs 1 VIDESH SANCHAR NIGAM LTD REP.BY THE CHIEF GENERAL MANAGER (HR) AND APPELLATE AUTHORITY, LOLMANYA VIDESH SANCHAR BHAVAN KASINATH DHURU MARG, OPP.KIRTI COLLEGE PRABEDEVI MUMBAI 2 THE GENERAL MANAGER -HR DISCIPLINARY AUTHORITY, VIDESH SANCHAR NIGAM LIMITED LOLMANYA VIDESH SANCHAR BHAVAN KASINATH DHURU MARG OPP.KIRTI COLLEGE PRABEDEVI MUMBAI 3 THE CHIEF GENERAL MANAGER VIDESH SANCHAR NIGAM LIMITED 5, SWAMI SIVANANDA SALAI CHENNAI-2 4 THE CENTRAL GOVERNMENT LABOUR COURT CHENNAI. [ RESPONDENTS ] Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records and quash the order dated 30.12.2005 in C.C.P.No.18 of 2002 passed by the IV Respondent herein and consequently direct the respondents I-III herein to compute and pay the money value of the performance award due to the petitioner along with interest @ 24%. For petitioner : Mrs.D.Nagasaila For respondents : Mr.C.Mohan for M/s.King & Partridge https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition has been filed praying that this Court may be pleased to issue a writ of Certiorarified Mandamus to quash the order of the fourth respondent labour Court, dated 30.12.2005, made in C.C.P.No.18 of 2002, and to direct the respondents 1 to 3 to compute and pay the money value of the performance award to the petitioner, along with the interest at the rate of 24% per annum. 2. The petitioner had stated that he had joined in service, as a Grade D employee, under the respondents 1 to 3, on 14.5.1975. At the time of the filing of the claim petition on the file of the fourth respondent labour Court, he was holding the post of Assistant Officer (MTCE) (NE-9). His wife, D.Kamalavathi, was also employed in Videsh Sanchar Nigam Limited, which was originally a Government of India undertaking. In the year 2000, due to the disinvestment, the Tata Company had taken control of the said Company. While so, there was some misunderstanding between the petitioner and his wife, due to certain family problems. Taking advantage of the same, some of the superior officers of the company, who were unhappy with the trade union activities of the petitioner, had caused the issuance of a charge memo against the petitioner, dated 7.1.1998. 3. The petitioner had further stated that, based on the said charge memo, disciplinary proceedings had been initiated against the petitioner, under the Industrial Employment (Standing Orders) Central Rules, 1946. Based on the findings of the enquiry officer, the petitioner had been compulsorily retired from service, vide memo dated 12.1.2000. 4. The petitioner had further stated that he had preferred an appeal against the order, dated 12.1.2000, to the first respondent. By an order, dated 1.8.2000, the punishment of compulsory retirement, imposed on the petitioner, had been reduced to that of withholding of promotion for a period of two years, from the date of his fitness for promotion. Thereafter, the petitioner had been reinstated in service, with effect from 7.8.2000. The intervening period, from 12.1.2000 to the date of his reporting for duty, had been treated as leave, without pay. The petitioner was also not entitled to any pay and allowances during the period of his suspension, except the subsistence allowance already paid to him. The petitioner had joined duty, as per the said order, on 7.8.2000. 5. The petitioner had further stated that the petitioner had become eligible for promotion in the month of April, 2002. As the punishment awarded to the petitioner was withholding of promotion, for a period of two years, from the date on which he became eligible, the said punishment had commenced only from the month of April, 2002, and it had only lasted for a period of two years thereafter. While https://hcservices.ecourts.gov.in/hcservices/ so, the first respondent Company had introduced a new scheme, on 21.5.2001, as Performance Reward Scheme, in consultation with the national productivity council. However, the said scheme was made applicable, with effect from 1.4.1999. It was applicable to all the eligible employees of the Company. 6. The petitioner had further stated that he had received an office memo, dated 25.2.2002, informing him that a sum of Rs.8,855/-, was recoverable from him, as it was the amount paid under the Performance Reward Scheme. The petitioner had replied stating that he had not received any amount under the Performance Reward Scheme and he had requested for the payment due to him under the said scheme. By a communication, dated 22.3.2002, he was informed that the performance reward shall not be admissible to him till the period of punishment was over and till normalcy restored. It had also been stated that the Performance Reward Scheme would be due to the petitioner only after 31.8.2005. 7. The petitioner had further stated that the employees union had made a representation, dated 19.4.2002, to the Managing Director Videsh Sanchar Nigam Limited, requesting for the payment of the performance reward to the petitioner. By a communication, dated 8.6.2002, the petitioner had been informed that his suspension period cannot be treated as qualifying service and therefore, he would not be entitled to any benefits. In such circumstances, the petitioner had preferred a claim petition, in C.C.P.No.18 of 2002, under Section 33C (2) of the Industrial Disputes Act, 1947, before the fourth respondent labour Court, challenging the orders, dated 4.12.2001 and 22.3.2002, claiming a sum of Rs.89,895/-, with interest, from the year, 1996, till the month of March, 2002, as the amount due to him under the Performance Reward Scheme, from the first respondent Company. 8. The petitioner had further stated that the fourth respondent labour Court had dismissed the claim petition filed by the petitioner, by an order, dated 30.12.2005, stating that the petitioner would not be entitled to the amount claimed by him, under the Performance Reward Scheme, for the period when he was under suspension, except the subsistence allowance and that the period of suspension, from 12.6.1997 to 11.1.2000, shall not count for qualifying service or for any other purpose. It had also been held that there was no pre- determined or pre-existing right, when the employer management disputes the entitlement of the petitioner to make the claim. It had also been held that it is for the petitioner to work out his remedy by raising an industrial dispute, as per Section 10 of the Industrial Disputes Act, 1947. The fourth respondent labour court had also held that it cannot pass an order for the payment of interest, in the absence of any specific https://hcservices.ecourts.gov.in/hcservices/ provisions to that effect. It had also been held that the fourth respondent labour Court acts like an executing Court, under Section 33C (2) of the Industrial Disputes Act, 1947. 9. The learned counsel appearing for the petitioner had submitted that the power of labour Court, under Section 33C (2) of the Industrial Disputes Act, 1947, is very wide in nature. It cannot act merely as an executing Court. When a workman makes an application for the receipt of certain benefits and when the employer management raises the dispute in respect of the said claim, it is for the labour Court to ascertain as to whether the claim of the workman is justifiable. Thereafter, it could compute the same in terms of money, as held by the Supreme Court of India, in CENTRAL BANK OF INDIA Vs. RAJAGOPALAN AND OTHERS (1963 (II) LLJ 89). 10. The learned counsel appearing for the petitioner had further submitted that the fourth respondent labour Court had failed to consider the fact that the claim of the petitioner for the performance reward was only for the periods prior to his suspension and subsequent to his reinstatement in service. The fourth respondent labour Court ought to have seen that the claim of the petitioner was only for the period prior to the commencement of the punishment. Since, the petitioner had been reinstated in service, with effect from 7.8.2000, and as he was due for promotion only in the month of April, 2002, the period of his punishment would start only from the month of April, 2002. 11. The learned counsel appearing for the petitioner had also submitted that the power of the labor Court, under Section 33C (2) of the Industrial Disputes Act, 1947, is wide in nature and it could decide issues, which are incidental to the main issue arising for its consideration. Therefore, before computing the amount due to the petitioner as performance reward, it should have decided as to whether the respondents 1 to 3 were entitled to validly dispute the claim of the petitioner. 12. The learned counsel appearing for the petitioner had also submitted that the labour Court ought to have seen that Section 33C (1) of the Industrial Disputes Act, 1947, relates only to applications to be made to the appropriate Government for the recovery of the money due to the workman. However, a labour Court, acting under the powers vested in it, under Section 33C (2) of the said Act, has wider powers. It could make decisions in respect of issues, which are incidental to the claim made by the workman, even it is disputed by the employer management. 13. The learned counsel appearing for the petitioner had submitted that the labour Court does not act merely as an executing https://hcservices.ecourts.gov.in/hcservices/ court, as held by the Supreme Court, in CENTRAL BANK OF INDIA Vs. RAJAGOPALAN AND OTHERS (1963 (II) LLJ 89), under Section 33C (2) of the Industrial Disputes Act, 1947, as it is different in scope, as compared to section 33C (1) of the said Act. 14. The learned counsel appearing for the petitioner had also submitted that there was no dispute with regard to the existence of the Performance Reward Scheme. Further, there was no dispute that the said scheme would be applicable to the petitioner, who is a workman under the first respondent company. The labour Court had erred in holding that the claim made by the petitioner for the performance reward is not for the period when he was under suspension from service. In fact, it was for the periods prior to the suspension and after his reinstatement in service. 15. The learned counsel appearing for the petitioner had also submitted that the fourth respondent labour Court had also erred in coming to the conclusion that the petitioner would not be entitled to the amount, as claimed by him as the performance reward, since, the management had disputed the same. Therefore, the claim petition filed by the petitioner is not maintainable. 16. The learned counsel appearing for the petitioner had also submitted that the labour Court had erred in arriving at its conclusion that the petitioner is not entitled to make a claim for the payment of the performance reward, as he had preferred a civil suit, in O.S.No.1459 of 2003, on the file of the City Civil Court, Chennai. The labour Court ought to have noted that the said original suit had been filed by the petitioner challenging the order relating to his suspension. Hence, the said suit would only relate to the periods of the petitioner's suspension from service. Further, the Supreme Court had held that the suit filed by the petitioner is not maintainable, in its order, dated 30.8.2010 in S.L.P.(Civil) No.6268 of 2007, which had been filed challenging the order of this Court, dated 4.1.2007, made in C.R.P.(PD) No.520 of 2005. 17. The learned counsel appearing for the petitioner had relied on the decisions of the Supreme Court, in NEW TAJ MAHAL CAFE (PRIVATE) LTD., Vs. LABOUR COURT, HUBLI (1970) II L.L.J 51) and ARCOT ELECTRICITY DISTRIBUTION Vs. MOHAMMED KHAN (1970) II L.L.J.44) to reiterate her claim that the labour Court is entitled to decide the issue as to whether the petitioner is entitled to the amount claimed by him as performance award, even though the first respondent Company had disputed the same. She had also stated that the fourth respondent labour Court had misdirected itself in holding that the claim petition filed by the petitioner is not maintainable. 18. Per contra, The learned counsel appearing for the respondents 1 to 3 had submitted that the first respondent Company, which was a public sector undertaking, had been changed as Tata https://hcservices.ecourts.gov.in/hcservices/ Communications Limited, from the month of January, 2008, pursuant to the disinvestment policy of the Government of India. At present, it is a private company forming a part of the Tata group. 19. The learned counsel appearing for the respondents 1 to 3 had further submitted that the petitioner and his wife were both employees of the first respondent Company. On 30.5.1997, the petitioner had forcibly entered into the cabin of his wife, within the premises of the company and strangulated her and had pulled her Mangalnan. Since, the action of the petitioner amounted to a serious misconduct, a charge memo had been issued against him. Based on the charge memo, a domestic enquiry had been conducted and a final order had been passed by the appropriate authority, on 12.1.2000, compulsorily retiring the petitioner from service. Aggrieved by the said order, the petitioner had preferred an appeal to the competent authority. The appellate authority, by an order, dated 1.8.2000, had modified the punishment of compulsory retirement to that of withholding of the promotion of the petitioner, for two years, from the date of his fitness for promotion. 20. The learned counsel appearing for the respondents 1 to 3 had further submitted that the petitioner would not be entitled to any pay or allowances. Subsequently, certain other orders had also been passed by the first respondent Company stating that the petitioner would not be entitled to any benefits or incentives due to the punishment awarded to him. It had also been made clear that the petitioner would not be entitled to performance reward, which had been introduced in respect of the employees of the first respondent Company. Challenging the said orders passed by the first respondent Company, the petitioner had filed a civil suit, in O.S.No.1459 of 2003, on the file of the XIV Assistant City Civil Court, Chennai. Therefore, without determination of the entitlement of the petitioner and recognition of the benefits that may be due to him from the Company, the petitioner would not be entitled to such entitlement or benefits by making a claim, under Section 33C (2) of the Industrial Disputes Act, 1947. Instead of seeking a reference, under Section 10 of the said Act, the petitioner had filed a claim petition, before the fourth respondent labour Court, in C.C.P.No.18 of 2002, under Section 33C (2) of the Industrial Disputes Act, 1947. 21. The learned counsel appearing for the respondents 1 to 3 had further submitted that the claim petition filed by the petitioner before the fourth respondent labour Court is not maintainable, as he had challenged the orders in question passed by the first respondent Company, by way of an original suit before the City Civil Court, in O.S.No.1459 of 2003. The plaint filed by the petitioner before the civil court had been marked as Exhibit R.8, on the file of the fourth respondent labour Court. The petitioner in the present writ petition, who is the plaintiff in the civil court, in O.S.No.1459 of 2003, had https://hcservices.ecourts.gov.in/hcservices/ challenged the orders passed by the first respondent company, including the order, dated 8.6.2002, which had been marked as Exhibit P.17. In the absence of any judicial determination setting aside the order under challenge in the civil suit filed by the petitioner, he is not entitled to file a claim petition, under Section 33C(2) of the Industrial Disputes Act, 1947, to compute the money value of the entitlement or the benefits said to be due to him. 22. The learned counsel appearing for the respondents 1 to 3 had further submitted that it is a well settled position of law that a labour Court would act only as an executing court, under Section 33C (2) of the Industrial Disputes Act, 1947. It can compute the money value, that would be due to the claimant only after the determination has been adjudicated, which may flow from a pre-existing right, by way of an award or a settlement. In the absence of such determination by way of adjudication, the jurisdiction of the labour Court, under Section 33C(2) of the Industrial Disputes Act, 1947, is limited in nature. 23. The learned counsel appearing for the respondents had relied on the following decisions in support of the above contentions: 23.1. In ML.CORPN OF DELHI Vs. GANESH RAZAK & ANR (1995 (1) LLJ 395) the Supreme Court had held as follows: 8. Reference may be made first to the Constitution Bench decision in The Central Bank of India Ltd. Vs. P.S.Rajagopalan etc., (1963-II-LLJ-89)(SC), on which Shri Rao placed heavy reliance. That was a case in which the question of maintainability of proceedings under Section 33C(2) of the Act was considered in a claim made by the workmen on the basis of the Sastry Award. The employer disputed the claim of the workmen on several grounds including the applicability of Section 33C(2) of the Act. It was urged that since the applications involved a question of interpretation of the Sastry Award, they were outside the purview of Section 33C(2) because interpretation of awards or settlements has been expressly provided for by Section 36A. This objection was rejected. This Court pointed out the difference in the scope of Section 36A and Section 33C(2) indicating that the distinction lies in the facts that Section 36A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33C(2); and whereas Section 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under Section 36A. In https://hcservices.ecourts.gov.in/hcservices/ this context, this Court also indicated that the power of the Labour Court in a proceeding under Section 33C(2) being akin to that of the Executing Court, the Labour Court is competent to interpret the award or settlement on which a workman bases his claim under Section 33C(2), like the power of the Executing Court to interpret the decree for the purpose of execution. Relevant extract from that decision is as under: "Besides, there can be no doubt that when the labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go beyond the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under S.33C (2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under S.33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests. 12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court’s power under Section 33-C(2) like that of the Executing Court’s power to interpret the decree for the purpose of its execution." 23.2. In STATE BANK OF INDIA Vs. RAM CHANDRA DUBEY (2001 (1) SCC 73), the Supreme Court had held as follows: https://hcservices.ecourts.gov.in/hcservices/ 8. The principles enunciated in the decisions referred by either side can be summed up as follows: Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre- existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages. 23.3. In STATE OF U.P. Vs. BRIJIPAL SINGH (2005 (5) CTC 45), the Supreme Court had held as follows: "12. Thus, it is clear from the principle enunciated in the above decisions that the appropriate Forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent https://hcservices.ecourts.gov.in/hcservices/ herein which is not based on an exiting right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33-C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the labour Court in an application under Section 33-C(2) of the I.D.