IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 09..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 6649 and 6870 of 1994 and 7715 of 1996 and W.M.P. No. 11243 of 1996 in W.P. No. 7715 of 1996 Saravana Transport Rep. by its Proprietor D.Y.R. Kannabiran Tiruvellore Chinglepet District .. Petitioner in W.P. No. 6649 of 1994 & R 16 in W.P. No. 6870 of 1994 & R 15 in W.P. No. 7715 of 1996 vs. 1. The Presiding Officer IInd Additional Labour Court Madras 2. Mani 3. S. Dhanasekaran 4. Elumalai 5. Subash 6. Walter Chandran 7. Loganathan 8. Mani 9. Iron John 10. Narayanan 11. Nagabooshanam 12. Shanmugam 13. Munirathinam 14. Arul .. RR 1 to 14 in all W.Ps. 15. N. Venkatapathy Naidu R15 in W.P. No. 6649 & 6870/94 & petitioner in W.P. No. 7715/96 16. Balaji Transports Proprietor D.Y. Loganatha Mudaliar Tiruvellore Taluk Chengalpattu District R16 in W.P. Nos. 6649 / 94 & 7715/96 & Petitioner in W.P. No. 6870/94 https://hcservices.ecourts.gov.in/hcservices/ Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records from the file of the Presiding Officer, IInd Additional Labour Court, Madras relating to the order passed in C.P. No. 660 of 1989 dated 06.01.1994 and quash the same. For Saravana Transport : Mr. N. Balasubramanian For Balaji Transport : Mr. S. Jayaraman For Petitioner in : Mr. K. Radhakrishnan W.P. No. 7715 of 1996 For contesting : Mr. S. Senthilnathan respondents C O M M O N O R D E R W.P. No. 6649 of 1994 is filed by M/s Saravana Transport represented by its Proprietor D.Y.R. Kannabiran against the order dated 06.01.1994 passed by the first respondent Labour Court in C.P. No. 660 of 1989. W.P. Nos. 6870 of 1994 and 7715 of 1996 are filed by M/s Balaji Transport represented by its Proprietor D.Y. Loganatha Mudaliar and one N. Venkatapathy Naidu respectively against the very same order. 2. Before the Labour Court, the contesting respondents who were employed by the Transport Company filed a claim statement being C.P. No. 660 of 1989 claiming salary from 19.3.1982 to April 1989 amounting to a sum of Rs. 6,84,359/-. Before the Labour Court, all the three writ petitioners were made as party respondents. The claim made by the workmen was disputed by the three petitioners. Before the Labour Court, while on behalf of the workmen, one Iron John was examined as P.W.1, on the side of the Managements, M/s C. Venkatapathy Naidu and D.Y. Loganathan were examined as R.W.1 and 2. On the side of workmen, six documents were filed and they were marked as Exs. P.1 to P.6 whereas on the side of the Managements, two documents were filed and they were marked as Exs. R.1 and R.2. 3. The Labour Court, by its order dated 06.01.1994, computed the said amount claimed by the workmen and held that the petitioners are either jointly or severally liable to make the payments. 4. The workmen were working in the Baskaran Transport, Thiruvallur and on 19.01.1982, their services were dispensed with because they had gone on strike for one day against the Central https://hcservices.ecourts.gov.in/hcservices/ Government and the strike was also banned by the Government. It was the contention of the workmen, that the strike was an all India one day token strike and the workmen were arrested on the night of 18th January 1982 and after the strike was over, when they went to report work, they were denied employment. The workmen raised a dispute before the Assistant Commissioner of Labour and conciliation talks were held. Further, talks were also held before the Sub-Collector and the Police officers. In that peace talks by Ex. P.2 dated 09.3.1982, the Management agreed to abide by the decision of the Assistant Commissioner of Labour. Pursuant to which, the Assistant Commissioner of Labour directed reinstatement of workmen under Ex.P.3 dated 17.3.1982. 5. Even before their non-employment, a settlement under Section 12(3) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act'] was arrived at on 16.5.1981 between the workmen and the Baskaran Transport on the basis of which, the workmen were made permanent and the scales of pay were given. Under paragraph 14 of the said settlement, it was agreed that in case, the route permit was taken over by the State or sold to any other private party, the Management will guarantee their employment and other benefits. The settlement was signed by Venkatapathy Naidu, Proprietor and C. Neelakanda Mudaliar, Manager. Thereafter, it is stated that Venkatapathy Naidu, Proprietor of Baskaran Transport transferred the route permit in favour of D.Y.R. Kannabiran, son of D.Y. Radhakrishna Mudaliar along with bus bearing Registration No. MDH 5944 plying in the route between Thiruvallur and Perambakkam. It was stated in paragraph (g) of the said agreement that the transferor shall be liable for payment of all taxes, charges, wages and other dues and that the transferee is not bound to take any of the employees of the transferor and that the transferee is not concerned with the pending labour dispute. 6. By an order dated 17.3.1982 (Ex. P.3) issued by the Assistant Commissioner of Labour, he directed reinstatement of 14 workers with continuity of service with effect from 19.3.1982 and that the workmen will not be paid wages for the period from 19.01.1982 to 19.3.1982. Against the said order, Venkatapathy Naidu filed a writ petition being W.P. No. 2370 of 1982. 7. Pending the writ petition, this Court directed a deposit of a sum of Rs. 10,000/- with the Assistant Commissioner of Labour, Conciliation, Chennai to furnish bank guarantee for a sum of Rs.20,000/- and that the workmen were also directed to withdraw the said Rs.10,000/- proportionate to their salary. Subsequently, this Court, by an order dated 17.11.1988, held in paragraph 5 as follows:- https://hcservices.ecourts.gov.in/hcservices/ "It is seen that when the Assistant Labour Commissioner (Conciliation) – II issued the proceedings dated 17.3.1982 he was not exercising any statutory power. As a conciliation officer he has no jurisdiction to give an award. Therefore, if the Assistant Labour Commissioner had purported to give the decision dated 17.3.1982, the same can be described only as decision given by him in pursuance of the agreement as evidenced by the resolution dated 9.3.1982 in the peace committee meeting. Such a decision rendered by the Assistant Commissioner of Labour, being not statutory, or in discharge of official duty, is not amenable to writ jurisdiction. When the Assistant Labour Commissioner issued the proceedings dated 17.3.1982 he has given the decision only as an individual nominated by the parties to render a decision either in the dispute between the parties or as an interim arrangement. As such, when a person who is not an authority within the purview of Article 226 of the Constitution of India, gives a decision, the same not liable to be quashed in exercise of the jurisdiction under Article 236 of the Constitution of India. In this view, the writ petition is dismissed. The costs during the pendency of the petition, the petitioner has deposited any money in the Canara Bank as per order of this Court, he is at liberty to withdraw the same." [Emphasis added] 8. During the pendency of the writ petition, Venkatapathy Naidu transferred the buses in favour of the respondents 2 and 3 and also did not honour the order passed by the Assistant Commissioner of Labour. It was in view of the said direction, the workmen went to the Labour Court with a petition under Section 33 (C)(2) of the I.D. Act being C.P. No. 660 of 1989 and claimed wages for the period of non-employment. It is against the compensation made, the present writ petitions have been filed. 9. Pending the writ petition, this Court, passed an interim order dated 15.4.1994, which was made absolute on 14.02.1996. Even in W.P. No. 7715 of 1996, the interim stay was granted and it is in force. 10. It was argued by Mr. N. Balasubramanian, learned counsel appearing for the Saravana Transport (petitioner in W.P. No. 6649 of 1994) that the petitioner is not liable to make any payment https://hcservices.ecourts.gov.in/hcservices/ since they are only a transferee and the agreement between the transferor and the transferee safeguarded the interest of the transferee. He also submitted that the petition under Section 33 (C)(2) of the I.D. Act is not maintainable as there is no pre- existing right to get salary for the period of non-employment. 11. Mr. S. Jayaraman, learned counsel appearing for D.Y. Loganatha Mudaliar, Proprietor of Balaji Transport (Petitioner in W.P. No. 6870 of 1994) also raised similar contentions. 12. Mr. K. Radhakrishnan, learned counsel appearing for Mr. N. Venkatapathy Naidu (Petitioner in W.P. No. 7715 of 1996) submitted that the workmen are not entitled for reinstatement on the basis of the order dated 17.3.1982 (marked as Ex.P.3) passed by the Assistant Commissioner of Labour. It cannot be said to be an Award passed by an Arbitrator since the requirements under Section 10(A) of the I.D. Act have not been followed. 13. This Court, by an order dated 17.11.1988, while dismissing the writ petition in W.P. No. 2370 of 1982, had given a clear finding that the Award / advice of the Assistant Commissioner of Labour is not based upon any law and it is only an advice and that order has become final. 14. The learned counsel also relied upon the Full Bench decision of this Court in RAP MFRS' employees Welfare Union v. The Deputy Commissioner of Labour, Salem [2006 (1) TNLJ 458more particularly, referred to the reference answered therein, which reads as follows: "In the light of the above discussion, we hold that an award under Section 10-A of the I.D. Act, which is rendered invalid due to noncompliance of the requirement under Sec 10- A(3) of the I.D. Act, cannot be enforced by the parties as an award in private arbitration under the provisions of Arbitration Act, 1996." [Emphasis added] 15. He further submitted that after the dismissal of the writ petition, the workmen ought to have revived the conciliation proceedings before the Assistant Commissioner of Labour and must have got their non-employment issue adjudicated by a competent Labour Court and a remedy under section 33(C)(2) of the I.D. Act is not maintainable. 16. The claim of the workmen before the Labour Court was essentially based upon the direction given by the Assistant Commissioner of Labour and it has also been held to be not valid https://hcservices.ecourts.gov.in/hcservices/ in the light of the judgment of this Court dated 17.11.1988 made in W.P. No. 2370 of 1982. Though technically the writ petition was dismissed and the findings are not binding, yet the order made by an authority on the basis of the agreement between the parties cannot be binding in the absence of the formalities being fulfilled under Section 10-A(3) of the I.D. Act as held by the Full Bench. 17. The Full Bench decision in RAP MFRS' Employees Welfare Union case referred to above has clearly answered the said point and, therefore, the basis of the claim made by the workmen having been removed, the claim under Section 33(C)(2) of the I.D. Act is not maintainable and the impugned order is liable to be quashed. But the matter cannot be allowed to be dealt with in that fashion because already, 16 years have gone by and the workmen are willing to receive the legal compensation as if their employment in Baskaran Transport had come to an end. 18. In this regard, the learned counsel appearing for the workmen was directed to file a memo of calculation providing for the details of their employment particulars, notice pay and also the retrenchment compensation. This is on the footing that on account of the transfer of the routes, the petitioners' employment has come to an end and, therefore, they are eligible to get the statutory retrenchment compensation in terms of Section 25 FFA of the I.D. Act. Such a claim before the Labour Court is maintainable and the owners of M/s Baskaran Transport are bound to pay the said statutory compensation to their workmen even if their non- employment is not adjudicated. The said memo of calculation was not objected to by the learned counsel appearing for the Management. 19. In the light of the same, the amounts in respect of each worker as submitted in the memo of calculation are reproduced below: S. No . Name with Designatio n Year of join ing Termina tion date Tota l year s of serv ice Last Drawn Wages in Rs. 1 Month Notic e pay - in Rs. Retrenchm ent Compensat ion 1 Mon th Bon us in Rs. Tot al amoun t Rs. 1 Mani (Conductor ) 1974 3/19/82 8 545 545 2180 545 3270 2 Dhanasekar an (Driver) 1980 3/19/82 2 545 545 545 545 1635 https://hcservices.ecourts.gov.in/hcservices/ S. No . Name with Designatio n Year of join ing Termina tion date Tota l year s of serv ice Last Drawn Wages in Rs. 1 Month Notic e pay - in Rs. Retrenchm ent Compensat ion 1 Mon th Bon us in Rs. Tot al amoun t Rs. 3 Elumalai (Driver) 1980 3/19/82 2 545 545 2180 545 1635 4 Subash (Conductor ) 1972 3/19/82 10 485 485 2425 485 3395 5 Walter Chandran (Conductor ) 1974 3/19/82 8 485 485 1940 485 2910 6 Loganathan (Conductor ) 1981 3/19/82 1 485 485 243 485 1213 7 Mani (Conductor ) 1978 3/19/82 4 485 485 970 485 1940 8 Iron John (Checking (Inspector ) 1970 3/19/82 12 485 485 2910 485 3880 9 Narayanan (Checking Inspector) 1970 3/19/82 12 485 485 2910 485 3880 10 Nagabhushn am (Checking (Inspector ) 1979 3/19/82 3 485 485 728 485 1698 11 Shanmugam (Checking (Inspector ) 1980 3/19/82 2 485 485 485 485 1445 12 Munirathin am (Conductor ) 1978 3/19/82 4 485 485 970 485 1940 13 Arul (Cleaner) 1978 3/19/82 4 485 485 970 485 1940 https://hcservices.ecourts.gov.in/hcservices/ 20. In view of the above, while all the three writ petitions are allowed, the owner of M/s Baskaran Transport, viz., petitioner in W.P. No. 7715 of 1996, is directed to make good the payments mentioned in paragraph 19 together with a simple interest of 6% per annum from 19.3.1982 till the date of the making of such payment. This exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. However, the parties are directed to bear their own costs. Gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Presiding Officer IInd Additional Labour Court Madras 1 cc to Mr.S.Jayaraman, Advocate, SR.27571 3 ccs to Mr.K.Radhakrishnan, SR.27563 1 cc to Mr.S.Senthilnathan, Advocate, SR.27840 ssn (co) dv/16.6. Delivery Order in W.P. Nos. 6649 and 6870 of 1994 and 7715 of 1996 https://hcservices.ecourts.gov.in/hcservices/