IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2010 CORAM: THE HONOURABLE MR.JUSTICE K.MOHAN RAM and THE HONOURABLE MR.JUSTICE S. PALANIVELU Writ Appeal Nos.1941and 1942 of 2001 and Contempt Petition No.689 of 2002 and CMP.Nos.15734, 15735/2001 & WAMP Nos.5218 & 5219/2002 The Tamilnadu Pokkuvarathu Kazhaga Thozhilalar Nala Sangam rep. By its President A. Yogannan : Appellant [in both W.As.and Contempt Petition] (Petitioner) Vs The State of Tamil Nadu Rep. By its Secretary to Government, Transport Department, Fort St. George, Chennai 600009. :I Respondent [in both W.As. TMTUC Government Transport Workers Federation rep by its State President K.S. Ravindran Trichi- 620 009 ...2nd Respondent (Respondent) in W.A. 1942/01 Karboora Sandara Pandian Secretary to Government Transport Department Chennai-9 ...Respondent in Cont.Petn.No.689/02 PRAYER: Writ Appeals filed under Clause 15 of Letters patent against the order in W.P.Nos.12891 of 1999 and 10643/2000 respectively dated 27.08.2001 of this Court W.P.Nos.12891/99 and 10643/00:- Petition presented under Article 226 of the Constitution of India to issue a writ of declaration 1. declaring that the deduction and recovery of Dearness https://hcservices.ecourts.gov.in/hcservices/ allowance variably made in the salary of the employees of the petitioner union in the month of may 1999 and subsequently is illegal arbitrary and unsustainable and consequently direct the respondent to refund the recovery already made on various rates, (in W.P.No.12891/99) and 2. declaring the the recoveries made variably in the salary of the members of the petitioner Union for the month of May 2000 and subsequently, under the caption Dearness Allowance, Medical Allowance etc is illegal, arbitrary and null and void illegal and invalid and consequently, direct the respondent to refund the recoveries already made on various rates. (in W.P.No.10643/00) respectively. C.M.P.No.15734 of 2001 in W.A.No.1941 of 2001 Petition filed under Section 151 of CPC of grant an order of interim injunction restraining the respondent from making any further recoveries either under the caption "Dearness Allowance" or in any other caption in any manner. and Contempt Petition filed under Section 10 to 12 of the Contempt of Court Act 70/71 to punish the respondent for having committed contempt of Court for disobeying the order dated 1.10.2001 made in C.M.P.No.15734 of 2001 in W.A.No.1941 of 2001 For Appellant : Mr. A. Amalraj For Respondent : Mr. M. Balasubramanian COMMON JUDGMENT [Judgment of the Court was delivered by S. PALANIVELU,J.] While W.P.No.12891 of 1999 has been filed by the appellant for the issue of Writ of Declaration declaring that the deduction and recovery of dearness allowance variably made in the salary of the employees of the petitioner union in the month of May 1999 and subsequently is illegal, arbitrary and unsustainable and consequently direct the respondent to refund the recovery already made on various rates, W.P.No.10643 of 2000 has been filed for the issue of Writ of Declaration declaring that the recoveries made variably in the salary of the members of the petitioner Union for the month of May 2000 and subsequently, under the caption Dearness Allowance, Medical Allowance is illegal, arbitrary and null and void and consequently, direct the respondent to refund the recoveries already made on various rates. 2.The allegations in the affidavit for writ petitions are as follows: 2.(a) The appellant union was registered under the Trade Unions Act, 1926. Its object is to promote unity among the workers of the Transport Department to fight for their rights and https://hcservices.ecourts.gov.in/hcservices/ privilege in a democratic way and to set right the real and actual grievance of the employees. The appellant is one among the trade unions among 17 trade unions affiliated to the Transport Department in which totally 1.35 lakhs workers are members. On 13.11.1998 this Court has passed an order in W.A.No.1205/98 etc. batch, directing the Transport Corporation to conduct election through secret ballot to elect the representatives for the year 1998 for a period of three years and as per the direction, election was held and members from various trade unions in all 21 transport corporations were elected. Wage-settlement seems to have arrived on 13.2.1999. 3 members signed in the settlement while other 3 members did not accept it. 3 members signed in the 8th wage-settlement was represented only 45,565 votes out of the total votes of 1,10,368/- and hence the settlement is invalid and non-est in the eye of law. 2.(b). Interalia, various Dearness Allowances were arrived at between three agreed parties which are as follows:- "The variable Dearness Allowance will be continued to be calculated on a quarterly basis taking into consideration the rise or fall in the average of the consumer price index from quarter to quarter. The variable Dearness Allowance linked to the consumer price index shall be payable at the rate of rupees two only per each point increase over and above 1924 points commencing from 1.10.1998." 4. It is significant to mention that Dearness Allowance has never been decreased or recovered from the salary of the employees previously and infect the said Dearness Allowance is being paid only in an increased rates and all the wage settlements do not contain a clause either to decree or to recover the Dearness Allowances. Even in the current VIII wage settlement there is no provision for such recovery or deduction. 5.The present proceeding is the unlawful recovery of Dearness Allowance and deduction under recovery is sought to be made under the caption Dearness Allowance which variably made in the salary of the employees in the petitioner union in the month of May 1999 is illegal, arbitrary and unsustainable. Hence a writ may be issued declaring the deduction and recovery of Dearness Allowance as illegal. 6.The writ petition was resisted by the respondent by way of counter. It is stated that all the Transport Corporations should have been impleaded as parties and hence the petition is bad for joinder of necessary parties. The variable Dearness Allowance linked to the Consumer Price Index shall be payable at the rate of Rs.2/- only per each point increase, over and above 1924 https://hcservices.ecourts.gov.in/hcservices/ points commencing from 1.10.1988. The quarterly review shall be for each Quarter viz., January-march, April-June, July-September and October-December and the variable Dearness Allowance payable for the increase, if any, in a quarter in respect of which the review is done. If any rise or fall in Consumer Price Index the same will be paid/recovered in the subsequent month salary. This practice was in vogue when the Consumer Price Index declined by 8 points from the previous quarter January-March 1993, the Variable Dearness Allowance was reduced from Rs.802/- to Rs.786/- and the difference in Variable Dearness Allowance was also recovered likewise during January-March 1996 and a sum of Rs.24/- was recovered from the salaries of the employees. The same petitioner Union also did not object to such recoveries made earlier. The above said recoveries is a routine procedure followed as per the agreed terms and conditions. If the petitioner Union is aggrieved with the recovery, they should have got their grievances redressed by taking the matter to the respective Transport Corporation. 7.It is denied that the First Wage Settlement to the current Wage Settlement do not have any clause either to decrease or to recover the Dearness Allowance. When there is decrease in the Consumer Price Index the variable Dearness Allowance will also be decreased and the excess amount paid were recovered as stated supra. The excess Variable Dearness Allowance paid for April 1999 was recovered as contemplated in Clause 3 of 12(3) settlement dated: 13.2.1999 is valid and legal. 12(3) settlement signed by majority of elected representatives is binding on all the employees. The petitioner Union has no right to claim the payment of Dearness Allowances to the employees of Government Departments. The excess variable Dearness Allowance paid for the month of April 1999 was later recovered in May 1999 salary, as 83 point on Consumer Price Index have declined, were normally known to the Management only in the middle of May 1999. For the foregoing reasons, the Writ Petition may be dismissed. 8. In both the writ petitions, the main contention of the appellant is that the settlement arrived at between the employees and the various transport corporations, dated 13.2.1999 under Section 12(3) of the Industrial Disputes Act, no provision or Clause is available for such recovery, but whereas the contention of the respondent is as follows:- "The practice of calculating Variable Dearness Allowance was on quarterly basis after taking into consideration the rise or fall in the average of the Consumer Price Index (Base 1960 = 10 from Quarter to Quarter. The variable Dearness Allowance linked to the Consumer Price Index shall be payable at the rate of Rupees Two only per each point increase over and above 1924 points commencing from 1.10.1998. https://hcservices.ecourts.gov.in/hcservices/ The Quarterly Review shall be for each Quarter, namely, January-March, April-June, July-September and October-December and the Variable Dearness Allowance payable for the increase, if any, in a quarter shall be allowed during the Quarter succeeding the Quarter in respect of which the Review is done. As the average points of Consumer Price Index for the First Quarter are issued by Government only during the middle of the second Quarter. The Variable Dearness Allowance paid for the first Quarter continued and if any rise or fall in Consumer Price Index the same will be paid/recovered in the subsequent month salary. This practice was in vogue all along. In fact during the Quarter April-June 1993, when the Consumer Price Index was declined by 8 points from the previous Quarter January-March 1993 (from 401 to 393) the Variable Dearness Allowance was reduced from Rs.802/- to 786/- and the difference in Variable Dearness Allowance was also recovered. Likewise during April-June 1996, 12 points was declined from the previous quarter January-March 1996 and a sum of Rs.24/- was recovered from the salary of the employees. If the average points have increased, the additional payment is made and if the average points have fallen, accordingly, the amount is recovered. The same Clause is incorporated in all other earlier settlements under Section 12(3) of the Industrial Disputes Act as such it is not a new conditions agreed upon in this settlement alone. The same petitioner Union also did not object to such recoveries made earlier. Hence the writ petition was filed misreading the various Clauses in the 12(3) settlement dated 13.2.1999 and as such it is misconceived. The elected representatives who signed the 12(3) settlement are aware of the clause and they never objected such recoveries as this is a Routine procedure followed as per the agreed norms." 9. The contention of the learned counsel for the appellant is that Clause 3 of the 12(3) settlement does not provide for any recovery. Thus, it is seen that the dispute is regarding the interpretation of 12(3) settlement arrived at between the parties. https://hcservices.ecourts.gov.in/hcservices/ 10. In the counter affidavit itself, the respondent has taken a stand that the respective transport corporations, which are necessary parties have not been impleaded as party respondents in the writ petitions. But the Government alone has been impleaded and the writ petitions, which raise the disputed questions of fact are not maintainable. But this aspect has not been considered or gone into by the learned Single Judge but disposed of the writ petitions on merits. But we are of the considered view that the writ petitions ought not to have been entertained and disposed of on merits, but instead they should have been referred to the Industrial Tribunal for adjudication for the following reasons. 11. In this context it will be useful to refer to the provisions contained under Section 36-A of the I.D. Act, which reads as follows:- "36-A : Power to remove difficulties:- (1) If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal, or National Tribunal as it may thing fit." 12. A reading of the aforesaid provision makes it clear that if any difficulty or doubt arises as to the interpretation of any provision of the settlement arrived at between the parties under Section 12(3) of the Act, the appropriate Government may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit. 13. If such dispute is referred, the Tribunal concerned has to decide such question after giving the parties an opportunity of being heard. As pointed out above, while the contention of the appellant is that there is no provision under 12(3) settlement for recovery of dearness allowance already paid, the contention of the respondent is that 12(3) settlement provides of such recovery and has taken a further stand that similar recoveries made in the earlier period were not objected to by the appellant. Thus, the disputed questions of fact arise for consideration in the writ petitions. The controversy also involves the interpretation of the provisions of the settlement. Precisely for resolving such dispute, Section 36-A of the Act has been introduced. 14.If there is breach of settlement arrived at and there is any disagreement/dispute regarding its interpretation, the same has to be referred to under Section 36-A of the Act as Industrial Dispute. Therefore, the remedy is available under Section 36-A of the Act and not under Article 226 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India by way of filing a writ petition. 15.Further, as pointed out above, the disputed questions of fact cannot be gone into in a writ petition under Article 226 of the Constitution of India and on that ground also, the writ petitions cannot be maintained. 16. For the foregoing reasons, the order of the learned Single Judge passed in W.P.Nos.12891 of 1999 and 10643 of 2000 is set aside and the respondent herein is directed to refer the dispute relating to the interpretation of the provisions contained under 12(3) settlement, dated 13.2.1999 for adjudication by the Industrial Tribunal, Chennai, under Section 36-A of the Act. 17. Such reference shall be made by the respondent within 30 days from the date of receipt of a copy of this order. The Industrial Tribunal, Chennai shall dispose of the reference/dispute within three months from the date of receipt of such reference. It is made clear that the Industrial Tribunal shall decide the dispute independently on the basis of the materials that may be produced by the respective parties without in any way being influenced by the decision rendered in W.P.Nos.12891 of 1999 and 10643 of 2000 by the learned Single Judge. It is further made clear that any observation contained in the order passed in the writ petitions shall not be allowed to influence the mind of the Industrial Tribunal. 18. With the above said terms both the Writ Appeals are disposed of. In view of the disposal of the writ appeals, Contempt Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ggs To 1. The Secretary to the Government of Tamil Nadu Transport Department, Fort St. George, Chennai 600009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Section Officer Judicial Department High Court, Madras (For information) 1 cc to Government Pleader, Sr. 88599 1 cc to Mr.A. Amalraj, Advocate, Sr. 88136 W.A.Nos.1941 and 1942 of 2001 and Cont.Petn.No.689 of 2002 BK (CO) kk 31/12 https://hcservices.ecourts.gov.in/hcservices/