The General Manager v. The Special Joint Commissioner Of Labour
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 21-07-2023
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE K.RAJASEKAR W.A.No.2690 of 2022 The General Manager, Tamil Nadu State Transport Corporation (Villupuram) Ltd., Vellore Region, Vellore.
...
Appellant -vs1.The Special Joint Commissioner of Labour, Teynampet, Chennai.
2.J.Karthikeyan ...
Respondents Appeal is filed under Clause 15 of the Letters Patent against the order, dated 13.09.2022, passed in W.P.No.26278 of 2014 on the file of this Court. For Appellant : Mr.Ramanlal, Addl.Advocate General, assisted by Ms.S.Pavithra.
For Respondent 1 : Mr.R.Ganesan Government Advocate.
For Respondent 2 : Mr.Ajay Khose
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JUDGMENT
(By S.Vaidyanathan,J.) Second respondent, who was a Conductor in the appellant Corporation, was dismissed from service on 04.11.2011. As an industrial dispute between the Management and the Union was pending and the second respondent was one of the employees concerned, the Management preferred an approval petition in the industrial dispute, seeking approval of their action. The Management had tendered one month's wages to an extent of Rs.5,954/-, which was for 26 days and not 30 days. Approval Petition was rejected, against which the Writ Petition was filed and dismissed on 13.09.2022 in W.P.No.26278 of 2014. The learned single Judge, in Para 4 of the order, has held that there was a shortfall of wages, payable to the workman.
2. A similar issue, as to whether an employee should be paid wages for the actual number of days he worked or monthly wages ought to be paid as one month's wages, was considered by a Division Bench of this Court in W.A.No.1272 of 2023 on 26.06.2023, wherein, in Paragraph 6, it has been held as under : ''6. From a reading of the proviso extracted above, it is as clear as the sky that the employee should be paid wages for one month, which could be either 28 days or 29 days or 30 days or 31 days, depending upon the number of days the month has, in which, the employee is dismissed. In the instant case, the appellant was discharged on 21.06.2012. Accordingly, the monthly wages for the entire month of June, i.e., for 30 days, will have to be paid and not 25 days, as has been paid to the appellant, albeit the fact that he is a daily wager, since the proviso to
3/7 Section 33(2)(b), ibid., nowhere states that the employee shall be paid for the actual number of days he had worked. In our considered view, the expression "wages for one month" employed in the proviso is inclusive of paid holidays which the employee would be entitled to otherwise as per law.''
Since the employee, in view of the aforesaid dictum, is entitled to wages for one month and not 26 days, the Approval Petition has got to be rejected, which has been rightly done by the authority concerned.
3. During the pendency of this Writ Appeal, today, the employee filed an affidavit, which is scanned below :
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4. The employee has agreed to report for work and give up all back-wages from the date of dismissal till the date of reinstatement, as has been stated in Paragraph 6 of the affidavit, which is scanned supra.
5. Though it has been vehemently contended by Mr.Ramanlal, learned Additional Advocate General, that the employee would be demanding all the benefits from the date of dismissal till the date of reinstatement as could be seen from Paragraph 7 of the affidavit, dated 21.07.2023, we are of the view that the employee would be entitled to all notional benefits, but for dismissal from service, and get continuity of service and other attendant benefits, as an order passed under Section 33 (2) (b) has got greater force than the one passed by the Labour Court in an award in an industrial dispute raised under Section 2-K or 10 of the Industrial Disputes Act,1947. Hence, we are inclined to follow our decision in W.A.No.1272 of 2023, dated 26.06.
2023, mentioned supra, and the second respondent - employee would be entitled to reinstatement with continuity of service and other attendant benefits within a period of one month from today and he shall be paid on par with his counterparts on and from the date of reinstatement. However, we make it clear that : i.
ii. the wages paid to the second respondent during the pendency of the writ petition by means of an interim order shall not be recovered from him;
6/7 iii. neither the appellant's share nor the second respondent's share of Provident Fund need be paid for the period from the date of dismissal till today; and iv. the second respondent's entire service shall have to be taken into account for the purpose of Gratuity and Pension, if any. We expect the employee to be reinstated in service on or before 15th August,2023.
6. Writ Appeal is disposed of accordingly. No costs. Consequently, the connected C.M.P.No.21808 of 2022 is closed.
Index : Yes/No (S.V.N.,J.) (K.R.S.,J.) Internet : Yes/No 21-07-2023 dixit To The Special Joint Commissioner of Labour, Teynampet, Chennai.
7/7 S.VAIDYANATHAN,J.
AND K.RAJASEKAR,J.
dixit W.A.No.2690 of 2022 21-07-2023