The Superintendent v. C. Madhankumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 14.06.2023

CORAM

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE K.RAJASEKAR W.A. No.1201 of 2023 & C.M.P. No.12231 of 2023 The Superintendent Railway Mail Service RMS 'M' Division Chennai-600 008 The Sub Record Officer RMS 'M' Division Gandhinagar Vellore - 632 006 Appellants v C. Madhankumar The Presiding Officer Central Government Industrial Tribunalcum-Labour Court, Chennai Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 16.08.2022 passed in W.M.P.No.20708 of 2017 in W.P.No.24364 of 2016. For appellants Mr.M.Karthikeyan 1/6

JUDGMENT

(By S.Vaidyanathan,J.) This intra court appeal has been preferred against the interim order dated 16.08.2022 passed in W.M.P.No.20708 of 2017 in W.P.No.24364 of 2016 directing the Railways to pay the last drawn wages to the first respondent/employee during the pendency of the writ petition, which was filed by the first respondent/employee challenging the award dated 28.01.2016 passed by the second respondent/Labour Court in I.D. No.22 of 2014.

The following paragraphs of the award of the Labour Court are relevant for deciding this intra court appeal:

"15.

The claim of the petitioners is not only for reinstatement but also for permanency. As stated this is not a subject matter of order of reference and cannot be considered. The only question is whether the petitioners can be reinstated in the same position in which they were. 16.

In all the identity cards produced, the petitioners are described as Outsiders Sorting Assistants. All the petitioners have stated that they were not given any appointment order. It was not based on any Recruitment Rules they were taken. However, there is a fact that they were ousted from work even when work was available with the respondents. This is clear from the evidence given by MW1. He has stated during his cross-examination that even now outsiders are engaged. That shows that work is still available with the respondents. So the respondents are in a position to take back the petitioners as Outsiders, Sorting Assistants itself. The claim of the petitioners for backwages could not be entertained since they were working on daily wages but paid on monthly basis. If the petitioners are not willing to be reinstated in the same position, they are to be compensated as contemplated 2/6

under Section 25-F of the ID Act. Almost all the petitioners have joined during the same period. The compensation payable is fixed as Rs.2.00 lakhs for each of the petitioners. At the option of the petitioners, the respondents are either to engage the petitioners in the same position or to pay compensation of Rs.2.00 lakhs within two months of publication of the award. Accordingly, the respondents are directed to re-engage the petitioners or pay compensation @ Rs.2.00 lakhs to each of the petitioners at their option within two months of the publication of the award." For the sake of ease of reference, Section 17-B of the Industrial Disputes Act,1947 (in short ''the Act'') is extracted below : ''17B. Payment of full wages to workman pending proceedings in higher courts.

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be."

The main contention of the appellants is that without a counter affidavit being filed in the writ miscellaneous petition, the learned single judge has passed the impugned order.

In this intra court appeal, there is no ground to the effect that the first respondent/employee is gainfully employed and hence, he would not be entitled to last 3/6

drawn wages. The appellants have also not produced any document with regard to the gainful employment of the first respondent/employee, whereas, the first respondent/employee has filed an application being W.M.P.No.20708 of 2017 in W.P.No.24364 of 2016, wherein, at paragraph no.6, he has categorically stated as follows :

When the first respondent/employee has fulfilled the criteria laid down under Section 17-B of the Act, he would be entitled to last drawn wages till the disposal of the writ petition or till the date of death before superannuation or till the date of superannuation, in case the writ petition is not disposed of. Hence, we are of the view that there is no error in the order of the learned single Judge in directing the Management to pay the last drawn wages in terms of Section 17-B of the Act mentioned supra with effect from 13.07.2016. In case, the first respondent/employee is reinstated, he will be entitled to be paid on par with his counterparts. 4/6

In the result, this intra court appeal is dismissed. No costs. Connected C.M.P. stands closed.

(S.V.N.,J.) (K.R.S.,J.) 14-06-2023 cad To The Presiding Officer Central Government Industrial Tribunalcum-Labour Court Chennai 5/6

S.VAIDYANATHAN, J.

and K.RAJASEKAR, J.

cad W.A.No.1201 of 2023 14.06.2023 6/6