The Superintendent v. J. Malarkodi
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 08-06-2023
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE K.RAJASEKAR & C.M.P. No. 11878 of 2023 1.The Superintendent, Railway Mail Service, RMS 'M' Division, Chennai-600 008.
2.The Sub Record Officer, RMS 'M' Division, Gandhinagar, Vellore-632 006.
..Appellants Vs.
1.Ms.J. Malarkodi 2.The Presiding Officer, Central Government Industrial Tribunal- cum-Labour Court, Chennai.
..Respondents 1\6
Prayer: Writ Appeal as against the order, dated 16.08.2022, passed in W.M.P.No.21012 of 2017 in W.P.No.24371 of 2016, on the file of this Court.
For Appellants : Mr.M.Karthikeyan
JUDGMENT
(By S.Vaidyanathan,J.) This appeal has been preferred against the interim order, dated 16.08.2022, passed in W.M.P.No.21012 of 2017 in W.P.No.24371 of 2016, directing the Railways to pay the last drawn wages to the first respondent employee during the pendency of the Writ Petition.
2. The Labour Court has passed the Award as follows : "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 2\6
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 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.
17.
Accordingly the respondents are directed to reengage 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."
3.
For the sake of convenience, Section 17-B of the Industrial 3\6
Disputes Act,1947, in short, ''the Act'', is extracted below : ''17B. Payment of full wages to workman pending proceedings in higher courts.- Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: 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.''
4. The main contention of the appellants is that the Management has not filed counter to the miscellaneous petition and that the order under challenge has been passed by the learned Single Judge.
5. In the present appeal, there is no ground to the effect that the respondent employee is gainfully employed and hence she would not be 4\6
entitled to last drawn wages. The appellants have also not produced any document with regard to the gainful employment of the respondent employee, whereas, the respondent employee has filed an application being W.M.P.No.21012 of 2017 in W.P.No.24371 of 2016, wherein, in Paragraph No.6, she has categorically stated as follows :
6. When the respondent employee has fulfilled the criteria laid down under Section 17-B of the Act, she 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 employee is reinstated, she will be entitled to be paid on par with her counterparts. 5\6
S.VAIDYANATHAN,J.
AND K.RAJASEKAR,J.
nv
7. The Writ Appeal is, accordingly, dismissed. No costs. Consequently, the connected C.M.P. is closed. (S.V.N.J.) (K.R.S.J.) nv 08.06.2023 To The Presiding Officer, Central Government Industrial Tribunalcum-Labour Court, Chennai.
W.A.No.1169 of 2023 6\6