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1990 DIGILAW 153 (MAD)

The Dharmapuri District Co-operative Sugar Mills Ltd. Rep by its Special Officer v. S. V. Ramamurthi Madras

1990-02-14

A.S.ANAND, RAJA

body1990
Judgment :- NAINAR SUNDARAM, J. 1. This writ appeal is directed against the order of the learned single Judge in W.M.P. 16088 of 1989 in W.P. 5264 of 1982. To appreciate the points raised in the writ appeal, it becomes necessary to refer to and delineate the proceedings preceding the order which came to be made by the learned single Judge of this Court. On 13-2-1975, the first respondent was appointed as Labour Welfare Officer in the services of the appellant. On 12.4.1976, pending disciplinary action, contemplated against the first respondent, the appellant suspended the first respondent. The disciplinary action was proceeded with and ultimately on 14.7.1976, the first respondent was given the order of dismissal from service. As enabled by R. 6 (2) of the Tamil Nadu Factories (Welfare Officers) Rules, 1953, hereinafter referred to as the Rules, the first respondent preferred an appeal to the second respondent. On 15.6.1977, the second respondent dismissed that appeal. The first respondent filed W.P. No. 2199 of 1977 challenging that order of the second respondent. On 24.8.1977, W.P. No. 2199 of 1977 was allowed. The appellant was obliged to file W.A. No. 107 of 1980 and that writ appeal was disposed of on 26.3.1980 giving directions. Pursuant to the directions in W.A. No. 107 of 1980, the second respondent took up the matter once again and passed orders on 31.5.1981, allowing the appeal of the first respondent. The appellant filed W.P. No. 5264 of 1982, challenging the order of the first respondent dated 31.5.1981. Pending W.P. No. 5264 of 1982, the appellant filed W.M.P. No. 8163 of 1982 for stay of the operation of the order of the first respondent dated 31.5.1981. On 20-7-1982, an order of interim stay was granted pending further orders. On 5.8.1982, the interim stay granted on 20-7-1982 was made absolute in the following terms : “1. That on condition of the petitioner, deposting a sum of Rs. 25000 (Rupees Twenty Five Thousand only) before the Commissioner of Labour. Madras, (1st respondent herein) within four weeks from this date , the interim stay granted in and by the order of this Court dated 20-7-1982 and made herein shall be made absolute and that the order of the 1st respondent in his proceedings No. P1/24055/80 dated 31-1-1981, shall continue to be stayed, pending W.P. No. 5264 of 1982, on the file or the High Court, and 2. That on such deposit, as stated in Cl.(1) supra , the second respondent herein is permitted to withdraw the same on furnishing security to the satisfaction of the Commissioner of Labour. Madras (first respondent herein)” The amount got deposited by the appellant as per the directions given on 5.8.1982 in W.M.P. No. 8163 of 1982 The first respondent did not draw the amount deposited after furnishing security. On the other hand, he filed W.M.P. No. 1090 of 1983 to modify the order dated 5.1.1982 in W.M.P. No. 8163 of 1982. W.M.P. No. 1090 of 1983 was disposed of on 14.2.1983 in the following terms : “This is a petition to modify the order passed on 5.8.1982 in W.M.P. No. 8163 of 1982, enabling the petitioner herein to withdraw the sum of Rs 25000 deposited by the petitioner in W.P. No. 5264 or 1982, with the Commissioner of Labour, Madras. The amount has been deposited by the first respondent. The petitioner now wants a modification of the earlier order in such a manner as to enable him to withdraw the amount on his furnishing personal security. The learned counsel for the first respondent states t hat his clients have instructed him that it is necessary to take security before the petitioner is allowed to withdraw the sum of Rs. 25000. In view of the fact that the earlier order itself states that the amount can be withdrawn only on furnishing security, I am not satisfied that any new ground has been made out to enable the petitioner to withdraw the amount on his own personal bond. Mr. A. Ramachandran, the learned counsel for the petitioner, states that in such event, the money can be directed to be deposited in a nationalised bank, so that the petitioner may get interest on the amount. I, therefore, direct the first respondent to withdraw the amount now lying in deposit in the office of the Chief Inspector of Factories, Madras, and deposit the same in a nationalised bank for a period of three years from today in recurring fixed deposit account. The amount will only be cashed afte r getting further orders from this Court or on the disposal or the writ Petition, whichever is earlier”. The order in W.M.P. No. 1090 or 1983 was implemented by the appellant depositing the sum of Rs. The amount will only be cashed afte r getting further orders from this Court or on the disposal or the writ Petition, whichever is earlier”. The order in W.M.P. No. 1090 or 1983 was implemented by the appellant depositing the sum of Rs. 25,000 in the nationalised bank in the name of the third respondent herein. On 23.6.1989, W.P. No. 5254 of 1982 was dismissed. The first respondent took W.P. No. 16088 of 1989 after the disposal or W.P. No. 5264 of 1982 prayihg for a direction to the third respondent to cash the deposited amount in the nationalised bank and pay it over to the petitioner/second respondent either directly or through the second respondent, the Dharmapuri District Co-operative Sugar Mills Limited, Palacode, Dharmapuri District. In the affidavit filed in support of W.M.P. No. 16088 of 1989, the first respondent after referring to the orders passed in the applications pending the writ petition stated as follows : “I submit that the writ petition is dismissed and the said amount deposited towards my back pay is due to me. As the above writ petition has been dismissed on 23rd June, 1989, the order of the second respondent herein directing my reimbursement with the back pay, continuity or service, etc, has been confirmed. I have become entitled to the said amount in deposit of the said nationalised bank. An amount of Rs. 25000/- plus Interest thereon amounting about Rs. 42.000/- is lying in the bank. The back pay due to me according to the order of the second respondent will be around Rs. 42,000/- I am therefore entitled to the said amount in the bank deposited in partial satisfaction of the back pay to me”. It is claimed by the learned counsel for the appellant that though time for filing a counter to this application was asked for, that request was not acceded to by the learned single Judge and the learned counsel appearing for the appellant before the learned single Judge was obliged to make only submissions to rebut the prayer of the first respondent in W.M.P. No. 16088 of 1989. That application has been countenanced by the learned single Judge and this writ appeal, as already noted above, is directed against that order of the learned single Judge. 2. In the grounds of writ appeal, the contentions raised, and which are being pressed forth by Mr. That application has been countenanced by the learned single Judge and this writ appeal, as already noted above, is directed against that order of the learned single Judge. 2. In the grounds of writ appeal, the contentions raised, and which are being pressed forth by Mr. Vijay Narain, learned counsel for the appellant are as follows;— (1) Once the writ petition has been finally disposed of the Court has no jurisdiction to grant any further relief. (2) The amount was deposited only as a condition precedent for the grant of stay and it has nothing to do with the rights and claims of the first respondent depending on the final order to be passed in the writ petition. The compliance with the conditions is only for the purpose of obtaining the benefit of stay, when the writ petition is dismissed, it would not follow as a consequence that the amount deposited should be straightaway disbursed to the first respondent without adjudication of his claims through proper forum. The settlement of the claims of the first respondent for back wages could be done only in appropriate proceedings under the Industrial Disputes Act, 1947, hereinafter referred to as the Act, and that the appropriate proceedings could be under S. 33 C (2) of the Act, and this Court will be in order to decide that issue by way of an application and that too after the disposal of the main writ petition itself. (3) Supplementing the second contention, it is stated that if proceedings under S. 33 C (2) of the Act were resorted to, it would have been demonstrated by proper evidence that the first respondent was gainfully employed during the relevant period and taking note of that feature, no amount or a much less amount could have been found due to the first respondent and by permitting the first respondent to take away the amount deposited by way of interim measure and for the purpose of obtaining stay, the legitimate judicial process has been short circulated; and the rights and remedies of the appellant have been stifled. 3. 3. The first point urged by the learned counsel for the appellant, namely the competence of this Court to pass orders and give directions after the disposal of the main writ petition, obliged this Court to give notice to the Advocate General and the Presidents of the Advocates Association, Bar Association and Women Lawyers Association to make their stay in the matter, since this question is likely to arise often in other matters also. That is how, we find, apart from the learned counsel appearing for both sides in this writ appeal, representatives are thereon behalf of the concerned associations. Learned counsel appearing for the first respondent and as well as the representatives of the concerned associations, submit that the jurisdiction of this Court under Art. 226 of the Constitution of India need not be scuttled down, so as to say it will cease to have power to make appropriate orders and give appropriate directions even after the main writ petition gets disposed of, when the facts and situations in individual cases warrant the same. We also found that Mr. Vijay Narain, learned counsel appearing for the appellant, did not seriously press forth this point by expetiating the same and bringing to our notice any authority binding on us, on this point. Hence, there is no need to settle the controversy in this Writ Appeal, adverting to and answering this point one way or the other and it will be in order to go further, to deal with the other points. Thus, we proceed to the other points. 4. Points 2 and 3 can be taken up together. There was a need for the appellant to ask for stay of the order of the first respondent. Otherwise, the appellant would have been obliged to reinstate the first respondent in implementation of the order of the second respondent. For the indulgence of stay, as asked for by the appellant, he was initially directed to deposit a sum of Rs. 25,000 with the second respondent and the first respondent was permitted to withdraw the same, only after furnishing security. The direction to furnish security had a purpose to serve. If the first respondent should have withdrawn the amount after furnishing security and if ultimately the Writ Petition should have been allowed reimbursement by the appellant would have been feasible. 25,000 with the second respondent and the first respondent was permitted to withdraw the same, only after furnishing security. The direction to furnish security had a purpose to serve. If the first respondent should have withdrawn the amount after furnishing security and if ultimately the Writ Petition should have been allowed reimbursement by the appellant would have been feasible. The first respondent could not furnish the security and withdraw the amount and he wanted a modification of the order. That modification was accorded and the amount was directed to be held by the third respondent in a Nationalised Bank. With regard to back wages, there was no adjudication over the same at any relevant point of time. The result of the order of dismissal of the Writ Petition is the order of the second respondent gets confirmed. That will only leave the parties to work out their rights and they have not been settled at all. The proper process would be the provisions under the Act, even if no other process is available to the first respondent in law. If such a process is resorted to, there will be opportunity for the appellant to contest the same and demonstrate that the first respondent was employed elsewhere making an earning during the relevant periods and he would not be eligible for back wages, as claimed by him, and no amount or in any event a lesser amount alone could be claimed. How the learned single Judge viewed the matter can be gathered from paragraph 6 of his order. “Learned counsel for the petitioner states that even on a rough calculation, the back wages payable to the petitioner would be more than a lakh of rupees and, therefore, there cannot be any denial of his right to obtain even the marginal benefit of Rs. 4???,000/- towards arrears of salary. The contention of the respondent that the remedy of the petitioner is to approach the Court with an application under section 33-C (2) of the Industrial Disputes Act. That need not necessarily be resorted to when the matter was seized of by this court in a writ petition and the relief now sought for is only a consequential relief. The contention of the respondent that the remedy of the petitioner is to approach the Court with an application under section 33-C (2) of the Industrial Disputes Act. That need not necessarily be resorted to when the matter was seized of by this court in a writ petition and the relief now sought for is only a consequential relief. Therefore, as an interim measure, a direction will issue to the first respondent to cash the amount deposted by it in the Nationalised Bank and pay it over to the petitioner herein within a period of two weeks from the date of receipt of a copy of this order. The first, respondent would certainly be entitled to adjust the amount so paid towards any amount that the may be payable to the pet itioner herein. This petition is ordered accordingly”. 5. We cannot subscribe our support to the above view of the learned single Judge. It is a question of the first res pondent resort ing to the proper process and the appellant contesting the same and the parties placing their evidence on the question and a proper adjudication being rendered over the same by the concerned forum seized of the matter. We cannot envisage this Court functioning as that forum, especially when the dispute is thick over the question. This obliges us to countenance points 2 and 3, urged by the learned counsel for the appellant. As a result, we are obliged to allow this writ appeal. 6. At this juncture, we are obliged to deal with a preliminary objection raised by Mr. O.V. Baluswami, learned counsel for the first respondent, with regard to the very maintainability of the writ appeal, as against the order of the learned single judge. According to the learned counsel the order of the learned single judge under Art. 226 of the Constitution of India is not one, which could come withtn the purview of Cl.15 of the Letters Patent of this Court, so as to enable the filing of a writ appeal to a Bench of this Court. According to the learned counsel the order of the learned single judge under Art. 226 of the Constitution of India is not one, which could come withtn the purview of Cl.15 of the Letters Patent of this Court, so as to enable the filing of a writ appeal to a Bench of this Court. This question is no longer res integra In Umaji v. Radhika 1 , which dealing with the question as to whether an appeal lies under Cl.15 of the Letters Patent of the High Court of Bombay to a Division Bench of that High Court from the judgment of a single Judge of that High Court in a petition filed under Art. 226 of the Constitution of India, the answer given is in the affirmative. It must be remembered that the Letters Patent of the High Court of Bombay are mutatis mutandis on the same terms with minor variations, mostly by way of amendments subsequently made. Same is the view taken in Pusikar Nath v. Administrator Sri Nagar Municipality 2 with reference to Cl.12 of the Letters Patent-Jammu and Kashmir. Learned counsel for the first respondent would draw our attention to the decision in Shah Badulal Khimji v. Jayaben D. Kania and another . 3 There, this question was not at all raised before the Supreme Court for expressing any opinion and it has been specifically stated that the learned judges of the Supreme Court have refrained from expressing any opinion over the same. Hence, we reject the preliminary objection raised by the learned counsel for the first respondent with reference to the maintainability of this writ appeal. Thus, we are obliged to allow and we accordingly allow this writ appeal and set aside the order of the learned single Judge in W.M.P. 16088 of 1989 in W.P. 5264 of 1982. We make no order as to costs.