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2024 DIGILAW 1398 (AP)

Regional Manager v. Kareti Tirupathi

2024-10-03

K.MANMADHA RAO

body2024
ORDER : This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus calling for records relating to order in M.P.No.3 of 2015, dated 29.01.2020 on the file of the Industrial Tribunal-cum-Labour Court, Guntur and quash the same in so far as it went against the petitioners corporation as illegal, arbitrary, null and void and pass such other orders....” 2. Heard Mr. Solomon Raju Manchala, learned counsel for the petitioner; Mr. N. Sriram Murthy, learned counsel for the 1st respondent and Mr. T. Balaji, learned Standing Counsel for the respondents 2 and 3. 3. The petitioners herein are the respondents 1, 2, 5 and 6; 1st respondent herein is the petitioner; respondents 2 and 3 are the respondents 3 and 4 in M.P.No. 3 of 2015 on the file of 4th respondent herein (in short ‘the Tribunal’) 4. The precise case of the petitioner is that the 1st respondent herein filed a petition before the tribunal under Section 33-C(2) of the Industrial Disputes Act, 1947 to compute due amount of Rs. 9,70,755/- towards EPF encashment of Earned Leave for 15 days in 2008-09, encashment of Earned Leaves for 60 days on attaining the age of superannuation, difference of SRBS amount and two 12 years special grade increments, on completion of every 12 years of service and difference of Provident Fund amount. The tribunal rightly stated that if the claim of the workman is not based on a preexisting right and which may appropriately be made subject matter of an industrial dispute in a reference under Section 10 of the I.D.Act and the Tribunal has no jurisdiction to adjudicate such a claim made under Section 33- C(2) of the I.D.Act, the tribunal held that the petitioner is not maintainable. With regard to encashment of 60 days earned leaves, the tribunal held that the 1st respondent is entitled for Rs. 57,244/- and with regard to 15 days earned leave for 2008 and 2009, the tribunal held that he is entitled for Rs. 19,052/-. With regard to SRBC amount, difference of provident fund amount and special grade increments, the tribunal dismissed in favour of the petitioners. 57,244/- and with regard to 15 days earned leave for 2008 and 2009, the tribunal held that he is entitled for Rs. 19,052/-. With regard to SRBC amount, difference of provident fund amount and special grade increments, the tribunal dismissed in favour of the petitioners. The present Writ Petition came to be filed assailing the order dated 29.01.2020 passed in M.P.No.3 of 2015 by the learned Tribunal in allowing in part, directed the petitioners herein to pay an amount of Rs. 76,296/- with interest at 6% p.a from the date of petition till payment or realization. 5. During hearing learned counsel for the petitioner vehemently contended that the tribunal erred in not considering the fact that the claims of the 1st respondent are with regard to computation of due amount of Rs. 9,70,755/- towards EPF encashment of Earned Leave for 15 days in 2008- 2009, encashment of Earned Leave for 60 days on attaining the age of superannuation, difference of SRBS amount and two 12 years special grade increments, on completion of every 12 years of service and difference of Provident Fund amount, but the tribunal granted relief of payment of Rs. 76,296/- with interest only and rest of claims were dismissed, as such it is clearly established that there is no pre-existing right to the 1st respondent. It is further contended that the tribunal ought to have appreciated the fact that as per Circular No.PD-19/10, dated 24.04.2010, the employees are permitted on cessation of service to encash earned leave to a maximum limit of 300 days with effect from 24.04.2010, but the date of retirement of 1st respondent is 28.02.2010 as such he is not entitled for encashment of 60 days earned leave. 6. It is further contended that the tribunal ought to have appreciated the fact that as per Notification dated 10.11.2010 for payment towards encashment of earned leaves for 2008 and as per Notification dated 28.10.2011 for 2009 subject to conditions, the employees, who are on rolls are eligible to receive encashment of earned leave, but the date of retirement of the 1st respondent is 28.02.2010 as such the 1st respondent is not entitled for encashment of 15 days of earned leaves for 2008 and 2009. Therefore, requested to allow the writ petition by setting aside the order of the tribunal. 7. Therefore, requested to allow the writ petition by setting aside the order of the tribunal. 7. Per contra, the 2nd respondent filed counter-affidavit and mainly contended that the EPFO does not recognize or identify its members directly, but the basic records of the members and their EPF accounts are maintained on the basis of mandatory returns submitted by the employers of the establishments. The petitioners including all its branches have been granted exemption from operation of the EPF Scheme. The 2nd petitioner being the Chief Executive Officer of APSRTC, has been authorized to maintain a Provident Fund Trust and manage the EPF contributions for the employees of the corporation under the said Trust. It is further contended that the Pension Fund contributions for the employees of the Corporation are deposited with the 2nd respondent and accordingly the 2nd respondent has the obligation to sanction monthly pension to the employee on receipt of the application in prescribed format issued by the principal employer i.e petitioners herein. Accordingly, the 1st respondent had made application for Pension claim and this respondent has sanctioned the monthly pension vide Monthly Pension Payment Order (MPPO) No. GR/GNT/37317, dated 17.01.2012 and this respondents paying the pension amount of Rs. 5,036/- per monthly regularly. Therefore, requested to dismiss the writ petition. 8. Perused the record. 9. The petitioners filed I.A.No.2 of 2024 seeking stay of attachment order dated 10.07.2024 in E.P.No.392 of 2022 in M.P.No.3 of 2015 on the file of District Judge, Ongole. The E.P was allowed and issued movable attachment against Bus bearing No. AP 27 Z 0074 belongs to the respondents/J.Drs 1, 2, 5 and 6 therein, who are the petitioners herein, on payment of process. Therefore, this Court considering the fact that the arguments commenced, therefore directed the 1st respondent not to proceed further till attains finality of this writ petition. 10. Learned Standing Counsel for the petitioner has placed on record the order passed by the learned Single Judge of this Court dated 23.01.2024 in W.P.No.24248 of 2005 and submitted that this matter is squarely covered by the said order and hence requested this Court to consider the same and pass appropriate order in this writ petition also. 11. The order of this Court dated 23.01.2024 in W.P.No.24248 of 2005 reads as follows:- “7. 11. The order of this Court dated 23.01.2024 in W.P.No.24248 of 2005 reads as follows:- “7. In the case on hand, the award of reinstatement granted only continuity of service and did not grant all consequential benefits. Therefore while exercising powers under Section 33-C(2), the Labour court, Guntur committed legal error in granting notional increments which were not available under law to the employee/ respondent No.1 herein. A writ of certiorari is maintainable if the order of the Labour court is perverse or the approach of the Labour court is erroneous at law. The writ petitioner is right in contending that the impugned order of the Labour court is erroneous at law. Hence, this point is answered in favour of the writ petition and against respondent No.1” 12. Learned Standing Counsel for the petitioners would contend that in the light of decision supra, the 1st respondent is not entitled to claim relief and requested to allow the writ petition. 13. Whereas, learned counsel for the respondents has placed on record the decision of the Division Bench of composite High Court at Hyderabad in “A.P.State Textile Development Corporation Ltd., Hyderabad v. Presiding Officer, Hon’ble Labour Court, Guntur District and Others, 2013(1) ALD 423 (DB)”, wherein it was held as follows:- “27. From the aforesaid discussion, the dispute as to whether the appellant is an employer of the respondents stood well established. When once it is established that the respondents are employees of the appellant Corporation, and their salaries are being paid on par with the employees of the Corporation from out of the funds allotted by the Government, the employees, as a matter of right, are entitled to revised pay scales. It is a right which gets accrued and cannot be disputed by the employer. Therefore, the Labour Court will get jurisdiction to entertain an application filed under Section 33-C(2) of the Act”. 14. Further, he relied on a decision of Full Bench of this Court in “Bharathi Velu Bus Service and Employees State Insurance Corporation Officer, Labour Court, Guntur”, 1985 LawSuit (AP) 106 wherein it was held as follows:- “31. From what is stated above and the preponderance of judicial opinion on the subject, the following points emerge. 1. 14. Further, he relied on a decision of Full Bench of this Court in “Bharathi Velu Bus Service and Employees State Insurance Corporation Officer, Labour Court, Guntur”, 1985 LawSuit (AP) 106 wherein it was held as follows:- “31. From what is stated above and the preponderance of judicial opinion on the subject, the following points emerge. 1. Both the Payment of Wages Act as well as the Industrial Disputes Act as well as the Industrial Disputes Act are special enactments and as such the principle “generalia specialibus non derogant” is not applicable. 2. The remedies provided under S.15 of the Payment of Wages Act as well as S.33-C(2) of the Industrial Disputes Act are independent and alternative and one does not exclude the other. 3. The remedy under S. 33-C(2) of the Industrial Disputes Act is wider in scope and more favourable to the workman than the remedy under S.15 of the Payment of Wages Act. 4. When a workman is governed by the provisions of both the Payment of Wages Act as well as the Industrial Disputes Act, it is open to him to avail either of the remedies provided under those Acts. 5. A claim barred by time under S.15 of the Payment of Wages Act can be entertained under S.32-C(2) of the Industrial Disputes Act, 1947. .......xxxxxx 39. On the basis of the legal position emerging from the various decisions of the Supreme Court as well as this Court we have to decide whether mere denial by the employer of the right of the employee to the wages ousts the jurisdiction of the Labour Court. It is an admitted fact that during the period 19th December, 1970 to 11th October, 1973 there was no order of suspension pending enquiry against the workman nor was any order of termination passed against him. It was casually stated that the employee abandoned the service on the date of accident and did not report for duty thereafter. This plea appears to have been taken for objection sake only. The Labour Court rejected the plea as one without substance. Thus the relationship of employer and employee continued between the appellant and the first respondent during the said period. There was also no denial by the employer of the fact that the appellant was entitled to the wages for the said period if he continued to be an employee of the first respondent. Thus the relationship of employer and employee continued between the appellant and the first respondent during the said period. There was also no denial by the employer of the fact that the appellant was entitled to the wages for the said period if he continued to be an employee of the first respondent. In such a case, if there was denial by the employer of the right of an employee to receive wages which he was entitled to under a statute, by such mere denial the jurisdiction of the Labour Court to enquire into the matter will not be excluded. What all the Labour Court to enquire into the matter will not be excluded. What all the Labour Court had to do in such a situation was to enquire into the question whether the workman had an existing right to wages or not. In the instant case the Labour Court did only that an had rightly enquired into the jurisdictional fact as to the existence of the workman’s right to claim wages and thereafter held that the appellant as an employee of the first respondent was entitled to the wages claimed by him from 19th December, 1970 to 11th October, 1973. In such a case we do not find substance in the contention of the learned counsel for the appellant that the Labour Court exceeded its jurisdiction. .......xxxxxx 41. For the reasons stated above, we hold that neither the provisions of the Payment of Wages Act nor the mere denial by the management of the right of a workman to receive money ousted the jurisdiction of the Labour Court under S.33-C(2) of the Industrial Disputes Act. The Labour Court has decided the matter in accordance with law and its order is not vitiated by any error of law. The judgment of the learned single Judge is therefore, set aside and the order of the Labour Court is confirmed.” 15. Section 33-C(1) of I.D Act, it is made clear that where any money is found due to a workman under settlement or an award from an employer or under the provisions of Chapters IV-A and VB, the workman or any person authorized on his behalf can make an application to the appropriate Government for recovery of the money due. Section 33-C(1) of I.D Act, it is made clear that where any money is found due to a workman under settlement or an award from an employer or under the provisions of Chapters IV-A and VB, the workman or any person authorized on his behalf can make an application to the appropriate Government for recovery of the money due. If the appropriate Government is satisfied that any money is due, it shall issue a certificate to the concerned and who shall proceed to recover the same in the manner as arrears of land revenue. It is clear from Section 33-C(2) where a workman is entitled to receive any money or benefit from his employer capable of being computed in terms of money and the question arises as to the amount of such money due or the amount at which such benefit is to be computed, such questions have to be decided by the labour court. 16. As per Circular dated 24.04.2010 issued by the Corporation, permitted retired employees of APSRTC, to encash earned leaves up to 300, and it was issued on 24.04.2010 and the 1st respondent admittedly retired from service on 28.02.2010. But before issuance of said Circular by the Corporation, already Reg. 34 of Leave Regulations, 1963, was amended, whereunder the encashment of earned leaves was enhanced from 240 days to 300 days and by the date of Circular dated 17.08.2007, the 1st respondent was in service. Therefore, the enhancement of earned leaves from 240 days to 300 days effected under Circular dated 17.08.2007, amending Reg.34 of Leave Regulations 1963, governs the case of the petitioner on the date of his retirement and not the notification issued in Circular dated 24.04.2010 for the retired employees. But the 1st petitioner though Regulation 34 of leave Regulations 1963 was amended prior to retirement of the 1st respondent with effect from 17.08.2007 and not permitting him to surrender 300 earned leaves appears to be incorrect, as the notification dated 24.04.2010, has no application to him. The 1st respondent at the time of his superannuation had 431 of earned leaves in his account. Therefore, as amended regulation the 1st respondent is entitled to encash 300 earned leaves, and as he was allowed to encash only 240 of earned leaves, thus the 1st respondent is entitled for encashment of remaining 60 days of earned leave available in his leave account. Therefore, as amended regulation the 1st respondent is entitled to encash 300 earned leaves, and as he was allowed to encash only 240 of earned leaves, thus the 1st respondent is entitled for encashment of remaining 60 days of earned leave available in his leave account. The same is also observed by the tribunal in its order and granted an amount of Rs. 57,244/- towards encashment of 60 days earned leave basing his salary particulars. 17. It is a fact that admittedly the 1st respondent did not apply for encashment of earned leaves and basing on this the petitioners contended as the 1st respondent failed to encash earned leaves in 2008 and 2009, he is not entitled for encashment of earned leaves subsequently on his retirement. 18. The 1st respondent joined as Conductor in 1975 and he retired from service on 28.02.2010 as Superintendent with the petitioners, therefore he is entitled for Special Grade Promotion increment on completion of every 12 years, which was not sanctioned to him. As per settled rule any employee who works in the same post for a period of 6 years, 12 years and 20 years without promotion, he is entitled for special grade increment on completion of 6 years, 12 years and 20 years of service in the same post. The 1st respondent admitted that when he was working as ADC in 1990, he was granted special grade increment. The tribunal held that when there is insufficient evidence with regard to his working in a particular post for 12 years without getting promotion, it is very difficult to hold that he is entitled for 12 years two special grade increments, just because he rendered 35 years of service with the petitioners. Therefore rejected the two special grade increments and allowed the petitioner in part. 19. Having regard to the facts and circumstances of the case, upon perusal of the entire material on record and considering the submissions of both the counsel, this Court opines that the learned tribunal rightly answered the points in its order and is in accordance with law. Hence, interference of this Court is unwarranted. 20. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. 21. The miscellaneous applications pending, if any, shall also stand closed.