(Prayer: W.P.No.17669/2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, to call for the records connected with the order in C.P.No.417 of 2003 dated 13.7.2009 on the file of the first respondent and quash the same.
Prayer: W.P.No.20104 /2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, to call for the records connected with the order in C.P.No.419 of 2003 dated 13.7.2009 on the file of the first respondent and quash the same.
Prayer: W.P.No.20105/2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, to call for the records connected with the order in C.P.No.418 of 2003 dated 13.7.2009 on the file of the first respondent and quash the same.)
1. The petitioner in all these three writ petitions is one and the same company. They have come forward to file the present three writ petitions, challenging an order made by the first respondent Additional Labour Court, Vellore made in C.P.Nos.417/2003, 419/2003 and 418 of 2003 respectively.
2. The first writ petition (W.P.No.17669/2009) was admitted on 31.08.2009. Pending the writ petition, this Court granted an interim stay on condition that the petitioner Management deposits Rs.6,000/- before the first respondent Labour Court to the credit of the CP within a period of four weeks.
3. In the second and third writ petitions (W.P.Nos.20104 and 20105/2009), notice of motion was ordered on 06.10.2009 and an interim stay was granted without any condition.
4. It is seen from the records that the second respondent was engaged by the petitioner Management and their services were disengaged on account of the closure of the petitioner company with effect from 22.09.2002. They were also offered the compensation for closure and other dues payable by a letter dated 18.09.2002. The second respondent, thereafter, filed claim petitions claiming that they are entitled to get Earned Leave wages. In the case of the first writ petition, the claim was for 140 days, in the case of second writ petition, the claim was for 187 days and in the case of third writ petition, the claim was for 152 days.
5. Admittedly, the claim was made in terms of Section 79(5) of the Factories Act, 1948. The Labour Court took up those applications on file and issued notice to the petitioner Management. The Petitioner Management filed a counter statement stating that the contesting second respondents are not entitled to seek leave wages in excess of 30 days in accordance with the proviso to Section 79(5) of the Factories Act and therefore, their claim was not legally valid.
6. Before the Labour Court, in each of the claim petition, the contesting respondents examined themselves as witness and also marked a copy of the closure notice issued to them by the Management as Ex.P1. On the side of the petitioner Management, no oral evidence was let in. In the cross examination of the contesting respondents, it was suggested that they cannot seek more than 30 days of encashment of leave.
7. The Labour Court held that when other emloyees were granted earned leave wages without any ceiling, the contesting respondents are also eligible for the earned leave wages as prayed for by them. Though the Labour Court after referring to Section 79 of the Factories Act and noted the proviso to Section 79(5) held that the proviso cannot imply the scaling down of the statutory entitlement. Since the respondents had not let in any evidence to rebut the claim, the workmen are entitled for the amount.
8. In respect of the contesting respondents in W.P.Nos.20104 and 20105 of 2009, the Labour Court held that even though they were designated as Supervisor, they are workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and that finding is not contested by the counsel for the petitioner Management.
9. Therefore, the only question that arises for consideration is whether the proviso to Section 79(5) of the Factories Act restricts the encashment of earned leave only for 30 days and whether the Labour Court was right in ignoring the statutory limitation.
10. It is no doubt true that the proviso to Section 79(5) restricts the total number of days of leave that can be carry forward to succeeding year beyond 30 days but that provision will not apply to the present case. In this case, admittedly, the employer had closed the establishment by giving a closure notice and offered closure compensation. Therefore, even if workmen wanted to avail leave in a particular year, they would not have been able avail it and therefore, Section 79(11) will apply to the case on hand.
11. It is necessary to refer to Section 79(11) of the Factories Act, 1948, which is as follows:-
"If the employment of a worker who is entitled to leave under sub-section (1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken, and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day."
12. The question of encashment of leave due to forced non-employment came to be considered by the Division of the Mysore High Court in its decision in 1970 Lab.I.C.45 = AIR 1970 Mysore 1. In paragraph 8 to 10, it was observed as follows:-
"8. Now in this case by virtue of the previous award it has to be held that the entire period of non-employment of the petitioners from the date of unlawful termination till the date of reinstatement, was the result of wrongful act on the part of the employer.
The normal principle of law is that a person should not be permitted to take advantage of his own wrongful act, but that the person who is prejudicially affected by the said wrongful act should be compensated for or protected against the consequences of such wrong. The way of dealing with the situation is what the Labour Court has done while dealing with bonus, viz., to regard the petitioners to have been in service throughout as if the retrenchment had not taken place at all and to give them all the benefits flowing therefrom; two of the benefits - wages and bonus - have already been paid. The further benefit is that they have earned leave for the said period. More accurately the position would be that the period of enforced non-employment must be equated to period spent on duty and therefore the basis of calculating leave earned by and available to the petitioners.
9. To take the next step and ask for payment in cash described as "wages for leave" the petitioners must prove the further position, namely, that having asked for leave to which they were entitled the employer has refused them leave. There is no such case. The claim itself was for wages for earned leave and not for leave which was subsequently refused.
10. Hence, in the circumstances of the case, the proper thing to do would be to direct the first respondent employer to calculate by applying the provisions of Section 79 of the Factories Act. Leave earned by each one of
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the petitioners in respect of the period of enforced non-employment i.e from the date of retrenchment till the date of reinstatement and credit the same to the leave account of each one of them." 13. It is not a fit case where this Court is called upon to interfere with the order passed by the Labour Court, though the reason given by the labour Court may not be strictly legal and the Labour Court had omitted to refer to Section 79(11) and the closure of the establishment. It is a case where the workmen were prevented from enjoying the leave. The encashment has no relevance to the carry forward rule. 14. In the light of the above, there is no case made out. Accordingly, all the three writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed.