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2002 DIGILAW 1060 (JHR)

K. P. Sanyal v. Ferro Scrap Nigam Limited

2002-09-23

M.Y.EQBAL

body2002
JUDGMENT M.Y. Eqbal, J. 1. In this writ application, the petitioner has prayed for issuance of an appropriate direction upon the respondents for payment of salary for the period 1.1.1988 to 15.7.1993 together with interest and other benefits. 2. The facts of the case lies in narrow compass. The petitioner was in the service of M/s, Hackett Engineering Company Ltd.. Jamshedpur. While he was in service a dispute arose and reference under Section 10(1)(d) of the Industrial Disputes Act. 1947 was made to the Labour Court, Jamshedpur. During the pendency of the reference the whole of the business of M/s. Heokett Engineering Company was put -chased by the respondent M/s. Ferro Scrap Nigam Limited by an agreement dated 27th June. 1979. The Labour Court passed an award and held that the termination of the services of the petitioner by way of punishment was not justified. The Labour Court further held that in view of the fact that M/s. Heckett Engineering Company had transferred its interest to M/s. Ferro Scrap Nigam Limited, the erstwhile employer cannot terminate the services of its employee-petitioner. However, Labour Court directed to pay a sum of Rs. 15,000/- to the petitioner as compensation. The petitioner challenged the aforesaid award in CWJC No. 1341/83 (R) by which the Labour Court refused to pass an order of his reinstatement. The erstwhile employer M/s. Heckett Engineering Company also filed CWJC No. 43 of 1984 by which the labour Court held that the termination of the services of the petitioner was not justified. Nigam also filed CWJC No. 40/84 (R) challenging the validity of the order of the labour Court by which it was made a party in the reference. All these three writ petitions were heard and disposed of by a Bench of the Patna High Court in terms of judgment dated 23.8.1988. The High Court upheld the finding of the labour Court that the termination of the services of the petitioner was not justified. The High Court further held that the petitioner would be entitled to all the benefits of the service except financial benefit. However, the petitioner shall be paid a consolidated sum of Rs. 10,000/- by the Nigam. 3. It appears that against the aforesaid judgment petitioner filed LPA No. 76/ 88 (R) and respondent No. 1 filed LPA No. 68/88 (R). Both these appeals were heard and disposed of together by common judgment dated 29.1.1993. However, the petitioner shall be paid a consolidated sum of Rs. 10,000/- by the Nigam. 3. It appears that against the aforesaid judgment petitioner filed LPA No. 76/ 88 (R) and respondent No. 1 filed LPA No. 68/88 (R). Both these appeals were heard and disposed of together by common judgment dated 29.1.1993. A Division Bench of the Patna High Court dismissed these appeals and affirmed the judgment passed by the learned single Judge of the Patna High Court. After dismissal of the aforementioned appeals the petitioner was reinstated in service on 16.7.1993 by office order dated 7.9.1993 issued by the respondent M/s. Ferro Scrap Nigam Limited. 4. In para 11 of the writ petition the petitioner has admitted that he was reinstated w.e.f. 16.7.1993 and he was also paid the consolidated amount of Rs. 10,000/-. Now the petitioner claims that he is entitled to the salary for the period January, 1988 to July, 1993. It is stated that the petitioner filed several representations to the Nigam for payment of salary for the aforementioned period but nothing was done. 5. The case of the respondent Nigam in the counter-affidavit is that after the judgment was delivered by the learned single Judge of the Patna High Court in 1988 the petitioner never tried to join the service nor any attempt was made for his joining. Moreover, the petitioner admittedly did not work in between the period 1988-1993. Only after disposal of the Letters Patent Appeal in 1993 the petitioner made an application and that too after 3 months requesting the Nigam to allow him to join and in response thereof the petitioner was immediately reinstated in service. It is further stated that even in the letters patent appeal the petitioner had not made any grievance in relation to the order of interim stay passed by the Court. Lastly it is stated in the counter-affidavit that the petition on his own volition did not want to join his duty as he had already filed LPA and civil review application against the judgment passed by the single Judge regarding back-wages. 6. I have heard Mr. B.B. Sinha, Sr. Counsel, appearing on behalf of the petitioner and Mr. M.M. Banerjee learned counsel appearing on behalf of the respondent. 7. 6. I have heard Mr. B.B. Sinha, Sr. Counsel, appearing on behalf of the petitioner and Mr. M.M. Banerjee learned counsel appearing on behalf of the respondent. 7. Having regard to the facts of the case and the submissions made by the learned counsel appearing for the parties the only question that falls for consideration is as to whether the petitioner is entitled to salary and other benefits for the period 1.1.1988 to 15.7.1993, As noticed above against the award of the labour Court the petitioner filed CWJC No. 1341/83 (R). The said writ petition was disposed of on 23.8.1988. Para 16 of the judgment is reproduced hereinbelow : "For the reasons aforesaid, and in view of the fact that Heckett had transferred its business to Nigam, there shall be an award of reinstatement of Sanyal by the Nigam. But there shall be no award for back wages from the date of termination of his services till the date of the award, i.e. 17.8.1970 to 16.5.1983. Normally there should be an order of payment of salary to Sanyal for the period thereafter at the rate last, drawn by him when his services were terminated, but in the circumstances of these cases. It is ordered that upto December. 1987. the Nigam will pay a consolidated sum of Rs. 10,000/-(Rupees Ten thousand) to Sanyal. but no compensation will be payable by Heckett to Sanyal. In view of the fact that the order of termination of the services of Sanyal is non est, he shall be deemed to be in service all throughout and he shall be entitled to all the benefits except financial as identification above upto December, 1987. With the above observations, all the three writ petitions are disposed of. There shall be no order as to costs." 8. The aforesaid judgment was challenged by the respondenl Nigam in LPA No. 68 of 1988 (R). A Division Bench by order dated 11.1.1989 admitted the appeal and passed an interim order of stay of the operation of the judgment dated 23.8.1988. That interim stay continued till the appeal was finally disposed of in terms of judgment, dated 29.1.1993. It is therefore clear that the judgment of the learned single Judge was stayed in appeal by the division bench. That interim stay continued till the appeal was finally disposed of in terms of judgment, dated 29.1.1993. It is therefore clear that the judgment of the learned single Judge was stayed in appeal by the division bench. There was no question either for the petitioner to submit his joining or the respondent to reinstate the workman and allow him to join during the pendency of the appeal. As stated above after the disposal of the letters patent appeal the petitioner requested the respondents to allow him to join and accepting the request of the petitioner the respondent issued office order dated 16.7.1993. reinstating the petitioner in service and the petitioner thereafter superannuated on 31.8.1994. 9. Considering the aforesaid facts it is clear that after the dismissal of the letters patent appeal being LPA No. 68/88 (R) the judgment of the learned single Judge immediately came into effect and as per the said judgment the petitioner became entitled to be reinstated in service w.e.f. August, 1988. At the same time, admitted position is that petitioner did not work in between 1988 to 1993 for which he is claiming salary and other benefits. In my opinion, taking into consideration the entire facts and the sequence of events the petitioner is not entitled to full wages, perks and other benefits as claimed by him. But certainly he was entitled to be reinstated in 1988 by virtue of judgment passed by the learned single Judge but because of the stay of the operation of the judgment in appeal he could neither submit his joining nor the respondent was obliged to allow him to join the service and discharge duty. In that view of the matter, I am of the considered opinion that the petitioner is at least entitled to half wages last drawn by him when his service was terminated without any perks and other benefits. In my opinion, that will meet the ends of justice. 10. For the aforesaid reasons this writ application is allowed in part and the respondent is directed to make payment of half of the salary last drawn by him before his reinstatement for the period August, 1988 to June 1993. The petitioner will also be entitled to any other benefit admissible in law.