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Andhra High Court · body

2008 DIGILAW 617 (AP)

Govt. of A. P. v. K. Basavaiah

2008-08-05

L.NARASIMHA REDDY

body2008
JUDGMENT Identical questions arise for consideration in this three writ petitions. Hence, they are disposed of, through a common judgment. The persons arrayed as respondent No.1, in each of the writ petitions, are referred to as respondents 1, 2 and 3, respectively; for the sake of convenience. 2. Respondents 1 and 2 were appointed as Winch Operators, on daily wage basis, in the erstwhile A.P. State Construction Corporation Limited, (for short 'the Corporation'), and posted in the Nagarjuna Sagar Left Canal Unit, Khammam, in the years 1978 and 1977, respectively. The 3rd respondent was engaged similarly, as Pump Operator, in the same organization, in 1977. The Deputy General Manager of the Corporation terminated the services of the respondents, on 6-8-1979. The Corporation itself was wound up, at the relevant point of time. 3. Alleging that their termination is contrary to the provisions of the Industrial Disputes Act, 1947 (for short 'the Act'), and that several employees, who are juniors to them, were absorbed in the Government Departments, the respondents filed I.D. Nos. 146, 101 and 145 of 1990, respectively, before the Industrial Tribunal-cum- Labour Court, Warangal. The petitioners herein were impleaded as respondents 1 and 2 in the industrial disputes. Through separate awards, dated 26-5-1994, the Labour Court had set aside the order of termination and directed that the respondents be reinstated into service, by absorbing them in any government department or government Corporation, with continuity of service and back wages, with effect from the date on which, they approached the Labour Court. 4. The petitioners filed Writ Petition Nos. 2619, 3623 and 2888 of 1995, respectively, against the said Awards. The writ petitions were partly allowed, by a Division Bench of this Court, through separate orders, setting aside the Awards, to the extent they granted the benefit of back wages. The orders of this Court were confirmed by the Supreme Court. Several other employees, similarly placed as respondents 1, 2 and 3, have also approached the Labour Court, and identical awards were passed. The same result ensued before this Court. In some instances Contempt Cases were also filed, complaining that they were not reinstated into service. 5. After the proceedings assumed finality, the petitioners reinstated the respondents, into service. The latter, in turn, filed M.P.Nos. The same result ensued before this Court. In some instances Contempt Cases were also filed, complaining that they were not reinstated into service. 5. After the proceedings assumed finality, the petitioners reinstated the respondents, into service. The latter, in turn, filed M.P.Nos. 19, 16, and 17 of 2003, respectively, before the Labour Court, under Section 33-C (2) of the Act, claiming the wages from the date of publication of the awards, till the date of reinstatement, together with necessary allowances. It was pleaded that the Awards became enforceable, with the publication, and there was a corresponding obligation on the part of the petitioners to reinstate them into service, or to pay wages, in the corresponding scales, with necessary allowances. 6. The petitioners opposed the applications filed under Section 33-C (2) of the Act. According to them, it was not a case of reinstatement, straightaway,. but absorption into government service, and the publication of Awards, by itself, does not entail, in the obligation of the petitioners to pay the salary. Several other contentions, such as the pendency of the writ petitions before this Court, difference of the procedure, in the establishment, where the respondents were initially appointed and the department in which they came to be absorbed; were also urged. Through a common order dated 2-9-2005, the Labour Court partly allowed the applications, awarding a sum of RS.2,33,660/-, each, to the respondents. The same is challenged in these writ petitions. 7. The petitioners contend that the applications filed by the respondents under Section 33-C(2) of the Act are not maintainable in law. They repeat their contentions, advanced before the Labour Court. It is pleaded that, with the reinstatement of the respondents into government service, the nature of employment has undergone a change, and no relief can be claimed under the Act. 8. The respondents filed separate counter affidavits, opposing the writ petitions. They plead that the delay in their reinstatement was on account of the inaction of the petitioners, and they cannot be denied the wages from the date of publication of the Award. It is also pleaded that once continuity of service was granted, they are entitled to be regularized, and to be paid the regular scale of pay. 9. They plead that the delay in their reinstatement was on account of the inaction of the petitioners, and they cannot be denied the wages from the date of publication of the Award. It is also pleaded that once continuity of service was granted, they are entitled to be regularized, and to be paid the regular scale of pay. 9. Learned Government Pleader for Irrigation, submits that the claim of the respondents was not determined in any earlier proceedings, and as such, applications, under Section 33-C (2) of the Act, are not maintainable in law. He contends that publication makes an Award enforceable, and by itself, does not create an obligation on the part of the employer, to pay the wages from the date, on which it was done. He further submits that for quite some time, the matter was pending before this Court, and ultimately, the Awards were modified, denying back wages. He submits that in certain cases, which formed part of the batch, where contempt proceedings were initiated, this Court categorically held that the obligation to pay the wages would arise, only from the date of reinstatement. He raises an objection as to maintainability, from another point of view. He submits that an employee, in a government service can claim relief only by approaching the A.P. Administrative Tribunal, and not the Labour Court. 10. Sri A.K. Jayaprakash 'Rao, learned counsel for the respondents, on the other hand, submits that mere pendency of a writ petition, filed against an Award, does not relieve the employer, of his obligation to reinstate the employee. Placing reliance upon certain decided cases, learned counsel contends that the obligation to pay full wages arises, with the publication of the award. He contends that the power of a Labour Court, under Section 33-C (2) of the Act, is wide enough, and that it can even direct the regularization of the services of the workmen. 11. The respondents approached the Labour Court by instituting proceedings under Section 2-A(2) of the Act, aggrieved by their retrenchment. The Labour Court granted the relief of reinstatement into service, in the form of absorption into Government Department; continuity of service and back wages, with effect from the date on which, they presented the claims. 11. The respondents approached the Labour Court by instituting proceedings under Section 2-A(2) of the Act, aggrieved by their retrenchment. The Labour Court granted the relief of reinstatement into service, in the form of absorption into Government Department; continuity of service and back wages, with effect from the date on which, they presented the claims. The relief, to the extent of back wages was set aside by this Court in W.P.No. 2619 of 1995 and batch, and the judgment of this Court became final. The respondents approached the Labour Court by filing applications under Section 33-C(2) of the Act, claiming the wages from the date of publication of the Awards, till the date of reinstatement, together with necessary allowances. The arrears were claimed in terms of regular pay scales, and other allowances. The Labour Court allowed the claim of the respondents, except to the extent of HRA, additional HRA and CA, and quantified the benefit of RS.2,33,660/- for each employee. 12. The question, that arises for consideration in this batch of writ petitions, is, as to whether it was permissible for the Labour Court to grant such relief? 13. One of the vexed questions under the Industrial Disputes Act, has been, and continues to be, the scope and ambit of Section 33-C(2). On the one hand, it is compared to a remedy of execution of a decree, and on the other hand, the requirement of there being prior adjudication of the claim, is not insisted upon. It was held that even if a claim has not been adjudicated in an earlier set of proceedings, an application under that provision can be made, to enforce a right to receive the quantified amount. It was held that even if a claim has not been adjudicated in an earlier set of proceedings, an application under that provision can be made, to enforce a right to receive the quantified amount. The provision reads as under: "Section 33-C(2): Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months]: [Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]" 14. The judgment of this Court in Sirpur Paper Mills Ltd., v. Chairman, Industrial Tribunal-cum-Labour Court1 is not of immediate relevance, to the facts of the present case. The subject-matter of that writ petition was, the purport of Section 17-A and 17-B of the Act. In Sambandam v. Central Government Labour Court, a learned single Judge of the Madras High Court held that where the Labour Court passes an Award, directing reinstatement of an employee, with back wages, and the implementation thereof is stayed in a writ petition, the obligation to pay the back wages would arise with the dismissal of the writ petition, and it can be enforced under Section 33-C(2) of the Act. It was held that the employee cannot be denied back wages, for any period, on the ground that he is employed elsewhere. In the instant case, this Court categorically set aside the Awards in favour of the respondents, in so far as they granted back wages. The ratio of the said judgment, therefore, does not apply to the facts of this case. 15. The judgment rendered by a Division Bench of this Court in A.P.S.R. TC. v. Eswara Dass, is in relation to the grant of pay scale to an employee, on completion of 240 days of continuous service, in an year. Such a claim was held to be permissible under Section 33-C(2) of the Act. 15. The judgment rendered by a Division Bench of this Court in A.P.S.R. TC. v. Eswara Dass, is in relation to the grant of pay scale to an employee, on completion of 240 days of continuous service, in an year. Such a claim was held to be permissible under Section 33-C(2) of the Act. Even this judgment has no direct bearing on the facts of the present case. 16. Two precedents relied upon by the learned counsel for the respondents have close relevance. In M.L. Bose and Co., v. Its Employees", the Supreme Court made an observation to the effect that after an Award becomes operative, the workman becomes entitled to be reinstated, and thereby, for full wages, from the date on which the Award became operative. A learned single Judge of this Court in Y.G. Krishna v. Additional Industrial Tribunalcum-Additional Labour Court, HyderabacJ5, has taken a similar view. Obviously, because the occasion did not arise in those cases, the plausible obstacles, in the matter of reinstatement of a workman, after the Award became enforceable; were not dealt with. Take for instance, a case where on being retrenched by an industry, an employee Award, directing reinstatement of an employee, with back wages, and the implementation thereof is stayed in a writ petition, the obligation to pay the back wages would arise with the dismissal of the writ petition, and it can be enforced under Section 33-C(2) of the Act. It was held that the employee cannot be denied back wages, for any period, on the ground that he is employed elsewhere. In the instant case, this Court categorically set aside the Awards in favour of the respondents, in so far as they granted back wages. The ratio of the said judgment, therefore, does not apply to the facts of this case. 17. Further, an application under Section 33-C can be maintained only in respect of such of the claims, as regards of which, there is no dispute, or there has been a former adjudication. The ratio of the said judgment, therefore, does not apply to the facts of this case. 17. Further, an application under Section 33-C can be maintained only in respect of such of the claims, as regards of which, there is no dispute, or there has been a former adjudication. Explaining the purport of Section 33-C(2) of the Act, the Supreme Court held in State Bank of India v. Ram Chandra Dubey as under: "Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being c9mputed in terms of money and which he is entitled to receive from his employer and is denied of such benefit, can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit, on one hand, and the right or benefit, which is considered just and fair, on the other hand, is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act, while the latter does not. It cannot be spelt out from the award in the present case, that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence, that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceedings. Further when a question arises as to the adjudication of a claim for back wages, all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement. a workman would be entitled. under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier. to find out whether the workman is entitled to back wages at all and to what extent. To state that merely upon reinstatement. a workman would be entitled. under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier. to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages." 18. This principle was reiterated by the Supreme Court in State of UP. v. Brijpal Singh, and U.P.S.R. T.C. v. Birendra Bhandari. The observations of the Supreme Court, that upon reinstatement, a workman would not be entitled to all his arrears of pay and allowances straightaway, and that for enforcement of the same, he has to seek reference under Section 10 of the Act; squarely applies to the facts of this case. 19. Learned counsel for the respondents has drawn the attention of the recent judgment of the Supreme Court in A.P.S.R. T.C. v. Vikram Reddy'. In that case, the Supreme Court directed that the employee is entitled to be awarded the wages from the date on which, the award became enforceable, to the date of reinstatement. That, however, was in view of the fact that the Award was not challenged by the employer. In the instant case, not only the Awards were challenged by the employer, but also a substantial relief was granted therein. 20. Another peculiarity of the instant case is, that the employer of the workmen ceased to exist, even by the time the industrial dispute under Section 25-F read with 2-A (2) of the Act came to be raised. The direction issued by the Labour Court was, that the employees be reinstated, by way of absorption in government departments. This process, naturally had taken its own time, and the publication of the awards, at the most, could have clothed the respondents to seek implementation, in the form of absorption. The situation cannot be compared to the one of reinstatement into service against a post held by the employee, when he was retrenched. 21. This process, naturally had taken its own time, and the publication of the awards, at the most, could have clothed the respondents to seek implementation, in the form of absorption. The situation cannot be compared to the one of reinstatement into service against a post held by the employee, when he was retrenched. 21. In view of the foregoing discussion, it emerges that the Labour Court mechanically allowed the applications, filed under Section 33-C(2) of the Act, without examining its purport, and not being conscious of the limitation of adjudication of the claims under it. The ratio laid down by the Supreme Court in State Bank of India v. Ram Chandra Dubey (6 supra), squarely applies to the facts of this case. 22. Accordingly, the writ petitions are allowed, and the impugned orders are set aside. It is, however, left open to the respondents to work out their remedies, under Section 10 of the Act, if they are so advised. 23. There shall be no order as to costs.