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2015 DIGILAW 715 (GUJ)

Kanji Sumar Katua v. Bank of Baroda

2015-07-20

G.R.UDHWANI, M.R.SHAH

body2015
JUDGMENT M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge dated 20.2.2015 in Special Civil Application No. 1517 of 2005, by which the learned Single Judge has partly allowed the said Special Civil Application preferred by the respondent No. 1 Bank herein and has modified the judgment and order passed by the learned Labour Court dated 30.9.2004 passed in Recovery Application No. 11 of 1999 and quashed and set aside that part of the order passed by the Labour Court directing the respondent Bank to pay to the appellant difference of the salary as if continuity in service is granted, the appellant herein- original respondent No. 1 (hereinafter referred to as the workman) has preferred present Letters Patent Appeal. That the appellant herein was working as Head Cashier with the original petitioner company. His services came to be terminated on 20.10.1986. That the workman raised an industrial dispute challenging his termination, which was referred to the Labour Court for adjudication and thereafter there were subsequent litigations. The Labour Court allowed the said Reference partly in exercise of power under section 11-A of the Industrial Disputes Act, 1947 and the Labour Court substituted penalty of dismissal and directed the Bank to reinstate the workman, however without back wages. At this stage, it is required to be noted that the Labour Court did not pass any order with respect to continuity in service and did not pass any specific order that the workman shall be entitled to periodical increments for the interregnum period i.e. from the date of dismissal till reinstatement. It appears that thereafter the respondent workman came to be reinstated in service. However, the grievance on the part of the workman was that he was required to be reinstated as Head Cashier, whereas he was actually reinstated as Cashier. One another grievance on the part of the workman was that the reinstatement with continuity of service was also required to be given, which has not been given. Therefore, for the difference of salary by way of continuity in service as well as for additional special allowance available to the Head Cashier, the workman approached the Labour Court under section 33-C(2) of the Industrial Disputes Act, 1947 being Recovery Application No. 11 of 1999. The Labour Court ultimately passed an order for issuance of recovery certificate of Rs. 1,34,728/-. The Labour Court ultimately passed an order for issuance of recovery certificate of Rs. 1,34,728/-. Feeling aggrieved and dissatisfied with the order passed by the Labour Court passed in Recovery Application No. 11 of 1999 for issuance of recovery certificate of Rs. 1,34,728/-, the Bank preferred aforesaid Special Civil Application before this Court and by impugned judgment and order learned Single Judge has modified the order passed by the learned Labour Court in aforesaid Recovery Application to the extent that the workman shall not be entitled to benefit claimed on the basis of continuity in service, however confirmed the order passed by the Labour Court granting special allowance as Head Cashier from the date of award till he was regularly posted as Head Cashier and consequently has directed to re-calculate the amount due and payable to the workman. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge in partly allowing the aforesaid Special Civil Application in so far as holding that the benefit claimed by the workman on the basis of continuity of service would not be available to him, the appellant herein-workman has preferred present Letters Patent Appeal. Shri Mukesh Rathod, learned Advocate for the workman has vehemently submitted that the learned Single Judge has materially erred in holding that the workman shall not be entitled to any amount on the basis of the continuity in service. It is submitted that once the order of termination/dismissal/removal came to be set aside by the Labour Court, the continuity in service which will be inherent shall be automatic and even for the same no specific order is required to be passed. It is submitted that therefore, when on setting aside the order of termination/dismissal/removal continuity shall be inherent, even if no specific order of continuity in service is passed by the Labour Court, the workman shall be entitled to all consequential benefits including continuity of service and increments during the interregnum period. It is submitted that therefore, the learned Single Judge has materially erred in holding that as there was no specific order passed by the Labour Court, the workman shall not be entitled to any benefit with respect to continuity in service. It is submitted that therefore, the learned Single Judge has materially erred in holding that as there was no specific order passed by the Labour Court, the workman shall not be entitled to any benefit with respect to continuity in service. Shri Rathod, learned Advocate for the workman has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Sanat Kumar Durivedi v. Dhar Jila Sahakari Bhoomi Vikas Bank Maiyadit and others, 2001 AIR SCW 2430 in the case of Gurpreet Singh v. State of Punjab and others, 2002 (92) FLR 838 (SC) as well as decision of the learned Single Judge of this Court in the case of Vasantika R. Dalia v. Baroda Municipal Corporation 1997 (3) GLR 1879 . Making above submissions and relying upon the above decisions it is requested to admit/allow the present Letters Patent Appeal and to quash and set aside the impugned judgment and order passed by the learned Single Judge to the extent denying the claim/benefit of continuity of service to the workman. 2. Present Appeal is opposed by Shri Darshan Parikh, learned Advocate for the respondent No. 1. He has vehemently submitted that in the facts and circumstance of the case the learned Single Judge has not committed any error in denying the benefit of continuity in service to the workman. It is submitted that as such the learned Labour Court substituted the order of penalty in exercise of powers under section 11-A of the Industrial Disputes Act, 1947 and directed the reinstatement however denying the back wages (by way of penalty), therefore, unless and until there was specific order by the Labour Court granting continuity in service and/or granting benefit of increments during the interregnum period, workman shall not be entitled to any benefit with respect to continuity of service and/or any periodical increments if any, during the interregnum period. It is submitted that therefore, in the facts and circumstance of the case when the learned Labour Court in exercise of powers under section 11-A of the I.D. Act substituted the penalty, the decisions relied upon by the learned Advocate for the appellant-workman shall not be applicable. Shri Parikh, learned Advocate for the respondent No. 1 bank has relied upon the decision of the Hon'ble Supreme Court in the case of APSRTC and another v. B.S. David Paul 2006 (108) FLR 1005 (SC). Shri Parikh, learned Advocate for the respondent No. 1 bank has relied upon the decision of the Hon'ble Supreme Court in the case of APSRTC and another v. B.S. David Paul 2006 (108) FLR 1005 (SC). It is submitted that in the aforesaid decision, the Hon'ble Supreme Court has specifically observed and held that when in the award/order the Labour Court has directed only reinstatement, application for payment of back wages under section 33-C(2) of the I.D. Act would not be maintainable/tenable. It is submitted that in the aforesaid decision, it is further observed and held that award of reinstatement cannot be presumed to confer right to claim back wages. Making above submissions and relying upon the above decision, it is requested to dismiss the present Letters Patent Appeal. Heard the learned Advocates for the respective parties at length. At the outset, it is required to be noted that while passing the judgment and award in the reference in which the order of termination was challenged, the Labour Court as such substituted the penalty in exercise of powers under section 11-A of the Industrial Disputes Act, 1947 and ordered reinstatement, however denying the back wages (back wages were denied by way of penalty). The Labour Court considering the charges proved in the departmental proceedings held that penalty of dismissal is disproportionate to the charges and misconduct proved-against the workman. Therefore, the Labour Court ordered reinstatement but without back wages. Simultaneously, the Labour Court also did not pass any order of continuity in service and/or grant of any other benefits of increments if any, during the interregnum period. Under the circumstances, when in exercise of powers under section 11-A of the Act, the Labour Court substituted the penalty, there must be a specific order of continuity in service and/or other benefits like increment etc. for the interregnum period. Therefore, in absence of any specific order of continuity in service, learned Single Judge has rightly held that workman shall not be entitled to benefit of continuity in service as claimed in the recovery application. Therefore, the learned Single Judge has rightly observed and held that Labour Court was not justified in granting the benefit of continuity of service in a proceedings under section 33-C(2) of the Industrial Disputes Act, 1947. 3. Therefore, the learned Single Judge has rightly observed and held that Labour Court was not justified in granting the benefit of continuity of service in a proceedings under section 33-C(2) of the Industrial Disputes Act, 1947. 3. Now, so far as reliance placed upon the decisions of the Hon'ble Supreme Court in the case of Sanat Kumar Dwivedi (supra), Gurpreet Singh (supra) and the decision of the learned Single Judge in the case of Vasantika R. Dalia (supra), relied upon by the learned Advocate for the workman are concerned, on facts the same shall not be applicable and/or same shall not be of any assistance to the appellant- workman. In the aforesaid cases, the Labour Court did not pass any order substituting the penalty in exercise of powers under section 11-A of the I.D. Act. In the aforesaid cases, the termination/dismissal were held to be per se illegal and the Labour Court passed an order of reinstatement, however did not pass any order of continuity in service. To that, it is held that once order of termination is held to be illegal and order of reinstatement is passed, continuity in service shall be automatic and shall be inherent. Under the circumstances, the aforesaid decisions shall not be applicable to the facts of the case on hand, in which, the Labour Court has not held the termination per se illegal, but in exercise of powers under section 11-A of the Industrial Disputes Act, 1947 substituted order of penalty. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the Labour Court. The order passed by the learned Single Judge is not required to be interfered with. Under the circumstances, present Letters Patent Appeal fails and same deserves to be dismissed and is accordingly dismissed.