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2015 DIGILAW 934 (GAU)

Siddartha Chakraborty v. United Bank of India

2015-07-30

HRISHIKESH ROY

body2015
JUDGMENT : 1. Heard Mr. A. Dasgupta, the learned Senior Counsel appearing for the petitioner. The respondent United Bank of India (UBI) and their officers are represented by the learned Senior Counsel Mr. S. Dutta. 2. While serving as a Cash Clerk in the Ulubari Branch of the UBI, the petitioner was found to have committed misappropriation through fictitious Debit in Saving Book Accounts and accordingly a disciplinary proceeding was drawn up against him. Eventually the delinquent was dismissed from service on 20.12.1985 and this was subject to a reference, under the Industrial Disputes Act, 1947 (hereinafter referred to as “the I.D. Act”). After due consideration the Industrial Tribunal upheld the order of dismissal. 3. The delinquent challenged the 20.1.2000 Award of the Industrial Tribunal through the WP(C) NO.635/2001, where the dismissal order was assailed on the ground that the management failed to secure the approval from the competent authority under Section 33(2)(d) of the I.D. Act. However the management sought support for the dismissal order by relying on M/s Punjab Beverages Pvt. Ltd. vs. Suresh Chand reported in (1978) 2 SCC 144 where the Apex Court held that the approval under Section 33(2)(d) of the I.D. Act is not mandatory. 4. But noticing the reversal of the ratio of M/s Punjab Beverages Pvt. Ltd. (supra) in the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma reported in (2002) 2 SCC 244 , the High Court opined that approval under Section 33(2)(d) of the I.D. Act is mandatory and since the management did not secure the approval for the disciplinary action, the action against the delinquent was held to be void and consequently the Award of the Industrial Tribunal was set aside in favour of the delinquent. 5. The 6.5.2004 judgment in the WP(C) No.635/2001 was challenged by the management by filing the Writ Appeal No.345/2004 and the Division Bench in its judgment dated 5.4.2005 (Annexure-B) observed that Section 33(2)(d) safeguards a workman against victimization and unfair labour practice and accordingly having regard to the ratio in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) found no cause to interfere with the order passed in the writ petition and thus the Appeal was dismissed. 6. 6. The Bank questioned the correctness of the Division Bench judgment by approaching the Supreme Court and the Civil Appeal No.2001/2006 was disposed of on 27.8.2007 (Annexure-D) by restricting the back wages to Rs.2 Lakh for the delinquent. 7. It may be noted that although reinstatement of the delinquent was a natural corollary to the judgment passed in the WP(C) No.635/2001, the reinstatement order was not issued until 15.12.2005 and at that stage, the matter had reached the Supreme Court. 8. While Leave was granted on the Bank’s S.L.P., on 7.4.2006 (Annexure-C) the Supreme Court gave partial interim relief by staying the payment of back wages only and this might have prompted the Bank to issue the reinstatement order on 15.12.2005, during the pendency of the Appeal in the Apex Court. 9. The delinquent has now filed this 2nd second writ petition to claim his salary from 6.5.2004 when he became entitled to reinstatement on the strength of the order passed in the WP(C) 635/2001, until he was actually reinstated on 25.12.2007 by the management’s order dated 15.12.2005. 10. Mr. A. Dasgupta, the learned Senior Counsel submits that the reinstatement order was neither stayed at the stage of Writ Appeal 335/2004 or at the stage of the S.L.P. and accordingly it is argued that the petitioner deserves to be paid his wages because of the belated reinstatement. The Senior Counsel submits that entertainment of the S.L.P. by the Supreme Court was limited to the issue of back wages and therefore the payment of wages for the interregnum period should be ordered by this Court. 11. On the other hand, Mr. S. Dutta, the learned Senior Counsel for the management submits that the principle of no work no pay should be applied and since service was not received from the employee during the relevant period, there should be no direction for payment of wages. Referring to the serious charge of misappropriation and the relief secured on a technical point, Mr. Dutta argues that undeserved wages should not be allowed for such errant employee. 12. When the petitioner was reinstated in service on 15.12.2005, the Bank’s S.L.P. was pending in the Supreme Court but at that stage, the delinquent never questioned his belated reinstatement either in the pending proceeding before the Supreme Court or through any other manner. Dutta argues that undeserved wages should not be allowed for such errant employee. 12. When the petitioner was reinstated in service on 15.12.2005, the Bank’s S.L.P. was pending in the Supreme Court but at that stage, the delinquent never questioned his belated reinstatement either in the pending proceeding before the Supreme Court or through any other manner. The Supreme Court disposed of the Civil Appeal No.2001/2006 and even then the issue of belated reinstatement was not agitated before the Supreme Court. Long after the matter was concluded in the highest Court, the present petition is filed to claim wages for the period when the petitioner had not rendered any service for the employer. 13. The records reflect that entertainment of the S.L.P. by the Supreme Court was not restricted to the issue of back wages but the merit of the dismissal decision without recourse to Section 33(2)(b) of the I.D. Act was very much under consideration as is clearly discernible from the judgment given in the Civil Appeal No.2001/2006. Therefore the submission made to the contrary by the petitioner’s lawyers are found to be unsubstantiated and the same is rejected. 14. For the purpose of the relief prayed in the present proceeding, it is not necessary to refer to the seriousness of the charges for which the petitioner was dismissed from service and only thing that requires consideration is whether he should be paid his salary from the date of judgment i.e. 6.5.2004 (Annexure-A) in the WP(C) No.635/2001 until he was reinstated in December, 2005. 15. The management challenged the decision of the learned Single Judge through their Writ Appeal filed before the Division Bench and when the Appeal was dismissed, they approached the Apex Court where the implications of both judgments in the M/s Punjab Beverages Pvt. Ltd. (supra) and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) were re-considered. The challenge to verdicts before higher forum is legally permitted and therefore the Bank can’t be faulted for availing the legal remedies. But what is glaring here is that although reinstatement in pursuant to the order passed in the WP(C) No.635/2001 was never stayed by the Appellate Forums, the delinquent never raised any grievance on account of his non-reinstatement. Even when the Apex Court passed interim order to stay payment of back wages, the petitioner never applied for his reinstatement. But what is glaring here is that although reinstatement in pursuant to the order passed in the WP(C) No.635/2001 was never stayed by the Appellate Forums, the delinquent never raised any grievance on account of his non-reinstatement. Even when the Apex Court passed interim order to stay payment of back wages, the petitioner never applied for his reinstatement. Finally when he was reinstated by the order dated 15.12.2005 even at that stage, the issue of belated reinstatement was never questioned by him. If the petitioner was really aggrieved at that stage, he should have complained to the Supreme Court where the matter was pending and this omission in my view must receive due weightage in the present matter. 16. The Supreme Court disposed of the Bank’s Appeal on 27.8.2007 and in the year 2005 itself, the petitioner was reinstated in service. But until the present petition was filed, no demand for the salary benefit for the concerned period was ever raised by the petitioner. In this backdrop, I am inclined to believe that an opportunistic claim is raised through this writ petition. 17. Therefore considering all the above factors and applying the principle of no pay no work, I hold that the petitioner is not entitled to any salary for the period when his service was not received by the employer. Accordingly this writ petition is found to be without merit and the same is accordingly dismissed. No cost.