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2017 DIGILAW 322 (MP)

CENTRAL BANK OF INDIA v. DRAGENDRA SINGH JADON

2017-03-02

SANJAY YADAV, SHEEL NAGU

body2017
ORDER : SANJAY YADAV, J. 1. It is reported that the counsel are not appearing because of call of High Court Bar Association to abstain the Court. 2. Matter was called out yet no one appeared for the appellant. 3. As the matter is posted for final hearing, respondent is heard. 4. Appellant vide this Intra-court Appeal under Section 2(1) of the Madhya Pradesh Uccha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, takes exception to order dated 07.08.2015 passed in W.P. No. 1571/2013 (s). [it is observed that though in the title, petitioner states that the Appeal is directed against order dated 07.08.2015 passed in writ petition No. 4812/2014(s) & W.P. No. 1571/2013; however, in the relief clause the petitioner seeks quashment/setting aside of judgment/order dated 07.08.2015 passed in writ petition No. 1571/2013]. Therefore, the Appeal is examined only against the order in W.P.No. 1571/2013. 5. Petition in question, at the instance of respondent, was directed against order dated 18.08.2012 passed by the appellant-Bank in purported compliance of Award dated 10.09.2008 passed by Central Government Industrial Tribunal-cum-Labour Court, Jabalpur in case No. CGIT/LC/R/57/88. 6. The Award was on an industrial dispute reference at the instance of respondent as to "whether the action of management of Central Bank of India, Gwalior in dismissing from service Shri D.S. Jadon, Agriculture Assistant w.e.f. 29.01.1982 is justified? If no, to what relief is the workman entitled.?" 7. The reference was answered by CGIT in favour of the respondent-workman; whereby, the dismissal order dated 29.01.1982 was set aside and the workman was directed to be reinstated, however, there was no order as to back-wages. 8. Award was unsuccessfully challenged by the appellant vide writ petition No. 621/2009 which was dismissed on 08.05.2012. 9. It appears from the record that the challenge was not carried forward. Instead, the Appellant in compliance to the Award, passed the order on 18.08.2012. The order speaks itself that the respondent-workman was taken back in service as a fresh incumbent. 10. Award was unsuccessfully challenged by the appellant vide writ petition No. 621/2009 which was dismissed on 08.05.2012. 9. It appears from the record that the challenge was not carried forward. Instead, the Appellant in compliance to the Award, passed the order on 18.08.2012. The order speaks itself that the respondent-workman was taken back in service as a fresh incumbent. 10. The order is in the following terms : "In compliance of award dated 10.09.2008 passed by Central Government Industrial Tribunal cum Labour Court, Jabalpur and also concurred by Hon'ble High Court of Madhya Pradesh, Bench at Gwalior vide their order dated 18.5.2012, we are pleased to inform you that your services are being reinstated without back-wages for the post of Agriculture Assistant from the date of reporting at the advised place of posting in the bank on the following terms and conditions : (1) You will be paid a basic of pay of Rs. 10,100/- per month in the scale of pay and other allowances as per Ib-Partite Settlements as amended from time to time. You shall not be entitled to any benefit for the intervening period i.e. Salary Increments, Allowances, Perquisites, Service seniority etc. and not be treated on duty from the date of removal from Banks service to actual date of reinstatement in the service. Further, if you are eligible, in terms of Regulation 22 of Central Bank of India (Employees) Pension Regulation, 1995, you will not qualify for pensionary benefits from the period of your removal till the resuming of duties. (2) You are being placed at our LBO office, Morena. You are, therefore, advised to report at our LBO office, Morena on 21.8.2012 at 10.00 AM positively. As such Mr. Jadon is hereby instructed to report at the advised place of posting on 21.8.2012, failing which it would be deemed that you are not interested in reinstatement and in such eventuality further course of action will follow." 11. Aggrieved, respondent-workman filed a writ petition No. 1571/2013 seeking quashment of the order dated 18.08.2012 and a direction to the Bank to reinstate him in service and grant him continuity thereof from the date of termination i.e. 29.01.1982. 12. The relief sought by the respondent-workman found favour with the Writ Court whereon the impugned order came to be passed, holding : " ... 12. The relief sought by the respondent-workman found favour with the Writ Court whereon the impugned order came to be passed, holding : " ... In the opinion of this Court, the order (Annexure P/1) passed by the respondent-Bank is not in conformity with the order passed by the Tribunal. Hence, the impugned order, so far as it relates to denying benefits to the petitioner for the intervening period (the period from the date of removal of the petitioner from service to the date of his reinstatement), excepting denial of back wages, is quashed and it is held that the petitioner shall be held entitled for all the benefits except back wages construing him to be in service from the date of removal till the date of actual reinstatement in service. Needless to mention that consequent upon the reinstatement, petitioner is entitled for regular salary from the date of Award subject to adjustment of the amount already paid under Section 17B of the Industrial Disputes Act." 13. The order passed in writ petition is being challenged on the ground that learned Single Judge fell into patent legal error in not taking into consideration the provisions contained under the Central Bank of India Employees Pension Regulation, 1995 (hereinafter referred to as "Regulation 1995") which regulates actual services to be rendered before the person is entitled for benefit for the pension. It is urged that as the back-wages were denied to the respondent-workman, grant of continuity of service would tantamount to dual benefit to the respondent which would be contrary to Regulation 22 of Regulation, 1995 which does not take into consideration the period not rendered as service for the purpose of pension. It is also the contention of the appellant that the employee had suppressed the material fact that earlier he moved an application to the Government under Section 33C(2) of the Industrial Disputes Act, 1947. It is further urged that learned Single Judge ought to have directed the workman to have invoked the said provisions for relief sought, instead of entertaining the writ petition. 14. On these grounds, the appellant seeks quashment of the impugned order. 15. It is further urged that learned Single Judge ought to have directed the workman to have invoked the said provisions for relief sought, instead of entertaining the writ petition. 14. On these grounds, the appellant seeks quashment of the impugned order. 15. Taking up submission that respondent-workman ought to have been called upon to have exhausted the remedy under Section 33C(2) of the Act of 1947, respondent-workman is justified in submitting that it will be beyond jurisdiction of the Labour Court to have adjudicated the dispute while deciding the entitlement of the respondent-workman. 16. Reliance is placed on the decision in Municipal Corporation of Delhi v. Ganesh Rajak: (1995) 1 SCC 235 ; wherein it is observed : "12. ... The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C (2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C (2) like that of the Executing Court's power to interpret the decree for the purpose of its execution." 17. In view of the submission made by respondent workman and the law laid down by the Supreme Court in the case of Ganesh Rajak (supra), the contention raised on behalf of appellant that the respondent-workman ought to have been directed to take recourse to the provisions of Section 33C(2) stands rejected. 18. As regard to the contention based on the Regulation, 1995, the same deserves to be rejected at the outset for the reason that with setting aside of the dismissal order and direction for reinstatement, continuity of service is implicit. For an authority please see S.S. Shetty v. Bharat Nidhi Ltd. AIR 1958 SC 12 , wherein their Lordships were pleased to hold : "16. Whatever be the position in regard to the terms and conditions of employment thus varied in accordance with the terms of the award, the benefit of reinstatement awarded to a workman certainly cannot be treated as part of the contract between him and the employer. Whatever be the position in regard to the terms and conditions of employment thus varied in accordance with the terms of the award, the benefit of reinstatement awarded to a workman certainly cannot be treated as part of the contract between him and the employer. The effect of an order of reinstatement is merely to set at nought the order of wrongful dismissal of the workman by the employer and to reinstate him in the service of the employer as if the Contract of employment originally entered into had been continuing. The terms and conditions of the contract which obtained when the workman was in the employ of the employer prior to his wrongful dismissal which has been set aside continue to govern the relations between the parties and the workman continues in the employ of the employer under those terms and conditions. There is no variation of those terms and conditions of the contract. The only thing which happens is that the workman is reinstated in his old service as before." 19. Reference can also be had of the decision in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC 80 wherein it is held : "9. ... The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer." 20. The order dated 18.08.2012 which was the subject matter of challenge in writ petition No. 1571/2013 (s) when is tested on the anvil of the principle of law laid down in S.S. Shetty (supra) and M/s. Hindustan Tin (supra), has rightly not been disapproved by the learned Single Judge, as would warrant an indulgence. 21. Consequently, appeal fails and is dismissed. 22. 21. Consequently, appeal fails and is dismissed. 22. Let the dues in favour of respondent-workman in the terms of order passed in writ petition No. 1571/2013(s) be settled within a period of sixty days from the date of communication of this order. 23. There shall be no costs.