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2019 DIGILAW 1738 (KAR)

Sangayya v. Precision Tooling Systems Ltd

2019-07-18

ARAVIND KUMAR, BELLUNKE A.S.

body2019
JUDGMENT : Aravind Kumar, J. This appeal has been preferred by writ petitioner in W.P.No.104152/2014, being aggrieved by the order dated 01.08.2017, where under the order passed by Labour Court dated 06.11.2013 in Application No.30/2012 insofar as disallowing the claim petition filed under Section 33-C(2) of Industrial Disputes Act, 1947 (for short I.D. Act) in excess of Rs.1,62,879.19 (as per Annexure-G) came to be modified and held that petitioner is entitled for additional sum of Rs.92,509.22 towards increment and D.A. from 11.12.2000 to 30.09.2012 with simple interest @ 6% p.a. BRIEF BACKGROUND: 2. It is the specific case of the petitioner that he was working with respondent Nos.1 and 2 from 07.04.1981 till 08.05.1991 and was illegally terminated on 08.05.1991. Hence, questioning the same a dispute came to be raised in KID No.121/1991 which came to be dismissed by Labour Court, Hubballi and being aggrieved by the same petitioner had preferred W.P.No.31291/2001 before this Court. Said writ petition came to be allowed on 01.03.2006 by directing the employer to reinstate the petitioner and to adjust the amount paid in the salary to be payable to the workman while settling his dues. Review of this order sought for by Management in R.P.No.264/2006 came to be rejected on 27.09.2006. The management had also challenged the order of learned Single Judge in W.A.No.1798/2006 which came to be dismissed on 13.12.2006 and SLP filed thereon before the Hon'ble Apex Court by the management in Special Leave Petition (Civil) No.6232/2007 also came to be dismissed on 26.03.2007. Thus, order of learned Single Judge directing reinstatement of petitioner attained finality. 3. After order of reinstatement attained finality, petitioner filed an application under Section 33-C(1) of I.D. Act for recovery of back wages and other remedies on the ground that same has been granted by the learned Single Judge in W.P.No.31291/2001 and it was not being paid by the management. The said petition came to be adjudicated by the Labour Commissioner and recovery certificate came to be issued in favour of petitioner for an amount of Rs.5,09,850/- by order dated 29.03.2007. Same was challenged by respondents 1 and 2 herein in W.P.Nos.15507/2007, 17741/2007 and 14875/2007 which came to be allowed on 10.11.2011 by quashing the order of the Labour Commissioner. The said petition came to be adjudicated by the Labour Commissioner and recovery certificate came to be issued in favour of petitioner for an amount of Rs.5,09,850/- by order dated 29.03.2007. Same was challenged by respondents 1 and 2 herein in W.P.Nos.15507/2007, 17741/2007 and 14875/2007 which came to be allowed on 10.11.2011 by quashing the order of the Labour Commissioner. Hence, petitioner filed an appeal in W.A.Nos.30348-30350/2012, which came to be dismissed on 17.07.2012, by granting liberty to the petitioner to approach the Labour Court by way of an application under Section 33-C(2) of the I.D. Act. 4. In the aforestated background petitioner filed an application under Section 33-C(2) of the I.D. Act before Labour Court contending inter-alia that he is entitled to an amount of Rs.15,44,700.70 paise. On contest, Labour Court holding that petitioner is entitled to a sum of Rs.1,62,879.90 towards wages from 11.12.2001 to 30.09.2012 with interest @ 6% p.a. but not entitled to any back wages. 5. Being aggrieved by the said order, W.P.No104152/2014 came to be filed by petitioner contending inter alia that learned Single Judge in W.P.31291/2001 had quashed the award of the Labour Court and also the order of discharge/dismissal and as such it is to be held that petitioner is deemed to be in service from the date of discharge/dismissal i.e., from 08.05.1991 itself and thereby he would be entitled to all the consequential benefits including back wages, allowances, increments, benefits under the provisions under I.D. Act, 1947. It was also contended that Labour Court had not properly appreciated these aspects and has allowed partial payment in favour of the petitioner. Hence, he prayed for writ petition being allowed and sought for a direction to respondent Nos.1 and 2 to pay the amount as per the memo of calculation filed before the labour Court in application No.30/2012. 6. Respondent Nos.1 and 2 resisted the writ petition by contending when there is no order for payment of back wages, allowances, increments and any statutory benefits, Labour Court has properly considered the salary entitlement of the petitioner and has ordered for payment of same after deducting the amount already paid. Hence, respondent Nos.1 and 2 have sought for dismissal of the petition. FINDINGS OF THE LEARNED SINGLE JUDGE: 7. Hence, respondent Nos.1 and 2 have sought for dismissal of the petition. FINDINGS OF THE LEARNED SINGLE JUDGE: 7. In the background of rival contentions raised and noticing the fact that pivotal issue relates to order passed by the learned Single Judge in W.P. No.31291/2001 it came to be held that order of the learned Single Judge passed in said writ petition does not disclose any direction having been issued to the employer to pay back wages to petitioner. It was also held that there was no specific order of the learned Single Judge granting back wages. 8. It also came to be held that Labour Court while considering petitioner's claim for payment of wages for the period subsequent to award, it has taken into consideration the date i.e., 11.12.2001 up to 30.09.2012 mistakenly, though it ought to have calculated from 11.12.2000, which is the date on which the Labour Court had dismissed the claim petition in KID No.121/1991, which order came to be set aside by the learned Single Judge in W.P.No.31291/2001 and as such award relates back to these date of dismissal. In this background it came to be held by learned Single Judge that petitioner is entitled for increment from 11.12.2000 to 30.09.2012 i.e., from date of award till reinstatement. While arriving at said finding learned Single Judge has taken into consideration the basic salary of petitioner and proportionate D.A., HRA, TA/CT and W.A. and accordingly held that petitioner is entitled to total amount of Rs.3,65,555.91 and ordered for balance payment of Rs.92,509.22 by taking into consideration that a sum of Rs.2,73,046.69 has already been paid. Hence, this intra court appeal has been preferred by the writ petitioner. 9. We have heard Shri Sangayya S Hiremath party appearing in person; Shri Suresh S.Gundi, learned counsel appearing for respondent Nos.1 and 5; respondent Nos.2, 3, 4 and 10 are served and unrepresented; Shri Harsh Desai has appeared on behalf of respondent Nos.6 and 7; and Shri H.R. Bentur has appeared on behalf of respondent Nos.16 and 17. Respondent Nos.9 and 15 have been deleted. 10. Respondent Nos.9 and 15 have been deleted. 10. Shri Sangayya S.Hiremath party appearing in person would reiterate the grounds urged before the learned Single Judge and would contend that Labour Court as well as learned Single Judge erred in not considering the tenor of the judgment rendered in W.P. No.31291/2001 in proper perspective, particularly when it has been held that petitioner's termination was illegal and as such petitioner would be entitled for back wages automatically. He would also submit that observation made by the learned Single Judge in W.P.No.31291/2001 has not been considered by Labour Court as well as the learned Single Judge, who disposed of W.P. No.104152/2014. He would also place reliance on the judgment of the Apex Court in the matter of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 to contend he is entitled for back wages. Hence, he prays for writ appeal being allowed and prayer sought for before the Labour Court being granted. 11. Per contra, Shri Suresh S.Gundi, learned counsel appearing for respondent Nos.1 and 5 would support the order of the learned Single Judge and submits there is no error in the order passed by the learned Single Judge. Hence, he prays for dismissal of the appeal. 12. In the light of the aforestated facts and contentions raised by the learned Advocates, we have examined the issue thread bare, which relates to claim for back wages by the petitioner from 09.05.1991 to 30.09.2012. In order to examine the same few dates which will have bearing on the contention requires to be noticed and they are as under: Sl. No. Date Particulars 1. 08.05.1991 alleged date of termination. 2. 11.12.2000 date of application KID No.121/1991 came to be dismissed by the labour Court. 3. 13.09.2012 date of reinstatement of petitioner into service. 13. On the one hand, petitioner claims that he is entitled back wages as a matter of right on account of his order of dismissal having been set aside. Whereas, the management contends as per the order dated 01.03.2006 passed in W.P.No.31291/2001 petitioner is not entitled for back wages. In fact petitioner is also relying on the said order of back wages. Hence, it would be appropriate to extract the operative portion of the order passed in W.P.No.31291/2001. It reads: "Accordingly, the petition is allowed. The impugned award is quashed. In fact petitioner is also relying on the said order of back wages. Hence, it would be appropriate to extract the operative portion of the order passed in W.P.No.31291/2001. It reads: "Accordingly, the petition is allowed. The impugned award is quashed. Consequently, the order of discharge of the petitioner is also quashed. The respondent is directed to reinstate the petitioner and the amount paid to the petitioner as terminal benefits and in settlement of his dues, may be duly accounted for and adjusted in the salary to be paid to the workman." 14. A plain reading of the above order passed by the learned Single Judge would clearly indicate that there is no specific direction with regard to grant of back wages. The learned Single Judge has directed the employer to reinstate the petitioner and amount paid to the petitioner as terminal benefits and in settlement of his dues, may be duly accounted for and adjusted in the salary to be paid to the workman. It is because of this precise view expressed by the leaned Single Judge while disposing of W.P.No.31291/2001 on 01.03.2006, the Labour Court in application No.30/2012 has opined that petitioner is not entitled for back wages from the date of dismissal till the date of award. 15. The Hon'ble Apex Court in case of State Bank of India Vs. Ram Chandra Dubey and others,2007 AIR SC 3734 has held merely upon reinstatement the workman would not be entitled to, under terms of award to all his arrears and pay and allowances. It has also been held that it cannot be presumed that the award of labour Court for grant of wages was implied in relief of reinstatement or that award of reinstatement itself conferred right for claim of back wages. It has been held: "9. Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed 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 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The benefit sought to be enforced under Section 33C(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 33C(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 proceeding. 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. 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." 16. Hon'ble Apex Court in its views earlier expressed reflected the legal position termination of employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. Hon'ble Apex Court in its views earlier expressed reflected the legal position termination of employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, there has been shift in the legal position and the Hon'ble Apex Court in the recent past has taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure, compensation instead of reinstatement has been held to meet the ends of justice. 17. Hon'ble Apex Court in the case of U.P. State Electricity Board vs. Laxmi Kant Gupta, (2009) LLR 1 has held that there is no such principle that for an illegal termination of service. Reinstatement with back wages should normally be allowed. It has been held: "9. In U.P. State Brassware Corporation Ltd. & another vs. Uday Narain Pandey, (2005) 10 JT 344 SC : 2005 LLR 214 (SC), this Court referred to a large number of its earlier decisions on the question as to the relief to be granted to the workman when his termination of service is found to be illegal. It was noted that while the earlier view of the Court was that if an order of termination was found to be illegal, normally the relief to be granted should be reinstatement with full back wages. However, as noted in the various decisions referred to in the above decision, with the passage of time it came to be realized that an industry should not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all. This Court after discussing various earlier decisions held that the relief to be granted is discretionary and not automatic. It was pointed out in the aforesaid decision of this Court in U.P. Brassware Corporation (supra) that a person is not entitled to get something only because it would be lawful to do so. The changes brought out by the subsequent decisions of this Court, probably having regard to the changes in the policy-decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing was evident. The changes brought out by the subsequent decisions of this Court, probably having regard to the changes in the policy-decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing was evident. Hence now there is no such principle that for an illegal termination of service the normal rule is re-instatement with back wages, and instead the Labour Court can award compensation." 18. After noticing the above referred judgments including the judgment of Deepali Gundu Surwase relied upon by the petitioner, Hon'ble Apex Court in the matter of Rajasthan State Road Transport Corporation, Jaipur vs. Shri Phool Chand (dead) through L.Rs., (2018) AIR SC 4534 has held that Court may decline to award back wages in its entirety, whereas in some cases, it may award partially depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. It has been further held: "13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board vs. Jarina Bee(Smt.), (2003) 6 SCC 141 , G.M. Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591 , U.P. State Brassware Corporation vs. Uday Narain Pandey, (2006) 1 SCC 479 , J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr., (2007) 2 SCC 433 , Metropolitan Transport Corporation vs. V. Venkatesan, (2009) 9 SCC 601 , Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC 327 ) and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC 324 . 14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent." 19. 14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent." 19. Keeping in mind the above principles laid down by Hon'ble Apex Court in mind when facts on hand are examined it can be noticed that in writ petitions No.1550/2007 and other connected matters which came to be filed by the employer and the Directors questioning the order of recovery certificate issued by the Deputy Labour Commissioner has held vide order dated 10.11.2011 (marked as Exs.A11, A12 and A13 in application No.30/2012 before Labour Court) to the following effect: "5. From a reading of the order passed by this Court in W.P.No.31291/2001 it is clear that no back wages were granted . Further it is seen from the order of this Court that what ever the amounts they are paid to the respondents are terminal benefits and in settlement of his dues are to be duly adjusted in the salary to be paid to the respondents on his reinstatement. Therefore, there is no specific order directing the petitioner herein to pay any amount to the respondent." 20. The above orders passed by the learned Single Judge was challenged by the writ petitioner in W.A.Nos.30348-30350/2012 (KLR-RES) which came to be disposed of by order dated 17.07.2012 (marked as Ex.A12 before the Labour Court) holding to the following effect: "9. In the instant case the workman was discharged. The said order of discharge has been set aside which has attained finality. As rightly observed by the learned Single Judge there is no specific order in the order passed by the learned Single Judge to pay back wages." (Emphasis Supplied by us) 21. Thus, it is crystal clear from above orders claimant was not entitled for back wages and as such labour court as well as learned Single Judge have held petitioner is not entitled for back wages from date of dismissal i.e., 08.05.1991 till the application KID No.121/1991 came to be dismissed by the Labour Court on 11.12.2000. 22. Thus, it is crystal clear from above orders claimant was not entitled for back wages and as such labour court as well as learned Single Judge have held petitioner is not entitled for back wages from date of dismissal i.e., 08.05.1991 till the application KID No.121/1991 came to be dismissed by the Labour Court on 11.12.2000. 22. It would be apt and appropriate to note at this juncture, that very same petitioner who had filed W.A.Nos.30348-30350/2012 challenging the order passed in W.P.No.15507/2007, 17741/2007 and 14875/2007 disposed of in 10.11.2011 referred to herein supra where under learned Single Judge had set aside the order of the Deputy labour Commissioner issuing recovery certificate under Section 33-C(1) and while disposing of said writ appeal Division Bench after having examined the grounds urged by the writ petitioner had held by order dated 17.07.2012 to the following effect: "9. In the instant case XXXXX pay back wages. All that has been stated is the amount paid by way of retirement benefits at the time of discharge to the workman should be adjusted towards the salary of the workman. From that order it is not possible to make out what is the salary of the workman, what is the amount paid towards retirement benefits, how much is adjusted towards salary, whether the amount is still due as salary. Even the applate Court and the Apex Court have not determined the said amount. Determination of the amount which is due to the workman by virtue of the earlier proceedings is not clear. In those circumstances, if the workman wanted to recover money due to him, the proper course was to file an application under Section 33-C(2) of the Act before the Labour Court, adduce evidence apart from producing the certified copy of the said order and seek determination of the amount due to him. It is only XXXXXX would arise. 23. Thus, writ petitioner who had opportunity to urge for award of back wages before learned Single Judge did not undertake such exercise and for this precise reason labour Court which determined the amount payable to the petitioner towards salary D.A., T.A., W.A. for the period commencing from date of dismissal to date of award and held respondents would be liable to pay wages from 11.12.2001 to 30.09.2012 with simple interest @ 6% p.a. as noticed herein above. However, the date 11.12.2001 which had been considered are reckoned by labour court for the purposes of determination of said amount due to the petitioner being erroneous, learned Single Judge vide paragraph 16 has observed that date 11.12.2001 construed by the Labour Court was due to mistake and it ought to have considered the date as 11.12.2000, which finding recorded by the learned Single Judge is just and proper and would not call for interference. 24. While adjudicating and calculating the salary to which the writ petitioner would be entitled to, it has been held by learned Single Judge that Labour Court had ignored the fact that increment between 11.12.2000 and 30.09.2012 had been excluded and same is to be included. Likewise the consequential increment and D.A. thereon having not been taken into consideration by the Labour Court, the learned Single Judge instead of remanding the matter back to the Labour Court, undertook the said exercise upon himself and has calculated the salary payable to the petitioner from 11.12.2000 to 30.09.2012 and quantified the total amount payable to petitioner by his employer would be Rs.3,65,555.91 and by giving deduction to the amount determined by the Labour Court i.e., Rs.2,73,046.49 ordered for payment of balance amount of Rs.92,509.22 as per the tabulor column extracted in paragraph 18 at page 23 of the judgment. The determination of the amount due and payable to the petitioner and which came to be modified by the learned Single Judge by quantifying the same as observed herein above does not suffer from any infirmity on facts and in law calling for interference by us. For the reasons aforestated, we proceed to pass the following: ORDER (i) Writ Appeal is dismissed. (ii) Order dated 01.08.2017 passed in W.P.No.104152/2014 is affirmed. (iii) Costs made easy.