Bombay High Court
Maneck Gopal Divekar vs Phoenix Mills Limited And Ors. on 10 September, 1987
Equivalent citations: (1987)89BOMLR456, (1993)IIILLJ69BOM
JUDGMENT H.H. Kantharia, J.
1. Quite an interesting and important question of law that is canvassed in this Writ Petition under Article 226 of the Constitution of India is the interpretation of the term 'reinstatement' in labour jurisprudence.
2. The petitioner joined the services of the first respondent in the year 1945. He was confirmed as a jobber in the drawing department in the year 1956. The mills had to be closed down on and from 21st September, 1977 on account of a fire therein. However, the drawing department was restarted on and from 13th October, 1977. Before the working was restarted, there was a settlement between the management of the first respondent and the Rashtriya Mills Mazdoor Sangh, a representative union. Under the said settlement, it was inter alia agreed to retrench three jobbers out of nine who were in the employment prior to the date of the fire. It was further agreed that as and when the working of the sections would restart, the persons employed in those sections would be re-employed. It was alleged by the petitioner that his seniority was ignored and he was not re-employed in preference to four other jobbers. He, therefore, filed an unfair labour practice complaint, being Complaint (ULP) No. 96 of 1976, in the Industrial Court, Bombay, praying inter alia for a declaration that the first respondent committed an unfair labour practice and a direction be issued to re-employ him. The said complaint was withdrawn on 27th November, 1978 because there was a strike in the mills and the first respondent agreed to provide work to the petitioner after the strike was withdrawn. However, even after the strike was withdrawn he was not allowed to resume work and, therefore, he filed another complaint of unfair labour practice being Complaint (ULP) No. 187 of 1979. That complaint was allowed by the learned Member of the Industrial Court by his order dated 27th June, 1980. The operative part of his order is as under:-
"It is hereby declared that the respondent has committed unfair labour practice within the meaning of item 5 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971, by not re-employing the complain ant after the re-starting of the Mills in October 1977. The respondent is further directed to reinstate the complainant Maneck Gopal Divekar within two weeks from today in the post of a Jobber with continuity of service."
3. According to the petitioner, in spite of the above order of the Industrial Court, he was not reinstated till 11th September, 1980 and was also not paid wages and other is consequential benefits for the intervening period from 13th October, 1977 to 10th September, 1980. He, therefore, filed Application (IDA) No. 1454 of 1980, under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "an Act"), in the 8th Labour Court Bombay, presided over by the second respondents, claiming full back wages and other consequential benefits for the period from 13th October, 1977 to 10th September, 1980 on the basis of the order passed by the Industrial Court in Complaint (ULP) No. 187 of 1979. The second respondent, on hearing the parties, held that the petitioner was already paid full back wages for the period from 11th July, 1980 till 10th September, 1980 and therefore, he was entitled to full back wages for a limited period of 14 days from 27th June, 1980 to 10th July, 1980 because it was during that period that he was not reinstated by the first respondent in pursuance of the order of the Industrial Court. He thus granted full back wages to the petitioner for 14 days amounting to Rs. 436.80 ps. and rounded it up at Rs. 450/-. He held that the petitioner was not entitled to full back wages from 13th October, 1977 till the date of the order of the Industrial Court on 27th June, 1980 because there was no direction by the Industrial Court to pay him full back wages for that period. The second respondent further held that there was thus no existing right in favour of the petitioner flowing from the order of the Industrial Court which entitled him to claim full back wages in a proceeding under Section 33C(2) of the Act which is in the nature of execution proceeding. He accordingly passed an order dated 28th March, 1983 which has been impugned by the petitioner in this petition to the extent of denying to him full back wages from 13th October, 1977 to 27th June, 1980.
4. Mrs. Mhatre, learned Advocate appearing on behalf of the petitioner, submits that the Industrial Court had granted the relief of reinstatement to the petitioner which would mean that the petitioner was also granted the relief of full back wages because reinstatement means restitution of the petitioner in service as if there was no break in it. In other words, in the submission of Mrs. Mhatre, once the relief of reinstatement is granted by any Court a workman will automatically be entitled to full back wages along with it for the period of his forced unemployment. Thus, full back wages are impliedly included in the order of reinstatement, Mr. Mhatre further submits. To substantiate her arguments, Mrs. Mhatre invited my attention to an observation made in a judgment of the Federal Court of India in Western India Automobile Association v. Industrial Tribunal, Bombay and Ors. 1949 LLJ 245 as under;
"This relief of reinstatement is on the same footing as a relief of restitution. Restitution can be granted in integrum in certain cases. All that is required is that the ex-employee should be restored to his previous position so far as capacity, status and emoluments are concerned.
5. I am afraid, this judgment of the Federal Court is of no use to Mrs. Mhatre as it is not a direct authority on interpretation of the word 'reinstatement'. In the case before the Federal Court, the history as to the development of industrial law leading to the enactment of Industrial Disputes Act, 1947 was traced. It was submitted before the Federal Court, on behalf of the employers, that the relief of reinstatement could not be enforced. While dealing with that argument, the Court pointed out that the relief by way of reinstatement had been expressly provided for in a number of statutes. In Australia it was provided as early as in 1912. It was provided in several orders relating to emergency legislation in England. The same has been provided for under the Defence of India Rules in India in Rule 81. In U.S.A. it is contained in the Commonwealth Conciliation and Arbitration Act, 1935. The Federal Court held that no extraordinary consequence has flown by providing this relief expressly even though the only method of enforcing such a relief is by way of coercive machinery of law. Moreover, the relief is not of such an unusual character that it may be wholly ruled out as one of the legal reliefs which the Courts can grant. In my judgment, the correct interpretation of the opinion expressed by the Federal Court of India, as quoted above, would merely mean that when a workman is reinstated he is reinstated in his original position and would thus get back his original capacity and status as also the same emoluments which he was getting at the time of his dismissal or discharge from service. It will be wrong to interpret the observations of the Federal Court that once a workman is ordered to be reinstated it should be construed as reinstatement with full back wages.
6. Mrs. Mhatre then relied upon a Supreme Court judgment in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors. 1978 (2) LLJ 474 in which it was held:
"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 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. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect."
This certainly is not an authority which can help Mrs. Mhatre to canvass that an order of reinstatement necessarily means an order with full back wages. The above observations made by the Supreme Court only show that the Supreme Court emphatically stressed that normally an order of reinstatement should be coupled with an order of full back wages. The Supreme Court explained in detail as to why an order of reinstatement should be followed by an order of full back wages in cases of illegal termination of service. In making these observations, I do not think, the Supreme Court ever meant to lay down law that whenever an order of reinstatement is made it should be construed as an order of reinstatement with full back wages.
7. The meaning of the word "reinstatement" as explained by Venkatramaiya in "Law Lexicon and Legal Maxims" is 'result in replacing a person in the position from which he resigned or was dismissed; it means restoration of the status quo ante, the resignation or dismissal, as the case may be' The word 're' when used as a prefix normally means 'again' or 'back'" . Thus reinstatement involves putting the specified person back, in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment Hodge v. Ultra Electric Ltd. (1943) J. K.B. 462, per Tucker, J. at pg. 466. In Stroud's Judicial Dictionary, fourth edition, the word "Reinstatement" is defined as the natural and primary meaning of to 'reinstate', as applied to a man who had been dismissed, was to replace him in the position from which he was dismissed and so restore the status quo ante the dismissal Dixon v. Patterson, 1943 S.C. (j.) 78, 83 and Barr and Stroud v. Adair 1945 S.C. (J.) 34, 39).
8. The term "reinstatement" has to be read with the necessary limitations by which it is governed such as the reinstatement with or without back wages or reasonable compensation in lieu thereof. Craies in his book on Statute Law, 7th Edition at page 177 has stated:
"But in some cases a limitation may be put on the construction of the wide terms of a statute. Lord Herschell said, in Cox v. Hakes:" It cannot, I think, be denied that, for the purpose of construing any enactment, it is right to look, not only at the provision immediately under construction, but at any others found in connection with it which may throw light upon it, and afford an indication that general words employed in it were not intended to be applied without some limitation". Words, however general, must therefore be understood as used with reference to the subject-matter in the mind of the legislature and limited to that subject matter."
9. A complaint of unfair labour practice is filed under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the M.R.T.U. and P.U.L.P. Act"). The relief in such a complaint is given under Section 30. In this case, relief was granted under Sub-section (1) Clause (b) of Section 30 which reads as under:
"30 (1) Where a Court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice it may in its order -
(a) ....... ....... ....... .......
(b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act."
Therefore, when an Industrial or a Labour Court comes to the conclusion that a party complained against committed an unfair labour practice and if the same is one of dismissal, discharge or termination of service, the relief which the Court can grant under Section 30(1)(b) is four fold (i) payment of reasonable compensation, or (ii) reinstatement, or (iii) reinstatement with or without back wages, or (iv) payment of reasonable compensation in lieu of back wages. These are the four alternatives available to an Industrial or a Labour Court in granting relief to the complainant and when any one of them is granted it would necessarily mean rejection of the other three. Normally, when a relief of reinstatement is granted, it is coupled with the order of back wages whether full, half or otherwise unless there are compelling circumstances in the case for not granting back wages. But the order has to specifically mention granting of back wages when reinstatement is granted otherwise it would necessarily mean reinstatement without back wages. It would not be correct to say that an order of reinstatement without back wages does not exist. If an order of reinstatement is to be construed as an order of reinstatement with full back wages, there was no necessity for the legislature to make provisions of four alternatives in granting the relief to a dismissed or discharged workman. The provisions of Section 30(1)(b) of the MRTU and PULP Act, thus clearly show that when the relief of "reinstatement simpliciter" is granted, it means relief only of reinstatement and nothing more and certainly not of back wages along with it.
10. Similar provision finds place in Section 11A of the Industrial Disputes Act, 1947 as under:
"Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require"
This also clearly shows that when reinstatement is granted to a workman it is on such terms and conditions as the Industrial Tribunal or the Labour Court may think fit and proper or it may give such other relief to the workman including the award of lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. In other words, here also whenever reinstatement is granted, it may be without back wages or with back wages which may be full, half or otherwise. There should be specific order in that behalf. Everything would depend upon the facts and circumstances of each case whether reinstatement is with or without back wages and if it is with back wages to what extent i.e. full, half or any percentage thereof or a reasonable compensation in lieu of back wages. Contingencies may arise where even reinstatement may not be granted and in lieu thereof a reasonable compensation is granted. In substance, relief of reinstatement cannot be construed as reinstatement with back wages.
11. Similarly, Section 78(1) (D) of the Bombay Industrial Relations Act, 1946 provides that the Labour Court has the power to require an employer where it finds the order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee made by the employer, to reinstate the employee forthwith or by a date specified by it in this behalf and pay him wages for the period beginning on the date of such order of dismissal, discharge, removal, retrenchment, termination of service or suspension, as the case may be, and ending on the date on which the Labour Court orders his reinstatement or on the date of his reinstatement whichever is later. In other words, even this provision of law requires the Labour Court to specifically order, while granting the relief of reinstatement, to pay wages to the workman for the period or his forced unemployment. A mere order of reinstatement would not necessarily mean reinstatement with back wages.
12. In the present case, at the time of filing the complaint of unfair labour practice in the Industrial Court, the petitioner had asked for the relief of re-employment. While granting that relief, the learned Member of the Industrial Court loosely used the terminology 'reinstatement'. In effect, therefore, the word 'reinstatement' will have to be read as 're-employment' because there was no prayer for 'reinstatement' in the original complaint and, therefore, the same could not have been granted. In fact, what was granted to the petitioner was re-employment and that being so the question of back wages did not arise.
13. In the premises, the inevitable and irresistible conclusion is that an order of reinstatement cannot be construed as an order of reinstatement with back wages. Therefore, in the present case, no existing right of back wages had accrued in favour of the petitioner by the order dated 27th June, 1980 of the Industrial Court. The settled law is that the proceeding under Section 33C(2) of the Act is in the nature of execution proceeding by which an existing right in favour of an employee under a settlement or an award or under the statute can be executed. Since, no such right of full back wages had accrued in favour of the petitioner in our case except to the extent of Rs. 450/-, the application under Section 33C(2) of the Act for full back wages could not be maintained . Therefore, the impugned order granting only Rs. 450/- and rejecting the rest of the claim of the petitioner for full back wages was proper, correct and perfectly in accordance with law. The second respondent did not err in any way in construing the provisions of Section 33C(2) of the Act. I find no error apparent on the face of the record in the impugned order. There is, therefore, no warrant to interfere with the same under Article 226 of the Constitution.
14. In the result, the petition fails and the same is dismissed. Rule is accordingly discharged but, in the circumstances of the case, there shall be no order as to costs.