Patna High Court
Management Of Heavy Engineering ... vs Presiding Officer, Labour Court And ... on 23 April, 1999
Equivalent citations: 2000(48)BLJR449, [2000(85)FLR506], (2000)ILLJ1513PAT
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In this writ application, the management-petitioner has prayed for quashing the award dated August 22, 1996 passed by the Presiding Officer, Labour Court, Ranchi in Reference Case No. 10/96, whereby he has held that the workman concerned is entitled for promotion to the post of Assistant Foreman with effect from the date of his reinstatement in service i.e. April 6, 1991. It appears that by Notification dated August 5, 1993 the following reference was made by the State Government to the Labour Court.
"Whether Sri Kali Prasad Personnel No. 34081 Fitter H.M.B.P. is entitled for promotion on the post of Assistant Foreman after reinstatement from April 6, 1991 like junior personnel to him? If so from which date?"
2. The brief fact of the case is that the workman concerned was initially appointed as Tool Gauge Maker Grade III in the pay-scale of Rs. 150-240/- and he was posted in Heavy Machine Building Plant. He was promoted in the next higher grade of Fitter in the pay-scale of Rs. 444-701 on December 17, 1974. The workman applied for casual leave for two days but the same was refused. Despite the said refusal, it is alleged that the workman absented himself and thereafter on February 20, 1976, he left for village home and sent application for grant of leave. In view of the long absence, the petitioner-management invoked Clause 15(10) of the Certified Standing Order since the workman concerned had lost his lien on appointment and was thus deemed to have left the services of the Corporation, and accordingly, his name was struck off from the rolls of the Corporation. Despite the aforesaid fact, the workman concerned was given opportunity to get himself re-employed with effect from April 26, 1977 but he failed to report for duty, although his joining time was accepted. Ultimately, the re-employment was cancelled by the management, vide order dated July 17, 1997. The workman concerned then filed an application before the Labour Court in terms of Section 13-A of the Industrial Employment (Standing Orders) Act, 1946. The Labour Court, after hearing the parties, finally disposed of the case by order dated March 9, 1981, whereby it was held that termination of services of the workman concerned was in violation of Section 25-F of the Industrial Disputes Act, 1947 and the same was illegal. It further appears that against the aforesaid order the petitioner-management preferred writ application before this Court being C.W.J.C. No. 337/82 (R). That writ application was ultimately allowed in terms of judgment dated March 11, 1991 directing the management to reinstate the petitioner with effect from the date of the judgment without any back wages whatsoever. Pursuant to the aforesaid judgment passed in the writ application, the workman was reinstated in service on and from April 6, 1991. Subsequently, a dispute was raised regarding the promotion of the workman concerned and the State Government referred the dispute for adjudication to the Labour Court in the terms quoted hereinabove. In the Labour Court, the petitioner-management appeared and filed written statement and denied and disputed the claim of the workman regarding promotion with effect from April 6, 1991. The Labour Court, however, after hearing the parties, by the impugned award held that the petitioner is entitled for promotion to the post of Assistant Foreman from April 6, 1991. Hence, the writ application challenging the impugned award.
3. Mr. Anil Kumar Sinha, learned Sr. Counsel appearing for the petitioner-management, assailed the impugned award as being illegal and against the law. The learned Counsel submitted that the Labour Court has misconducted and mis-interpreted the judgment of this Court passed in C.W.J.C. No. 337/82(R), whereby the workman concerned was only directed to be reinstated in service and no relief regarding consequential benefits was given to the workman. Learned Counsel then submitted that the Labour Court has mis-directed itself in not considering the fact that the workman concerned had not worked for about 15 years in the petitioner-Corporation prior to his reinstatement in service. Lastly, the learned Counsel submitted that the Labour Court while passing the impugned award directed promotion to the workman concerned from the date of his reinstatement, which have equated the case of the workman concerned with that of the other persons who have been given the benefit of the same pursuant to their continuous hard work since long.
4. On the other hand, Mr. Rajiv Ranjan, learned Counsel appearing for the workman concerned, submitted that the award passed by the Labour Court is perfectly in accordance with law inasmuch as once the workman was reinstated, he is entitled to get consequential benefits. According to the learned Counsel in case of reinstatement, the employee is restored to his former position and status as if the order of termination had never been passed. In such circumstances, the employee is entitled to the benefit which was available to him before his termination. In this connection, learned Counsel has relied upon a decision of the Andhra Pradesh High Court in the case of Management of Andhra Scientific Company v. Presiding Officer, Labour Court, 1911 LIC 513 and a decision of the Supreme Court in the case of Ramachandra Yadav v. State of Bihar, (1988-II-LLJ-343) (SC).
5. As noticed above, when the re-employment of the workman was cancelled by the petitioner-management the workman had filed an application before the Labour Court at Ranchi in terms of Section 13-A of the Industrial Employment (Standing Orders) Act, 1946 and the Labour Court, in his order, held that the termination of services of the workman was in violation of Section 25-F of the Industrial Disputes Act, 1947 and the same was illegal. The petitioner-management then moved this Court by filing C.W.J.C. No. 337/82(R) which was disposed of with a direction to the management to reinstate the workman with effect from the date of the judgment without any back wages.
6. Before considering the validity of the impugned award, I will first consider the finding arrived at by this Court in the aforementioned writ application filed by the petitioner- management. Instead of discussing the findings of this Court, it would be worth to reproduce some paragraphs of the judgment. In Paragraphs 38 and 39, the learned Judge observed:
"It is true that Respondent No. 1 in purported exercise of its power conferred upon him under Section 13-A of the said Act could not have granted any relief of re-instatement with full back wages to the workman, ordinarily thus, this Court cannot also pass such order.
Is this Court absolutely powerless in such a situation?
This Court is not only a Court of law, but also a Court of justice. While exercising its jurisdiction under Article 226 of the Constitution of India, it may in a given case refuse to grant relief to a petitioner even upon coming to the conclusion that the order impugned by him was illegal."
7. The learned Judge finally concluded the judgment by the following paragraphs:
"43. In this view of the matter, in my opinion, it would be unjust to drive the poor workman who is out of job for a period of 15 years to another round of litigation by asking him to approach the appropriate Government for making a reference for his illegal termination of service for adjudication by a Labour Court or an Industrial Tribunal as envisaged under Section 10(a)(c) of the Industrial Disputes Act,
44. In O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and Ors., reported in (1986-II-LLJ-509), the Supreme Court upon holding that the termination of services of the petitioner by the Indian Tourism Development Corporation was illegal, granted only compensation equivalent to 3.33 years' salary (including allowances as admissible) on the basis of the last pay and allowances drawn by the workman. The said principle was reiterated by the Supreme Court in M.K. Agarwal v. Gurgaon Gramin Bank, reported in AIR 1988 SC 286, but in that case the relief of re-instatement together with 50% of the back salary was granted for meeting the ends of justice.
45. In this case, the workman concerned had not worked for about 15 years. He had chosen a wrong forum for ventilating his grievances. It is not known as to whether during the period when he was out of service he could obtain any employment or not.
46. Taking all these facts and circumstances of the case, I am of the view that Respondent No. 2 should be directed to be reinstated by the petitioner with effect from this date without any back wages whatsoever.
47. When I have this suggestion to the Counsel for the parties, both of them very fairly agreed to the proposal.
48. In the facts and circumstances of the case, this writ petition is allowed to the aforementioned extent. Both parties, however, shall pay and bear their own costs."
8. It is, therefore, manifest from the aforesaid judgment that this Court, exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, has granted equitable relief to the workman by directing the management to reinstate the workman at least from the date of the judgment without any back wages whatsoever. From para 47 of the judgment, it is very clear that both the parties very fairly agreed to the equitable relief granted by this Court. Admittedly, the judgment aforesaid has not been challenged by the workman either in appeal or before the Supreme Court rather he joined the service. It was only after joining the service the workman raised his claim for promotion with effect from the date of termination. In the background of the aforesaid fact, the question, therefore, that falls for consideration is as to how far the Labour Court is justified in allowing the reference case in favour of the workman and declaring that the workman is entitled for promotion with effect from the date of his termination.
9. From perusal of the award, it appears that the Labour Court proceeded on the basis that this Court in the judgment aforesaid has given no direction debarring the workman concerned from consequential benefits. It further held that there is nothing in the judgment to indicate that the workman concerned has been debarred from promotional avenue. In my opinion, the Labour Court has totally misconstrued and misinterpreted the judgment of this Court. It is true that relief of reinstatement is on the same footing as relief of restitution and upon an order of reinstatement the employee concerned is entitled to be put back in the same position as if he had never been dismissed or discharged together with all back wages, allowances and other privileges. But, some times relief can be moulded and curtailed in the facts and circumstances of the case. In the instant case, as noticed above, this Court in the judgment passed in the writ petition granted equitable relief of reinstatement from the date of the judgment on the concession given by the management and the workman accepted the relief. In my opinion, in true sense, this Court granted relief of re-employment to the workman and not reinstatement. The workman concerned did not raise any objection before the Court when the relief of backwages and other consequential benefits was refused. It was only after the workman concerned joined his services he raised industrial dispute. This aspect of the matter has not at all been considered by the Labour Court while passing the impugned award. The decision upon which the learned Counsel of the workman put reliance has no application as the facts and the questions involved in those cases are quite different to that of the present case. It is manifestly clear from the judgment of this Court that this Court was not reluctant to grant any relief, but taking into account (sic) other facts gave suggestion to the employer and the workman for granting relief of reinstatement/ re-employment from the date of judgment, which suggestion was accepted by the parties and the workman was, in fact, given re-employment from the date of the judgment:
10. Having regard to the facts of this case, in my opinion, the Labour Court was manifestly wrong in its view that if a workman is reinstated in service he, as a matter of right, is entitled to all consequential benefits by way of promotion in each and every case. It is well settled that promotion of a workman from lower grade to higher grade is a managerial function and in absence of a finding that the refusal of the management to place the workman in a higher grade was on account of his trade union activities or any unfair labour practice, the Labour Court could not arrogate to itself the promotional function. In this connection, reference may be made to the decision of the apex Court in the case of Hindustan Lever v. Workman (1974-1- LLJ-94)(SC). The impugned award of the Labour Court, therefore, cannot be sustained in law.
11. In the result, this writ application is allowed and the impugned award passed by the Labour Court in Reference Case No. 10/96 is set aside.