Andhra HC (Pre-Telangana)
K.L. Kondappa vs Presiding Officer, Labour Court-I And ... on 25 September, 2002
Equivalent citations: 2003(1)ALD485, 2002(6)ALT636, [2003(96)FLR1097]
ORDER D.S.R. Varma, J.
1. The petitioner challenges the award dated 3-11-1993 passed by the Labour Court in I.D. No. 176 of 1988 wherein the learned Judge while holding that Regulation 16 of the second respondent as not valid and legal, granted the relief of payment of Rs. 30,000/- in lieu of reinstatement.
2. The brief facts are that the petitioner was working under the second respondent. He applied for leave for sometime and has extended the same from time to time. But the extension was not sanctioned by the second respondent. Therefore, it was held to be overstaying the sanctioned leave beyond 9 days. By invoking Regulation 16 of service regulations, the second respondent removed the petitioner from service holding that the petitioner lost the lien on his employment.
3. Subsequently, the petitioner filed a writ petition before this Court which was allowed and against the same the second respondent filed a writ appeal on the ground that the petitioner was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. This Court directed the petitioner to approach the Labour Court. Upon such direction, the petitioner approached the Labour Court. It was held by the Labour Court that by virtue of nature of his employment, he was a workman. This conclusion was arrived at after conducting thorough enquiry. As regards the nature of work of the petitioner that is not in dispute now.
4. The Labour Court after considering the evidence both oral and documentary on record held as follows:
"Further the respondent without conducting any domestic enquiry to ascertain the reason for the petitioner's overstaying the sanctioned leave beyond 9 days invoked the Regulation 16 is not valid and legal."
5. At this stage it is to be noted that their Lordships of the Supreme Court in D.K. Yadav v. J.M.A. Industries Limited, , held at paragraph No. 13 as under:
It is well settled that the right to life enshrined in Article 21 of the Constitution would include the right to livelihood. The order of termination visits with civil consequence of jeopardizing not only the worker's livelihood but also the career and the livelihood of dependents. Therefore, before taking any action of putting an end to the tenure of an employee, fair play requires that reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.
6. In view of the above said judgment, the very clause incorporated either in Regulations of any management or any standing orders was held to be bad and in case of overstaying also if the management is of the opinion that it amounts to misconduct a necessary departmental enquiry should follow.
7. In the instant case in view of the judgment referred to supra incorporation of Clause 16 in the Regulations has to be initially held to be bad.
8. However, assuming that Regulation 16 is valid notwithstanding the judgment referred to above the Tribunal however held as extracted above.
9. From the above specific finding of the Labour Court it is clear that the management ought to have conducted an enquiry to ascertain the reason or genuineness of overstaying of the petitioner. Without doing so the respondent straightway invoked Regulation 16 and therefore the consequential termination is illegal.
10. The question is when once invocation of the regulation and termination is held to be illegal what should follow. The learned Counsel relied on the judgment of the Apex Court in Vikramaditya Pandey v. Industrial Tribunal, (2001) 2 SCC 423. Their Lordships held as under:
"The only issue before the High Court was whether the appellant was entitled to reinstatement in service with back wages, once the termination of his services had been held to be illegal and more so when the same was not challenged. Ordinarily, once the termination of service of an employee is held to be wrongful or illegal the normal relief of reinstatement with full back wages shall be available to an employee; it is open to the employer to specifically plead and establish that there were special circumstances which warranted either non-reinstatement or non-payment of back wages."
11. In the instant case, the Tribunal had fixed Rs. 30,000/- as wages in lump sum in lieu of reinstatement and other consequential benefits. The reason offered by the Tribunal was that the petitioner was employed as a clerk in a co-operative bank during the period of removal. In my opinion, mere employment is different from gainful employment. Just because an employee who is removed from service takes a job opportunity for the mere subsistence it cannot be treated as gainful. The back wages or the reinstatement along with other benefits cannot be denied. In this context this Court is fortified with the decision rendered in Maharaja Sayajirao University of Baroda v. R.S. Thakar, 881 LLN 681, wherein their Lordships of the Supreme Court had taken into account the fact that the workman was employed during the period of removal and in those circumstances the Apex Court upheld the judgment of the High Court of Rajasthan in deducting certain sum which according to the High Court was the amount which the workman had earned during the period as practising lawyer in the Bar.
12. So I am of the considered view having regard to the judgment rendered by the Supreme Court it is not proper for the Tribunal to award back wages in lieu of reinstatement of service when termination itself held to be basically illegal. At the most the Tribunal should have directed the second respondent to reinstate the petitioner with continuity of service and of course the award of back wages also after deducting the amount which the petitioner had earned during the course of his employment in the Co-operative Bank. It is only a matter of computation as to what was the remuneration, the petitioner was getting as an employee in a private bank. Therefore, the petitioner is directed to produce the salary certificate with particulars of period and the salary obtained at different points of time and the same shall be deducted from the total sum of wages that are to be paid to the petitioner after calculation. The petition is accordingly allowed and the award of the Labour Court is set aside. Therefore, the respondent is directed to reinstate the petitioner with continuity of service and also back wages to be computed as indicated above.
13. The Writ Petition is accordingly allowed.