Karnataka High Court
Vysya Bank Ltd. Rep. By Its General ... vs General Secretary, All India Vysya Bank ... on 20 June, 1995
Equivalent citations: 1994(1)KARLJ15, (1996)ILLJ420KANT
JUDGMENT
Hakeem, A.C.J.
1. In this appeal by the management, the correctness and legality of the interim order on interlocutory application No. 1 passed by the learned Single Judge allowing the same and directing payment to the workman wages as provided under S. 17B of the Industrial Disputes Act, 1947 (the Act for short), is challenged.
2. In the writ petition, the appellant has challenged the validity and correctness of the award, dated 30 July 1994, passed by the second respondent-Central Government Industrial Tribunal-cum-Labour Court, Bangalore (the Tribunal). The brief facts as stated in the petition are as follows :
One Smt. Neeraja (the workman) was appointed by the appellant bank as a probationary clerk-cum-typist. The period of their probation was six months from the date of her reporting for duty which could be extended by three months at the discretion of the bank. According to the appellant, her services during the period of probation were not satisfactory and she was found to be inefficient in her work. On this ground, her service was terminated on 24 November 1988 upon payment of one month's salary and allowance in lieu of notice. The first respondent raised an industrial dispute which was referred to the Tribunal. The Tribunal has passed the impugned award directing the management to reinstate the workman with continuity of service and payment of fifty per cent back-wages. The correctness and validity of the said order is under challenge in the writ petition which was admitted by the learned Single Judge and stay of implementation of the award was also granted. Thereafter, the workman filed the application seeking benefit under S. 17B of the Act which has been allowed by the impugned order.
3. On the submission of Sri S. G. Sundaraswamy, learned senior counsel appearing for the appellant, the question of law that arises for consideration is whether a management should be directed to pay wages to the workman as per S. 17B of the Act even when the award under challenged is demonstrably grossly erroneous or perverse. The contention of Sri M. C. Narasimhan, appearing for the first respondent, is that the three necessary ingredients for the application of S. 17B of the Act, viz.
(1) that the Labour Court should have directed reinstatement of the workman :
(2) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court; and (3) that the workman should not have been employed in any establishment during such period are established no discretion is left to the Court to refuse the relief to the workman. According to him, all the three conditions are satisfied in the instant case. As such, the question of interfering with the interim relief granted does not arise.
4. In Elpro International Ltd. v. K. B. Joshi and others 1987 I CLR 266 a Division Bench of the Bombay High Court has held that S. 17B of the Act does not in any way impinge upon the extraordinary powers conferred on the High Court under Arts, 136 and 226 of the Constitution, much less restricting the said powers. It is held, inter alia that "section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity, or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its power under Art. 226 and 136 of the Constitution."
Similar view is taken by a Full Bench of the Madras High Court in Godrej and Boyce Manufacturing Company. Ltd. v. Principal Labour Court, Madras and another 1992 I CLR 454. The Court has observed thus, "... Courts cannot afford to be manipulated and allow the management/employer to use the interim order as a weapon to avoid such a statutory liability. Some error of fact or even some error of law alone will not thus be enough to issue any interim order. If, however, the error is such that it goes to the root of the jurisdiction of the Tribunal and the Court has got sufficient materials to ignore the effect of S. 17B of the Act the Court may decline to order payment of the wages pendente lite..."
Referring to the Bombay High Court case of Elpro International Ltd. 1987 I CLR 266 (vide) supra it is observed that :
"the words 'or grossly erroneous or perverse' in that judgment and in the earlier judgment of the Division Bench in Chitram and Company [1990 (1) MLJ 155]. have to be understood only to mean illustratively when the Court may treat the award a nullity."
Having observed thus, the Court has held that S. 17B of the Act does not in any manner impair or interfere with the powers of the High Court under Art. 226 of the Constitution of India and the Court still possesses the discretion to go into the question and award a lesser amount than the exact quantum of last drawn wages.
5. In G. M. Neelaiah v. Karanataka State Tourism Development Corporation Ltd., and another [Writ Appeal No. 235 of 1995], this Court having cited the case of Elpro International, Ltd. (vide supra) with approval has, inter alia, affired that it may be open for the Court to deny the benefit completely if the conditions set out in the section are not satisfied. But once the conditions set out in the section are satisfied, no rider can be added to restrict the benefit under S. 17B of the Act.
6. Having regard to the position of law emerging out of the aforesaid rulings, we may consider whether the instant case is such a rare case in which the Court can deny the benefit of S. 17B of the Act to the workman.
7. To find out whether a prima facie case is made out for the application of S. 17B read with S. 11A of the Act, we may, briefly, refer to some of the relevant findings of the Tribunal. On a consideration of the material on record, especially Exhibit M6 series, the learned member of the Tribunal has opined that it speaks volumes for the efficiency or otherwise of the workman, which reveals that her work :
"could not be said to be satisfactory by any stretch of language."
Thereafter, he has held in Para. 10 of the order that the action of the management in terminating the services of the workman was justified. He has further had at Para. 11 that what the management has done is a discharge simpliciter. According to the terms of appointment and he was of the opinion that the management was not required to give reasons. Again at Para 16 of the order it is held thus :
"... In the instant case I hold that the termination order was a discharge simpliciter because the overall performance was not satisfactory."
The Tribunal also does not dispute that, accordingly to the appointment order Exhibit Ml, the workman was on probation for a period of six months which could be extended at the discretion of the management by another three months. Ultimately, the learned Member of the Tribunal not only directs the management to reinstate the workman with continuity of service, but that after reinstatement, the workman shall be on probation for a period of nine months from the date of her joining during which period the employer shall be entitled to ascertain her suitability. In this connection, it is urged by the learned senior counsel that even directing extension of the probation period was erroneous as the Tribunal did not have any authority to say that the workman could have been given some other work in the bank where the handwriting was not important. Prima facie it appears to us that the order was made on purely compassionate grounds, which, according to the learned counsel for the appellant, is not permissible or warranted even under the provisions of S. 11A of the Act. There appears to be considerable force in these contentions. In that view of the matter, prima facie, it appears to us that there was sufficient material on record to ignore the effect of S. 17B of the Act to decline relief thereunder when the matter is before the Court in its writ jurisdiction. This appears to us to be a rare case where this Court in its extraordinary writ jurisdiction will be justified in ignoring the effect of S. 17B of the Act and to decline to order payment of wages pendente lite.
8. In the view we have taken, the appeal is allowed. The impugned order is set aside. Interlocutory Application No. 1 filed in the writ petition is rejected. It is made clear that any observation made hereinabove shall not be taken to be a final opinion of the Court for determination of the question involved in the writ petition. In view of the hardship that may be caused to the workman in the instant case, it is appropriate to here and dispose of the writ petition expeditiously. The writ petition may be posted for final hearing in the first week of July 1995.