Andhra HC (Pre-Telangana)
B.V. Rao vs Chittivalasa Jute Mills And Anr. on 13 October, 1989
Equivalent citations: (1990)ILLJ513AP
Author: B.P. Jeevan Reddy
Bench: B.P. Jeevan Reddy
JUDGMENT Jeevan Reddy, J.
1. These two writ appeals arise from a common judgment delivered by a learned single judge in Writ Petition Nos. 10067 of 1988 and 10648 of 1988. The first mentioned writ petition was filed by the employer (who is the 1st respondent in these writ appeals), while the second mentioned writ petition was filed by the appellant-employee. In fact, the judgment of the learned single Judge also disposes of A.S. No. 2611 of 1986, which too was filed the employer. A Letters Patent Appeal has been preferred against it.
2. The appellant, Sri B. V. Rao, who argued these appeals in person, was appointed as a Mechanical Maintenance Overseer on 8th November, 1971 in the service of Willard India Ltd., Calcutta. Chittivalasa Jute Mills is a Division of Willard. The Appellant was confirmed in the service of Chittivalasa with effect from 1st April 1972, by order dated 26th June 1972. His services were terminated by Chittvalasa on 9th February 1983. The termination was not in pursuance of any disciplinary enquiry, though the order states that the work of the appellant has not been satisfactory, and that the employer has lost confidence in the employee-appellant. Thereupon, the appellant instituted a Visakhapatnam, seeking reliefs of reinstatement in service with all antecedent benefits or, in the alternative, damages/compensation for wrongful termination, in a sum of Rs. 3 lakhs. The employer(defendant) contested the suit. It sought to justify the termination as warranted by unsatisfactory service of the appellant. The employer also contended that the suit is barred under Sections 14 and 34 of the Specific Relief Act. The learned Prl. Subordinate Judge, Visakhapatnam, held that the Civil Court had jurisdiction to entertain the suit, that the termination of service of the appellant was wrongful, but that by virtue of Section 14 of the Specific Relief Act, the Civil Court cannot decree reinstatement of the appellant. The learned Sub-ordinate Judge noted that the conditions of service of the appellant are not statutory, nor does Art. 311 of the Constitution apply to him. He also noted that no relief is claimed by the appellant under the Industrial Disputes Act. Accordingly he held the appellant entitled only to damages for wrongful termination, which he fixed at three year's salary, which come to Rs. 54,000/-. The suit was, accordingly, decreed only for damages.
3. After his suit was disposed of, and finding that the Civil Court was unable to decree reinstatement, the appellant raised an industrial dispute, which was referred by the competent authority (viz., the Deputy Commissioner of Labour, Visakhapatnam) to the Labour Court, Visakhpatnam - I.D. No. 11/1987. The appellant contended that his termination was wrongful and by way of penalty and that, therefore, he was entitled to reinstatement in service with all antecedent benefits. The employer resisted the proceedings contending that appellant is not a 'workman' within the meaning of Section 2(s) of the Industrial Dispute Act, that he belonged to managerial/supervisory cadre, and that having elected to pursue his remedy in a Civil Court and also having obtained relief therefrom, he is estopped from invoking the provisions of the Industrial Dispute Act. The employer thus contested the very maintainability of the industrial dispute. After enquiry, the Labour Court held that the appellant is a 'workman'; that he is not estopped from pursuing his remedies under the Industrial Disputes Act because of his resort to Civil Court earlier; that the dismissal was wrongful, and that, therefore, he is entitled to reinstatement in service, with continuity of service. However, in view of the decree obtained by the appellant from the Civil Court, the Labour Court thought that he is not entitled to back wages, or any other monetary benefits from the date of termination till the date of reinstatement. The Award of the Labour Court was delivered on 23rd May 1988 and published on 18th June 1988. It is against this Award of the Labour Court that both the employer and the employee filed two writ petitions. i.e., W.P. No. 10067 of 1988 and W.P. No. 10648 of 1988, respectively. The writ petitions were heard along with A.S. No. 2611 of 1986, which was preferred by the appellant against the judgment and decree of civil court declining the relief of reinstatement.
4. The learned single judge, I Pandurange Rao, J., arrived at the following findings :-
(i) Applying the principles enunciated by Supreme Court in Premier Automobiles v. K. S. Wadke (1975-II-LLJ-445) it must be held that the employee having approached the Civil Court, is estopped from invoking the remedies under the Industrial Disputes Act. Having elected to pursue one of the two alternative remedies available to him, he must stand by it, and cannot prosecute both the remedies in two different forums. The Reference I.D. No. 11 of 1987 was, therefore, incompetent. In this view of the matter it is unnecessary to go into the correctness of the finding of the Labour Court that the appellant was a 'workmen', within the meaning of Section 2(s) of the Industrial Dispute Act;
(ii) So far as the judgment and decree of the Civil Court is concerned, the finding of the trial Court that the termination is wrongful, is correct. Through the employee has not chosen to file an appeal against the judgment and decree of the Civil Court, the damages awarded by the Civil Court require a slight modification/enhancement. Instead of determining the damages at three year's salary, it must be determined at a sum equivalent to 3.33 years' salary, including the allowances admissible, on the basis of the last pay and allowances drawn by the appellant.
5. On the above findings, the learned Judge allowed W.P. No. 10067 (preferred by the employer), dismissed W.P. No. 10648 of 1988 (preferred by the employee) and modified the decree in A.S. No. 2611 of 1986 (preferred by the employer.) He directed the parties to bear their own costs in all the three matters. Questioning the said judgment the employee has preferred these two Writ Appeals, while the employer has preferred a Letters Patent Appeal.
6. The appellant, who argued these appeals in person with commendable ability and sobriety, urged that the learned single Judge was not right in holding that the remedies available to the appellant under the Industrial Disputes Act are barred because of his approaching the Civil Court earlier. He submitted that he approached the Civil Court believing implicitly the advice given to him by his advocate, and for that the he should not be published. He is a layman, unaware of the technicalities of law, and because the advocate advised him, he instituted the suit, unaware of the fact that the Civil Court would not, and could not, decree reinstatement in service. In any event, he submitted, he is not precluded from pursuing his remedies under the Industrial Disputes Act in so far as the relief of reinstatement is concerned, in as much as the said relief could not have been granted by the Civil Court. Since the relief of reinstatement can be granted only by the Labour Court under the provisions of the Industrial Disputes Act, and not by the Civil Court, the question of election or estopped is out of place. He relied upon several decisions, to which we shall presently refer, The appellant also filed an affidavit before us undertaking not to pursue, enforce, and execute the decree obtained by him in Civil Court, and preferring to pursue his remedies only under the Industrial Disputes Act. He requested us to take this affidavit into consideration and hold that he is not precluded from pursuing his remedies under the Industrial Disputes Act.
7. On the other hand, the learned counsel for the employer-respondent sought to justify the finding of the learned single Judge on the question of jurisdiction of the Labour Court. He also submitted that the appellant was not a 'workman', within the meaning of Section 2(s) of the I.D. Act, and for this reason also the reference of dispute to Labour Court is incompetent.
8. On the first and the main question arising in these writ appeals the following aspects need consideration : Whether the suit filed by the appellant in the Civil Court, was maintainable in Civil Court ? Whether the question of election or estopped arises in this case ? Whether the Industrial Disputes Act excludes the jurisdiction of Civil Court, by necessary implication, in respect of matter and reliefs which can be granted by the Court/Tribunal created thereby ? What are the principles governing the jurisdiction of Civil Court vis-a-vis the Court/Tribunal created by the Industrial Disputes Act, in such matters ?
9. A perusal of the plaint filed by the appellant in O.S. No. 299 of 1983 discloses that the appellant did not raise any contention based upon the provisions of the Industrial Disputes Act. There was no allegation that any of the provisions of the said Act were violated. It was a pure and simple suit complaining of wrongful termination, i.e., contrary to the terms and conditions contained in the contract of employment, and asking the relief of reinstatement. Alternatively, the relief of damages for wrongful termination was asked for. It, therefore, cannot be said that such a suit was not maintainable in a Civil Court. There is no provision in the Industrial Disputes Act which, either expressly or by necessary implication, bars institution of such a suit in Civil Court. It may be that by virtue of Section 14(1)(d) of the Specific Relief Act the Civil Court may not enforce a contract of personal service; but that does mean that the suit as filed was not maintainable in a Civil Court. Only that the first relief could not be granted by it. Moreover, until and unless the issue 'whether the termination is wrongful' was answered in the affirmative, the Civil Court could not have granted any relief. The subject-matter of the suit was thus within the season of the Civil Court. The question is, whether by virtue of his instituting the said suit, the appellant is precluded by any rule of law from adopting the remedies provided by the Industrial Disputes Act.
10. The Industrial Disputes Act has been enacted for investigation and settlement of industrial disputes in the interest of industrial peace. It is designed to protect and promote the interest of workmen who, it was recognised, stand, generally speaking, on a weaker footing vis-a-vis the employer. Labour Court is a creature of the Act. Though the powers of Labour Court are not specifically defined, it is well recognised that it is open to the Labour Court to grant such relief as it thinks appropriate in the circumstances of the case. It can grant the relief of reinstatement; it can award compensation in lieu of wrongful termination : it can reduce the punishment in a disciplinary enquiry, and so on. The matters within the purview of Labour Court are set out in the Second Schedule to the Act. Item 3 thereof reads :-
"3. Discharge or dismissal of workman including reinstatement of, or grant of relief to workman wrongfully dismissed".
The word 'discharge', though not defined in the Act, is of wide amplitude and takes in any and every termination of service. Dismissal may be in pursuance of a disciplinary enquiry, or otherwise. It should also be remembered that the several items mentioned in Second and Third Schedules are akin to the entires in the Seventh Schedule to the Constitution, and must be liberally construed. It is thus clear that the Labour Court had undoubted jurisdiction to entertain the appellant's grievance of wrongful termination, and could have awarded such relief as it thought fit in the circumstances, including the relief of reinstatement and back wages. The issue is whether this remedy available to the appellant is taken away from him because of his approaching the Civil Court earlier to invoking the provisions of the Industrial Disputes Act ? Before proceeding further, it is necessary to mention a factual aspect. In the suit, the employer-defendant did not object to the jurisdiction of the Civil Court. It was not its case that by virtue of the provisions of the Industrial Disputes Act, the said suit is barred. It contested the suit only on merits.
11. In Premier Automobiles v. K. S. Wadke (supra), the suit was filed by a de-recognised Union of workers for a declaration that a certain settlement arrived at between the employer and the recognised Union was not binding upon the plaintiff-Union and its members, and for a permanent injunction restraining the employer from enforcing or implementing the said settlement with respect to the plaintiff, its members and other workers who were not members of the recognised Union. The contention was that the said settlement arrived at under Section 18(1) of the I.D. Act has been arrived at without following the mandatory requirements of Section 9-A of the Act. The defendant employer not only contended that the settlement is binding upon all the workers, but also questioned the jurisdiction of the Civil Court to entertain the suit. According to the employer, it was an industrial dispute which is outside the purview of the Civil Court. This issue was ultimately taken to the Supreme Court. In paragraph 9 of its judgment, the Supreme Court, observed (p. 451) :
"It would thus be seen that through the intervention of the appropriate Government, of course not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes (by I.D. Act). But since an individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the Government, it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the disputes is not an industrial dispute within the meaning of Section 2(k), or within the meaning of Section 2-A of the Act, it is obvious that there is no provision for adjudication of such dispute under the Act, Civil Courts will be proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the Civil Court. It is plain that he cannot have both. He has to choose the one or the other. But we shall presently show that the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that even Civil Court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognised by and enforceable under the Act alone .....".
After an elaborate consideration of several decisions of the Supreme Court and of English Courts, the Court enunciated the following principle in paragraph 23 (p-459) :
"To sum up, the principle applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus :-
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right is sought to be enforced is a right created under the Act such as Chapter V-A, then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be ....".
Having enunciated the above principles, the Court proceeded to observe in paragraph 24 as follows (p. 459) :
"We may, however, in relation to principle 2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2-A of the Act will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle 2. Cases of industrial disputes by an large, invariably, are bound to be covered by principle 3 stated above ....".
Then, in the next two paragraphs they proceeded to refer to the decisions of the High Courts taking one or the other view. Inter alia they approved a Bench decision of the Calcutta High Court in M/s. Austin Distributors P. Ltd. v. Nil Kumar Das 1970 (3) L.I.C. 323, in the following words (p 460) :
"We approve what has been said by Bench of the Calcutta High Court in the case of M/s. Austin Distributors P. Ltd. v. Nil Kumar Das (supra) (Calcutta) that a suit for a recovery of damages for wrongful dismissal, on the grounds which are clearly entertainable in Civil Court, would lie in that court even though a special remedy is provided in the Act in respect of that matter. This would be so on the footing that the dismissal was in violation of the contract of service recognised under the general law ...".
12. It is clear from the observations that if the dispute is an industrial dispute arising out of a right or liability under a general or common law, the jurisdiction of the Civil Court is not barred. But in such a case, the person concerned has to make a choice, either to seek his remedies in a civil court, or to seek his remedies under the provisions of, and in the forums created by the Industrial Disputes Act. He cannot be permitted to pursue both the remedies, either simultaneously, or consecutively, If, however, a person seeks to enforce a right or obligation created under the Act, his only remedy is the one provided by the Industrial Disputes Act. The observations in paragraph 24 must be understood in their proper context. What the court said in the said paragraph was that almost every industrial dispute arising between an employer and a workman would be an industrial dispute within the meaning of Section 2(k) and, therefore, can be agitated under the provisions of the I.D. Act. If so, it was observed, there would hardly be any occasion to deal with such types of cases in a Civil Court. But, the said words cannot be read as militating against principle 2 enunciated in the preceding paragraph. The very fact that the Supreme Court approved the principle of the Bench decision of the Calcutta High Court in Austin Distributors (supra) reinforces this view. Indeed, the subsequent decision of the Supreme Court in Sitaram v. Pigment Cakes & Chemicals Manufacturing Co. (1979-II-LLJ-444), reaffirms the said position. That was a case where a workman instituted a suit in a Civil Court for a declaration that his removal from service was illegal, and asking for his reinstatement with due benefits and advantages. In the alternative, he prayed that he may be awarded such compensation as the Court thinks appropriate. The defendant-employer disputed the jurisdiction of Civil Court to entertain the said suit. When the matter came up before the Supreme Court, it held thus (pp. 445-446) :
"After having appreciated the entire facts and the circumstances of the case, we are of the opinion that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a Civil Court. The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and therefore they cannot be granted. There are a number of decisions of this Court to wit ... But then in the alternative, the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he had made out a case - whether it was right on fact or not, that it a different question - that he was wrongfully dismissed from service. This relief could be granted by the Civil Court, if it found that the plaintiff's case was true. The High Court, in our opinion, is nor right in saying that no such had at all been made out in the plaint. In our opinion, as we have earlier said, reading the plaint as a whole such case can be spelt out. That being so, to this limited extent, the matter could be examined by the Civil Court."
Accordingly, the matter was sent back to the trial Court for disposal in accordance with law.
13. In Sukhi Ram v. State of Haryana 1982 (2) L.I.C. 1282, a Full Bench of Punjab and Haryana High Court considered the question "Whether a Civil Court has no jurisdiction to entertain a suit filed by a worker employed in a State Department Undertaking, whose service is protected by Art. 311 of the Constitution of India and who did not take any steps to have the dispute referred to a Labour Court, or a Tribunal under Section 10 of the Industrial Disputes Act ? ". Counsel for both the parties before the court agreed that it was principle 2 of the four principles enunciated by the Supreme Court in Premier Automobiles (supra) that was attracted in that case. The ratio of the Full Bench decision is found in paragraphs 10 and 11, where it is stated :
"Coming now to the second distinct category where the right or obligation giving rise to the Industrial disputes from a source other than the Act - that is, under the general law (including therein any other statutes) then under principle (2) the workmen is expressly given two alternative remedies. In such a case, it is in his desecration to either take resort to the ordinary jurisdiction of the Civil Courts or to seek the remedies under the Act. However, he must distinctly elect his remedy. It is now authoritatively settled that he cannot have both. He is to choose one or the other.
In the present case, as already noticed in para 6, it is the common case that the dismissal or removal of workmen here arises a dispute arising out of the rights or liabilities under the general or the common law. Once that is so, principle (2) of Premier Automobiles Ltd. case (supra), would be at once attracted and the workmen would be entitled to elect either of the alternative remedies available to them. There is no dispute here that the workmen have not even remotely resorted to any of the remedies under the Act. No industrial dispute was sought to be raised on their behalf not any reference claimed under Section 10 of the Act. They had straightway made their election and chosen to agitate their rights in the Civil Courts. Both on principle and binding precedent, therefore, they would be clearly entitled to claim relief by way of a civil suit ...".
Accordingly it was held that the Civil Court did have jurisdiction if no steps had been earlier taken by the plaintiffs-workmen to resort to the remedies provided by the Industrial Disputes Act. The Full Bench overruled an earlier Bench decision of the same Court in Banarsi Das v. State of Haryana (1080-II-LLJ-394), where it was held on the basis of entry 3 in Second Schedule to the Act, that Civil Court has no jurisdiction to entertain a suit of the present nature.
14. We may in this connection refer to certain other decisions, brought to our notice by the appellant. In Bargarh Co-operative Bank Ltd. v. Khetrapal Naik (1977-I-LLJ-403), a single Judge of Orissa High Court has taken the view that, by virtue of the provisions of the Industrial Disputes Act, and in particular Section 2-A thereof, the jurisdiction of Civil Court to entertain a suit questioning the validity of termination/dismissal of a workman by an employer is barred by necessary implication. He held that the Labour Court alone has exclusive jurisdiction to entertain such a dispute. From a perusal of the judgment it does not appear that the decision of the Supreme Court in Premier Automobiles (supra) was brought to the notice of the learned Judge, Since the principle enunciated by the learned Judge runs counter to the said decision of the Supreme Court, and also the subsequent decision in Sitaram v. Pigment Cake & Chemicals Manufacturing Co. (supra), we cannot accept the ratio of the said decision. The attempt of the appellant, of course, was to say that since the Civil Court had no jurisdiction to entertain the suit, the question of choice, or for that matter, the question of estopped, does not arise. The next decision cited by him is of Punjab & Haryana High Court in Ramala v. Labour Curt, Patiala (1986-II-LLJ-231). In this case, the workman's service was terminated. He instituted a suit in a Civil Court for a declaration that he continues to be in service of the employer Bank, and that the order terminating his service was illegal and void. The learned Judge agreed that the order of termination was illegal, but held that the suit itself was not maintainable against the Bank, since it was neither a department of the Government nor was a statutory body whose employees had statutory status. At that stage, the Union espoused the workman's cause, and the matter was referred to the Labour Court. The first issue before the Labour Court was whether the reference of the industrial dispute was incompetent. The Labour Court held, following the decision of the Supreme Court in Premier Automobiles (supra), that the workman having elected to pursue his remedy in a Civil Court the reference was bad, On a writ petition filed by the workman, however, the High Court held that the Labour Court was in error in holding that the reference was bad. Indeed, the employer-Bank appears to have conceded the said aspect before the High Court. However, the learned single Judge dismissed the writ petition on another question, viz., that the reference not having been made by the appropriate Government, was incompetent. Against the said decision, a Letters Patent Appeal was filed, and the only question considered in appeal was which is the appropriate Government ? Evidently, the appellant cited this decision to rely upon the opinion of the learned single Judge incorporated therein. But, since the decision is said to have been made upon a concession, and also because we do not have the full decision of the learned single Judge before us, we need express no opinion thereon.
15. Another decision cited by the appellant is in Workmen, Cochin Lighterage Corporation v. Paul Abrao (1974-II-LLJ-206), a decision of a Division Bench of Kerala High Court. But, the main question there was whether the decision of a Civil Court in respect of a matter exclusively within the jurisdiction of Industrial Tribunal, will operate as res judicata ? It was held that, it does not, for the reason that Civil Court had no jurisdiction to entertain the dispute. We do not think this decision is of any relevance herein.
16. On the above principles, it must be, held that the appellant herein having elected to institute a suit in a Civil Court, and having obtained a decree for the alternative relief claimed by him - though not for the first relief - is precluded from pursuing his remedies under, and in accordance with the provisions of the Industrial Disputes Act. It is not correct to say that inasmuch as the Civil Court had no power to grant reinstatement, the remedy under the Industrial Disputes Act is open in so far as the relief of reinstatement is concerned. The jurisdiction of the Civil Court, or the Labour Court depends upon subject-matter of the dispute. The subject-matter of the suit in Civil Court, or the subject-matter of the dispute raised in the Labour Court in this case, is whether the termination of the appellant's service was wrongful, or not. It is not as if the Labour Court would necessarily grant the relief of reinstatement on being satisfied that the termination is wrongful. Even the Labour Court has a discretion in the matter. Having regard to the circumstances of the case it may award reinstatement, or such compensation as it thinks appropriate in lieu of reinstatement. Moreover, by allowing a party to pursue his remedies in both the Civil Court and the Labour Court-whether simultaneously or consecutively-there is a likelihood of conflict of decisions. It is quite possible that in such a case, the Civil Court may say that the termination is wrongful, while on those very facts the Labour Court may say that it is not wrongful, or vice versa. It is true that if the matter comes before the Labour Court, the Labour Court will examine the validity of the termination not only in accordance with common law but also in the light of the provisions of the Industrial Disputes Act; but, that is beside the point. Even on the same facts, there is a possibility of the two Courts coming to opposite conclusions, if the parties are allowed to purse both the remedies. That is why, in our opinion, the Supreme Court expressly spoke of an option, of a choice, in the matter, as is evident from principle No. 2 and the observations in paragraph 9 of the judgment in Premier Automobiles. (supra).
17. The appellant brought to our notice the decision of the Supreme Court in S. M. Saiyad v. Baroda Municipal corporation . The appellant-employee therein was dismissed from service. He approached a Civil court for the relief of reinstatement on the ground that his dismissal was invalid. He failed to get any relief from the Civil Court, whereafter he raised an industrial dispute which was referred to Labour Court. The Labour Court found that his dismissal was invalid, and directed reinstatement; but it declined to grant back wages. On the writ petition filed by workmen, the high Court granted the relief of back wages for a part of the period. But what is relevant is that it refused back wages for the period during which the appellant-workman was seeking relief of reinstatement in the civil Court. The High Court was of the opinion that since the workman was pursuing proceedings in a civil Court which had no grant the relief of reinstatement, the employer should not be burdened with back wages in respect of the said period too. When the matter came up before the supreme Court, the correctness of the basis upon which the High Court refused back wages for part of the period, was questioned. The Supreme Court dealt with the said argument in the following words :
"When the appellant was dismissed from service he was not a qualified lawyer. He must have sought assistance and advice from a qualified legal practitioner and then approached the Civil Court for relief of reinstatement. The appellant must have gone in search of justice to a forum to which he must have been advised to approach but ultimately because of complexities of the justice system it transpired that he cannot get relief from the forum. He cannot be faulted for this outcome of technicalities of jurisdiction. Now if on this account the appellant is declined backwages he suffers double jeopardy through no fault of his, in that not only all wages are denied but also delay occurred in getting reinstatement. Is this denial justified when the appellant could not be blamed for approaching a forum under competent legal advice ? This would amount to imposing a penalty which with respect to the High Court the appellant did not deserve. On this lean ground we find it difficult to depart form the normal rule that on dismissal order being found to be invalid and the direction for reinstatement having been given the workman would be entitled to full back wages, unless the same can be denied on some relevant grounds. We are of the opinion that the denied of back wages for a portion of period for the reason that he was prosecuting remedy in a wrong forum would not be a relevant consideration for refusal of back wages ...."
The appellant tries to bring himself and his case within the principle of the said decision by filing an affidavit before us. The affidavit filed by him, in so as it is relevant, read as follows :-
"2. I hereby undertake to pursue the reliefs under Industrial Disputes Act only but not under Civil Law in connection with the cases against illegal termination on my employment by the 1st respondent-Management.
3. I humbly submit that I have already affirmed the above statement while raising the industrial dispute before the Assistant Commissioner of Labour, Visakhapatnam (para 12 on page 47 of material papers) and before his Lordship the Hon'ble Mr. Justice Upendralal Waghray while vacating the stay of W.V.M.P. 1518 of 1988 and again before his Lordship the Hon'ble Mr. Justice Quadri in C.M.P. No. 15894 of 1988 (page no. 140 to 143 of material papers) where their Lordships were pleased to direct the Management to withdraw the amount deposited by them in the Civil Court basing on my above statement.
4. I therefore pray this Hon'ble Court may be pleased to allow the writ appeals reinstating me into service with all attendant benefits, and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case".
18. Now, fortunately for the appellant, that civil suit filed by him is still pending in this court in the form of a Letters Patent Appeal. The said appeal has been preferred by the employer, though it has not yet been numbered. We sent for the records in the L.P.A., and the appellant (plaintiff in the said proceedings) has requested us to permit him to withdraw the said suit. In the circumstances of the case, we permit him to withdraw the suit. In as much as the suit itself has been withdrawn, the Letters Patent Appeal preferred by the employer has become unnecessary, and is disposed of as such. There shall be no order as to costs in the Letters Patent Appeal No. 335 of 1989.
19. The withdrawal of the suit leaves the way open for this Court to dispose of the writ appeals on merits. In such a situation, there can be no objection to the maintainability of the dispute in the Labour Court under provisions of the Industrial Disputes Act. Accordingly, we proceed to deal with the writ appeals on merits.
20. It is urged by the respondent-employer that the appellant herein is not a 'workman'. This controversy was raised before the Labour Court which has, on an elaborate examination of the material placed before it, come to the conclusion that the appellant is a workman. It is a finding of fact. Counsel for the respondent-employer, however, submitted that the said finding is based on no evidence and must, therefore, be interfered with by way of certiorari. We have perused the judgment of the Labour Court, and we are unable to say that there is no evidence to support the finding of the Labour Court. There was both oral and documentary evidence on the said issue, and since the appellant's evidence remained practically un-rebutted, the Labour Court chose to accept the same. Nor are we impressed by the argument that the said finding is perverse. Accordingly, we affirm the finding of the Labour Court that the appellant is a 'workmen.'
21. Counsel for the respondent-employer lastly submitted that in case this Court agrees with the finding of the Labour Court that the termination was wrongful, it may award appropriate compensation to the appellant instead of reinstating him in service. He submitted that having regard to the past service of the appellant and all other relevant facts and circumstances of the case, this Court may not order reinstatement. He expressed his readiness to abide by such amount of compensation as this Court may determine in lieu of reinstatement. It is stated that the appellant had still eighteen years of service to go from the date of termination. We must, however, also take into account the expense the employer, has been put to in defending the proceedings initiated by the appellant in Civil Court. Having regard to the facts and circumstances of the case, we think it appropriate that the appellant be awarded appropriate compensation, in lieu of reinstatement. Having regard to the length of service still left for the appellant and the pay drawn by him at the time of his termination, we determine the compensation at the consolidated figure of Rs. 1,50,000/- The appellant shall also be entitled to interest on the said amount at the rate or 12% per annum from the date of reference, i.e., 1st May, 1987 till the date of payment. Time for payment two months from today. The amount of Rs. 11,000/- paid, pending the writ petitions (in pursuance of the interim orders of this Court) shall not be taken into account while complying with the direction to deposit the compensation amount.
22. We may make it clear that the above compensation has been determined by us in the particular facts and circumstances of this case, and having regard to the stand taken by the employer, and shall not serve as a precedent.
23. The writ appeals are allowed to the extent, and in terms indicated above. We direct the parties to bear their own costs in all the three matters.
24. After the judgment was pronounced it was brought to our notice that the appellant is in occupation of the quarter belonging to the Company, which was allotted to him while he was in service. He has been continuing in possession of the said quarter. Indeed he has also filed a suit and some orders have been obtained from the Civil Court protecting the possession of the appellant. Be that as it may, now that by virtue of this judgment, all connections between the employee and the employer is coming to an end with the payment of compensation determined by us, the appellant has no right to continue in occupation of the said quarters. Accordingly we direct that out of the amount directed to be paid to the appellant, half the amount shall be paid unconditionally but the other half shall be paid only after he vacates the quarter. He shall vacate the quarter in any event within three months from today.
25. If any suit instituted by the appellant is pending with respect to his right to be in occupation of the said quarter, the same shall be withdrawn by him. The appellant undertakes to that effect.