Karnataka High Court
Sri. M. Ravi vs The Managemento Of Army Public School on 2 February, 2023
Author: G.Narendar
Bench: G.Narendar
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WP No. 10419 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE G.NARENDAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
WRIT PETITION NO. 10419 OF 2020 (L-TER)
BETWEEN:
SRI. M. RAVI
S/O M. RAMAIAH,
AGED ABOUT 55 YEARS,
RESIDING AT NO.262. 80 FEET ROAD,
13TH CROSS, OPP. G.M. MEN'S WEAR,
RAJENDRANAGAR, VIVEKNAGAR POST,
BENGALURU - 560 047.
...PETITIONER
(BY SRI. A J SRINIVASAN.,ADVOCATE)
AND:
Digitally THE MANAGEMENT OF ARMY PUBLIC SCHOOL,
signed by REPRESENTED BY THE CHAIRMAN,
SUMITHRA HQ KARNATAKA AND KERALA SUB AREA,
R
CUBBON ROAD, BENGALURU - 560 001.
Location:
High court
of Karnatka ...RESPONDENT
(BY SRI. RAMESH UPADHYAYA.,ADVOCATE)
THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.20.1.2020 IN APPLICATION CGA 3/2014 PASSED BY THE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR
COURT, BEGNALURU AND DIRECT THE RESPONDENT TO PAY
THE AMOUNT OF RS.3,07,025/- ALONG WITH INTEREST.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, VENKATESH NAIK T. J., MADE THE FOLLOWING:
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WP No. 10419 of 2020
ORDER
1. The petitioner has filed this writ petition praying to quash the order dated 20.1.2020 in Application CGA No.03/2014 passed by the Central Government Industrial Tribunal-cum-Labour Court, Bengaluru, vide Annexure-D and to direct the respondent to pay the amount of Rs.3,07,025/- along with interest.
2. Brief facts leading rise to the filing of this petition are as follows :
The petitioner was serving as a Lab Assistant in the respondent -School since the year 1992. However, the petitioner was terminated from service on various grounds vide order dated 7.9.2006, which came to be challenged by the petitioner in W.P.No.18198/2006. An order came to be passed by the learned Single Judge on 7.9.2006 ordering reinstatement with continuity of service however, without back wages. The said order was challenged, both by the petitioner as well as the respondent before the Division Bench in writ appeals No.1309/2008 along with -3- WP No. 10419 of 2020 Miscellaneous W.No.3353/2010, which came to be withdrawn by the parties on 15.03.2011. Thereafter, the petitioner reported for duty on 25.4.2011 and repeatedly requested the respondent to implement the order dated 26.6.2008 passed by the Learned Single Judge of this Court and to pay him full wages from 27.8.2008 to 24.4.2011 amounting to Rs.3,07,025/-. The respondent having not heeded to his request, the petitioner has filed an application under Section 33C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'ID Act' for brevity) in CGA No.03/2014 before the Central Government Industrial Tribunal-cum-Labour Court, Bangalore (hereinafter referred to as 'the Labour Court' for brevity) seeking for a direction to pay the amount of Rs.3,07,025/- towards arrears due from the respondent.
The Labour Court dismissed the application on the grounds that no order is passed either by the Hon'ble Writ Court or Hon'ble Appellate Court pertaining to entitlement of wages of the petitioner for the period from 27.06.2008 till the date of reinstatement and that the Hon'ble Writ Court did -4- WP No. 10419 of 2020 not stipulate the date within which its order shall be implemented. Hence, the petitioner has approached this Court.
3. The respondent have filed objection contending that :
(a) Petition is not maintainable in law or on facts.
(b) The petitioner is not entitled for any reliefs,
(c) The proceedings under Section 33C(2) of the I.D. Act, 1947 is of execution proceedings and it cannot be exercised in the absence of earlier adjudication of dispute,
(d) There is no prior adjudication of disputed amount including interest as claimed therein by the petitioner, thus, order of labour court has been justified.
4. Heard learned counsel for the petitioner and the learned counsel for the respondent.
5. It is contended by the learned counsel for the petitioner that in the claim made by the petitioner before the Labour court under Section 33C(2) of the ID Act, he did not ask for any right to be determined but asked for -5- WP No. 10419 of 2020 computing the amounts which he had a right to receive flowing from the order of this Court dated 26.6.2008, quashing the termination order dated 07.09.2006 and granted him reinstatement with continuity of service but without back wages and this order having attained finality without any modification, ought to have been implemented in letter and spirit by the respondent/Management and the petitioner had every right flowing from the order dated 7.9.2006 passed by the learned Single Judge of this Court to seek its implementation by way of Section 33C(2) of the ID Act which the Labour Court has been totally misconstrued. Hence, he prays to allow the writ petition.
The learned counsel for the petitioner in support of his contentions, has relied upon the following decisions :
1. APSRTC v. Vikram Reddy [2004 II LLJ 1051]
2. M.L. Bose and Co. Private Ltd. V. Its Employees [1961 (II) LLJ 107 SC]
3. Deepali Gundu Surwase - vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors. reported in (2013) 10 SCC 324 -6- WP No. 10419 of 2020
6. The learned counsel for respondent would submit that :
i) The petitioner is not entitled to the relief sought for quashing the order of the Labour Court, Bengaluru in CGA 03/2014 and for a direction directing the Respondent-
Management to pay a sum of Rs.3,07,025/- along with interest as prayed therein, and the present Writ Petition is liable to be rejected in limine;
ii) The Hon'ble Supreme Court of India time and again was pleased to hold that the proceedings under Section 33C(2) of the ID Act, 1947 is of execution proceedings and it cannot be exercised in the absence of earlier adjudication of dispute. In a judgment reported in 1994 AIR SCW 5000 in the case of Municipal Corporation of Delhi-Vs-Ganesh Razak and another at para 12, the Apex Court observed as under:
"12. The High Court has referred to some of these decisions but missed the true import thereof. The ration of these decisions clearly indicates that here the very basis of the claim or the entitlement of the workmen to a certain benefits is disputed, there being no earlier -7- WP No. 10419 of 2020 adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceedings under Section 33(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court power under Section 33C(2) like that the Executing Court's power to interpret the decree for the purpose of its execution".
The learned counsel for the respondent would further submit that, in the present case also as there is no prior adjudication of disputed amount including interest as claimed by the petitioner, the Order of the Labour Court is just and proper and the present writ petition is liable to be rejected.
iii) The learned counsel for respondent would submit that, the claim of the petitioner for Rs.3,07,025/- towards full wages for the period of 27.08.2008 to 24.04.2011 is not -8- WP No. 10419 of 2020 justified as there was no prior adjudication for the said payment for the period for which he has not worked; that the Labour Court has taken note of all the points before passing the Order and any averments of the petitioner contrary to this are all misconceived and is liable to be rejected and hence prayed to dismiss the petition.
iv) The learned counsel for the respondent would further submit that, the respondent is a School under the aegis of Army Welfare Society and is collecting nominal fees as per the directions of Army Welfare Education Society ('AWES' in short) as instructed from time to time and any adverse Order other than rejecting the present petition will put the Respondent into hardship and irreparable loss; and as such prayed to reject the present writ petition.
7. Considered the submission of the learned counsel for the parties and perused the writ papers.
8. It is not in dispute that the petitioner was serving as a Lab Assistant in the respondent-School since the year 1992 and he was terminated from service on 7.9.2006, -9- WP No. 10419 of 2020 which came to be challenged by the petitioner in W.P.No.18198/2006 and the learned Single Judge ordered reinstatement with continuity of service without back wages vide order dated 7.9.2006. Further, it is not in dispute that both the petitioner as well as the respondent challenged the order of the learned Single Judge in respective writ appeals and the same were withdrawn by both the parties. Hence, the order of the learned Single Judge has attained finality. Now, the question that arises for consideration before us is, as to payment of backwages to the petitioner?
9. Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit, he can approach Labour Court under Section 33C (2) of the ID Act. The benefit sought to be enforced under Section 33C (2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The
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WP No. 10419 of 2020difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not. Therefore, it cannot be spelt out from the award of reinstatement that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages, all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the ID Act is made.
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WP No. 10419 of 2020
10. The learned counsel for the respondent-Management would submit that merely upon reinstatement a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages and if so, to what extent.
11. On perusal of the decisions cited by the learned counsel for the petitioner, supra, and the fact situation involved in the present case, it appears that the respondent-Management had terminated the petitioner and later he re-joined duty on 25.4.2011 and thus entitled to consequential benefits. The Labour Court found the action of the Management to be wholly arbitrary and vitiated due to violation of rules and natural justice and the allegations leveled against the petitioner were frivolous. The Labour Court took cognizance of the statement made on behalf of the petitioner that he was
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WP No. 10419 of 2020not gainfully employed anywhere and the fact that the respondent-Management had not confronted the same.
12. The Hon'ble Apex Court in Deepali Gundu Surwase - vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors. reported in (2013) 10 SCC 324, relied upon by the learned counsel for the petitioner, has observed that in similar cases, the petitioner could be ordered for reinstatement with full backwages. Then the question will be whether the backwages should be awarded fully or only partially (and if so, the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding backwages. Therefore, it is necessary for the employee to contend that he was not gainfully employed from the date of his termination. Whereas in the instant case, the petitioner was never engaged in alternative employment or business during the relevant period.
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WP No. 10419 of 2020
13. Indeed, a specific contention is taken by the petitioner stating that, no enquiry as contemplated has been conducted. If the termination is required to be done on disciplinary ground, the procedure laid down in Articles 171 and 172 of the Rules and Regulations of the Army Welfare Education Society are required to be followed, after a show cause notice is issued to delinquent, explaining the reasons as to why the services are proposed to be terminated. Article 171 of the aforesaid Rules and Regulations would indicate that, the Head of the Institution, after preliminary investigation and if prima facie case is established, the same will be forwarded in writing to the Chairman for appointing an Inquiry Officer for further investigation. Thereafter, the Enquiry Officer so appointed will complete an enquiry expeditiously and forward his report to the Disciplinary Authority within 20 days. But, in the case on hand, it appears that, no enquiry has been initiated as contemplated under Article 171 of the Rules and Regulations, but, only a show cause notice and termination order has been issued to the
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WP No. 10419 of 2020petitioner. Having regard to the fact that, the principles of natural justice ought to have been followed by Respondent. Hence, termination without back wages is without holding an enquiry as contemplated under Article 171 of the Rules and Regulations.
14. Admittedly, the Respondent/Management neither allowed the petitioner to join duty nor paid wages, rather after making show of holding preliminary inquiry, Management terminated the petitioner from service. The Tribunal found that, action of Management to be wholly arbitrary and vitiated due to violations of rules of natural justice. But Tribunal declined to grant back wages.
15. Hon'ble Apex Court, in case of Deepali Gundu supra has held that, "in cases of wrongful termination of service, reinstatement with continuity of service and back wages is normal rule".
16. In view of the facts and circumstance of the case and the ratio laid down in the case cited supra, the petitioner is entitled for back wages.
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WP No. 10419 of 2020
17. In the result, we pass the following :
ORDER
i) Writ Petition is allowed;
ii) The Respondent-Management shall pay full back wages to the petitioner within a period of (4) four weeks from the date of receipt of a copy of this order failing which, it shall have to pay interest @ 9% P.A. from the date of suspension of the petitioner till the date of his actual reinstatement.
Sd/-
JUDGE Sd/-
JUDGE rs