Andhra Pradesh High Court - Amravati
The Depot Manager, Apsrtc, Krishna ... vs Mulugu Prabrahma Chari, Krishna ... on 23 January, 2024
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
WRIT PETITION No.24248 of 2005
ORDER:-
1. The Andhra Pradesh State Road Transport Corporation/ the appellant calls in question the order dated 15.07.2005 of learned Labour Court, Guntur in Miscellaneous petition No.42 of 2001. It prays for a writ of certiorari seeking to quash the impugned order.
2. Respondent No.1 was a conductor appointed by the appellant and his services were regularized on 03.07.1988. While discharging his duties, he was allegedly involved in cash and ticket irregularities. There upon after due departmental enquiry being conducted, he was found guilty and was removed from service on 06.07.1993. Thereafter, respondent No.1 challenged the same by way of I.D.No.307 of 1993 before the learned Labour Court, Guntur. The learned Labour court found dereliction on part of respondent No.1 was correct and did not find any defect with the enquiry held against him but had come to conclude that the removal from service was disproportionate and accordingly set aside the same with a direction to reinstate him into service without back wages but with continuity of service. Accordingly, it passed the award dated 26.11.1996 and 2 Dr. VRKS, J W.P.No.24248 of 2005 the same was published on 24.01.1998. The employer reinstated respondent No.1 into service and respondent No.1 accordingly reported to duty on 09.03.1998. Four years thereafter, respondent No.1 filed Miscellaneous Petition No.42 of 2001 under Section 33-C(2) of the Industrial Disputes Act, 1947. The grievance he raised was that he was supposed to be granted notional increments from the date of removal till the date of reinstatement but the same were not granted and therefore seeking release of the notional increments and payment of differential salary, he filed the Miscellaneous Petition. The employer/APSRTC contested the claim stating that the mere order of reinstatement with continuity of service does not entitle for release of notional increments and the notional increments could be claimed only if the award had granted continuity of service with consequential benefits. The learned Labour Court enquired into the issue and by the impugned order, it agreed with the claim of the respondent No.1 and allowed the petition and directed the APSRTC to release notional increments for the period from the date of removal from service till the date of reinstatement and directed to pay the arrears within two months.
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3. Challenging that order, the APSRTC has come up with this writ petition. Sri Solomon Raju Manchala, the learned counsel for writ petitioner urged that when the award of the labour court was only for continuity of service, it was incorrect on part of the labour court to grant notional increments and the approach of the labour court is against the precedent rendered by the Hon'ble Supreme Court of India. The next submission is that the question raised in Miscellaneous Petition No.42 of 2001 under Section 33-C(2) of the Industrial Disputes Act, 1947 ought not to have been entertained by the labour court in the absence of any reference made to it in that regard. It may be noted here that the second submission is not a ground urged in writ petition and is also not a ground urged before the learned Labour Court. In support of his submissions, the learned counsel cited:
1. Andhra Pradesh State Road Transport Corporation (A.P.S.R.T.C.) V. Abdul Kareem1.
2. Andhra Pradesh State Road Transport Corporation V. S. Narsa Goud2.
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(2005) 6 SCC 36 4 Dr. VRKS, J W.P.No.24248 of 2005
3. Andhra Pradesh State Road Transport Corporation V. B.S.David Paul3.
4. M/s. Bombay Chemicals Industries V. Deputy Labour Commissioner4.
5. Depot Manager, APSRTC V. N. Yadaiah5.
4. Refuting those contentions for respondent No.1, the learned counsel Sri M. Pitchaiah argued that the impugned order does not require interference, since the learned Labour Court appropriately exercised its jurisdiction under section 33- C(2) of the Industrial Disputes Act, 1947 since the claim of the respondent No.1 before the labour court was based on the earlier award in I.D.No.307 of 1993 by which he was reinstated with continuity of services without backwages. That the jurisdiction of the labour court was neither questioned before the Labour Court nor was taken as a ground of challenge in this writ petition and for the first time, during arguments such an objection was raised and the same cannot be considered. That 2 (2003) 2 SCC 212 3 LAWS (SC) - 2006 - 2 - 58 4 2022 LiveLaw (SC) 130 5 LAWS (TLNG) - 2023 - 6- 4 5 Dr. VRKS, J W.P.No.24248 of 2005 the precedent cited for the writ petitioner relates to cases of unauthorized absence of employees and the ratios therein have no application to the facts at hand since respondent No.1 was not punished for any unauthorized absence. Learned counsel further argued that except what was not granted by the labour court for all the rest of the benefits, respondent is entitled to and by the impugned order, the learned labour court did the same and therefore it cannot be found fault with and therefore learned counsel seeks dismissal of the writ petition. In support of his contentions, the learned counsel cited:
1. Central Bank of India Limited V. Raja Gopalan6
2. Mandegam Radhakrishna Reddy V. Sri Barathi Velu Bus Services7.
3. Deepali Gundu Surwase V. Kranthi Junior Adhyapak Mahavidyalaya8.
5. From the rival contentions, the following points fall for consideration: -
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AIR 1964 SC 743 7 (1986) LAB.I.C.80(AP(FB) 8 (2013) 10 SCC 324 6 Dr. VRKS, J W.P.No.24248 of 2005
1. In the facts and circumstances of the case, the miscellaneous petition under section 33-C(2) of the Industrial Disputes Act, 1947 was not maintainable and only on a reference, the dispute could have been adjudicated and the learned Labour Court, Guntur acted without jurisdiction?
2. Whether in a case of reinstatement with continuity of service, law does not permit granting of notional increments, but the approach of the learned Labour Court was erroneous when it granted the notional increments?
POINT No.1: -
In I.D.No.307 of 1993, the learned Labour Court, Guntur passed its award dated 26.11.1996 setting aside the order of removal with a positive direction that the respondent No.1 herein is to be reinstated by the writ petitioner into service with continuity of service but without back wages. The said order is silent as to whether notional increments should be released or not. It is based on this order, respondent No.1 claims that since the learned labour court granted him the continuity of service, his employer/ APSRTC is bound to release him notional increments for the period during which he was out of 7 Dr. VRKS, J W.P.No.24248 of 2005 employment because of order of removal passed by the disciplinary authority. His Miscellaneous Petition No.42 of 2001 filed under Section 33-C(2) of the Industrial Disputes Act, 1947 is based on the above award which granted continuity of service.
Section 33-C(2) of the Industrial Disputes Act, 1947 reads as below:
Recovery of money due from an employer: -
1. ........
2. "Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government ] [within a period not exceeding three months:] [Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]
3. .........8
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6. The above provision permits a workman to move an application if he believes he is entitled to receive from the employer any benefit. On moving such an application, the learned Labour Court must determine the claim. A claim under Section 33-C(2) should be one that is based on an existing right. A Constitutional Bench of the Hon'ble Supreme Court of India in Central Bank of India V. Raja Gopalan laid down the law wherein their Lordships were pleased to explain as to when recourse to section 10(1) of the Industrial Disputes Act, 1947 (herein after referred as Act, 1947) is possible and when recourse under Section 33-C(2) of the Act, 1947 is possible. Their Lordships specifically held that if a workman's right to receive the benefit is disputed that has to be determined by the Labour Court. Mere denial of the claim of the employee does not oust the jurisdiction of the Labour Court from exercising powers under Section 33-C(2) of the Act, 1947. The labour court is entitled to enquire into the existence or otherwise of such right which is claimed by the employee. Their Lordships further held that if a claim is based on an award passed, the labour court would necessarily have to interpret the award on which the right is based and claimed. Their Lordships further held that 9 Dr. VRKS, J W.P.No.24248 of 2005 while so interpreting, the Labour court cannot add or subtract from the provisions of the award. Section 33-C(2) deals with cases of implementation of individual rights of workman falling under its provisions. In the case at hand, the claim for notional increments on reinstatement with continuity of service of respondent No.1 is based on a right that he believed to have been conferred to him by the Industrial tribunal which passed the award of reinstatement with continuity of service. Therefore, when he was not granted notional increments, his claim made under section 33-C(2) was as provided under law and entertaining such petition by the labour court was within its jurisdiction. The argument of the learned counsel for writ petitioner that reference was required for determination of such claims and an application under Section 33-C(2) is not maintainable is sought to be supported by the learned counsel based on the ratio in M/s Bombay Chemicals Industries V. Depot Labour Commissioner. That was a case where an employee filed application under section 33-C(2) demanding the difference of wages. The prime contention of the employer in resisting the said application was that the applicant was not its employee and that there was no relationship of employee and 10 Dr. VRKS, J W.P.No.24248 of 2005 employer between them. The Learned Labour Court allowed the application directing the employer to pay difference of wages. It was in that context when the matter was brought before their Lordships by way of an appeal, their Lordships held that in an application under section 33-C(2) of the Act, 1947, the labour court had no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workman. Learned Labour court can only interpret the award on which the claim is based. The power of Labour court under Section 33-C(2) is like that of an executing court. Without prior adjudication as to whether there was employer-employee relationship or not, the disputed claim of arrears of wages could not be entertained by the Labour court under Section 33-C(2) until the employer - employee relationship is established on a reference, there could be no pre-existing right based on which a claim for benefit under Section 33-C(2) could be made. Finally, their Lordships relegated the parties to take steps for initiation of appropriate proceeding by way of a reference to the Labour court to adjudicate about the legal relationship between the parties. This ruling cited by the learned counsel for writ petitioner is in tune with the law laid down by the Hon'ble Supreme Court of India in 11 Dr. VRKS, J W.P.No.24248 of 2005 the earlier referred judgment. In the case at hand, the relationship between the parties is never at stake and dispute. It is only entitlement of a benefit based on the award which was agitated under Section 33-C(2). Therefore, the contention of the learned counsel for writ petitioner about absence of jurisdiction for the Labour court is incorrect. Hence point is answered against the writ petitioners.
POINT No.2: -
Between the date of removal from service and the order of reinstatement and reporting to duty, respondent No.1 was out of service. He was reinstated into service is a fact that was never in dispute. Continuity of service was one of the reliefs granted to him. The question that arises is whether continuity of service includes increments that fell due during that period when respondent No.1 was out of service. In other words, whether order of granting continuity of service should be read as inclusive of grant of notional increments. In the view of the learned Labour court, Guntur as there was the relief of continuity of service granting of notional increments should follow. It is that aspect of the matter that has fallen to 12 Dr. VRKS, J W.P.No.24248 of 2005 contentions in this writ petition. Learned counsel for respondent No.1 cited Deepali Gundu Surwase V. Kranthi Junior Adhyapak Mahavidyalaya stating that "reinstatement" means "to re-install, re-establish, to place again in a former state, Condition, or office committed to restore to stay or position from which the object or person had been removed". Learned counsel urged that when once the order of Labour court granted reinstatement to respondent No.1 and when the award has not specifically denied notional increments for the period during which respondent No.1 was out of service it has to be understood that notional increments are available and they ought to have been granted by the employer and when the employer failed to grant them, respondent No.1 rightly invoked the jurisdiction of the Labour court and by the impugned order, the learned Labour court rightly granted the relief. Thus, this argument of the learned counsel for respondent No.1 assumes that the order of continuity of service carries with it all consequential benefits. In other words, according to the learned counsel for respondent No.1 for granting of consequential benefits because of order of reinstatement, no separate order is required. While the submissions seem very attractive, the position of law does not 13 Dr. VRKS, J W.P.No.24248 of 2005 seem to support this argument. It is not the case of respondent No.1 that in I.D.No.307 of 1993, he sought for continuity of service with all consequential benefits. It is undisputed that the award in I.D.No.307 of 1993 granted continuity of service and there is no order as to consequential benefits. Law is that a relief must be deemed to have been denied when it was not granted (vide APSRTC V. B.S. David Paul). The cited ruling Deepali Gundu Surwase's case is with reference to a situation where the employee was forcibly kept out of the service by the management of the school and that led to lot of litigation and the question that was framed for consideration by their Lordships was whether the employee was entitled to wages for the period during which she was forcibly kept out of service by the management. Finally, their Lordships held that the employee was entitled to back wages and directed the employer to pay the same. It was in that context, their Lordships had to interpret "reinstatement". It was in the context of those facts, their Lordships laid the law that in cases of wrongful termination of service, reinstatement with continuity of service with back wages is the normal rule. The ruling is essentially with reference to entitlement for back wages in cases of 14 Dr. VRKS, J W.P.No.24248 of 2005 wrongful removal. While tracing the various precedent, their Lordships at page No.356 have also noted that even where continuity of service is directed it should only be for the purpose of pensionary/ retirement benefits and not for other benefits like increments, promotions etc. In APSRTC V. Abdul Kareem's case, the Hon'ble Supreme Court of India had also quoted and explained the ruling in APSRTC V. S. Narsa Goud. In Abdul Kareem's case, the employee was removed from service since he concealed his earlier employment and removal from the same service. Finally, the Labour court set aside the removal and directed reinstatement into service without back wages. There was no order about continuity of service. The other case that was also considered there was about financial irregularity and the employee was removed from service and by an award, the Labour court set aside the removal and directed the reinstatement with continuity of service. While dealing with those two cases, their Lordships at paragraph No.10 laid their ratio in the following words " there is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be 15 Dr. VRKS, J W.P.No.24248 of 2005 entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence". At paragraph No.12, their Lordships held that the employee was not entitled for benefit of notional increments during the period when he was out of service. This ruling is not about a case of employee being unauthorizedly absent from attending duties. The ruling makes it crystal clear that an award of a Labour court granting reinstatement with continuity of service by itself does not entitle the employee for notional increments for the period during which he was out of service. For an employee to have the benefit of notional increments during the period when he was out of service there should have been a specific direction in the award of the Labour court and in the absence of such specific direction an employee is not entitled for notional increments for that period during which he was not in service. In fact, that was also the view taken by the Hon'ble Telangana High Court in Depot Manager, APSRTC V. N. Yadaiah.
7. In the case at hand, the award of reinstatement granted only continuity of service and did not grant all consequential 16 Dr. VRKS, J W.P.No.24248 of 2005 benefits. Therefore, while exercising powers under Section 33- C(2), the Labour court, Guntur committed legal error in granting notional increments which were not available under law to the employee/ respondent No.1 herein. A writ of certiorari is maintainable if the order of the Labour court is perverse or the approach of the Labour court is erroneous at law. The writ petitioner is right in contending that the impugned order of the Labour court is erroneous at law. Hence, this point is answered in favour of the writ petitioner and against respondent No.1.
8. In the result, this writ petition is allowed. Consequently, order dated 15.07.2005 of learned presiding officer, Labour court, Guntur in M.P.No.42 of 2001 is set aside. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 23.01.2024 Dvs 17 Dr. VRKS, J W.P.No.24248 of 2005 159 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR WRIT PETITION No.24248 of 2005 Date: 23.01.2024 Dvs