1. The respondent, joined service of the petitioner, as a Plumber, during the year 1974 and was promoted and designated as Works Assistant, during 1987. Alleging commission of misconduct, a charge-sheet dated 10-9-1991 was served on the respondent, to which, the explanation was submitted on 18-9-1991. After conducting disciplinary enquiry, the respondent was dismissed from service of the petitioner on 20-8-1993, for the proved misconduct in subordination. At the behest of the respondent, in I.D. No. 98 of 1993, Labour Court passed a award dated 29-9-2005, setting aside the said order of dismissal and directing reinstatement in the original post with continuity of service and consequential benefits. Both the petitioner and the respondent having assailed the said award, by a common order dated 16-11-2009 passed in W.P. Nos. 13097 of 2006 and 10409 of 2008, was upheld. Both parties, feeling aggrieved, filed W.A. Nos. 379 and 2457 of 2010. Writ appeal filed by the respondent-workman was dismissed and writ appeal filed by the petitioner-Management was allowed in part. It was held that the workman is not entitled to any back wages and was imposed a punishment of stoppage of two increments cumulatively.
2. Alleging violation and non-implementation of the award, as was modified in the common judgment dated 23-11-2010 passed in W.A. Nos. 379 and 2457 of 2010, the respondent having approached the Labour Department, sanction for prosecution of the petitioner having been passed on 26-9-2011 (Annexure-E), in exercise of the power under Section 29 of the Industrial Disputes Act, 1947, this writ petition was filed on 29-3-2012, to quash the order, as at Annexure-E passed by the Labour Commissioner, Bengaluru and for grant of consequential relief.
3. While ordering notice to the respondent, on 16-4-2012, the impugned order was stayed.
4. The respondent, in justification of the order, as at Annexure-E and seeking dismissal of the writ petition filed statement of objections on 7-11-2012.
5. To the memo dated 22-3-2013, filed on behalf of the petitioner, respondent filed statement of objections on 1-7-2013. A memo and copies of documents were filed by the respondents on 23-10-2013, to which, statement of objections was filed by the petitioner on 27-11-2013. On behalf of the petitioner, a memo enclosing copy of report of the 6th Central Pay Commission was filed on 4-12-2013, to which, the respondent filed statement of objections on 20-12-2013. The respondent filed a memo dated 10-1-2014, enclosing a copy of Salary Report for the period 2009-10 of G. Narayanaswamy, an employee, who joined service as a Plumber, after 7 years of the respondent joining service of the petitioner. To the said memo, petitioner filed statement of objections on 12-2-2014. On behalf of the petitioner, a memo was filed on 28-2-2014, enclosing five documents. Another memo dated 17-3-2014, was filed on behalf of the petitioner, producing extract of Office Memorandum dated 30-8-2008 issued by the joint Secretary to the Government of India. Yet another memo was filed on 1-4-2014 on behalf of the petitioner, producing a notice issued by the Government of Karnataka, Labour Department and the claim petition filed by the respondent before the Conciliation Officer. On behalf of the respondent, a memo dated 11-4-2014 was filed reporting the withdrawal of I.D.No. 80 of 2014, on the file of the Industrial Tribunal, Bengaluru. A memo dated 23-4-2015, was filed on behalf of the respondent, enclosing a comparative statement of the service particulars of the petitioner and that of Mr. G. Narayanaswamy, another employee working in the establishment of the petitioner.
6. On behalf of the respondent, additional documents were produced on 8-7-2015. Written submissions were filed by the learned Advocates appearing on both sides.
7. I.A. No. 1 of 2013 having been filed by the petitioner seeking clarification of the directions issued on 23-11-2010, in W.A. Nos. 379 and 2457 of 2010, an order dated 13-3-2013 was passed. It was made clear that workman is entitled to reinstatement and all consequential benefits, excluding back wages, subject to withholding two increments cumulatively.
8. Indisputedly, the respondent was reinstated into service on 11-1-2011 and attained the age of superannuation on 30-6-2013. Respondents has been paid by the petitioner, Rs. 4,85,745/- vide cheque dated 22-3-2013.
9. According to the petitioner, the respondent was given the benefits of the 5th and 6th pay commissions and was also given assured career progress promotion, also modified ACP i.e., notional promotions and upgradation on reinstatement and thus, there is full compliance of the award, as modified vide judgment dated 23-11-2010 assed in W.A. Nos. 379 and 2457 of 2010.
10. Sri Kasturi, learned Senior Advocate appearing for the petitioner, firstly contended that the order of sanction is vague and that there is no application of mind, which is apparent from the fact that the sanction authority has recorded ‘that the workman was not given promotions and there is non-implementation of judgment of this Court’. Learned Counsel submitted that the impugned order gives the respondent a carte blanche, who can choose whomsoever he wants to prosecute and the impugned order being bald and unspecific, is liable to be quashed. Learned Counsel by placing reliance on various decisions of the Apex Court and particularly on the decision in S.N. Hada and Others v The Binny Limited Staff Association (ILR 1987 Kar. 3762 : 1988-I-LLJ-405 (Kar.)), contended that there being lack of application of mind on the part of the authority while passing the order as at Annexure – E, the impugned order being vitiated, is liable to be quashed. Learned Counsel submitted that the respondent having been extended with the legitimate benefits in terms of the judgment passed in the writ appeals, the impugned order is bad. Alternatively, learned Counsel submitted that, if at all the respondent has any claim to make against the petitioner, in terms of the judgment dated 23-11-2010 passed in W.A. Nos. 379 and 2457 of 2010, as was clarified on 13-3-2013, he may seek relief before the Labour Court, under Section 33-C(2) of the Act. Learned Senior Advocate submitted that the petition may be allowed by reserving liberty to the respondent to seek remedy by filing an application under Section 33-C(2) of the Act before the Labour Court.
11. Smt. Pramila M. Nesargi, learned Senior Advocate, appearing for the respondent, on the order hand submitted that the petitioner having violated the award of the Labour Court and not extended the legitimate benefits in terms of the common judgment dated 23-11-2010 passed in W.A. Nos. 379 and 2457 of 2010, the sanction for prosecution was sought and upon consideration, the order as at Annexure-E was passed. Learned Counsel submitted that the petitioner has been driven the respondent from pillar to post and has been made to suffer unnecessarily and hence, the writ petition deserves to be dismissed with exemplary cost.
12. Perused the writ record and considered the rival contentions. The petitioner has paid by way of cheque dated 22-3-2013, Rs. 4,85,745/- to the respondent. According to the petitioner, the respondent has been given the benefits of the 5th and 6th pay commissions and notional promotions and upgradations, on reinstatement. The respondent contends that there is only part compliance and there is violation by the petitioner, in the matter of implementation of the award, which has merged with the judgment dated 23-11-2010 passed in the said writ appeals.
13. Section 33-C(2) of the Act reads thus:
'33-C. Recovery of money due from an employer. – (1) .....
(2) Where any workman is entitled to receive from the employee 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.'
14. Having regard to the rival contentions and the record of the writ petition, in my view, there is a need for computation of the money due or the amount at which such benefit should be computed and payable by the petitioner to the respondent. The said exercise can be undertaken in a proceeding before the Labour Court under Section 33-C(2) of the Act, as was rightly submitted by Sri Kasturi, learned Senior Advocate for the petitioner. Hence, by reserving liberty to the respondent to avail the said remedy, this petition is disposed of.
In the result, writ petition is allowed and the impugned order is quashed, particularly on account of the subsequent event of the clarification order dated 13-3-2013 passed by the Division Bench, noticed supra. However, liberty is reserved to the respondent to approach the Labour Court by filing an application under Section 33-C(2) of the Industrial Disputes Act, 1947 and seek
Please Login To View The Full Judgment!
remedy. It is made clear that in view of the submissions made by Sri Kasturi, learned Senior Advocate, the petitioner shall not be entitled to raise any objection with regard to the maintainability of the application under Section 33-C(2) of the Act and the jurisdiction of the Labour Court to adjudicate the matter on its merit. The withdrawal of I.D. No. 80 of 2014 by the respondent, in the facts and circumstances of this case would not be bar for him to maintain the application under Section 33-C(2) of the Act. The Labour Court shall decide the application with as much expedition as is possible and within a period of three months from the date the respondent in the proceeding before it is served with the notice of the application and enters appearance. Unnecessary adjournment, if any, sought by either of the parties be refused and the application decided within a period of three months from the date both parties appear in the matter. All other contentions of both sides are kept open. No costs.