Mahalakshmi Fibres and Industries Ltd. and Another vs Deolal Hazam

Pradeep Kumar, J.—Heard the learned Counsel for Management of Mahalakshmi Fibres & Industries Ltd., Ranchi and also on behalf of the Respondent-workman-Deolal Hazam.

Learned Counsel for the Petitioner through this writ application has challenged the order passed by the Labour Court as contained in annexure-6 vide order dated March 29, 2006 passed in M.J. Case No. 7/2004 by which order learned Labour Court has allowed the workman benefit u/s 32(C)(2) of back wages @ Rs. 9,900 per annum from January, 1992 to May, 2004 for 12 years 5 months amounting to Rs. 1,22,925 and leave encashment of Rs. 1,140 per annum amounting to Rs. 14,155/- and bonus @ 8.33% of 9900 = Rs. 824.65 amounting to Rs. 10,239.40 and thus directed to pay the Petitioner-company Rs. 1,47,319.40 within 60 days, failing which they will be liable to pay @ 8%.

Learned Counsel for Petitioner submits that the Respondent-workman was working in the factory of the Petitioner''s company on June 9, 1990. He along with some other persons created disturbance and looted office property. Accordingly, he was charge sheeted on June 11, 1990 which is annexure-1 of the writ application. Thereafter, on his denial domestic inquiry was held and on the basis of the inquiry report submitted by the inquiry officer, who found the workman guilty, of misconduct, management dismissed him for service on January 18, 1992. Subsequently, Petitioner-management filed an application u/s 33(2)(b) of the Industrial Dispute Act and sent for approval of the dismissal order by the Labour Court, Ranchi. The Labour Court refused to grant approval of the said dismissal. Thereafter, Petitioner preferred a writ before the Hon''ble High Court and the said writ application was also dismissed. Thereafter, a review petition was filed by the Petitioner which was also dismissed. Thereafter, after a gap of long 12 years in the year 2004 Respondent-workman filed this application u/s 33C(1) for wages and other benefits from 1992 onwards. The management appeared and contested the claim on the ground that the claim being belated in stage, the same cannot be allowed. Moreover, the Respondent was gainfully employed elsewhere in the aforesaid period and in that view of the matter, since he had not rendered actual service in that period, he is not entitled to get wages and other benefits. It is submitted by the learned Counsel for Petitioner that against the mandate of the Hon''ble Supreme Court as enunciated in the case of North East Karnataka Road Transport Corporation Vs. M. Nagangouda, where it has been held that the Court must come to an independent finding as to whether the workman was gainfully employed during the period he was not in service or not, before grant of back wages which has also been relied in other judgment of the Supreme Court and in the instant case although, Petitioner submits that during the period after dismissal from service from 1992 Respondent was gainfully employed and O.P.W.1 submits in para 3 of his evidence that workman was running a salon at B.I.T. More. The same was rejected by the Labour Court relying on the judgment reported in "1986(69) FLR 310 SC in the case of S.D. Chemicals and employees Union", and the law has now developed that if the workman is gainfully employed during the period he was not in service, he cannot be allowed full back wages with other benefits. In that view of the matter, the impugned award by which full back wages has been allowed to the workman since, January 1992 till the date of order is bad in law and only fit to be quashed.

Learned Counsel appearing for the Petitioner has further submitted that he has filed a supplementary affidavit on August 18, 2010 stating therein that although, the Petitioner-company filed this writ application on November 29, 2006 before this Hon''ble Court, but since no stay was granted and the matter remained pending for a long time due to non-availability of the Court, the case was listed for the first time on August 3, 2010 and forced by the workman for filing certificate case against him and since warrant were being issued against him. The company has made full payment of the said amount of Rs. 1,47,320 to the workman vide annexure-7 and the particulars of challan with date has been filed vide annexure-7 which is not disputed by the learned Counsel appearing for the workman, who admitted that money has been paid, but no interest has been given as per the order.

Learned Counsel for the Respondent has submitted that it is admitted case of the Petitioner that the order of dismissal passed by the Petitioner- management dated January 18, 1992 was not confirmed by the Labour Court, Ranchi vide Misc. Case No. 2/1992 dated August 22, 1997 and the Labour Court clearly stated that the order of the dismissal passed by the management against the concerned workman is not confirmed as per the provisions of Section 33(2)(b) of the act. It is also accepted fact that thereafter, the Petitioner filed an application on August 28, 1997, the letter which was exhibited as Exhibit 2 allowed him to join his service, but the same was not accepted then a registered letter was sent which was received on August 30, 1997. It is submitted that thereafter, the company preferred a civil writ application bearing No. C.W.J.C. 3438/1998(R) before the Ranchi Bench of the Patna High Court and the Hon''ble Court by its order dismissed the writ application and finding the order refused to approve the dismissal order within the ambit of Section 33(2)(b) of the act and the same was not beyond jurisdiction.

It is submitted that thereafter, again the workman filed an application marked Exhibit 3-A and asked the management to allow him to join his service, but the same was not accepted and again the letter was sent by registered post. Thereafter, the management again preferred a Civil Review application No. 84/2003 before the Jharkhand High Court and the Hon''ble High Court vide order dated April 9, 2004 refused to review the matter. It is submitted by the Respondent- workman that thereafter, again by Exhibit 3/B they filed letter to the management dated April 28, 2004 permitting him to join his service which was not accepted and the letter was again sent by registered post. As such, the management cannot say that his application before the Labour Court, Ranchi u/s 33C(2) filed in the year 2004 was stale and belated. He has always approached the management for allowing him to join the service. Learned Counsel for the workman-Respondent has relied upon the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , where in it has been held that if approval u/s 33(2)(b) of the act is not given, nothing more is required to be done by the employee as it will have to be deemed that the order of discharge of dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in Service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement".

Learned Counsel for the Respondent has also relied upon the judgment in the case of J.N. Srivastava Vs. Union of India (UOI) and Another, "holding that if the employee has not been allowed to join, he will be deemed to be in service".

Thus after considering the rival arguments of the parties and going through the records, main points which are involved are:

i) as to whether the computation of back wages u/s 33(2)(C) of the act after a long lapse of 12 year is justified or stale and fit to be rejected.

ii) if, the reference Court granting back wages, whether it is. justified in giving full back wages in the light of evidences that the workman was gainfully employed somewhere else and there is no evidence given by him has been relied in different judgment of the Supreme Court.

iii) The third question arises is after the order of dismissal was not approved by the Labour Court and subsequently, confirmed by the High Court, whether the Respondent-workman actually attempted to join his service or not by sending letters of his intention through registered post or he wants to get salary and back wages without actually working and also getting earning from his self employment in that view of the matter, whether the maxim of no work no pay will attract his case or not?

Now it is clear that the Respondent''s dismissal by the employer-Petitioner was not accepted by the Labour Court and the same was rejected and as it has been held in the judgment of Jaipur Jila Sahekari Bhumi Vikas Bank (supra), wherein discussing the position, Hon''ble Supreme Court has come to a finding at para -14 which is as under:

If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee as it will have to be deemed that the order of discharge of dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement.

So in that view of the matter, the employee will be deemed to continue in service, but that deeming clause will also attract the fact as to whether the employee actually joined the service or not. In the instant case it appears that the employee did not join his service immediately after the approval was not granted to the management . As discussed above the refusal to confirm the order of dismissal was passed by the Labour Court, Ranchi on August 22, 1997 and thereafter, instead of joining the service the Respondent-workman only gave letters of his intention to join by registered post on August 28, 1997, August 30, 1997 and again on October 3, 1997 and thereafter, on March 19, 2003. But, in fact there is nothing on the record that he joined his service and subsequently, suddenly after a long gap of 12 years in the year. 2004, he filed an application u/s 33C(2) of the Industrial Dispute act being M.J. Case No. 7/2004 by which order the management was directed to pay the back wages of 14 years amounting to Rs. 1,47,000/-.

As has been argued by learned Counsel for Petitioner that now the law has also developed that if any employee does not join his service and goes on fighting , then it is incumbent upon him to prove that he was not gainfully employed some where else. The Hon''ble Supreme Court in the case of North East Karnataka Road Transport Corporation v. M. Nagangounda (supra) as also in the case of U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, case of Sukhdeo Pandey case 2008 (1) JLJR SC 10 and other cases has stated that where the workman was gainfully employed in a case where it has been directed to pay back wages to him, where the workman was dismissed, but the dismissal was not confirmed u/s 33B of the Industrial Dispute Act and as relied by the Hon''ble Supreme Court, it will be deemed, he continue in service, in this case the workman was not working in service, in that case, it is imperative upon the Labour Court to consider as to whether during that period when he was not working in the management-company, he was gainfully employed somewhere else or not.

In the instant case evidence came that the during the aforesaid period Petitioner was engaged in self employment and he was running a salon in B.I.T. More, Ranchi. However, the reference Court found that employment does not amount to gainful employment which is contradicting the judgment passed in North East Karnataka Road Transport Corporation v. M. Nagangounda (supra). It has been held in the aforesaid case where during the period the worker was not working and working in his own field , who was engaged in agricultural work at para 17 of the judgment, Hon''ble Supreme Court has held as under:

On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the Respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view," gainful employment" would also include self employment where from income is generated. Income either from employment in an establishment or from self employment merely differentiates the sources from which income is generated, the end use being the same. Since, the Respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the Respondent was receiving agricultural income, he could not be treated to be engaged in gainful employment.

In the instant case also I find that there was evidence that Petitioner was self employed while working as barber in his own salon at busy place like B.I.T. More and witnesses have also stated that he was also doing his agricultural work. Hence, it is accepted that the Respondent-workman was gainfully employed and he is not entitled to full wages.

In that view of the matter, Respondent-workman, in my opinion is only entitled to get 50% (Fifty Percent) of the Back Wages. Accordingly, the order granting full back wages with all benefits is alter to 50% (Fifty percent) of wages with 50% (Fifty Percent) of other benefits. Since, in the instant case, employee has already been paid full wages, the same will either be adjusted towards the further back wages till his actual joining or Petitioner-employer may realize back the same from the Respondent. It is also important to note that in future, if any subsequent proceeding is initiated for realization of further back wages on the basis of only registered letter given by the workman, who has no intention to join, then before passing any order u/s 33C(2) of the Industrial Dispute Act, the Labour Court must first call both the parties and ask them to fix the date for joining of the workman instead of giving the working benefit of salary without work on the pretext that he is ready to join and still working somewhere else.

With the aforesaid observation, the instant application is allowed in part.