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Judgment
A.P. Lavande, J.—Heard Sri Charpe, learned Counsel for the Petitioner and Sri Kalbande, learned Counsel for Respondent No. 1.
By this petition, the Petitioner challenges the order, dated 1 December, 2000, passed by the Industrial Court at Nagpur in Complaint (ULP) No. 45 of 2000 by which the Petitioner has been directed to credit earned leave to the account of the Respondent No. 1 for the period 28 March, 1985 to 12 February, 1997.
The facts relevant for disposal of the present petition are as under: Respondent No. 1 was appointed as conductor by the Petitioner in the year 1968. On 28 March, 1985 he was dismissed from service. The dismissal was challenged by filing complaint No. (ULPA) No. 317 of 1985. The Labour Court by order, dated 17 October, 1988, allowed the complaint and directed the Petitioner to reinstate Respondent No. 1 with continuity of service and full back-wages. The Petitioner preferred revision before the Industrial Court against the order passed by the Labour Court. The revision was dismissed. Writ petition preferred by the Petitioner against the two orders was also dismissed by this Court. Thereafter Respondent No. 1 was reinstated in service on 12 February, 1997. It is not in(sic) dispute that the back-wages awarded by the Labour Court were paid to Respondent No. 1.
In the year 2000 Respondent No. 1 filed complaint u/s 28 of(sic) the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour(sic) Practices Act (the Act for short) against the Petitioner seeking directions agains (sic)the 480 days in his leave account. The Industrial Court be(sic)complaint and directed the Petitioner to credit earned leave to the account of the complainant for the period 28 March, 1985 to 12 February, 1997. Aggrieved by the said order, the Petitioner has approached this Court.
Sri Charpe, learned Counsel for the Petitioner submitted that the Labour Court by order, dated 17 October, 1988, passed in Complaint (ULP) No. 317 of 1985 had granted reinstatement with continuity by service and full back-wages only. Learned Counsel further submitted that since the Labour Court had not granted any consequential benefits to Respondent No. 1, Respondent No. 1 was entitled to the reliefs granted by the Labour Court only. According to learned Counsel, in the absence of any order by the Labour Court granting consequential benefits to Respondent No. 1, the claim made by Respondent No. 1 by filing the complaint seeking direction to credit the leave to his account was not maintainable. Learned Counsel further submitted that since the Labour Court did not specifically grant any consequential relief to Respondent No. 1 while allowing the complaint filed by him, Respondent No. 1 is not entitled to any other relief which is not specifically granted by the Labour Court and any other relief is deemed to have been refused by the Labour Court. Learned Counsel submitted that the claim made by Respondent No. 1 by filing second complaint was on the basis of the order passed in the first complaint filed by Respondent No. 1. Therefore, in the absence of any specific order having been passed by the Labour Court in the first complaint, Respondent No. 1 was not entitled to the relief which has been granted by the impugned order. In support of his submissions, Sri Charpe relied upon the following judgments:
(i) Rajasthan State Road Transport Corporation and Others Vs. Shyam Bihari Lal Gupta, .
(ii) Andhra Pradesh State Road Transport Corporation and Ors. v. Abdul Kareem, 2005 (3) LLN 1078 (SC).
(iii) A.P.S.R.T.C. and Another Vs. B.S. David Paul, .
Per contra, Sri Kalbande, learned Counsel for Respondent No. 1 submitted that since the Labour Court in the first complaint filed by Respondent No. 1 had granted reinstatement with continuity of service and full back-wages, Respondent No. 1 is entitled to claim of consequential benefits available to him in view of the order of reinstatement with full back-wages. Sri Kalbande submitted that since the Labour Court had granted relief of reinstatement with continuity of service and full back-wages, Respondent No. 1 is deemed to be in service from the date of termination till the date of reinstatement and as such he is entitled to all the benefits including monetary benefits available to him as if he was on duty during the said period. He, therefore, submitted that the Industrial Court is perfectly justified in passing the impugned order and no interference is called for against the said order in exercise of writ jurisdiction by this Court. In support of his submissions, Sri Kalbande relied upon the following judgments:
(i) Sharda Industries and Engineering Works (Private) Ltd. v. Chandraball and others, 1989 (1) LLN 378 : 1989 (58) FLR 44 (Sum.) (Bom.).
(ii) D.G. Venkataramu and Ors. v. Managing Director, Pandavapura Sahakara Sakkare Karkhane Ltd., Pandavapura, and another, AIR 1970 Mys. 1.
(iii) Kamani Tubes, Ltd. v. Kamani Employees Union and others. 1987 (2) LLN 746 .
I have carefully considered the submissions made by learned Counsel appearing for the parties and, perused the record as well as judgments relied upon by rival parties.
As stated above, there is no dispute that in the first complaint filed by Respondent No. 1, the Respondent No. 1 was granted relief of reinstatement with continuity of service and full back-wages. The question, therefore, which arises for consideration is whether the Industrial Court was justified in directing the Petitioner to credit earned leave to the account of Respondent No. 1 from the date of termination till reinstatement.
At this stage, it would be appropriate to refer to the authorities cited by Sri Charpe.
In the case of Rajasthan State Road Transport Corporation and Others Vs. Shyam Bihari Lal Gupta, . (vide supra), the question before the Apex Court was whether when a decree declaring termination of an employee void ah initio and non est is passed by the Court and no consequential monetary relief is granted whether the workman was entitled to back-wages. The Apex Court, after placing reliance upon Para 9 of the judgment in Rajasthan S.R.T.C. and Another Vs. Ladulal Mali, . held that the workman was not entitled to any monetary benefits. In Para 4 of the judgment the Apex Court quoted Para. 9 of the judgment in A.P.S.R.T.C. and Another Vs. S. Narsagoud, . which reads thus:
We find merit in the submission so made. 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 entitled to all the consequential benefits, which necessarily flow from reinstatement of accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service.
In Abdul Kareem case 2005 (3) LLN 1078 (SC). (vide supra), relied upon by Sri Charpe, the issue before the Apex Court was whether reinstatement of an employee without back-wages would be entitled to notional increments during the period when he was not on duty. The Apex Court answered the issue in the negative holding that there is 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 should be entitled to all the consequential benefits, which necessarily flow from reinstatement.
In A.P.S.R.T.C. and Another Vs. B.S. David Paul, , the Apex Court was considering whether the claim of the workman was maintainable u/s 33-C(2) of the Industrial Disputes Act, 1947. In Para. 10, at pages 15 and 16, of the said judgment, the Apex Court observed thus:
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 can approach Labour Court u/s 33-C(2) of the Act. The benefit sought to be enforced u/s 33-C(2) of the Act is necessarily a preexisting benefit or one flowing from a pre-existing right. The difference 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 u/s 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case 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 u/s 10 of the Act is made. To state 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, at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back-wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back-wages.
On careful scrutiny of the above judgments, it is evident that an employee whose termination is set aside by the Labour Court is entitled to the reliefs which have been specifically granted by the Courts. Even in a case where the Court directs reinstatement with continuity of service and back-wages after holding that the termination was illegal, the workman is not entitled to all consequential benefits unless the Labour Court specifically, directs. In case the Labour Court does not grant any consequential benefits by specific order, the only inference is that such a relief is deemed to have been refused.
If the impugned order is tested on the touchstone of the principles of law laid down by the Apex Court, the only conclusion which can be drawn is that the labour was not justified in granting the relief against the Petitioner to credit leave for the period from the date of termination till the reinstatement. The Labour Court while allowing first complaint, having not specifically granted consequential benefits to Respondent No. 1, the Labour Court could not have granted the relief which it has granted. No doubt, Sri Kalbande is right in contending that for non-implementation of an award, complaint for unfair labour practice would be maintainable but the question is whether the Petitioner had not implemented the first award. Since in terms of the order passed by the Labour Court in the first complaint, Respondent No. 1 was not entitled to seek direction against the Petitioner to credit the leave from the date of termination till reinstatement, Respondent No. 1 obviously could not claim the said relief by filing the second complaint. I am, therefore, of the considered opinion that the impugned order passed by the Industrial Court is unsustainable in law.
In view of clear ratio laid down by the Apex Court in the aforesaid judgments, I am unable to place reliance upon the judgments relied upon by Sri Kalbande in support of his contention that the Petitioner is bound to credit leave in the account of Respondent No. 1 from the date of termination till the date of reinstatement.
For the reasons aforesaid, the impugned order is liable to be quashed and set aside and is hereby quashed and set aside. Rule is made absolute. Considering the facts and circumstances of the case, the parties to bear their own costs.