Punjab State Tubewell Corporation and Another vs Nitya Nand and Another

S.S. Nijjar, J.—This petition under articles 226 and 227 of the Constitution of India seeks issuance of the writ in the nature of certiorari to

quash the order dated 12.9.2000 passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court U.T, Chandigarh (hereinafter referred to

as ''the Labour Court''), whereby the application made by respondent No. 1 (hereinafter referred to as ''the workman'') for payment of wages u/s

33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act'') has been accepted.

Punjab State Tubewell corporation is a Company registered under the Indian Companies Act and is under the active control of Government of

Punjab. The petition has been filed by the Managing Director of the Company on behalf of the Company. The brief facts leading to the filing of the

petition are that the workman approached the Labour Court seeking inter alia that he is working as a Peon and has been wrongly not promoted to

the post of Ferro Printer while his juniors namely Balbir Kumar and Sada Nand have been promoted. The learned Labour Court answered the

reference in affirmative and held that the promotion of two junior persons was illegal. It was also held that the workman shall be deemed to have

been promoted on the day when his juniors were promoted as Ferro Printers. It was categorically held by the Labour Court that it is clearly

proved that there was promotion channel from the post of peons to be promoted as Ferro Printers and the workman has been wrongly ignored on

the ground that there was no promotion avenue. The Labour Court further held that the name of the workman appears at Serial No. 83 of seniority

list, whereas name of Balbir Singh is at serial No. 107 and that of Sada Nand is at Sr. No. 259. Thus, it is clear that the workman is senior to the

two persons who had been promoted in the year 1983. Against this award, the petitioners (hereinafter referred to as the Management'') filed Civil

Writ Petition No. 14936 of 1992. This Court in its judgment dated 7.2.1995 held that it could not be disputed by the learned counsel for the

parties that certain persons had been promoted as ferro Printers from the post of Peons and two persons namely Balbir Kumar and Sada Nand

who had been so promoted were junior to Nitya Nand (workman) whose case had been espoused by the Union. This Court further observed that

promotion of Balbir Kumar and Sada Nand should not have been set aside as they were not parties before the Labour Court. This Court upheld

the award directing the promotion of workman from the date persons junior to him had been promoted. The Court observed as follows:-

The Labour Court had declared that Nitya Nand shall be deemed to have been promoted from the day when his juniors were promoted as Ferro

Printers. It cannot be denied that the management in the instant case is a government company and is a ''State'' for purposes of Article 12 of the

Constitution and it cannot, therefore, violate the rights guaranteed to Nitya Nand under Articles 14 and 16 of the Constitution. It has also been

found by the Labour Court that persons junior to Nitya Nand had been promoted as Ferro Printers. The direction given by the Labour Court that

he too will be deemed to have been promoted with effect from the date when his juniors were promoted is unexceptionable and just and fair in the

circumstances. This part of the direction cannot, therefore, be interfered with.

Not satisfied with the directions given by this Court, the Management filed Civil Misc. Application No. 7299 of 1995 seeking the clarification of

the order. This application was allowed and the Corporation was permitted to revert any employee, who according to it, had been erroneously

promoted including Balbir Kumar and Sada Nand. It was further ordered that in case Balbir Kumar and Sada Nand were reverted, the very basis

of the claim of Nitya Nand (workman) who raised the Industrial dispute through the Union would go and he too will not be entitled to promotion.

Against this order, the Union filed Letters Patent Appeal No. 751 of 1996. This letters patent appeal was allowed on 8.10.1997 with the following

observations:

A bare perusal of the extract of the orders dated 7.2.1996 which have been reproduced above, shows that while disposing of the writ petition

filed by the respondent-Corporation the learned Single Judge accepted the plea that the Labour/Court did not have jurisdiction to nullify the

promotions of those who were not parties before it. However, without even recording a finding that the order dated 7.2.1995 suffered from an

error of law apparent on the face of it, the learned Single Judge virtually reversed the order dated 7.2.1995 and authorised the Corporation to

revert the employees who were not parties in the proceedings before the Labour Court or the High Court. While doing so, the learned Single

Judge overlooked the principles laid down by the Apex Court for exercise of power of review and in our considered opinion, there was no

occasion or justification for the learned Single Judge to have granted licence to the respondent-Corporation to revert the employees who wee

promoted many years ago and who had no occasion to put forward there case either before the Labour Court or the High Court.

In view of the above discussion, we hold that the order dated 9.2.1996 is erroneous in law. Consequently, the appeal is allowed. The respondent-

Corporation shall pay cost of Rs. 5000/- for indulging in unjust litigation. However, the direction given by the learned Single Judge qua Nitya Nand

shall remain undisturbed.

After decision of the letters patent appeal, the workman filed an application u/s 33C(2) of the Act seeking to recover the wages on the promoted

post. This application has been allowed. Hence, the present petition.

Mr. Puri submitted that the Labour Court while entertaining and allowing the application has exceeded the jurisdiction vested in him u/s 33C(2)

of the Act. Learned counsel further submitted that it is well settled that the proceedings u/s 33C(2) of the Act are in the nature of execution

proceedings. In these proceedings, the Labour Court has no jurisdiction to adjudicate upon the disputed claims. Learned counsel drew the

attention of the Court to the final paragraph of the award passed in reference No. 32 of 1989 on 18.6.1992 and submitted that the workman had

not been ordered to be promoted with the benefit of wages on the promoted post. Therefore, the Labour Court could not have directed, in the

impugned award dated 12.9.2000, the payment to the workman of a sum of Rs. 2,70,608/- as difference of wages. It is further submitted that the

workman not having worked on the higher post between 1983 till the date of the Award was not legally entitled to be paid the difference in wages.

In support of the submission, learned counsel has relied on the judgment of the Supreme Court in the case of Paluru Ramkrishnaiah v. Union of

India 1990(1) RSJ 238.

Mr. Jain, learned senior counsel has submitted that the award of the Labour Court having been upheld by the Division Bench of this Court in

letter patent appeal No. 751 of 1996, the same had to be implemented by filing an application u/s 33C(2) of the Act. Grant of wages on the

promoted post is only a consequential relief and, therefore, no adjudication of any disputed claim is involved in the matter. The deemed promotion

of the workman having been upheld by the Division Bench, the Labour Court merely commutated the difference in wages between the original post

and the promoted post. Learned senior counsel further submitted that the management cannot be permitted to make capital out of its own wrong.

They have deprived the workman of an opportunity to work on higher post by illegally withholding promotion. The Management cannot now be

permitted to urge that the workman can be denied the wages on the promoted post since has not worked on the promoted post. He is not entitled

to salary on the promoted post. In support of this submission, learned senior counsel has also relied on the judgment of the Supreme Court in the

case of Union of India etc. etc. v. K. V. Jankiraman etc. etc . 1991(5) S.L.R. 602. Learned senior counsel has also relied on a Division Bench

judgment of this Court in the case of Mewa Ram v. State of Haryana 1995(3) SCT 311 in which the aforesaid judgment of the Supreme Court has

been followed: Thereafter, the learned senior counsel relied on another judgment of the Division Bench in the case of Vidya Parkash Harnal v.

State of Haryana 1995(3) SCT 785. Learned Senior counsel also relied on another Davison Bench judgment of this Court in Indraj Singh v. State

of Haryana and Ors. 2001(2) S.L.R. 372.

I have considered the submissions made by the learned counsel for the parties. It is no doubt true, that the normal rule is ""no work no pay"". The

Supreme Court in the case of Palaru Ramkrishnaiah (supra), approved the observations of Madhya Pradesh High Court to the effect that the

persons who have been wrongly not promoted can at the most claim refixation of their present salary on the basis of the notional seniority granted

to them. It has been held that the petitioners therein could not claim benefit of payment of the higher salary on the basis of promotion from the back

date. Had the matter rested here, this Court would have been bound by the ratio laid down by the Supreme Court in the aforesaid case. However,

in the subsequent decision, in K.V. Jankiraman''s case (supra), the Supreme Court has categorically held as follows:-

We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of ""no work no pay"" is not applicable to

cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This

is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R.

17(1) will also be inapplicable to such cases.

The same sentiment has been echoed in the three Division Benches of this Court noted above. In the case of Vidaya Parkash Harnal, the Division

Bench had this to say:-

Similarly, the argument that the petitioner was not entitled to the grant of emoluments on the principle of no work no pay is apparently

misconceived and based upon wrong notions of law. If a civil servant is not offered the work to which he was legally entitled, he cannot be

deprived of the wages for the post to which he subsequently is held entitled to. Permitting such a course to be adopted would be encouraging the

imposition of double penalty, that is, firstly by declining the civil servant his right of promotion and secondly by depriving him of the emoluments to

which he would have been entitled to upon promotion which subsequently is considered in his favour. Deprivation to work against the post to

which a civil servant is entitled on promotion is always at the risk and responsibility of the State and cannot be made a basis for depriving such a

civil servant of the emoluments to which he was entitled, had he been promoted in accordance with the rules at the time when he became eligible

for such promotion. The Courts cannot ignore the magnitude of the sufferings and the pains to which a civil servant is subjected on account of

deprivation of the monetary benefits particularly in this age of skyrocketing prices and non-availability of essential requirement of livelihood. The

Court cannot shut its eyes and forget the holocast of economic deprivation to the petitioner and his dependents. Such a deprivation might have

upset the carrier of the dependents depriving the society of the services of such youth and budding dependents or children of the petitioner. The

executive once being satisfied that a civil servant was entitled to the promotion with retrospective effect cannot deprive him of the benefits of salary

accruing on account of such promotion from an early date without assigning valid, cogent and specific reasons. The order impugned in this case by

which the petitioner/appellant was deprived of his right to claim back wages is admittedly non-speaking without assigning any justification or cogent

and specific reasons.

In Mewa Ram''s case (supra), the Davison Bench specifically adverted to ratio of law laid down in K. V. Jankiraman ''s case (supra) case that the

normal rule of ''no work no pay'' is not applicable to cases such as the present one where the employee although he is willing to work is kept away

from work by the authorities for no fault of his. In Indraj''s case (supra) again the Supreme Court judgment in K.V. Jankiraman''s case (supra) has

been followed. In this case, the Division Bench also relied on the earlier Division Bench judgment given in the case of Viaya Parkash Harnal

(supra).

Mr. Puri, however, submitted that the three Division Bench judgments pertain to circumstances where the Management had itself rectified the

mistake. This submission of Mr. Puri needs only to be stated to be rejected. Even in cases where the Management has itself rectified the mistake,

the courts have consistently granted pay of the higher post for the period which the promotion has been wrongly denied. In the present case, the

management has compelled the workman into continuous litigation over the past few years, the Division Bench, in its order dated 8.10.97 in LPA

No. 751 of 1996, has held that the Management has indulged in unjust litigation. The argument put forward by Mr. Puri is wholly misconceived

and is hereby rejected.

I am of the considered opinion that there is much force in the submission made by Mr. Jain. It is, however, to be noticed that the judgment of the

Supreme Court in the cases of Paluru Ramkrishnaiah & others (supra), relied upon by Mr. Puri has been rendered by a Bench of three Judges on

28.3.1989. The judgment in the case of K.V. Jankiraman (supra) relied upon by Mr. Jain has also been rendered by a three Judges Bench on

27.8.1991. In such circumstances, what is the course to be adopted by the High Court? I am rescued from answering the aforesaid question on

first principles, as the an-swer has already been given by a Full Bench decision of this Court rendered in the case of Indo Swiss Time Limited,

Dundahera v. Umrao and Ors. 1981 83 P.L.R 335 In this case it has been held as follows:-

Per S.S. Sandhawalia C.J. para 23:- Now the contention that the latest judgment of a co-ordinate bench is to be mechanically followed and must

have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal

Benches and therefore of matching authority then their weight inevitably must be considered by the ratinale and the logic thereof and not by the

mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the

superior court and of equal authority are extant then both of them cannot be binding on the courts below. Inevitably a choice, though a difficult one,

has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the

law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the superior Court are earlier or

later is a consideration which appears to me as hardly relevant.

P.C. Jain, J. para 39:- On this question, my Lord the Chief Justice in his elaborate judgment has held that the Courts may follow the judgment

which appears to them to state the law accurately and that mere incidence of time whether the judgments of the co-equal Benches of the superior

Court are earlier or later is a consideration which appears to be hardly relevant. 1 have also given my thoughtful consideration to the entire matter

and find myself in respectful agreement with the aforesaid observations of my Lord the Chief Justice.

The law laid down in K.V. Jankiraman''s case (supra) leaves no manner of doubt that a witling employee who is kept away from work on the

promoted post can not be deprived of the benefit of the higher wages when the injustice done to him is removed by promotion with retrospective

effect i.e. the date on which he was actually due to be promoted. It is immaterial whether the earlier injustice is removed by the Management on its

own or on the orders/directions given by a Court of competent jurisdiction. As noticed earlier, the judgment in K. V. Jankiraman ''s case (supra)

has been followed by three Division Benches of this Court in the cases which have been noticed in the earlier part of the judgment. In all these

cases, the consistent view is that if an employee is not promoted on the post to which he was legally entitled, he cannot be deprived of the wages

for the higher post to which he is subsequently held entitled. I am of the considered opinion that the ratio of law laid down in K.V, Jankiraman''s

case, (supra) is more applicable to the facts and circumstances of the present case, than the ratio given in Paluru Ramkrishnaiah and others case

(supra). I would, therefore, with great respect prefer to follow the judgment in K.V. Jankiraman''s case (supra).

In the present case, the retrospective promotion of the workman has been upheld by the Divison Bench in the letters patent appeal No. 751 of

1996. It was only after the letters patent appeal has been decided that the workman moved the application u/s 33C(2) of the Act. In such

circumstances, it would not be possible to hold that the workman had not become Entitled for payment of wages on the promoted post. No further

adjudication was required. The Labour Court while giving the award has traced the history of the litigation and held that on the basis of the

judgment given in the letters patent appeal, the workman is entitled to receive the payment on the promoted post.

Mr. Puri, has, however, laid stress on the fact that in the award dated 18.6.1992 no direction had been given to pay wages to the workman on

the promoted post. Therefore, it was necessary for the workman to have the matter adjudicated in a proper forum.

I am of the considered opinion that merely because the award did not mention that the workman is entitled to payment of wages on the higher

post, would not be a ground for declining the relief to workman in an application u/s 33C(2) of the Act. When it has been held by the Labour

Court that the workman is deemed to have been promoted on the day when his juniors were promoted, the same had to be implemented in letter

and spirit. If he is deemed to be promoted from the date his juniors were promoted, he would also be deemed to be entitled to the higher wages

from the date he ought to have been promoted.

Keeping the aforesaid facts and circumstances in view. I find no merit in the aforesaid writ petition and the same is hereby dismissed. No costs.

Let the payment be made to the workman within a period of four weeks from today.