R.M. Venkatappa vs The Managing Director B.M.T.C. and Others

A.S. Bopanna, J.—1. The petitioner is before this Court assailing the order dated 23.09.2013 impugned at Annexure-F and the endorsement dated 01.02.2014 as at Annexure-H to the petition. The petitioner in that light is seeking fresh re-fixation of the salary with all other consequential benefits and pay the amount recovered from his salary.

The petitioner had been dismissed from the services of the respondent-Corporation with effect from 02.01.2002. The dispute in I.D. No. 36/2002 was disposed of on 19.03.2005 whereby the reference was partly allowed by granting reinstatement to the petitioner herein into service with continuity of service, but without backwages. No specific order was made with regard to the consequential benefits one way or the other.

The respondent-management had assailed the said award in W.P. No. 17935/2005 and pending consideration of the petition, the petitioner was reinstated into service on payment of current wages. It is needless to mention that the same was made subject to result of the petition. Ultimately, the writ petition was dismissed on 19.03.2009 whereupon the respondent-Management preferred an appeal in W.A. No. 1715/2009. In the pending appeal, it was agreed by the respondent-Management that the petitioner would be reinstated into service with continuity of service, but without backwages and the ensuing three increments would be withheld with cumulative effect as a measure of punishment. Pursuant thereto, the legal proceedings in relation to the dismissal had come to an end and the petitioner who was already in service continued to work. However, in view of the disposal of the writ appeal, when the implementation was to be made, the order dated 23.09.2013 as at Annexure-F was passed. By the said order, four increments which the petitioner would have otherwise earned if he had continued in service and had been given to the petitioner by way of interim arrangement to constitute the current wages was withdrawn and in addition, as per the alternate punishment that had been ordered, three more increments have been withheld with cumulative effect. The petitioner claiming to be aggrieved by the same filed a representation seeking consideration of that aspect of the matter. The respondent- Management by the impugned endorsement dated 01.02.2014 has rejected the claim. It is in that view, the petitioner is before this Court.

The respondents have filed their objection statement. The contention essentially is with regard to the nature of relief that was granted by the Labour Court and since the consequential benefits have not been granted in specific terms, it is deemed to have been denied and therefore the same has not been granted. To support their contention, along with the objection statement an order of the Hon''ble Division Bench and that of the learned Single Judge of this Court in a circumstance where the issue relating to the consequential benefits had been considered is relied upon. In addition, learned counsel for the respondents has also referred to the order dated 14.12.2011 passed in W.P. No. 41126/2010.

Learned counsel for the petitioner on the other hand has sought to rely on the judgment of the Hon''ble Supreme Court in the case of Sanat Kumar Dwivedi v. Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit and Others (2001 AIR SCW 2430) to contend that the benefit of the increment cannot be denied when continuity of service has been granted.

In the light of the facts that have been narrated above, with regard to the nature of the award that had been passed by the Labour Court at the first instance, there is absolutely no dispute whatsoever. While granting continuity of service, the Labour Court has neither stated anything with regard to denial or otherwise of the consequential benefits.

In a normal circumstance, when the consequential benefit has not been granted, the same would not be available to the person in whose favour the award has been passed on the other aspects. In that light, if the orders as have been relied on by the respondents along with the objection statement is taken into consideration, the issue before the Hon''ble Division Bench in W.A. No. 16714/2011 dated 08.11.2012 and in W.P. No. 48411/2012 dated 09.06.2014 had arisen in a circumstance where the benefit was to be considered in the background of the proceedings arising under Section 33(C)(2) of the I.D. Act. In such circumstance, certainly when computation of the benefits is to be made under the said provision, the award as passed in its literal terms would have to be taken into consideration and thereafter necessary benefits is required to be computed.

As against the said position which would arise in a normal circumstance, in the instant case, though at the first instance, the petitioner-workman did not assail the award passed by the Labour Court, it is not as if the respondent- Management had accepted the award and implemented it. On the other hand, the respondent-Management had assailed the award which was pending consideration in the writ petition, during which period the petitioner had been reinstated. Though the said reinstatement and fixation of the backwages at that point would be subject to result of the petition as it is only for the purpose of determining the current wages, in my opinion, in the instant case, the distinguishing feature is the manner in which the writ appeal was thereafter disposed of. It is while considering all these aspects of the matter, a decision is required to be taken by this Court with regard to the appropriate manner in which the entire conspectus of the matter is to be arrived at and in that light, what is the benefit that is to be computed.

A perusal of the order dated 09.04.2013 passed in W.A. No. 1715/2009 would disclose that there is no detailed discussion with regard to the reason for which the modification of the order is made, but is essentially due to arrangement reached between the parties. While agreeing to grant reinstatement, the management had decided that three increments would be withheld, which was acceded to by the workman. No doubt as contended by the learned counsel for the respondent- Management, the words used therein is "ensuing increments".

Though that be the position and even keeping in view the fact that the earlier wage fixation had been done for the purpose of paying current wages and extracting work by reinstating the petitioner, the nature of the fixation that had been made in that view cannot be lost sight of. Hence, I am of the opinion that the matter would have to be considered in that light for the reason that if in fact the denial of increments for the earlier period is sustained and also withholding of three ensuing increments is made, in effect the petitioner would loose seven increments and the wage of the petitioner would be drastically reduced in future which is worse than the relief granted. Therefore, it would have to be assumed that the same was not the intention of the Hon''ble Division Bench of this Court when the compromise between the parties had been accepted. The very withholding of three increments with cumulative effect would bring down the wages of the petitioner drastically.

Therefore when the backwages has been denied and continuity of service has been granted, the petitioner in any event would not be entitled to the amount in monitory terms for the period he was out of employment. For the period for which the petitioner had worked, he has received the current wages. Hence, if all these aspects are kept in view, the increment in the present facts of the case is only taken notionally for the period from the date of dismissal till the date of reinstatement for fixation of the wage and thereafter the petitioner would be denied three increments with cumulative effect.

In that view of the matter, the endorsement as issued dated 01.02.2014 and the order dated 23.09.2013 impugned herein are quashed. The respondents are directed to reconsider and fix the wages of the petitioner in the manner as indicated above.

In terms of the above, the petition stands disposed of.