The Divisional Controller, NWKRTC Bijapur vs Balachanda

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 29.09.2007 passed in Application No. 46/2002 impugned at Annexure-D to the petition.

The petitioner-management had dismissed the respondent from service with effect from 12.02.1992. The petitioner claiming to be aggrieved had raised a dispute in KID No. 527/1995. The Labour Court by the award dated 28.12.1996 had set aside the order of dismissal, directed reinstatement and consequential benefits with 50% backwages. The petitioner had assailed the same in W.P. No. 35471/1998. The writ petition was dismissed by order dated 06.07.2001 and thereafter a writ appeal in No. 4744/2001 was filed. The Hon''ble Division Bench by the order dated 26.09.2002 upheld the reinstatement with continuity of service by setting aside the order with regard to payment of 50% of backwages. During the pendency of the said proceedings itself, the respondent herein filed an application under Section 33(c)(2) of the Industrial Disputes Act, 1947 (''the Act'' for short) seeking computation of the amount payable to the respondent. The same was registered in Application No. 46/2002. The Labour Court by the order dated 29.09.2007 has held that the respondent is entitled to receive a sum of Rs. 3,35,014/- with interest. The petitioner herein therefore claiming to be aggrieved by the same is before this Court.

Learned counsel for the petitioner while assailing the said order would contend that the Labour Court has not appropriately taken into consideration the different periods for which the computation was required to be made since the first Slab would be for the period from 12.02.1992 i.e., the date on which the respondent was dismissed till he was reinstated. He therefore contends that for the said period, the respondent would not be entitled to any backwages since the grant of backwages by the Labour Court has been set aside by the Hon''ble Division Bench. It is his further case that the respondent cannot also claim for the benefit of subsistence allowance or any other amount. The learned counsel would refer to the memo of calculation which has been filed in this petition along with a memo dated 01.06.2015 to contend that in view of the interim order granted by this Court, 50% of the amount quantified at Rs. 1,67,507/- is deposited and as such, as per the calculation of the petitioner since the ultimate amount payable is in a sum of Rs. 1,45,916/-, the payment made pursuant to the interim order is in excess and therefore, the petitioner is entitled to refund of Rs. 21,591/-. He therefore contends that the order passed by the Labour Court is not sustainable and the same be set aside.

Learned counsel for the respondent-workman would however seek to sustain the order passed by the Labour Court. It is pointed out that since a contention is raised that the backwages has been set aside in the writ appeal, the Labour Court has taken note of the said order and keeping in view the point at which the respondent was required to be reinstated has taken into consideration the amount that is payable and in that light, the Labour Court has arrived at the conclusion that the difference of the amount that is payable insofar as the fixation and unpaid backwages and as such has quantified the amount, which does not call for interference.

In the light of the rival contentions, what is necessary to be noticed is with regard to the modification of the award made by the Hon''ble Division Bench in writ appeal and the period for which the benefit of the said order would extend to the petitioner-management to deny the backwages.

Though the learned counsel for the petitioner contends that the respondent has been reinstated into service on 23.01.1999 and such, the respondent would not have the benefit of backwages from 12.02.1992 to 23.01.1999 as the Hon''ble Division Bench has denied the backwages, the said contention cannot be accepted. I am of the said opinion for the reason that the award passed on 28.12.1996 would come into operation as provided under Section 17 of the Act on notification of the same. The benefit of 50% backwages which was granted by the Labour Court was from the date of dismissal till the date of reinstatement. Even though such benefit is granted till the date of reinstatement, the date of reinstatement cannot be extended to the date of actual reinstatement, if the benefit of the stay had not been granted in the writ petition where the award passed by the Labour Court had been assailed. Therefore factually reinstatement was required to be made on the date when the award had come into force.

If these aspects of the matter are kept in view, the purport of the order passed by the Hon''ble Division Bench while setting aside the award of 50% backwages would have to be construed to provide benefit to the petitioner to deny the backwages to the respondent only for the period between the date of dismissal till the date of award coming into force i.e., the date on which the actual reinstatement was required to be made, when the award came into force and not as on 23.01.1999 when the reinstatement was made. Therefore, this aspect of the matter requires consideration by the Labour Court. If the materials are produced before the Labour Court to indicate that the reinstatement also had been stayed in the writ petition and if any order relating to 17-B wages had been made, the said consideration would have to be made from the date on which the writ petition had been filed, as otherwise the denial of backwages can only be for the period from 12.02.1992 to 28.01.1997. Thereafter, since reinstatement was required to be made by the management, the respondent-workman would be entitled to full backwages during the said period. This consideration requires to be made by the Labour Court based on the material that would be produced to indicate as to whether the petitioner had the benefit of any interim order in the writ petition, as otherwise, the calculation would be made at 100% backwages from 28.01.1997 till the petitioner-management had started to pay full backwages after reinstatement.

The next aspect of the matter is to arrive at the conclusion with regard to the actual wage that is required to be taken into consideration for the purpose of arriving at such quantum. Though for the period from 12.02.1992 till the award had come into force the backwages was denied, since consequential benefits had been granted, the fixation of the wage as on the date of reinstatement would have to be made taking into consideration the consequential benefits in notional terms and the wage as on the date of reinstatement would have to be determined based upon which the calculation of the amount from the date on which award had come into force till the date the full backwages was being paid by the management will have to be taken into consideration and the amount will have to be quantified.

While taking note of these aspects, the actual benefits that are required to be taken into consideration for the purpose of consequential benefits shall also be noticed by the Labour Court. Insofar as the calculation made by the Labour Court to provide the balance of subsistence allowance to the respondent, it is not sustainable since the benefit of the same is to be denied to the respondent in view of the denial of backwages by the Hon''ble Division Bench.

Therefore, the order in the present form as passed by the Labour Court is not sustainable. The above observation would have to be kept in view and thereafter re-calculation of the amount would have to be made. Since by the interim order, the petitioner was directed to pay 50% of the amount which according to the calculation furnished by the petitioner is in a sum of Rs. 1,67,507/-, if the same has not yet been deposited before this Court, the same shall be released to the respondent. On re-calculation being made by the Labour Court, if it is found that the said amount which is now directed to be paid to the respondent is in excess of the actual calculation, the petitioner-management would be entitled to adjust the said amount from the future wages that would be payable to the respondent.

In order to enable such re-consideration by the Labour Court, the order dated 29.09.2007 is set aside. The proceedings in Application No. 46/2002 is restored to the file of the Labour Court. The parties shall appear before the Labour Court without issue of fresh notice on 18.12.2015 as the first date of appearance. The parties shall be granted opportunity before the Labour Court to produce additional materials and thereafter the Labour Court shall consider and dispose of the application in an expeditious manner.

Accordingly, the petition stands disposed of.