The Pathankot Hindu Urban Coopeerative Bank Ltd. vs Pankaj Gupta

S.S. Sudhalkar, J.—Vide this writ petition, the petitioner-Bank is challenging the award of the Labour Court dated 10.6.1998 vide which the application u/s 33C(2) of the Industrial Disputes Act, 1947 (hereinafter called the Act) was partly allowed in favour of respondent No. 1.

Respondent No. 1 was in the service of the petitioner-Bank. He remained absent from his duties with effect from 24.8.1992. He was charge-sheeted for the unauthorised absence from duty. After this reply to the charge-sheet was found unsatisfactory, a departmental enquiry was initialed against him. Enquiry Officer was also appointed. On 16.10.1993 respondent No. 1 tendered his resignation with a request to accept the same by deducting one month''s salary in lieu of notice and his. resignation was accepted vide order dated 26.10.1993.

During this period, respondent No. 1 gave an application to the petitioner that he desired to join duty. This application is at Ex.A7 dated 1.12.1992. However, he was to allowed to join duty presumably because of the pendency of the enquiry proceedings. The question in this case is regarding pay from 1.12.1992 upto July, 1993 only- Though the respondent No. I was not allowed to join the duty, he was not placed under suspension. The Labour Court held that the period after 30.11.1992 till July, 1993 is to be treated as the one spent on duty and that he cannot be treated as absent during the above period.

The claim of respondent No. 1 was contested by the petitioner contending inter alia that no arrears were due to him and that he remained absent from duty and did not work and this period was treated as period of "no work no pay" and, therefore, he is not entitled to salary for the period he remained absent from 24.8.1992 to 26.10.1993. One of thepleas raised by respondent No. 1 was that he had submitted an application dated 1.12.1992 wherein he has mentioned that he had desired to join his duty but he was not allowed presumably because of the enquiry proceedings. The said application is proved at Ex.A-7. Relying on this, the Labour Court partly allowed the application u/s 33C(2) of the Act and held that respondent No. 1 was entitled to wages from December, 1992 to July, 1993 amounting to Rs. 21,000/-.

We have heard learned Counsel for the parties.

Counsel for the petitioner raised a contention that the application u/s 33C(2) of the Act was not maintainable. According to him the proceedings u/s 33(2) of the Act are only in the nature of execution proceedings and that should be aright accruing under the settlement of an Award. He further argued that when the respondent No. 1 has remained absent from duty, he was not entitled to the amount of salary and, therefore, he cannot claim salary u/s 33C(2) of the Act. As mentioned earlier, the Labour Court has considered the fact that an application was given by respondent No. 1 to allow him to join duty and still he was not allowed to join. He was not placed under suspension and he continued in service till he resigned and, therefore, he cannot be treated as absent from duty from the time he (was) given application to join. The application is.dated 1.12.1992, and, therefore, the Labour Court has awarded amount from that date till July, 1993.

Regarding the maintainability of the said application, counsel for respondent No. 1 cited the case of Secretary, Larambha Service Co-operative Society Ltd. v. Suresh Chandra Chliuria and another, 1998 Lab. I.C. 2674. It has been held therein that employee was entitied to such payment, wages and subsistence allowance during course of his employment prior to his dismissal from service and his application u/s 33C was maintainable.

In the case of Punjab State Electricity Board v. Presiding Officer, Labour Court, reported in 1997(4) R.S.J. 580 : 1998(1) SCT 683 (P&H)(DB) it has been held as under :-

"....The increment normally accrues to the employees annually unless there is an order for withholding it. Similarly, an employee is entitled to full salary for the period of suspension unless there is an order by the competent authority to pay him a lesser amount. The Board in the present case has adopted a recalcitrant attitude. It passes no order and yet does not release the wages. In such a situation, the Labour Court has no alternative but to come to the help of the workman who was being denied his rightful dues."

Relying on the judgment of Suresh Chandra Chhuria (supra), learned Counsel for respondent No. 1 argued that the award of the Labour Court does not require any interference. In view of the judgment of the Division Bench mentioned above, we do not find that the Labour Court has erred in passing the impugned award. The Labour Court has restricted the entitlement of the respondent to July, 1993. We are not called up (upon ?) at present to decide upto the period of resignation but there is nothing to show that the award of the Labour Court for the amount of wages from December, 1992 to July, 1993 could not be upheld.

Counsel for the petitioner has relied on the case of Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, . That was a case in which the order of dismissal passed by the employer was in contravention of Section 33(2)(b) of the Act and the workman was not entitled to maintain application u/s 33C(2) of the Act. It was observed by their Lordships that the contravention of Section 33 of the Act does not render the order of discharge or dismissal void and inoperative and the only remedy available to the workman for challenging the order of discharge or dismissal is that provided u/s 33A of the Act apart of course from the remedy u/s 10 of the Act and he cannot maintain the application u/s 33C(2) of the Act.

Learned Counsel for the petitioner has also relied on the case of Central Inland Water Transport Corporation Ltd. v. The Workmen AJR1974 S.C. 1604. It is held therein that proceeding under Seclion 33C(2) of the Act is a proceeding, generally, in the nature of an execution proceeding and the Labour Court u/s 33C(2) cannot arrogate to itself the functions -say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations under heads of plaintiffs right to relief and the corresponding liability of the defendant, including, whether the defendant is at all, liable or not.

Here in the present case it is nobody''s case that there was any order of not paying that amount or there was legal hitch in getting the amount released. The amount had also not to be determined. It was mere withholding of the amount without any reason. So far as period of absence upto 30.11.1992 is concerned, the Labour Court has not granted any relief and the Labour Court has granted relief only for the period after the respondent No. 1 volunteered to join duty. In view of the above, we do dot find any infirmity with the award passed by the Labour Court.

Counsel for the respondent has taken up aconten-t ion that the writ petition filed by the Managing Direction is not competent as there is no resolution to file the petition. In view of the fact, on merit we have decided ihe petition against the petitioner, we do not want to go into the discussion on this point.

In the result, this petition is dismissed.

Petition dismissed.