Bombay High Court
Shashibhushan Prasad Sundarlal ... vs National Textile Corp. & Anor on 14 June, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5755 OF 2007
Shashibhushan Prasad s/o Sundarlal Prasad
(dead) through L.Rs
1] Mrs. Sushma w/o Dayashankarlal
Shrivastava, aged 47 years,
Occ. Service, R/o. 216, Gandhinagar,
Near Lokmanya Convent, Nagpur.
2] Mr. Rakesh s/o Shashibhushan Prasad,
aged 44 years, Occ. Service,
R/o. A-81, Sector-27, Noida (UP) ...... PETITIONERS
...VERSUS...
1. National Textile Corporation,
Apollo House, 382, N.M.Joshi Marg,
Chinchpokli, Mumbai, through its
General Manager.
2. Model Mills, Nagpur,
Unit of National Textile Corporation,
through its General Manager ...... RESPONDENTS
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Shri W.T.Mathew, counsel for Petitioners.
Shri R.B.Puranik, counsel for Respondents
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CORAM: R. K. DESHPANDE, AND
Mrs. SWAPNA JOSHI, JJ.
th
DATE : 14 JUNE, 2017 .
ORAL JUDGMENT
1] By this petition, the petitioner seeks direction to
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the respondents to pay him full amount of salary for the
period of suspension from 19.08.1990 to 11.02.1992. The
petitioner also claimed arrears of salary for the period from
13.03.1999 to 12.03.2001 on the ground that he was entitled
to the age of superannuation of 60 years which he would
have attained on 12.03.2001, but he was made to retire at
the age of 58 years on 13.03.1999. The petitioner also
claims all other consequential benefits including the deemed
date of promotion.
2] The petitioner while working as Senior Assistant
in the services of the National Textile Corporation at Model
Mills, Nagpur, was dismissed from service after holding an
enquiry by an order dated 11.02.1992. This was the subject
matter of challenge by the petitioner in Writ Petition No. 782
of 1992, which was allowed by the Division Bench of this
Court on 18.04.2007, setting aside the order of termination
and granting him reinstatement with 75% of back wages from
the date of dismissal till the date of his superannuation.
3] The petitioner has filed a Chart at Annexure-8 on
page 32 of the petition showing that the respondents have
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paid 75% of back wages for the period from 11.02.1992 to
12.03.1999 amounting to Rs.2,95,769/-; amount of gratuity of
Rs.1,02,969/-; amount of leave with pay of Rs.4,759/- and
the cost of petition of Rs.5,000/-. The payment of this amount
by the respondents to the petitioner is not disputed. Out of
total dues of Rs.3,78,543/- payable to the petitioner, the
respondents admit to have deducted an amount of
Rs.25,504/- towards the petitioner's share in the provident
fund along with an amount of Rs.4,450/- towards the
profession tax. It is the case of the petitioner that in addition
to this, an amount of Rs.30,182/- of employer's share in the
provident fund was also deducted from the amount payable
to the petitioner. However, this fact is disputed by the
respondents.
4] The petitioner claims that in view of the decision
of this Court on 18.04.2007 in W.P.No. 782/1992, he was
entitled to payment of full salary for the period from
19.08.1990 to 11.02.1992, during which period he was
placed under suspension. However, the undisputed factual
position is that he was not paid a full salary but was paid only
subsistence allowance. The learned counsel Shri Mathew
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submits that after deducting the amount of subsistence
allowance paid to the petitioner, the rest of the arrears of
salary for this period should have been paid to the petitioner.
It is also urged that deduction of total amount of Rs.60,136/-
as shown in the Chart at Annexure-8 under the following
heads was unwarranted.
Employee's share Rs.25,404/-
Employer's share Rs.30,182/-
Profession Tax Rs. 4,450/-
It is the further claim of the petitioner that he was a workman
and governed by the provisions of the Model Standing Orders
under which he was entitled to the age of superannuation of
60 years, but he was superannuated on 13.03.1999 at the
age of 58 years. He was, therefore, entitled to arrears of
salary from 13.03.1999 to 12.03.2001.
5] Coming to the entitlement of the petitioner for
payment of full salary for the period from 19.08.1990 to
11.02.1992 is concerned, we have gone through the
judgment delivered by this Court on 18.04.2007 in Writ
Petition No. 782 of 1992, which is relied upon by both the
learned counsels for their rival submissions. We find that this
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judgment holds that the petitioner shall be entitled to relief of
reinstatement with 75% of back wages from the date of
dismissal till the date of his superannuation. It is not the
direction issued by this Court that the petitioner would be
entitled to all consequential benefits flowing from setting
aside the order of dismissal and directing the reinstatement in
service.
6] Shri Puranik, the learned counsel for the
respondents relied upon the judgment of the Division Bench
in the case of Bahujan Vikas Education Society and
another vrs. Mrs. Vidya Devi and others, reported in 2006
LAB I.C. 2857 and paragraphs 17 to 20 therein are
reproduced below;
"17. Omission on the part of any Court or Tribunal to incorporate a
direction to pay the back-wages cannot be later on filed in any
execution proceedings, or by any other executing authority who
has not been vested by law any power to supplant any order of
direction by denoting such deficiencies or omissions assuming
that some such order ought to exist. In view that the position of
law as reiterated in recent judgment in case of Kendriya Vidyalaya
Sangathan : (AIR 2005 SC 768) (supra), which reiterates the clear
proposition of law relying upon three earlier judgments, is a matter
of binding precedent.
18. After hearing the case and before delivering the judgment, we
had adjourned the case for a hearing on the aspect, for enabling
the learned Advocate Mr. Sable to take instructions and to find out
as to whether some settlement is possible where the
Management can be asked to forego part of the amount paid by it,
however, learned Advocate Mr. Sable has informed the Court that
the respondent No.1 is not ready for any compromise on refund of
amount.
19. The proposition advanced by learned Advocate that the order
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of back-wages has to be express, and cannot be considered or
construed to be passed by interpretation and necessary
implication, is liable to be accepted. In view of this position,
present petitioners' plea that the order of reinstatement, as can be
read from the judgment of this Court, cannot be read to include
order of back-wages is correct and deserves acceptance by this
Court.
Moreover, this Court is not sitting in review at the behest of the
teacher in the judgment passed in Writ Petition No. 584 of 1988 in
1990. The said judgment, which does not expressly grant back-
wages has, to be respected and acted upon as it stands.
20. This Court finds that the submission of learned Advocate for
the petitioner that an order has to be read as it stands, and none
can read it to include something which is in its mind is acceptable.
On the submission of learned Advocate that an order of back-
wages has to be explicit, and it cannot be inferred by implication,
this Court finds that the ratio laid down by the Hon'ble Supreme
Court in various cases supports the plea raised by the petitioner.
In the result, on facts, this Court finds as follows :
a) That the judgment of this Court on which the
respondent No.1 has relied for the relief of
reinstatement does not spell out that this Court has
ordered "reinstatement with full back wages".
b) Absence of mention of payment of full back wages
has to be read as a conscious judicial act.
c) The authorities of the Education Department are not
competent to infuse something in the operative order
of this Court, and in the result, Annexs. B and C are
illegal and without jurisdiction.
d) Respondent No.1 was not entitled to receive back
wages.
e) The amount received by the respondent No.1 under
the order of Court is liable to be refunded."
In view of the aforesaid position also, the petitioner would not
be entitled to the relief of payment of regular salary during the
period of suspension. Even otherwise, the relief which ought
to have been claimed in the earlier petition, if not claimed, will
be barred by the principle under Order II, Rule 2 of C.P.C.
and that of the constructive res-judicata.
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7] We have gone through the decision of the Apex
Court in the case of Dharampal Arora vrs. Punjab State
Electricity Board and another, reported in (2006) 13 SCC
593 relied upon by the learned counsel for the petitioner in
support of his contention that once the termination is set
aside, all orders from the date of charge-sheet up to the date
of the passing of the final order become a nullity and
redundant. The said decision deals with the claim of the
appellant for crossing efficiency bar with effect from
04.10.1974 instead of 01.04.1976. The Apex Court has
considered the decision given in the Civil Suit, in the Appeal
by the lower appellate Court and in Second Appeal by the
High Court. It is held in the said judgment that the question
of crossing of efficiency bar was specifically raised and it
was dealt with in the said judgment and merely because
there was no such direction in the operative portion of the
order, the technicalities would not come in the way of the
petitioner to claim the said relief.
8] In our view, the aforesaid judgment does not
apply to the facts of this case for the reason that the
petitioner is unable to point out to us any claim made in the
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earlier petition for regularization of the period of suspension
from 19.08.1990 to 11.02.1992. This judgment itself directs
the reinstatement of the petitioner with 75% of the back
wages from the date of dismissal till the date of his
superannuation. After conclusion of the enquiry, the order of
dismissal passed on 11.02.1992 and placed on record does
not deal with the period of suspension of the petitioner. It
was, therefore, open for the petitioner to have claimed for
passing of an order for regularization of the period of
suspension and in the absence of it, it is not possible for us
to direct payment of full salary for the period of suspension.
9] Coming to the challenge to the deduction of the
amount of Rs.60,136/-. We may note here that the
respondents have denied to have deducted an amount of
Rs.30,182/- towards employer's share in the provident fund
deducted from the amount payable to the petitioner. Be that
as it may, the stand of the respondent is that the petitioner
has already withdrawn the amount of provident fund dues
and Rs.1,85,296/- was paid to him by cheque dated
09.12.2007. The petitioner has not lost the said amount. We
do not find any illegality in deducting the employee's share of
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Rs. 25,504/- in providednt fund and the amount of profession
tax of Rs.4,450/-.
10] Coming to the last contention of Shri Mathew,
the learned counsel for the petitioner regarding the age of
superannuation, it is disputed by the respondents that the
provisions of Model Standing Orders are applicable to the
petitioner. According to them, the petitioner was working as
Senior Assistant in supervisory capacity from the year 1980
and any claim on the basis of Model Standing Orders can be
adjudicated by the Court of competent jurisdiction i.e. either
by the Labour Court or the Industrial Court in the appropriate
proceedings. In view of this, it is not possible for us to
adjudicate such a dispute for the first time in exercise of our
jurisdiction under Articles 226 and 227 of the Constitution of
India.
In view of above, we do not find any substance
in this petition. The same is, therefore, dismissed with no
order as to costs.
JUDGE JUDGE
Rvjalit
