Mala Sanyal (Ghosh) vs The Secretary
2021 Latest Caselaw 1108 Cal/2

                      IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                              ORIGINAL SIDE


Present:
The Hon'ble Justice Subrata Talukdar
                And
The Hon'ble Justice Jay Sengupta


                              APOT/33/2019
                                  With
                              WPO/683/2001
                            Mala Sanyal (Ghosh)
                                  Versus
                The Secretary, Department of Labour & Ors.



For the Appellant             : Mr. Soumya Majumder
                               Mr. Rananeesh Guha Thakurta
                               Ms. Senjuti Sengupta
                                                      ...Advocates


For the Respondent No. 3      : Mr. Anant Kumar Shaw
                               Mr. Ravi Kumar Dubey
                               Mr. Mainak Ganguly
                                                     ...Advocates


For the State                 : Ms. Tapati Samanta
                                                     ...Advocate


Heard on                      : 13th August, 2021
                                       2



Judgment on                    : 27th September, 2021


Jay Sengupta, J.

1. This appeal is directed against an order dated 23rd August, 2018

passed by the Hon'ble Single Judge, thereby dismissing the writ petition

being W.P. No. 683 of 2001 filed by the present appellant. In the writ

petition, the appellant had challenged an order dated 27th February, 1997

passed by the learned 2nd Labour Court, West Bengal in a proceeding

initiated by her against the respondents, the Capital Electronics and two

others under Section 33 C (2) of the Industrial Disputes Act, 1947.

2. The appellant/writ petitioner was employed by the respondent

concern as a casual employee in 1979. Subsequently, disputes arose with

regard to stock verification in the record section for which the appellant was

suspended and thereafter, dismissed from service with effect from 7th July,

1982. She raised an industrial dispute and the learned 2nd Industrial

Tribunal, West Bengal passed an award on 30th March, 1989, directing her

reinstatement in service immediately, with full back wages. In 1989, the

appellant filed an application under Section 33 C (2) of the said Act for

computation of benefits in terms of the award for the period 1981 to October

1989. This was allowed by an order dated 5th April, 1990 for a sum of Rs.

48,937/-. The appellant moved the Court of the learned Magistrate for

recovery of the said amount. The appellant filed a second application under

Section 33 C (2) of the said Act before the learned Labour Court claiming

dues from November, 1989 to May, 1992. On 18th March, 1994, the learned

Court passed an order in her favour. This was challenged by the employer

before this Court. By a judgment and order dated 22nd August, 1996, this

Court, inter alia, directed the learned Labour Court to consider the materials

afresh. The appellant filed a third application under Section 33 C (2) for

computation of dues from June, 1992 to November, 1995. By an order dated

27th February, 1997, this claim was rejected on the ground that the

workman had refused the management's offer of reinstatement as showroom

manager in 1994. This was challenged by the appellant in a writ application.

However, the writ petition was dismissed on 23rd August, 2018 on the

ground that the appellant did not want to resume duties as a showroom

manager in terms of the concern's purported offer dated 25.06.1994.

3. Learned senior counsel appearing on behalf of the appellant

submitted as follows. The prime question was about the interpretation of the

term 'reinstatement'. The word 'reinstatement' meant restoration of status

quo ante. Therefore, compliance of the award would mean putting back the

appellant in service in the capacity of a sales girl at the Howrah branch, the

post and the place from where she was terminated. On the definition of the

word 'reinstatement', reliance was placed on a Division Bench of the Hon'ble

Karnataka High Court in R. S. Manier, Sub-Registrar vs. The State of

Mysore, (1969) 1 LLJ 486 and a decision passed by the Hon'ble Supreme

Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak

Mahavidyalaya (D. Ed.) & Ors., (2013) 10 SCC 324. Non compliance of the

award, as was well settled, was a continuing breach. Besides, the

management's purported offer on 25th June, 1994 to post the appellant as a

showroom manager at Howrah Branch could only be viewed as a design not

to comply with the award. The very nature of the offer to the post of a

showroom manager manifested that it was not an offer of reinstatement.

Therefore, the learned Labour Court erred in rejecting the claim application

under Section 33 C (2) of the said Act and thus, permitting the breach of the

industrial award to continue. The order of the Hon'ble Single Judge should

also be set aside on the same ground.

4. Learned counsel appearing on behalf of the respondent no.

3/company, submitted as follows. This was a case where the appellant/writ

petitioner, after obtaining the initial award from the learned Labour Court,

decided that she would not work and yet keep on receiving salary for the

same by exploiting such award. First, the appellant was employed by the

concern at its head office at the JL Nehru Road Branch. She worked there as

a sales girl. Thereafter, she was transferred to the concerned Howrah

branch. As regards the place of posting, this Court, by its order dated 22nd

August, 1996 passed in the earlier writ application specifically clarified that

in the eye of law there was no distinction between Capital Electronics and

Capital Electronics (Howrah). All the units were actually different places

owned by the same firm. A firm was at best a juristic person. Only the

natural persons behind a firm were legally entitled to initiate or defend any

legal action for or against the firm. Thus, it was not open to the appellant to

keep on harping that she would join a post only at a specific location. At no

point was the appellant asked to join the post of showroom manager.

Rather, she was directed to join her duties by reporting to the showroom

manager of the VIP Road showroom, admittedly by a letter dated

24.06.1994. By then, the gramophone unit where the appellant was earlier

working at Howrah had become defunct. The appellant, by a letter dated

05.07.1994, refused to join her duties at that showroom. The appellant

made an application dated 7th July, 1997 under Section 29 of the said Act

for implementation of the award of reinstatement. By a detailed report dated

17th June, 1998, the Assistant Labour Commissioner, inter alia, observed

that the prosecution under Section 29 would not stand against the

company. Accordingly, the Labour Department, Government of West Bengal

decided not to lodge a prosecution under Section 29 of the Act. It was

pertinent to mention that the 2nd Industrial Tribunal was pleased to direct

the company to reinstate the appellant, but at no point of time any specific

direction was passed by it to reinstate her at the Howrah unit only. By a

letter dated 23rd January, 1989, the company asked the appellant to join her

duty at VIP Road. By a letter dated 25th December, 1991, the company again

offered employment to the appellant stating, among other things, that her

posting, salary and duty would remain the same. A similar letter dated 6th

January, 1992, offering employment at the VIP Road branch, was sent to

her by the company. But, on all such occasions the appellant refused to join

such service. Lastly, the company gave a similar offer to her by a letter dated

25th June, 1994 to join her duties and report to the showroom manager, VIP

Road Branch. But, the appellant yet again refused to join such employment.

Once the appellant had voluntarily refused to join such service, she could

not claim that she was not reinstated in service by her employer and

continue to make monetary claims by abusing the provisions of Section 33 C

(2) of the Industrial Disputes Act. This is more so, in view of the fact that the

order dated 22nd August, 1996 passed by this Court setting aside the orders

dated 5th April, 1990 and 18th March, 1994 passed by the learned Labour

Court, was neither challenged by the appellant herein nor complied with by

approaching the learned Labour Court for reconsideration. On the contrary,

the appellant found it more convenient to make successive applications

under Section 33 C (2) of the said Act. Therefore, it could be safely held that

the appellant abandoned her right to seek reinstatement and her conduct in

not reporting for duties disentitled her even to back wages. On this, reliance

was placed on State of M.P. vs. Anees Khan, (2014) 8 SCC 900. On the

contrary, the decisions cited on behalf of the appellant were passed in

different facts and circumstances and were not at all relevant in the present

case. Even at the cost of repetition, it must be reiterated that the true intent

of the appellant was to enjoy monetary benefit by abusing due process of

law and, more significantly, without venturing out to work.

5. Learned Counsel appearing on behalf of the State reiterated the

submissions advanced on behalf of the Respondent No. 3.

6. We heard the learned counsel/s appearing on behalf of the appearing

parties and perused the petition of appeal, the stay application, the

impugned order and other documents including the notes of arguments filed

on behalf of the respective parties.

7. The word 'reinstatement' would undoubtedly mean restoration of

status quo ante. However, such reinstatement would have to be understood

in the backdrop of the particular facts and circumstances of this case.

8. It is the case of the respondent no. 3 that the concerned gramophone

unit at its Howrah branch had become defunct. Therefore, if the

appellant/workman had to be put to a similar job, as the one she was

engaged at, at the Howrah branch, then she could fairly be employed at the

VIP Road branch. Accordingly, on several occasions she was offered a

similar job at the concerned VIP Road branch. But, the appellant refused to

accept it.

9. In this context, it is quite significant that, by its order dated 22nd

August, 1996 passed in the earlier writ application being Matter No. 2650 of

1994, this Court held that in the eye of law, there was no distinction

between Capital Electronics and Capital Electronics (Howrah) and that all

the units were actually different places owned by the same firm. This finding

was never challenged by the appellant. Therefore, there is much merit in the

submission of the respondent no. 3 that it was no more open to the

appellant to keep on harping that she would join a post only at a specific

location, i.e. at Howrah.

10. Besides, it is not that the appellant always worked at the concern's

Howrah branch. In fact, when she had joined the concern, she was first

employed at the J.L. Nehru Branch.

11. Moreover, unlike the claim of the appellant that she was asked to join

the post of showroom manager at the VIP Road branch, the appellant was in

fact offered to join her duties by reporting to the showroom manager at the

said showroom, admittedly by a letter dated 24.06.1994.

12. In the present case, the nature of work appears to be more closely

relatable to the term 'reinstatement' as used by the learned Labour Court

than the place or location of such work. This is more so, in view of the

unchallenged order of this Court passed on 22nd August, 1996 in Matter No.

2650 of 1994 holding, among other things, that in the eye of law there was

no distinction between the concerned Capital Electronics and its other unit,

Capital Electronics (Howrah).

13. In view of the above, it was a substantial compliance of the Learned

Labour Court's order of reinstatement that the respondent no. 3 offered the

appellant a similar employment at its VIP Road branch.

14. In our view, since the appellant had voluntarily refused to join such

service as was offered by the respondent no. 3, she could not claim that she

had not been reinstated in service by the employer and keep on making

monetary claims under Section 33 C (2) of the Industrial Disputes Act.

15. Therefore, we do not find any illegality in the order passed by the

Hon'ble Single Bench.

16. Accordingly, APOT 33 of 2019 stands dismissed.

17. All parties are to act in terms of the copy of the judgment downloaded

from the official website of this Court.

18. Urgent Photostat certified copies of this judgment shall be supplied to

the parties, if applied for, upon compliance of all formalities.

I agree,



(Subrata Talukdar, J)                                        (Jay Sengupta, J)




P. Adak