Oriental Refrigeration & ... vs Pawan Kumar Etc.
1974 Latest Caselaw 4 Del

JUDGMENT

V.S. Deshpande, J.

(1) Respondent No. 1 Pawan Kumar was formerly in the employment of the petitioner company on Rs 132.00 per month. He was dismissed from employment on April 6, 1966. An industrial dispute was raised by way of Reference No. I. D. 133 of 1966 in which the Labour Court passed an award in favor of the respondent for reinstatement with continuity of service and half back wages. The award was published in the Delhi Gazette on July 27, 1967. The effect was that the workman was entitled to reinstatement immediately after the award was published and he was entitled to half the back wages till reinstatement.

(2) The petitioner company, however, contested the validity of the award by way of a writ petition. This writ petition was dismissed and thereupon the petitioner invited the workman to come back to work. The workman failed to come back inspite of the invitation by the employer because from July 1, 1967 he was serving in another job on Rs. 200.00 per month. He, nevertheless, made an application under section 33C(2) of the Industrial Disputes Act, 1947 to the Additional Labour Court praying that he should be paid wages from September 1, 1967 till June 30, 1972. It is common ground that the back wages of the workman had been paid up to September 1, 1967 The reinstatement of the workman was delayed because during the pendency of the writ petition, the reinstatement had been stayed by the High Court. The effect of the writ petition was that the petitioner was bound to reinstate the workman. The reinstatement in accordance with the award in Reference No. I.D. 133 of 1966 had to be immediately after the publication of the award. Since this was postponed entirely because of the writ petition and the stay order obtained by the petitioner, the petitioner would have been bound to give the workman the benefit of a retrospective reinstatement and the workman would have been entitled to his full wages during the period of the pendency of the writ petition. For, even though in the award in I. D. 133 of 1966 only half the bach wages had been ordered to be paid, thereafter the workman was entitled to be reinstated and if the reinstatement was delayed he was entitled to full wages during the period for which the reinstatement was delayed. This is established by the Supreme Court decision in M.L. Base & Company V. Lts mployees, 19C1) Ii Llj 107.

(3) The question before the Additional Labour Court was whether the workmen should be given full wages from September 1, 1967 to October 19, 1970 when the workmen refused to work. The Additional Labour Court purported to follow the Supreme Court decision mentioned above and held that the workman was entitled to full wages for this period even though he was already employed else where on Rs. 200.00 per month during that period and he continued to be so employed and this was the reason why he did not avail himself of the order of reinstatement.

(4) This order passed by the Additional Labour Court on April 23, 1973 in Lca 76 of 1972 has been challenged as illegal by the employer in the present writ petition.

(5) The Supreme Court decision mentioned above is clearly distinguishable. The workmen in that case were not shown to have been employed elsewhere during the pendency of the appeal in the Supreme Court due to which their reinstatement was delayed. The Supreme Court, therefore, granted them full wages for that period. In the present case, on the other hand, the workman was employed elsewhere on a pay higher than he would have been entitled to get from the petitioner company. In my view, he is not entitled to bids wages from September 1, 1967 to October 19, 1970 for (he following reasons ;- (1)the Award in I.D. 133 of 1966 is res judicata only to the extent that the petitioner was bound to reinstatement was delayed. The award was not, therefore, res judicata as to what wages should be payable to the workman during the period for which his reinstatement was delayed. The matter was to be either settled between the parties or to be decided by appropriate court according to law. (3) The impugned decision of the Additional Court is not according to law. For, It is a well settled principal that if during the period for which the workman would have been entitled to full wages, he is serving elsewhere, then the wages which he has so earned by serving elsewhere have to be deducted from the wages he is entitled to claim his former employer for the period of delay in his reinstatement. For, the wages are payable to him only on the theory that he continues to be in employment of the former employer. But this theory is not tenable when in actual fact he is employed elsewhere and earning wages from another employer. (4) The distinction between the amount of wages payable till reinstatement and the amount of wages payable during the period for which the reinstatement was delayed either because of a writ petition or of an appeal has to be borne in mind. The award ordering reinstatement was res judicata only in respect of the back wages. It did not and could not make any order as to the wages payable after reinstatement. Therefore, the fixation of wages during the period of delay in reinstatement has to he made independently of the award. In doing so, there is no reason why the workman should be enabled to get wages from two employers. The general rule, therefore, is that the wages which he got from the other employer should be deducted from the claim he has against bids former employer. As the wages which the present workman got from the other employer are higher than the the wages he would have been entitled to get from the former employer, there is nothing which the former employer (petitioner) has to pay to the workman.

(6) For the above reasons, the impugned order of the Additional Labour Court dated April 23, 1973 is set aside and the application of the respondent workman under section 33C(2) of the Industrial Disputes Act is dismissed.

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