Madras High Court
The Superintending Engineer vs P.Kala on 2 March, 2021
WP NO.31844 OF 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2021
CORAM
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
WP NO.31844 OF 2019
AND
WMP NOS.32085 AND 32086 OF 2019
The Superintending Engineer
Vellore Electricity Distribution Circle
Tamil Nadu Electricity Board
Gandhi Road,
Vellore – 632 006. ... Petitioner
Vs.
P.Kala ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records from the Principal
Labour Court, Vellore, in C.P.No.91 of 2016 and quash the order dated
30.07.2018.
For Petitioner : Mr.Anand Gopalan
for M/s.T.S.Gopalan & Co.,
For Respondent : Mr.J.Saravana Vel
1/16
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ORDER
This Writ Petition is directed against the Award dated
30.07.2018 passed by the Principal Labour Court, Vellore, in the
Computation Petition filed by the respondent / employee.
2. According to the writ petitioner, the respondent / employee
was terminated from service on 21.04.1997. From the date of appointment of
the respondent / employee viz., from 31.03.1996 till 21.04.1997, she had put
in only 13 months of service. An Award was passed on 18.12.2001 setting
aside the termination order with a direction to reinstate the respondent into
service with backwages and continuity of service. The writ petitioner filed a
writ petition against the award passed by the Labour Court in I.D.No.82 of
1999, dated 18.12.2001, only on 22.02.2003. Thereafter, the petitioner
approached this Court by way of filing a petition for vacating the stay and for
payment of last drawn wages under Section 17-B of the Act on 08.10.2003.
Between 18.12.2001 and 08.10.2003, the respondent has not asked for
reinstatement. But the Labour Court, without considering this issue, has
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computed the entire backwages from the date of award till the date of the
order passed in the Computation Petition.
3. The learned counsel for the petitioner would rely on the
judgment of this Court in PEER MOHAMED & CO., VS. MOHAMED
HUSSAIN AND ANOTHER [1968 (2) LLJ 98] wherein, this Court,
considering the conduct of the employee, refused to grant backwages for the
period during which, the employee failed to ask for reinstatement. In that
case, an award was passed by the Labour Court, setting aside the termination
as early as on 05.05.1962, whereas the employee has approached the
employer only in 1963 after a period of one year. In those circumstances, it
was held by this Court that it is the duty of the employee concerned either to
claim or inform in writing that he is ready and willing to join the service
within a reasonable time or to give a notice that he should be reinstated,
failing which, he would be taking legal proceedings against the employer. In
the absence of any of these things, the employer is under no legal obligation
to take steps to reinstate the employee who was dismissed by him, but
subsequently restored to his job by the order of the Tribunal. In essence, it
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WP NO.31844 OF 2019
was observed that the employee is also equally responsible to express his
readiness to join service within a reasonable time and without expressing
such desire and keeping quiet for months together asking for backwages is
not reasonable.
4. The learned counsel for the petitioner would also rely on a
judgment of the Kerala High Court in ANNAMMA THOMAS VS.
T.JOSEPH AND OTHERS [1984 (II) LLN 813]. In that case, after
reinstatement by the Labour Court, the employer preferred a writ petition,
challenging the award. But there was no order of stay of the implementation
of the award. But the employee has not sought for reinstatement or expressed
his willingness to work despite the pendency of the writ petiiton. In such
circumstances, it is held by their Lordships that the entitlement of future
wages is not automatic. Unless the employee expresses his willingness and
waits until the award become final, he is not entitled to future wages.
5. But in the instant case, the situation is entirely different. The
above cited judgment will not apply to the present case. The fact of the case
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is that the respondent / employee was appointed on compassionate ground. At
the time of appointment, she made a declaration that she passed 8th Standard.
Later, by way of communication from the Education Department, it was
found that her certificate was bogus and she was not entitled to employment.
Consequently, the petitioner had initiated disciplinary action and terminated
the service. But, before the Labour Court, the petitioner / employer failed to
produce the crucial communication received from the Education Department
that the certificate obtained from the respondent was bogus one. Therefore,
the Labour Court has set aside the order of termination and directed the
employer to reinstate the respondent within a period of two months from the
date of the award with backwages, continuity of service and other attendant
benefits. This award was challenged before this Court in W.P.No.12165 of
2003 and interim stay was also granted. The respondent filed a petition for
vacating the interim stay and also for payment of backwages under Section
17-B, on 08.10.2003. The petitioner / employer has chosen to pay the last
drawn wages under Section 17-B of the Act and has not reinstated the
respondent in service.
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6. This Court, by its order dated 11.12.2015, has confirmed the
award passed by the Labour Court. Thereafter, it is stated that the respondent
has written a letter to the writ petitioner for reinstatement in the year 2016.
Since the petitioner has not provided reinstatement, the respondent filed a
claim statement on 06.10.2016 claiming money value of the benefits under
Section 33(C)(2) of the Industrial Disputes Act, 1947, to the tune of
Rs.42,46,089/-. The quantum of the claim was disputed by the writ petitioner
and they filed a counter statement seeking permission to file a correct
statement. During the pendency of the claim petition, the employer filed a
Writ Appeal with delay, which was dismissed by the Division Bench of this
Court on 07.06.2018 in CMP No.18389 of 2017 in WA SR No.56754 of
2017. Accepting the statement made in the calculation memo filed by the writ
petitioner, the Labour Court has ordered payment of money value of the
backwages and other attendant benefits on 30.07.2018. Against which,
respondent filed an Execution Petition vide E.P.No.13 of 2019 in C.P.No.91
of 2016 on 24.01.2019, in which, time was sought for by the employer on the
ground that review application was filed and the same was pending.
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7. In the interregnum, the writ petitioner filed a Review
Application in Rev.Aplw.No.224 of 2018. This Court, by its order dated
03.10.2019, dismissed the Review Application. Thereafter, the Labour Court
has proceeded with the execution proceedings. In such circumstances, the
order passed in the Computation Petition dated 30.07.2018 is now put to
challenge before this Court.
8. The learned counsel appearing for the petitioner would
vehemently contend that in view of the judgments passed by this Court in
PEER MOHAMED & CO., MADRAS VS. MOHAMED HUSSAIN AND
ANOTHER [1968 (2) LLJ 98] the employee is not automatically entitled to
the reinstatement with backwages. Upto the date of award, there is no request
for reinstatement. After the award, equal responsibility is cast on the
employee to ask for reinstatement or implementation of the award within a
reasonable time. Between 18.12.2001 and 22.02.2003, the employee had kept
quiet and therefore, she is not entitled to ask for the entire backwages. He
would rely on the judgment of the Hon'ble Supreme Court in S.S.SHETTY
VS. BHARAT NIDHI LITD [AIR 1958 SC 12] for the proposition that the
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Courts cannot compute the wages on mathematical exactitude, but, on the
facts and circumstances of the case, a reasonable computation shall be made.
It is very clear that the award was passed as early as in 2001. Therefore, it is
incumbent on the employer to implement the same. Without implementing
the award, the employer has chosen to challenge the award and obtained stay
of the implementation of the award. In such circumstances, it should be
construed that the employer was not willing to provide reinstatement and has
chosen the alternative path of paying the last drawn wages under Section
17-B of the Industrial Disputes Act, 1947, as ordered by the Labour Court.
Even before the Labour Court, when the Computation Petition is filed, the
employer has not taken a stand as to the entitlement of the employee for
reinstatement. Had an opportunity was given to the employee, she would
have explained as to whether she had asked for reinstatement within a
reasonable period from the date of award or not?. It is not possible at this
distance of time i.e., after a period of two decades to expect the employee to
prove the issue as to her entitlement. At this juncture, this Court is not
inclined to interfere with the findings of fact on the issue of entitlement to
claim backwages that too when the employer has not chosen to raise the issue
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at the appropriate time before the appropriate forum. In the considered
opinion of this Court, when an award is passed directing the employer to
reinstate the employee within a period of two months, it is the responsibility
of the employer either to implement the award within the time granted by the
Labour Court or to challenge the same. The employer has chosen the second
avenue and has challenged the award and obtained stay of proceedings and
the stay will operate from the date of the award and therefore, the contention
of the learned counsel for the petitioner that even in the worst case scenario,
the period between 2001 and 2003, shall be excluded cannot be
countenanced. The contention of the respondent that her request for
reinstatement was denied by the petitioner / Management would lead us to
the logical conclusion that it must be true. Unless the award of reinstatement
is varied by an appellate forum or modified by way of contract between the
parties, the legal fiction would be that the employee continue to be under
employment and entitled to wages. By choosing to challenge the award and
obtained a stay, it is not open to the petitioner to raise the issue that the
employee had failed to express her willingness to work.
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9. The Hon'ble Supreme Court in S.S.SHETTY VS. BHARAT
NIDHI LTD. [AIR 1958 SC 12] has observed as under:-
“15.The benefit of reinstatement which is awarded to
a workman under the terms of the award does not become a
term or condition of the contract between him and the
employer. There are no doubt other reliefs by way of changes
in the terms and conditions of employment which when
awarded by the appropriate tribunal might be treated as
implied terms of the contract between the employer and the
workers to whom the award applies and would enure for the
benefit of the worker until varied by appropriate legal
proceedings. There is no statutory provision in that behalf
contained in the Industrial "Disputes Act, 1947. But it is
interesting to note that in the Industrial Disputes Order,
1951, obtaining in England there is enacted which runs as
follows:
“Section 10: Award to be implied term
of contract: Where an award on a dispute or
issue has been made by the Tribunal then as
from the date of the award or from such other
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date, not being earlier than the date on which
the dispute or issue to which the award relates
first arose, as the Tribunal may direct, it shall
be an implied term of the contract between the
employer and workers to whom the award
applies that the terms and conditions of
employment to be observed under the contract
shall be in accordance with the award until
varied by agreement between the parties or by
a subsequent award of the Tribunal or until
different terms and conditions of employment
in respect of the workers concerned are settled
through the machinery of negotiation or
arbitration for the settlement of terms and
conditions of employment in, the trade or
industry or section of trade or industry or
undertaking in which those workers are
employed.”
16.Whatever be the position in regard to the terms
and conditions of employment thus varied in accordance
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with the terms of the award, the benefit of reinstatement
awarded to a workman certainly cannot be treated as part
of the contract between him and the employer. The effect of
an order of reinstatement is merely to set at sought the order
of wrongful dismissal of the workman by the employer and
to rein- state him in the service of the employer as if the
Contract of employment originally entered into had been
continuing. The terms and conditions of the contract which
obtained when the workman was in the employ of the
employer prior to his wrongful dismissal which has been set
aside continue to govern the relations between the parties
and the workman continues in the employ of the employer
under those terms and conditions. There is no variation of
those terms and conditions of the contract. The only thing
which happens is that the workman is reinstated in his old
service as before.
17.The monetary value of the benefits of such
reinstatement is therefore to be computed not on the basis of
a breach of the contract of employment nor on them basis of
a tort alleged to have been committed by the employer by
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reason of the non- implementation of the direction for
reinstatement contained in the award. The analogy of a suit
for a declaration that the workman is continuing in the
employ of the employer and that he should be paid the salary
and benefits, etc., which would have been earned by him up
to the date of the institution of the suit also does not
strictly apply for the simple reason that the workman here is
not asking for a declaration that-he is still continuing in
service on the ground that there was a termination of his
service after the award, which termination is void. What he
is asking for is a computation in terms of money of the
benefit of reinstatement which was granted to him by the
Industrial Tribunal and which the employer did not
implement.
18.The purpose of the enactment of Section 20(2) of
the Act is not to award to the workman compensation or
damages for a breach of contract or a breach of a statutory
obligation on the part of the employer. Any money which is
due from an employer under the award can by virtue of the
provisions of Section 20(1) of the Act be recovered by the
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appropriate Government on an application made to it by the
workman. Where however any benefit which is not
expressed in terms of money is awarded to the workman
under the terms of the award it will be necessary to compute
in terms of money the value of that benefit before the
workman can ask the appropriate Government to help him
in such recovery. Section 20 sub-section (2) provides for the
computation in terms of money of the value of such benefit
and the amount at which such benefit should be computed is
to be determined by the Industrial Tribunal to which
reference would be made by the appropriate Government for
the purpose. Such computation has relation only to the date
from which the reinstatement of the workman has been
ordered under the terms of the award and would have to be
made by the Industrial Tribunal having regard to all the
circumstances of the case. The Industrial Tribunal would
have to take into account the terms and conditions of
employment, the tenure of service, the possibility of
termination of the employment at the instance of either
party, the possibility of retrenchment by the employer or
resignation or retirement by the workman and even of the
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employer him- self ceasing to exist or of the workman being
awarded various benefits including reinstatement under the
terms of future awards by Industrial Tribunals in the event
of industrial disputes arising between the parties in the
future.”
10. Therefore, the contention of the writ petitioner that the
respondent has put in only 13 months of service and that she is not entitled to
compute the backwages for a period of 20 years without asking for
reinstatement from the date of the award is not sustainable. Since the
employer having failed to reinstate the employee and continued the agitation
till date, cannot deny the backwages as well as the future benefits pursuant to
the award. Therefore, the Writ Petition merits no consideration and
accordingly, stands dismissed. No costs. Consequently, connected
miscellaneous petitions are closed.
02.03.2021
Index : Yes/No
Internet : Yes/No
TK
M.GOVINDARAJ, J.
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WP NO.31844 OF 2019
TK
To
The Principal Labour Court
Vellore.
WP NO.31844 OF 2019
02.03.2021
https://www.mhc.tn.gov.in/judis/
