AN ARTICLE ON SECTION 33C (2) INDUSTRIAL DISPUTES ACT,1947, PART-II

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : SECTION 33C(2) INDUSTRIAL DISPUTES ACT,1947- ITS INTERPRETATION AND JUDICIAL PERSPECTIVE : A CONTEMPORARY APEX JUDICIAL DICTUM : PART-II

AJAYA KUMAR SAMANTARAY

PRELUDE : In this case, one, Shri D N Krishnappa, the Appellant, having felt ?aggrieved and dissatisfied with the judgment and order dated 30th June 2022 passed by the Hon’ble High Court of Karnataka at Bengaluru in Writ Petition No. 7176/2021, by which, the High Court had allowed the said writ petition preferred by the respondent - bank and had set aside the order passed by the Central Government Industrial Tribunal - cum - Labour Court (hereinafter referred to as the CGIT/Labour Court) in an application under Section 33-C(2) of the Industrial Disputes Act, 1947 awarding wages for the period from 18th July 2007 to 23rd? September 2013, the employee - workman had preferred a special leave petition which was accepted by the Hon’ble Supreme Court and was adjudicated upon.

In this case, reinstatement of the workman was directed against which the employer moved the Hon’ble High Court and also the Supreme Court but without success. Finally, the workman was reinstated after six years from the date of award of the CGIT-cum -Labour Court. The workman was not paid wages from the date of award till the date of reinstatement which compelled him to approach the CGIT-cum-Labour Court with an application under Section 33C (2) of the Act. The labour Court allowed the application and directed the employer (Indian Bank) to pay the wages from the date of award till the date of reinstatement. The employer moved a writ petition before the Hon’ble High Court which allowed the writ petition and quashed the order/award of the labour Court. While allowing the writ petition, the Hon’ble High Court placed reliance on a case-law of the Hon’ble Supreme Court in the case of Bombay Chemical Industries vrs Deputy Labour Commissioner and another, 2022 SCC Online SC 143 - (para 11 and 12). The workman, thereafter, moved the Hon’ble Apex Court by filing a special leave petition challenging the order of the Hon’ble High Court. The issues which emerged for adjudication? before the Hon’ble Supreme Court were as follows :

1. Whether in the facts and circumstances of the present case, an application under Section 33C (2) of the Industrial Disputes Act,1947 is maintainable ?

2. Whether the ratio of Bombay Chemical Industrles’s case is applicable to the facts of the present case ?

3. Whether the workman is entitled to wages from the date of award till the actual date of reinstatement ? ?

THE CASE-LAW :

D.N. KRISHNAPPA vrs. THE DEPUTY GENERAL MANAGER,INDIAN BANK,ZONAL OFFICE.BENGALURU ?[2022 SCC OnLine SC 1709] DoJ : 12 DECEMBER 2022

THE FACTUAL MATRIX :

?????? One, Shri D N Krishnappa,the appellant in this case, was working with Indian Bank.the ?respondent in this case. In the departmental proceedings he was dismissed from service on 27th September 1996. The order of dismissal was challenged by the appellant before the CGIT under Section 10(2)(a) of the ID Act. By the award dated 18th? July 2007, the CGIT set aside the order of dismissal and passed an order of his reinstatement with 50% back wages and withholding four annual increments with cumulative effect from the date of order of punishment. The said award was challenged before the High Court by the bank as well as the appellant .

The learned Single Judge by judgment and order dated 18th April 2013 confirmed the order of reinstatement, however, reduced the back wages from 50% to 25%. In the appeal(s), the Division Bench of the High Court also confirmed the order of reinstatement passed by the CGIT, however held that the appellant is not entitled to any back wages. The judgment and order dated 12th July 2013 was the subject matter of Special Leave Petition(s) before the Hon’ble Apex? Court, which dismissed the Special Leave Petition(s). Thus, the order of reinstatement in terms of award dated 18th July 2007 attained the finality. That thereafter, the appellant came to be reinstated on 23rd September 2013.

APPLICATION UNDER SECTION 33C (2) OF I D ACT,1947 :

??????? ?That neither was he reinstated earlier in spite of award dated 18th July 2007 nor was he paid full wages from the date of award i.e., 18th July 2007, therefore, he again approached the CGIT by filing an application under Section 33-C(2) of the ID Act claiming back wages from the date of award dated 18th July 2007 passed by the CGIT till his actual reinstatement. The CGIT allowed the said application and directed the ?employer to pay the wages due from the date of award to the date of actual reinstatement.

WRIT PETITION TO THE HIGH COURT :

?????? The bank preferred a writ petition before the High Court. By a judgment and order, the Division Bench of the High Court ?set aside the order passed by the CGIT relying upon the decision of the Hon’ble Apex Court in the case of Bombay Chemical Industries vrs. Deputy Labour Commissioner & Anr.; (2022) 5 SCC 629, and had observed and held that CGIT had no jurisdiction to decide the application under Section 33-C (2) of the ID Act.

SPECIAL LEAVE PETITION TO THE SUOREME COURT :

?????? Having felt aggrieved and dissatisfied with the judgment and order passed by the Division Bench of the High Court, the employee - workman has preferred a special leave petition (civil) bearing no,18635 of 2022 which on grant of special leave, became civil appeal no, 9008 of 2022.

?????? The ?counsel appearing on behalf of the appellant, vehemently submitted as follows :

(i) ?that in the facts and circumstances of the case, the High Court has materially erred in setting aside the order passed by the CGIT under Section 33-C(2) of the ID Act directing the bank to pay the wages from the date of order of reinstatement passed by the CGIT vide award dated 18th July 2007 to the date of actual reinstatement i.e., 23rd September 2013.

(ii) that the order of reinstatement had attained the finality and therefore, the appellant ought to have been reinstated and/or is entitled to all the benefits including the wages from the date of award dated 18th July 2007 till the date of actual reinstatement.

(iii) that the High Court has misread and/or mis-applied the decision of the Hon’ble Apex Court in the case of Bombay Chemical Industries (supra). The ratio of the judgment in Bombay Chemical Industries (supra) is that an unadjudicated claim cannot be the subject matter of proceedings under Section 33-C (2), and the CGIT can only interpret the award or settlement on which the claim is based.

(iv) that in the present case what was sought was implementation of award dated 18th July 2007 as modified by the Division Bench of the High Court.

(v) that ?the application claiming the wages and other benefits from the date of award of reinstatement passed by the CGIT on 18th July? 2007 was maintainable.

(vi) Relying upon the decision of the Hon’ble Apex Court in the case of Namer Ali Choudhury & Ors. vrs. Central Inland Water Transport Corporation Ltd. and Anr.; (1977) 4 SCC 575 (para 4), it was submitted that as observed and held by this Court once there is an award and question arises as to the amount of money due under the award, the same would be the subject matter of proceedings under Section 33-C (2) of the ID Act.

(vii) that if the impugned judgment and order, the High Court interfering with the order of CGIT is upheld and the submissions on behalf of the bank is accepted, in that case, the appellant - employee/workman has to suffer for no fault of him by denying the wages from the date of award of reinstatement passed by the CGIT/Labour Court which as such had attained the finality.

(viii) that the submission of the bank that because there were stay order(s) from time to time after the award was passed and because the award was the subject matter of challenge before various Courts up to 12th July 2013, the appellant was not required to be paid the wages from the date of award till the actual reinstatement on 23th September.2013, is unacceptable.

(ix) that as a matter of fact the award dated 18th July 2007 to the extent of directing the bank to reinstate the appellant had attained finality and the same has remained un-interfered with. It is submitted that mere pendency of proceedings does not dilute the requirement of reinstatement in terms of the award with all its consequences including payment of wages.

?Making the above submissions and relying upon the decision of the Hon’ble Court in case of M.L. Bose & Company Pvt. Ltd. vrs. Employees; AIR 1961 SC 1198, it was prayed to allow the present appeal.

Counter-submissions :

?????? On behalf of the employer, the following contentions were advanced :

(i) that in the facts and circumstances of the case as such the High Court has not committed any error in quashing and setting aside the order passed by the CGIT under Section 33-C(2) of the ID Act granting wages from the date of award of reinstatement passed by the CGIT on 18th July 2007 to the date of actual reinstatement.

(ii)? that in view of the above, the operation of award dated 18th July 2007 remained stayed by the High Court as the said interim order continued till disposal of the writ appeals on 12th July 2013.

(iii) that as per the settled position of law the interim order passed by the High Court always merges with the final order. It was submitted further that as in the present case interim stay granted by the High Court on the operation of award dated 18th July 2007 continued till the disposal of the writ appeals on 12th July 2013, therefore, award dated 18th July 2007 as modified by the final order dated 12th July 2013 passed by the Division Bench of the High Court becomes final and enforceable only on 12th July 2013.

It was submitted that therefore, the appellant shall not be entitled to claim back wages for the period from 18th July 2007 to 12th July 2013.

(iv) that since award dated 18th July 2007 remained stayed by the High Court till 12th July 2013, therefore, in view of the provisions contained in Section 17B of the ID Act, the appellant was paid last drawn wages amounting to Rs. 3,18,782.36/- for the period during the period the award passed by the CGIT remained stayed.

(v) that since the last drawn wages as provided under Section 17B of the ID Act have been paid during the period award passed by the CGIT remained stayed by the High Court, even for the said period also the appellant is not entitled to full back wages, as is being claimed by the appellant.

(vi) that even on the principle of merger the appellant shall not be entitled to any back wages from the date of award i.e., 18th July 2007 till the judgment and order passed by the Division Bench of the High Court. It is submitted that applying the principle of merger, only the final judgment and order dated 12th July 2013 passed by the Division Bench of the High Court shall be executable and enforceable. Reliance was placed on the decision in the case of Kunhayammed and Ors. vrs. State of Kerala and Anr.; (2000) 6 SCC 359.

????? ?Making the above submissions and relying upon the above decision, it is prayed to dismiss the present appeal.

THE ADJUDCATION:

????? On hearing the rival submissions, the Hon’ble Apex Court stated,? the short question which is posed for consideration is:

?Whether the appellant shall be entitled to the full wages from the date of award of reinstatement i.e., 18.07.2007 passed by the CGIT to the actual date of reinstatement i.e., 23.09.2013?

?????? ?It is the case on behalf of the bank that as the award dated 18th July 2007 of reinstatement passed by the CGIT was stayed by the High Court and continued to be stayed till 12th September 2013, the appellant shall not be entitled to the wages from the date of award dated 18th July 2007. It is also the case on behalf of the respondent - bank that award dated 18th July 2007 ultimately merges with the judgment and order dated 12th July 2013 passed by the Division Bench of the High Court and therefore, the order passed by the Division Bench of the High Court would be enforceable on the principle of merger.

It is also the case on behalf of the bank that during the pendency of the stay of the order of reinstatement dated 18th July 2007, the appellant was paid the last drawn wages under Section 17B of the ID Act, the appellant shall not be entitled to any further wages/back wages from the date of the award of reinstatement dated 18th July 2007 to the final judgment and order passed by the High Court dated 12th July 2013.

?????? The Hon’ble Apex Court stated, having heard counsel appearing on behalf of the respective parties and considering the facts narrated hereinabove, it emergers that the order of reinstatement vide award dated 18th July 2007 has been confirmed up to the Division Bench of the High Court and even by this Court. What was modified by the High Court was the back wages from the date of termination till the date of award passed by the CGIT.

It was the bank - employer who obtained the stay order against the order of reinstatement which ultimately came to be terminated on 12th July 2013 when the Division Bench of the High Court dismissed the writ appeals. As observed hereinabove, it was the employer - bank who obtained the stay against reinstatement and ultimately order of reinstatement attained the finality. Why should the employee be made suffer, when the bank obtained the stay of reinstatement and when the order of reinstatement subsequently came to be confirmed and attained the finality ?, stated the Hon’ble Apex Court.

On Merger of Interim Order with final Order:

?????? ?So far as the submissions on behalf of the bank that the interim order merged with final order dated 12th July 2013 and therefore, the appellant is not entitled to claim the back wages for the period between 18th July 2007 and 12th July 2013 is concerned, at the outset, it is required to be noted that the interim order is always subject to the final order that may be passed finally while terminating the proceedings. Interim orders are always subject to the final decision. Therefore, merely because there was an interim order/stay of the order of reinstatement during the pendency of the proceedings, the employee - appellant cannot be denied the back wages/wages when ultimately the order of reinstatement came be confirmed by the Court.

On Principle of Merger :

?????? ?Similarly, the submission on behalf of the bank applying the principle of merger has also no substance. In the present case as such the order of award of reinstatement has been confirmed by the Division Bench of the High Court. Therefore, the order of reinstatement will rely back to the original order passed by the Labour Court. Merely because the reinstatement order was under challenge and there was a stay of the order of reinstatement during the pendency of the proceedings before the High Court, it cannot be a ground to deny the wages to the employee when ultimately the order of reinstatement came to be confirmed and attained the finality.

On compliance with section 17B of I D Act :

??????? Now so far as the submissions on behalf of the bank that as during the pendency of the proceedings before the High Court and for the period during the stay of order of reinstatement, the appellant was paid the last drawn wages under Section 17B of the ID Act and therefore he is not entitled to any wages for the period during the stay is concerned, there is no substance. At the most, whatever is held to be entitled to pay the appellant - employee as wages from the order of award of reinstatement till actual reinstatement, whatever is paid under Section 17B of the ID Act, the same is to be deducted and/or adjusted.?

On reliance placed by the Bank :

??????? Now reliance placed upon the decision of this Court in the case of Bombay Chemical Industries (supra) considered by the High Court is concerned, as such the High Court has mis-applied the said decision to the facts of the case on hand. In the present case, the claim of the appellant was adjudicated upon. The appellant approached the Industrial Tribunal by way of an application under Section 33-C(2) of the ID Act for implementation of award dated 18th July 2007.

Therefore, so far as the order of reinstatement and the wages claimed on the order of reinstatement is concerned, the same were already adjudicated upon. In the case of Bombay Chemical Industries (supra), it is observed and held that un-adjudicated claim cannot be the subject matter of proceedings under Section 33-C(2) and in the proceedings under Section 33-C(2), the Tribunal can only interpret the award or settlement on which the claim is based. Under the circumstances, the said decision shall not be applicable to the facts of the case on hand.

THE CONCLUSION :

????? ?In view of the above and for the reasons stated above, the impugned judgment and order passed by the Division Bench of the High Court allowing the writ petition preferred by the respondent - bank and quashing and setting aside the order passed by the CGIT under Section 33-C(2) of the ID Act directing the bank to pay the wages from 18TH July 2007 to 23rd September 2013 is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside.

It was held that the appellant shall be entitled to the full wages with all emoluments from the date of order of reinstatement i.e., 18th July .2007 to the date of actual reinstatement i.e., 23rd September 2013, however, after adjusting/deducting the amount already paid under Section 17B of the ID Act.

THE VERDICT :

The Appeal filed by the workman? was allowed to the aforesaid extent, as described hereinbefore.

No costs.

?