D.N. Krishnappa vs The Deputy General Manager

Industrial Disputes Act, 1947 – s.33-C(2) – Bombay Chemical Industries Vs. Deputy Labour Commissioner & Anr. if applicable – Held: In the said case it is held that an un-adjudicated claim cannot be the subject matter of proceedings u/s.33-C(2) and in the proceedings u/s.33-C(2), the Tribunal can only interpret the award or settlement on which the claim is based – In the present case, the claim of the appellant was adjudicated upon, thus High Court misapplied the said decision to the facts herein – Appellant approached the Industrial Tribunal by way of an application u/s.33-C(2) for implementation of award dtd. 18.07.07 – 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 – Thus, the said decision shall not be applicable to the facts of the case on hand.

Allowing the appeal, the Court

HELD: 1.1 The order of reinstatement vide award dated 18.07.2007 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 12.07.2013 when the Division Bench of the High Court dismissed the writ appeals. 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? So far as the submissions on behalf of the bank that the interim order merged with final order dated 12.07.2013 and therefore, the appellant is not entitled to claim the back wages for the period between 18.07.2007 and 12.07.2013 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. 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. [Paras 7, 7.2][817-D-H; 818-A-E]

1.2 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. Now reliance placed upon the decision of this Court in the case of Bombay Chemical Industries 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 33C(2) of the ID Act for implementation of award dated 18.07.2007. 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, 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. [Paras 7.3, 7.4][818-C-G]

1.3 In view of the above and for the reasons stated, 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 18.07.2007 to 23.09.2013 is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. It is held that the appellant shall be entitled to the full wages with all emoluments from the date of order of reinstatement i.e., 18.07.2007 to the date of actual reinstatement i.e., 23.09.2013, however, after adjusting/deducting the amount already paid under Section 17B of the ID Act. Present appeal is allowed accordingly to the aforesaid extent. [Para 8][818-H; 819-A-B]

Bombay Chemical Industries Vs. Deputy Labour

Commissioner & Anr. (2022) 5 SCC 629 : 2022 (2 ) JT

14 – held inapplicable.

Namer Ali Choudhury & Ors. Vs. Central Inland Water Transport Corporation Ltd. and Anr. (1977) 4 SCC 575 : [1978] 2 SCR 205; M.L. Bose & Company Pvt. Ltd. Vs. Employees AIR 1961 SC 1198; Kunhayammed and Ors. Vs. State of Kerala and Anr. (2000) 6 SCC 359 : [2000] 1 Suppl. SCR 538 – referred to.