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Judgment
A.A. Sayed, J.—This petition filed under Article 226 of the Constitution impugns an order dated 31.1.2003 passed by the Labour Court whereby the application of the petitioner-employee under sections 73 and 79 of the Bombay Industrial Relations Act, 1946 was partly allowed and the petitioner was granted the benefit of continuity of service from 25.2.1993-the date of dismissal, till 31.7.1996-the date of closure of the respondent mill. The respondent mill was also directed to pay 50% of back wages to the petitioner. The order of the Labour Court was affirmed by the Industrial Court in Appeal filed by the petitioner, which order is also impugned in these proceedings.
The petitioner was employed as a Chief Clerk in the Accounts Department of the respondent mill, which is a cotton textile mill governed by the provisions of Bombay Industrial Relations Act, 1946 (hereinafter referred to as ''B.I.R. Act'' for the sake of brevity). The petitioner was served with two charge-sheets. The allegation in the first charge-sheet dated 21st April, 1992 was of misconduct of picking up a quarrel with a superior officer. The second charge-sheet dated 13th June 1992 pertains to misconduct on account of absenteeism. After ah inquiry, the petitioner was dismissed from the service by an order dated 25.2.1993 having been held guilty of the charges levelled against him. The petitioner thereupon served an approach notice on the respondent mill and filed the application under sections 78 and 79 of the B.I.R. Act seeking to set aside the order of dismissal from service and for an order of reinstatement with full back wages and continuity of service. The petitioner also claimed that the punishment of dismissal was harsh and disproportionate. By an order dated 20.11.2002 the Labour Court held that the inquiry conducted was fair and proper and the findings recorded by the Inquiry Officer were not perverse. This was decided as a preliminary issue. The application was thereafter heard finally and the Labour Court by its judgment and order dated 31st January, 2003 granted the benefit of continuity of service and awarded 50% back wages to the petitioner from 25th February, 1993 (the date of dismissal) till 31st July, 1996 (the date of closure of mill). The Labour Court concluded that though the misconducts were proved, the misconducts were not so grave. The Labour Court held that the punishment of dismissal was shockingly disproportionate and the dismissal of the petitioner was illegal and liable to be set aside. The Labour Court observed that the petitioner is not entitled for wages from the date of absence till the date of dismissal as per the principle of "no work no pay'' and that it being an admitted position that the respondent mill had closed down since 31.7.1996 there was no question of reinstatement. The operative part of the impugned order of the Labour Court reads as under:
The Application is partly allowed.
The opponents are hereby directed to give the benefits of continuity of service from the date of dismissal i.e. 25.2.1993 till 31.7.1996.
The opponents are further directed to pay 50% of the back wages to the applicant from the date of dismissal i.e. 25.2.1993 till 31.7.1996.
The claim of 50% back wages is denied.
The parties to bear their own costs.
As indicated earlier, this order was challenged in appeal by the petitioner in the Industrial Court, which dismissed the appeal, thereby confirming the order of the Labour Court.
I have heard the learned Counsel for the parties and perused the material on record. At the outset, it is noted that the only grounds on which the order of the Labour Court was impugned as appearing in the Memo of Appeal filed by the petitioner before the Industrial Court read as follows:
GROUNDS
The Hon''ble Labour Court having observed that the awarded punishment of dismissal is shockingly disproportionate, harsh and illegal. The normal rule in such a situation is to grant full back wages as per the ratios laid down by the Hon''ble Supreme Court in various matters.
The appellant states that there is no material produced by company to deviate from the normal rule which provides for full back wages, once again the dismissal order is held to be illegal.
The judgment of the Trial Court in so far as it denies 50% of the back wages to the appellant is erroneous and is not in consonance with the well settled pronouncements of the Higher Courts.
The Trial Court ought to have appreciated the long standing service, and the clean record of the applicant and further ought to have noticed that the appellant was not gainfully employed all these years.
The relevant prayers in the Memo of Appeal were as under:--
To call for record and proceedings of appln. (B.I.R.) No. 177 of 1993.
Quash and set aside the impugned order dated 31.1.2003 in so far as it denies the payment of full back wages to the appellant.
Direct the respondent to pay full back wages with continuity of service to the appellant.
Any such other and further relief''s as the Hon''ble Court deem fit and proper in respect of back wages.
The applicant craves leave to add, to alter and/or amend this Appeal Memo if and when required.
(Emphasis supplied)
It is thus seen that the only grievance of the petitioner before the Industrial Court in the appeal was that the petitioner ought to have been awarded full back wages as against 50% back wages awarded by the Labour Court. As a matter of fact, even in the present proceeding, the grounds raised pertain only to the denial of full back wages. The substantive prayer Clause (a) of the petition reads as under:--
(a) this Hon''ble Court may be pleased to exercise its powers under Article 226 of the Constitution of India, by issuing a Writ of Certiorari, or a Writ in the nature of Certiorari, or any other appropriate writ, order or direction, calling for the records and proceedings of the case in Application (BIR) No. 177 of 1993, before the Labour Court, Mumbai and in Appeal (IC) No. 80 of 2003 before the Industrial Court, Mumbai and, after looking into the legality and propriety thereof to quash and set aside:
(i) the Judgment and Order dated 31.1.2003 passed by Labour Court, Mumbai in Application (BIR) No. 177 of 1993 and
(ii) the Judgment and Order dated 15.11.2006 passed by Industrial Court, Mumbai in Appeal (IC) No. 80 of 2003 to the limited extent to which the said Orders deprive the petitioner-employee the relief full back wages.
(Emphasis supplied)
The only question therefore which arises for consideration before this Court is whether the petitioner ought to have been granted full back wages for the period 25th January, 1993 till 31st July, 1996. Now, the Labour Court has arrived at a finding of fact that the misconducts are proved which is confirmed by the Industrial Court in appeal. Considering the above and the limited challenge by the petitioner to the denial of full back wages before the Industrial Court in appeal and in these proceeding, it would neither be possible nor appropriate for this Court to go into the aspect of misconducts. In S.S. Sharma and Others Vs. Union of India (UOI) and Others, a three Judge Bench of the Supreme Court held that the parties should ordinarily be confined to their specific written pleadings. It is an admitted position that the respondent mill is closed since 31.7.1996. The question therefore of reinstatement could not arise. The Labour Court therefore granted to the petitioner 50% back wages from 25th February, 1993-the date of dismissal, till 31st July, 1996-the date of closure of respondent mill. In the light of the above, I am unable to see any infirmity in the impugned orders. In my view, the grant of full back wages to the petitioner as claimed by him would tantamount to the petitioner going unpunished, despite the proved misconducts. Apart from the above, it is of significance to note that even in the application before the Labour Court, there is no averment made by the petitioner that he was not gainfully employed elsewhere. In these circumstances, in my view, the order of the Labour Court and the Industrial Court are unexceptionable and not liable to be interfered in exercise of extraordinary writ jurisdiction of this Court.
It is however sought to be argued by the learned Counsel for the petitioner that the Labour Court has granted ''continuity in service'' and therefore the petitioner would be entitled to all benefits including VRS which has been granted to other workmen in the respondent mill, upon its closure. The learned Counsel in support of this submission has relied upon the following judgments:
(i) Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, . (ii) Sanat Kumar Dwivedi Vs. Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit and Others, . (iii) Vasantika R. Dalia Vs. Baroda Municipal Corporation, . (iv) S.S. Sharma and Others Vs. Union of India (UOI) and Others, . (v) Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, (vi) Managing Director, APSRTC, Hyderabad and others v. M. Sankaraiah, 2000 (87) FLR 349 (SC) (vii) Mohinder Singh v. P.O. Labour Court and another, 1998 (78) FLR 453 (SC) and (viii) Gurpreet Singh Vs. State of Punjab .
The learned Counsel for the respondent mill, on the other hand, has submitted that the Labour Court has only granted ''continuity in service'' and not ''consequential benefits'' and therefore, the petitioner would not be entitled to the benefit of VRS. The learned Counsel has placed reliance upon the following judgments:
(i) A.P.S.R.T.C. and Another Vs. S. Narsagoud, . (ii) Navin J. Surti Vs. Modi Rubber Limited and Another, (iii) Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, . (iv) Maharashtra State Road Transport Corporation Vs. Smt. Ramabai Vijay Shende and Member, Industrial Court, and (v) Maharashtra State Road Transport Corporation, Nagpur Vs. Leeladhar and another, .
In my view, the construction of the expression ''continuity of service'' in the impugned order of the Labour Court and/or the entitlement of the petitioner in pursuance thereof is not something which this Court is required to go into in these proceedings, particularly considering the limited grievance of the petitioner. The remedy, if any, available to the petitioner would lie elsewhere, and I express no opinion in that regard. For the reasons mentioned above, the petition is dismissed with no order as to costs. Rule shall accordingly stand discharged. Unless already paid, the respondent mill shall pay the amount as directed by the Labour Court to the petitioner along with interest at the rate of 6 per cent per annum from the date of the order till payment within eight weeks from today.