H.K. Bellan vs State of Tamil Nadu and Another

Nainar Sundaram, J.—The matter comes up after notice of motion There is representation for both the respondents. The first respondent is

being represented by the Special Government Pleader and the second respondent by Mr. Balasubramanian. This Writ appeal is directed against

the order of the learned single Judge in W.P. No.7132 of 1982. The appellant herein was the petitioner in the writ petitioner and the respondents

herein were the respondents in the writ petition. Convenience suggests to us to refer to the parties as per their array in the writ petition. The

petitioner was employed as a Clerk with/the second respondent. His services were terminated on 7.12.1973 on the ground that the petitioner

lacked the qualifications for the post in which he was employed. The petitioner was agitating over his termination from services departmentally. On

6,2.1976 the second respondent reinstated the petitioner. The body of the said order reads as follows:

Thiru H.K. Bellan, Ex-Clerk, Nilgiris Co-operative Marketing Society Ltd. is reinstated to service and posted as Clerk to work in the Gudalur

Branch of the Society with effect from the date of joining duty vice Thiru H.B. Mari, Clerk Transferred to Head Office. Thiru H.K. Bellan is

directed to report for duty at Gudalur Branch on or before 16.2.1976. If he fails to join duty on or before 16.2.1976 it will be construed that he is

not willing to join in the services of the Society and any further request for reinstatement will not be considered.

Though reinstated, the petitioner was not accorded the service benefits, during the period when he was kept out of employment between

7.12.1973 and 11.2.1976 when actually he was reinstated. The petitioner was demanding settlement of the said service benefits. On 4.3.1977 the

second respondent wrote to the petitioner as follows:

Thiru H.K. Bellan Clerks is informed that the period from the date of termination till his reinstatement (From 7.12.1973 to 11.2.1976) is treated as

leave on loss of pay as he was not on duty during the above period.

The petitioner in his wisdom filed a petition u/s 33C (2) of the Industrial Disputes Act, 1947, hereinafter referred to as the Act, claiming the

following amounts:

(i) Salary for the period from 7.12.1973 to 10.2.1976;

(ii) Bonus for the years 1973 to 1976

(iii) Special Pay 20%

(iv) Incremental arrears;

The Labour Court, Coimbatore passed orders on 1.7.1980 in the computation petiton No.28 of 1980 dismissing it, and a perusal of the order

passed by the Labour Court gives no room for ambiguity in our mind that the reason which weighed with the Labour Court in dismissing the

computation petition was the lack of adjudication in a properly raised industrial dispute that the non-employment during the period in question,

namely 7.12.1973 and 10.2.1976 was illegal. The relevant portion of the order of the Labour Court which shows what exactly ultimately weighed

with it needs extraction as follows:

The petitioner''s remedy is only to agitate the question relating to the period of his non-employment and obtain a finding in a properly raised

industrial dispute that the termination was illegal. In a computation petition, the said question cannot be determined.

The petitioner, thereafter raised an industrial dispute on 28.10.1980. In the format adopted by him with regard to the cause of dispute, this is

what the petitioner stated:

Thiru H.K. Bellan was working under the above Management as a Clerk since 28.6.1966. On 7.12.1973 his services were terminated by the

Management alleging that he did not have the required qualification. Aggrieved by this, he raised an industrial dispute before the Labour Officer. As

no settlement could be arrived at, the Labour Officer has sent his report to the Government On 30.6.1975 u/s 12(4) of the I.D. Act, XIV 1947.

While the matter was under consideration, the Government by their order dated 6.2.1976 revoked the dismissal order and reinstated him into

service unconditionally. As such he is eligible for all the benefits including promotion, fitment, salary, bonus and all other monetary or otherwise

benefits for his period of non-employment. As all his efforts to get the legitimate rights failed, he filed a claim petition before the Labour Court,

Coimbatore, claiming these above benefits connected with the monetary matters. This case was entertained by the Labour Court, Coimbatore, in

C.P. Case No. 28 of 1980 and order was passed by the Labour Court on 1.7.1980 dismissing the claim staling that ""The petitioner''s remedy is

only to agitate the question relating to the period of his non-employment and obtaining a finding in a properly raised industrial dispute that the

termination was illegal. Hence, this industrial dispute.

With regard to the demand made by the petitioner, they were enumerated as due prom6tion, fitment back salary and other benefits. The

petitioner was asking for the service benefits, which would be otherwise due to him, but for his non-employment during the period in question.

There could not be two say on this aspect. The first respondent, after the conciliation of the dispute raised by the petitioner failed, passed the order

impugned in the writ petition on 26.4.1982. The body of the impugned order runs as follows:

The Government have examined the conciliation report of the Labour Officer, Coonoor first read above in regard to an industrial dispute raised by

the workmen against the Management of the Nilgiris Co-operative Marketing Society Limited, Uthagamandalam, over the issue of promotion,

backwages etc., to Thiru H.K. Bellan and they pass the following Order:

It is seen that this is an old case which has already been settled and the settlement has been accepted by the workman. It is also seen that the

workman had neither raised the above issues nor expressed any reservations thereon at the time of reinstatement in 1976. Moreover, the

Management in their letter dated 4.3.1977 have specifically informed him that the period from the date of termination till his reinstatement

(7.12.1973 to 11.2.1976) shall be treated as leave on loss of pay. After a lapse of four years the worker has raised the above issue, which is not

acceptable.

Hence the Government consider that there is no case to refer the issue in dispute for adjudication.

The learned single Judge, who dealt with the writ petition, countenanced the stand expressed by the second respondent that the Labour Court

has given a finding that the petitioner is not entitled to back wages and other reliefs claimed in the application filed u/s 33C(2) of the Act, and the

very same question cannot be re-adjudicated by seeking a reference u/s 10 of the Act. In this view, the learned single Judge dismissed the writ

petition and this appeal is directed against the order of the learned single Judge.

Mr. V. Selvaraj, learned Counsel for the petitioner, would first submit that the, learned single Judge was not in order in opining that the Labour

Court in the computation petition rendered any categoric finding with reference to the non-employment of the petitioner during the period, namely

7.12.1973 and 11.2.1976, and the learned Counsel for the petitioner would say that the Labour Court in the computation petition has specifically

relegated the petitioner to agitate the question of the propriety of his non-employment during the relevant period by raising an industrial dispute, and

hence any observation in the order of the Labour Court cannot be taken to have decided the question, and it is in order for the petitioner to resort

to the process of raising the industrial dispute. As against this, Mr. N. Balasubramanian, learned Counsel appearing for the second respondent,

would submit that the Labour Court in the computation petition did render a finding that the assertion of the petitioner that his termination was

unlawful and unjustifiable was without any basis and that must conclude the issue and it is not open to the petitioner to resort to the process of

raising an industrial dispute over the same issue. The well-accepted proposition is the Labour Court in a computation petition has got only the role

of an Execution Court. A cogent and a proper reading of the reasonings expressed by the Labour Court in its order in the computation petition

does not give us any impression that the Labour Court rendered any positive finding on the question of the propriety of the non-employment of the

petitioner during the relevant period. As per the extract from its order made above, we find that the petitioner was put on notice of his remedy to

agitate the question relating to the period of his non-employment and obtaining a finding in a properly raised dispute that the termination was illegal.

Ultimately this reasoning alone weighed with the Labour Court in dismissing the computation petition. The Labour Court was certainly conscious of

its limitation with reference to giving an adjudication over the propriety of the non employment of the petitioner during the relevant period. Any

other observation of the Labour Court in its order in the computation petition could not be construed to have adjudicated that question. Even if it

has adjudicated, in our view, that would be beyond the pale of its jurisdiction and that cannot stand in the way of the petitioner properly raising an

industrial dispute over the issue as he did. Hence we cannot Subscribe our support to the view of the learned single Judge that there is a binding

finding of the Labour Court on the question of the propriety of the non-employment of the petitioner during the relevant period. As already noted,

even if there is such a finding, that finding cannot have any sanctity in the eye of law so as to bar the petitioner from seeking the legitimate process

of raising an industrial dispute.

Secondly, learned Counsel for the petitioner would submit that there was no settlement at all, which has been accepted by the petitioner, as

stated in the impugned order. Mr. N. Balasubramanian, learned Counsel for the second respondent, was at pains to say that reinstatement was

only the result of the settlement. This statement remains unsubstantiated and we have not been made wiser of any proceeding reflecting such a

settlement. Even the order of reinstatement dated 6.2.1976 as per the extract made already does not refer to and reflect this position. Hence, as

rightly contended by the learned Counsel for the petitioner, the statement in the impugned order that the matter has been settled and the settlement

has been accepted by the petitioner is totally untenable and irrelevant.

Thirdly, learned Counsel for the petitioner would submit that the view expressed in the impugned order that the petitioner has raised an issue

after lapse of four years is not sustainable because within a short time after the Labour Court passed orders on 1.7.1980 the petitioner has raised

an industrial dispute in October, 1980. This submission has also got to be sustained because the facts support the same. The stand expressed in the

impugned order that on account of delay, the dispute cannot be entertained has got to be eschewed. We find that the learned single Judge has not

approached the question from the angles from which we have assessed the same and hence we are not able to fall in line with the reasoning of the

learned single Judge when he dismissed the writ petition. For the above reasons, we are inclined to interfere in writ/appeal. Accordingly, this writ

appeal is allowed; the order of the learned single Judge in W.P. No. 7132 of 1982 is set aside and that writ petition is allowed, quashing the order

impugned therein. Here is a case where we find that absolutely irrelevant and unsustainable reasons have been expressed by the first respondent

for declining to make a reference. The dispute relates to the period between 1973 and 1976. In the special circumstances of the case, we are

convinced that we should direct the first respondent to refer the dispute to the adjudicator forum for adjudication instead of directing the first

respondent to reconsider the question of making a reference. Ultimately the adjudicatory forum shall certainly decide the dispute on merits.

Accordingly, we further direct the first respondent to refer the dispute to the appropriate adjudicatory forum within a period of three months from

the date of receipt of a copy of this judgment. We make no order as to costs.