Nava Bharat Press vs Ghanshyam

G.D. Patil, J.—The petitioner employer has challenged the order dated February 18, 1992 passed by the Third Labour Court, Nagpur partly allowing respondent-employee''s application u/s 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"), holding him entitled to claim Rs. 2,76,390.18 p. from the petitioner with 12% p.a. interest on the amount of Rs. 2,57,287.48 p. w.e.f. April 21, 1989 till payment of the amount.

The petitioner is a partnership firm having its place of business at Nagpur and it prints and publishes a daily newspaper "Nava-Bharat" from Nagpur. The respondent was one of the employees of the petitioner having been appointed on December 4, 1951 as Sub-Editor. In a dispute relating to categorisation of employees, however, it has been held that the respondent was a Chief Sub- Editor. The respondent, alongwith other working journalists employed with the petitioner, had raised an industrial dispute for not (sic) being given the category and wages of Chief Sub-Editor from the date of the respondent''s appointment as he was carrying out the duties of Chief Sub-Editor. The Industrial Tribunal, as per its Award dated January 3, 1977 had made an award that the respondent should be given a category and wages of Chief Sub- Editor from the date of his appointment. This award was challenged by the petitioner in Writ Petition No. 884 of 1977 before this Court. This writ petition was dismissed by this Court by its judgment dated April 21, 1989 with little modification in the order of the Industrial Tribunal, in that, the respondent''s claim for wages of Chief Sub-Editor from the date of his appointment as allowed by the Industrial Tribunal was held to be unjustified and it was held that the respondent was entitled to the wages of Chief Sub- Editor only from May 29, 1959. This judgment of the High Court undisputedly has become final and binding upon the parties.

While the respondent was working as Chief Sub-Editor, on November 1, 1971 a charge-sheet was served upon him alleging some misconduct on his part. Pending inquiry the respondent was suspended by order dated June 6, 1972. Industrial dispute was raised by the respondent relating to the validity of his suspension and the same came to the referred to the Third Labour Court, Nagpur for adjudication. The text of the dispute referred to was as follows:

"Nava Bharat should withdraw forthwith the illegal and arbitrary action of suspension against Shri Saxena and reinstate him with back wages from June 6, 1972".

This reference was registered as Reference No. 29/72, and was ultimately disposed of as infructuous on September 6, 1988 by the Third Labour Court as the dismissal was ordered in the meanwhile which was challenged in Reference No. 157 of 1985, and which came to be decided on March 8, 1988 by the Second Labour Court and further since the respondent had also in the meantime attained the superannuation in the year 1983.

It may be pointed out specifically here that during the pendency of this reference No. 29 of 1972 a domestic inquiry was conducted and the Enquiry Officer submitted his report on March 5, 1973 holding the charges as proved and the petitioner had agreed with the report and decided to dismiss the respondent. The respondent, being a protected workman, however, the petitioner could not take any action on the report of the Enquiry Officer without obtaining the permission u/s 33(3) of the Act from the Industrial Court. Therefore Application No. 102 of 1973 u/s 33(3) of the Act was made on April 17, 1973 before the Industrial Court, Nagpur seeking permission to dismiss the respondent. The Industrial Court rejected the permission by order dated February 28, 1976. The petitioner thereupon moved this Court in Special Civil Application No. 4728 of 1976 which was decided on November 24, 1983, remanding the matter with a direction to the Industrial Court for decision afresh. The Industrial Court on remand, after hearing both the sides, passed order on August 22, 1984 granting permission to the petitioner to dismiss the respondent. In the meantime the respondent had reached the age of superannuation of 60 years and stood retired on July 3, 1983. On receipt of the permission from the Industrial Court the petitioner passed order dated January 19, 1985 dismissing the respondent.

The respondent raised industrial dispute regarding his dismissal from service. This dispute was referred to the Labour Court for adjudication. The reference was in the following terms:

"Shri Ghanshyam Saxena who has been terminated from the employment of Nava Bharat, Hindi Dainik, should be reinstated with payment of back wages, continuity of service w.e.f. January 19, 1985".

The reference was registered as Reference No. 157/85 on the file of the Second Labour Court, Nagpur. In this reference ultimately the Award was passed on March ;8, 1988. It was held that the action of the petitioner in dismissing the respondent by order dated January 19, 1985 was illegal. The Second Labour Court in this award dated March 8, 1988 also observed that since the action taken by the petitioner was illegal, the respondent would be entitled under law to claim his wages for the entire period during which he was placed under suspension as also during which he was not paid the wages. The Second Labour Court, however, did not grant relief of reinstatement to the respondent explaining the difficulty for granting such a relief having regard to the jurisdiction conferred on it by the reference. The Labour Court further observed that for the relief of salary and other benefits the respondent will have to approach the proper forum.

The respondent then on June 13, 1988 filed application u/s 33-C(2) of the Act before the Third Labour Court at Nagpur claiming back wages, bonus, provident fund, gratuity and encashment of leave. The total claim put-forth was at Rs. 3,35,622.58 p. The petitioner opposed the claim on several counts by filing its written statement on November 30, 1988. The respondent had filed three annexures and summary alongwith his application, giving calculations about the claim made. The respondent also filed his affidavit on June 2, 1990. The petitioner cross-examined the respondent on this affidavit. The petitioner on its own, however, led no evidence excepting of filing of its calculations regarding the respondent''s claim, Ex, 25. The Third Labour Court then passed the award dated February 18, 1982, partly allowing the respondent''s application, holding him entitled to claim Rs. 2,76,390.18 from the petitioner. Since the petitioner had already deposited an amount of Rs. 19,102.70 p. in the Court for being paid to the respondent, the net amount payable after deduction of that amount was arrived at Rs. 2,57,287.48 p. The petitioner was directed to pay this amount forthwith to the respondent and was further directed to pay the interest at the rate of 12% P.A. on this amount of Rs. 2,57,287.48 with effect from April 21, 1989 till the date of payment of the amount. This award dated February 18, 1992 passed by the Third Labour Court, Nagpur is under challenge in the instant petition.

Mr. Bhangde, learned counsel appearing for the petitioner, firstly contended that in Reference No. 157 of 1985 the Second Labour Court had not decided the question relating to the entitlement of the respondent to the back wages and there was no existing right in favour of the respondent to enable him to move the Labour Court under the summary remedy provided by Section 33-C(2) of the Act and as such the learned Labour Court ought to have dismissed the respondent''s application on this short ground alone. The contrary conclusion arrived at by the Labour Court on this aspect, in the submission of Shri Bhangde, is not justified by the facts and circumstances obtaining in the instant matter and the law governing the same.

Mr. Bhangde next contended that the learned Labour Court also erred in holding that the respondent gets the existing right to claim back wages under the Standing Order 14(6) of the Industrial Employment (Standing Orders) Act, 1946. Mr. Bhangde then contended that the impugned Award passed by the Second Labour Court is also vitiated on the count that the learned Labour Court has not given a proper opportunity to the petitioner to file its calculations of the wages etc. payable to the respondent. In the submission of Shri Bhangde, the learned Labour Court also erred in holding that the dismissal orders related back to the date of suspension. In the submission of Shri Bhangde, the Labour Court also erred in granting to the respondent claims towards encashment of leave, provident fund and bonus. In the submission of Shri Bhangde, the Labour Court in any case has committed an error in accepting the calculations given by the respondent as it is without verifying its correctness, the Wage Committee''s Report and recommendations of the Second Wage Board for Working Journalists, Palekar Award and so also the notifications issued by the Government of India. In the submission of Shri Bhangde, according to the calculations which the petitioner has made, the respondent cannot be said to be entitled for the amount of more than Rs. 1,16,335.98 p. He pointed out that in fact after the impugned award the petitioner had sent a communication on April 7, 1992 to the respondent intimating him that the calculations of back wages for the concerned period have been made By the petitioner and they came to Rs. 1,16,335.98 and the respondent was requested to accept the correctness of the calculations. Then again reminder was sent to him on May 15, 1992. The petitioner, Mr. Bhangde submitted, has made these calculations according to the First Wage Committee''s report, recommendations of the Second Wage Board and Palekar Award. He submitted that had proper opportunity been given to the petitioner, the petitioner would have been able to assist the Court in arriving at a proper calculation. In the submission of Shri Bhangde, the Labour Court has failed in its duty in accepting the calculations as made by the respondent without verifying the correctness thereof, even assuming that the petitioner had an opportunity to give its calculations but failed in providing the same for one or the other reason. Shri Bhangde submitted that in the event of non-acceptance of his other submissions, the matter at least needs to be remanded for correctly calculating the amounts payable to the respondent in the interest of justice. Shri Bhangde also submitted that direction to pay interest is without jurisdiction and in any case rate of interest as granted and the date from which it is granted is also arbitrary.

Shri Thakur, learned counsel for the respondent, on the other hand challenged the correctness of the submission made by Shri Bhangde and submitted that in the facts and circumstances of the case and in the wake of the provisions of law governing the matter, the Award made by the Second Labour Court cannot be said to be vitiated on any count and the petition is, therefore, liable to be dismissed. Even as regards the acceptance of the calculations by the Second Labour Court. Shri Thakur submitted that the petitioner cannot be said to have been denied any opportunity as such to file the calculations and no grievance on this count, therefore, can be accepted. Mr. Thakur, however, submitted that in case the matter is to be remanded back for calculating the amount payable to the respondent, the amount already deposited by the petitioner, Rs. 1,18,000/- under the order of this Court dated September 24, 1992 may be immediately permitted to be withdrawn by the respondent since even according to the petitioner''s calculation as informed to the respondent by its communication dated April 7, 1992 the back wages payable to the respondent comes to Rs. 1,16,335.98 p.

The first contention of Shri Bhangde that the learned Labour Court was not correct in coming to the conclusion that the respondent was having an existing right to claim the monetary benefit, cannot be accepted. In para 30 of the Award dated March 8, 1988 in Reference No. 157 of 1985, as already indicated, the Labour Court had observed that since the action taken by the petitioner against the respondent was illegal, the respondent under law would be entitled to claim his wages for the entire period during which he was placed under suspension. After observing this in the operative portion of the Award the Second Labour Court again specifically held that so far as the claim for salary and other monetary benefits to which the respondent may be entitled till July 3, 1983, he will have to approach a proper forum. Some debate was raised since the word "may" has been used in this part of the order by raising a contention that the question whether the respondent is entitled or not has been left open and unless the entitlement is determined, the respondent cannot be said to be having an existing right to put forth his claim u/s 33-C(2) of the Act. This contention, however, has no force having regard to the earlier part of the Award, particularly para 30 thereof which clearly indicates that the Labour Court was of the view that since the action taken by the petitioner was illegal, the respondent was entitled to claim his wages for the entire period during which he was placed under suspension as also the period during which he was not paid the wages. But for the specific terms of the reference, it is apparent from the contents of para 30 of the Award, that the Labour Court itself would have ordered the payment of back wages to the respondent. It is not in dispute that this award dated March 8, 1988 has become final and binding between the parties. It was, however, sought to be urged by Shri Bhangde that the observations and/or finding recorded by the Labour Court in para 30 of the award have to be held as beyond the jurisdiction since the question about the wages or salary of the, respondent prior to the impugned action of dismissal on January 19, 1985 was not referred and, therefore, the respondent cannot take the benefit of any observation of finding recorded in para 30 by the Labour Court in its award dated March 8, 1988 for claiming the pre-existing right for approaching the Labour Court u/s 33-C(2) of the Act and it was necessary on the part of the respondent to raise an industrial dispute about the payment of back wages and other benefits payable to him before initiating the proceedings u/s 33-C(2) of the Act.

Mr. Thakur, learned counsel for the respondent, invited my attention to the pleadings and the stand taken by the petitioner in their written submissions filed before the Labour Court. In para 11 of the written statement (Pages 118-119), the petitioner had submitted as under:

"It is submitted that this question of claim of back wages was a matter which was to be adjudicated upon under the proceedings raised by the Applicant u/s 10 of the Industrial Disputes Act for which a Reference was made by the appropriate Government to the Second Labour Court, Nagpur, which was numbered as Reference No. 157 of 1985. It was decided by the learned Second Labour Court, Nagpur, and the learned Presiding Officer had specifically denied back wages to the applicant prior to January 19, 1985 because the said question was never a subject matter of Reference. Since the question of grant of back wages was decided by the learned Second Labour Court, Nagpur in the said Award, and the said Labour Court specifically denied the claim of back wages to the applicant in the said Award prior to January 19, 1985 and which date goes back to the date of making an application for permission, no right has been created in favour of the applicant for claim of any back wages as per the said award".

Pointing out this, Mr. Thakur contended that the petitioner cannot be permitted to blow hot and cold. Before the Third Labour Court, as can be gathered from the written statement the petitioner''s case was that the question of grant of wages was decided by the Labour Court and it had denied the claim of back wages to the respondent and as such no right has been created in favour of the respondent. Here in the petition, however, the petitioner says that in the Award dated March 8, 1988 the entitlement of the respondent for back wages for the period June 6, 1972 to July 2, 1983 was not decided by the Third Labour Court in Reference No. 157 of 1985. Leaving apart this aspect, Mr. Thakur rightly submitted that in the reference No. 157 of 1985 the Third Labour Court did in fact recognise the right of the respondent to get the back wages from the petitioner and it is only because of technical difficulty, instead of passing consequential appropriate orders in that regard, it left it open to be done by proper forum. Mr. Thakur further rightly submitted that the respondent had not approached the Labour Court u/s 33-C(2) of the Act, merely on the assumption of his dismissal being wrongful, but here is a case that the respondent''s dismissal was already held to be specifically illegal by the Award dated March 8, 1988 and the computation of wages in the circumstances was merely just consequential. Inviting my attention to a case reported in The Central Inland Water Transport Corporation Ltd. Vs. Their Workmen, it is contended that the Supreme Court has observed that the question as to whether the dismissal was unjustified would be the principal matter for adjudication, and computation of wages would be just consequential upon such adjudication. The Labour Court has dealt with in details on this aspect and has rightly come to the conclusion that the Award dated March 8, 1988 has to be held as recognising an existing right in favour of the respondent as regards the back wages and other benefits. The conclusion so arrived at cannot be held to be bad on any count. The contrary submissions made by Shri Bhangde, therefore cannot be accepted.

The next contention raised by Shri Bhangde that the learned Labour Court committed an error in holding that the respondent gets right to claim back wages under the Standing Order 14(6) of the Industrial Employment (Standing Orders) Act, 1946, also similarly cannot be accepted. It is not in dispute that the petitioner is a newspaper establishment where the respondent was working as journalist and that the model Standing Orders framed for working journalists under the provisions of the Industrial Employment (Standing Orders) Act, 1946 are applicable. The Standing Order 14 (6), provides that if on enquiry the charges against the working journalist are not proved to be correct he shall be deemed to have been on duty during the period of suspension and shall be entitled to the wages which he could have received had he not been suspended. As already indicated, by the Award dated March 8, 1988, the II Labour Court, Nagpur has held that the findings of the Enquiry Officer in relation to the respondent were shockingly disproportionate and the dismissal of the respondent was illegal. In such a situation provisions of Standing Order 14 (6) are squarely applicable creating existing rights in favour of the respondent to claim wages and other benefits for the period of suspension as if he was not suspended. Similarly, having regard to the applicability of the model standing orders to the working journalist like the respondent as observed above, it is difficult to accept the contention raised by Shri Bhangde that the Labour Court erred in holding that the dismissal order related back to the date of suspension. If the dismissal order ultimately is found to be illegal the suspension of the respondent is wiped out automatically and the respondent becomes entitled to claim relief from the date of suspension. What is then vehemently urged by Shri Bhangde is that the II Labour Court had not given proper opportunity to the petitioner to tile its calculation of wages etc. payable to the respondent. In any case, Shri Bhangde pointed out, that the Labour Court has committed an error in accepting the calculations given by the respondent as it is without verifying its correctness. Inviting my attention to some of the errors in the calculations made by the Labour Court Shri Bhangde submitted that an opportunity of being heard by the Labour Court on this count is required to be granted, in the interest of justice. This contention of Shri Bhangde was opposed by Shri Thakur learned counsel for the respondent by contending that the Labour Court cannot be blamed for lapse on the part of the petitioner for non-filing of the calculations by the petitioner, inasmuch as it was apparent from the record that several opportunities had been given by the Labour Court to the petitioner in this regard. The submission of Shri Thakur that, it was the petitioner who failed to file calculations and thereby compelled the Court to proceed in the matter on the basis of the calculations which were on the record. On hearing both the counsel on this aspect of the matter and particularly having regard to the flaw pointed out in the calculations as made, it, however, appears that it would be in the fitness of things even without going into the aspect as to whether the petitioner itself had to be blamed in this regard or not, to give an opportunity to the petitioner to put forth the calculations as regards the wages etc., before the Labour Court and direct tine Labour Court to decide the quantum of the amount ultimately payable to the respondent after giving an opportunity of being heard to both the sides instead of doing the calculations here itself. It is in this view of the matter, it is not necessary to dwell upon the aspect as to whether the respondent is entitled to the claim towards the encashment of leave, provident fund etc. This aspect can be agitated by the petitioner before the Labour Court itself at the time of hearing the petitioner and the respondent on the aspect of calculations of back wages. The Labour Court in the circumstances will have to decide afresh the respondent''s entitlement towards the encashment of leave, provident fund etc. on hearing both the sides. The petition consequently has to be allowed partly.

What remains to be dealt with is the aspect regarding interest. Writ Petition No. 2636 of 1992 has been filed by the respondent only for the limited relief of quashing and modifying the rate of interest of 12% as awarded by the Labour Court on the amount which was found payable to the respondent by the petitioner. The petitioner claims that the directive to pay the interest is without jurisdiction and that at any rate, the rate of interest as granted and the date from which it is granted is arbitrary. The respondent on the other hand in his petition claims that interest ought to have been awarded at the rate of 18% per annum and not 12% and it should have been made payable with retrospective effect instead of from January 24, 1989. It is difficult to accept the contention that direction to pay the interest is without jurisdiction. When any amount is unlawfully withheld the party entitled to such amount gets a right to claim interest thereon. In so far as rate and date of payment of interest is concerned the trial Court has considered both these aspects in paragraphs 29 and 30 of its Award. On hearing the learned counsel for both the sides on this aspect of the matter I do not find any reason to take a view different than the one taken by the Labour Court in this regard. Writ Petition No. 2636 of 1992 in the circumstances has to be dismissed and it is accordingly so dismissed with no order as to costs. Writ Petition No. 2100 of 1996 as already indicated is hereby partly allowed and the impugned judgment and order is quashed and set aside to the extent as indicated hereinabove only and the matter is remitted back to the Labour Court, Nagpur, to calculate afresh the exact amount payable to the respondent by the petitioner after giving an opportunity to both the sides to put forth their say in this regard as indicated hereinabove.

Under the interim order of this Court dated September 24, 1992 passed in Writ Petition No. 2100 of 1992 the petitioner had deposited a sum of Rs. 1,18,000/- in the First Labour Court, Nagpur. Shri Thakur learned counsel for the respondent submitted that if the respondent''s claim for back wages is ultimately accepted by this Court, since even according to the petitioner the respondent is entitled at least to the amount of Rs. 1,16,335.98 as indicated by the petitioner himself in its communication dated April 7, April 1992 and if the matter is remanded only for recalculation of the amount payable to the respondent which in the circumstances cannot be less than the amount of Rs. 1,18,000/- which has been deposited by the petitioner with the Labour Court, the respondent be permitted to withdraw the said amount without any conditions as regards furnishing of the security etc. The request as made by Shri Thakur learned counsel for the respondent in the facts and circumstances of the case is accepted and the Labour Court is directed to deliver the amount of Rs. 1,18,000/- which the petitioner has deposited with it on October 21, 1992 pursuant to the order of this Court dated September 24, 1992 in Writ Petition No. 2100 of 1992 immediately on demand by the respondent. This amount of Rs. 1,18,000/- shall be treated as having been paid to the respondent as on today and accordingly would be taken into consideration while arriving at the net payable amount to the respondent ultimately. In Writ Petition No. 2100 of 1992 rule is made absolute in the above terms with no order as to costs.