Punjab State Water Resources Management and Development Corporation Ltd. vs Presiding Officer and Others

Tejinder Singh Dhindsa, J.—The Punjab State Water Resources Management and Development Corporation has filed the instant petition impugning the order dated 28.12.2011, passed by the Industrial Tribunal, Bathinda at Annexure P-3, whereby an application filed by respondents No. 2 to 4 under Section 33-C(2) of the Industrial Disputes Act, 1947 (herein after to be referred as the Act) has been allowed and they have been held entitled for back wages for the period i.e. date of termination of their services till their having joined back in service in pursuance to an order dated 7.10.1997, passed by a Division Bench of this Court. Brief facts that may be noticed are that the private respondents were engaged as Work Mistri, Mate and Chowkidar respectively in the Abohar Division of the petitioner-Corporation. Consequent to the reduction of the work of such division, the same was disbanded w.e.f. 31.3.1987 and the services of the junior workers including the private respondents were retrenched. Respondents No. 2 to 4 filed CWP No. 3047 of 1987 in this Court impugning their retrenchment from service and the same was dismissed by the learned Single Judge vide judgment dated 23.1.1989. Private respondents preferred L.P.A. which was decided on 7.10.1997 and the operative part of which reads as under:-

"In the result, the appeal is allowed. The order dated 23.1.1989 passed by the learned Single Judge is set aside. As a logical corollary the writ petition filed by the appellants is allowed. The termination of services of the petitioners vide order dated 15.5.1987 are declared illegal. The respondents are directed to reinstate the petitioners in service. However, for back-wages we relegate the petitioners to the remedy available to them under section 33(C)(2) of the Industrial Disputes Act, 1947. In view of the decision of the Supreme Court the Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, ."

The private respondents, thereafter, preferred application under Section 33-C(2) of the Act and the same has been allowed in terms of passing the impugned order dated 28.12.2011.

Learned counsel for the parties have been heard at length.

Undisputedly, as per decision dated 7.10.1997, passed by the L.P.A. Bench the termination of services of the private respondents was declared illegal and directions were issued to reinstate them. In so far as back wages, private respondents were relegated to the remedy available to them under Section 33-C(2) of the Act in the light of decision of the Hon''ble Supreme Court in case of Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, .

The Corporation had filed a reply to the application preferred by the private respondents under Section 33-C(2) of the Act taking a specific stand that the High Court had only ordered reinstatement in service but had not granted such relief with continuity of service. A further stand had been taken that the applicants (private respondents herein) do not have any pre-existing right to the claimed amount of back wages and as such, the application under Section 33-C(2) of the Act itself was not maintainable.

Perusal of the impugned award would reveal that the following issues were framed by the Tribunal:-

" 1. Whether the applicants are entitled to recover any amount as claimed? (OPR)

Whether application is not maintainable? (OPR).

Relief."

Application under Section 33-C(2) of the Act has been allowed by the Tribunal vide impugned order in terms of the following discussion:-

"15. Adverting to the facts of the case in hand, termination of the services of the applicants has already been set aside and in view of the law laid down by the full bench of our own Hon''ble High Court as well as in other authorities referred to above, applicants are entitled to the wages during the period, they remained out of job due to termination of their services illegally and unlawfully. Accordingly, Issue No. 1 is decided in favour of the applicants except applicant No. 4 Charanjit Singh and Issue No. 2 is decided against the respondents."

In the case of U.P. State Warehousing Corporation (supra) and in the light of which the private respondents had been relegated to the remedy under Section 33-C(2) of the Act, it has been observed as under:-

"Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the Tribunal. If, after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment. For these two fold reasons, we are of opinion that the High Court was in error in directing payment to the employee with full back wages."

The Tribunal while allowing the application of the private respondents has not even touched upon the factual aspect with regard to the applicants having been gainfully employed during the period in question. Clearly, full back wages could not have been granted to the private respondents without examining the factual issue as to whether they had been gainfully employed elsewhere after the retrenchment of their services in the year 1987. Impugned order dated 28.12.2011 would reveal that even the requisite issue in this regard was not framed. The impugned order, as such, cannot sustain.

Even otherwise, the relegation of the private respondents to the remedy available to them under Section 33-C(2) of the Act by the L.P.A. Bench cannot be construed and read in a manner so as to enlarge the scope of the provision itself. The Corporation in its reply to the application preferred by the private respondents under Section 33-C(2) of the Act had taken a preliminary objection that such application was not maintainable as they had no preexisting right to the claimed amount. Even such objection has not been dealt with by the Tribunal while passing the impugned award 28.12.2011.

For the reasons recorded above, the instant petition is allowed. Order dated 28.12.2011 (Annexure P-3) passed by the Industrial Tribunal, Bathinda is set aside. Matter is remanded back to the Industrial Tribunal, Bathinda for a decision afresh on Application No. 325 of 2001 that the private respondents had instituted under Section 33-C(2) of the Act. Such exercise of reconsideration be completed within a period of six months from the date of communication of this order and after framing of relevant issues and giving opportunity of hearing to both the sides. The issue with regard to maintainability of the Application under Section 33-C(2) of the Act is also left open. Parties to appear before the Presiding Officer, Industrial Tribunal, Bathinda on the date so fixed by the Presiding Officer.

Petition is allowed in the aforesaid terms.