State of Maharashtra vs P.V. Dunang and Others

B.N. Srikrishna, J.—This writ petition challenges the Award of the Second Labour Court, Kolhapur, dated 31st January, 1983, made in I.D. Act Application No. 394 of 1981, holding that the second respondent is entitled to claim from the Government of Maharashtra a sum of Rs. 95,882/-. The proceeding''s before the Labour Court were taken out u/s 33(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act").

The circumstances under which the present petition arises are, to say the least, very distressing. The second respondent was in the service of the petitioner in the Public Health Department. On the coming into force of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Maharashtra Act No. V of 1962), the services of the second respondent were allotted, u/s 242 of the Said Act, to the Zilla Parishad of Sangli District. On account of some rivalry between the District Health Officer of the Zilla Parishad and the second respondent''s husband, who was a Medical Practitioner, the second respondent was sought to be victimised on some trumped-up charges. She was suspended from service by an Order dated 29th January, 1964, which was, in fact, served on her on September 8, 1964. Thereafter, the second respondent was repatriated to her parent department and asked to report for duty at Village Adool in Aurangabad District, at a distance of about 400 to 500 miles from Khanapur, where the second respondent''s husband had been stationed, without being offered any transport or travelling allowance. By an order dated 18th January, 1968, the second respondent was dismissed from service with retrospective effect from May 17, 1967. The second respondent filed a suit in the Court of Civil Judge, Senior Division, Sangli, against the State of Maharashtra, Zilla Parishad and the Director of Public Health, Pune. This suit was a purely declaratory suit, in which the second respondent prayed for a declaration that the enquiry proceedings and the consequent order of dismissal against her be declared to be ultra vires, illegal, void and not binding upon her and that she be declared to be in service from the date of her suspension until her retirement. There was a further declaration sought in the suit under prayer (b) in the following terms:

"It may further be declared that the plaintiff (present second respondent) is entitled to recover from the defendants all the arrears of pay, promotions, allowances etc. for which the plaintiff will pay the necessary Court-fees, if required."

The Trial Court dismissed the appellant''s suit against the second defendant, the Director of Public Health, Pune, but decreed the suit in its entirety as against the petitioners. It, inter alia, declared that the second respondent was entitled to recover from the petitioners all arrears of pay, promotions, allowances etc. to which she was entitled.

Friday, 1st November, 1991

Unfortunately for the second respondent the plaint in the suit did not contain a prayer for a money decree in respect of arrears of pay etc. Despite the learned Judge of the appellate Court drawing the attention of the second respondent''s advocate to this fact, the second respondent''s advocate did nothing to amend the plaint and persisted in arguing the matter as it stood, insisting that, though he had not prayed for it, he was entitled to a money decree.

An appeal was filed, against the decree of the Trial Court, in the District Court, Sangli, by the Chief Executive Officer of the Zilla Parishad. To this appeal the second respondent and the State of Maharashtra were made respondents. No appeal was filed by the State of Maharashtra. The appeal finally was allowed by the lower appellate Court which modified, the decree by substituting the following decree:-

"The plaintiff (present second respondent) is entitled to recover from defendant No. 3, Zilla Parishad, arrears of pay and D.A. amounting to Rs. 880.32p. The arrears of pay, D.A. and allowances against the State Government for the period from June, 1967, stands dismissed."

The second respondent filed a second appeal before this Court, being Second Appeal No. 1278 of 1973, challenging the judgment and decree of the lower appellate Court. This Court (Per Madon, J.), by an Order dated February 12, 1990, partly allowed the second appeal of the second respondent and modified the decree passed by the lower appellate Court by substituting for that part of it, which stated, "The claim for arrears of pay, D.A. and allowances as against the State Government for the period from June, 1967, stands dismissed", a declaration against the first respondent in the following terms:-

"It is also declared that the plaintiff is entitled to recover from the First Defendant all the arrears of pay, promotions, allowances etc. which she is entitled to."

It is to be noted that the first defendant in the suit of the present second respondent before the Civil Judge, Senior Division, Sangli, was the State of Maharashtra.

After the judgment of this Court in the second appeal, the second respondent made several approaches to the State of Maharashtra for payment of her dues in accordance with the declaration granted by this Court. Her efforts did not succeed. Finally, she filled an application, being I.D.A. Application No. 394 of 1981, u/s 33-C(2) of the Act before the Second Labour Court at Kolhapur. The second respondent made out a case therein that, as a consequence of the decree granted by the Civil Judge, Sangli, as finally modified by this Court in her second appeal, it had been declared that she was entitled to recover from the State of Maharashtra all arrears of pay, promotions, allowances etc. which she was entitled to get under the declaration granted by the Trial Court.

The State of Maharashtra contested the application on several grounds. It submitted that the application was not maintainable before the Labour Court, inasmuch as the second respondent, having initially chosen recourse to the remedy by way of a Civil Court, could not, after the decision of this Court in the second appeal, execute the order of the Civil Court by an application under the provisions of the Industrial Disputes Act. It was contended that the Civil Court''s order could have been executed only by filing another suit and obtaining a money decree against the Government of Maharashtra. The argument was that the decree passed by the Trial Court, as finally modified and confirmed by this Court, could not be computed in terms of money, and that this could only be done by recourse to the procedure prescribed under the Code of Civil Procedure. The Labour Court heard the matter, and, by a long and well-considered order, overruled all the contentions raised by the State of Maharashtra. It held that the jurisdiction u/s 33-C(2) of the Act was wide enough to compute a claim for money due to a workman, whether under a statute, settlement, award or even under a declaratory decree of the Civil Court detailed calculations of what would be due to her by way of arrears of pay, promotions, allowances etc, under the decree of the Civil Court, as ultimately confirmed by this Court in second appeal. The calculations were not disputed by the State of Maharashtra, nor was any evidence led to show anything to the contrary. The learned Judge of the Labour Court, therefore, accepted the computations, and quantified the claim of the second respondent in the application and held, by his Order dated 31st January, 1983, that the second respondent was entitled to recover a sum of Rs. 95,882/- from the State of Maharashtra. The State of Maharashtra is in this Court by way of the present petition to impugn the said order.

Mr. Devnani, learned counsel for the petitioner, contended that the present petition was required to be transferred to the State Administrative Tribunal, constituted u/s 15 of the Administrative Tribunals Act, 1985, as amended by Act No. 19 of 1986, with effect from 22nd January, 1986. It was urged that, with effect from 9th July, 1991, the State of Maharashtra had constituted a State Administrative Tribunal, and, therefore, by virtue of Section 29 of the said Act, all pending cases pertaining to service matters, as defined in Section 2(q) of the Act, had to be transferred to the State Administrative Tribunal constituted under the said Act. I have had occasion to deal with this contention in a recent judgment delivered by me in the cases of State of Maharashtra v. M. V. Ghalge and Anr. (Writ Petition No. 4867 of 1984) and State of Maharashtra v. B.S. Jadhav and Anr. (Writ Petition No. 5030 of 1984) decided on 18th October, 1991, where the same arguments were advanced by the same counsel. I have, by the said judgment, rejected the contention and held that, even after the constitution of the said Tribunal, this Court would continue to exercise jurisdiction under Article 226-227 of the Constitution in respect of orders which had been passed by Labour Court under the Industrial Disputes Act, to do which they had full jurisdiction by virtue of the exclusion clause in Section 28-B. For the same reasons as detailed in the said judgment, I reject the contention of Mr. Devnani and I hold that this petition is not required to be transferred to the Administrative Tribunal and that this Court can entertain the present writ petition.

Mr. Devnani next contended that the application filed before the Labour Court was bad in law and not maintainable u/s 33-C(2) of the Act. He urged that, after having obtained a declaratory decree from the Civil Court, as confirmed by this Court in second appeal, it was not open to the second respondent to resort to the remedy u/s 33-C(2) of the Act for recovery of the amounts, if any, due to her under the declaratory decree. He placed reliance on Order 21, Rule \\ of the Code of Civil Procedure, and contended that a decree could only be satisfied in one of the three modes recognized thereunder. According to him, if the second respondent is permitted to obtain the same relief by way of an application u/s 33-C(2) of the Act, it would be contrary to the provisions of Order 21, Rule 1, of the Code of Civil Procedure. He also placed reliance on Section 47 of the Code of Civil Procedure, and urged that all questions arising between the parties to suit, in which the decree was passed, and relating to the execution, discharge or satisfaction of the decree, shall be determined only by the Court executing the decree and not by a separate suit. In his submission, what is true of a separate suit is equally true of any other proceeding such as the one u/s 33-C(2) of the Act. The application is, therefore, barred by virtue of Section 47 of the Code of Civil Procedure, according to the learned counsel.

In my view, this contention also is devoid of merit. In the first place, an application before a Labour Court is neither a suit, nor proceeding in execution, within the meaning of the Code of Civil Procedure. Secondly, the provisions of Section 11(3) of the Industrial Disputes Act make the provisions of the CPC applicable selectively, only with regard to certain matters specified therein. Execution proceeding is not one of the matters specified therein. It is, therefore, clear that the Code of Civil Procedure, in its entirety, would not apply to proceedings before the Labour Court u/s 33-C(2) of the Act. The argument based on Order 21, Rule 1, of the CPC is also not sound. There is no money decree which is required to be satisfied as contemplated by Order 21, Rule 1. It is not as if there is a money decree and the petitioner has deposited, paid out of Court or is seeking to satisfy me same in such other mode as the Court, which made the decree or order, directs. This is a case where there was only a declaratory suit, wherein a declaration has been granted that the order of dismissal of the second respondent was void, inoperative and not binding upon the second respondent, together with the further declaration that she was entitled to all arrears of pay, emoluments, allowances, promotions etc. consequent thereupon. In my judgment, the argument is misconceived. Neither the provisions of Section 47 of the Code of Civil Procedure, nor those of Order 21, Rule 1, would bar the proceedings u/s 33-C(2) of the Act.

It cannot be forgotten that the Industrial Disputes Act is a special legislation intended for the benefit of the weaker section of society comprising workmen, who require special protection. To enable them to get relief expeditiously, the Industrial Disputes Act creates parallel fora for adjudication of the rights of workmen. The fora created are the Industrial Tribunals and Labour Courts. The Industrial Disputes Act cuts free of the shackles of rigid rules of procedure prescribed under the CPC and enables the special fora to prescribe their own procedure, subject to the Act and the rules made thereunder. It is also for the same reason that a summary remedy, by way of an application u/s 33-C(2), has been provided to enable a workman entitled to money or monetary benefits computable in terms of money to claim them by way of a simple application to the special forum, viz., the labour Court. The special fora created under the Industrial Disputes Act have also been freed from compliance with strict rules of evidence, court-fees and other technical procedure. In the face of these detailed provisions made by a special statute, viz., the Act, it would be futile to contend that the Labour Courts would also be governed by the CPC in its entirety or that the technical rules of procedure contained in the said Code would apply to them.

Whenever a workman, within the meaning of Section 2(s) of the Act, is entitled to money from his employer under a vested right, the restrictive fact being a statute, award, settlement or even custom, then it is open to the employee to take recourse to the special forum created u/s 33-C(2) of the Act. The rules applicable to the trial of cases before such special forum would be the rules which govern the Constitution, practice and procedure before the forum. See, in this connection, the judgment of the Supreme Court in Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, and the judgment of the Supreme Court in Premier Automobiles Ltd. v. Kamalaker Shantaram Wadke 1975 (2) LLJ 445.

Though Mr. Devnani very vehemently argued his contention, he was unable to support it either in principle or on precedent. If precedent be needed, there is one of the Mysore High Court, to the contrary, in Town Municipal Council Vs. Mirzabhai (A.R.) and Another, . Here the workman had filed a suit-in the Civil Court praying for a declaration that the dismissal order passed against him be declared to be null and void ab initio. Such a decree was granted in the second appeal before the High Court arising out of that suit. By the decree, it was declared that the order of dismissal passed against the workman was null and void. Thereafter, the workman made an application u/s 33-C(2) of the Industrial Disputes Act before the Labour Court, and claimed arrears of salary. The Labour Court allowed the application and directed by its order the Municipal Council to pay the arrears of salary. The Municipal Council challenged the order of the Labour Court by a writ petition before the High Court of Judicature, Mysore. The contention raised before the High Court, inter alia, was that the claim was barred under Order II, Rule 2, of the Code of Civil Procedure, as the workman had omitted to sue in respect of said salary. The Division Bench of the High Court rejected the contention, and held that the ban under Order II, Rule 2, of the CPC applied only to a subsequent suit and not to an application u/s 33-C(2) of the Industrial Disputes Act. The High Court pointed out that, if there had been no declaration granted by the Civil Court that the order of dismissal was null and void, the matter, probably, would have to be decided on a substantive proceeding before the Industrial Tribunal. Since the order of dismissal had been declared to be null and void, the salary payable to the workman could become a matter within the scope of Section 33-C(2). The High Court observed that, when the dismissal order was declared null and void by the Civil Court, the contract of employment between the petitioner and the respondent-workman must be deemed to be subsisting all along. If he had not rendered service in the interregnum, it was because he was not permitted to do any work, and that the workman was, therefore, entitled to salary, allowances and other emoluments claimed by him. The ratio of this judgment squarely applies to the present case. The contention of Mr. Devnani as to the tenability of the second respondent''s application u/s 33-C(2) is devoid of merit, and is, therefore, rejected.

Mr. Devnani then attempted to argue that the decree had actually been satisfied, inasmuch as the respondent-workman had been reinstated after the order of the Trial Court, and that she had suppressed the material facts that she had actually joined duty as per the orders of the Trial Court and there was a fraud played upon the Court. In my view, these are irrelevant considerations. The only important issue is, what are the rights of the second respondent workman consequent to the declaration granted by this Court in the second appeal? What happened prior thereto, is neither here nor there. In any event, all these contentions ought to have been raised by the petitioner during the trial of the application before the Labour Court. The petitioner ought to have led evidence on all these aspects before the Labour Court and satisfied the Labour Court to show how its liability could be mitigated as contended. No attempt whatsoever seems to have been made, apart from raising hyperfine technical arguments as to tenability of the application. I am, therefore, unable to accede to this submission.

Mr. Devnani then urged that the application of the second respondent before the Labour Court was barred by res judicata. He places reliance upon the judgment of the Division Bench of this court in Govind Sadashiv Pathak Vs. Sadashiv Shivrao Nisal, . This was a case where an ex parte decree was set aside and a fresh decree was passed. An application was made for execution of the side ex parte decree. The judgment-debtor did not raise any objection that the said execution was not in accordance with law. The execution application was dismissed. A subsequent application for execution of the new decree was made. It was held by the Division Bench that the judgment-debtor was not debarred from raising the plea of limitation. I fail to see anything in this judgment which is of relevance to the discussion in the present case. As I have pointed out earlier, and I repeat, the proceedings resorted to by the second respondent were u/s 33-C(2) of the Industrial Disputes Act, which could not be considered to be a ''subsequent stage'', within the contemplation of Section 47 of the Code of Civil Procedure. The judgment of the Division Bench cited has no application whatsoever.

Having carefully considered the erudite arguments of the learned counsel for the petitioner, I am of the firm view that there is no substance whatsoever in the petition. The history of this case shows that the petitioner is bent upon harassing and victimizing the second respondent-workman for some oblique motive which is not discernible from the record of the present petition. Despite long litigation carried out by the second respondent, which fructified into the declaratory decree, instead of gracefully accepting the results handed down by this Court in the second appeal, the petitioner persisted in ignoring the repeated letters addressed to them by the second respondent. The second respondent, obviously, being better advised this time, moved the application u/s 33-C(2) of the Industrial Disputes Act, and resorted to the summary remedy available thereunder. Before the Labour Court, no attempt was made by the petitioner to deal with the merits of the case other than resorting to forensic hair-splitting. The Labour Court ordered the petitioner to pay a sum of Rs. 95,882/-. Even at this stage, there is no payment. The matter is thereafter litigated in this Court from 1983, and it is not certain whether the day of reckoning has arrived.

The second respondent, out of sheer desperation, probably, was forced to file Writ Petition No. 4004 of 1983, seeking a Writ of Mandamus against the State of Maharashtra to direct them to pay the aforesaid sum of Rs. 95,882/- together with 10% interest from 12th February, 1980 (the date of the order in the second appeal), as also to award a sum of Rs. 25,000/- as compensation and a further sum of Rs. 50,000/- as exemplary costs. The said petition should properly be heard by a Division Bench under the Appellate Side Rules, governing writ petitions. Since Writ Petition No. 4512 of 1983 was properly within my jurisdiction, I have entertained it and heard it in extenso. As I have already indicated, I am inclined to dismiss Writ Petition No. 4512 of 1983. Whether the petitioner should proceed in the other writ petition or not, is her choice. The said writ petition No. 4004 of 1983 shall be placed before the appropriate Division Bench for hearing.

In the result, Writ Petition No. 4512 of 1983 is hereby dismissed. Rule is discharged. The petitioner shall pay a sum of Rs. 2,000/- (Two Thousand only) as costs to the first respondent.

During the pendency of Writ Petition No. 4512 of 1983, the petitioner was directed to deposit the full amount of Rs. 95,882/-in this Court. By an order made in Civil Application No. 111 of 1983 in Writ Petition No. 4512 of 1983, this Court permitted the second respondent to withdraw an amount of Rs. 22,000/-, together with the direction that the balance amount be invested in the Fixed Deposit of a Nationalised Bank. The amount deposited in this Court has earned interest. The second respondent shall be paid the balance amount of Rs. 73882/- and also alt interest earned on the amount deposited, except on the amount of Rs. 22000/- withdrawn by her, from the date of such withdrawal.

Mr. Devnani applies for leave to appeal to Supreme Court under Article 133-A(3) of the Constitution of India. Leave refused, as, in my view, no substantial questions of law of public interest arise in this petition. On application of Mr. DeVnani, the operation or this order is stayed for 6 weeks. However, the second respondent shall be given at least a week''s advance notice of any further proceedings taken out by the petitioner in any appeal that may be filed by them.

Certified copy of the judgment to be granted out of turn.