Sudhakar vs Bemco Hydrolinks Ltd.

Anand Byrareddy, J—Heard the learned counsel for the petitioner and the respondent.

The petitioner is before this court questioning the order of the Labour Court in the following circumstances.

It transpires that the petitioner was a workman. The workmen union of M/s. Bemco Hydrolinks Limited, the respondent, had raised an industrial dispute questioning the correctness of the stoppage of work by the respondent - industry. The services of the petitioner have been terminated on 30.12.1992. During the pendency of the above industrial dispute, the petitioner had challenged the same in ID No. 1/1993 before the Industrial Tribunal, Hubli, on the ground that the termination was during the pendency of the industrial dispute and hence the termination was illegal. An application was filed under Section 33(2)(b) of the Industrial Disputes Act, 1947 (Hereinafter referred to as the "ID Act" for brevity). The Tribunal had rejected the application which was challenged by way of a writ petition before this court in WP 4138/2000 and the learned Single Judge was pleased to accept the contention of the workmen of the respondent - industry and allowed the writ petition directing that they were entitled to all consequential benefits. Pursuant to which, a writ appeal was preferred by the respondent in WA 6742/2001 and during the pendency of the said writ appeal, a joint memo was filed to state that since the workmen had retired during the pendency of the proceedings, he was giving up his claim to reinstatement and insofar as the consequential benefits are concerned, restricted his claim to receive 50% of the backwages in full and final settlement. Recording the joint memo, the appeal stood disposed of.

The petitioner having approached the Tribunal seeking encashment of leave and bonus, the same has been disposed of noticing that a joint memo had been filed before the division bench in a writ appeal in WA 6742/2001, to the effect that the petitioner herein would receive 50% of the backwages in full and final settlement. The Labour Court having dismissed the application, the present petition is filed.

The learned counsel for the petitioner would submit that the joint memo filed related to the claim towards back wages and did not include other consequential benefits, which in the eye of law, the petitioner was entitled and denial of the same results in a miscarriage of justice.

The learned counsel would also point out that though the respondent has released 50% of the gratuity amount on the misconception that all the consequential benefits were to be restricted to 50% by virtue of the joint memo filed, the petitioner being denied the gratuity amount, which is independent of the settlement insofar as the back wages are concerned, has also resulted in a miscarriage of justice.

The learned counsel for the respondent however would point out that insofar as the application before the tribunal was only seeking leave encashment and bonus, both of which the petitioner was not entitled. Since the petitioner was terminated from service, he was not in employment. The entitlement to bonus or leave encashment was only in respect of regular employees and not of employees who have been terminated and have received 50% of the back wages by way of settlement. Hence, the rejection of the application by the tribunal was in order.

Insofar as the gratuity amount is concerned, it is contended that the petitioner was not entitled to even 50% of the amount, which has admittedly been paid to the petitioner erroneously. Therefore, the respondent has indeed taken steps to recover the same and has issued a notice for repayment of the amount. Hence, the learned Counsel submits that there is no substance in the present petition. The application before the court below did not include any claim towards gratuity and the tribunal had no jurisdiction to award any such gratuity and hence the petitioner now seeking to raise a claim towards gratuity is misconceived and the petitioner was entitled to 50% of the amount, which has been paid and seeks dismissal of the petition.

Insofar as the claim for encashment of leave and bonus is concerned, as rightly pointed out by the learned counsel for the respondent, the petitioner was not seeking these benefits as a regular employee. Insofar as his claim towards gratuity is concerned, since the respondent seeks to recover even the admitted payment of 50%, it is a matter for which there is a remedy under the Payment of Gratuity Act, 1972 (Hereinafter referred to as the "Act", for brevity) and the petitioner can very well work out any such claim towards gratuity under the provisions of the Act. There is no warrant for this court to interfere or address the claim towards gratuity.

The petition stands disposed of without prejudice to the case of either the petitioner or the respondent insofar as the dispute as regards payment of gratuity is concerned, which shall be decided in due course by the competent authority.

The petition stands dismissed.