Judgment:
$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
25. h January, 2019 REVIEW PET. 272/2018 in + W.P.(C) 16146/2004 K.V.S. ........ Petitioner
Through: Mr. S. Rajappa, Adv. versus PRAVEEN KUMAR ..... Respondent Through: Ms. Meghna De, Adv. for Mr. Rajiv Agarwal, Adv. with respondent in person % 1. CORAM: HON'BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT
(ORAL) This review petition, at the instance of the petitioner Praveen Kumar, in W.P.(C) 16146/2004, seeks review of the judgment, dated 18th January, 2018, passed by me, in the said writ petition.
2. For the purposes of present review petition, a brief reference to the facts would suffice.
3. The review petitioner, who was employed as a watchman with the Kendriya Vidyalaya Sangathan (who was the petitioner in the writ petition and, is, referred to, hereinafter, as “the KVS”), initiated an industrial dispute, challenging the termination, by the KVS, on 27th Review Pet. 272/2018 Page 1 of 14 May, 1992, of his services. The said dispute was referred, by the Ministry of Labour, to the Industrial Tribunal vide letter dated 5th September, 1997. Needless to say, the Terms of Reference addressed the legality of the termination, of the review petitioner’s services, by the KVS, and the relief, if any, to which the review petitioner would be entitled in that regard.
4. The aforementioned dispute was adjudicated by the learned Tribunal vide Award dated 16th July, 2004. The operative portion of the Award reads thus: “The action of the management of Kendriya Vidyalaya Sangathan in terminating the services of Sh. Praveen Kumar, Watchman, Kendriya Vidyalaya at NTPC, Badarpur, New Delhi w.e.f. 23.05.1992 is not justified. The workman deserves to be reinstated from 23.05.1992 with 50% back wages.” 5. The KVS assailed the aforementioned Award, before this Court, by way of W.P.(C) 16146/2004, in which the judgment under review was passed by me.
6. A brief glance at some of the proceedings in the writ petition is apposite, at this juncture.
7. While issuing notice on the writ petition, on 6th October, 2004, this Court had directed stay of operation of the Award, till the next date of hearing. Needless to say, the said order of stay continued to remain in operation till the matter was disposed of by me.
8. During the pendency of the writ petition, the review petitioner Review Pet. 272/2018 Page 2 of 14 attained the age of superannuation in October, 2017. As a consequence of the stay granted by this Court, he was never reinstated in service.
9. During the pendency of the proceedings in the writ petition, the review petitioner moved an application under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”), praying that he be paid the last pay drawn by him before his termination, or the minimum wages applicable to his posts whichever was higher during the pendency of the writ petition. It was specifically averred, in the said application, that the petitioner was unemployed from the date of his termination.
10. The said application was disposed of, by this Court, vide order dated 4th May, 2005, which read thus: “ CM5252005 in WP (C) No.16146/2004 This is an application under Section 17-B of the Industrial Disputes Act, 1947 (in short the ‘ID Act’) praying that interim relief/benefits at the rate of Rs.5000/- per month from the date of the impugned award dated 16th July, 2004 till disposal of the petition under Section 17B of the ID. Act be granted in favour of the respondent/workman. It is further prayed that petitioner be directed to release the arrears of back wages in terms of the impugned award. that It is stated the applicant-workman has been unemployed from the date of his termination. The last drawn wages of the workman was at Rs.2600/- and at present a watchman is drawing about Rs.7,000/- per month with the petitioner management. The application is opposed by the petitioner. A bald averment is made to the effect that Review Pet. 272/2018 Page 3 of 14 respondent-workman is not gainfully employed. However, no material is placed before this Court in support this submission. I have heard learned counsel for the parties. By the impugned award passed in I.D. No.129/97, the Presiding Officer, Central Government Industrial Tribunal Cum Labour Court No.II, New Delhi held that workman deserved to be reinstated from 23rd May, 1992 with 50% back wages. The provisions of Section 17-B are mandatory in nature and wherever the High Court is inclined to grant interim stay of operation of the award, it will be obligatory on the Court to protect the workman by payment of last drawn wages under the provisions of Section 17-B of the Act. Accordingly, the respondent/workman shall be paid the arrears of wages last drawn by him or the minimum wages whichever is higher from the date of the award till date and thereafter such payment will be continued to be made month to month. Arrears of wages are directed to be paid to the respondent/workman within six weeks from today. The application stands disposed of.” (Emphasis supplied) 11. Though certain disputes were raised by the KVS, regarding the quantification of the amount raised by the petitioner under Section 17- B of the Act, which led to certain proceedings before the learned Tribunal, it is not in dispute that the direction, in the afore-extracted order dated 4th May, 2005, (supra), of this Court, under Section 17-B of the Act, was complied with, by the KVS, till the date of his superannuation. Review Pet. 272/2018 Page 4 of 14 12. As such, in my view, it cannot be disputed, at this stage, that the petitioner was, in fact, not in gainful employment after his termination from service by the KVS.
13. Before this Court, in the writ petition, the KVS did not choose to question the Award of the learned Tribunal on merits, but restricted its arguments to an issue of jurisdiction.
14. Vide my judgment dated 18th January, 2018, which is subject matter of the present review petition, I decided the issue of jurisdiction in favour of the review petitioner and against the KVS and, consequently, dismissed the writ petition with the following directions: “(i) 50% of the wages that the respondent would have drawn, along pensionary and retiral benefits, worked out on that basis, from October 2017 (when he would have superannuated in normal course) till date, shall be disbursed, to him, by the petitioner, within one week of the date of receipt, by the petitioner, of a certified copy of this judgement. In doing so, the amount already paid to the respondent, under Section 17-B of the Act, shall be adjusted. (ii) The petitioner to disburse pensionary and retiral benefits, to the respondent, on the above basis. (iii) The matter is remanded to the Industrial Tribunal, having jurisdiction therein, solely for the purpose of working out the amount payable to the respondent under Section 17-B of the Act, in the light of the findings contained in para 22 supra. This exercise shall be completed within a period of 6 months from the date of presentation, by either party, before the Tribunal, of a continue shall Review Pet. 272/2018 Page 5 of 14 certified copy of this judgement. Parties are directed to appear, before the Tribunal, for preliminary hearing on this issue, on 31st January 2018. (iv) Thus worked out, if it is found that any further payment is required to be made, to the respondent, under Section 17-B of the Act, in excess of the amount paid under (i) above, such amount shall also be disbursed, to the respondent by the petitioner, within 4 weeks of such determination by the Tribunal.” 15. This review petition seeks review of the directions issued in this judgment on two counts. Firstly, it is contended that the review petitioner was entitled to full back wages, from the date of the Award of the learned Tribunal till the date of his superannuation and that, therefore, this Court erred in restricting the back wages payable to the review petitioner, for the said period, to 50%. Secondly, Ms. De, learned counsel for the review petitioner, points out that the exercise of calculation, of the said amount, ought, appropriately, to be remitted to the Labour Commissioner under Section 33C(1) of the Act, rather than the learned Tribunal.
16. For the first proposition, i.e. that the review petitioner would be entitled to full back wages from the date of the Award of the learned Tribunal till the date of his superannuation, Ms. De places reliance on the judgment of the Supreme Court in M.L.Bose and Co. Pvt. Ltd. v. Employees, AIR1961SC1198 She draws particular attention to para 8 of the said judgment which merits reproduction, therefore, thus: “8. The award has directed that
of the total emoluments should be paid to the workmen for the period from the date of dismissal till reinstatement; that was because it appeared to the Tribunal that the workmen had Review Pet. 272/2018 Page 6 of 14 earned from time to time by different work. Mr Sanyal has suggested that we should direct a similar payment at a similar reduced rate from the date of the award until the date of reinstatement. We do not propose to make such an order. After the award became operative the workmen were entitled to reinstatement by the appellant, but the appellant obtained an order for stay from this Court unconditionally. In such a case we do not see any reason for depriving the workmen of their full wages from the date the award became operative to the date of their reinstatement.” 17. For the second proposition, i.e. that where the exercise involved (Emphasis supplied) was of only of calculation, the case would fall within the peripheries of Section 33 C(1) of the Act, for which Ms. De. places reliance on a judgment, of a Constitution Bench of the Supreme Court, in Kays Constructions Co. Pvt. Ltd. v. State of Uttar Pradesh, AIR1965SC1488 18. Arguing in opposition, Mr. Rajappa, learned counsel for the KVS, submits, initially, that this review petition is not maintainable, as it seeks the modification of a judgment passed by me rather than a review thereof.
19. On merits, Mr. Rajappa places reliance on two decisions of the Supreme Court in Senior Superintendent (Telegraph) v. Santosh Kumar Seal., (2010) 6 SCC773and Rajasthan State Road Transport Corporation, Jaipur v. Shri Phool Chand (Dead) Through LRs, 2018 SCC OnLine SC1583 Review Pet. 272/2018 Page 7 of 14 20. On the strength of the said pronouncements, Mr. Rajappa contends that the law, relating to Award of back wages, has undergone a sea change over a period of time, which has been pointedly recognized by the Supreme Court in Santosh Kumar Seal (supra). He further submits that, in any event, there could be no direction for the respondent to be awarded full back wages from the date of the Award till the date of his superannuation, as grant of such relief would be dependent on whether the respondent was gainfully employed during the said period or not, the burden whereof lay on the respondent.
21. I have heard learned counsel for the parties and considered the submissions advanced before me.
22. I am of the opinion that Ms. De. is justified in her submission that, from the date of Award till the date of superannuation of her client, he would be entitled to full back wages, and not 50% and that the directions contained in the judgment under review, to the extent it directs payments of 50% back wages to be due to the petitioner from the date of the Award till the date of his superannuation, cannot sustain. The reliance of Ms. De., on the judgment of the Supreme Court in M.L.Bose and Co. Pvt. Ltd. (supra), appears to me, to be well taken.
23. The facts in the said case are, to all intents and purposes, indistinguishable from those in the present case, so far as the claim in this review petition is concerned. Review Pet. 272/2018 Page 8 of 14 24. In M.L. Bose and Co. Pvt. Ltd. (supra), too, the Tribunal had directed, consequent to dismissal of the workman and direction for his reinstatement, payment of one-third of the total back wages payable to him till then. The management appealed and, because of an order of stay passed by the Supreme Court, the workman was not reinstated in service.
25. The Supreme Court has clearly held, in para 8 (extracted hereinabove), that, in such a case, there was no reason for depriving the workmen of their full back wages from the date of the Award till the date of their reinstatement.
26. In the present case, too, the Award of the learned Tribunal directed payment of 50% back wages to the review petitioner from the date of his termination till the date of his reinstatement.
27. Owing to a stay granted by this Court, the review petitioner was never reinstated in service. During the pendency of these proceedings, the review petitioner attained the age of superannuation.
28. In the circumstances, applying the principle enunciated in para 8 of M.L.Bose and Co. Pvt. Ltd. (supra), the review petitioner would be entitled to full wages, payable to him, from the date of the Award by the learned Tribunal till the date of his superannuation, and the directions, by me, restricting his back wages, payable to him, for the said period, to 50%, which is in the teeth of para 8 of the judgment in M.L.Bose and Co. Pvt. Ltd. (supra), cannot, in my view, sustain. Review Pet. 272/2018 Page 9 of 14 29. The objection of Mr. Rajappa, regarding the aspect of gainful employment does not, in my view, survive for consideration, inasmuch the application of the review petitioner under Section 17-B of the Act was allowed by this Court and the order dated 4th May, 2005 (supra) allowing the said application notes, specifically, the contention of learned counsel for the review petitioner, that he had not been in gainful employment consequent to his termination.
30. The KVS never chose to challenge this award or avoid compliance therewith on the ground that the workman had never been in gainful employment.
31. The order notes the fact that in respect of the submission of the review petitioner that he had been unemployed since the date of his termination, a bald averment was made, by the KVS, that he had been in gainful employment, unsubstantiated by any material. It was on this basis that payment, under Section 17-B, was directed by this Court. It is a matter of record that the said order was not challenged, nor compliance therewith sought to be avoided by the KVS, on the ground that that the review petitioner was ever gainfully employed, though on the aspect of computation of the amount payable, there was considerable dispute between the parties.
32. As such, the aspect of gainful employment, in my view, does not survive for consideration. Review Pet. 272/2018 Page 10 of 14 33. In this view of the matter, I am of the opinion that the direction (i) in para 23 of my judgment dated 18th January, 2018, under review in the present review petition, would require to be reviewed and modified by directing payment, to the review petitioner, of 50% of his back wages from the date of his termination till the date of the Award of the learned Tribunal and full back wages payable to him from the date of the Award of learned Tribunal till the date of his superannuation.
34. Adverting to the judgment cited by Mr. Rajappa, on the above aspect, I am of the opinion that the claim of the review petitioner cannot be opposed, on the basis of either of the said decisions.
35. The judgment in Santosh Kumar Seal (supra) essentially addresses the change in perception, of the Supreme Court, over a period of time, from the principle of grant of full back wages consequent to setting aside of an order of termination or dismissal of a workman, to that of lump sum compensation. The said decision cannot affect this review petition in any manner, as the claim of the review petitioner relates to the period after the date of the Award till the date of his superannuation and, in any case, the judgment passed by me has not been sought to be challenged by the KVS.
36. The decision in Rajasthan State Road Transport Corporation, Jaipur (supra) again, dealt with the justifiability of the direction, of the Labour Court, consequent to ordering reinstatement of the Review Pet. 272/2018 Page 11 of 14 workman, of grant of full back wages for the period of 13 years, in which he had been unemployed.
37. The Supreme Court has held that the workman would not, as a matter of right, be entitled to full back wages and that the grant of back wages would be dependent on various factors. The main factor, highlighted by the Supreme Court in para 12 of the said decision, is that of gainful employment. The Supreme Court has held that the award of full back wages to a workman would be subject to the workman establishing that he had not been in gainful employment consequent to his termination from the service.
38. In the present matter, that aspect has already been dealt with by me hereinabove. The question of gainful employment has been examined by this Court and, by allowing his application under Section 17-B of the Act, decided in favour of the review petitioner.
39. The entitlement, of the review petitioner, to the benefit of the principle enunciated in the concluding sentence in para 8 of M.L.Bose and Co. Pvt. Ltd. (supra), cannot, therefore, be defeated in any manner, by the decisions in Rajasthan State Road Transport Corporation, Jaipur (supra) and Senior Superintendent (Telegraph) (supra), on which Mr. Rajappa places reliance.
40. I am also of the opinion that Ms. De. is correct in stating that, under the statutory dispensation contained in the Industrial Tribunal Act, 1947, the proper forum to work out the amount payable to the Review Pet. 272/2018 Page 12 of 14 review petitioner would not be the learned Tribunal but would be the Labour Commissioner under Section 33C(1) of the Act. Inasmuch as there is no dispute about entitlement, and the matter is simply one of calculation, applying the principles laid down in Kays Constructions Co. Pvt. Ltd. (supra), this exercise ought to be carried out by the Labour Commissioner.
41. Accordingly, the present review petition is allowed by modifying the directions contained in para 23 of my judgment dated 18th January, 2018 in W.P.(C) 16146/2004. The modified directions shall read thus: (i) The review petitioner would be entitled, as directed by the learned Tribunal, to 50% of back wages from the date of his termination till the date of Award of the learned Tribunal. (ii) From the date of the Award till the date of his superannuation i.e. October, 2017, the review petitioner would be entitled to 100% of the wages to which he would have been entitled in normal course, had he not been terminated from service. In working out the said amount, the amount already paid to the review petitioner, under Section 17-B of the Act, shall be adjusted. (iii) The KVS shall continue to disburse the pensionary and retiral benefits, to the review petitioner, on the above basis. Review Pet. 272/2018 Page 13 of 14 (iv) The matter is remanded to the Labour Commissioner to work out the amount payable to the review petitioner on the above basis, under Section 33C(1) of the Act. The parties are directed to appear before the Labour Commissioner for the said purpose on 14th March, 2019. (v) Thus worked out, if it is found that any further payment is required to be made to the review petitioner, under Section 17-B of the Act, such amount shall also be disbursed to the review petitioner by the KVS within a period of four weeks of such determination by the Labour Commissioner.
42. The review petition stands allowed in the above terms. JANUARY25 2019 dsn C. HARI SHANKAR, J Review Pet. 272/2018 Page 14 of 14