Judgment:
J.V.Gupta, J.
1. This petition is directed against the order of the Labour Court, Amritsar, dated April 29, 1982, whereby on an application under Section 33C(2) of the Industrial Disputes Act, 1947 (for short 'the Act'), respondent No. 2 was found entitled to a sum of Rs. 19.129.70 by way of his wages.
2. The respondent, Samuel Sen, filed a civil suit for declaration that the entire procedure adopted by the defendant-Municipal Committee beginning with the suspension and culminating in his dismissal on October 16, 1967, was wrong, unjust, arbitrary, discriminatory, illegal, unconstitutional and inoperative, and that the plaintiff was entitled to consequential relief by way of reinstatement relating back to the date of his illegal suspension and full back wages with due increments and promotions. The said suit was contested by the Municipal Committee. Ultimately, the trial court decreed the said suit, vide judgment dated January 28, 1974.
The operative part of the judgment reads as under:
'From the ratio of the aforesaid authorities it is now clear that the plaintiff can only seek that the order of dismissal dated October 16, 1987, is unjust, arbitrary, discriminatory, illegal, unconstitutional and inoperative but he cannot claim any further relief by way of reinstatement relating back to the date of his illegal suspension and full back wages with usual increments and promotions. With these observations, I only pass a declaratory decree to the effect that the entire procedure adopted by the defendant beginning with the suspension of the plaintiff and culminating in his final dismissal on October 16, 1967, is wrong, unjust, arbitrary, discriminatory, void and inoperative and having no force of law. The decree sheet be prepared accordingly with costs'.
3. In appeal filed by the Municipal Committee, the said decree of the trial Court was maintained. On the basis of the said decree of the civil court the plaintiff, Samuel Sen, moved an application under Section 33C(2) of the Act for claiming his wages from the date of the passing of the dismissal order till the date of passing of the decree by the civil court. The said application was contested on behalf of the Municipal Committee on the plea that no such application was maintainable for the said amount. According to the Municipal Committee, the decree was not for reinstatement and, therefore, he could not be deemed to have been reinstated. As such, he could not claim his back wages, etc. Plea was also taken that the application was barred by the principles of res judicata and the Labour Court was not competent to try the application. Consequently, issues were framed and parties were allowed to lead evidence. The Labour Court came to the conclusion that the effect of the setting aside the order of dismissal in the case of employees of the statutory corporations would mean that the workman concerned would be deemed to be in service. Thus, the objections raised on behalf of the Municipal Committee as to the jurisdiction of the Labour Court and that the application was barred by the principles of res judicata were not sustainable. According to the Labour Court, the plaintiff was found entitled to a sum of Rs. 19,129.70 by way of his wages from the date of the dismissal order till the date of the passing of the decree by the civil court.
4. Learned counsel for the Municipal Committee submitted that once the respondent, Samuel Sen, has resorted to the civil court by filing a civil suit, he could not take recourse to the proceedings under the Industrial Disputes Act. According to learned counsel, the only remedy, if any, was to claim damages on the strength of the civil court decree and that too for three years by filing a separate suit. According to learned counsel, the application under Section 33C(2) of the Act was not at all maintainable and the Labour Court had no jurisdiction to entertain the same. In support of his contention he referred to State Bank of India v. Darshan Kumar Jindal 1979 F.L.R. 567 and Sukhi Ram v. State of Haryana 1982 F.L.R. 717. Reference was also made to Raj Kumar v. Municipal. Committee, Jullundur (1974) 2 S.L.R. 394 and Oswal Weaving & Spinning Mills v. Pritam Singh 1981 P.L.R. 207. On the other hand, the learned counsel for the plaintiff- workman submitted that once the dismissal order was held to be illegal by the civil court its effect would be that the plaintiff shall be deemed to be in service and, therefore, he was entitled to claim his wages by filing an application under Section 33C(2) of the Act. He also submitted that now, in view of the Full Bench decision of this Court in Radha Ram v. Municipal Committee, Barnala (1982) 2 L.I.C. 1857, even the declaratory decree of the civil court was also executable. In support of his contention he referred to Town Municipal Council, Gokak v. Mirzabhai 1968 L.L.J. 785 and Market Committee, Amritsar v. Labour Court, Amritsar 1981 L.I.C. 473. Reference was also made to a Full Bench decision of this Court in Prakash Chand v. S.S. Grewai, Chief Secretary, Punjab I.L.R. (1974)11 P. & H. 56, wherein it was held that when the dismissal of a Government servant is declared, by a decree of a civil court, to be illegal, void or ineffective, a declaration as to his legal status of having remained a Government servant throughout is given as if the order of dismissal never existed. The result is that he is restored to his status of a Government servant and becomes entitled to enjoy all the benefits and privileges including emoluments for the entire period during which his dismissal remained in operation. He also referred to Mohan Lal v. Bharat Electronics Ltd 1981 (42) F.L.R. 389 (S.C.), to contend that when the termination is illegal, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits, namely, back wages in full and other benefits.
5. I have heard learned counsel for the parties and have also gone through the case-law cited at the Bar. None of the cases cited by learned counsel for the petitioner supports the proposition contended by him that the only remedy for the respondent-workman was to file a separate suit for damages and that no application under Section 33C(2) of the Act as such was maintainable. In Sukh Ram's case 1982 F.L.R. 717, what was held was that where the right or obligation giving rise to the industrial dispute springs from a source other than the Act i.e., under the general law (including therein any other statutes) then the workman is expressly given two alternative remedies. In such a case it is in his discretion to either take resort to the ordinary jurisdiction of the civil courts or to seek the remedies under the Act. However, he must distinctly elect his remedy. It is now authoritatively settled that he cannot have both. In the present case, there were two remedies open to the respondent-workman after obtaining the civil court decree in his favour. One was to execute the said decree in view of the Full Bench decision ; of this Court in Radha Ram's case (1982) 2 L.I.C. 1857, wherein it was held that:
'Once the relief of setting aside or quashing the order of termination has been ; granted, or a declaratory decree has been passed to the similar effect, it necessarily follows that the employee in the eye of taw continues to be in service and as a necessary consequence thereof would be entitled to all the emoluments flowing from that status. He must be deemed to be in a position identical with that existing prior to the passing of the order of termination of his service. The emoluments of the post are a logical consequence of setting aside the order of termination. In such a situation to insist upon the filing of a second suit for a relief which already flows from the declaratory decree can hardly be warranted. The hallowed rule that the law disfavours multiplicity of proceedings would again require that the consequential relief should be recorded in the original proceedings itself. This seems to be the more so since in essence the cause of action for the claim to salary and emoluments is conterminous with the decree setting aside the wrongful termination. Therefore, no issue or bar of limitation raises any hurdle in this context'.
6. The second remedy available to the respendent-workman was to make an application under Section 33C(2) of the Act which provides that where any workman is entitled to receive from the employer any money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the same may be decided by a Labour Court. Of course, the respondent could not seek a reference under Section 10 or 12 of the Act for reinstatement which relief was denied to him by the civil court, but, on the strength of the civil court decree, he was entitled to the benefit thereof for realising the arrears of his wages for which, as observed earlier, he could either execute the decree itself or make an application under Section 33C(2) of the Act. The argument raised on behalf of the petitioner that the only course open to the respondent was to file a separate suit for damages on the strength of me so-called civil court decree was not sustainable in view of the Full Bench decision referred to above in Radha Ram's case (supra). Apart from that, even if it be assumed for the sake of an argument that the Labour Court had no jurisdiction under Section 33C(2) of the Act, it will be futile at this stage to direct the respondent-workman to execute the civil court decree for the same relief. No injustice can be said to have been caused to the petitioner by making an application under Section 33C(2) of the Act. On that account also no interference is called for in writ jurisdiction. Consequently, this petition fails and is dismissed with costs.
Since vide order dated November 19, 1982, the operation of the impugned order was stayed by this Court, it is directed that the amount as determined in the said order be now paid to respondent No. 2 within three months, failing which he will be entitled to interest thereon at the rate of 12% per annum from the date of the said order,i.e., November 19, 1982, till its realisation.