Kanthraj A.N. Vs. Assistant Executive Engineer and ors. - Court Judgment

G. Pathri Basavana Goud, J.

1. The petitioner had been working with the first respondent on daily wages since November 1, 1992. He was retrenched from service on April 1, 1994. He raised an industrial dispute in that regard contending that the retrenchment was illegal. That dispute was referred to the Labour Court, Chikmagalur, by the order of the State Government dated February 16, 1995 under Section 10(1)(c) of the Industrial Disputes Act, 1947 ('Act' for short). On adjudicating the said industrial dispute, Labour Court, Chikmagalur, by its award dated January 3, 1996 at Annexure-A, held the retrenchment as illegal and directed the first respondent employer to reinstate the petitioner into service with continuity of service but without back wages. The operative portion of the award reads thus:

'Reference is accepted partly. IInd party Management is not justified in refusing the work to the 1st Party workman with effect from April 1, 1994. The order refusing the work to the 1st party workman by the IInd party Management on April 1, 1994 is set aside. IInd party Management is directed to reinstate the 1st party workman into service to his original post and there shall be continuity of service of 1st party workman under the IInd party Management. 1st party workman is not entitled for any back wages from the IInd party Management. Parties are directed to bear their own costs.

Submit copy of the Award to the State Government for publication.'

2. The award concerned was published on March 3, 1996. First respondent employer, being an Officer of the State Government, appears to have moved the State Government with regard to the said award. It is on December 6, 1996 that the impugned order at Annexure-C came to be passed by the State Government in respect of implementation of the said award. Petitioner, in pursuance of the said Annexure-C, reported for duty on December 16, 1996.

3. The workman accepted the award in so far as it denied full back wages to him. Employer also accepted the award in so far as it directed reinstatement with the benefit of continuity of service. That is how the award came to be implemented after both the parties accepted its finality.

4. It is of course in implementation of the award that the dispute giving rise to the present Writ Petition has arisen. The State Government at Annexure-C, while giving directions in the matter of implementation of the award, directed that, on the workman being reinstated in pursuance of the award concerned, the period from the date of the order of dismissal till the date of reinstatement would be treated as 'Dies Non' and that the reinstatement shall be done subject to the condition that during this period, the workman would not be entitled to any service benefits. It is this Annexure-C that is sought to be quashed in this Writ Petition by the workman under Article 226 of the Constitution.

5. As noticed earlier, the award placed both the parties in both favourable and unfavourable circumstances to some extent. That is how the Labour Court decided on merits as to the relief to be given. So far as the employer was concerned, stipulation as regards reinstatement with continuity of service was unfavourable while denial of back wages to the workman was favourable. From the point of view of the workman, denial of back wages was unfavourable but the direction for reinstatement, with continuity of service was favourable. Either of the parties did not initiate any further proceeding in that regard and chose to accept the award as final. That means that, either of the parties thereafter could not take unilateral action that would amount to adversely affecting the interests of the other party and deny the said other party the benefits that the award has given. That is exactly what the State Government has done under Annexure-C and what the employer the first respondent has done while reinstating the petitioner workman in pursuance of the saidAnnexure-C. Annexure-C therefore is not legally sustainable for the following reasons:

Under Annexure-C, the direction of the State Government is that not merely that the period from the date of the order of dismissal till the date of reinstatement should be treated as 'dies non', but further that, during the said period of ''dies non', the workman would not be entitled to any service benefits. Thus, it is in the context of treating this period from the date of the order of dismissal till the date of reinstatement as totally non-existent for any purpose that the State Government has used this word 'dies non' in Annexure-C. Normally, the term 'dies non', an abbreviation of 'dies non juridicus', is referred to as a day not juridical and a non-sitting day for the Court such as Sunday, etc. That is how, according to the BLACK'S LAW DICTIONARY, this term means a day not juridical; not a Court day; a day on which Courts are not open for business, such as Sundays and some holidays. JOWITT'S DICTIONARY OF ENGLISH LAW (Second Edition) also gives the same meaning, namely, as a day on which no legal business can be transacted, such as Sunday, etc. WHARTON'S LAW LEXICON (Fourteenth Edition) also gives the same meaning, namely that it is not a Court day. In addition to this normal meaning, however, certain other dictionaries give the further meaning to the effect that the day concerned is not to be reckoned as a day at all. According to PREM'S JUDICIAL DICTIONARY, it is a day not reckoned as a day. According to the OXFORD UNIVERSAL DICTIONARY ILLUSTRATED (Third Edition and the SHORTER OXFORD ENGLISH DICTIONARY, it is a day on which no legal business is transacted, or which is not reckoned for some particular purpose. According to the CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH (Fourth Edition), it is a day that does not count or cannot be used. 'Words and Phrases' Permanent Edition (Volume 12A), inter alia, explains the effect of 'dies non' as to postpone the enforcement of contract involved to the next day open to business transactions.

In Annexure-C, therefore, in the context of the service conditions of the petitioner workman, the employer has chosen to treat a particular period as a period not to be reckoned for the purpose of service benefits of the workman. It is in this context that the term 'dies non' is used in Annexure-C. By doing so, the employer has denied to the workman, benefits of continuity of service from the date of the order of dismissal till the date of reinstatement, whereas the Labour Court, in the award concerned, had expressly granted the said benefit. In addition, the employer has denied to the workman, wages from the date the award became operative till the date of reinstatement i.e. fromApril3, 1996 to January 16, 1996 i.e. for nearly eight months, which the award has not denied to the workman. The question is whether the employer could have done so. Sri K.H. Jagadish, learned High Court Government Advocate, has strenuously urged that any employer, more so, when the employer is some one concerned with the State Government, would require a reasonable time to process the award after it became enforceable, to take a decision whether it should be given a finality and therefore to be implemented and to take necessary orders from the superior officers, all of which will consume time. It is in this context that the delay of nearly 8 months time in the matter of implementation of the award that Sri K.H. Jagadish, learned High Court Government Advocate seeks to justify. Sri S.B. Mukkannappa, learned counsel for the workman, however points out that the service of the workman had come to be terminated way back in the year 1994, that, being out of employment for more than two years, even after retrenchment was held illegal, Labour Court had denied him back wages, and that any further delay in the matter of implementation of the award and in this case, eight months delay, would be inexcusable and further, it is not just a case of the employer taking longer time to implement the award, but even while implementing it belatedly, imposing certain conditions as at Annexure-C that would greatly affect the interests of the workman adversely both in the matter of continuity of service as also wages, which the Labour Court itself had not chosen to deny to the workman. In the face of these rival contentions, let me set out what the correct legal position is. Once the correct legal position emerges, there should be no scope for further indulgence in respect of either of the parties, since their rights had already been adjudicated upon by the Labour Court, which adjudication has become final.

6. Section 17(1) of the Act inter alia provides that the award of the Labour Court shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit. Subsection (2) of Section 17 provides that subject to the provisions of Section 17A, the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever. The very heading of Section 17A is 'Commencement of the Award'. Sub-section (1) of Section 17A provides that an award shall become, enforceable on expiry of thirty days from the date of its publication under Section 17. Of Course, it is a different situation where the proviso to Sub- section (1) of Section 17A, as also the provisions of Sub-sections (2) and (3) of Section 17A, would apply. Where it is not so, then, under Sub-section (4) of Section 17A, subject to the provisions of Sub-section (1), the award shall come into operation with effect from such date as may be specified in the. award, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under Sub-section (1). In other words, if, in the award itself, a particular date is specified by the Labour Court as the date on which the award shall come into operation, the award will come into operation with effect from the said date so specified by the Labour Court. If no such date is specified by the Labour Court in the award, then, the award would come into operation on the date when the same becomes enforceable under Sub-section(1) of Section 17A i.e. on expiry of thirty days from the date of its publication under Section 17 of the Act.

In the matter of the date of operation being specified in the award by the Labour Court, the Supreme Court had this to say in The Management of Wenger and Company and Ors. v. Their Workman, : (1963)IILLJ403SC . I would extract whole of paragraph 28 of the judgment that deals with this aspect.

'28. The last point urged by Mr. Pathak is in regard to what he characterised as retrospective operation of the award. It appears that the present demands were made by the employees on October 1, 1958 and the references were made on September 9, 1959 and December 12, 1959 respectively. The award was pronounced on March 16, 1962 and it has directed that its directions should take effect from January 1, 1961. Technically speaking, this direction cannot be said to be retrospective because it takes effect from a date subsequent to the date of the reference. Under Section 17-A(4) of the Industrial Disputes Act, 1947, (No. 14 of 1947), it is open to the Industrial Tribunal to name the date from which it should come into operation, and in cases where the Industrial Tribunal thinks that it is fair and just that its award should come into force from a date prior to the date of reference, it is authorised to issue such direction. When such a direction is issued, it may be said appropriately that the award takes effect retrospectively. Apart from this technical aspect of the matter it, in the circumstances of this case, the Tribunal held that the award should take effect not from the date of reference but from a later date which was January 1, 1961, we see no reason why we should interfere with its direction.'

7. In the light of the provisions of Section 17 and Section 17A of the Act, so far as the facts of this case are concerned, termination was on April 1, 1994. Reference of the dispute in that regard under Section 10(1)(c) of the Act was on February 16, 1995. The date of the award is January 3, 1996. It was published under Section 17 of the Act on March 3, 1996. The award, in the light of the provisions of Sub-section (4) of Section 17A of the Act, did not specify any particular date on which it shall come into operation. Therefore, as provided by the very Sub-section (4) of Section 17A of the Act, the said award would come into operation from the date on which it became enforceable under Sub-section (1) of Section 17A of the Act, i.e. on expiry of 30 days from the date ofthe publication, namely on expiry of 30 days from March 3, 1996. In the light of Section 9 of General Clauses Act, 1897, the award, therefore, came into operation on April 3, 1996. The said award, therefore, would be binding on both the employer and the workman in view of Sub-section (3) of Section 18 of the Act. As on the day the award came into operation, namely as on April 3, 1996, the employer was obliged to reinstate the workman with the benefit of continuity of service, and the workman was obliged to accept reinstatement without any claim to back wages because that is what the award said. No further indulgence needed to be shown to either of the parties, in this regard. One of the terms of the award is that of obligation on the part of the employer to reinstate the workman with the benefit of continuity of service with effect from the date the award comes into operation in terms of Sections 17-A(4) of the Act. If the employer does not do so, then, it would be a breach of the said term of the award within the meaning of Section 29 of the Act that shall be punishable with imprisonment for a term which may extend to six months or with fine or with both, and where the breach is a continuing one, with a further fine which may extend to Rs. 200/- for every day during which, breach continues after the conviction for the first. Further, Section 2(ra) of the Act defines 'unfair labour practice' meaning any of the practices specified in the Fifth Schedule to the Act. Part I of the said Fifth Schedule lists what are the unfair labour practices on the part of the employers and trade unions of the employers. Item 13 of the said Part I of Fifth Schedule mentions 'failure to implement the award' as unfair labour practice. Under Section 25U of the Act, any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000/- or with both. When the employer, therefore, not only caused delay of eight months in implementing the award, but also proceeded to term a particular period as 'dies non', such an action was wholly unsustainable in law apart from rendering the employer liable for prosecution for the offences punishable under Sections 29 and 25U of the Act. The employer had 30 days time from the date of publication of the award to take necessary steps to implement the award, since that would come into operation on the expiry of 30 days period from the date of publication. If the employer took time according to his own convenience, such negligence of duty on the part of the employer does not take away the right of the workman that the award has given. As it is, the workman had lost full back wages. Therefore, on the date the award came into operation on expiry of 30 days from the date of its publication, if the employer reinstates the workman with the benefit of continuity of service as directed in the award, it is well and good. If the employer sits quite and does nothing, the workman must get full wages computed in the light of the benefit of continuity of service that the award has given, from the date the award has come into operation. The said wages could be recovered under Section 33-C(1) of the Act as money due to the workman from the employer under the award. If any question arises as to the amount of money so due, the said question may be decided by the Labour Court under Section 33-C(2) of the Act. This would be the correct legal position in the matter of implementation of the award unless, of course, the employer has preferred any proceeding against such an award in the High Court/Supreme Court, in which event Section 17B of the Act would take care of the payment of wages in the mean time.

8. The only conclusion, therefore, to be reached is that, on the date the award concerned herein came into operation within the meaning of Section 17-A(4) of the Act [in this case, since the award did not specify the date on which it shall come into operation, it is on expiry of 30 days from the date of publication of the award, the said date of coming into operation being April 3, 1996], the employer was obliged to reinstate the workman in service in terms of the award. Since he did not do so, the petitioner workman, must be taken as being entitled to full wages from the date of commencement of the award, computed in the back ground of the benefit of continuity of service that the award has given. The said wages could be recovered by the workman under Section 33-C(1)/33-C(2) of the Act as the case may be, as explained above. He was also entitled to the benefit of continuity of service. The State Government, therefore, could not have treated the period concerned as 'dies non'. This being the correct legal position, Annexure-C, contrary to this one, is liable to be quashed.

9. Having said so, certain practical difficulties also need to be taken due note of in the matter of implementation of the award by the employer. It is true, where the award does not specify the date on which it would come into operation, and, therefore has to come into operation on expiry of 30 days from the date of its publication, an employer would have 30 days time from the date of publication to take necessary steps in the matter of implementation or to initiate a proceeding in the High. Court/Supreme Court as the case may be in which event Section 17B will come into operation. There may be circumstances wherein even the said period of 30 days from the date of publication may not be sufficient for the employer to take necessary decisions and steps in this regard. Such difficulty will be there all the more where the employer is an industry related either to the State or the Central Government or where it is a public sector undertaking. It would, therefore, be reasonable if the Labour Court/Industrial Tribunal, in such a case where the award inter alia directs reinstatement, specifies under Section 17A of the Act, that the award shall come into operation on the expiry of 60 days form the date it becomes enforceable under Sub-section (1) of Section 17A of the Act. In that event, the employer may have about 90 days time from the date of publication of the award to take necessary decision and to initiate necessary steps to meet his obligations under the award. Within the said period, if he initiates a proceeding in the High Court/Supreme Court, Section 17B will take care of subsequent situation. If no such proceeding is initiated, then, notwithstanding any failure on the part of the employer to reinstate the workman as on the date of commencement of the award, the workman would be entitled to full wages from the date of commencement of the award, computed in terms of the award, and recoverable, in terms of Sub-section (1)/Sub-section (2) of Section 33C of the Act, as the case may be, as explained earlier, and the employer would be liable for prosecution for the offences punishable under Sections 29 and 25U of the Act. It should however, be taken as due discharge of his obligation under the award, if the employer, as on the date of commencement of the award, passes an order of reinstatement strictly in accordance with the terms of the award, and dispatches it under registered post acknowledgment due, to the last known address of the workman, together with a cheque for the amount, if any, due under the award by way of back wages, or deliver the same personally to the workman. The award would as much be binding on the workman also, and when the award gives the benefit of continuity of service to the workman on reinstatement, and also makes him entitled to full wages from the date of the commencement of the award, then, it is equally expected of him to take necessary steps in the matter of joining duties in pursuance of the award. It is therefore expected of the workman to collect the order of reinstatement together with the amount, if any, awarded as back wages, offered by the employer in the manner stated above, in discharge of the said employer's obligations under the award, and to join duties. Therefore, in spite of the above said readiness on the part of the employer to discharge his obligation in terms of the award, if the workman himself fails to report to duty, he can then neither claim wages during the period from the date of commencement of the award till the date of his belated joining to duty, nor can he complain that the employer has committed offences punishable under Sections 29 and 25U of the Act.

10. Registry is directed to send copies of this order to the learned Presiding Officers of the Labour Courts/Industrial Tribunals in the State.

11. In the result, petition is allowed, Annexure-C is quashed, and the petitioner-workman is held entitled to the benefits that have accrued under the award as understood in the light of the abovesaid discussion.