Punjab Agro Industries Corporation Limited Vs. Presiding Officer, Labour Court and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 5829/- to the corporation which was not satisfied with the impugned order dated january 2, 1981 and has filed the present writ petition.r.l. anand, j.1. punjab agro industries corporation ltd., (hereinafter called corporation) through its managing director has filed the present civil writ petition under articles 226/227 of the constitution of india praying for the issuance of a writ of certiorari for the quashment of the impugned orders annexure p.3 dated january 2, 1981 passed by the presiding officer, labour court, chandigarh, who has partly allowed the application under section 33-c(2) of the industrial disputes act filed by shri chander shekhahar, respondent no.2 and vide said order, thelearned labour court awarded a sum of rs. 5829/- to respondent no. 2 on the following facts :- 2. chander shekhar filed an application under section 33-c(2) of the industrial disputes act against the corporation and claimed rs. 10,j28.50p under different heads. respondent no. 2 chander shekhar alleged in his application that he was placed under suspension vide orders dated july 18, 1974 while working as assistant accountant. he was dismissed from service onfebruary 25, 1976 and the orders were communicated to him on april 15, 1976. he was paidsubsistence allowance during the period of suspension. he claimed full wages even for the period of suspension plus city compensatory allowance plus bonus. another sum of rs. 100/-was claimed having been paid to uttam singhtaneja, service manager, rs. 70/- as taxicharges, special incentive at the rate of 10 percent of the salary for being posted at ferozepore and gurdaspur and certain amount of t.a. bills.the above claim of the claimant was disputed bythe corporation. consequently, the controversyraised by the parties led to the framing of the following issues by the labour court:- 1) whether the workman is entitled to the amount claimed 2) relief after giving opportunities to the parties to lead evidence the labour court partly allowed the application and issued directions for the payment of rs. 5829/- to the corporation which was not satisfied with the impugned order dated january 2, 1981 and has filed the present writ petition. it may be mentioned here that a sun of rs. 5146/- was awarded being the balance of salary from july 28, 1975 to february 24, 1976 rs. 60.57 towards city compensatory allowance; rs 315/- against bonus and rs. 307.45 against t.a. bills. the dispute before this court is only with regard to the balance of the salary starting from july 28, 1974 to february 24, 1976 because the balance salary for the period from july 18, 1974 to july 27, 1974 was given up by the applicant. 3. the learned counsel for the petitioner, shri vinod sharma, has assailed the findings of the order passed by the labour court on the plea that the service conditions of the applicant chander shekhar used to be governed by punjab civil services rules and under these circumstances, respondent no. 2 was only entitled to the subsistence allowance as admissible to him under the punjab civil services rules i.e. at the rate of 50 per cent of his pay and therefore, the order of the learned labour court while granting full pay even for the suspension period is erroneous andis liable to be quashed and in support of his contention shri sharma has relied upon a division brench authority of calcutta high court reported as west bengal khadi and village industries board v. dibyendu prokash bhattacharya 1980(3) s.l.r. 136, in which it was held as follows:- 'in the first place, suspension may be as a punishment and in the second place interim suspension pending inquiry. in this type of interim suspension without some provisions of the statute or the rules the master cannot with suspension hold the wages of the servant though he has the power for asking the servant not to perform his duties or the ser-vant to work but he must be paid the full back wages for the period.'the contentions which have been raised by shri sharma have no applicability to the facts in hand because annexure p.2 on which reliance has been placed only talks of the decision of the corporation by which it had decided that the punjab civil services rules including the leave and t.a. rules would be applicable to the employees of the corporation till such time it fra-mers and adopts its own service rules. the most important aspect of this case is annexure p.1 by which the respondent no. 2 was placed under suspension pending enquiry into the charges of mis-conduct and indiscipline and it was specifically written in the order dated july 17, 1974 that during the period of suspension the employee would get subsistence allowance as is admissible to him under the punjab civil services rules. further it was written that during the period of his suspension his headquarter will remain at chandigarh and he would report to c.a.o.-cum f.a., paic ltd., chandigarh daily and he would not leave the headquarter without the prior permission of c.a.o.-cum f.a. a perusal of the annexure p.1 would show that contract of employment was not suspended. learned labour court has dealt with this aspect of this case after taking into consideration the rival contentions of the parties as follows:- 'the important question that arises for deter-mination in this case is based on the order of suspension. the contention of the workman is thatsince no rules were applicable to the employees of the punjab agro industries corporation, by passing an order of suspension, contract of service was not suspended. further wjien the direction was given to the workman to attend the office daily, it was up to the employer to take work from him or not. the workman was entitled to the entire wages for the period of suspension and not only the subsistence allowance. there is force in this contention. the supreme court in balwantrai rati lal patel and state of maharashira 1968 (2) ilj 700 dealt with this question and laid down law as follows:- 'the only question that can arise on such sus-pension will relate to payment during the period of suspension. if there is no express term relating to the payment during such suspension or if there is no statutory rule relating thereto, the employee is entitled to his full remuneration for the period of his interim suspension. if there is however a term in the contract or statutory rules the payment will be made in accordance therewith.' on behalf of the management reliance was placed on the decision of the punjab high court in divisional superintendent, northern railway, delhi v. mukand lal klifjr 1982 (1957-58). in that case the contract of service provides for payment of certain wages to the employee when placed under suspension was held that it would not be open to an employee, who was properly placed under suspension to claim the full wages. this decision is not applicable to the case in hand or it is not shown that the workman was governed by any rules or there was any condition in the order of appointment that in case of suspension he would be paid only subsistence allowance. in view of the decision of the supreme court, referred to above in such circumstances, when the workman was directed to report daily, it cannot be said that the services of contract was suspended when order of suspension ex.p. 1 was passed. even if there were certain rules with the imposing of such a direction to report daily on duty, the contract of service could not be deemed to have been suspended. in this respect reference may be made to the decision of the bombay high court in b.b. &c; i. railway v. b.c. patil and anr (1951-ii-llj-584). it was observed as follows at p 587:- 'there is no obligation whatsoever upon an employer to insist upon taking work from his employee. and if in this case, the employer told the employees. 'i do not want you to work, but come to the heaquarter and report yourself every day.' 'it does not mean that thereby the employer relieved his employee from his obligation to serve under the contract. the employee was ready and willing to work, and it was entirely optional upon the employer whether he should extract any work from his employee or not. therefore, the respective obligation of the master and the servant continued under the contract. the employee was under an obligation to serve, the employer was under an obligation to pay wages.' thus in the present case, though the workman was placed under suspension vide order ex.p. 1 he was further directed to report daily on duty. it is altogether, different whether he was asked to do any work or not, but he would be entitled to full wages, for the said period of suspension.' 4. shri sehgal, learned counsel appearing on behalf of respondent no.2 has supported the reasons of the labour court and rightly too by submitting that by placing his client under suspension, the employer had not put an end to the contract of the employment. therefore, his client was entitled to full wages even for the period of suspension. the citation which has been relied upon by the learned labour court reported as b.b & c.i.railway v. b. c.patil and another (supra)is not helpful for the decision of the controversy in hand. the employee was ready and willing to perform his work and it was entirely at the sweet whims of the employer what exact work he wanted to take from the employee. so long as the relationship of master and servant existed between the corporation and respondent no. 2 the former was liable to pay the wages. in this view of the matter the controversy regarding the balance of salary starting from july 28, 1974 to february 24, 1976 has been rightly adjudicated by the labour court and does not call for any interference. in the present writ petition nothing has been urged with regard to other threeminor claims decided by the learned labour court. in the finality of the things, i do not seeany merit in the present writ petition, which is hereby dismissed with no order as to costs.