1. Respondent 1 was an employee of the petitioner, the Town Municipal Council, Gokak, which purported to dismiss him from service on 9 December, 1957. He filed a suit against the petitioner praying for setting aside the said order of dismissal. In the Second Appeal No. 426 of 1961, arising out of that suit, this Court passed, on 8 January 1965, a decree declaring that the said order of dismissal was null and void. Thereafter, he made an application under S. 33C(2) of the Industrial Disputes Act, 1947, before the labour court claiming arrears of salary to the extent of Rs. 9,498,30. By its order, dated 4 May, 1966, the labour court held that he was entitled to receive that sum from the municipal council. Feeling aggrieved by the order, the municipal council has filed this petition under Arts. 226 and 227 of the Constitution.
2. Sri W. K. Joshi, learned counsel for the petitioners, assailed the order of the labour court on the following grounds :
(1) The application under S. 33C(2) of the Industrial Disputes Act, was barred by res judicata or in the alternative by the provisions of order II, rule 2, of the Civil Procedure Code.
(ii) The claim for salary, on the ground that the dismissal was illegal, does not come within the scope of S. 33C(2) of the Industrial Dispute Act.
(iii) Arrears of salary and allowances do not come within the meaning of 'benefit' occurring in S. 33C(2).
(iv) As respondent 1 did not continue in the services of the petitioner he was not entitled to claim anything towards salary and allowance.
3. We shall now examine these contentions. The plea of res judicata has no substance as the suit was only for setting aside the order of dismissal. No claim was made in that suit for arrears of salary and allowance and there was no decision in that suit on the question of claim for such arrears.
4. It was argued for the petitioner that respondent 1 should have included in the suit his claim for salary from the date of dismissal and as he had omitted to sue in respect of such salary, his application for recovering the same was barred under order II, rule 2, Civil Procedure Code. This contention also has no substance because the bar under order II, rule 2, Civil Procedure Code, applies only to subsequent suit and not to an application to the labour court under S. 33C(2) of the Industrial Disputes Acts.
5. In support of the second contention, namely, that a claim for salary on the ground that the purported dismissal being illegal, does not come within S. 33C(2), Sri Joshi relied on the following observation of the Supreme Court in Central Bank of India v. P. S. Rajagopalan [1963 - II L.L.J. 89 at 97] :
'... If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under pre-existing contract, cannot be made under S. 33C(2) ...'
6. Had it not been for the fact that the dismissal of respondent 1 was held to be null and void in the civil suit filed by him, the above observations of the Supreme Court would have applied to the present case also. If there was no declaration by the civil Court that dismissal was null and void, the question could have been decided only in an industrial dispute and not in an application under S. 33C(2). Once the dismissal was declared as void, the salary payable to respondent 1 whose services had not been lawfully terminated, becomes a matter within the scope of S. 33C(2).
7. Sri Joshi next referred to the observations of this Court in H. R. Dharma Singh v. Divisional Superintendent, Southern Railway [1966 - II L.L.J. 268] to the effect that where the termination of an employee was found to be illegal by the labour court, no order could be made by the labour court under S. 33C(2) for the payment of any salary or pay which he might claim in a proceeding such as an industrial dispute. In that case the petitioner's services were dispensed with by the railway authorities. He contended that the termination of his service contravened the provisions of S. 25F of the Industrial Disputes Act and had asked the labour court to direct the employer to pay his salary and dearness allowance for three years and another month's salary in lieu of notice. The labour court held that the termination of his service was in contravention of S. 25F as no notice as prescribed in Clause (c) of that section was served on him and as he was not paid retrenchment compensation. The labour court directed the employer to pay Rs. 270 as the compensation payable under S. 25F. In the write petition that petitioner had asked this Court to declare that he was entitled to his salary from the date of illegal termination of his service. It is in those circumstances this Court held that the labour court not, under S. 33C(2), order payment of arrears of his salary. It is seen that there was no prior adjudication by any competent authority that the termination of his service was bad. Hence that case is distinguishable on facts.
8. Sri Joshi next referred to another decision of this court in Minerva Mills, Ltd. v. Presiding Officer, Labour Court [1967 - II L.L.J. 134]. There certain workmen made an application under S. 33C(2) of the Industrial Disputes Act, complaining that the management had retired them even before they attained the age of 60 years claimed retrenchment compensation. The management contended that those workmen had attained the age of retirement and had been retired properly. The management approached this Court for issue of a writ of prohibition restraining the labour court from proceeding with the application under S. 33C(2). This Court held that the labour court could not proceed with the investigation which the workmen wanted it to make and issued a write of prohibition. The facts of that case are entirely different from those of the present case. We do not see how that decision helps Sri Joshi.
9. It was next contended by Sri Joshi that the arrears of pay and dearness allowance do not amount to benefit within the meaning of S. 33C(2) of the Industrial Disputes Act, and hence the labour court had no jurisdiction to adjudicate on the claim to such arrears. In Punjab National Bank, Ltd. v. K. L. Kharbanda [1962 - I L.L.J. 234], the Supreme Court held that the word 'benefit' used in S. 33C(2) is not confined merely to non-monetary benefit which could be converted in terms of money but is concerned with all kinds of benefits, whether monetary or non-monetary, to which workman may be entitled. Moreover, in S. 33C(2) as it stands after being substituted for the original section, by S. 19 of the Industrial Disputes (Amendment) Act, 1964 (which came into force on 8 December, 1964), the words 'any money or' have been added before the words 'any benefit'. Hence apart from any benefit which is capable of being computed in terms to money, money itself can be claimed by a workman in an application to the labour court under S. 33C(2) if he is entitled to receive it from the employer.
10. Lastly it was contended by Sri Joshi that respondent 1 could not claim anything towards salary and allowance as he did not continue in the service of the petitioner municipal council. By reason of the declaration by the civil Court the dismissal of respondent was null and void, the contract of employment between him and the municipal council must be deemed to have been subsisting all along. If respondent 1 did not render any service, it was because he was not permitted by the petitioner to do any work. As observed by the Calcutta High Court in Union of India v. Arjun Singh [1961 - II L.L.J. 454 at 456] it would, indeed, be strange if the employer, merely by breaking or refusing to respect the contract between him and the employee, can deprive the latter of his rights and remedies. Respondent 1 is entitled to the salary and allowance claimed by him even if he was not allowed to work on the ground of the dismissal which has been held to be void.
11. Thus all the contentions of the petitioner fail and we dismiss the petition but without costs.