1. 29 Petitioners and 9 others who ware all workers of the first respondent Pandavapura Sahakara Sakkare Karkhane were retrenched by the first respondent without full compliance with all the terms of Section 25-F of the Indus-trial Disputes Act. 1947. On their approaching the Labour Court, that Court made an award on March 22, 19G5 setting aside the orders of retrenchment and directing the management of the Kharkhane to reinstate all of them in their former posts and pay them back wages from the date of retrenchment to the date of reinstatement.
2. The employer obeyed the award, reinstated them and paid their back wages. Further dispute was raised by the employee that the award had not been fully implemented, that reinstatement with back wages pursuant to the award amounted to saying that all the employees had throughout remained in the service of the employer as if there had never been any retrenchment, that therefore all consequence flowing from the said legal position should be made available to them. On that footing they claimed payment of bonus in respect of the period of enforced non-employment as well as what they called wages for earned leave.
3. The said matter was once again placed before the Labour Court by the present 29 petitioners by means of an application under Section 33-C(2) of the Industrial Disputes Act. The Labour Court upheld their first contention regarding bonus. In doing so, it stated the legal position to be that the employees in question should be deemed to have been in service throughout the period of enforced non-employment. The bonus so calculaled, we are told, has been paid to the petitioners.
4. In regard to the claim for wages for earned leave, the court rejected the case of the petitioners. While pointing out that legal position was as stated above, it considered the facts of this case to he 'rather peculiar' in regard to the matter of leave and thought that it was equally possible to presume or proceed upon the assumption that the petitioners were actually on duly for a period of 11 months and on leave with wages for one month, and no further payment was called for, because for the entire period they had been paid hack wages.
5. The contention pressed on behalf of the petitioners by their learned counsel Mr. Krishnaiah is that the modified proposition stated by the Labour Court with reference to their claim regarding leave is not only inconsistent with the general propositions made while dealing with bonus, but quite illogical and opposed to the provisions of not only the Industrial Disputes Act but also Section 79 of the Factories Act.
6. Section 79 of the Factories Act is the section which entitles workmen 1o certain number of days of leave with wages in respect of or in relation to period during which they had been working in the factory. According to Sub-section (1) every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, a specified number of days leave with wages. Subsection (3) provides that if a worker is discharged or dismissed from service during the course of the year, he would be entitled to leave with wages as laid down in sub-section (1) even if he has not worked for the entire period entitling him to earned leave.
Sub-section (11) provides that if the employment of a worker who is entitled to leave is terminated before he has taken the entire leave to which he was entitled to or if having applied for leave, the same is refused and the worker quits the employment before he takes leave, the employer is bound to pay him an amount calculated under Section 80 of the Act in respect of the leave not taken.
7. The general effect of the scheme for leave under Section 79 of the Factories Act, therefore, appears to be that if a worker has put in a certain period of work, he becomes entitled to be granted a specified number of days of leave with wages and that he should not be deprived of the said right earned by him by any wrongful act on the part of the employer, which has the effect of preventing him from enjoying the benefit of the leave earned by him and that if the position is such that he cannot be given the benefit in its original form, he should be compensated therefor by payment in lieu of it.
8. Now in this case by virtue of the previous award it has to be held that the entire period of non-employment of the petitioners from the date of unlawful termination till the date of reinstatement, was the result of wrongful act on the part of the employer.
The normal principle of law is that a person should not he permitted to take advantage of his own wrongful act, but that the person who is prejudicially affected by the said wrongful act should be compensated for or protected against the consequences of such wrong. The way of dealing with the situation is what the Labour Court has done while dealing with bonus, viz., to regard the petitioners Io have been in service throughout as if the retrenchment had not taken place at all and to give them all the benefits flowing therefrom; two of the benefits -- wages and bonus -- have already been paid. The further benefit is that they have earned leave for the said period. More accurately the position would be that the period of enforced non-employment must be equated to period spent on duty, and. therefore the basis of calculating leave earned by and available to the petitioners.
9. To take the next step and ask for payment in cash described as 'wages for leave' the petitioners must prove the further position, namely, that having asked for leave to which they were entitled the employer has refused them leave. There is no such case. The claim itself was for wages for earned leave and not for leave which was subsequently refused.
10. Hence, in the circumstances of the case, the proper thing to do would he to direct the first respondent employer to calculate by applying the provisions of Section 79 of the Factories Act, leave earned by each one of the petitioners in respect of the period of enforced non-employment i. e., from the date of retrenchment till the date of reinstatement and credit the same to the leave account of each one of them. We make a direction in those terms.
11. No costs.
12. Petition allowed.