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Md. Abdul Waheed Vs. K.S.R.T.C. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Civil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 4299 of 1982
Judge
Reported inILR1985KAR3502
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; ;Payment of Wages Act, 1936 - Sections 15
AppellantMd. Abdul Waheed
RespondentK.S.R.T.C.
Appellant AdvocateS.G. Bagavan, Adv.
Respondent AdvocateB.M. Chandrasekharaiah, Adv.
DispositionRevision allowed
Excerpt:
.....choice of remedy with petitioner.;(i) the dismissed employee gets a cause of action to ask for the wages withheld only on the date when his dismissal was finally held to be null and void.;(ii) the application of the provisions of the payment of wages act is not excluded by the provisions of the industrial disputes act. when two remedies viz., one under the industrial disputes act and another under the payment of wages act, are available to the petitioner, it is for the petitioner to choose as to which remedy he should seek. therefore his application under section 15 of the payment of wages act cannot be considered to be incompetent. - industrial disputes act (14 of 1947) section 11-a: [p.d. dinakaran c.j. & k.l. manjunath, j] proportionality of punishment dismissal of conductor who was..........manager with an appeal. the general manager confirmed the order ofdismissal and dismissed the appeal filed before him. the petitioner approached the next appellate authority i.e. the vice chairman. the vice chairman of the corporation partly allowed the appeal on 1-9-1973 and ordered that thepetitioner be taken as a badli conductor with effect from 3-10-1973. thereafter on 1-3-1975 the petitioner filed a suit in o.s. no. 103 of 1975 in the court of the munsiff, gulbarga, seeking a declaration that his dismissal which was effected on 1-5-1972 by the divisional controller, was illegal and null and void. the said suit was decreed on 30-6-1978. the corporation filed an appeal in r.a. no. 78 of 1978 in the court of the civil judge, gulbarga, challenging the decree passed by the munsiff......
Judgment:
ORDER

Kulkarni, J.

1. This is a revision by the petitioner against the order dated 8-9-1982 passed by the District Judge, Gulbarga, is Misc. Appeal No. 62 of 1980 reversing the order dated 24-10-1980 passed by the Chief Judicial Magistrate, Gulbarga, in Criminal Miscellaneous No. 1/4/1980 directing the Karnataka State Road Transport Corporation to pay to the petitioner wages for the period from 1-5-1972 to 2-10-1973.

2. The petitioner was working as a Conductor in the Karnataka State Road Transport Corporation(herein after referred to as 'the Corporation'. He was dismissed from service on 1-5-1972 by the Divisional Controller, Gulbarga. The petitioner approached the General Manager with an appeal. The General Manager confirmed the order ofdismissal and dismissed the appeal filed before him. The petitioner approached the next Appellate Authority i.e. the Vice Chairman. The Vice Chairman of the Corporation partly allowed the appeal on 1-9-1973 and ordered that thepetitioner be taken as a Badli Conductor with effect from 3-10-1973. Thereafter on 1-3-1975 the petitioner filed a suit in O.S. No. 103 of 1975 in the Court of the Munsiff, Gulbarga, seeking a declaration that his dismissal which was effected on 1-5-1972 by the Divisional Controller, was illegal and null and void. The said suit was decreed on 30-6-1978. The Corporation filed an appeal in R.A. No. 78 of 1978 in the Court of the Civil Judge, Gulbarga, challenging the decree passed by the Munsiff. The said appeal filed by theCorporation was dismissed on 13-6-1979.

3. Thereafter on 7-1-1980 the petitioner filed an application under Section 15 of the Payment of Wages Act claiming Rs. 37,630-68 as his wages due from the date of dismissal i.e. 1-5-1972 till the date of the application. The Chief Judicial Magistrate who is the authority under the Payment of Wages Act allowed the Petition directing the payment of the wages for the period from 1-5-1972 i.e. date of dismissal to 2-10-1973, because he was taken back as a BadliConductor with effect from 3-10 1973.

4. The Corporation filed an appeal in Miscellaneous Appeal No. 62 of 1980 before the District Judge, Gulbarga, challenging the order made by the Chief Judicial Magistrate. The petitioner filed cross-objections claiming wages for the period disallowed by the authority under the Payment of Wages Act. The District Judge allowed the appeal filed by the Corporation and dismissed the cross-objections filed by the petitioner. The District Judge dismissed the appeal mostly on the ground that the Petition had been filed beyond the period of limitation prescribed by Section 15 and that there was no order of reinstatement passed by the Civil Court and therefore the petitioner was not entitled to claim wages under the provisions of the Payment of Wages Act.

5. The Learned Counsel Shri Cbandrasekharaiah raised two points before me viz., (1) whether the Petition filed by the petitioner under the Payment of Wages Act was in time ; and (2) whether looking to the nature of the decree passed by the Civil Court whether the petitioner was entitled to get wages from the date of dismissal till he was appointed as Badli Conductor. He relied on Manager, General Motor Owner's Association, Washim and Another -v.- Mahamood khan Vasir Khan and another : AIR1968Bom395 . In para 15 on page 399, the Bombay High Court has held as :-

'(15). Section 15 of the Payment of Wages Act gives jurisdiction to the Authority under the Payment of Wages Act to hear and decide claims arising out of deductions from wages or delay in payment of wages of persons employed. 'Wages' is defined in Section 2(vi) to mean 'all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would' if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes .....' We are not concerned here with the clauses of inclusion. It is clear from the Section that in order that an amount should be granted by the Authority under the Payment of Wages Act, it must first of all fall within the definition of 'wages' and that means that there must be an employer and it must be an amount payable to a person employed in respect of his employment or of work done in such employment. Now, when as in the present case, the employee is dismissed and the dismissal is merely declared to be an illegal change, the utmost that that order can imply is that the dismissal was wrong. It cannot imply that the employee is once again in the service of his employer.'

The Bombay High Court proceeded to state further in para 16 as : -

'(16). So far as the jurisdiction of the Payment of Wages Authority is concerned, the mere declaration that the dismissal is wrongful cannot give its jurisdiction to decree a claim for wages for that period. There must be an order of reinstatement and admittedly there was no order of reinstatement passed in the present case. To the extent, therefore, that the decision in : (1962)IILLJ323Bom holds that an order passed under Section 41simplicity would have jurisdiction to the Payment of Wages Authority to decree a claim for wages of that employee, that decision must be held to be incorrect. Without an order of reinstatement, the Payment of Wages Authority would have no jurisdiction to order the payment of wages.'

It proceeds on the footing that the Civil Court had the jurisdiction to order reinstatement. In a catena of decisions it has been held that what the Civil Court can do is that at the most it can declare that the order of dismissal is bad at all and the Civil Court had no jurisdiction to order rein-statement at all. Once the order of dismissal is held to be null and void by the Civil Court, the law leaves it to the decision of the employer concerned to give effect to that decision and to take him back to duty. That would be the effect of declaring the order to be null and void. That aspect of the matter does not appear to have been considered in the said Bombay case.

6.Then the Learned Counsel Shri Chandrasekharaiah relied on Sitaram Kasbiram Konda -v.- Pigment Cakes and Chemicals Manufacturing Co. : (1979)IILLJ444SC . In the said Supreme Court decision, the petitioner had asked for the following reliefs :

(a) That it may be declared that the defendant has removed the plaintiff from service illegally and without any reason.

(b) That it may be declared that the defendant failed and neglected to re-employ the plaintiff although thedefendant restarted the factory.

(c) That the defendant be ordered to reinstate the plaintiff to his former job with due benefits and advantages.

(d) In the alternative the defendant may be ordered to pay to the plaintiff such compensation as the Hon'ble Court may deem fit.

(e) For costs of the suit.

(f) For such further and other reliefs as this Hon'ble Court may deem fit.'

As can be seen from the said Supreme Court judgment it appears that the Trial Court held that the dispute raised by the appellant was in the nature of an industrial dispute and the Civil Court had no jurisdiction to try it. The appellant took the matter in appeal before the first Appellate Court. It allowed the appeal and held that the dispute raised was of a civil nature and the case was cognizable by a Civil Court. The Respondent filed the second appeal in the High Court and the High Court has agreed with the view of the Trial Court. It has said that the appellant had not claimed damages by pleading wrongful dismissal and breach of the contract of his service. The facts pleaded by him all converged to show that the dispute was an industrial dispute cognizable only by an industrial Court and not by a Civil Court. The appellant has presented his appeal in the Supreme Court by a certificate granted by the High Court. The Supreme Court held as: -

'The Court is obliged to Mr. K. Jayaram for assisting it as Amicus Curiae in this case. After having appreciated the entire facts and the circumstances of the ease, we are of the opinion that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a Civil Court. The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and therefore they cannot be granted. There are a number of decisions of this Court to that effect to wit. (1) Dr. S. Dutt -v.- University of Delhi (1959 SCR 1236); (2) S.R. Tewari -v.- District Board, Agra : (1964)ILLJ1SC and Indian Airlines Corporation -v.- Sukhdeo Rai. (1971 Suppl. S.C.R. 510). Reference may also be made in this connection to the decision of this Court in Premier Automobiles Ltd. -v.- Kamlakar Shantaram : (1975)IILLJ445SC .'

(underlining is mine)

The sum and substance of this view of the Supreme Court is that the Civil Court has no jurisdiction to order rein-statement. The Supreme Court has made it further clear in para 4 by stating as;--

'But then in the alternative, the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he had made out a case, whether it was right on fact or not, that is a different question, that he was wrong-fully dismissed from service. This relief could be granted by the Civil Court, if It found that the plaintiffs case was true.'

So this only means that the Civil Court has got still the jurisdiction to declare that the order of dismissal passed is invalid, illegal and null and void. Therefore, under these circumstances, the Supreme Court held that the Civil Court had got the jurisdiction to try the suit in question.

7. Shri Chandrasekharaiah. Learned Counsel for the Corporation, relied on Premier Automobiles -v.- K. S. Wadke : (1975)IILLJ445SC . The Supreme Court held in the said case that if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. Further it held that if the right which is sought to be enforced is a right created under the Act as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be. It held that if the case fell within these two categories, it is only the Court created under the Industrial Disputes Act that has got the jurisdic-tion. The Supreme Court made it clear that if the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. Therefore if the reliefs under the Industrial Disputes Act arise out of a right or liability under the general common law and not under the Act, though it might be an industrial dispute, the Civil Court would have the jurisdic-tion. As already stated above, it is clear from the said Supreme Court decision that the Civil Court even in such cases has got the jurisdiction to pass a decree declaring that the dismissal of an employee as null and void. Therefore the said decision relied on by Shri Chandrasekharaiah does not help him.

8. Shri Bhagavan, Learned Counsel for the Conductor, relied on Divisional Superintendent, Northern Railway,. In para 4 the Supreme Court held as :

'It is necessary at this stage to mention a few facts which gave rise to the respondent's claim. The respondent was dismissed on December 23, 1947, and he challenged the validity and the legality of his dismissal by a Civil suit. His suit was decreed on March 31, 1951, as a result of which it was declared that his dismissal was illegal. On appeal by the appellant, the said decree was set aside and the respondent's suit was dismissed on August 14, 1952. The respondent then went in second appeal to the Allahabad High Court and he succeeded, with the result that the decree passed by the Trial Court in his favour was restored on January 9, 1962. Against this decree, the appellant preferred a Special Appeal before a Division Bench of the said High Court. This appeal was ultimatelydismissed on September 16, 1964, and that has finally closed the dispute between the parties as to the invalidity of the respondent's dismissal.'

It is held in para 8 as :

'............but in the present case, when the Appellate Court dismissed the respondent's suit on August 14,1952, it was not open to the respondent to apply under Section 15(2), because the Appellate Court had held that his dismissal was justified and valid. It was only when the second appeal was allowed on January 9, 1962, that the respondent had a cause of action.'

Therefore this decision makes it clear that the dismissed employee gets a cause of action to ask for the wages withheld only on the date when his dismissal was finally held to be null and void. Therefore, in this case the Corporation's appeal R.A. No. 78 of 1978 was dismissed by the Civil Judge on 13 6 1979. Therefore the cause of action arose for the first time on 13-6-1979, only. Therefore the period of4. (1967) Vol. 14. F & LR, 204.limitation prescribed under Section 15 will have to be counted from this date. The present petition has been filed on 7-1-1980. The period of limitation is now enlarged to 12 months. Therefore the petition filed by the petitioner under Section 15 is in time.

9. Further it can be seen that the application of the provisions of the Payment of Wages Act is not excluded by the provisions of the Industrial Disputes Act. When two remedies viz., one under the Industrial Disputes Act and another under the Payment of Wages Act, are available to the petitioner, it is for the petitioner to choose as to which remedy he should seek. Therefore his application under Section 15 of the Payment of Wages Act cannot be considered to beincompetent. The Supreme Court itself stated in Divisional Superintendent, Northern Railway, Allahabad -v.- Pushkar Datt Sharma (1967) Vol. 14 F & LR, 204 that a Petition under Section 15 of the Payment of Wages Act is maintainable and the necessary relief has been given to the party. The said decision is on all fours with the facts of the present case.

10. Therefore, under these circumstances, the order passed by the Lower Appellate Court dismissing the application of the revision petitioner under the Payment of Wages Act is set aside. The revision is allowed. The order passed by the Chief Judicial Magistrate is restored to file. The order passed by the Chief Judicial Magistrate dismissing the cross objections needs no interference. The Chief Judicial Magistrate should calculate the amount for the period from 1-5-1972 i.e. the date of dismissal till 2-10-1973 as the revision petitioner was taken as a Badli Conductor with effect from 3-10-1973. After determination of this amount theCorporation should pay the amount so calculated by the Chief Judicial Magistrate to the revision petitioner. If it is in deposit, it be given to the revision petitioner.


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