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Andhra Scientific Company Vs. Labour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1969)ILLJ16AP
AppellantAndhra Scientific Company
RespondentLabour Court and anr.
Excerpt:
.....some cases, have to be preceded by an enquiry into the existence of that right and such an enquiry must be held to be incidental to the main determination which has been assigned to the labour court by sub-section (2)..11. the labour court also referred to an earlier decision of the federal court in western india automobile associati 3; further, the labour court has exceeded its jurisdiction in granting bonus as bonus is clearly outside the terms of the award, as also by allowing encashment of leave. so this ground of attack must fail. now, apart from the well-accepted position that bonus is in the nature of an earned income depending upon mutual effort and exertion by the employer and the employee, and in the present case inasmuch as during the period that the employee was out of his..........notification, ex. w. 3; further, the labour court has exceeded its jurisdiction in granting bonus as bonus is clearly outside the terms of the award, as also by allowing encashment of leave.16. it is now firmly established that this court can issue a writ of certiorari to quash a determination by a court or tribunal below only where it is shown that such determination is without jurisdiction or in excess of jurisdiction, or is vitiated by an error of law apparent on the face of the record, or some rule of natural justice has been violated. in the present case, it cannot be contended, and it was not contended before me, that the labour court had no power or jurisdiction to interpret the award, acting under section 33c(2) of the act and implement its terms. once that is conceded,.....
Judgment:

Basi Reddi, J.

1. This is an application under Article 226 of the Constitution filed by the management of the Andhra Scientific Company,Masulipatani (hereinafter referred to as the employers), seeking an appropriate writ, particularly one in the nature of certiorari to quash the order dated 11 October 1963, passed by the presiding officer, labour court, Guntur, Andhra Pradesh, in Miscellaneous Petition No. 30 of 1963. By that order the labour court allowed an application filed by respondent 2 herein, M. Narayanaswami (hereinafter referred to as the employee) represented by the president of the Andhra Scientific Company Employees' Union, Masulipatam, under Section 33C(2) of the Industrial Disputes Act, 1947. The material facts may be briefly stated. The employee was employed by the employers as a stenographer at the Madras branch in the year 1944. After he had put in continuous service of fifteen years, he wa3 discharged and his services were terminated by the employers in January 1959, on the ground that he had absented himself from duty without obtaining prior permission. The employee raised an industrial dispute which was espoused bay the Andhra Scientific Company Employees' Union, Masulipatam. That dispute was taken on file by the labour court, Andhra Pradesh at Guntur, as Industrial Dispute No. 3 of 1960, An award was passed by the labour court on 30 March 1960. The operative portion of the award is as follows:

In the foregoing it has been concluded that the petitioner was discharged and in an unjustifiable manner by his employers, the respondents. Normal relief to be awarded by this Court in such cases is reinstatement, which can be with or without back-wages. It is, however, clear from the records that the petitioner has behaved in a somewhat irresponsible fashion and should be penalized to a certain extent. I accordingly think it would serve the interests of justice and industrial peace to direct the payment of the back-wages to him from 1 to 15 January 1959 and from 1 January 1960, till the date of his reinstatement. I accordingly direct the employers of the Andhra Scientific Company to reinstate the workman, M. Narayanaswami, on his previous post of a typist with continuity of service but to pay him such wages from 1 to 15 January 1959, and 1 January 1960 till the date of his reinstatement.

2. It will thus be seen that by this award the employee was assured of continuity of service but at the same time was deprived of a portion of his wages from the date of the termination of his services up to the date of his reinstatement, because the labour court found that he should in some measure be penalized for his somewhat irresponsible behaviour towards his employers. Thereafter, the employers filed a writ petition in the High Court against that award (Writ Petition No. 324 of 1960) but that writ petition was dismissed by this Court by an order dated 14 June 1962.

3. After dismissal of this writ petition, the employee filed the present application before the labour court under Section 33C(2) of the industrial Disputes Act alleging that the employers had failed to give full and proper effect to the award, in that he had been denied most of the benefits which he was entitled to under the award. In his application, the employee prayed that the labour court should compute the benefits as declared by the award and for payment of a sum of Rs. 3,101.81 representing arrears of salary, bonus and leave-salary. In requesting the labour court to compute the benefits, the employee's plea was that the said computation should be made on the basis of the scale of salary that would have been payable to him had he continued in service.

4. The employers contended before the labour court that in pursuance of the award, the workman had been reinstated and that he had been paid the salary to which he was entitled at the rate at which he was drawing the salary on the date of the termination of his services. The employers disputed the claim of the workman that he was entitled to the scale of salary as claimed by him because, according to them, the fitment into the said scale was a discretion vested in the management depending on circumstances like qualifications and efficiency, etc. The employers also contended that the labour court had no jurisdiction to go into the question whether the workman was entitled to the scale of pay as claimed by him, as, such an enquiry was beyond the scope of Section 33C(2) of the Industrial Disputes Act.

5. The labour court took note of the fact that during the pendency of the industrial dispute, the management had issued a notification, Ex. W. 3, dated 22 July 1959, concerning its employees regarding classification with scales of pay. According to that classification, stenographers were given the scale of Rs. 100-10-200-E.B.-10-250 as per item 10 of that notification. It was also stated in the said notification1 that 'the existing staff are classified and fitted into the various scales of pay having due regard for qualifications, efficiency and service.' After the dismissal of the writ petition, the employers issued an order to the employee which reads as follows:

M. Narayanaswami is to join our Hyderabad branch (opposite St, George's Grammar School, Abid Road,Hyderabad-Deccan) as stenotypist. He is given joining time up to 25 June 1962, to report himself to the manager of the Hyderabad branch.

6. It is pointed out by the labour court that this order of reinstatement has not said anything about the salary or the scale of pay to which the employee was entitled. Thereafter, the employee joined the Hyderabad branch and, after some time, resigned his job with effect from 11 August 1962.

7. The labour court found that there is nothing in the material placed before it to show that the management had found the employee unfit to be fitted into the scale as provided for in the notification issued by them.

8. The employee claimed, firstly, the difference in salary as per the scale provided for in the notification; secondly, bonus to which he would be entitled as per the above scale ; and thirdly, leave-salary.

9. After considering the rival contentions, the labour court found that it had jurisdiction to go into the question as to what salary the employee was entitled to on the date of the reinstatement and also to what salary he would have been entitled had he continued in service and had there been no interruption in service. The labour court took note of the fact that the award had clearly indicated that there should be continuity in the service of the employee. The labour court observed:

The effect of this order is that the period during which the petitioner was out of service has to be ignored and it should be deemed that the petitioner continued to be in service in spite of the said interruption. Therefore I am unable to agree with the contention of the respondent-management that the petitioner should raise another industrial dispute on the question whether he is entitled to the scales as provided for in Ex. W. 3 or not. In my opinion, when this court is competent to compute the benefits accruing under award, Ex. W. 2, it is also competent to enquire into the question as to what salary the petitioner would have been entitled. This is a question ancillary to the benefits which have to be computed by this court.

The labour court then referred to a decision of the Supreme Court in Punjab National Bank, Ltd. v. Kharbanda(K.L.) 1962-I L.L.J. 234 where it is observed (at p. 239):.we are of opinion that the word ' benefit' used in Sub-section (2) of Section 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 a workman may be entitled....

10. The labour court then proceeded to refer to another decision of the Supreme Court in Central Bank of India, Ltd., and Ors. v. Rajagopalan (P.S.) and Ors. 1963-II L.L.J. 89, where their lordships made the following observation (at p. 95):.Before proceeding to compute the benefit in terms of money, the labour court inevitably has to deal with the question as to whether the workman has a right to receive that benefit ...but if the said right is disputed, the labour court must deal with that question and decide whether the workman has theriglit to receive the benefit as alleged by him and it is only if the labour court answers this point in favour of the workman that the next question of making- the necessary computation can arise ....The claim under Section 330(2) clearly postulates that the determination of the question about computing' the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of that right and such an enquiry must be held to be incidental to the main determination which has been assigned to the labour court by Sub-section (2)....

11. The labour court also referred to an earlier decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay, and Ors. 1949 L.L.J. 245, wherein it was laid down that the computation of a benefit under Section 33C(2) is comparable to restitution. Their lordships observed in that regard as follows (at p. 256):.Restitution can be granted in integrum in certain cases. All that is required is that the ex-employee should be restored to his previous position so far as capacity, status and emoluments are concerned....

12. Bearing these principles in mind, the labour court proceeded to give the reliefs prayed for by the employee and stated its conclusions thus:

In view of the directions given in the award, Ex. W. 2, the petitioner is entitled not only to what he should get but also to what he would have got, but for the severance in service from January 1959 to the date of his reinstatement. He would have been entitled to the scale of pay as provided in Ex. W. 3, but for this interruption in his service. Hence, I find that he is entitled to the said scale as provided for in Ex. W. 3. Consequently, he will be entitled to the bonus as claimed on the said scale. It is not the case of the management that even if the said scale is made applicable, the petitioner will not be entitled to the amount claimed by him. They do not dispute the correctness of the statement of accounts as made in the petition. They only contend that he is not entitled to get any salary in lieu of the leave which has not been availed of by him. When the petitioner is entitled to so much privilege leave and if he had not availed of the same, I see no reason as to why it should not be converted into cash. Regarding the bonus, from 1959 to 1961, the management has not produced any receipts passed by the petitioner to show that it has been paid to him. In Ex. W. 10, they have admitted that the bonus for 1961 to 1932 and 1962 to 1963 has yet to be declared. The petitioner admits that the bonus for 1957 to 1958 was paid to him and the same has been adjusted in the claim.

13. For all these reasons, I find that the petitioner is entitled to an amount of Rs. 3,101-81 as claimed by him. Hence, I direct the respondent to pay the petitioner a sum of Rs. 3,101.81.'

14. It will thus be observed that the labour court has held that the employee is entitled to the following benefits within the meaning of Section 33C(2) of the Industrial Disputes Act:

(1) Scale of pay to which he would have been entitled but for the interruption in service which meant that he would be entitled to the benefit of the classification of service as per the notification, Ex. W. 3.

(2) The employee would be entitled to the payment of bonus as claimed on that scale.

(3) In lieu of the leave to which he would have been entitled during the period he was kept out of Job, he was entitled to cash payment by converting1 leave into cash.

15. In support of this writ petition the learned advocate for the employers contended that the labour court, exercising its power under Section 33C(2) of the Act, acts as an executing: court, but while in executing the award the labour court has the undoubted power to construe and interpret the award, in the instant case, it has exceeded its power in interpreting the award, Ex. W. 2, in so far as it has allowed the employee the benefit of the grade under the classification notification, Ex. W. 3; further, the labour court has exceeded its jurisdiction in granting bonus as bonus is clearly outside the terms of the award, as also by allowing encashment of leave.

16. It is now firmly established that this Court can issue a writ of certiorari to quash a determination by a court or tribunal below only where it is shown that such determination is without jurisdiction or in excess of jurisdiction, or is vitiated by an error of law apparent on the face of the record, or some rule of natural justice has been violated. In the present case, it cannot be contended, and it was not contended before me, that the labour court had no power or jurisdiction to interpret the award, acting under Section 33C(2) of the Act and implement its terms. Once that is conceded, all that this Court is concerned with in a proceeding under Article 226 of the Constitution is not whether the tribunal is right or wrong in interpreting the award, as though this Court is sitting in appeal over that decision, but whether there is an error of law apparent on the face of the record in the said decision which would warrant its being quashed by certiorari. Applying that test to the facts of the present case, I am unable to agree with the contention on behalf of the employers that in granting the scale of pay as per classification notification, Ex. W. 3, the tribunal below has fallen into a patent error of law. It must be remembered that the award sought to preserve the continuity of service, and continuity of service cannot be assured unless a person affected gets all the benefits which he would have got but for the interruption in service. That is the view taken by the labour court and I am unable to say that there is any patent error in that. So this ground of attack must fail.

17. As regards the grant of bonus, however, it seems to me that the tribunal below has fallen into a patent error in granting bonus to the employee for the relevant period. What the award granted to the employee was ' back-wages' from 1 to 15 January 1959 and from 1 January 1930 till the date of reinstatement. Now, apart from the well-accepted position that bonus is in the nature of an earned income depending upon mutual effort and exertion by the employer and the employee, and in the present case inasmuch as during the period that the employee was out of his job, he did not put in any effort and so was not entitled to bonus, the very definition of ' wages' excludes the concept of bonus. The term ' wages ' is defined by Section 2(rr) thus:

(rr) 'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a, workman in respect of his employment or of work done in such employment, and includes-

* * *but does not include-

(a) any bonus;

(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;

(c) any gratuity payable on the termination of his service.

So that, the statute itself says in express terms that wages do not include any bonus. The labour court was, therefore, plainly in error in granting bonus to the employee.

18. Similarly, in my view, the tribunal below has fallen into an obvious error in holding that the leave to which the employee was entitled, could be converted into cash and on that footing, he would be entitled to a sum of Rs. 267. Except for these two reliefs which, in my opinion, fall under the category of errors of law apparent on the face of the record, the other reliefs granted by the labour court are not open to challenge under Article 226 of the Constitution.

19.This writ petition is, therefore, allowed in part to the extent indicated above, but, in the circumstances, there will be no order as to costs.


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