V.P. Gopalan Nambiyar, C.J.
1. The two writ petitions have been heard along with the writ appeal, as the question involved in them is the same as that raised in the writ appeal. Counsel who appeared for the appellant in the writ appeal and for the writ petitioners in the two writ petitions treated O.P. No. 1389 of 1976 as the main and representative writ petition with respect to which the facts may be detailed. We shall accordingly proceed to state the facts in O.P.No. 1389 of 1976.
O. P. No. 1389 of 1976
2. This writ petition prays for a writ of certiorari quashing Ext. P 8 order of the Labour Court, Quilon granting back-wages to the petitioners from the date of their termination to the date of their reinstatement on an application under Section 33C(2) of the Industrial Disputes Act. The respondents had moved a prior writ petition--O.P. No. 945 of 1970 in this Court and this Court had directed reinstatement of the respondents. The decision is reported in 1972-II L.L.J. 568. A copy of the writ petition itself is produced as Ext. P7. Counsel for the petitioner in this writ petition has stressed the prayers in Ext. P7. The prayers are:
(a) declare that the termination of the petitioners is illegal, inoperative and void;
(b) issue a writ of mandamus or other appropriate direction compelling the respondents to reinstate the petitioners in service;
(c) issue such other writs, orders or directions as are deemed just and proper on the facts and circumstances of the case.
He has further pointed out that the decision in 1972-II L.L.J. 568, had merely granted the relief in the following terms:
14. In the result, we find that the termination of the services of the petitioners has not been validly made. We, therefore, issue a direction to reinstate the petitioners in service. Parties are directed to suffer costs.
It was stressed that nothing was said in the judgment regarding backwages due to the petitioners.
3. Counsel referred to the decision of our learned brother Poti, J. in Nenoo Asan Madhavan v. State of Kerala and Ors. (1969) K.L.T. 531. In that case, the learned Judge decided that a suit challenging the order of retrencehment or termination which fell within the scope of an industrial dispute, would not lie in a civil Court. It was further ruled that if there was a contravention of Section 25F of the Industrial Disputes Act, there will be a retrenchment; but the retrenchment would be unlawful and the relief that an employee so retrenched can ask for is only to be reinstated in service, if that is permissible in law. The decision relied on by counsel is no authority for the proposition that if the relief of reinstatement has been granted with reference to an order of termination, a claim for back-wages cannot lie under Section 33C(2) of the Act. Counsel then relied on the decision of the Supreme Court in The State Bank of India v. Shri N. Sundara Money : (1976)ILLJ478SC . The State Bank of India had retrenched the respondent-employee in contravention of the provisions of Section 25F of the Act. In agreement with the High Court; the Supreme Court came to the conclusion that the termination was wrong and offended the statutory provision referred to Having come to that conclusion, it dealt with the matter as follows:
10. What follows: Had the State Bank known the law and acted on it, half-a-month's pay would have concluded the story, But that did not happen. And now, some years have passed and the Bank has to pay, for no service rendered. Even so, hard cases cannot make bad law. Reinstatement is the necessary relief that follows. At what point? In the particular facts and circumstances of this case, the respondent shall be put back where he left-off, but his new salary will be what he would drew were he to be appointed in the same post today de novo. As for benefits, if any, flowing from service he will be ranked below all permanent employees in that cadre and will be deemed to be a temporary hand upto now. He will not be allowed to claim any advantages in the matter of seniority or other priority inter se among termporary employees on the ground that his retrenchment is being declared invalid by this Court. Not what we are laying down any general proposition of law, but make this direction in the special circumstances of the case. As for the respondent's emoluments, he will have to pursue other remedies, if any.
Counsel for the petitioner stressed the fact that the Supreme Court had directed reinstatement only at the point where the employee left off but had catiously provided that his new salary will be what he would drew had he been appointed in the same post on the date of the judgment, de novo. But at the same time, the Supreme Court had taken care to point out that as for the emoluments, the employee will have to pursue other remedy, if any. The decision is, therefore, not helpful to the petitioner to contend that the remedy for back-wages cannot be pursued under Section 33C(2) of the Industrial Disputes Act. Reliance was placed on certain observations in Central Bank of India. v. Rajagopakm : (1963)IILLJ89SC . That decision considered the scope of Section 33C(2) of the Act. After having exhaustively surveyed the scope and the amplitude of the Section, the Court observed:
19 ...We would, however, like to indicate some of the claims which would not fall under Section 33C(2), because they formed the subject-matter of the appeals which have been grouped together for our decision along with appeals with which we are dealing at present. 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 Section 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 a pre-existing contract, cannot be made under Section 33C(2). If a settlement has been duly reached between the employer and his employees and it falls under Section 18(2) or (3) of the Act and is governed by Section 19(2), it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative, no claim can be made under Section 33C(2) inconsistent with the said settlement. If the settlement is intended to be terminated, proper steps may have to be taken in that behalf and a dispute that may arise thereafter may be dealt with according to the other procedure prescribed by the Act. Thus, our conclusion is that the scope of Section 33C(2) is wider than Section 33C(1) and cannot be wholly assimilated with it, though for obvious reasons, we do not propose to decide or indicate what additional cases would fall in Section 33C(2) which may not fall under Section 33C(1). In this connection, we may incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd. : (1962)ILLJ234SC that Section 33C is a provision in the nature of execution should not be interpreted to mean that the scope of Section 33C(2) is exactly the same as Section 33C(1) at p. 238 of L.L.J. at pp. 489-490 of A.I.R.
We do not think the passage is capable of being understood, as counsel for the petitioner would contend before us, that a claim for backwages cannot be accommodated under Section 33C(2) of the Industrial Disputes Act. The Court observed: that the demotion or dismissal may prompt or inspire an industrial dispute but so long as the demotion or the dismissal stood no claim on the ground that the demotion or dismissal is unlawful and, therefore, the employee is entitled to pre-existing benefits can lie under Section 33C(2). The observations are unhelpful to establish the proposition that a claim for back-wages cannot He under Section 33C(2) of the Act. Nor is the decision of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. The Workmen and Anr. : 1SCR153 , of any further assistance. That decision only followed the principle of the Supreme Court decision in : (1963)IILLJ89SC .
4. On the facts placed, we are not satisfied that a claim for backwages does not lie and cannot be accommodated under Section 33C(2) of the Act. Nor are we impressed by the arguments of counsel for the petitioner that in Ext. P7 O.P. filed on the earlier occasion, nothing was either prayed for or granted in regard to backwages. It appears to us inconsequential that no relief in respect of back-wages was either prayed for or granted. The fact remains that this Court directed reinstatement of the petitioners in Ext. P7 O.P. This could only be on the ground, and on the basis, that the termination of their services was unlawful and unsustainable. That should leave them with the remedy of claiming the wages and the remuneration to which they were entitled from the date when their services were wrongly terminated to the date of their reinstatement directed by the Court. The said claim is not sought to be defeated by any one of the well-known pleas known to the law, such as res judicata, discharge, limitation, etc. In the absence any such plea, we do not see how the claim can fail. We see no ground to interfere with the order impugned in this writ petition. We dismiss the O.P. with no order as to costs.
O. P. No. 4218 of 1976
5. Four of the respondents in O.P. No. 1389 of 1976 took leave after re-instatement. They claimed wages for the leave period and filed a claim petition under Section 33C(2) of the Act, which was allowed by the Labour Court Quilon (1st Respondent). The writ petition is filed to quash the said decision of the Labour Court.
6. We are unable to see how the decision of the Labour Court decreeing wages for the leave period can be said to be wrong or unjustified. As noticed while dealing with the facts in O.P. 1385 of 1976 this Court in the earlier writ petition reported in 1972-II L.L.J. 568, had directed reinstatement of the employees whose services had been terminated. That could only be on the basis that the termination was wrong and unlawful. The employees, therefore, continued in service. While in service they are entitled to the benefits and the privileges, according to service conditions, and during leave, their claim for leave salary or wages for the leave period cannot be denied. The Labour Court was right in decreeing the claim and we see no ground to interfere.
W. A. No. 258 of 1977
7. This appeal is against the decision of the learned Judge of this Court dismissing in limine the writ petition filed to quash the decision of the Labour Court Quilon decreeing the claim for wages for the leave period by one of the employees whose reinstatement had been directed on the earlier occasion by this Court in the decision in 1972-II L.L.J. 568. The Labour Court had originally dismissed the application. An application for review was preferred and that application was allowed. Against the order of the Labour Court allowing the applications for review, the writ petition was filed. It was argued inter alia that the Labour Court had no power to allow the review application. It was next contended that even if it had such power, it was wrong in decreeing leave salary or wages for leave period under Section 33C(2) of the Act. This latter contention we have held against in O.P. No. 4218/1976 heard along with the writ appeal. Regarding jursdiction of the Labour Court to entertain and to allow an application for review of its own judgment, we would agree with counsel for the appellant that there is no such power in the Labour Court either under Rule 28 of the Industrial Disputes Act or under any other provision to which our attention has been drawn. Counsel for the 2nd respondent in the writ appeal farily stated to us that it will be a difficult task for him to contend that the Labour Court possessed such a power of review. Although, therefore, strictly and technically the order of the Labour Court is without jurisdiction, we think that on the whole no ground for interference is called for. It will be seen that almost all the employees whose reinstatement had been directed on the earlier occasion by this Court have had their back-wages decreed to them till reinstatement. It would be rather inequitable and unfair to deny the same to the one employee with which we are concerned in this case. The order passed by the Labour Court on the review application, we should think, has promoted rather than hindered justice. In so far as the order has only advanced justice, we do not think that the interests of justice required interference under Article 226. Particularly is it so when we take into account the fact that a learned Judge of this Court who heard the writ petition did not think it worthwhile to interfere, but dismissed the writ petition in limine under Article 226 of the Constitution. In the circumstances, we would affirm the judgment of the learned Judge and dismiss the appeal.
8. In the result, the writ appeal and the two writ petitions are all dismissed We make no order as to costs.