Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9008 OF 2022
(@ SLP(C) NO. 18635 OF 2022)
D.N. Krishnappa ...Appellant(S)
Versus
The Deputy General Manager ...Respondent(S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with impugned judgment
and order dated 30.06.2022 passed by the High Court of
Karnataka at Bengaluru in Writ Petition No. 7176/2021,
by which, the High Court has allowed the said writ petition
preferred by the respondent - bank and has set aside the
order passed by the Central Government Industrial
Tribunal – cum - Labour Court (hereinafter referred to as
the CGIT/Labour Court) in an application under Section
33-C(2) of the Industrial Disputes Act, 1947 (hereinafter
Signature Not Verified
Digitally signed by
Neetu Sachdeva
Date: 2022.12.12
16:57:12 IST
Reason:
referred to as the ID Act) awarding wages for the period
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from 18.07.2007 to 23.09.2013, the employee – workman
has preferred the present appeal.
2. The facts leading to the present appeal in a nutshell are as
under: -
2.1 That the appellant herein was working with the respondent
- bank. In the departmental proceedings he was dismissed
from service on 27.09.1996. The order of dismissal was
challenged by the appellant before the CGIT under Section
10(2)(a) of the ID Act. By the award dated 18.07.2007, the
CGIT set aside the order of dismissal and passed an order
of his reinstatement with 50% back wages and withholding
four annual increments with cumulative effect from the
date of order of punishment. The said award was
challenged before the High Court by the bank as well as
the appellant herein. The learned Single Judge by
judgment and order dated 18.04.2013 confirmed the order
of reinstatement, however, reduced the back wages from
50% to 25%. In the appeal(s), the Division Bench of the
High Court also confirmed the order of reinstatement
passed by the CGIT, however held that the appellant is not
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entitled to any back wages. The judgment and order dated
12.07.2013 was the subject matter of Special Leave
Petition(s) before this Court. This Court dismissed the
Special Leave Petition(s). Thus, the order of reinstatement
in terms of award dated 18.07.2007 attained the finality.
That thereafter, the appellant came to be reinstated on
23.09.2013.
2.2 That neither was he reinstated earlier in spite of award
dated 18.07.2007 nor was he paid full wages from the date
of award i.e., 18.07.2007, therefore, he again approached
the CGIT by filing an application under Section 33-C(2) of
the ID Act claiming back wages from the date of award
dated 18.07.2007 passed by the CGIT till his actual
reinstatement. The CGIT allowed the said application and
directed the bank – employer to pay the wages due from
the date of award to the date of actual reinstatement. The
bank preferred the present writ petition before the High
Court. By the impugned judgment and order, the Division
Bench of the High Court has set aside the order passed by
the CGIT relying upon the decision of this Court in the
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case of Bombay Chemical Industries Vs. Deputy Labour
Commissioner & Anr.; (2022) 5 SCC 629 , and has
observed and held that CGIT had no jurisdiction to decide
the application under Section 33-C (2) of the ID Act.
Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the
High Court, the employee – workman has preferred the
present appeal.
3. Shri Shailesh Madiyal, learned counsel appearing on
behalf of the appellant has vehemently submitted that in
the facts and circumstances of the case, the High Court
has materially erred in setting aside the order passed by
the CGIT under Section 33-C(2) of the ID Act directing the
bank to pay the wages from the date of order of
reinstatement passed by the CGIT vide award dated
18.07.2007 to the date of actual reinstatement i.e.,
23.09.2013.
3.1 It is vehemently submitted that the order of reinstatement
had attained the finality and therefore, the appellant ought
to have been reinstated and/or is entitled to all the
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benefits including the wages from the date of award dated
18.07.2007 till the date of actual reinstatement.
3.2 It is submitted that the High Court has misread and/or
mis-applied the decision of this Court in the case of
Bombay Chemical Industries (supra). It is submitted that
the ratio of the judgment in Bombay Chemical Industries
(supra) is that an unadjudicated claim cannot be the
subject matter of proceedings under Section 33-C (2), and
the CGIT can only interpret the award or settlement on
which the claim is based. It is submitted that in the
present case what was sought was implementation of
award dated 18.07.2007 as modified by the Division Bench
of the High Court. It is submitted that therefore, the
application claiming the wages and other benefits from the
date of award of reinstatement passed by the CGIT on
18.07.2007 was maintainable.
3.3 Relying upon the decision of this Court in the case of
Namer Ali Choudhury & Ors. Vs. Central Inland Water
Transport Corporation Ltd. and Anr.; (1977) 4 SCC 575
(para 4), it is submitted that as observed and held by this
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Court once there is an award and question arises as to the
amount of money due under the award, the same would be
the subject matter of proceedings under Section 33-C (2) of
the ID Act.
3.4 It is submitted that if the impugned judgment and order,
the High Court interfering with the order of CGIT is upheld
and the submissions on behalf of the bank is accepted, in
that case, the appellant – employee/workman has to suffer
for no fault of him by denying the wages from the date of
award of reinstatement passed by the CGIT/Labour Court
which as such had attained the finality.
3.5 It is submitted that the submissions on behalf of the bank
that because there were stay order(s) from time to time
after the award was passed and because the award was
the subject matter of challenge before various Courts up to
12.07.2013, the appellant was not required to be paid the
wages from the date of award till the actual reinstatement
on 23.09.2013 is concerned, it is submitted that as a
matter of fact the award dated 18.07.2007 to the extent of
directing the bank to reinstate the appellant had attained
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finality and the same has remained un-interfered with. It
is submitted that mere pendency of proceedings does not
dilute the requirement of reinstatement in terms of the
award with all its consequences including payment of
wages.
3.6 Making the above submissions and relying upon the
decision of this Court in case of M.L. Bose & Company
Pvt. Ltd. Vs. Employees; AIR 1961 SC 1198 , it is prayed
to allow the present appeal.
4. Present appeal is vehemently opposed by Shri Rajesh
Kumar Gautam, learned counsel appearing on behalf of
the respondent - bank. It is submitted that in the facts and
circumstances of the case as such the High Court has not
committed any error in quashing and setting aside the
order passed by the CGIT under Section 33-C(2) of the ID
Act granting wages from the date of award of reinstatement
passed by the CGIT on 18.07.2007 to the date of actual
reinstatement. It is submitted that as such the operation
of award dated 18.07.2007 remained stayed by the High
Court as the said interim order continued till disposal of
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the writ appeals on 12.07.2013. It is submitted that as per
the settled position of law the interim order passed by the
High Court always merges with the final order. It is
submitted that thus as in the present case interim stay
granted by the High Court on the operation of award dated
18.07.2007 continued till the disposal of the writ appeals
on 12.07.2013, therefore, award dated 18.07.2007 as
modified by the final order dated 12.07.2013 passed by the
Division Bench of the High Court becomes final and
enforceable only on 12.07.2013. It is submitted that
therefore, the appellant shall not be entitled to claim back
wages for the period from 18.07.2007 to 12.07.2013.
4.1 It is further submitted by the learned counsel appearing
on behalf of the bank that since award dated 18.07.2007
remained stayed by the High Court till 12.07.2013,
therefore, in view of the provisions contained in Section
17B of the ID Act, the appellant was paid last drawn wages
amounting to Rs. 3,18,782.36/- for the period during the
period the award passed by the CGIT remained stayed. It
is submitted that since the last drawn wages as provided
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under Section 17B of the ID Act have been paid during the
period award passed by the CGIT remained stayed by the
High Court, even for the said period also the appellant is
not entitled to full back wages, as is being claimed by the
appellant.
4.2 It is further submitted by the learned counsel appearing
on behalf of the bank that even on the principle of merger
the appellant shall not be entitled to any back wages from
the date of award i.e., 18.07.2007 till the judgment and
order passed by the Division Bench of the High Court. It is
submitted that applying the principle of merger, only the
final judgment and order dated 12.07.2013 passed by the
Division Bench of the High Court shall be executable and
enforceable. Reliance is placed on the decision of this
Court in the case of Kunhayammed and Ors. Vs. State of
Kerala and Anr.; (2000) 6 SCC 359.
4.3 Making the above submissions and relying upon the above
decision, it is prayed to dismiss the present appeal.
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5. We have heard learned counsel appearing on behalf of the
respective parties at length.
5.1 The short question which is posed for consideration of this
Court is whether the appellant shall be entitled to the full
wages from the date of award of reinstatement i.e.,
18.07.2007 passed by the CGIT to the actual date of
reinstatement i.e., 23.09.2013?
6. It is the case on behalf of the bank that as the award dated
18.07.2007 of reinstatement passed by the CGIT was
stayed by the High Court and continued to be stayed till
12.09.2013, the appellant shall not be entitled to the
wages from the date of award dated 18.07.2007. It is also
the case on behalf of the respondent – bank that award
dated 18.07.2007 ultimately merges with the judgment
and order dated 12.07.2013 passed by the Division Bench
of the High Court and therefore, the order passed by the
Division Bench of the High Court would be enforceable on
the principle of merger. It is also the case on behalf of the
bank that during the pendency of the stay of the order of
reinstatement dated 18.07.2007, the appellant was paid
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the last drawn wages under Section 17B of the ID Act, the
appellant shall not be entitled to any further wages/back
wages from the date of the award of reinstatement dated
18.07.2007 to the final judgment and order passed by the
High Court dated 12.07.2013.
7. Having heard learned counsel appearing on behalf of the
respective parties and considering the facts narrated
hereinabove, it emergers that the order of reinstatement
vide award dated 18.07.2007 has been confirmed up to the
Division Bench of the High Court and even by this Court.
What was modified by the High Court was the back wages
from the date of termination till the date of award passed
by the CGIT. It was the bank – employer who obtained the
stay order against the order of reinstatement which
ultimately came to be terminated on 12.07.2013 when the
Division Bench of the High Court dismissed the writ
appeals. As observed hereinabove, it was the employer –
bank who obtained the stay against reinstatement and
ultimately order of reinstatement attained the finality. Why
should the employee be made suffer, when the bank
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obtained the stay of reinstatement and when the order of
reinstatement subsequently came to be confirmed and
attained the finality?
7.1 So far as the submissions on behalf of the bank that the
interim order merged with final order dated 12.07.2013
and therefore, the appellant is not entitled to claim the
back wages for the period between 18.07.2007 and
12.07.2013 is concerned, at the outset, it is required to be
noted that the interim order is always subject to the final
order that may be passed finally while terminating the
proceedings. Interim orders are always subject to the final
decision. Therefore, merely because there was an interim
order/stay of the order of reinstatement during the
pendency of the proceedings, the employee – appellant
cannot be denied the back wages/wages when ultimately
the order of reinstatement came be confirmed by the
Court.
7.2 Similarly, the submission on behalf of the bank applying
the principle of merger has also no substance. In the
present case as such the order of award of reinstatement
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has been confirmed by the Division Bench of the High
Court. Therefore, the order of reinstatement will rely back
to the original order passed by the Labour Court. Merely
because the reinstatement order was under challenge and
there was a stay of the order of reinstatement during the
pendency of the proceedings before the High Court, it
cannot be a ground to deny the wages to the employee
when ultimately the order of reinstatement came to be
confirmed and attained the finality.
7.3 Now so far as the submissions on behalf of the bank that
as during the pendency of the proceedings before the High
Court and for the period during the stay of order of
reinstatement, the appellant was paid the last drawn
wages under Section 17B of the ID Act and therefore he is
not entitled to any wages for the period during the stay is
concerned, there is no substance. At the most, whatever is
held to be entitled to pay the appellant – employee as
wages from the order of award of reinstatement till actual
reinstatement, whatever is paid under Section 17B of the
ID Act, the same is to be deducted and/or adjusted.
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7.4 Now reliance placed upon the decision of this Court in the
case of Bombay Chemical Industries (supra) considered
by the High Court is concerned, as such the High Court
has mis-applied the said decision to the facts of the case
on hand. In the present case, the claim of the appellant
was adjudicated upon. The appellant approached the
Industrial Tribunal by way of an application under Section
33-C(2) of the ID Act for implementation of award dated
18.07.2007. Therefore, so far as the order of reinstatement
and the wages claimed on the order of reinstatement is
concerned, the same were already adjudicated upon. In the
case of Bombay Chemical Industries (supra), it is
observed and held that un-adjudicated claim cannot be the
subject matter of proceedings under Section 33-C(2) and in
the proceedings under Section 33-C(2), the Tribunal can
only interpret the award or settlement on which the claim
is based. Under the circumstances, the said decision shall
not be applicable to the facts of the case on hand.
8. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the Division
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Bench of the High Court allowing the writ petition
preferred by the respondent – bank and quashing and
setting aside the order passed by the CGIT under Section
33-C(2) of the ID Act directing the bank to pay the wages
from 18.07.2007 to 23.09.2013 is unsustainable and the
same deserves to be quashed and set aside and is
accordingly quashed and set aside. It is held that the
appellant shall be entitled to the full wages with all
emoluments from the date of order of reinstatement i.e.,
18.07.2007 to the date of actual reinstatement i.e.,
23.09.2013, however, after adjusting/deducting the
amount already paid under Section 17B of the ID Act.
Present appeal is allowed accordingly to the aforesaid
extent. No costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(C.T. RAVIKUMAR)
NEW DELHI,
DECEMBER 12, 2022.
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