Full Judgment Text
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“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1718 OF 2009
(Arising out of SLP(C) No. 29419 of 2008)
Hongkong & Shanghai Banking Corp. Ltd. …. Appellant
Versus
Government of India & Anr. …. Respondents
J U D G M E N T
V.S. SIRPURKAR, J.
1. Leave granted.
2. The respondent No. 2 herein Mrs. Manju Saxena was the employee
of the appellant-Hongkong & Shanghai Banking Corporation Ltd.
(hereinafter called ‘the bank’ for short). According to the appellant, she
drew a salary of Rs.58,330/- per month with a total annual remuneration of
Rs.7,32,736/-. In May, 2005, the Bank reviewed its working norms, staff
structure and other relevant issues governing its operations and it was
decided that the various posts and positions held by the staff were to be
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discontinued. One such post to be discontinued was held by the second
respondent. A severance package and/or alternate employment to all such
persons whose posts were to be discontinued were offered. Accordingly
such proposal was made to the second respondent also, but she declined
to accept the package.
3. On 01.10.2005 her services were terminated after paying her six
months’ salary as compensation in lieu of notice period as provided in the
contract of employment and compensation equivalent to 15 days’ salary for
each completed year of service amounting to Rs.8,17,071/-. This sum was
allegedly accepted by the second respondent.
4. However, a dispute was raised regarding this termination and hence
the Government of India, the first respondent herein referred the dispute to
the Central Government Industrial Tribunal (CGIT). The reference was as
under:
“Whether the action of the Chief Executive, HSBC, India
Area Management Office, 52/60, Mahatma Gandhi Road,
P.O.128, Mumbai-400 001, in terminating the services of Mrs
Manju Saxena, Staff Officer w.e.f. 01.10.2005 without giving
her full terminal benefits is just, valid and legal? If not, to what
benefits the workman is entitled for and what directions are
necessary in the matter.”
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5. Thereafter, the second respondent, by her various applications
sought for interim relief along with her pleadings before the Industrial
Tribunal (hereinafter called ‘Tribunal’). The application came to be allowed
and vide order dated 30.06.2006, the Tribunal directed the appellant-Bank
to pay a sum of Rs.30,000/- per month to the claimant regularly till the
disposal of the said case. This was to be treated as an interim award.
6. The appellant Bank challenged the said award by way of a Writ
Petition No. 12606/2006 wherein the learned Single Judge of the Delhi
High Court stayed the interim order till further orders. The learned Single
Judge was pleased to direct vide his order dated 15.12.2006 that the
second respondent should be paid a sum of Rs.25,000/- towards the
litigation expenses. It was also ordered that the proceedings before the
Tribunal would continue, however, final award would not be passed. This
order dated 15.12.2006 was, of course, an interim order. This order was
confirmed by the Division Bench in LPA No.33/207 by order dated
25.01.2007.
7. On 08.02.2007 the second respondent filed an application under
Section 17-B of the Industrial Dispute Act. On 07.09.2007 a letters patent
appeal No.1194/2007 challenging the order of the learned Single Judge
restraining the Tribunal from pronouncing the award pending the disposal
of the writ petition was disposed of. The matter thus was pending before
the learned Single Judge when the order dated 07.09.2007 disposing of the
letters patent appeal No.1194/2007 came up before this Court by way of a
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special leave petition. This Court dismissed the same on 07.03.2008 and
directed the High Court to dispose of the Writ Petition on merits and in
accordance with law preferably within three months from the date of
communication of the order.
8. In the meantime, the appellant also filed the rejoinder affidavit to the
counter filed by the second respondent. On 23.05.20008, the application
under Section 17-B of the Industrial Dispute Act was decided by the
learned Single Judge. In that order, no relief was granted under Section
17-B. On 24.09.2008, the Writ Petition No.12602/2006 was also disposed
of. It was held that the reference could not be challenged at that stage of
the proceedings when in fact the proceedings under reference were
pending final adjudication.
9. The learned Single Judge, however, upheld the interim industrial
award stating that there was no infirmity in the interim award of the
Industrial Adjudicator which directed the appellant to pay Rs.30,000/- per
month to the second respondent regularly till the disposal of the industrial
dispute. The said order was challenged before the Division Bench in LPA
No.684/2008 which came to be disposed of by the impugned order.
10. In the impugned order the Division Bench observed in paragraph 5
as under:
“We are informed that the case before the Tribunal is at
the stage of arguments. We request the Tribunal to pronounce
its final order in the matter within a period of six weeks from
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today, uninfluenced by any observation on merits that may
th
have been made in the impugned judgment dated 24
September, 2008, passed by the learned Single Judge or in the
order dated 30.06.2006 of the Tribunal.”
The Division Bench however dismissed the matter as also other
pending applications. It is against this that the present appeal has been
filed.
11. Learned senior counsel Shri Ashok H. Desai urged before us that he
had no difficulty with the direction of the Division Bench to the Tribunal for
disposing of the matter. He, however, raised a serious dispute regarding
the direction passed by the Tribunal by way of an interim award whereby a
direction was given to pay Rs.30,000/- per month to the second
respondent. The learned senior counsel also pointed out that an employee
earning Rs.58,330/- per month could not be called a ‘workman’ within the
definition of the term in Industrial Disputes Act, 1947. The learned senior
counsel further pointed out that as per the contract of service the second
respondent was already paid full compensation amounting to almost Rs.9
lakhs which she had accepted without demur and, thus, there was no
justification in passing an interim award directing payment of Rs.30,000/-
per month to her. Learned counsel also argued on merits that the learned
Single Judge erred in holding that the Bank could not question the propriety
of the Reference made by the first respondent. As against this Smt.
Manju Saxena who appeared in person argued that there would be no
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question of denying the reinstatement to her, particularly, in view of the
interim award passed and if the Bank was not in a position to reinstate her,
the Bank was bound to pay Rs.30,000/- per month as ordered by the
Tribunal in lieu of reinstatement. Smt. Saxena further argued that the Bank
was deliberately depriving her of legal dues.
12. On a careful consideration of the contentions raised herein we are of
the clear opinion that it will be futile at this stage to go into the question
regarding the status of the employee as the same is pending before the
Tribunal and the trial in the Tribunal is complete. We would not therefore
go, at this stage, into the question as to whether the learned Single Judge
and the Division Bench were right in continuing the proceedings before the
Tribunal. We must note, at this juncture, that the appellant Bank is taking
part in the trial before the Tribunal. Everything would, therefore, depend
upon the verdict of the Tribunal. The question is, however, of the interim
award and the directions given thereunder.
13. We do not see any reason to stay the interim award, particularly
because of the detailed reasons given in support thereof by the Tribunal.
However, learned senior counsel expressed his apprehension that in case
the verdict goes against the second respondent regarding her status as a
workman then it would be very difficult for the appellant to recover the
amounts paid by way of the interim award. There can be no dispute that
the payment of Rs.30,000/- per month as ordered by the Tribunal would
amount to almost Rs.9 lakhs. The apprehension of the learned counsel is
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not altogether unjustified. However, the fact remains that in the interim
award itself, the Tribunal has secured the interests of the appellant by
ordering that in case the final award goes against the second respondent
still the amount paid to her by way of interim award could be adjusted
against the retiral benefits which she is entitled to receive. We have
specifically put this to the learned senior counsel Shri Ashok H. Desai,
appearing on behalf of the appellant as to how much amount would be
receiveable by the respondent by way of her retiral benefits. The learned
counsel very frankly put the whole account before us.
14. Considering the overall situation, we are of the opinion that the
amount of Rs.8 lakhs should be payable to the second respondent by way
of arrears. She would also continue to get the amount of Rs.30,000/- per
month till the award is finally decided by the Tribunal. This amount shall be
adjustable against the amount receivable by her by way of retiral benefits in
case the award goes against her. We also request the Tribunal to dispose
of the proceedings, if not already disposed of by now, within two months
from the date when the orders reach the Tribunal. We make it clear that
we have not expressed anything in respect of the merits of the award or the
status of the second respondent. The Tribunal shall decide the question
regarding status on merits without being influenced by this judgment or for
that matter any other judgment including the interim award.
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15. With these directions we dispose of this appeal. The payment shall
be made within six weeks from the date of judgment.
……………………………..J.
[TARUN CHATTERJEE]
……………………………..J.
[V.S. SIRPURKAR]
NEW DELHI
MARCH 18, 2009
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