D. N. Krishnappa vs The Deputy General Manager, Indian Bank

D.N. Krishnappa ...Appellant(S)

Versus

The Deputy General Manager ...Respondent(S)

JUDGMENT

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

1 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

2 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

3 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

4 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

5 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

6 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

7 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

8 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. 9

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

10 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

11 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

12 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.

13 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

14 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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