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PETITIONER:

STATE BANK OF INDIA

Vs.

RESPONDENT:

RAM CHANDRA DUBEY & ORS.

DATE OF JUDGMENT: 14/11/2000

BENCH:

S. Rajendra Babu, & S.N. Variava.

JUDGMENT:

RAJENDRA BABU, J. :

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The Central Government made a reference by an order made

on 21.6.1985 under Section 10 of the Industrial Disputes

Act, 1947 [hereinafter referred to as the Act] for

adjudication of the following question:

Whether the action of State Bank of India in relation

to their Gorakhpur Branch in terminating the services of

Shri Ram, Chandra Dubey and 25 other employees of the Bank,

(as mentioned in Annexure) is justified? If not, to what

relief are the workmen concerned entitled?

The case put forth by the workmen is that they were

appointed between 25.5.1961 to 19.1.1962 for a period of two

months and continued further from time to time. They

alleged that their services were terminated on 16.8.1969.

The Tribunal passed an award that the workmen are entitled

to be reinstated in service with effect from 16.8.1969. The

award was, however, silent in regard to payment of back

wages for a period between the date of termination of the

workmen and their reinstatement. Challenging the said

award, a writ petition [No.9901/87] was filed by the

appellant before the High Court. That petition was,

however, dismissed. During the course of hearing in that

petition, a contention was raised on behalf of the workmen

that they are entitled to back wages which was refuted by

the appellant. The High Court did not go into this question

inasmuch as in that petition there was no challenge to the

award on that ground. The High Court felt that inasmuch as

workmen are working for the last nine years on their posts

by the time the case was taken up for hearing, it is not a

fit case for interference under Article 226 of the

Constitution and dismissed the petition.

On disposal of the writ petition an application is filed

by the workmen before the Central Government Industrial

Tribunal-cum- Labour Court under Section 33C(2) of the Act,

against the appellant for computation of the back wages on

the basis of the award and subsequent order by the High

Court. The Tribunal-cum-Labour Court by an order made on

19.11.1998 allowed the application and computed the amounts

payable to the workmen by way of back wages. Against that

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order, a writ petition [No.8076/99] was preferred before the

High Court.

The learned Solicitor General appearing for the

appellant contended, as is done before the High Court, by

relying upon several decisions of this court that a

proceeding under Section 33C(2) of the Act is in the nature

of an execution proceeding by which an existing right in

favour of an employee under a settlement or award or under a

statute can be executed and since no such right of back

wages had accrued in favour of the workmen in terms of the

award which is silent on that question, the Labour Court

could not have made an order computing back wages payable to

the workmen. The High Court rejected this contention in the

following terms:

This submission is nothing but a subterfuge and an

attempt to hair-split the controversy, firm finding has been

recorded by the respondent No.4 which has also found

approval of this court that the award cannot be interpreted

to mean that the back wages were not implied in the relief

of reinstatement. It has been held that the award dated

4.2.1987 by which the reinstatement was ordered embraced

within its ambit the claim for full back wages even though

it was silent on the point, application under Section 33C(2)

of the Act moved by the workmen before the respondent No.24

were essentially for the purpose of computation of back

wages. The respondent No.24 has not determined any new

right in favour of the workmen. It has simply computed the

back wages on the basis of the award of reinstatement which

conferred a right for claim of back wages of the respondent

workmen.

Relying on Central Inland Water Transport Corporation

Ltd. vs. The Workmen & A nr., 1975 (1) SCR 153, in further

elaboration of his contention, he submitted that a

proceeding under Section 33C(2) of the Act is in the nature

of an execution proceeding wherein the Labour Court is to

calculate the amount of money due to a workman from his

employer, or if the workman is entitled to any benefit which

is capable of being computed in terms of money, to compute

the same. Therefore, he submits that an investigation of

the nature mentioned in the reference is possible and falls

outside its scope. If such an investigation is taken up by

the Labour Court it would amount to the exercising a

function of an Industrial Tribunal which alone is entitled

to make an adjudication on a question of award of back

wages. He submitted that the workmen in the present case

claimed that their services have been wrongfully terminated

and for an appropriate relief in that regard. Thus the

reference consisted of investigation as to the question

whether termination of the services of the workmen is

justified or not. If not, to what relief the workmen are

entitled to. Thus the question of award of back wages in

full or in part or none was within the scope of reference to

the Tribunal. He placed reliance upon the decision of this

Court in Municipal Corporation of Delhi vs. Ganesh Razak &

Anr., 1995 (1) SCC 235, to explain the scope of the power

exercisable by the Labour Court under Section 33C(2) of the

Act. He submitted that whenever any question arises as to

any matter which can be adjudicated as incidental to the

main question referred to the Tribunal, it will not fall

within the scope of Section 33C(2) of the Act.

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However, Shri Pramod Swarup, learned counsel for the

respondents, strongly supported the views taken by the

Labour Court and the High Court and contended that award of

reinstatement from a particular date would include in it

impliedly award of back wages as well and placed reliance

upon the decision of this Court in Hindustan Tin Works Pvt.

Ltd. vs. Employees of Hindustan Tin Works Pvt. Ltd., 1979

(1) SCR 563 and The Central Bank of India Ltd. vs. P.S.

Rajagopalan etc., 1964 (3) SCR 140. He contended that the

Labour Court is competent to interpret the award on which

the workman bases his claim under Section 33C(2) of the Act

and in doing so, it would certainly be open to the Labour

Court to expound the exact meaning and content of the award

as to whether it impliedly awards back wages or not and not

merely determine the quantum of the same. The learned

counsel also referred to the decision in P. Kasilingam vs.

P.S.G.College of Technology, 1981 (1) SCC 405, to contend

that ordinarily reinstatement would be followed by award of

back wages and, therefore, when there was no reason to deny

the same, the award must be deemed to have included the

award of back wages. He also placed reliance in this regard

on the decision of this Court in Managing Director, Uttar

Pradesh Warehousing Corporation & Anr. vs. Vijay Narayan

Vajpayee, 1980(3) SCC 459.

When a reference is made to an Industrial Tribunal to

adjudicate the question not only as to whether the

termination of a workman is justified or not but to grant

appropriate relief, it would consist of examination of the

question whether the reinstatement should be with full or

partial back wages or none. Such a question is one of fact

depending upon the evidence to be produced before the

Tribunal. If after the termination of the employment, the

workman is gainfully employed elsewhere it is one of the

factors to be considered in determining whether or not

reinstatement should be with full back wages or with

continuity of employment. Such questions can be

appropriately examined only in a reference. When a

reference is made under Section 10 of the Act, all

incidental questions arising thereto can be determined by

the Tribunal and in this particular case, a specific

question has been referred to the Tribunal as to the nature

of relief to be granted to the workmen.

The principles enunciated in the decisions referred by

either side can be summed up as follows: Whenever a workman

is entitled to receive from his employer any money or any

benefit which is capable of being computed in terms of money

and which he is entitled to receive from his employer and is

denied of such benefit can approach Labour Court under

Section 33C(2) of the Act. The benefit sought to be

enforced under Section 33C(2) of the Act is necessarily a

pre-existing benefit or one flowing from a pre-existing

right. The difference between a pre-existing right or

benefit on one hand and the right or benefit, which is

considered, just and fair on the other hand is vital. The

former falls within jurisdiction of Labour Court exercising

powers under Section 33C(2) of the Act while the latter does

not. It cannot be spelt out from the award in the present

case that such a right or benefit has accrued to the workman

as the specific question of the relief granted is confined

only to the reinstatement without stating anything more as

to the back wages. Hence that relief must be deemed to have

been denied, for what is claimed but not granted necessarily

gets denied in judicial or quasi-judicial proceeding.

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Further when a question arises as to the adjudication of a

claim for back wages all relevant circumstances which will

have to be gone into, are to be considered in a judicious

manner. Therefore, the appropriate forum wherein such

question of back wages could be decided is only in a

proceeding to whom a reference under Section 10 of the Act

is made. To state that merely upon reinstatement, a workman

would be entitled, under the terms of award, to all his

arrears of pay and allowances would be incorrect because

several factors will have to be considered, as stated

earlier, to find out whether the workman is entitled to back

wages at all and to what extent. Therefore, we are of the

view that the High Court ought not to have presumed that the

award of the Labour Court for grant of back wages is implied

in the relief of reinstatement or that the award of

reinstatement itself conferred right for claim of back

wages.

Hence, we allow the appeal, set aside the order made by

the Labour Court, as affirmed by the High Court and dismiss

the application filed under Section 33C(2) of the Act.

However, in the circumstances of the case, the parties shall

bear their own costs.