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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.