IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/09/2004
CORAM
THE HON'BLE MR.JUSTICE P.K. MISRA
AND
THE HON'BLE MR.JUSTICE A.K. RAJAN
WRIT APPEAL NO.2094 OF 2004 AND WRIT APPEAL NO.2691 OF 2004
and
W.A.M.Ps.No.3848 and 4973 OF 2004
The Management of
The Lakshmi Vilas Bank Limited
Administrative Office
Salem Road,
Kathaparai
KARUR-639006 .. Appellant in both the writ
appeals
-Vs-
1. The Deputy Commissioner of Labour,
Tiruchirapalli
2. G. Krishnamurthy .. Respondents in
W.A.No.2094/2004
1. G. Krishnamoorthy
2. The Deputy Commissioner of Labour,
Tiruchirapalli .. Respondents in
W.A.No.2691/2004
Writ Appeals filed Clause 15 of the Letters Patent against the
Order passed by the learned Single Judge of this Court in W.M.P.Nos. 5720 and
5721 of 2004 in W.P.No.22557 of 2003 dated 21.4.2004.
!For Appellant : Mr.A.L. Somayaji
Senior Counsel for
Mr.V. Karthick of
M/s T.S. Gopalan
^For respondents : Mr.N.G.R. Prasad
for M/s Row & Reddy
:COMMON JUDGMENT
P.K. MISRA,J.
The facts and circumstances leading to the present appeals may
be stated in brief.
The second respondent in the Writ Appeal No.2094/2004 had joined the
appellant bank as Sub-Staff in the year 1973 and in course of time, he was
promoted and posted as Accountant at Srirangam Branch. In November, 1996,
show cause notice was issued to him and ultimately, domestic enquiry was held
by the bank and on the basis of the report of the Enquiry Officer dated
10.1.2000 the second respondent was discharged from service of the appellant
bank. The departmental appeal, having been rejected, the second respondent
preferred appeal under Sec.4 1(2) of the Tamil Nadu Shops and Establishments
Act (hereinafter called the Act). The appellate authority, the first
respondent in Writ Appeal No.2094 of 2004, allowed the appeal and set aside
the order of discharge. Such order passed by the appellate authority under
the Act has been challenged by the Bank in W.P.No.22557/2003. The second
respondent, during pendency of such writ petition, filed two miscellaneous
petitions. In W.P.M.P.No.5721/2004, the prayer was for a direction to the
bank to reinstate the employee or in the alternative, pay the last drawn
salary of Rs.16,650/- from the date of filing of the writ petition, till the
disposal of the writ petition and in the other petition,i.e., W.P.M.P.
No.5720/2004, the prayer was for a direction to the Management to pay back
wages of Rs.5,82,750/- from the date of discharge i.e., 21.8.2000 till the
date of filing of the writ petition. Both the miscellaneous petitions were
disposed of on 21.4.20 04 by separate orders by the learned Single Judge after
hearing the counsel for both the parties. In W.P.M.P.No.5720/2004, the
learned Single Judge issued a direction directing the Management to deposit
the back wages due to the present second respondent within a period of four
weeks, permitting the individual concerned to withdraw the interest once in
three months. In W.P.M.P.No.5721/2004, the learned Single Judge directed the
Management to pay “Monthly salary to the petitioner at the rate of
Rs.6,000/from the date of filing of writ petition till disposal”.
2. W.A.No.2691/2004 is directed against the order in
W.P.M.P.No.572 0/2004 and the connected W.A.No.2094/2004, is directed against
the order in W.P.M.P.No.5721/2004. Since the same question of law is
involved, both the appeals were heard together and shall be governed by the
present common Judgement.
3. Mr.A.L. Somayaji, the learned Senior Counsel appearing
for the Management, submitted that the writ petition was filed by the
appellant against the order passed by the appellate authority under Sec.41(2)
of the Tamil Nadu Shops and Establishments Act, hereinafter referred to as
the Act, but the appellant has not prayed for any stay and since no stay has
been prayed nor any stay has been granted, it is open to the concerned
employee to enforce the order passed by the appellate authority under
Sec.41(2) of the Act in the forum available and the present second respondent
cannot utilise the writ petition filed by the Management as a means to secure
the benefit of the order passed by the appellate authority under Sec.41(2)of
the Act. He has further submitted that the provisions containing 17-B of the
Industrial Disputes Act are not applicable to the proceedings under the Act.
Therefore, in the absence of any specific provision, the quondam employee has
no right to get such order implemented in the writ petition filed on behalf of
the Management. He also submitted that since the appellant bank is a private
limited bank, even a writ of Mandamus cannot be issued against such bank to
pay the salary of an employee in service and the second respondent cannot be
in a higher position merely because the writ petition has been filed by the
management challenging the order of the authority under Section 41(2) of the
Act.
4. Mr.N.G.R. Prasad, the learned counsel appearing for the
contesting respondent No.2, on the other hand submitted that the remedy under
Article 226 of the Constitution of India, being discretionary remedy, the High
Court is empowered to issue any interim order with a view to secure the ends
of justice and even if there is no specific provision in the Act in line with
Sec.17-B of the Industrial Dispute Act, the High Court is not powerless to
issue any interim order during pendency of the writ petition. He has
submitted that merely because the employee has chosen not to file a stay
petition, that would not alter the position so far as the jurisdiction of the
High Court is concerned and the High Court, during the pendency of the writ
petition, can pass any interim order. He has further submitted that even in
cases, where an employee is placed under suspension, during pendency of a
disciplinary proceeding, such person is entitled to receive subsistence
allowance, under the Rules and the position cannot be worse for an employee
who has succeeded before the appellate authority contemplated under the
Statute. He has further submitted that in the absence of any stay order, it
is the duty of the appellant to reinstate the person and the appellant cannot
take advantage of the fact that there is no specific provision for enforcement
of the order of the appellate authority.
5. The question as to whether the order passed by the
appellate authority under Sec.41(2) of the Act can be enforced against a
private employer by issuing a writ of Mandamus does not crop up for decision
in the present appeal, and therefore, we are not called upon to decide such
matter.
6. In the present case, admittedly, the writ petition has
been filed by the management questioning the order passed by the appellate
authority under the Act. The learned senior counsel contended that had any
stay petition have been filed by the writ petitioner, it would have been
possible for the High Court, while considering the question of stay, to impose
any reasonable condition as a condition-precedent for the stay. But in the
absence of any specific prayer for stay by the writ petitioner, the second
respondent could not have prayed for passing any order to implement the order
of the appellate authority.
7. We are unable to appreciate such contention raised on
behalf of the appellant. If such a contention is accepted, it would amount to
the conclusion that if the Court finds sufficient reason for staying the order
passed by the appellate au reby preventing the successful employee from
rejoining the service any condition regarding payment of salary in part or in
full could have been imposed, but such employee would be in worse position
merely because the employer in its technical wisdom does not seek for stay of
the order of the appellate authority. The very fact that the employer does
not seek for stay of the order passed by the appellate authority, even though
he has challenged the order of the appellate authority, would rather mean that
the employer has no objection for reinstatement of the person for the time
being during pendency of the writ petition. The employer cannot circumvent
the necessary and inevitable consequence of order of an appellate authority
under Sec.41(2) of the Act, by not choosing to file a stay petition in the
writ petition filed by him, and yet contend that he would neither reinstate
the person nor pay any salary or any allowance even in the nature of
subsistence allowance.
8. Law is well settled that a person who seeks equity must do
equity. By filing a writ petition, obviously, the equitable jurisdiction of
the High Court is being invoked. The petitioner cannot be heard to contend
that even though there is statutory order passed by the appellate authority,
setting aside the order of termination, and even though there is no order of
stay, he will not obey such order, but will pursue the remedy of filing a writ
petition. Such an attitude obviously indicates the intention of the
petitioner to over reach the process of law.
9. The High Court, dealing with a matter Under Article 226 of
the Constitution, admittedly exercises a Constitutional as well as equitable
jurisdiction. While discharging such Constitutional obligations, the High
Court is obliged to follow any statutory provision, but in the absence of any
statutory prohibition, the High Court is not powerless to pass any order in
consonance with principles of justice, equity and good conscience. It is no
doubt true that there is no corresponding provision in the Act similar to
Sec.17-B of the Industrial Disputes Act. However, in the absence of any
specific provision and in the absence of any specific bar, the High Court is
not powerless to pass any interim order in the interest of justice.
10. In W.P.M.P.No.9963/1984 arising out of W.P.NO.4115/1984,
vide order dated 6th September, 1984 Justice Mohan, as his Lordship then was,
while dealing with almost a similar application in a writ petition filed by
the Management against the order under Sec.41(2) of the Act,in the absence of
any stay petition by the Management, observed as follows:
” . . . Though the petition for direction has been taken out (by
the respondent) in the writ petition filed by the petitioner, I am of the view
that having regard to the expanded jurisdiction of this Court under Article
226 of the Constitution of India, it is not necessary for the petitioner in
this petition (V.K. Ramamoorthy) to go by way of execution. This is for two
reasons.(1) The execution takes a long time. (2) Even after execution, there
are further proceedings by reason of which all the attempts to get
reinstatement get frustrated. Therefore, it is not open to the writ
petitioner to say that is the absence of be having obtained any stay, it will
be open to the person concerned to execute the order”.
On the aforesaid basis, in the said case, the employer was directed to
reinstate the employee or even otherwise to pay the salary to the employee and
there was also direction for payment of back wages.
11. The learned counsel appearing for the second respondent
has invited our attention to various similar orders passed in many matters
such as in the order dated 17.4.1996 in W.P.M.P.Nos.1053, 3807 to 3809 /1996
in W.P.No.632/1996 reported in 2001(4)LLN 997 (AEROFLOT RUSSIAN INTERNATIONAL
AIRLINES v. DEPUTY COMMISSION OF LABOUR (APPEALS) MADRAS AND ANOTHER), and
order dated 16.9.1997 in W.P.M.P.NOs. 731, 18804 and 18805/1997. He has also
invited attention to the order dated 12 .11.2003 in W.P.M.P.No. 31801/2003,
which was confirmed with some modification by the Division Bench by Judgment
dated 17.3.2004 in W.A. No.166/2004.
12. A Division Bench of Gujarat High Court in 1981 Labour
Industrial Cases 1497, (Bipinchandra vs Navin Flusrine Industries), while
considering somewhat similar question, observed as follows:
“…. Be that as it may, we do not agree that the petitioner is not entitled
to approach this Court by way of a petition of this nature. Indeed this
course can more often be adopted with advantage when the demands of justice so
enjoin so that parties are not driven from pillar to post and obliged to incur
time cost and money cost which neither they nor the society can afford”.
13. That the High Court has inherent power apart from the
provisions contained in the Industrial Disputes Act, seems to be well
recognised as evident from the decisions of the Supreme Court.
14. In 1986 (2) SCC 614 (Bharat Singh vs New Delhi
tuberculosis Centre),while considering the question regarding applicability of
newly amended provisions of Section 17-B of the Industrial Disputes Act in
relation to disputes, which had arisen before the said date of amendment, the
Supreme Court observed as follows:
“8. It is common knowledge that even before Section 17-B was enacted,
courts were, in their discretion, awarding wages to workmen when they felt
such a direction was necessary but that was only a discretionary remedy
depending upon court to court. Instances are legion where workmen have been
dragged by the employers in endless litigation with preliminary objections and
other technical pleas to tire them out. A fight between a workman and his
employer is oftentimes an unequal fight. The legislature was thus aware that
because of the long pendency of disputes in tribunals and courts, on account
of the dilatory tactics adopted by the employer, workmen had suffered. It is
against this background that the introduction of this section has to be viewed
and its effects considered.
(Emphasis added)
15. In (2001)5 SCC 169, (DENA BANK Vs. GHANSHYAM), the
Supreme Court observed thus:
“10. It may be noticed that Section 17-B of the Act does not preclude
the High Courts or this Court under Articles 226 and 136 of the Constitution
respectively from passing appropriate interlocutory orders, having regard to
the facts and circumstances of the case,in the interests of justice. The High
Court or this Court may, while entertaining the employer’s challenge to the
award, in its discretion, in appropriate cases, stay the operation of the
award in its entirety or in regard to back wages only or in regard to
reinstatement without interfering with payment of back wages or on payment of
wages in future irrespective of the result of the proceedings before it etc.
and/or impose such conditions as to be payment of the salary as on the date of
the order or a part of the back wages and its withdrawal by the workman as it
may deem fit in the interests of justice. The Court may, depending on the
facts of a case, direct payment of full wages last drawn under Section 17-B of
the Act only by the employer to the workman. The question whether a workman
is entitled to the full wages last drawn or full salary which he would be
entitled to in the event of reinstatement while the award is under challenge
in the High Court or this Court depends upon the terms of the order passed by
the Court, which has to be determined on interpretation of the order granting
relief.”
(Emphasis added)
16. In 1986(3) SCC 131, FAKIRBHAI FULABHAI SOLANKI Vs.
PRESIDING OFFICER AND ANOTHER while considering the question of payment of
subsistence allowance during pendency of dispute between the Management and
the applicant, under Section 33(1) and 33(3) of the Industrial Dispute Act,
the Supreme Court observed as follows:
“. . . An unscrupulous management may by all possible means delay
the proceedings so that the workman may be driven to accept its terms instead
of defending himself in the proceedings under Section 33(3) of the Act. To
expect an ordinary workman to wait for such a long time in these days is to
expect something which is very unusual to happen. Denial of payment of at
least a small amount by way of subsistence allowance would amount to gross
unfairness”.
17. The underlying principles in the above cases relating to
various contingencies under the Industrial Disputes Act, support the
contention of the learned counsel for the respondent that the Courts are not
powerless to pass appropriate interim orders in the interest of justice.
18. In the background of the aforesaid principle, the
contention of the learned senior counsel for the appellant that the second
respondent has no right to claim any amount in the writ petition filed by the
Management and he can enforce his right by approaching the Civil Court or even
by initiating criminal proceedings as recognised under Sec.45 of Act, cannot
be countenanced. To accept such a contention would encourage multiplicity of
proceedings. This is against the well recognised principle that, Courts
should always try to pass orders with a view to avoid multiplicity of
proceedings and not encourage unnecessary litigation.
19. In view of the above, we have no doubt that in the writ
petition filed by the Management challenging the orders under Sec.41(2) of the
Act, in the absence of any specific provision containing the Act similar to
17-B of the Industrial Dispute Act, the High Court is not powerless to issue
appropriate interim direction regarding reinstatement or payment of salary or
payment of the part of the salary obviously depending on the facts and
circumstances of the particular case and such directions can be issued even
though the Management has not sought for stay of the order of the appellate
authority. In the above view of the matter, the main contention raised by the
appellant is bound to fall.
20. The learned senior counsel has also submitted that there
was no justification to direct the bank to deposit back wages and to permit
the second respondent to withdraw quarterly interest and necessary direction
regarding back wages can always be complied with after disposal of the writ
petition. It is to be remembered that the present writ appeals are against
the interim direction issued by the learned Single Judge and such order passed
by the learned Single Judge is essentially discretionary order and ordinarily
the appellate Court while deciding such appeal, should not interfere with the
discretionary order passed by the learned Single Judge unless such order is
shown to be unsupportable in law or unjust. (see AIR 1974 SC 1 719 (SHANTI
KUMAR R. CHANJI v. THE HOUSE INSURANCE CO. OF NEW YORK).
21. Keeping in view the fact that the second respondent was
receiving a salary of Rs.16,500/- at the time of his dismissal, the present
direction by the learned Single Judge directing the payment of Rs.6 ,000/- per
month and further directing the Management to deposit the back wages so that
only the quarterly interest would be withdrawn by the second respondent cannot
be characterised as illegal or unjust or arbitrary. In appeal, in the absence
of any compelling reasons, we are not inclined to take a different view.
Therefore, both the writ appeals are bound to be dismissed. The order should
be complied with within a period of four weeks. Keeping in view the facts and
circumstances of the case, we further direct that the writ petition itself may
be listed for hearing before the appropriate Court at an early date,
preferably within a period of six months. No costs. Consequently, the
connected W.A.M.Ps are closed.
sr/dpk
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To
The Deputy Commissioner of Labour,
Tiruchirapalli