Allowed

The Depot Manager, Apsrtc, Krishna District and Another v. Mulugu Prabrahma Chari, Krishna District and Another

Andhra Pradesh HC22 Jan 2024WP/24248/2005

Case brief

AI extract

What is this about?

This judgment quashes a Labour Court order granting notional increments to a reinstated employee. The Supreme Court precedent was applied to hold that continuity of service alone does not entitle an employee to notional increments unless the award specifically directs such consequential benefits.

What did the court decide?

The order dated 15.07.2005 in M.P. No. 42 of 2001 by the Labour Court, Guntur is set aside. No order as to costs.

The Depot Manager, Apsrtc, Krishna… — Pension and Retirement Benefits | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction)

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TUESDAY. THE TWENTY THIRD DAY OF JANUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON’BLE JUSTICE DR V. R. K. KRUPA SAGAR

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WRIT PETITION NO: 24248 OF 2005

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Between:

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The Depot Manager, APSRTC, Jaggaiahpet Depot Krishna^District. 2. The Divisional Manager, APSRTC Vijayawada.

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...PETITIONERS

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AND

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Mulugu Prabrahma Chari, Conductor, C/o. Talluru Venkateswara Rao Electrician Work, Jai Bhavi Centre Tiruvur, Krishna^District.

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The Presiding Officer, Labour Court, Guntur.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction more especially in the nature of writ of Certiorari calling for the records relating to the impugned award dated 15th July, 2005 made in MP.No.42/2001 on the file of Labour court, Guntur, directing to fix the pay of the 1st respondent after releasing notional increments for the period from the date of removal till the date of reinstatement and quash the same as being illegal, without jurisdiction^andinvalid.

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I.A. NO: 1 OF 2005(WPMP. NO: 31153 OF 20051

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the order in MP.No.42/2001 dated 15-7-2005 on the file of the Labour court pending disposal of the W.P and pass such other order or orders as this Hon'ble Court may deem fit and proper.

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I.A. NO: 1 OF 2007fWVMP. NO: 1915 OF 20071

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Between:

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Mulugu Prabrahma Chari, Conductor, C/o. Talluru Venkateswara Rao Electrician Work, Jai Bhavi Centre Tiruvur, Krishna District.

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...PETITIONERS

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AND

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The Depot Manager, APSRTC, Jaggaiahpet Depot Krishna^District.

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The Divisional Manager, APSRTC Vijayawada.

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The Labour Court, Guntur, Rep. by its Presiding Officer.

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Petition under Section 151 CPC praying that in the^{circumstancesstatedin} the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim suspension of the order dated 14-11-2005 granted by this Hon'ble Court in WPMP No. 31153/2005 in WP No. 24248/2005 and pass such other order or orders

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I.A. NO: 1 OF 2014(WPMP. NO: 1101 OF 20141

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Petition under Section 151 CPC praying that in the^{circumstancesstatedin} the affidavit filed in support of the petition, the High Court may be pleased to take up of the final hearing of the W.P.No.24248 of 2005^{onoutofturnbasis.}

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Counsel for the Petitioners : SRI SOLOMON RAJU MANCHALA SC FOR APSRTC

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Counsel for the Respondent No.1 : SRI M. PITCHAIAH

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Counsel for the Respondent No.2 : GP FOR LABOUR

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The Court made the following: ORDER

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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WRIT PETITION No.24248 of 2005

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ORDER; -

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The Andhra Pradesh State Road Transport Corporation/ the appellant calls in question the order dated 15.07.2005^of learned Labour Court, Guntur in Miscellaneous petition^No.42 of 2001. It prays for a writ of certiorari seeking^toquashthe impugned order.

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Respondent No.l was a conductor appointed by the appellant and his services were regularized on 03.07.1988. While discharging his duties, he was allegedly involved^incash and ticket irregularities. There upon after due departmental enquiry being conducted, he was found guilty and was^removed from service on 06.07.1993. Thereafter, respondent No.l challenged the same by way of l.D.No.307 of 1993 before^the learned Labour Court, Guntur. The learned Labour court^found dereliction on part of respondent No.l was correct^anddidnot find any defect with the enquiry held against him but^hadcome to conclude that the removal from service was disproportionate and accordingly set aside the same with a direction^toreinstate him into service without back wages but with continuity of service. Accordingly, it passed the award dated 26.11.1996^and

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Dr. VRKS, J W.P.No.24248 of 2005

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the same was published on 24.01.1998. The employer reinstated respondent No.l into service and respondent^No.l accordingly reported to duty on 09.03.1998. Four years thereafter, respondent No. 1 filed Miscellaneous Petition^No.42of 2001 under Section 33-C(2) of the Industrial Disputes Act, 1947. The grievance he raised was that he was supposed^tobe granted notional increments from the date of removal till the date of reinstatement but the same were not granted and therefore seeking release of the notional increments and payment of differential salary, he filed the Miscellaneous Petition. The employer/APSRTC contested the claim stating^that the mere order of reinstatement with continuity of^servicedoes not entitle for release of notional increments and^thenotional increments could be claimed only if the award had granted continuity of service with consequential benefits.^Thelearned Labour Court enquired into the issue and by the impugned order, it agreed with the claim of the respondent No.l and allowed the petition and directed the APSRTC to release^notional increments for the period from the date of removal^fromservice till the date of reinstatement and directed to pay^the arrears within two months.

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Dr. VRKS, J W.P.No.24248 of 2005

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Challenging that order, the APSRTC has come up with this writ petition. Sri Solomon Raju Manchala, the learned counsel for writ petitioner urged that when the award of the labour court was only for continuity of service, it^wasincorrect on part of the labour court to grant notional increments^andthe approach of the labour court is against the precedent^rendered by the Hon’ble Supreme Court of India. The next submission^is that the question raised in Miscellaneous Petition^No.42of2001 under Section 33-C{2) of the Industrial Disputes Act, 1947 ought not to have been entertained by the labour court^inthe absence of any reference made to it in that regard. It may be noted here that the second submission is not a ground urged in writ petition and is also not a ground urged before^thelearned Labour Court. In support of his submissions, the learned counsel cited:

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Andhra Pradesh State Road Transport Corporation (A.P.S.R.T.C.) V. Abdul KareemK

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Andhra Pradesh State Road Transport Corporation^V.

S. Narsa Goud^.

1(2005) 6 see 36

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Andhra Pradesh State Road Transport Corporation^V.

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B.S.David PauP.

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M/s. Bombay Chemicals Industries V. Deputy Labour Commissioner^.

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5. Depot Manager, APSRTC V. N. Yadaiah^.

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Refuting those contentions for respondent No.l, the learned counsel Sri M. Pitchaiah argued that the impugned order does not require interference, since the learned^Labour Court appropriately exercised its jurisdiction under^section33- C(2) of the Industrial Disputes Act, 1947 since the^claimofthe respondent No.l before the labour court was based on the earlier award in l.D.No.307 of 1993 by which he was^reinstated with continuity of services without backwages. That the jurisdiction of the labour court was neither questioned before the Labour Court nor was taken as a ground of challenge^inthis writ petition and for the first time, during arguments^suchan objection was raised and the same cannot be considered. That

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^(2003) 2 see 212 3 LAWS (SC) - 2006 - 2 - 58 ^2022 LiveLaw (SC) 130 = LAWS (TLNG) - 2023 -6-4

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Dr. VRKS, J W.P.No.24248 of 2005

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the precedent cited for the writ petitioner relates to cases of unauthorized absence of employees and the ratios therein^have no application to the facts at hand since respondent^No.lwas not punished for any unauthorized absence. Learned^counsel further argued that except what was not granted by^thelabour court for all the rest of the benefits, respondent is entitled to and by the impugned order, the learned labour court^didthe same and therefore it cannot be found fault with and therefore learned counsel seeks dismissal of the writ petition. In support of his contentions, the learned counsel cited:

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Central Bank of India Limited V. Raja Gopalan^

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Mandegam Radhakrishna Reddy V. Sri Barathi Vein Bus Services'^.

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Deepali Gundu Surwase V. Kranthi Junior Adhyapak

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Mahavidya laya^.

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From the rival contentions, the following points fall for consideration: -

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<^AIR 1964 SC 743 ^(1986) LAB.I.C.80(AP(FB) «(2013) 10 see 324

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Dr. VRKS, J W.P.No.24248 of 2005

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of the case,

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and circumstances

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1. In the facts under section 33-C(2) of the

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miscellaneous petition not maintainable

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Act, 1947 was

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Industrial Disputes , the dispute could have been

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and only on a reference and the learned^{LabourCourt,Guntur}

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adjudicated acted without jurisdiction?

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with continuity of

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of reinstatement

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1. Whether in a case of notional

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does not permit granting

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service, law of the learned Labour

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increments, but the approach when it granted the notional

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Court was erroneous increments?

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POINT No.l:,^

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learned Labour Court, Guntur In I.D.No.307 of 1993, the award dated 26.11.1996 setting aside the order ot passed its No.l removal with a positive direction that the respondent into service with be reinstated by the writ petitioner herein is to . The said order is continuity of service but without back wages whether notional increments should be released or silent as to No.l claims that since this order, respondent not. It is based on the continuity of service, labour court granted him the learned him notional “ is bound to release his employer/ APSRTC is out of which he was for the period during increments

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Dr. VRKSJ W.P.No.24248 of 2005

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employment because of order of removal passed by the disciplinaiyauthority. His Miscellaneous Petition^No.42of2001 filed under Section 33-C(2) of the Industrial Disputes^Act,1947 is based on the above award which granted continuity of service.

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Section 33-C(2) of the Industrial Disputes Act, 1947^reads as below:

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Recovery of money due from an employer: -

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“Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by^the appropriate Government ] [within a period not exceeding three months:]

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[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do,^he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit]

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The above provision permits a workman to move an application if he believes he is entitled to receive from the employer any benefit. On moving such an application, the learned Labour Court must determine the claim. A claim under Section 33-C(2) should be one that is based on an existing right. A Constitutional Bench of the Hon’ble Supreme Court^ofIndia in Central Bank of India V. Raja Gopalan laid down the law wherein their Lordships were pleased to explain as to when recourse to section 10(1) of the Industrial Disputes Act, 1947 (herein after referred as Act, 1947) is possible and when recourse under Section 33-C(2) of the Act, 1947 is possible. Their Lordships specifically held that if a workman’s right to receive the benefit is disputed that has to be determined by the Labour Court. Mere denial of the claim of the employee^doesnot oust the jurisdiction of the Labour Court from exercising powers under Section 33-C(2) of the Act, 1947. The labour^court is entitled to enquire into the existence or otherwise of such right which is claimed by the employee. Their Lordships further^held that if a claim is based on an award passed, the labour^court would necessarily have to interpret the award on which the right is based and claimed. Their Lordships further^heldthat

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while so interpreting, the Labour court cannot add^orsubtract from the provisions of the award. Section 33-C(2) deals^with cases of implementation of individual rights of workman falling under its provisions. In the case at hand, the claim^fornotional increments on reinstatement with continuity of service of respondent No.l is based on a right that he believed to have been conferred to him by the Industrial tribunal which passed the award of reinstatement with continuity of service. Therefore, when he was not granted notional increments, his claim^made under section 33-C(2) was as provided under law and entertaining such petition by the labour court was^within its jurisdiction. The argument of the learned counsel for writ petitioner that reference was required for determination^ofsuch claims and an application under Section 33-C(2) is not maintainable is sought to be supported by the learned^counsel based on the ratio in M/s Bombay Chemicals Industries V. Depot Labour Commissioner. That was a case where an employee filed application under section 33-C(2) demanding^the difference of wages. The prime contention of the employer in resisting the said application was that the applicant^wasnotits employee and that there was no relationship of employee^and

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employer between them. The Learned Labour Court allowed the application directing the employer to pay difference of wages. It was in that context when the matter was brought before^their Lordships by way of an appeal, their Lordships held^thatinan application under section 33-C(2) of the Act, 1947,^thelabour court had no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workman. Learned Labour court can only interpret the award on which^theclaimis based. The power of Labour court under Section 33-C(2) is like that of an executing court. Without prior adjudication as to whether there was employer-employee relationship or not, the disputed claim of arrears of wages could not be entertained by - the Labour court under Section 33-C(2) until the employer employee relationship is established on a reference,^therecould be no pre-existing right based on which a claim for benefit under Section 33-C(2) could be made. Finally, their Lordships relegated the parties to take steps for initiation of appropriate proceeding by way of a reference to the Labour court to adjudicate about the legal relationship between the parties. This ruling cited by the learned counsel for writ petitioner^isintune with the law laid down by the HonTile Supreme Court^ofIndiain

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the earlier referred judgment. In the case at hand, the relationship between the parties is never at stake and dispute. It is only entitlement of a benefit based on the award^whichwas agitated under Section 33-C(2). Therefore, the contention^ofthe learned counsel for writ petitioner about absence of jurisdiction for the Labour court is incorrect. Hence point is answered against the writ petitioners.

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POINT No.2: -

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Between the date of removal from service and the order of reinstatement and reporting to duty, respondent No.^1wasoutof service. He was reinstated into service is a fact that was never in dispute. Continuity of service was one of the reliefs granted to him. The question that arises is whether continuity^ofservice includes increments that fell due during that period when respondent No.l was out of service. In other words,^whether order of granting continuity of service should be read as inclusive of grant of notional increments. In the view of the learned Labour court, Guntur as there was the relief of continuity of service granting of notional increments should follow. It is that aspect of the matter that has fallen to

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contentions in this writ petition. Learned counsel for respondent No. 1 cited Deepali Gundu Surwase V. Kranthi Junior Adhyapak Mahavidyalaya stating that “reinstatement” means “to re-install, re-establish, to plaee again in a former state. Condition,^oroffice committed to restore to stay or position from which the object or person had been removed”. Learned counsel urged that^when once the order of Labour court granted reinstatement to respondent No. 1 and when the award has not specifieally^denied notional increments for the period during which respondent No.l was out of service it has to be understood that notional inerements are available and they ought to have been granted by the employer and when the employer failed to grant them. respondent No. 1 rightly invoked the jurisdiction of^theLabour eourt and by the impugned order, the learned Labour eourt rightly granted the relief. Thus, this argument of^the learned eounsel for respondent No.l assumes that the order of continuity of service carries with it all consequential^benefits.In other words, according to the learned counsel for respondent No. 1 for granting of consequential benefits because^oforderof reinstatement, no separate order is required. While the submissions seem very attractive, the position of law^doesnot

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seem to support this argument. It is not the case of respondent No.l that in I.D.No.307 of 1993, he sought for continuity^of service with all consequential benefits. It is undisputed^thatthe award in I.D.No.307 of 1993 granted continuity of service^and there is no order as to consequential benefits. Law is that a relief must be deemed to have been denied when it was not granted (vide APSRTC V. B.S. David Paul). The cited ruling Deepali Gundu Surwase’s case is with reference to a^situation where the employee was forcibly kept out of the service by the management of the school and that led to lot of litigation^and the question that was framed for consideration by their Lordships was whether the employee was entitled to wages for the period during which she was forcibly kept out of service by the management. Finally, their Lordships held that the employee was entitled to back wages and directed the employer to pay the same. It was in that context, their Lordships^hadto interpret “reinstatement”. It was in the context of those facts. their Lordships laid the law that in cases of wrongful termination of service, reinstatement with continuity^ofservice with back wages is the normal rule. The ruling is essentially with reference to entitlement for back wages in cases of

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/ /

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wrongful removal. While tracing the various precedent, their Lordships at page No.356 have also noted that even where continuity of service is directed it should only be for the purpose of pensionary/ retirement benefits and not for other^benefits like increments, promotions etc. In APSRTC V. Abdul^Kareem’s case, the HonTole Supreme Court of India had also quoted^and explained the ruling in APSRTC V. S. Narsa Goud. In^Abdul Kareem’s case, the employee was removed from service^sincehe concealed his earlier employment and removal from the same service. Finally, the Labour court set aside the removal^and directed reinstatement into service without back wages.^There was no order about continuity of service. The other^casethat was also considered there was about financial irregularity^and the employee was removed from service and by an award,^the Labour court set aside the removal and directed the reinstatement with continuity of service. While dealing with those two cases, their Lordships at paragraph No. 10^laidtheir ratio in the following words “ there is a difference^betweenan order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee^shallbe

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A )

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entitled to all the consequential benefits, which necessarily^flow from reinstatement or accompanied by a specific direction^that the employee shall be entitled to the benefit of the increments earned during the period of absence”. At paragraph No. 12, their Lordships held that the employee was not entitled for^benefitof notional increments during the period when he was out of service. This ruling is not about a case of employee being unauthorizedly absent from attending duties. The ruling^makes it crystal clear that an award of a Labour court granting reinstatement with continuity of service by itself^{doesnotentitle} the employee for notional increments for the period during which he was out of service. For an employee to have^thebenefit of notional increments during the period when he was^out of service there should have been a specific direction^intheaward of the Labour court and in the absence of such specific^direction an employee is not entitled for notional increments for that I period during which he was not in service. In fact,^thatwasalso I the view taken by the Hon’ble Telangana High Court in Depot Manager, APSRTC V. N. Yadaiah.

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In the case at hand, the award of reinstatement granted only continuity of service and did not grant all consequential

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benefits. Therefore, while exercising powers under^Section33- C(2), the Labour court, Guntur committed legal error^ingranting notional increments which were not available under^lawtothe employee/ respondent No.l herein. A writ of certiorari is maintainable if the order of the Labour court is perverse^orthe approach of the Labour court is erroneous at law. The writ petitioner is right in contending that the impugned^orderofthe Labour court is erroneous at law. Hence, this point^isanswered in favour of the writ petitioner and against respondent^No.1.

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In the result, this writ petition is allowed. Consequently, order dated 15.07.2005 of learned presiding officer. Labour court, Guntur in M.P.No.42 of 2001 is set aside. There^shallbe no order as to costs.

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As a sequel, miscellaneous applications pending, if any.

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shall stand closed. Rule Nisi has been made absolute as above. Witness the Hon’ble the Chief Justice Sri Justice Dhiraj Singh Thakur on this Tuesday, the Twenty Third day of January, Two Thousand and Twenty Four.

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To,

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//TRUE COPY//

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SD/- M PRABHAKAR RAO ASSISTANT! REGISTRAR SE< OFFICER

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