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Andhra Pradesh High Court
Judges : RAMESH RANGANATHAN
Depot Manager, APSRTC, Nirmal Depot - Appellant
Versus
Mirza Basheer Baig - Respondent
Decided On : 12-23-05
Constitution of India – Article 226 – Industrial Disputes Act, 1947 – Section 33 – Recovery of Wages – It is case of petitioner that, pursuant to award of Tribunal Divisional Manager,, had issued proceedings posting first respondent at Kamareddy depot, pending further orders in W. P – W. P. was dismissed by this Court by order – It is case of petitioner that, in spite of office order issued by the Divisional Manager, reinstating him into service, first respondent did not report to duty till 31. 3. 1993 and he was thereafter, posted to bhainsa – First respondent filed E. P. which was dismissed – He subsequently filed M. P., under Section 33 (C) (2) of the industrial Disputes Act, 1947 before Tribunal for recovery of Rs. 4,77,606-10 ps. towards arrears of wages – Whether Labour Court, in proceedings under Section 33-C (2), could have examined question as to whether or not first respondent, pursuant to the award in I. D., was called upon by the petitioner to join duty and as to whether he was entitled for payment of salary subsequent to the date of the award i. e. 7. 8. 1980 till the date of his actual reinstatement – Held, Labour court has no jurisdiction to adjudicate the claim made by the 1st respondent under Section 33-C (2) of the Act in an undetermined claim until such adjudication is made in an appropriate forum – Difference, between the pre-existing right or benefit on the one hand and the right or benefit which is considered just and fair on the other, is vital – While the former falls within the jurisdiction of the labour Court, exercising powers under Section 33-C2 of the Act, the latter does not – Illustrations given in p. S. Rajagopalan, would also show that the claims, such as the one made by the 1 st respondent herein are matters which are not incidental questions and therefore cannot be adjudicated in proceedings under Section 33-C2 of the Industrial disputes Act – It is not for this Court to go into these questions in certiorari proceedings under Article 226 of the Constitution of India – Court have no doubt that the petitioner shall bear all these aspects in mind and take an appropriate decision in the matter – Writ Petition Allowed
( 2 ) FACTS, to the extent necessary for this writ petition, are that the first respondent was appointed as a Conductor on 12. 10. 1963 and was removed from service on 6. 11. 1971 for his involvement in cash and ticket irregularities. The first respondent raised a dispute, in i. D. No. 21 of 1980, before the Tribunal and, by award dated 9. 8. 1980, the petitioner was directed to reinstate the first respondent into service with full back wages and all other attendant benefits. Aggrieved thereby the petitioner filed W. P. No. 2872 of 1981, and the execution of the award was stayed by this court subject to the condition that the workman be reinstated and 1/6th of the back wages that were awarded being deposited.
( 3 ) IT is the case of the petitioner that, pursuant to the award of the Tribunal dated 9. 8. 1980, the Divisional Manager, Nizamabad, had issued proceedings dated 3. 3. 1982, posting the first respondent at Kamareddy depot, pending further orders in W. P. No. 2872 of 1981. W. P. No. 2872 of 1981 was dismissed by this Court by order dated 23. 10. 1986. It is the case of the petitioner that, in spite of the office order dated 3. 3. 1982 issued by the Divisional Manager, nizamabad, reinstating him into service, the first respondent did not report to duty till 31. 3. 1993 and he was thereafter, posted to bhainsa on 6. 2. 1996. The first respondent filed E. P. No. 14 of 1993, which was dismissed. He subsequently filed M. P. No. 4 of 1996, under Section 33 (C) (2) of the industrial Disputes Act, 1947 (hereinafter referred to as the Act ), before the Tribunal for recovery of Rs. 4,77,606-10 ps. towards arrears of wages.
( 4 ) BEFORE the Tribunal, in M. P. No. 4 of 1996, the petitioner herein contended that the petition filed by the workman/first respondent was not maintainable under section 33 (C) (2) and that the Tribunal did not have jurisdiction to entertain the petition. It was contended that since the first respondent did not approach the petitioner for reinstatement, he was not entitled for the benefits of arrears of wages and as he had avoided joining duty, he was not entitled for promotion and continuity of service. The petitioner contended that the first respondent was not entitled for Rs. 4,77,606-10 ps. , claimed by him, as he had wilfully avoided joining duty at Kamareddy Depot, soon after the award was passed or at least after the interim directions passed by this Court in w. P. No. 2872 of 1981 whereby execution of the award was stayed subject, among other conditions, that the first respondent be reinstated into service.
( 5 ) THE first respondent examined himself as WW. 1 and marked Exs. W. 1 to W. 8, whereas one witness was examined on behalf of the petitioner as M. W. 1 and exs. M. 1 to M. 14 were marked as exhibits. While the petitioner contended that the first respondent had failed to join duty despite the posting orders dated 3. 3. 1982, the first respondent contended that he did not receive the said orders of posting and was, in fact, not given any posting orders in spite of the legal notice given by his Counsel.
( 6 ) THE Tribunal held that it had jurisdiction to try the petition in M. P. No. 4 of 1996 under Section 33 (C) (2) of the Act. The Tribunal relied on the office copy of the legal notice sent by the Counsel of the first respondent, marked as Ex. W. 3, and the oral evidence of the first respondent that the same was sent by registered post acknowledgment due, a copy of which was marked as Ex. W. 5. Placing reliance on ex. W. 7, notice dated 27. 9. 1993, though disputed by the petitioner as having been brought into existence, the Tribunal held that the said document was genuine inasmuch as Ex. W. 6, postal receipt dated 27. 9. 1993 had been produced in support thereof. T
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