The nature of work and substantial compliance with the order of reinstatement are crucial in determining entitlement to back wages under Section 33 C (2) of the Industrial Disputes Act.

JUDGMENT :

(Jay Sengupta, J.)

1. This appeal is directed against an order dated 23rd August, 2018 passed by the Hon’ble Single Judge, thereby dismissing the writ petition being W.P. No. 683 of 2001 filed by the present appellant. In the writ petition, the appellant had challenged an order dated 27th February, 1997 passed by the learned 2nd Labour Court, West Bengal in a proceeding initiated by her against the respondents, the Capital Electronics and two others under Section 33 C (2) of the Industrial Disputes Act, 1947.

2. The appellant/writ petitioner was employed by the respondent concern as a casual employee in 1979. Subsequently, disputes arose with regard to stock verification in the record section for which the appellant was suspended and thereafter, dismissed from service with effect from 7th July, 1982. She raised an industrial dispute and the learned 2nd Industrial Tribunal, West Bengal passed an award on 30th March, 1989, directing her reinstatement in service immediately, with full back wages. In 1989, the appellant filed an application under Section 33 C (2) of the said Act for computation of benefits in terms of the award for the period 1981 to October 1989. This was allowed by an order dated 5th April, 1990 for a sum of Rs. 48,937/-. The appellant moved the Court of the learned Magistrate for recovery of the said amount. The appellant filed a second application under Section 33 C (2) of the said Act before the learned Labour Court claiming dues from November, 1989 to May, 1992. On 18th March, 1994, the learned Court passed an order in her favour. This was challenged by the employer before this Court. By a judgment and order dated 22nd August, 1996, this Court, inter alia, directed the learned Labour Court to consider the materials afresh. The appellant filed a third application under Section 33 C (2) for computation of dues from June, 1992 to November, 1995. By an order dated 27th February, 1997, this claim was rejected on the ground that the workman had refused the management’s offer of reinstatement as showroom manager in 1994. This was challenged by the appellant in a writ application. However, the writ petition was dismissed on 23rd August, 2018 on the ground that the appellant did not want to resume duties as a showroom manager in terms of the concern’s purported offer dated 25.06.1994.

3. Learned senior counsel appearing on behalf of the appellant submitted as follows. The prime question was about the interpretation of the term ‘reinstatement’. The word ‘reinstatement’ meant restoration of status quo ante. Therefore, compliance of the award would mean putting back the appellant in service in the capacity of a sales girl at the Howrah branch, the post and the place from where she was terminated. On the definition of the word ‘reinstatement’, reliance was placed on a Division Bench of the Hon’ble Karnataka High Court in R. S. Manier, Sub-Registrar vs. The State of Mysore, (1969) 1 LLJ 486 and a decision passed by the Hon’ble Supreme Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors., (2013) 10 SCC 324. Non compliance of the award, as was well settled, was a continuing breach. Besides, the management’s purported offer on 25th June, 1994 to post the appellant as a showroom manager at Howrah Branch could only be viewed as a design not to comply with the award. The very nature of the offer to the post of a showroom manager manifested that it was not an offer of reinstatement. Therefore, the learned Labour Court erred in rejecting the claim application under Section 33 C (2) of the said Act and thus, permitting the breach of the industrial award to continue. The order of the Hon’ble Single Judge should also be set aside on the same ground.

4. Learned counsel appearing on behalf of the respondent no. 3/company, submitted as follows. This was a case where the appellant/writ petitioner, after obtaining the initial award from the learned Labour Court, decided that she would not work