IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

C.W.P. No. 8428 of 1988.

Date of Decision : January 16, 2009.

Municipal Committee, Moga.

...... Petitioner.

Versus.

The Presiding Officer and another.

...... Respondents.

CORAM:

HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.

Present:

None for the petitioner.

Mr. A.S. Klar, Advocate,

for the respondent No. 2.

AUGUSTINE GEORGE MASIH, J. (ORAL).

This petition has been preferred challenging the order dated

09.05.1988 (Annexure-P-2), passed by the Labour Court, Bathinda, wherein

an application under Section 33 C(2) of the Industrial Disputes Act,

preferred by the workman respondent No. 2 has been allowed and he has

been granted the benefit by computing wages for the period he was under

suspension from 27.03.1980 to 05.12.1980, medical leave wages from

19.03.1983 to 04.05.1984, and wages from 05.05.1984 to 31.11.1984.

A perusal of the writ petition and the award impugned herein

would show that the Court has proceeded to decide the matter on the

assumption that the termination order is bad. The question raised by the

petitioner before the Labour Court was that the matter was covered by

Section 10 of the Industrial Disputes Act, and therefore, the Court would not

have jurisdiction under Section 33 C(2) of the Industrial Disputes Act to

compute the wages. It is not in dispute that Ex. M.2 was the notice issued by

the Executive Officer of the Municipal Corporation calling upon the

C.W.P. No. 8428 of 1988.

workman to report for duty within 30 days of the publication i.e.

15.03.1984, failing which the services of the workman respondent No. 2

would stand terminated w.e.f. the date of his absence i.e. 01.08.1983. The

Labour Court has proceeded to decide the issue by holding that the

workman has reported for duty within the time stipulated and therefore,

presuming that the workman was continuing in service and on that basis

has proceeded to hold that the order of termination is bad, and therefore,

the workman is entitled to the computation of wages as claimed by him.

None has put in appearance on behalf of the petitioner.

Counsel for the respondent has supported the award passed by

the Labour Court by stating that the claim of the workman would fall

within the ambit of Section 33 C(2) of the Industrial Disputes Act, and

therefore, the claim was maintainable in the present form and the objection

raised by the Municipal Corporation with regard to the matter being

covered under Section 10(c) of the Industrial Disputes Act would not be

correct. Counsel for the respondent relies upon the Judgment of Hon'ble

the Supreme Court in case of The Central Bank of India Limited Versus

P.S. Rajagopalan etc., A.I.R. 1964 S.C 743, and Judgment of Kerala High

Court in the case of A.P. Sankara Wariyar Versus The North Malabar

Distt. Co-op. Supply and Marketing Society Limited, Calicut and

another, 1982 (2) Labour Law Journal 440.

The proposition as laid down by Hon'ble the Supreme Court

cannot be disputed but in the present case the question which needs to be

decided is whether without setting aside of the order of termination, any

benefit could be granted to the workman. The said order was very much in

existence according to which as per the stand of the petitioners, the order

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C.W.P. No. 8428 of 1988.

still was holding the field and since the services of the workman stood

terminated, the benefit which has been claimed by him, he would not be

entitled unless said order is either set aside or is withdrawn. None of these

two situations are present in this case. The basic order, therefore, which

would decide the rights, was the order of termination whereon no

adjudication has taken place which could be said to have settled the rights

between the parties. The Labour Court in exercise of its authority under

Section 33 C(2) is capable of computing the benefits which can be

tabulated in