IN THE SUPREME COURT OF INDIA

Criminal Appellant Jurisdiction

Special Leave Petition

(Under Article 136 of Constitution of India)

Special Leave Petition No of 2011

(Against impugned final Judgement and Order dated

Passed by Hon’ble High Court of Judicatutr, AP at Hyderabad,

WP No ……. of 2011

IN THE MATTER OF

BETWEEN

Smt.Sapna, w/o Sri. Rajesh aged… yrs

R/o Flat No: 201, Shangrila Apartments, Road No: 3,

Banjara Hills, Hyderabad. …Petitioner/complainant

AND

1. Mr.Rajesh, s/o Sri.Rama rao aged…yrs

R/o Flat No: 201, Shangrila Apartments, Road No: 3,

Banjara Hills, Hyderabad.

2. Smt.Lata, w/o Sri.Srinivas aged….yrs

R/o Flat No: 203, Shangrila Apartments, Road No: 3,

Banjara Hills, Hyderabad. ….Respondent/Accused

Most Respectfully Showeth :

1. The Special Leave Petition filed against part on impugned and final Judgment
Order dated….. Passed by the Hon”ble High Court of Judicature, Andhra Pradesh
at Hyderabad, in WP No…… of 2011 where in the Hon’ble High Court rejected the
appeal against that Judgment.

2. Questions of Law:

The following Substantial Questions of Law arise for the consideration of this Court:

A. Whether the case involves violation of Article -14 of the Constitution in

section 497 of Indian Penal Code,1860 which states that “Whoever has sexual
intercourse with a person who is and whom he knows or has reason to believe
to be the wife of another man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape, is guilty of the
offence of adultery, and shall be punished with imprisonment of either
description for a term which may extend to five years, or with fine, or with
both. In such case the wife shall not be punishable as an abettor.”
B. The offence of adultery has been kept under the chapter titled ‘offence relating
to marriage’ because this offence hits at the very root of the institution of
marriage destroying the sanctity of a marital relation. And to preserve the
sanctity of the marriage is not the duty of just one spouse rather both husband
and wife.
C. The next phrase mentions ‘without the consent or connivance of that man’
which clearly indicates that adultery is not an offence per se but is an offence
only when the husband of the adulterer did not consent to it and also that the
consent of the wife of person convicted of adultery is not considered in
deciding whether her husband has committed adultery or not. This once again
discriminates between the two sexes by not considering the consent of the
wife of the person convicted of adultery in deciding whether her husband
who had had sexual relations outside marriage is guilty of the offence of
adultery or not.

3. Declaration

The Complainant states that no other complaint seeking leave to appeal has
been filed by against impugned final Judgement and Order dated….. Passed by the
Hon”ble High Court of Judicature, Andhra Pradesh at Hyderabad, in WP No…… of
2011.
4.Grounds :

Leave to appeal is sought for on the following amongst other grounds :

i. For That the impugned order passed by the Hon’ble High Court is erroneous
both on facts and on Law.
ii. For That the Hon’ble High Court, by virtue of the impugned order failed to
discharge its duty of protecting the rights of women and children which are
guaranteed in Article -15(3).
iii. For That the Hon’ble High Court, committed a grave error in Law by holding
that the Writ Petition in Question is barred by violation of Article-14 in WP
No of 2011, where as the challenge in the WP for the discrimination between
men and women in holding them guilty of adultery.
iv. For That the Hon’ble High Court, committed a grave error by not considering
that the petitioner who preferred the WP in Question i.e WPNo…. of 2011
was discriminated earlier and violative of Article-14 in the said WP.
v. For That the Hon’ble High Court, committed a grave error by not considering
the Article-15(3) which gives protection for women and children.
vi. For That the Hon’ble High Court failed to appreciate the Special powers
granted to it under Article- 226 of Constitution of India and its Special
Jurisdiction to prosecute the accused and consider the petitioner’s complaint.

Main Prayer:

It is most respectfully prayed that this Hon’ble Court may be Pleased to:

a. Grant Special Leave to appeal against the impugned final Judgement and
order dated …. Passed by the Hon’ble High Court Judicature ,Andhra
Pradesh at Hyderabad in WPNo…. Of 2011.
b. Pass such further and other order(s) as this Hon’ble Court deems fit and
proper in the circumstances of this case.

Filed By

Drawn on: 21.02.2011

Filed on : 22.02.2011 (Advocate)

IN THE SUPREME COURT OF INDIA

Criminal Appellant Jurisdiction

 Special Leave Petition Cr.No……of 2011

IN THE MATTER OF :

Smt.Sapna, w/o Sri. Rajesh aged… yrs

R/o Flat No: 201, Shangrila Apartments, Road No: 3,

Banjara Hills, Hyderabad. …Petitioner/complainant

AND

1. Mr.Rajesh, s/o Sri.Rama rao aged…yrs

R/o Flat No: 201, Shangrila Apartments, Road No: 3,

Banjara Hills, Hyderabad.

2. Smt.Lata, w/o Sri.Srinivas aged….yrs

R/o Flat No: 203, Shangrila Apartments, Road No: 3,

Banjara Hills, Hyderabad. ….Respondent/Accused

AFFIDAVIT

I, Sapna, w/o Sri.Ramesh aged about …. Years, R/o Flat No: 201, Shangrila
Apartments, Road No: 3, Banjara Hills, Hyderabad, occ: House wife do here by
solemnly and sincerely affirm and state on oath as under :

1. That I am complainant (petitioner) in the present Special Leave Petition and as

such I am full conversant with the facts and circumstances of the case and
therefore, I am competent to affirm and swear this affidavit.
2. That the contents and avernments made in the accompanying synopsis, list of
dates and events and Special Leave Petition as well as the annexure are true
and correct to my knowledge and belief and as born out from the records of
the case. The Special Leave Petition, the list of dates and events and annexure
has been drafted under my instructions and I have understood the purport,
measuring and contents of the same.

3. The Annexures filed along with the Special Leave Petition are true copies of
their respective originals.
 Deponent

VERIFICATION

Verified at Hyderabad on this….of month ….. 2011 that the statements made in here
in above are true and correct to my knowledge and no part of it is false and nothing
material has been concealed there from.

Deponent

Attested

 SHYAMAL KUMAR LODH

 
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VIJAYA BANK Vs. SHYAMAL KUMAR LODH

VIJAYA BANK Vs. SHYAMAL KUMAR LODH

                                              REPORTABLE

            IN THE SUPREME COURT OF INDIA

             CIVIL APPELLATE JURISDICTON

        CIVIL APPEAL NOs. 4211 & 4212 OF 2007

 

VIJAYA BANK                               ...APPELLANT

                          VERSUS

SHYAMAL KUMAR LODH                        ...RESPONDENT

                      JUDGMENT

C.K. PRASAD, J.

1.   These appeals, by grant of leave arise out of a common

judgment of the Division Bench of the Gauhati High Court

dated 10th January, 2007 in Writ appeal No.381 of 2001 and

Writ Appeal No.11 of 2002, whereby it had set aside the order

of the learned Single Judge dated 22nd August, 2001 and 24th

August, 2001 passed in Civil Rule No.3735 of 1995 and Civil

Rule No.2771 of 1997 respectively.

2.   Facts lie in a narrow compass :-

                                       2

       Shyamal Kumar Lodh-respondent herein is an employee

of the appellant-Vijaya Bank. It is a Nationalised Bank. The

employee filed application before the Labour Court, Dibrugarh

constituted by the State Government under Section 7 of the

Industrial Disputes Act, 1947 for an award computing his

suspension/subsistence allowance under Section 33C(2) of the

Act.

3.     It is not in dispute that the appropriate Government in

relation to an employee is the Central Government and the

employee had filed the application before the Labour Court

constituted by the State Government. It is further not in

dispute that the Labour Court before whom the employee had

filed the application has not been specified by the Central

Government.        On the application so filed the Labour Court

issued    notice    to    the    appellant-employer.       The       appellant

appeared    before       the    Labour      Court   and    questioned      its

jurisdiction to adjudicate the dispute on the ground that the

said   Court   having          not   been    specified    by   the    Central

Government under Section 33C(2) of the Industrial Disputes

Act, 1947 it had no jurisdiction to entertain the application.

                                 3

4.   The Labour Court by its order dated 19th August, 1995

over-ruled that objection and held that its jurisdiction to

adjudicate the dispute is not ousted. Employer aggrieved by

the aforesaid order dated 19th August, 1995 preferred writ

application which was registered as Civil Rule No. 3735 of

1995. A learned Single Judge of the Gauhati High Court by its

judgment dated 22nd August, 1995 passed in Civil Rule

No.3735 of 1995 upheld its contention and while doing so

observed as follows :

     "As the Labour Court at Dibrugarh was not specified

     by the appropriate Government they have no

     jurisdiction to issue notice to the Petitioner in both the

     cases."

5.   During the pendency of the proceeding before the Labour

Court, the employee filed application seeking enhancement of

the subsistence allowance and the Labour Court by order

dated 17th Ocober,1996 directed the employer to deposit

recurring subsistence allowance in Court. Employee had also

preferred writ petition against the aforementioned order dated

17thOctober, 1996 which was registered as Civil Rule No. 2771

of 1996.Following its earlier judgment dated 22nd August 1995

                                4

passed in Civil Rule No. 3735 of 1995, the learned Single

Judge by its order dated 24th August, 2001 allowed the writ

petition and quashed the aforesaid order dated 17.10.1996.

6.   Employee, aggrieved by the aforesaid orders of the Single

Judge, preferred separate appeals, which were registered as

Writ Appeal No. 381 of 2001 and Writ Appeal No. 11 of 2002.

Both the appeals were heard together and a Division Bench of

the High Court by its common judgment dated 10th January,

2007 allowed the appeals and set aside both the orders of the
Single Judge.   While    doing so it concurred with the Single

Judge that as the Labour Court at Dibrugarh has not been

specified by the Central Government, it had no jurisdiction to

entertain the petition preferred by the employee. However, on

its finding that claim of subsistence allowance falls within

Section 10A(2) of the Industrial Employment(Standing Order)

Act, and the    Branch of the Bank where the employee was

working, fell within the limits of jurisdiction of Labour Court in

question, it shall have jurisdiction to decide the claim. While

doing so, it observed as follows :

                          5

        "In the instant case, the Labour Court at

Dibrugarh has not been `specified' by the Central

Government for the said purpose and accordingly,

we are unable to agree with the first submission

advanced by the learned counsel for the appellant

that the Labour Court at Dibrugarh would have

jurisdiction to entertain the application filed by the

Appellant only on the basis of the provisions under

the Act.

      However, the provisions of the Standing Orders

Act appear to indicate that a Labour Court

constituted under the 1947 Act, whether by the State

Government or Central Government, would have

jurisdiction to entertain a claim of subsistence

allowance payable to a workman on an application

made to such Labour Court by the concerned

workman. The provisions of Section 10A(2) of the

Standing Orders Act is a special provision

incorporated only for adjudicating on claim relating

to payment of subsistence allowance.

      Having regard to the special provision under

Section 10A(2) of the Standing Orders Act, we feel

that the Labour Court of Dibrugarh, although

constituted by the State Government, would have

jurisdiction to entertain a claim for subsistence

allowance even in respect of employees under a

nationalized banks. It is not specified in Section

10A(2) of the Standing Orders Act that the Labour

Court constituted under the 1947 Act has to be a

Labour Court constituted by an appropriate

Government.     It is also not stipulated that the

appropriate Government has to `specify' such a

Labour Court for entertaining on application under

Section 10A(2) of the Standing Orders Act. The only

requirement for assumption of jurisdiction by a

Labour Court under Section 10A(2) of the Standing

Orders Act is that the Labour Court has to be one,

which has been constituted under the 1947 Act and

                               6

     the concerned establishment must be functioning

     within the local limits of the jurisdiction of such

     Labour Court.

           Having noted the provisions as above, we are of

     the view that the entertainment of the application by

     the Labour Court at Dibrugarh was proper in respect

     of the claim for subsistence allowance put forward

     by the Appellant, we hold that with regard to the

     claim for subsistence allowance put forward by the

     Appellant against the Respondent bank, the Labour

     Court at Dibrugarh has jurisdiction. We accordingly

     declare that the Labour Court at Dibrugarh was

     competent and had jurisdiction to entertain the claim

     for subsistence allowance put forward by the

     Appellant. The impugned decision of the learned

     Single Judge to the contrary is accordingly interfered

     with."

7.   Employer is assailing this common order in these

appeals.

8.   Mr. Jagat Arora, learned counsel appearing on behalf of

the appellant submits that in view of clear and unambiguous

language employed in Section 33C(2) of the Industrial

Disputes Act, the money due to an employee can be

adjudicated by a Labour Court specified by the appropriate

Government.    He points out that the appropriate Government

admittedly is the Central Government and it having not

specified the Labour Court where the employee had brought

the action, it had no jurisdiction to entertain and adjudicate

                             7

the claim of the employee.    In support of the submission

reliance has been placed on a decision of this Court in the

case of Treogi Nath and others vs. Indian Iron and Steel

Co.Ltd. and others (AIR 1968 SC 205) and our attention has

been drawn to the following passage from paragraph 4 of the

judgment which reads as follows:

     "The language of S.33-C(2) itself makes it clear that

     the appropriate Government has to specify the

     Labour Court which is to discharge the functions

     under this sub-section. The use of the expression

     "specified in this behalf" is significant. The words

     "in this behalf" must be given their full import and

     effect. They clearly indicate that there must be a

     specification by the appropriate Government that a

     particular Court is to discharge the function under

     S.33-C(2) and, thereupon, it is that court alone

     which will have jurisdiction to proceed under that

     provision. The mere fact that a Labour Court has

     been constituted under S.7(1) of the Act for the

     purpose of adjudication of industrial disputes as

     well as for performing other functions that may be

     assigned to it under the Act does not mean that that

     Court is automatically specified as the Court for the

     purpose of exercising jurisdiction under S.33-C(2) of

     the Act. S.33-C(2) confers jurisdiction only on those

     Labour Courts which are specified in this behalf,

     i.e., such Labour Courts which are specifically

     designated by the State Government for the purpose

     of computing the money value of the benefit claimed

     by a workman."

9.   Mr. A.K. Panda, learned Senior Counsel, however,

appearing on behalf of the employee-respondent submits that

                               8

in view of the explanation appended to Section 33C of the

Industrial Disputes Act, Labour Court includes any Court

constituted under any law relating to investigation and

settlement of industrial disputes in force in any State and the

Labour Court before which employee laid his claim has been

constituted for investigation and settlement of industrial

disputes, it will have jurisdiction to entertain and adjudicate

the money claim of the employee.

10.   Before we advert to the rival submissions it is expedient

to go into the legislative history of the enactment in question.

The Industrial Disputes Act, 1947 as originally enacted did not

provide for any remedy to individual employee to enforce his

existing rights and only way to enforce the existing rights was
to raise an industrial dispute. The legislature inserted Section

20 in the Industrial Disputes (Appellate Tribunal) Act, 1950

(since repealed) which provided for the recovery of the money

due from the employer under an award or decision. Further,

by the Industrial Disputes (Amendment) Act, 1953 the

legislature inserted Chapter 5A to the Industrial Disputes Act,

1947, and for the recovery of money due to an employee from

                                9

his employer Section 25-I was enacted. The aforesaid insertion

confined to the dues under Chapter 5A of the Act only but did

not apply to moneys or benefits due under any award,

settlement or any other provision of the Act. Taking note of the

aforesaid   lacunae   the   legislature   passed   the   Industrial

Disputes (Amendment and Miscellaneous Provisions) Act,

1956.     This Act repealed the Industrial Disputes (Appellate

Tribunal) Act, 1950 as also Section 25-I in Chapter 5A of the

Industrial Disputes Act, 1947 and inserted Section 33C in the

later Act. Section 33C as inserted by Amending Act, 1956

made provision for recovery of money due to an employee from

his employer not only under the provision of Chapter 5A but

also under settlement and awards. However, it did not

prescribe any period of limitation and further only the

workman entitled to a money or benefit himself could make an

application. With a view to obviate this lacuna Section 33C of

the Industrial Disputes Act, 1947 was recast by Section 23 of

the     Industrial Disputes (Amendment) Act, 1964(Act 36 of

1964). Section 33C of the Industrial Disputes Act, 1947 as

stood before the amendment by Act 36 of 1964 read as follows:

                                10

      "Section 33C. Recovery of Money Due from an

      Employer - (1) Whey any money is due to a

      workman from an employer under a settlement or

      an award or, under the provisions of chapter 5A, the

      workman may, without prejudice to any other mode

      of recovery, make an application to the appropriate

      government for the recovery of the money due to

      him, and if, the appropriate government is satisfied

      that any money is so due, it shall issue a certificate

      for that amount to the collector, who shall proceed

      to recover the same in the same manner as an

      arrear of land revenue.

      (2)   Where any workman is entitled to receive from

            the employer, any benefit which is capable of

            being computed in terms of money, the

            amount at which such benefit should be

            computed may, subject to any rules that may

            be made under this Act, be determined by

            such labour court as may be specified in this

            behalf by the appropriate government and the

            amount so determined may be recovered as

            provided for in sub-section (1).

      (3)   For the purpose of computing the money value

            of a benefit, the labour court may, if it so

            thinks fit, appoint a commissioner who shall,

            after taking such evidence as may be

            necessary, submit a report to the labour court

            and the labour court shall determine the

            amount after considering the report of the

            commissioner and other circumstances of the

            case."

11.   Section 33C of the Industrial Disputes Act, as amended

by Section 23 of the Amendment Act 36 of 1964 made

substantial changes in law with which we are not concerned in

                               11

the present appeals, except explanation inserted in Section

33C, the effect whereof shall be considered in this judgment.

Section 33C(2) and (5) of Industrial Disputes Act, as it stands

today read as follows :

     "33C. Recovery of money due from an employer -

     (1)   xxx       xxx        xxx       xxx

     (2) 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 the

     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.

     (3)   xxx       xxx        xxx       xxx

     (4)   xxx       xxx        xxx       xxx

     (5) Where workmen employed under the same

     employer are entitled to receive from him any money

     or any benefit capable of being computed in terms of

     money, then subject to such rules as may be made in

     this behalf, a single application for the recovery of

     the amount due may be made on behalf of or in

     respect of any number of such workmen.

     Explanation.--In this section "Labour Court" includes

     any court constituted under any law relating to

     investigation and settlement of industrial disputes in

     force in any State."

                                  12

12.   From a plain reading of Section 33C(2) it is evident that

money due to a workman has to be decided by such Labour

Court "as may be specified in this behalf by the appropriate

Government." Section 7 of the Industrial Disputes Act, 1947

inter alia confers power to the appropriate Government for

constitution of one or more Labour courts for the adjudication

of industrial disputes.     It also prescribes             qualification for

appointment      as   Presiding    Officer       of    a    Labour      Court.

Explanation appended to Section 33C of the Act provides to

include any Court constituted under any law relating to

investigation and settlement of industrial disputes               in     force

in any State as Labour Court. The underlying object behind

inserting   explanation    seems       to   be    varying      qualification

prescribed for    appointment of Presiding Officers of Labour

Court by different State enactments.             The       Parliament    took

note of the fact while inserting        explanation          that there are

different   kinds of      Labour        Courts         constituted under

Industrial Disputes Act and State Acts                     and a question

may arise whether a Labour Court constituted under Acts,

                              13
Central or State could entertain a claim made under Section

33C(2) of the Act.

13.   An explanation is appended ordinarily to a section to

explain the meaning of words contained in that section. In

view of the explanation aforesaid Labour Court shall include

any Court constituted under any law relating to investigation

and settlement of industrial disputes in force in any State.

Money due to an employee under Section 33C(2) is to be

decided by "Labour Court as may be specified in this behalf by

the appropriate Government".       Therefore, the expression

"Labour Court" in Section 33C(2) has to be given an extended

meaning so as to include Court constituted under any law

relating to investigation and settlement of industrial disputes

in force in any State. It widens the choice of appropriate

Government and it can specify not only the Labour Courts

constituted under Section 7 of the Industrial Disputes Act,

1947 but such other Courts constituted under any other law

relating to investigation and settlement of industrial disputes

in force in any State.

                               14

14.   But this does not end the controversy.     The power to

adjudicate money claim is to the Labour Court "as may be

specified in this behalf by the appropriate Government". Every

word used by the Legislature carries meaning and therefore

effort has to be made to give meaning to each and every word

used by it. A construction brushing aside words in a Statute

is not a sound principle of construction. The Court avoids a

construction, if reasonably permissible on the language, which

renders an expression or part of the Statute devoid of any

meaning or application. Legislature never waste its words or

says anything in vain and a construction rejecting the words

of a Statute is not     resorted to, excepting for compelling

reasons.    There does not exist any reason, much less

compelling reason to adopt a construction, which renders the

words "as may be specified in this behalf" used in Section

33C(2) of the Act as redundant. These words have to be given

full meaning. These words in no uncertain terms indicate that

there has to be specification by the appropriate Government

that a particular court shall have jurisdiction to decide money

claim under Section 33C(2) of the Act and it is that court alone

                               15

which shall have the jurisdiction.    Appropriate Government

can specify the court or courts by general or special order in

its discretion. In the present case, there is nothing on record

to show that the Labour Court at Dibrugarh has been specified

by the appropriate Government, i.e., Central Government for

adjudication of the disputes under Section 33C(2) of the

Industrial Disputes Act.    This question in our opinion has

squarely been answered by this Court in the case of Treogi

Nath (Supra).    True it is that rendering this decision, this

Court did not consider the explanation appended to Section

33C of the Act, as the lis pertained to period earlier to

amendment but in view of what we have said above, excepting

the widening of choice pertaining to Courts, explanation does

not   dispense with the requirement of specification of court by

appropriate Government.

15.   Having said so the next question which falls for

determination is as to whether Labour Court at Dibrugarh

could have entertained the application under Section 10-A of

Industrial Employment (Standing Orders) Act, 1946. Section

10A of the Act reads as follows:

                         16

"10-A. Payment of subsistence allowance.--

(1) Where any workman is suspended by the

employer pending investigation or inquiry into

complaints or charges of misconduct against him,

the employer shall pay to such workman

subsistence allowance-

     (a) at the rate of fifty per cent of the wages

which workman was entitled to immediately

preceding the date of such suspension, for the first

ninety days of suspension; and

     (b) at the rate of seventy-five per cent of such

wages for the remaining period of suspension if the

delay in the completion of disciplinary proceedings

against such workman is not directly attributable to

the conduct of such workman.

      (2) If any dispute arises regarding the

subsistence allowance payable to a workman under

sub-section (1), the workman or the employer

concerned may refer the dispute to the Labour

Court, constituted under the Industrial Disputes

Act, 1947 (14 of 1947), within the local limits of

whose jurisdiction the industrial establishment

wherein such workman is employed is situate and

the Labour Court to which the dispute is so referred

shall, after giving the parties an opportunity of

being heard, decide the dispute and such decision

shall be final and binding on the parties.

     (3) Notwithstanding anything contained in the

foregoing provisions of this section, where

provisions relating to payment of subsistence

allowance under any other law for the time being in

force in any State are more beneficial than the

provisions of this section, the provisions of such

other law shall be applicable to the payment of

subsistence allowance in that State."

                                 17

16.   From a plain reading of the Section 10A(2) of the

aforesaid Act it is evident that the Labour Court constituted

under the Industrial Disputes Act, 1947 within the local limits

of whose jurisdiction the establishment is situated, has

jurisdiction to decide any dispute regarding subsistence

allowance. Here in the present case undisputedly dispute

pertains to subsistence allowance and the Labour Court where

the workman had brought the action has been constituted

under Section 7 of the Industrial Disputes Act, 1947 and

further the appellant bank is situated within the local limits of

its jurisdiction. The workman had, though, chosen to file

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

Act but that in our opinion shall not denude jurisdiction to

the Labour Court, if it otherwise possesses jurisdiction.

Incorrect label of the application and mentioning wrong

provision neither confers jurisdiction nor denudes the Court of

its jurisdiction. Relief sought for, if falls within the jurisdiction

of the Court, it can not be thrown out on the ground of its

erroneous label or wrong mentioning of provision. In the

present case the Labour Court, Dibrugarh satisfies all the

                              18

requirements to decide the dispute raised by the employee

before it.

17.   As the matter is pending before Labour Court since long,

it shall make endeavour to finally decide the dispute within 6

months from today. Appellant as also respondent are directed

to appear before the Labour Court, within four weeks from

today.

18.   In the result, both the appeals are dismissed with cost,
quantified at Rs.25,000/- to be paid by the appellant to the

respondent.

                                    ........................................J.

                                   ( G.S. SINGHVI )

                                    ........................................J.

                                   ( C.K. PRASAD )

New Delhi,

July 6, 2010.

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India Contract >> Legal Resources >> Employment >> Court decisions >> VIJAYA BANK Vs.
SHYAMAL KUMAR LODH
Industrial Disputes Act, 1947: s.33C(2) - Subsistence allowance - Application for suspension/subsistence allowance filed under

s.33C(2) before the Labour Court, Dibrugarh constituted under s.7 of the Act - Employer situated within the local limits of its

33. It is now convenient to consider whether a tribunal constituted under the Industrial
Disputes Act, 1947, exercises all or any one of the functions of a court of justice and whether
it discharges them according to law or whether it can act as it likes in its deliberations and is
guided by its own notions of right and wrong.
34. Such a dispute concerns the rights of employers and employees. Its decision affects
the terms of a contract of service or the conditions of employment. Not only may the
pecuniary liability of an employer be considerably affected by the adjudication of such
dispute but it may even result in the imposition of punishments on him. It may adversely
affect the employees as well. Adjudication of such a dispute affects valuable rights. The
dispute and its result can always be translated in terms of money. The point for decision in the
dispute usually is how much money has to pass out of the pocket of the employer to the
pocket of the employee in one form or another and to what extent the right of freedom of
contract stands modified to bring about industrial peace. Power to adjudicate on such a
dispute is given by Section 7 of the statute to an Industrial Tribunal and a duty is cast on it to
adjudicate it in accordance with the provisions of Act. The words underlined clearly imply
that the dispute has to be adjudicated according to law and not in any other manner. When the
dispute has to be adjudicated in accordance with the provisions of the Act, it follows that the
Tribunal has to adhere to law, though that law may be different from the law that an ordinary
court of justice administers. It is noteworthy that the Tribunal is to consist of experienced
judicial officers and its award is defined as a determination of the dispute. The expression
“adjudication” implies that the Tribunal is to act as a judge of the dispute; in other words, it
sits as a court of justice and does not occupy the chair of an administrator. It is pertinent to
point out that the Tribunal is not given any executive or administrative powers. In Section 38
of the Act power is given to make rules for the purpose of giving effect to the provisions of
B.E.S.T. Undertaking v. Agnes 7
the Act. Such rules can provide in respect of matters which concern the powers and procedure
of tribunals including rules as to the summoning of witnesses, the production of documents
relevant to the subject-matter and as to appearance of legal practitioners in proceedings under
this Act. Rule 3 of these Rules provides that any application for the reference of an industrial
dispute to a tribunal shall be made in Form (A) and shall be accompanied by a statement
setting forth, inter alia, the names of the parties to the dispute and the specific matters of
dispute. It is in a sense in the nature of a plaint in a suit. In Rule 13 power is given to
administer oaths. Rule 14 provides as follows:
“A tribunal may accept, admit or call for evidence at any stage of the proceedings before
it and in such manner as it may think fit.”
B.E.S.T. Undertaking 66 v. Agnes
though his name was not in the list of permanent employees, he was entitled to payment of
salary and allowances from the date of termination till the date of reinstatement with
continuity of service. In Tulsipur Sugar Co., there was a correction of an omission which fell
within Section 6(6). In Imtiaz Hussain, there was a review of the original order which of
course, was impermissible. We may now summarise the scope of Section 6(6) of the Act thus:
(a) If there is an arithmetical or clerical or typographical error in the order, it can
be corrected.
(b) Where the court had said something which it did not intend to say or omitted
something which it intended to say, by reason of any accidental slip/omission on the
part of the court, such inadvertent mistake can be corrected.
(c) The power cannot be exercised where the matter involves rehearing on
merits, or reconsideration of questions of fact or law, or consideration of fresh
material, or new arguments which were not advanced when the original order was
made. Nor can the power be exercised to change the reasoning and conclusions.
9. In this case, the reference to the Labour Court consisted of two parts - whether the
termination of the workman was proper and legal, and if the answer was in the negative, then
the benefits or compensation to which the workman was entitled. The award originally made,
answered the first part in the negative, but did not answer the consequential second part of the
reference. In fact the award ended rather abruptly. On an application being made under
Section 6(6), the Labour Court recorded that it had accidentally omitted to answer the second
part of the reference and rectified the omission by adding a paragraph. This case, therefore,
squarely falls under Tulsipur Sugar. We are of the view that the Labour Court had the power
to amend the award.
10. But whether such modification was warranted, is a different question. The next
question, therefore, is whether the facts and circumstances warrant grant of back wages,
assuming that the punishment imposed was excessive.
Re: Question (ii)
11. Learned counsel for the employee relied on several decisions of this Court to contend
that where the order of dismissal or removal is set aside and the employee is directed to be
reinstated, full back wages should follow as a matter of course.
12. Hindustan Tin Works (P) Ltd. related to retrenchment of some workmen on the
ground that the employer was suffering mounting losses. The Labour Court held that the real
reason for retrenchment was the annoyance felt by the management when the employees
refused to agree to its terms. Consequently, it directed the reinstatement with full back wages.
That was challenged by the employer. This Court granted leave to appeal, only in regard to
the question of back wages, as it did not consider it necessary to interfere with the direction
for reinstatement. Ultimately, while reducing the back wages to 75%, this Court observed as
follows:
“9. … If thus the employer is found to be in the wrong as a result of which the
workman is

at all

in both WPs

For Respondents : Mr.A.Arumugam,Spl.G.P.

for R1 in both WPs

Mr.Ajay Khose

for R2 to R25 in both WPs

COMMONORDER

Heard both sides.

2. These two writ petitions were filed by one and the same petitioner. In the
first writ petition, the challenge is to the order passed by the first respondent
Deputy Chief Inspector of Factories who is an authority constituted under the
Tamil Nadu Industrial Establishment (Conferment of Permanent Status to
Workman) Act, 1981.

3. By an impugned order dated 21.08.2000, the authority held except one

T.Radhakrishnan (R24) all other workmen have completed 480 days' of
service within 24 calendar months and therefore, they were directed to be
conferred permanent status in terms of Section 3 of the Tamil Nadu Industrial
Establishment (Conferment of Permanent Status to Workmen) Act 1981 (for
short TN Act 46 of 1981). In respect of R24, (T.Radhakrishnan), it was directed
that on the date by which he completes 480 days of service, he will also be
made permanent.

4. The writ petition was admitted and notice was ordered to the respondents
workmen. Pending the writ petition, an interim stay was granted.
Subsequently, when the workmen filed a vacate stay application, this Court by
an order dated 23.09.2003 directed the main writ petition itself to be disposed
of. Hence, it was directed to be listed for final hearing. The official respondents
have filed a counter affidavit dated 14.04.2004.

5. In the meanwhile, the very same Management filed the second writ petition
being W.P.No.17891 of 2000, challenging the order of the first respondent
Joint Commissioner of Labour, Coimbatore made in Retrenchment
Application No.1 of 2001 rejecting the request for grant of retrenchment by an
order dated 08.03.2001. The petitioner Management filed an application
dated 08.01.2001 seeking prior permission to retrench the respondents 2 to
25. The authority after considering the relevant circumstances and after due
notice to the contesting respondents refused to grant the permission. When
the writ petition came up on 27.09.2001, only notice of motion was ordered.
Subsequently, the matter was admitted on 19.02.2003.

6. In view of the interconnectivity between the two writ petitions, they were
heard together and a common order is passed.

7. It is the claim of the workmen that they joined the petitioner mill between
May 90 and June 1995. They were directly involved in production work like
any other permanent workmen right from the date of their initial
appointment. Though they were also performing the work of regular workmen,
they were not made permanent and were not given the scale of pay and other
benefits available to the permanent workmen. Therefore, they filed an
application dated 20.05.1999 before the authority under Section 3(1) of the
T.N.Act 46 of 1981 claiming permanency.

8. G.M.Ramaswamy (R10) and A.Sebastian (R21) were examined as witnesses

on the side of the workmen. They also filed 8 exhibits which were marked on
their side. On the side of the Management one Janarthanan was examined and
9 exhibits were marked. After hearing the arguments of both sides, the
authority passed the impugned order. While calculating the number of days
worked by the workmen, the authority excluded the period of Apprenticeship
i.e., a period of three years as provided under the model standing orders
applicable to the workmen. It was also proved that the workmen were not
given any training and it was misnomer to call them as trainees. They were
given timecards and were made to work in all the shifts in all places of work
along with the permanent workmen. On the strength of the order passed by
the authority, the workmen claimed permanency. But however even the
existing work was denied to them from December 1999 till March 2000. A
petition claiming lay off compensation was filed before the Labour Court in
C.P.No.444 of 2000.

9. In the meanwhile, the Management filed an application seeking permission

to retrench them under Section 25-N of the Industrial Disputes Act, 1947 (for
short I.D.Act) before the Joint Commissioner of Labour, who is the competent
authority. But the competent authority rejected the request of the
Management by an order dated 08.03.2001. It was contended by the workmen
that the order passed by the two authorities do not suffer from any infirmity
calling for any interference from this Court.

10. In the counter affidavit filed by the official respondents, it was stated that
though terms of settlement under Section 12(3) of the I.D.Act dated
08.03.1990 was pressed into service. But no records were produced to show
that the workmen were all apprentices. Even the settlement under Section
12(3) is ultra vires and against T.N.Act 46 of 1981. It must be noted that model
standing orders were amended by the State Government by G.O.Ms.No.713
Labour and Employment Department, dated 04.10.1977 defining the term
'Apprentice'. Under Model Standing Order 2(h), the term 'apprentice' is
defined as one who is engaged essentially in learning and it shall not exceed
one year with those who are having technical qualification and three years for
others. The Management itself had accepted they were performing in all the
three shifts and were also getting overtime. If they are Apprentices as covered
by the Apprentices Act, 1961, there can never be any over time in terms of
Section 15 of the Apprentices Act. The Tamil Nadu Act 46 of 1981 does not
make any distinction based on nomenclatures of various appointments. The
workmen have let in evidence that they were fully discharging duties as per the
terms of the settlement which was also not denied by the Management.
Annexure IV to the settlement signed under Section 12(3) dated 04.08.1997
has no relevance. It is claimed that the strength fixed for the Mill was 141
workmen and that the workmen will be gradually made permanent cannot be
accepted.

11. Mr.R.Parthiban, learned counsel for the petitioner contended that the
company was running under loss and was brought under BIFR. Since the
workmen were employed as Apprentices, they were not covered by the
Provident Fund Act and Employees State Insurance Act. Even the definition of
the workmen under T.N.Act 46 of 1981 does not include 'Apprentices'.

12. Similarly in W.P.No.17891 of 2001, the Management contended that the

Mill is doing badly and also covered by BIFR as it had an accumulated loss
which rose up to Rs.335.54 lakhs. As per the norms, they are entitled to have
only 116 workers whereas the present strength is 139 permanent workers in
addition to the 24 'Apprentices' who are the respondents herein.

13. However, the authority in his elaborate order found that the grounds for
retrenchment were not made out and hence, permission for grant of
retrenchment cannot be granted.
16. But in the present case, the said judgment has no application since the
contesting respondents are not Act Apprentices, but they were workman
within the definition of Section 2(s) of the I.D.Act. A Division Bench of this
Court vide its decision in The Southern India Mills Association v. The State of
Tamilnadu and others reported in 2010 Writ L.R distinguished the U.P.State
Electricity Board's case (cited supra) and held that if there was a specific
inclusion of the term 'apprentice' in a rule or notification then that case has no
relevance for deciding the issue in relation to other enactments. The decision
was confined to the apprentices covered by the Apprentices Act, 1961 only.

17. The learned counsel for the Management also placed reliance upon the
judgment of the Supreme Court in U.P.State Electricity Board and another v.
Dharmendra Kumar Bajpai reported in (2005) 13 SCC 679. Reliance was
placed upon paragraph 6 of the judgment, which is as follows:- "6. In our
opinion, the decision rendered by the three learned Judges in U.P. SEB case
governs the facts of the present case. Once it is found on facts that the
engagement was as an apprentice, obviously, the provisions of the U.P. Act and
the Act cannot be applied and the forum of adjudication cannot be any forum
created under the aforesaid Acts. So far as the questions whether the
respondent belonged to a designated trade, the foundation of the claim was a
decision of the Madhya Pradesh High Court in M.P. Electricity Board v. Basant
Kumar Pandey. The correctness of that judgment was tested in U.P. SEB case
and in para 61 of the judgment, it was clearly observed that this Court did not
agree with the view subscribed by the Madhya Pradesh High Court."

22. Therefore, the first writ petition is liable to be dismissed.

23. In respect of the second writ petition, the authority had gone into the issue
and had refused permission to retrench only on the basis of materials
produced before him. There is no case of interference called for. The Supreme
Court vide its judgment in Workmen, Meenakshi Mills Ltd. v. Meenakshi Mills
Ltd., reported in 1992 (3) SCC 336 in considering the objection of employers
that they do not have any method of challenging the order passed by the
competent authority, the Court held that Section 25-N(6) provides for a review
as well as a reference to the Tribunal. Therefore, there is no reason why this
Court should entertain such a writ petition.

24. Similar view was taken by this Court in M/s.Veejay Lakshmi Engineering
Works Limited v. Joint Commissioner of Labour (Authority under Section 25N
of the Industrial Disputes Act) in W.P.No.14934 of 1999 dated 30.07.2008.
Therefore, the petitioner having not utilised the inbuilt mechanism provided
under the I.D.Act, this Court is not inclined to entertain the writ petition.
 
Para 12:           In the instant case, on a consideration of material produced before it, the Tribunal came to
the following conclusions:
 
(1)        That there existed a relationship of master and servant.
(2)        That there was no contractor appointed by
            ONGC.
(3)        That the ONGC used to supervise and allot
            works to individual workers.
(4)        That the ONGC took disciplinary action and
            called for explanations from the workers.
(5)        The workers were paid wages though they did not attend their duties due to Cachar Bandh and due
to flood.
(6)        The wages were paid direct to the workers by the ONGC and the acquaintance roll was prepared by
the Management to make payment to the workmen".
 
Para 13:           It has also been observed that even the ONGC had admitted that since 1988, there was no
licensed contractor and that the wages were being paid through one of the leaders of the Union and one such
contractor, Manik has been named.  The Tribunal then opined that it appeared from the record that Manik
himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received
wages.   We find that the real issue was as to the status of the workmen as employees of the ONGC or of the
contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-
facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore,
pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the
High Court were justified in lifting the veil in order to determine as to the nature of employment in the light
of the judgments quoted above.     We, therefore, find that the ratio of the judgment in Uma Devi's case
(supra) would not be applicable and that the facts of Pandey's case are on the contrary more akin to the facts
of the present one.
 
Para 14:           We are therefore of the opinion that in the light of the aforesaid observations, Mr. Dave's  
argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and
the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case.
 
 
.  
Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari
calling for the records of the first respondent relating to Award dated 14.3.2005 and made in I.D. No. 311 of
2004 and quash  the same.
 
W.P. No. 12772 of 2006:-
 
1.         G. Karmegam
2.         G. Sekar Babu
3.         J. Irudayaraj
4.         A. Rajkumar
5.         K. Williams
6.         S. Egambaram
7.         K. Vadivel
8.         P.S. Irudayaraj                                    .. Petitioners
                                    vs.
 
 
1.         Hindustan Petroleum Corporation Ltd.
            Rep. by its Chairman  cum  Managing Director
            17  Jameshedji Tata Road
            Mumbai
 
2.         Hindustan Petroleum Corporation Ltd.
            Rep. by its General Manager
            4th Floor
            Thalamuthu Natarajan Building
            Gandhi Irwin Road
            Egmore, Chennai
 
3.         The Presiding Officer
            Central Government Labour Court
                        cum Industrial Tribunal
            Shastri Bhavan
            Chennai
 
4.         The Regional Secretary
            Petroleum Workers Union
            Hindustan Petroleum Corporation Ltd.
            Egmore, Chennai                                .. Respondents
           
 
COMMONORDER
 
            W.P. No. 37547 of 2005 is filed by the Hindustan Petroleum Corporation Limited [for short,
'HPCL'], a Public Sector Undertaking, against the Award dated 14.3.2005 passed by the Central
Government Industrial Tribunal  cum  Labour Court, Chennai [for short, 'CGIT'] in I.D. No. 311 of 2004 in
granting relief of regularisation to the respondents 3 to 10 from the date of their alleged retrenchment with
all attendant benefits including backwages quantified at 50%.
 
            2.         W.P. No. 12772 of 2006 is filed by eight workmen challenging the very same Award dated
14.3.2005 as well as the order dated 19.9.2005 made in I.A. No. 239 of 2005 and seeks for regularisation of
their service from the date of completion of 480 days of service of their service, which was denied by the
CGIT.
            3.         The writ petition filed by the Management of the HPCL was admitted on 21.11.2005 and an
interim stay was granted on the same day.  Subsequently, when the workmen filed a petition for vacating the
stay, this Court, vide order dated 26.4.2006,  directed the HPCL to pay Rs.6175/- to each of the workmen
every month starting from October 2005 and that the arrears was to be made within a period of four weeks
from the date of receipt of a copy of that order and if the workmen are not restored to duty on or before
15.5.2006, the HPCL was further directed to continue to pay monthly salaries in terms of Section 17B of the
Industrial Disputes Act, 1947 [for short, 'I.D. Act'].
 
            4.         In view of the interconnectivity between these two writ petitions, the matters were taken up
together and a common order is being passed.