(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Applicant-workman had filed this contempt petition alleging that the respondent-employer had not given an effect to the directions issued by this Court in order dated 17.08.2011 passed in Special Civil Application No. 4845 of 2011.
2. When this petition came up before us previously on 23.02.2012, learned counsel, Mr. Vaishnav for the respondent- employer contended that benefit of continuity in service would not flow from order dated 17.08.2011 passed by this Court. After hearing both the sides, we had made detailed observations with respect to such a stand. Our order dated 23.02.2012 reads as under:
The applicant was the original petitioner. He was employed by the respondent Company as an Assistant in the year 1982. With respect to his employment disputes arose between the parties. Case of the applicant was he was terminated from the service. Stand of the respondent was that he has abandoned his service. Such dispute was referred to Labour Court for adjudication in Reference LCA No. 661/1991, 632/2006. Such references came to be disposed of by the Labour Court by common award dated 24/05/2010. Request for reinstatement was granted. Prayer for back wages was declined. There was no clear direction with respect to continuity or otherwise of the service.
The workman challenged the award of the Labour Court before the High Court by filing Special Civil Application 4845/2011. In the said petition, the workman had made following prayer :
"Your Lordships be pleased to issue writ of certiorari or writ of mandamus or appropriate writ, order or direction by directing the Respondent to pay the full backwages with continuity of service & all consequential benefits to the petitioner from the date of termination till the actual date of reinstatement and be further pleased to modify the common award dt.24/5/2010 passed by the Labour Court in Reference (LCA) No.661/1998 & Reference (L.C.A.) 632/2006 only qua the extent of backwages as the said award denies full back wages."
Before the High Court the management filed an affidavit dated 11/07/2011 of Shri Chandrakant Damordas in which it was stated that as per the award of the Labour Court the petitioner was reinstated with respondent company with continuity of service.
It appears that on 08/08/2011 on behalf of the petitioner it was conveyed to the court that the petitioner would be aggreable to forgo back wages provided he is paid with continuity of service at par with other similarly situated employees. On behalf of the management counsel agreed to such formula but requested for time to enable him to obtain instructions in writing. Order of the Learned single Judge dated 08/08/2011 reads as under :
"Learned Advocate Mr. Chaudhary, for the petitioner states that his client is agreeable to forgo backwages, provided he is paid (with continuity of service) at par with other similarly situated employees on the same post.
Learned Advocate, Mr. Thakkar, for the respondent has instructions in affirmative, but, he requests that the matter be adjourned so as to enable him to obtain instructions in writing, preferably by way of an affidavit.
The matter is adjourned to 17TH AUGUST, 2011."
Pursuant to the said development, on behalf of the management an additional affidavit came to be filed on 16/08/2011 by Shri Chandrakant Damodardas Soni in which he stated as under :
"1.
I am the Regional Sales Manager of the respondent company and competent to file this additional affidavit.
2. I states that during pendency of the proceedings it was transpired that if the respondent company gives the petitioner salary at par with the other employees of his category then the petitioner will not press for the backwages and other prayers as prayed in the present petition.
3. I state that in the event the petitioner does not press the present petition then the management of the respondent company is agreeable to following conditions :
(i) The petitioner will be treated at par with similarly situated employees of his category and will be getting wages accordingly.
(ii) The petitioner will get difference of wages and other benefits if any, for the days he worked proportionately from the date of reinstatement."
Pursuant to said stand of the workman and the stand adopted by the management, Learned Single Judge disposed of the petition by order dated 17/08/2011 passing following order :
"1. Learned Advocate, Mr. Pratik P. Thakkar, for the respondent-Company files affidavit of one Mr. Chandrakant Damodardas Joshi, who is Regional Sales Manager of the respondent-Company, stating that:
"3. I state that in the event the petitioner does not press the present petition then the management of the Respondent Company is agreeable to following conditions:-
(i) The petitioner will be treated at par with similarly situated employees of his category and will be getting wages accordingly.
(ii) The petitioner will get difference of wages and other benefits if any, for the days he worked proportionately from the date of reinstatement."
2. In view of the aforesaid affidavit, learned Advocate, Mr. P.C. Chaudhary, on instruction, states that his client DOES NOT press for BACK-WAGES.
3. In view of the aforesaid development, the grievance of the petitioner does not survive and the petition is DISPOSED OF in the aforesaid terms."
This contempt petition has been filed contending that despite clear understanding and the order passed by this Court, management is not giving benefit of continuous service to the applicant in terms of pay fixation and arrears of salary.
Case of the respondent is that respondent has carried out full directions.
Short dispute is whether the applicant was entitled to continuity and benefit of pay fixation and whether same has been granted?
This controversy arises due to the fact that management has admittedly fixed the salary of the applicant since his reinstatement pursuant to the award of Labour Court granting him benefit of service of approximately 10 years which he had actively put in before his alleged termination. In other words, management granted service benefit of service actively rendered by the applicant for the purpose of pay fixation and ignored the period during which he remained under termination.
We are of the opinion that such a stand of the management is totally contrary to the assurances given by the management to the court on basis of which writ petition came to be disposed of by the Learned Single Judge. We may recall that applicant had approached the High Court against the award of the Labour Court granting reinstatement but without back-wages. His prayer was to grant full back wages with continuity of service and consequential benefits. It was open for the applicant to raise all contentions in support of his prayers. However, due to compromise between the parties, applicant had forgone his prayer for back-wages. This was brought about by virtue of management's stand before the Learned Single Judge. As already noted, in the first affidavit filed before the Learned Single Judge, it was clearly stated that applicant has already been reinstated with continuity. Subsequently, before Learned Single Judge, counsel for the applicant on 8.8.2011 agreed that the applicant would forgo back-wages provided he is bad paid wages at par with other similarly situated employees granting him continuity of service. Counsel for the management agreed to this formula but took time to obtain written instructions. Subsequently, management filed additional affidavit on 16.8.2011 and agreed that the petitioner will be treated at par with similarly situated employees of his category and will be paid wages accordingly. This additional affidavit has to be read in continuity and in conjunction with the initial affidavit of the management stating that applicant is already reinstated in service with continuity and the developments recorded by the Learned Single Judge in his order dated 8.8.2011 in which counsel for the applicant had agreed to forgo backwages provided the applicants' salary is fixed granting him continuity in service and to which formula, counsel for the management also agreed.
Before us, learned counsel Shri Vaishnav for the management however, vehemently contended that statement contained in earlier affidavit dated 11.7.2011 that the applicant has been reinstated in service with continuity, was an error.
Such stand cannot be accepted for variety of reasons. Firstly, it was never pointed out to the Learned Single Judge that statement made in the first affidavit was erroneously made. Secondly, even before us, there is nothing on record to suggest that such statement crept in inadvertently. Most significantly, it was on a certain formula of understanding between the parties that workman withdrew his petition and did not press for back-wages. Having led the workman to withdraw his petition and forgo part of his challenge on the premise of statement contained in affidavit filed by management, management cannot now turn around and say that such material statement was erroneously made. If management had no intention to grant continuity in service, it was open for the workman to decide whether to accept rest of the offer of the management and still forgo backwages or to argue the entire petition which would include benefits of continuity in service, as also the back-wages. Having prevented the workman from arguing his case on merits, it would not be open for the management to withdraw the most significant statement made on oath on the ground that such statement was inadvertently made. That too on this contempt petition. Even today management has not approached Learned Single Judge for any clarification or for withdrawal of the statement.
Under the circumstances, we are clearly of the opinion that stand of management is contrary to the assurances given to the Learned Single Judge on the basis of which petition came to be disposed of. Management is therefore, granted time upto 22.3.2012 to refix the salary of the workman granting him continuity in service and also to pay the difference on the basis of such refixation for the period during which he has actually discharged his duty after reinstatement, failing which, we may be compelled to take further steps in contempt.
S.O.
to 22.3.2012."
3. Pursuant to such order, the opponent filed further affidavit dated 29.12.2012. In the said affidavit, it is stated that the petitioner was reinstated in service on 09.12.2012 and as per the order of the Court dated 17.08.2011, the respondent has given continuity in service. It is further stated that as per order dated 23.02.2012, the respondent company has fixed salary of the applicant at Rs. 13,792/- which is highest salary amongst similarly situated Supervisor employed by the respondent-company.
4. The company has also prepared a cheque of Rs. 14,093/- towards difference in salary from the date of reinstatement till 29.02.2012. From the above, it can be seen that the stand of the respondent-company is that the applicant-workman has been granted the benefit of continuity in service. The counsel for the applicant, however, vehemently contended that the fixation of salary of the applicant at Rs. 13,792/- is wholly irrational. The applicant having put in total of nearly 30 years of service (considering benefit of continuity in service ignoring break period), his salary should have been fixed at a higher rate. Counsel for the respondent, however, submitted that the fixation of salary would depend on various factors and not merely on the length of service.
5. When the issue of grant of continuity of service is thrashed out in this contempt petition, what would be the benefits flowing to the applicant-workman by virtue of such continuity in service, cannot be an issue which can be gone into the contempt petition particularly, when such issue is highly disputed between the parties.
6. In view of the above, this contempt petition is disposed of. It would however, be open for the applicant to approach appropriate forum, if he is not satisfied with the fixation of the salary and other benefits flowing from continuity of service. Nothing stated in this order will come in way of either side, if such an issue comes for consideration before any court or forum.
7. Counsel for the respondent hands-over demand draft dated 28.03.2012 for a sum of Rs. 14,093/- to the counsel for the applicant for arrears in salary.
Petition is disposed of accordingly. Notice is discharged.
[AKIL KURESHI, J.] [C.L.SONI, J.] JYOTI Top