1. The Writ Petition is filed by the petitioner with the following prayer:
“to issue a Writ order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to and connected with the impugned order dated 21 01 2016 passed by the Honble Labour Court III Andhra Pradesh Hyderabad in MP No 31/2009 on its file and quash the same and pass”
02. Heard Sri S. Ashok Anand Kumar, learned Senior Counsel for the petitioner and Sri K. Ujwal Babu, learned counsel, representing Ms. Ramaa Swetha Ogirala, learned counsel for the respondent No.1 and perused the record.
03.1. Learned counsel for the petitioner-company submitted that the impugned order dated 21.01.2016 passed by the Labour Court-III in M.P.No.31 of 2009 is wholly illegal, arbitrary and contrary to the material available on record. It is contended that the Labour Court travelled beyond the scope of the Award dated 27.12.2003 passed in I.D.No.48 of 2001 and erroneously granted monetary benefits to the respondent No.1 despite his own failure to report for duty.
03.2. It is further submitted that pursuant to the Award directing reinstatement, the petitioner-company issued proceedings dated 07.05.2004 reinstating the respondent No.1 into service and directing him to report for duty at its Noida Unit. The respondent No.1 acknowledged the said communication and, by letter dated 17.05.2004, did not dispute the reinstatement but merely sought some additional time to report for duty. Thus, according to the learned counsel, the petitioner had fully complied with the Award by offering reinstatement.
03.3. It is further submitted that instead of reporting for duty, the respondent No.1 addressed subsequent letters requesting that he should be retained at the Shameerpet Plant on the ground that reinstatement necessarily required posting him at the very place from where he was terminated. It is contended that such a demand was wholly untenable in law, as reinstatement merely restores an employee to service and does not confer any vested right to insist upon posting at a particular station.
03.4. It is further submitted that, by letter dated 02.09.2004, the petitioner once again afforded an opportunity to the respondent No.1 to report for duty at Noida on or before 20.09.2004. The petitioner specifically informed him that there was no suitable vacancy at Shameerpet or Kothur and that, in accordance with the service conditions and the transfer policy of the company, employees were liable to be posted anywhere depending upon the exigencies of work. It was also made clear that failure to join duty would be treated as lack of interest in continuing employment. Despite receipt of the said communication, the respondent No.1 admittedly failed to join duty.
03.5. It is further submitted that, having voluntarily chosen not to report for duty despite repeated opportunities, the respondent No.1 was not entitled to claim wages for the period during which he had not worked. Invoking the well-settled principle of "No Work No Pay", learned counsel argued that no monetary liability could be fastened upon the petitioner for the period during which the respondent No.1 deliberately abstained from joining service.
03.6. It is further submitted that the execution petition, originally filed as M.P.No.18 of 2007 and later renumbered as M.P.No.31 of 2009, was not supported by any acceptable evidence. It is contended that the proceedings remained pending for several years, were dismissed for default on more than one occasion and were prosecuted without leading any oral evidence on behalf of the respondent No.1. Except marking a copy of the earlier Award, no documentary evidence was produced to substantiate the monetary claims made in the petition.
03.7. It is further contended that, in the absence of any legal evidence, the Labour Court could not have directed payment of 50% back wages from 30.05.2004 till reinstatement together with interest at 12% per annum, nor could it have directed computation of wages by treating the respondent No.1 as being in continuous service with all consequential allowances. According to the learned counsel, the Labour Court exceeded the scope of the original Award and granted benefits which were neither contemplated nor legally sustainable.
03.8. It is also submitted that the Labour Court committed a serious error in holding that reinstatement necessarily required posting the respondent No.1 at the Shameerpet Plant. It is contended that reinstatement only restores the employee to the post or cadre from which he was removed and does not prohibit the employer from transferring or posting the employee to another establishment in accordance with service conditions, particularly when no vacancy existed at the earlier place of posting. The finding of the Labour Court to the contrary is stated to be based on an erroneous interpretation of the judgments relied upon by it.
03.9. It is further submitted that the Labour Court misapplied the decisions of the Hon'ble Supreme Court while interpreting the Award and wrongly concluded that back wages were liable to be computed on the basis of revised pay scales and continuity of service. It is contended that the Award dated 27.12.2003 merely granted 50% back wages and did not authorize computation on revised pay scales or confer any additional monetary benefits beyond what was specifically awarded. It is, therefore, submitted that the impugned order suffers from errors apparent on the face of the record, is unsupported by evidence, ignores the admitted conduct of the respondent No.1 in refusing to join duty despite repeated opportunities, and is contrary to the settled principles governing reinstatement and entitlement to back wages. Hence, prayed that the writ petition be allowed by setting aside the impugned order dated 21.01.2016 passed in M.P.No.31 of 2009 by the Labour Court-III, Hyderabad.
03.10. In support of his contentions, learned counsel for the petitioner relied upon a decision of the Hon’ble Supreme Court in Fabril Gasosa v. Labour Commissioner and others ((1997) 3 SCC 150) wherein it was held at Paragraph Nos.17, 19 to 21 that:
“17. In the instant case the period of earlier settlement of 1986 had expired but the expiry of that period would not affect the enforcement of the binding obligations flowing from the earlier settlement till substituted by a fresh settlement. The obligations arising from the earlier settlement would continue to remain in force, though as a contract and not as a binding settlement, but that would make no difference to the maintainability of a claim petition under Section 33-C(1) of the Act so long as the requirements of that sub-section are satisfied and the obligations sought to be enforced flow from an earlier settlement or an award or under Chapter V-A or V-B of the Act.
19. Section 33-C is in the nature of execution proceedings designed to recover the dues to the workmen. Vide Sections 33-C(1) and (2), the legislature has provided a speedy remedy to the workmen to have the benefits of a settlement or award which are due to them and are capable of being computed in terms of money, be recovered through the proceedings under those sub-sections. The distinction between sub-section (1) and sub-section (2) of Section 33-C lies mainly in the procedural aspect and not with any substantive rights of workmen as conferred by these two sub-sections. Sub-section (1) comes into play when on the application of a workman himself or any other person assigned by him in writing in this behalf or his assignee or heirs in case of his death, the appropriate Government is satisfied that the amounts so claimed are due and payable to that workman. On that satisfaction being arrived at, the Government can initiate action under this sub-section for recovery of the amount provided the amount is a determined one and requires no “adjudication”. The appropriate Government does not have the power to determine the amount due to any workman under sub-section (1) and that determination can only be done by the labour court under sub-section (2) or in a reference under Section 10(1) of the Act. Even after the determination is made by the labour court under sub-section (2) the amount so determined by the labour court, can be recovered through the summary and speedy procedure provided by sub-section (1). Sub-section (1) does not control or affect the ambit and operation of sub-section (2) which is wider in scope than sub-section (1). Besides the rights conferred under Section 33-C(2) exist in addition to any other mode of recovery which the workman has under the law. An analysis of the scheme of Sections 33-C(1) and 33-C(2) shows that the difference between the two sub-sections is quite obvious. While the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or V-B, sub-section (2) deals with cases where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. Thus, where the amount due to the workmen, flowing from the obligations under a settlement, is predetermined and ascertained or can be arrived at by any arithmetical calculation or simpliciter verification and the only inquiry that is required to be made is whether it is due to the workmen or not, recourse to the summary proceedings under Section 33-C(1) of the Act is not only appropriate but also desirable to prevent harassment to the workmen. Sub-section (1) of Section 33-C entitles the workmen to apply to the appropriate Government for issuance of a certificate of recovery for any money due to them under an award or a settlement or under the provisions of Chapter V-A and the Government, if satisfied, that a specific sum is due to the workmen, is obliged to issue a certificate for the recovery of the amount due. After the requisite certificate is issued by the Government to the Collector, the Collector is under a statutory duty to recover the amounts due under the certificate issued to him. The procedure is aimed at providing a speedy, cheap and summary manner of recovery of the amount due, which the employer has wrongfully withheld. It, therefore, follows that where money due is on the basis of some amount predetermined like the VDA, the rate of which stands determined in terms of the settlement, an award or under Chapter V-A or V-B, and the period for which the arrears are claimed is also known, the case would be covered by sub-section (1) as only a calculation of the amount is required to be made.
20. A Constitution Bench of this Court in Kays Construction Co. (P) Ltd. v. State of U.P. [(1965) 2 SCR 276 : AIR 1965 SC 1488 : (1965) 2 LLJ 429] while considering the scope of Section 6-H(1) and (2) of the U.P. Industrial Disputes Act, 1947, which provisions are in pari materia with Sections 33-C(1) and (2) opined:
“The contrast in the two sub-sections between ‘money due’ under the first sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes ‘money due’ under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the ‘amount due’ and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between ‘money due’ and a ‘benefit which must be computed in terms of money’ still remains, for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. 21. The law laid down by the Constitution Bench applies with full force to the facts of the instant case and in view of the established facts and circumstances of this case, recourse to the proceedings under Section 33-C(1) of the Act by the Union was just and proper.”
03.11. Further, he relied upon a decision of the Hon’ble Supreme Court in Hasham Abbas Sayyad v. Usman Abbas Sayyad ((2007) 2 SCC 355) wherein it was held at Paragraph Nos.22 and 24 that:
“22. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice, being a nullity, the same ordinarily should not be given effect to. [See Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34 : 1979 SCC (L&S) 99 : AIR 1979 SC 193] and MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. [(2004) 9 SCC 619] ]
24. We may, however, hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure, and a decree passed by a court having no jurisdiction in regard to the subject-matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with.”
03.12. Further, he relied upon a decision of the Hon’ble Supreme Court in Union of India v. Assn. of Unified Telecom Service Providers of India ((2011) 10 SCC 543) wherein it was held at Paragraph Nos.59 and 60 that:
“59. Thus, the Tribunal in its order dated 7-7-2006 has not just decided a dispute on the interpretation of adjusted gross revenue in the licence agreement, but has decided on the validity of the definition of adjusted gross revenue in the licence agreement. As we have already held, the Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the licence including the definition of adjusted gross revenue incorporated in the licence agreement.
Hence, the order dated 7-7-2006 of the Tribunal insofar as it decides that revenue realised by the licensee from activities beyond the licence will be excluded from adjusted gross revenue dehors the definition of adjusted gross revenue in the licence agreement is without jurisdiction and is a nullity and the principle of res judicata will not apply.
60. In Chandrabhai K. Bhoir v. Krishna Arjun Bhoir [(2009) 2 SCC 315 : (2009) 1 SCC (Civ) 512] this Court relying on Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34 : 1979 SCC (L&S) 99] , Union of India v. Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology v. Niraj Kumar Singh [(2007) 2 SCC 481 : (2007) 1 SCC (L&S) 668] has held: (Krishna Arjun case [(2009) 2 SCC 315 : (2009) 1 SCC (Civ) 512] , SCC p. 322, para 26)
“26. … an order passed without jurisdiction would be a nullity. It will be a coram non judice [and] non est in the eye of the law. Principles of res judicata would not apply to such cases.””
03.13. Further, he relied upon a decision of the Hon’ble Supreme Court in Allahabad Bank v. Avtar Bhushan Bhartiya ((2022) 13 SCC 202) wherein it was held at Paragraph No.13 that:
“13. In view of the order passed by this Court on 3-1-2019 [Allahabad Bank v. Avtar Bhushan Bhartiya, 2019 SCC OnLine SC 2164] , the only question that we are called upon to decide is, whether the officer-employee is not entitled to back wages at all or whether he is entitled only to 50% of the back wages as held by the High Court or whether he is entitled to full back wages.”
03.14. Further, he relied upon a decision of the Hon’ble Supreme Court Kallakurichi Taluk Coop. Housing Society Ltd. v. M. Maria Soosai ((2010) 6 SCC 690) wherein it was held at Paragraph Nos.24 and 27 that:
“24. In this regard reference was made to the decision of this Court in Novartis India Ltd. v. State of W.B. [(2009) 3 SCC 124 : (2009) 1 SCC (L&S) 595] wherein the dismissal of an employee for not joining the place to which he had been transferred, fell for consideration and it was held that the same was hit by the principles of natural justice and such dismissal could only be effected after holding a domestic enquiry/disciplinary proceeding.
27. As the facts reveal, Respondent 1 unilaterally stopped coming to work without submitting any leave application or prior intimation and that too not for a day or two, but for months on end. It is, in fact, surprising as to why a decision was taken to consider his case on a compassionate basis, despite laches of his own making. The decision of the appellant Society to reappoint Respondent 1 on compassionate grounds leading to the order of the Registrar (Housing) dated 27-7-1995, permitting the appellant Society to reappoint him, was in itself a concession made to Respondent 1 which he misused subsequently.”
03.15. Further, he relied upon a decision of the Hon’ble Supreme Court in State of Odisha v. Kamalini Khilar ((2021) 6 SCC 546) wherein it was held at Paragraph Nos.32 and 37 that:
“32. The decisions in Hindustan Tin Works (P) Ltd. [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] and Surendra Kumar Verma [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] relate to industrial law and the effect of illegal termination of a workman. An order which is passed pursuant to a direction which is binding on the employer cannot possibly be described as illegal. Therefore, the said case law cannot advance the case of the respondent.
37. In Deepali Gundu Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] , the matter arose under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. This Court undoubtedly laid down that in the case of wrongful termination of service reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may inter alia take into consideration the length of service and the nature of misconduct if any proved, the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent 1 cannot be permitted to draw any benefit from the said pronouncement.”
03.16. Further, he relied upon a decision of the Hon’ble Supreme Court in Gowramma C. v. Hindustan Aeronautical Ltd., ((2022) 11 SCC 794) wherein it was held at Paragraph Nos.11 and 13 that:
“11. In the decision in P.V.K. Distillery Ltd. v. Mahendra Ram [P.V.K. Distillery Ltd. v. Mahendra Ram, (2009) 5 SCC 705 : (2009) 2 SCC (L&S) 134] again relied upon by the respondent, the matter arose out of an award by the Labour Court where exercise of power under Section 11-A of the Industrial Disputes Act was made. This is also a case where incidentally the Court noted that the appellant employer remained closed for years together and it was declared as a sick unit. In this regard, a fact which weighed with the Court is found reflected in the following statement : (SCC p. 710, para 18)
“18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.”
13. The most important question is whether the employee is at fault in any manner. If the employee is not at all at fault and she was kept out of work by reasons of the decision taken by the employer, then to deny the fruits of her being vindicated at the end of the day would be unfair to the employee. In such circumstances, no doubt, the question relating to alternative employment that the employee may have resorted to, becomes relevant. There is also the aspect of discretion which is exercised by the Court keeping in view the facts of each case. As we have already noticed, this is a case where apart from the charge of the employee having produced false caste certificate, there is no other charge. Therefore, we would think that interests of justice, in the facts of this case, would be subserved, if we enhance the back wages from 50% to 75% of the full back wages, which she was otherwise entitled. The appeals are partly allowed. The impugned judgments will stand modified and the respondents shall calculate the amount which would be equivalent to 75% of the back wages and disburse the amount remaining to be paid under this judgment within a period of six weeks from today to the additional appellants.”
03.17. Further, he relied upon a decision of the Hon’ble Supreme Court in Novartis India Ltd. v. State of W.B., ((2009) 3 SCC 124) wherein it was held at Paragraph Nos.33 and 34 that:
“33. In regard to the construction of the words “last pay drawn”, learned counsel has drawn our attention to the decision of this Court in Dena Bank v. Kiritikumar T. Patel [(1999) 2 SCC 106 : 1999 SCC (L&S) 466] , wherein it was held: (SCC p. 115, paras 19-20)
“19. As per the decisions of the High Courts referred to above, the expression ‘full wages last drawn’ in Section 17-B can mean as under:
(i) Wages only at the rate last drawn and not at the same rate at which the wages are being paid to the workmen who are actually working. (Daladdi Coop. Agriculture Service Society Ltd. v. Gurcharan Singh [(1993) 5 SLR 719 (P&H)] )
(ii) Wages drawn on the date of termination of the services plus the yearly increment and the dearness allowance to be worked out till the date of the award. (Vishveswaraya Iron and Steel Ltd. v. M. Chandrappa [(1994) 84 FJR 46 : (1994) 1 LLJ 555 (Kant)] and Kirtiben B. Amin v. Mafatlal Apparels [(1995) 2 Guj LR 1362] )
(iii) Full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. (Carona Sahu Co. Ltd. v. Abdul Karim Munafkhan [(1995) 70 FLR 25 : (1994) 2 LLN 834 (Bom)] , Macneil and Magor Ltd. v. Labour Court [(1995) 1 LLN 1014 (Mad)] and P. Chennaiah v. Executive Engineer [(1996) 2 LLJ 240 (AP)] )
20. The first construction gives to the words ‘full wages last drawn’ their plain and material meaning. The second as well as the third constructions read something more than their plain and material meaning in those words. In substance these constructions read the words ‘full wages last drawn’ as ‘full wages which would have been drawn’. Such an extended meaning to the words ‘full wages last drawn’ does not find support in the language of Section 17-B. Nor can this extended meaning be based on the object underlying the enactment of Section 17-B.”
34. There cannot be any doubt whatsoever that ordinarily an employee who has been transferred should, subject to just exceptions, join at his transferred place. Ordinarily in an industrial undertaking indiscipline should not be encouraged. This Court in SBI v. Anjan Sanyal [(2001) 5 SCC 508 : 2001 SCC (L&S) 858 : JT (2001) 5 SC 203] observed that the conduct of an employee in a transfer case is material as he cannot get a premium for his disobedience. There are, however, certain exceptional situations in this case. Admittedly the respondents were challenging the right of the employer to order transfer of the employee particularly when they hold some posts in the association. The dispute was sub judice. They were in their late fiftees. They had served the company for a period of more than 25 years. It is true that they did not join at their transferred posts within a reasonable time. It may also in an ordinary situation be held that seven months is too long a period to join at the transferred place. There cannot furthermore be any doubt that the transfer is an incidence of service. Unless an order of transfer is passed contrary to the provisions of the statutory rule or settlement, the same should not be interfered with.”
04.1. Learned counsel for the respondent No.1-employee opposed the writ petition and supported the impugned order passed by the Labour Court. It is submitted that the writ petition is devoid of merit and is liable to be dismissed, as the Labour Court has rightly interpreted and implemented the Award dated 27.12.2003 passed in I.D.No.48 of 2001. It is further submitted that the respondent No.1 joined the services of the petitioner-company in the year 1986 as a Chemist and was illegally removed from service by order dated 29.07.2000. Aggrieved thereby, he raised I.D.No.48 of 2001 before the Labour Court-I, Hyderabad seeking reinstatement with full back wages, continuity of service and all attendant benefits. Upon considering the material on record, the Labour Court, by its Award dated 27.12.2003, set aside the order of termination and directed the petitioner-management to reinstate the respondent No.1 into service within one month from the date of publication of the Award. The Labour Court further granted 50% back wages together with interest at 12% per annum in the event of default in payment and also directed that the respondent No.1 shall be entitled to continuity of service with all attendant benefits. The said Award was subsequently published through G.O.Rt.No.518 dated 27.03.2004.
04.2. It is further submitted that although the petitioner issued a communication dated 07.05.2004 directing the respondent No.1 to report for duty at Noida, the respondent No.1 immediately submitted representations explaining that, at the time of his illegal termination, he was working in the Production Department at the Shameerpet Unit and possessed considerable experience in that establishment. Accordingly, he requested the management to reinstate him at the very place from where he had been illegally removed. Similar representations were submitted on 01.06.2004 and thereafter, requesting that he be retained at the original place of employment.
04.3. It is submitted that the petitioner neither considered nor responded to the legitimate request of the respondent No.1. Instead, the petitioner insisted that he should report for duty at Noida, thereby compelling him to accept a posting at a place entirely different from his original place of employment. Learned counsel contended that such action is contrary to the very concept of reinstatement as contemplated under labour jurisprudence.
04.4. It is further submitted that the petitioner also failed to implement the Award in its true spirit by calculating the 50% back wages only on the basis of the last drawn salary, completely ignoring the specific direction granting continuity of service. It is submitted that continuity of service necessarily requires that the workman be treated as if he had remained in uninterrupted service and, consequently, the back wages ought to have been computed by taking into account the revisions in pay, increments and all admissible service benefits. The petitioner also failed to extend consequential benefits such as bonus and earned leave, thereby compelling the respondent No.1 to initiate proceedings under Section 33-C(2) of the Industrial Disputes Act by filing M.P.No.18 of 2007, which was subsequently transferred and renumbered as M.P.No.31 of 2009.
04.5. It is submitted that, after considering the Award and the law governing reinstatement and continuity of service, the Labour Court rightly held that the respondent No.1 was entitled to 50% back wages from 30.05.2004 till the date of reinstatement together with interest at 12% per annum and further directed that such back wages should be calculated by treating the respondent No.1 as having continued in uninterrupted service with all consequential allowances. According to the learned counsel, the Labour Court merely implemented the earlier Award and did not confer any benefit beyond what had already been granted therein.
04.6. It is further submitted that the contention of the petitioner that the respondent No.1 failed to join duty at Noida is wholly misconceived. It is contended that once an order of termination is set aside and reinstatement is directed, the employer is under an obligation to restore the employee to the original place of employment unless there exists a valid statutory provision or service condition authorising otherwise. The petitioner has not placed any material before this Court to establish any such authority or compelling administrative necessity warranting the posting of the respondent No.1 at Noida instead of the Shameerpet Unit.
04.7. In support of the said contention, learned counsel placed reliance upon the Judgment of the Division Bench of the Madras High Court in Lakshmi Mills Ltd., Coimbatore v. Labour Court, Coimbatore and another (1997 (3) LLN 354), wherein it was held that reinstatement ordinarily means restoration of the employee to the original place of employment and that the management cannot, under the guise of implementing an award of reinstatement, transfer the employee to a different place of work. Reliance was also placed upon the interim order of the Madras High Court in W.M.P.No.3730 of 2021 in W.P.No.10833 of 2020, dated 01.11.2021, wherein, following the decisions of the Hon'ble Supreme Court, it was reiterated that reinstatement should ordinarily be at the original place of employment and that transferring the workman to another place while implementing an order of reinstatement is contrary to the settled principles of law.
04.8. It is further submitted that the petitioner's reliance upon the principle of "No Work No Pay" is wholly misplaced. It is contended that the respondent No.1 was always willing to resume duties at the place where he had been illegally removed and had repeatedly expressed such willingness through written representations. According to the learned counsel, it was the petitioner who failed to faithfully implement the Award by insisting upon a posting at a different establishment without any legal justification. Therefore, the petitioner cannot take advantage of its own failure to implement the Award in accordance with law and deny the monetary benefits lawfully due to the respondent No.1. Hence, he prayed that the writ petition be dismissed by affirming the order dated 21.01.2016 passed by the Labour Court-III in M.P.No.31 of 2009.
04.9. In support of his contentions, the learned counsel for the respondent No.1 relied upon a decision of the Hon’ble Supreme Court in M/s. Bombay Chemical Industries v. Deputy Labour Commissioner and another (2022 LiveLaw(SC) 130) wherein it was held at Paragraph Nos.6 and 7 that:
“6. At the outset it is required to be noted that respondent No.2 herein filed an application before the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, demanding difference of wages from 01.04.2006 to 31.03.2012. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishment in the post of salesman. Therefore, once there was a serious dispute that respondent No.2 had worked as an employee of the appellant and there was a very serious dispute raised by the appellant that respondent No.2 was not in employment as a salesman as claimed by respondent No.2, thereafter, it was not open for the Labour Court to entertain disputed questions and adjudicate upon the employer employee relationship between the appellant and respondent No.2. As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court’s jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235).
In the case of Kankuben (supra), it is observed and held that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C (2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a pre-existing benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not.
7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act.”
04.10. He further relied upon a decision of the Hon’ble Supreme Court in Punjab National Bank v. Atin Arora and another (2025 Supreme(SC) 1470) wherein it was held at Paragraph No.4 that:
“4. The High Court, while exercising its discretion, overlooked the provisions of Section 21 of the Code of Civil Procedure, 1908, 2 For short, “NCLT.” “21. Objections to jurisdiction.-
(1)No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has Signature been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary Date: 2025.01.06 17:01:35 IST limits of its jurisdiction shall be allowed by any Appellate or Reason:
Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of whose principles and rule should be applied in the present case. The principle enjoins that objections regarding the place of suing shall not be allowed unless such objection is taken in the Court/tribunal of first instance at the earliest possible opportunity. This Court, in Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr., has held that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. These principles were reiterated by this Court in Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas (Dead) by LRS. and Ors.”
05. Initially, this Court on 10.08.2016 passed Interim Order in W.P.M.P.No.33126 of 2016 which is as follows:
“It is the case of the petitioner that though the first respondent was asked to report at Noida vide letter dated 07.05.2004, he expressed his inability to join the duty on 17.05.2004. He did not report for duty and he was engaged elsewhere.
The present W.P.M.P. relates to payment of back wages from 30.05.2004 to the date of reinstatement, which could not have been ordered, prima facie, in view of the letter dated 07.05.2004.
There shall be interim suspension of the impugned order.”
06. Having heard the rival submissions made by the learned counsel for both sides, and upon perusal of the material placed on record, the undisputed facts disclose that the Award dated 27.12.2003 passed in I.D.No.48 of 2001 directed reinstatement of the respondent No.1 into service with continuity of service and 50% back wages. Pursuant thereto, the petitioner-management issued proceedings dated 07.05.2004 reinstating the respondent No.1 into service and directing him to report for duty at its Noida Unit. The receipt of the said communication by the respondent No.1 is not in dispute. On the contrary, by his letter dated 17.05.2004, the respondent No.1 acknowledged the reinstatement order and merely requested some time to join duty. Subsequently, instead of reporting for duty, he addressed further representations requesting that he should be reinstated only at the Shameerpet Unit where he was previously working. Even thereafter, the petitioner-management, by communication dated 02.09.2004, once again granted him an opportunity to report for duty at Noida on or before 20.09.2004 while specifically informing him that no vacancy was available at Shameerpet or Kothur and that, in accordance with the service conditions, employees were liable to be posted at any unit depending upon administrative exigencies. Despite such repeated opportunities, the respondent No.1 admittedly failed to join duty.
07. Now the main question that arises for consideration is whether the petitioner-management can be said to have failed to implement the Award merely because the respondent No.1 was directed to report at Noida instead of the Shameerpet Unit, and whether, on that basis, the Labour Court was justified in directing payment of wages from 30.05.2004 till the date of actual reinstatement together with consequential monetary benefits. The Award passed in I.D.No.48 of 2001 directed reinstatement into service. Significantly, neither the Award nor any statutory provision directed that the reinstatement should necessarily be at the very same unit where the employee was previously working. Once the employer restored the employer-employee relationship by issuing an order of reinstatement and called upon the workman to resume duties, the obligation cast upon the management under the Award stood substantially complied with. Thereafter, the place of posting is governed by the service conditions applicable to the employee, unless the transfer or posting is shown to be arbitrary, mala fide or contrary to any statutory provision.
08. It is well settled that transfer is an incidence of service. An employee cannot claim, as a matter of right, posting at a particular station unless such right flows from statutory rules, certified standing orders, settlement or specific contractual conditions. In the present case, except asserting that reinstatement necessarily required restoration to the Shameerpet Unit, the respondent No.1 has not placed any material before this Court establishing any statutory prohibition restraining the petitioner from posting him at Noida. On the contrary, the petitioner consistently maintained that no vacancy was available at Shameerpet and that employees were liable to be posted at any of its establishments depending upon administrative requirements.
09. The Labour Court, however, proceeded on the assumption that reinstatement necessarily meant restoration to the very same place of employment. Such a finding, in the considered opinion of this Court, travels beyond the terms of the Award itself. An executing Court or a Court exercising jurisdiction under Section 33-C(2) of the Industrial Disputes Act cannot enlarge, modify or supplement the Award under execution. Its jurisdiction is confined to implementation of an existing right flowing from the Award and not to creation of a fresh right.
10. The law relating to proceedings under Section 33-C(2) is no longer res integra. The Hon'ble Supreme Court has consistently held that proceedings under Section 33-C(2) are in the nature of execution proceedings and the Labour Court cannot adjudicate fresh disputes or confer substantive benefits not flowing from the original Award. Where adjudication of a new right becomes necessary, the Labour Court lacks jurisdiction to determine such controversy in computation proceedings. The judgments relied upon by the petitioner clearly reiterate this settled principle. In the present case, the original Award did not adjudicate the issue relating to the place of posting after reinstatement. Therefore, whether the petitioner was justified in directing the respondent No.1 to report at Noida constituted an independent industrial dispute which could not have been adjudicated in proceedings under Section 33-C(2). Nevertheless, the Labour Court virtually determined that issue in favour of the workman and, on that basis, directed payment of wages from 30.05.2004 till reinstatement. Such an exercise clearly exceeded the limited jurisdiction available under Section 33-C(2).
11. The ID Award had merely granted continuity of service and 50% back wages. It nowhere directed that wages subsequent to reinstatement should be computed by notionally extending all future revisions without the employee having actually discharged any duties. The Labour Court in impugned order dated 21.01.2016 directed computation of back wages by extending revised scales of pay, increments, allowances and other consequential monetary benefits for the period subsequent to 30.05.2004, by issuing such directions, the Labour Court virtually modified the Award itself, which was wholly impermissible in law.
12. A perusal of the correspondence placed on record establishes that the respondent No.1 had consciously declined to join duty despite repeated opportunities. His refusal was not on account of any physical inability or legal disability but solely because he insisted upon being posted at the Shameerpet Unit. Once reinstatement had been offered and the employer had called upon him to resume duties, it was incumbent upon the workman to join first and thereafter, if so advised, challenge the posting or seek appropriate relief in accordance with law. He could not, by refusing to join duty altogether, continue to remain away from service and simultaneously claim wages for the entire period. The principle of "No Work No Pay", though not of universal application, squarely applies where the employee voluntarily abstains from joining duty despite a lawful opportunity extended by the employer.
13. The Hon'ble Supreme Court has repeatedly held that an employee cannot derive monetary advantage from his own refusal to discharge duties. In the facts of the present case, the period subsequent to the offer of reinstatement cannot be attributed to any wrongful act on the part of the petitioner-management. Rather, it was the respondent No.1 who choose not to avail the opportunity extended to him. Consequently, fastening liability upon the petitioner to pay wages for such period would amount to rewarding the workman for his own refusal to work, which is contrary to settled principles of service jurisprudence.
14. The reliance placed by the learned counsel for the respondent No.1 on the judgments of the Madras High Court holding that reinstatement ordinarily should be at the original place of employment does not merit his case. Those decisions turned upon their own facts and cannot override the settled principle that transfer is an incidence of service. More importantly, in the present case, there is neither any finding in the original Award directing reinstatement specifically at Shameerpet nor any adjudication that posting at Noida violated any statutory provision or service condition.
15. It is the case of the petitioner that the Labour Court ignored the admitted correspondence exchanged between the parties, particularly the letters dated 07.05.2004, 17.05.2004 and 02.09.2004, which conclusively establish that the petitioner had repeatedly called upon the respondent No.1 to report for duty. Once such evidence remained undisputed, the Labour Court ought not to have proceeded on the premise that the petitioner had failed to implement the Award.
16. The interim order passed by this Court on 10.08.2016 also assumes significance. While granting interim suspension of the impugned order, this Court had prima facie observed that once the petitioner had directed the respondent No.1 to report for duty by letter dated 07.05.2004 and the respondent No.1 failed to join duty, the direction to pay wages from 30.05.2004 onwards appeared unsustainable. Upon an independent re-appreciation of the entire material now available, this Court finds no reason to take a different view.
17. In view of the aforesaid discussion, this Court is of the considered opinion that the Labour Court travelled beyond the scope of the Award dated 27.12.2003, exceeded the jurisdiction vested in it under Section 33-C(2) of the Industrial Disputes Act, erroneously treated the dispute relating to place of posting as concluded in favour of the workman, and illegally awarded monetary benefits for a period during which the respondent No.1 admittedly did not report for duty despite repeated opportunities afforded by the petitioner-management. The impugned order, therefore, suffers from patent errors of law apparent on the face of the record warranting interference under Article 226 of the Constitution of India and the same is liable to set aside.
18. Accordingly, this Writ Petition is allowed. The impugned order dated 21.01.2016 passed by the Labour Court-III, Hyderabad in M.P.No.31 of 2009 is hereby set aside. Consequently, the claim of the respondent No.1 for wages and consequential monetary benefits for the period commencing from 30.05.2004 till the date of actual joining of duty stands rejected. However, it is made clear that this order shall not affect the original Award dated 27.12.2003 in I.D.No.48 of 2001 except to the extent that the computation order passed in M.P.No.31 of 2009 is quashed. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
