VASANTIKA R DALIA Vs. BARODA MUNICIPAL COPORATION

JUDGEMENT

(1.) Heard learned Counsel. The petitioner was employed with Baroda Municipal Corporation on 7-7-1975 as Stenographer and her services were terminated in January/February, 1997 without following requirements of S.25F of the Industrial Disputes Act. Of course, in the meantime for a short period of three months by an order dated 14-10-1977 she had been given an employment as Typist. However, the petitioner had raised a dispute about her unlawful termination in January/February, 1977 from the post of Stenographer. This dispute was referred to the Labour Court, Baroda. On 28-3-1988 in Reference (L.C.A.) No. 14 of 1980, the Labour Court, Baroda granted relief of reinstatement in favour of the petitioner without any back wages whatsoever. Against this award dated 28-3-1988, Baroda Municipal Corporation preferred Special Civil Application No. 3483 of 1988 contesting the relief of reinstatement as was granted by the Labour Court but this petition failed. While rejecting the Corporation's petition summarily the Division Bench observed that "in February, 1977 when the respondent was terminated from service as Stenographer provision of S.25F was violated by the petitioner-Corporation and therefore, her termination was void".

(2.) The present petitioner-workman had also filed Special Civil Application No. 5497 of 1988 contesting for the back wages and consequential reliefs and this Special Civil Application filed by the workman was dismissed and the notice was discharged. The award dated 28-3-1988 as aforesaid thus attained the finality. It appears that this award dated 28-3-1988 granting relief of reinstatement to the workman was not implemented by the respondent-Corporation and therefore, a Miscellaneous Civil Application No. 655 of 1988 in the nature of contempt application had been filed by the petitioner-workman and this Miscellaneous Civil Application No. 655 of 1988 was decided by the Division Bench while noticing the statement of learned Counsel Mr. P. G. Desai for the respondent that it had complied with the direction given by the Labour Court in as much as the petitioner has been reinstated in service. The Division Bench has also observed that there was some delay in reinstating the petitioner on the original post and therefore, the statement of Mr. Desai was also noted that the wages for the period for which the delay had been caused in complying with the direction will be paid to her on or before 12-10-1990. In view of this statement the Division Bench found that the application did not survive and the same was disposed of as having become infructuous. In this background the dispute has now precipitated between the parties about the continuity of service, i.e., from January, 1977 to 23-8-1988 when she was reinstated on the basis of the award dated 28-3-1988. The Assistant Municipal Commissioner, 5th Zone, Baroda has passed an order that all the grievances of the petitioner were included in Special Civil Application No. 5497 of 1988 and this Special Civil Application had been rejected on 18-6-1992 and therefore, her request for granting continuity of service cannot be entertained. This order dated 30-10-1996 passed by the Assistant Municipal Commissioner, 5th Zone, Baroda is under challenge in this petition. Though it is mentioned in the award dated 28-3-1988 that the relief of reinstatement is granted while denying the back wages, nothing has been said in the positive terms with regard to the continuity of service or otherwise but the fact remains that the relief of continuity has not been denied by any specific mention as has been done for the back wages. Thus, the petitioner may have failed before the Division Bench in getting the relief of back wages for the intervening period but that does not mean the forfeiture of the continuity of the service because it is not a case of denying the continuity of service by and positive penal order. The rejection of the petitioner's Special Civil Application No. 5497 of 1988 on 18-6-1992 only means that her claim for the back wages was not accepted by this Court nor it can be said on the basis of the order passed in Miscellaneous Civil Application No. 655 of 1988 on 28-9-1990 that everything due to the petitioner under the award had been given. In facts of a given case, if the Court comes to the conclusion that the contempt proceedings are not warranted, the Court may not proceed to initiate the contempt proceedings but the mere fact that the Court does not initiate the contempt proceedings does not mean that the rights of the party, if they are otherwise available to her on the basis of the award passed after adjudication would come to an end. An order or action may not be contemptuous per se, still it may be illegal order. However, every illegal order may not be a contemptuous order and therefore, the rejection of the application in the nature of seeking contempt proceedings would not impeach upon otherwise illegal order or action. In this view of the matter, in my considered opinion, neither the rejection of the petitioner's Special Civil Application No. 5497 of 1988 on 18-6-1992 nor the rejection of Miscellaneous Civil Application No. 655 of 1988 in the nature of contempt proceedings on the ground of being infructuous by the Division Bench comes in the petitioner's way for claiming relief of continuity of service on the strength of the award dated 28-3-1988, if at all it is available to her on the basis of that award itself. It is, therefore, plain and simple case of interpretation of the relief granted by the Labour Court while passing the award dated 28-3-1988. By this award the relief of reinstatement has been granted but the relief of back wages has been denied specifically and the relief of continuity of service has not been denied in any terms except that along with the relief of reinstatement the word "continuity" has not been mentioned. It may be straightway observed that once the relief of reinstatement is granted, the continuity of service is the direct consequence rather inherent in the relief of this nature, more particularly when the Division Bench has already held that the termination was void. If the termination order was void the meaning is that in the eye of law the relief of reinstatement has to be granted as if the impugned award had never been passed. The question of back wages is, therefore, dependent on variable factors of gainful employment during the period of enforced idleness and therefore, in a given case the relief of back wages may not be granted depending upon the finding on the question of gainful employment or otherwise during the period of enforced idleness. When the relief of reinstatement is granted and the continuity of service is not specifically denied the party has to be relegated to the same position as was held by it at the time of termination. When the order of termination has been found to be void, the petitioner holds the relief of reinstatement with no mention of specific denial of continuity of service, the concerned workman has to be relegated to the position which was obtaining at the time of termination of her services and there is no question of denying the continuity of services for the period for which the services have been interrupted on account of an unlawful and void order.

(3.) For the reasons aforesaid, I find that the order dated 30-10-1996 passed by the Assistant Municipal Commissioner is not based on any sound reasoning. Reasons given therein are extraneous and not tenable and this order suffers from an error of law and appears to have been passed without objective application of mind and the same cannot be sustained in the eye of law. This order dated 30-10-1996, therefore, deserves to be quashed and set aside, which I hereby do and direct the respondent to grant the relief of continuity of service and such other alike benefits except the backwages for the intervening period. It is also pointed out by Mr. Supehia that the petitioner has already retired on 31-1-1997 on reaching the age of superannuation and a grievance has been made that no pension is paid to the petitioner. It is, therefore, made clear that the petitioner being retired, due retiral benefits shall be computed to her keeping the continuity of service in view as if she had never been terminated in 1977 and as if she had continued in service throughout till the date of retirement. Rule is made absolute in the terms as aforesaid. No order as to costs.