AIR INDIA LTD Vs. JAGDISH GURSAHANI

JUDGEMENT

(1.) THE petitioners by the present petition impugns the order dated 23rd July, 1999 whrreby the learned Presiding Officer of the National industrial Tribunal, Mmmbai, held that the enquiry against the respondent no. 1 herein is neither fair nor legal and the findings are perverse and granted an opportunity to the petitioners herein to prove the charges against the respondent No. 1, as also the subsequent order dated 20th December, 2002 passed in a review application made by the respondent No. 1 herein. By the order in review the learned Presiding Officer considering his earlier findings that the petitioner herein had failed to pay one month's wages in lieu of notice recalled its earlier order and refused to grant approval to the petitioners herein for the action of dismissal against the respondent No. 1. It may be made clear that the finding is that there was a shortfall in the payment of one month's wages as the increase in wages by the settlement of 31 st December, 1995 had not been taken into consideration.

(2.) AT the hearing of this petition on behalf of the petitioners their learned counsel contends that the impugned orders disclose an error of law apparent on the face of the record. It. is pointed out that the entire case of the respondent is based on nonpayment of the wages purported to be calculated based on the settlement dated 31st December, 1995. It is pointed out that Clause 2 of the said settlement provided that both the parties agree that the agreement will be subject to the approval "of the Board of Directors of the Air India limited. " It is pointed out that the Board gave approval to the settlement on 27th March, 1996. The application for approval by the petitioner filed before the Presiding Officer, National Industrial Tribunal was on 15th March, 1996. It is, therefore, submitted that the agreement had not come into force as on 15th March, June, 1996 when the application was moved which was received by the respondent No. 1 on 16th March, 1996 and consequently the finding by the learned Presiding Officer discloses an error of law apparent on the face of the record. Alternatively it is submitted that though there was a settlement entered into on 31 st December, 1995 that settlement was not acted upon. For that purpose reliance is placed on various documents annexed with the petition. It is then pointed out that subsequent settlement was entered into on 5th May, 1996 and it is this settlement which is acted upon. This settlement therefore, is also after 15th March, 1996 and consequently it could not be said that the petitioners herein had miscalculated the quantum of one month's salary payable to the respondent No. 1. For the aforesaid reasons also it is submitted that the orders are liable to be set aside. On the other hand on behalf of the respondent No. 1, who appears in. person, it is submitted that the petitioners had acted on the settlement on 31st December, 1995. Reliance is placed on salary vouchers to show that amounts in terms of settlement of 31st December, 1995 had been paid to employees who were entitled to by the petitioners before 15th March, 1996, once that be the case, the settlements have been acted upon and, therefore, the order of the Tribunal is justified. Alternatively it is submitted that considering that the settlement itself does not provide for the date on which it will come into force considering the language of section 19 (1) of the Industrial disputes Act, 1947 as no date is specified the agreement is deemed to have come into force on the day the settlement was signed by the parties. In the instant case the settlement was signed on 31st December, 1995 and, therefore, that is the date on which the settlement has come into force. It is, therefore, submitted that the learned Tribunal has not committed any error of law in recording a finding that the settlement had come into force on 31 st December, 1995. It is lastly urged that the material on which the petitioners are now relying to contend that the settlement had not come into force on account of various acts by several parties cannot be gone into by this Court in the exercise of its extra ordinary jurisdiction as these materials were not placed before the Industrial Tribunal and it is for the first time that these materials are now sought to be placed before this Court. The petitioners, it is pointed out, cannot place new material and/or call upon the Court to place reliance on that material which was not available for consideration by the Industrial Tribunal. This Court, therefore, ought not to consider the said contention urged on behalf of the petitioner and/or ignore the material in the form of documents which are sought to be relied upon by the petitioners. For all the aforesaid reasons the respondent No. 1 in person prays that one order of the Industrial tribunal be not interfered with.

(3.) FROM the above the main question which comes for consideration is whether the settlement dated 31st December, 1995 had become operative on 31st December, 1995. If the answer to this question is in the affirmative then the finding of the Tribunal will have to be supported and the petition rejected.