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TMI Blog1957 (9) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... gust 5, 1949, on the plea that he had become surplus to the requirement of the respondent. The Government of India, Ministry of Labour had by Notification No. LR. 2(273), dated February 21, 1950, referred for adjudication to the Central Government Industrial Tribunal at Calcutta the disputes pending between the various banks and their employees, and the appellant's case came up for hearing in the course of those proceedings before the Tribunal which held on December 5, 1950, that the order of discharge of the appellant was illegal and that the respondent should take him back in service as well as pay the appellant his arrears of salary and allowances from the date of discharge. This direction was to be carried out within a month of the date of the publication of the award which was actually published in the Gazette of India (Part II, Section 3, page 1143) of December 30, 1950. 3. On January 30, 1951, the respondent preferred an appeal against the said order to the Labour Appellate Tribunal, Calcutta, sitting at Allahabad, which by its decision dated September 25, 1951, upheld the directions given by the Industrial Tribunal and dismissed the appeal. The respondent failed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... salary and allowances from the date of his discharge upto the date of the application, and advising him to submit a revised application accordingly. A suggestion was also made in that letter that the appellant might approach the Industrial Tribunal, Calcutta, under s. 20(2) of the Act for a computation in terms of money of the benefit of reinstatement, as it was only when a definite sum had been so determined that action for recovery under s. 20(1) of the Act could be taken by the Government. 4. It appears that in the meantime the respondent had transferred its banking business under an agreement with the Punjab National Bank Ltd., and had also changed its name to Bharat Nidhi Ltd. By its letter dated April 3, 1952, the respondent in its new name of the Bharat Nidhi Ltd., addressed a letter to the appellant stating that due to the transfer of its liabilities and equivalent assets to the Punjab National Bank Ltd., and the closure of all its branches in India, the appellant was surplus to its requirements. It therefore purported to give to the appellant two months' notice of its intention to terminate the said award and his services in terms of s. 19(6) of the Industrial Dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the directions contained in the award by the respondent. He claimed a sum of ₹ 47,738 computed in the manner indicated in annexure 'D' to that petition. 5. The respondent filed its written statement on December 4, 1952, wherein the only plea taken was that there was a flagrant violation by the appellant of its instructions to join duty and that thereby the appellant had forfeited his right to claim reinstatement and all benefits flowing therefrom. It further stated that without prejudice and with a view to close his case it had offered him salary upto June 19, 1952, by its letter dated November 15, 1952, under intimation to the Conciliation Officer, Central Government, New Delhi, but the appellant had not replied to the same. The respondent further contended that the award in question was in force for only one year under s. 19(3) of the Industrial Disputes Act, 1947, and that the same was therefore no longer in force and the respondent had already terminated the same. The claim of the appellant was therefore illegal and preposterous and the respondent prayed that the petition be dismissed with costs. 6. The petition came up for hearing before the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the award by not taking the appellant back in service and (ii) whether it was the appellant who had failed to resume his duty in spite of having been asked to do so and thereby forfeited the right conferred upon him in terms of the award are concluded by the findings arrived at by the Industrial Tribunal after due consideration of the correspondence which passed between the parties. We also have perused the said correspondence and we see no reason to disturb those findings. If therefore the appellant was ready and willing to be reinstated in the service of the respondent and was not guilty of any default in the matter of reporting himself for duty, the only question that remains to be considered by us here is what is the amount at which this benefit of reinstatement which was awarded to the appellant should be computed within the meaning of s. 20(2) of the Act. That was the only scope of the enquiry before the Industrial Tribunal and we have to determine what is the correct method of such computation. 8. Section 20(2) of the Act reads as follows :- Section 20. - Recovery of money due from an employer under an award or decision. (1)................ (2) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was carried on between the appellant and the respondent however shows that in spite of such transfer to the Punjab National Bank Ltd., and the change of the name of the respondent from the Bharat Bank Ltd., to Bharat Nidhi Ltd., the respondent never contended that Bharat Nidhi Ltd. was not in a position to reinstate the appellant in its service. The correspondence proceeded all along on the footing that Bharat Nidhi Ltd., was in a position to reinstate the appellant in its service and as a matter of fact took up the plea that it had invited the appellant to join it at Delhi but that the appellant had failed and neglected to do so. Not only in its letter dated May 10, 1952, did the Bharat Nidhi Ltd., state that the appellant's failure to join it at Delhi amounted to absence from duty but as late as June 28, 1952, in its letter addressed to the Under Secretary to the Government of India, New Delhi, it reiterated that the appellant was asked to resume duty which he had failed to do and that in the circumstances he was being considered as absent from duty. It is clear therefore that the Bharat Nidhi Ltd., was all the time insisting that the appellant should join its service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of the original contract and the appellant should be awarded compensation commensurate with the salary and the benefits which he would have earned during his service with the respondent for the full term of 55 years which was the age of superannuation; (ii) the non-implementation of the direction as to reinstatement should be treated as a breach of contract on the part of the respondent and the appellant should be awarded damages for breach of the contract which would be calculated again on the same basis; (iii) the non-implementation should be treated as a breach of a statutory duty and the appellant should be a awarded damages for non-implementation as on a tort committed by the respondent. The appellant would in that event be entitled not only to general damages but also special damages by reason of oppressive conduct on the part of the respondent. 13. The position as it obtain in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. They are to be assessed by reference to the amount earned in the service wrongfully terminate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to whom the award applies and would tenure for the benefit of the worker until varied by appropriate legal proceedings. There is no statutory provision in that behalf contained in the Industrial Disputes Act, 1947. But it is interesting to note that in the Industrial Disputes Order, 1951, obtaining in the England there is enacts s. 10 which runs as follows : Section 10 : Award to be implied term of contract : Where an award on a dispute or issue has been made by the Tribunal then as from the date of the award or from such other date, not being earlier than the date on which the dispute or issue to which the award relates first arose, as the Tribunal may direct, it shall be an implied term of the contract between the employer and workers to whom the award applies that the terms and conditions of employment to be observed under the contract shall be in accordance with the award until varied by agreement between the parties or by a subsequent award of the Tribunal or until different terms and conditions of employment in respect of the workers concerned are settled through the machinery of negotiation or arbitration for the settlement of terms and conditions of employment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Act be recovered by the appropriate Government on an application made to it by the workman. Where however any benefit which is not expressed in terms of money is awarded to the workman under the terms of the award it will be necessary to compute in terms of money the value of that benefit before the workman can ask the appropriate Government to help him in such recovery. Section 20 sub-s. (2) provides for the computation in terms of money of the value of such benefit and the amount at which such benefit should be computed is to be determined by the Industrial Tribunal to which reference would be made by the appropriate Government for the purpose. Such computation has relation only to the date from which the reinstatement of the workman has been ordered under the terms of the award and would have to be made by the Industrial Tribunal having regard to all the circumstances of the case. The Industrial Tribunal would have to take into account the terms and conditions of employment, the tenure of service, the possibility of termination of the employment at the instance of either party, the possibility of retrenchment by the employer or resignation or retirement by the workman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of an agreement to the contrary, provided that no notice shall be necessary when he is dismissed on account of misconduct, dishonesty, gross negligence, insubordination or disregard of any of the standing instructions. Bye-law 13 lays down that every employee is required to retire on attaining the age of 55 years. He may be retained in service after that age only with the express sanction of the authorities but such extension of service will not exceed more than 2 years at a time. 23. If regard be had to these terms and conditions, it was possible for the respondent to terminate the service of the appellant by paying him one month's salary in lieu of notice. If there was nothing more the appellant would have been entitled only to that amounts as and by way of compensation for non-implementation of the direction for reinstatement. There was however a finding recorded by the Industrial Tribunal which made the award dated December 5, 1950, that the respondent had been guilty of unfair labour practice and victimization and the ordinary right, which the respondent would have been in a position to exercise, of terminating the service of the appellant on giving him on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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