IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1018 of 2009 Hari Kishore Roy, Son of Late Jogendra Roy, Resident of Village Ganguli, P.S. Aurai, Dist. Muzaffarpur. ------------ Petitioner/Appellant Versus 1. Bihar State Road Transport Corporation, Vir Chand Patel Path, Patna 80001 through its Administrator. 2. The Administrator, Bihar State Road Transport Corporation, Vir Chand Patel Path, Patna, 80001. 3. The Managing Director, Bihar State Road Transport Corporation, Vir Chand Patel Path, Patna 80001. 4. The Director, Vigilance and Security, Incharge Chief Personnel, Bihar State Road Transport Corporation, Vir Chand Patel Path, Patna 80001. 5. The Chief Accounts Officer, Bihar State Road Transportation Corporation, Patna, 800001. 6. The Divisional Manager, Bihar State Road Transport Corporation, Muzaffarpur. 7. The Depot Superintendent, Bihar State Road Transport Corporation, Sitamarhi. ------------- Respondents/Respondents ----------- For the Appellant :- Mr. V.R.P. Singh, Adv. For the Respondents :- Mr. P.K. Verma, Adv. Mr. S.R. Sharan, Adv. ------------ PRESENT: Hon’ble the Chief Justice Hon’ble Mr. Justice Mihir Kumar Jha O R D E R (06/05/2010) As per Mihir Kumar Jha, J. Heard learned counsel for the parties. 2. In this intra-court appeal, the appellant writ petitioner has assailed the order of the learned single Judge dated 22.5.2009 in C.W.J.C. No. 6372 of 2009, disposing of his writ petition, as with 2 regard to his grievance for payment of his salary and emoluments for the period 15.4.1983 to 30.6.2008, with an observation that he may file a representation in terms of the award passed by the Industrial Tribunal. 3. The facts which are not in dispute lie in a narrow compass. The appellant writ petitioner is a conductor in Bihar State Road Transport Corporation hereinafter referred to as the Corporation. In course of surprise checking by the raiding party on 25.2.1982, he was found to have been carrying six passengers without ticket. The Corporation, thereafter, had conducted a departmental proceeding wherein the misconduct of carrying passengers in the vehicle of Corporation without proper booking against the appellant-writ petitioner was found to be proved. He was accordingly discharged from the service of the Corporation by an order dated 9.3.1983. 4. The Corporation, thereafter, in keeping with the provision of Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred as the Act) had filed an application before the Industrial Tribunal for approval of the discharge of the appellant writ petitioner and the Industrial Tribunal by its order dated 27.10.1984 did not approve discharge of the appellant writ petitioner by dismissing the application filed by the Corporation. The Corporation, thereafter, had filed a writ 3 application before this Court being C.W.J.C. No. 1429 of 1985, challenging the order of Tribunal dated 27.10.1984 which was dismissed a learned Single Judge by his order dated 14.10.1985 but, the appeal preferred by the Corporation being L.P.A. No. 5 of 1986 against the order of the learned single Judge dated 27.10.1984 was allowed by an order dated 11.4.1989 with a direction to the Industrial Tribunal to give an opportunity to the Corporation to adduce such evidence as it may choose for establishing charge against the appellant writ petitioner and justifying the resultant order of punishment of discharge of the appellant writ petitioner. 5. On remand by this Court the Corporation and appellant writ petitioner had examined their witnesses before the Tribunal whereafter the Tribunal by its order dated 25.5.1993 had accorded approval to the discharge of the appellant writ petitioner. Thus, now it was the turn of the appellant writ petitioner to move this Court by filing C.W.J.C. No. 7540 of 1994 for quashing the order dated 25.5.1993 and this Court by its order dated 21.10.1997 had again set aside the order of the Tribunal and remitted the matter back to the Tribunal to decide the whole issue afresh in accordance with law. The Industrial Tribunal on the second remand made by this Court had refused to accord approval of discharge of appellant writ petitioner by 4 an order dated 30.4.1998 in Misc. Case No. 52 of 1983/Misc. Case No. 28 of 1990/Misc. Case No. 7/1997 and had also dismissed the application under Section 33(2)(b) filed by the Corporation on 14.4.1983. 6. The Corporation however had neither accepted the joining of the appellant writ petitioner nor any work was taken from him in terms of the order of the Tribunal dated 30.4.1998. It is also clear from the records that the writ application as against the order of the Tribunal dated 30.4.1998 on being assailed by the Corporation in C.W.J.C. No. 9781 of 1999 was also dismissed for default on 4.9.2003 but as this Court did not issue notice to the appellant writ petitioner in the aforesaid writ application he had remained unaware of the dismissal of the writ application of the Corporation January 2008. It is claimed by the appellant writ petitioner that he could learn of such dismissal of the writ petition of the Corporation on 5.2.2008 and thereafter, he had filed an application on 22.2.2008 for allowing him to join his post and take work from him. It is the case of the appellant writ petitioner that the authority of the Corporation by an order dated 17.6.2008 had reinstated him in service with immediate effect with an stipulation that there would be no break in service but no salary would be payable to him for the period prior to his reinstatement. The 5 appellant claims that in compliance of the said order he had given his joining on 30.6.2008, whereafter, he has been working in the Sitamarhi Depot of the Corporation. 7. Amidst these facts, the appellant writ petitioner had filed the writ application on 19.5.2009 for the solitary relief of quashing of the order dated 17.6.2008 to the extent it had denied payment of back wages from 15.4.1983 to 30.6.2008 and had sought a consequential direction for payment of his salary for the aforesaid period. 8. The learned single Judge on such petition at the motion stage having noticed that the appellant writ petitioner was virtually trying to enforce the award of the Tribunal and even then had not annexed the copy of such award to the writ application, he had disposed of same by the impugned order dated 22.5.2009, with an observation that if there be any such direction for reinstatement of the appellant writ petitioner with back wages, the same should be considered and disposed of by the authority of the Corporation without any undue delay. 9. Mr. V.R.P. Singh, learned counsel for the appellant writ petitioner has submitted that the facts being admitted and law also being settled as with regard to reinstatement with backwages in terms of Section 33(2)(a) of the Act there was escape for the Corporation 6 but to pay the full salary for the period prior to his reinstatement. In this context he has placed reliance on the judgments of the Apex Court in the case of Jaipur Zila Sahkari Bhumi Vikas Bank Ltd. Vs. Sri Ram Gopal Sharma & Ors. reported in 2002(2) SCC 244 and of by this Court in the case of Gyaneshwar Prasad Yadav Vs. The Bihar State Road Transport Corporation & Ors. reported in 2007(2) PLJR 816, He has also submitted that in view of the law settled on this score there would be no scope for taking any different view that when such an order of dismissal of the appellant writ petitioner did not receive approval of the Industrial Tribunal, he was entitled for both reinstatement as also full back wages,. and therefore, the learned single Judge in stead of disposing of the writ application with an observation for disposal of the representation of the appellant writ petitioner in the impugned order ought to have straightway directed the Corporation to pay back wages for the period in question in which he was forcibly kept out of service by the Corporation. 10. Per contra, Mr. P.K. Verma, learned counsel for the Corporation has submitted that the disposal of the writ application on the very first date in absence of even a copy of the award annexed with the writ application and thereby giving opportunity to the appellant writ petitioner to raise the question of payment of back 7 wages before the authority of the Corporation would need no interference in this appeal. He has further submitted that the writ application itself was not maintainable on the ground of statutory alternative remedy under Section 33(C)(2) of the Act and in this context, he has placed his reliance on the judgment of the Apex Court in the case of Rajasthan State Road Transport Corporation and Anr. Vs. Krishna Kant & Ors.. reported in 1995(5)SCC 75 as also a judgment of this Court in the case of Sidheshwar Prasad Vs. Bihar State Road Transport Corporation & Ors. reported in 2003(2) PLJR 841. 11. Mr. Verma has further submitted that the appellant writ petitioner had purposely filed the writ application after finding that the statutory time limit under Section 33(C)(1) and (2) of one year and three months respectively had expired way back in the year 1998- 1999, the dates on which money had became due and payable to him. He has also submitted that in this case there is no dispute that the appellant writ petitioner had submitted his joining only on 22.2.2008 and, therefore, when the appellant writ petitioner had joined his duty on 30.6.2008, he could not have claimed salary for the period prior to any date of 22.2.2008 when he had act6ually submitted his petition in the Corporation for acceptance of his joining in terms of the order of the Tribunal dated 30.4.1998. 8 12. Learned counsel for the Corporation in fact went to explain that the law as it stood on 30.4.1988 the date on which the Tribunal had refused to approve the termination of the appellant writ petitioner was well settled in the case of M/s Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand & Anr. reported in 1978(2)SCC 144 that reinstatement or wages unless the issue was decided under Section 33 of the Act was not automatic and thus, if the appellant writ petitioner from 19.4.1998 had taken no steps, either for the reinstatement of his service or payment of back wages and ultimately had filed an application for reinstatement on 22.2.2008, he could not claim back wages as a matter of right only because the Constitution Bench in the case of Ram Gopal Sharma (supra) had subsequently held that on refusal of the order of termination of services, the Workman would become entitled for reinstatement with back wages. 13. Mr. Verma has finally taken a plea that the Corporation is faced with acute financial crunch and it is under rehabilitation programme initiated and being monitored by the Apex Court in C.A. No. 7290 of 1994 and as such is not in a position to pay the salary of over 19 years in which the appellant writ petitioner had not worked even for a day. 9 14. In the considered opinion of this Court, the writ application seeking solitary relief of payment of salary prior to the period of reinstatement is not maintainable, inasmuch as, there is a complete mechanism under the Act for claiming such payment of salary. Section 33(C) of the Act reads as follows:- “33-C. recovery of money due from an employer – (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter V-A or Chapter v-B], the workman himself or any other person authorized by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to 10 the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months]: [Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.] (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.” 15. Admittedly, the order in favour of the appellant writ petitioner came to be passed on 30.4.1998 withholding the approval to the petitioner’s discharge from service. The consequence of such 11 order of Tribunal was that the appellant writ petitioner was never deemed to have been removed from service which obviously meant his reinstatement with back wages. The appellant, however, had never initiated any proceedings under Section 33(C) of the Act and in fact, having remained absent for almost next ten years had filed an application only on 22.2.2008 for his reinstatement with back wages by taking a plea that the writ application of the Corporation as against the award of the Tribunal dated 30.4.1998 had been dismissed on 4.9.2003 and only when he came to know of such dismissal in February 2008, he had been advised to file his joining report. Such plea of the appellant writ petitioner in fact would not inspire confidence, inasmuch as, the appellant had an order in his favour from 30.4.1998 and if he himself did not take steps for his reinstatement or payment back wages from 30.4.1998 to 22.2.2008, he cannot be allowed to claim payment of salary through a writ application under Article 226 of the Constitution by circumventing the previsions of Section 33(C) of the Act and that too after his joining was already accepted by the Corporation vide an order dated 17.6.2008 on a condition that he will not be paid his backwages over one year. It has to be remembered that the appellant writ petitioner had accepted the order of the Corporation dated 17.6.2008 and had submitted his 12 joining on 30.6.2008 and, thereafter, the writ application was filed for back wages only on 19.5.2009. Thus, the writ application without exhausting the alternative statutory remedy under the Act was not maintainable as has been held by the Apex Court in the case of Rajasthan State Road Transport Corporation (supra) wherein the Apex Court had laid down the law in the following terms:- “35. We may now summaries the principles flowing from the above discussion: (1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. (3) Similarly, where the dispute involves the recognition, observance or enforcement o frights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 – which can be called “sister enactments” to Industrial Disputes Act – and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial 13 Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open. (4) It is not correct to say that the remedies provided by the Industrial Disputes act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication. (5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly – i.e., without the requirement of a reference by the Government – in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to “statutory provisions”. Any violation of these 14 Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein. (7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the court and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.” 16. Same view has also been recorded by the learned single Judge of this Court in the case of Sidheshwar Prasad (supra) wherein this Court following the ratio of the Rajasthan State Road Transport Corporation (supra) has laid down the law which reads as follows:- “10. Having appreciated the rival submission, I do not have the slightest hesitation in accepting the broad submission of Mr. Mukhopadhayaya that existence of an alternative remedy does not bar the jurisdiction of this Court. This is a rule of discretion and not of jurisdiction. In fact no fetter has been placed by the Constitution on this court for exercise of power under Article 226 of the Constitution but this Court has imposed upon itself certain restrictions for exercise of power and one of the well known limitations put by this Court upon itself is that in the face of alternative efficacious remedy, 15 jurisdiction under Article 226 of the Constitution is not fit to be exercised, except in grave and exceptional cases. In the present case, the allegation against the petitioner is of misconduct in relation to carrying passengers without ticket. He has been found guilty of said misconduct and dismissed from service. I am of the opinion that the matter of dismissal of a workman employed by the Corporation can appropriately be adjudicated in accordance with the mechanism provided under the Act. The view which I have taken is in conformity with the decision of this Court in the case of Abdul Khalique vs. H.E.C. Ltd. and others (1985 BBCJ 114) in which it has been held as follows:- “where a right or liability is created by statute, if that statute provides a remedy, the remedy provided by that statute alone must be followed. The rights and liabilities have been created by the certified Standing Orders. Whether the Standing Orders Act provides any remedy. The only relevant section of that Act is Section 13A which provides that if any question arises as to the application or interpretation of a Standing Order certified under that Act, any employer or workman may refer the question to any of the Labour Courts constituted under the I. D. Act and specified for the disposal of such proceeding by the appropriate Government by notification in the official gazette and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties.” 17. Ordinarily having recorded the finding that the writ application was not maintainable, we ought to have dismissed this appeal straightway on this ground alone but then as Mr. Singh, learned counsel for the appellant writ petitioner has heavily placed reliance on 16 the judgment of the learned single Judge in the case of Gyaneshwar Prasad Yadav (supra), it would be necessary to record that in that case, when the Tribunal had refused to give approval to the order of dismissal of the writ petitioner of that case by an order dated 25.2.1997, he had filed a writ application being C.W.J.C. No. 109 of 2001 which was disposed of on 11.1.2001 at a point of time when the Apex Court judgment in the case of M/s Punjab Beverages Pvt. Ltd. (supra) was governing the field. Thereafter, the writ petitioner had again filed a writ application in the year 2003 as soon as the judgment of the Constitution Bench in the case of Jaipur Zila Sahkari Bhumi Vikas Bank Ltd. Vs. Sri Ram Gopal Sharma was delivered in the year 2002 and in those circumstances, this Court having found that the writ petitioner of that case was conscious of his rights had directed for his reinstatement in service and accepted his joining forthwith. It is true that in that case, a direction was given for payment of the back wages but then from reading of the judgment, it is not clear as to what was the misconduct alleged against him and whether he too was dismissed from service on account of carrying passengers without issuing of tickets which is a very serious misconduct on the part of an employee of the Corporation. 17 18. Thus, it is seen that