- (1.) This appeal by special leave is against the judgment dated 28.7.2003 of the Allahabad High Court rejecting Civil Misc. W.P. No.10713/83 filed by the appellant challenging the award dated 8.3.1983 and subsequent modification order dated 29.6.1983 of Labour Court II, Kanpur.
(2.) Brief facts necessary for disposal of this appeal are as under : 2.1. The first respondent was working as an Assistant in the appellant company. He was issued three charge-sheets dated 5.2.1977, 17.2.1977 and 24.2.1977 (amended on 1.3.1977). First respondent filed his objections/explanation in respect of each charge-sheet. An inquiry was held into the charges. Accepting the report of the Inquiry Officer, which held that the charges were proved, the employer imposed the punishment of dismissal on the first respondent, by order dated 6.4.1977. 2.2. Conciliation proceedidngs initiated in respect of such dismissal, failed. Consequently, the State Government referred the following dispute to the Labour Court for adjudication : "Whether the termination of the services of its workman Shri Kashi Prasad (s/o Shri Lala Shyam Lal), Assistant, Accounts Department by the Employers from 6.4.1977 is proper, and/or legal If not, for what benefits/compensation the workman is entitled to and any other, with details." 2.3. By order dated 20.12.1980, the Labour Court held that the inquiry was not fair and proper, and permitted parties to adduce evidence. The Labour Court made its award dated 8.3.1983. The Labour Court held that the charge of insubordination and disorderly behaviour in the first charge-sheet, was not proved. The charge under the second charge-sheet, that the first respondent made false (indecent) allegations against his superior officer, and thereby violated office discipline, was held to be proved. In regard to the charge under the third charge-sheet, the Labour Court found that the employee had admitted that he had not prepared the annual accounts correctly, but gave the employee the 'benefit of doubt' by holding that the mistakes in the accounts might not have been committed knowingly or deliberately, and therefore, may not amount to habitual negligence or carelessness. Thus in effect, the findings in regard to three charges were (i) not proved, (ii) proved, and (iii) entitled to benefit of doubt. On the said findings, it made an award dated 8.3.1983, the operative part of which reads thus : "The concerned workman has been working in the company for four years and there was no such complaint against him in the past, hence instead of the punishment of termination of service as a result of Ex. E-2 (dated 17.2.1977) being proved against him, I deem it proper that the increments of two years of the concerned workman should be stopped as punishment." The said award was published on 27.4.1983 and became enforceable from 27.5.1983. 2.4. On 4.5.1983, first respondent filed an application under section 6(6) of the U.P. Industrial Disputes Act, 1947 ('Act' for short) seeking corrections of the award, stating that the workman was entitled to reinstatement with continuity of service and full back-wages from 6.4.1977. The appellant resisted the said application contending inter alia that (i) the Labour Court became functus officio after publication of the award on 27.4.1983 and therefore, it could not amend the award; (ii) the prayer amounted to seeking review of the award, and there was no jurisdiction or power to grant such relief; and (iii) the first respondent was not entitled to the relief of back-wages, as the Labour Court had held that a misconduct was proved. 2.5. The Labour Court by order dated 29.6.1983 allowed the application under section 6(6) and added the following paragraph at the end of the Award, on the ground that it had been omitted due to an accidental slip : "Hence, it is my decision in this case that the termination of services of Mr. Kashi Prasad Agarwal, Assistant, Accounts Department from 6.4.77 by his employer will not be justified but instead, his two annual increments which were admissible to him after the date of his termination, i.e. 6.4.77, be stopped. In view of the punishment of stoppage of two annual increments, the employer shall pay the full wages of the period under unemployment i.e. 6.4.77 to the date of reinstatement in which the amount which was paid to the workman as interim relief or any other mode, shall be adjusted." [emphasis supplied] 2.6. Appellant challenged the said award and the amendment thereto in C.M.W.P. No.10714/83. A learned Single Judge of the High Court vide order dated 28.7.2003 dismissed the petition holding as follows : "From a perusal of the award of the labour court, it is apparent that the tenor of the order is that the workman could not be punished by resorting to termination. The spirit of the order also shows that in fact the labour court had in mind to grant back-wages to the workman, but by omission, the aforesaid mistake has crept in. The contention of the learned counsel for the petitioner cannot be accepted and in my opinion, there was an omission which could be corrected under section 6(6). Though a plea has been made that the court becomes functus officio after tendering the award, in my view, this argument has only to be stated to be rejected. Section 6(6) gives power to the labour court for making corrections in an award." Referring to the submission of learned counsel for the employee that he had not been reinstated in spite of refusal of stay, the learned Single Judge observed thus : "Learned counsel for the respondent workman has submitted that in spite of the aforesaid fact till date the petitioner has not reinstated the workman and, therefore, even equity is against him. A petitioner, who willfully violates lawful orders is not entitled to equitable discretion under Article 226 of the Constitution Of India, 1950"
(3.) The said order of the learned Single Judge, is challenged in this appeal by special leave. On the contentions urged, the following questions arise for consideration : (i) Whether a provision enabling a court to correct any clerical or arithmetical mistake, or error in the order arising from any accidental slip or omission, empowers the Labour Court to grant a relief of back- wages, which was not granted in the original award. (ii) When the punishment of dismissal is substituted by a lesser punishment (stoppage of increments for two years), and consequently, the employee is directed to be reinstated, whether the employee is entitled to back-wages from the date of termination to date of reinstatement. (iii) Whether on the facts and circumstances, the Labour Court was justified in interfering with the punishment of dismissal. (iv) If the employer was otherwise entitled to relief, whether it could be denied on the ground that it had failed to reinstate the employee, in spite of the non-stay of the direction for reinstatement. Re : Question (i);