D.K.Seth, J. - (1.) By an award dated 31-5-1982 in Adjudication Case No. 74 of 1977, the Labour Court, Gorakhpur had set aside the termination of service of husband of the respondent No. 2 Jai Datt Chandola, since deceased, and passed an award to the extent that he will be entitled to the salary from 26-11-1975 till his reinstatement. This award was challenged in writ petition No. 9487/ 1982 wherein an interim order of stay was obtained by the petitioner. The said writ petition was ultimately disposed of on 6-4-1994 by which the writ petition was dismissed and the award of the Labour Court was affirmed. Thereupon the petitioner sent a letter to workman Shri Jai Datt Chandola intimating him that he was due to retire on the attainment of age of 58 years with effect from 31-12-1990. Accordingly on the basis of such superannuation the petitioner had made payment of all the dues payable to said Shri Chandola. Shri Chandola thereupon in Feb. 1995 had applied for computation of his entitlement under the award under Section 33 C(2) of the Industrial Disputes Act which was registered as Misc. Case No. 28 of 1995. By an order dated 28-2-1998 passed by the Labour Court, U.P. Haldwani in Misc. Case No. 28 of 1995 directed payment of Rs. 1,16,624/- to respondent No. 2 being the widow of deceased workman Chandola. This award has since been challenged in this writ petition.
(2.) Mr. L.P. Naithani, learned Senior Advocate appearing in support of the petition had contended that in the award Labour Court while exercising jurisdiction under Section 33C(2) of the Act had purported to determine the entitlement which is not of the nature ancillary to the computation. The right that has been determined does not flow from the said award. Inasmuch as since the petitioner was due to retire on the attainment of 58 years of age, the Labour Court could not have given any benefit or salary after the date of superannuation on the attainment of 58 years of age. According to him the order that he will be entitled to the salary till the reinstatement does not mean to extend beyond the period of superannuation. Inasmuch as reinstatement can be made till a person attains the age of superannuation. There cannot be any question of reinstatement after the attainment of superannuation. Therefore, in directing the payment of salary for a period which include the period after the attainment of superannuation is in effect a right which does not flow from the award and cannot be treated to be ancillary in the matter of computation within the meaning of Section 33C(2) of the Act and as such it is wholly beyond the scope and ambit of the jurisdiction of the Labour Court conferred on it under the provisions of the Industrial Disputes Act. He further contends that the Tribunal was inspired by reason of the absence of any clause for superannuation in the certified standing order and therefore had held that in the absence of any provision for superannuation in the certified standing order, the workman would be entitled to remain in the employment so long as he was capable of working. According to him this issue was wholly outside the scope and ambit of computation. Inasmuch as this is a decision on a dispute covered under Section 13A of the Industrial Employment Standing Order which itself is an independent dispute capable of being referred to the Labour Court. Whether the workman is entitled to continue even so long he is capable of working in the absence of any clause in the standing order within the meaning of Section 13A. According to him, if the standing order is silent in that event the clause contained in the model standing order would be applicable unless there is an agreement between the employer and employee. Admittedly in the present case there being no agreement between the employer and employee as has been claimed by the workman, the model standing order in respect of age of superannuation will be applicable. Thus on the basis of a dispute between the workman and employer to the extent as what would be the age of retirement itself becomes an independent dispute outside the scope and ambit of the said award from which a right is alleged to have been flowing. Thus the same could not have been decided treating the same to be ancillary for the purpose of computation. He further contends that as to whether the workman was capable of working till the date of application under Section 33C(2), till when the salary has been directed to be paid, is also a question which requires determination in order to arrive at a finding as to the entitlement flowing from the award. Thus this is also determination of entitlement which is outside the ambit of the award since the said question has never been decided. That apart the dispute with regard to the capability of the person is also a dispute which is independent in nature and cannot be determined while computing the entitlement under the award. In support of his contention Mr. Naithani had relied on some decisions which were cited at the Bar. Those decisions will be dealt with and taken into consideration at appropriate stage.
(3.) Mr. S.C. Budwar, learned senior counsel on the other hand, contends that the award does not contain any determination with regard to the entitlement of the workman which is not flowing from the award itself. In fact it is a computation of the right of the workman flowing from the award itself. The question that has been gone into is ancillary to computation. By no stretch of imagination it can be said that it would be an independent dispute nor it is a determination of entitlement outside the scope and ambit of the award. According to him the award contemplate payment of salary for the period between the date of dismissal till the reinstatement. Admittedly the petitioner has not been reinstated. Admittedly the certified standing order does not contain any clause for superannuation. The effect of standing order as certified under the Industrial Employment Standing Order Act, becomes applicable as soon it is so certified. According to him Section 12 makes the application of the model standing order imperative only for the period till the standing order is certified. As soon the standing order is certified, the certified standing order alone will be applicable and nothing can be borrowed from the model standing order. Since in this case the certified standing order did not contain any clause for superannuation. Therefore, the finding that the person would be entitled to continue till the person is capable of working is not a determination of a dispute. Neither it is the interpretation of the standing order. Thus according to him, if no age of superannuation is provided in the, certified standing order, in that event, the question of reinstatement would remain till the reinstatement is effected or till the petitioner remains capable of working as has been found by the Labour Court. Thus in determining the payment of salary till the date of application has not determined any disputed question. According to him nowhere it has been alleged by the employer that the petitioner was communicated the date of superannuation till the date of making of the application and thereafter the said question is also not a disputed question which can result into taking away the determination outside the scope and ambit of Section 33C(2). Thus the determination of this question is only ancillary to the computation of the benefit flowing from the award itself. It cannot be construed to mean to be outside the scope and ambit of the award or it cannot be contended it is a right not flowing from the award. He contends further that even for the sake of argument presuming that the model standing order is applicable. Thus his alternative argument is that even if the age of superannuation is 58 years then the same would be effective only when the workman is asked to retire. There might be cases where despite the attainment of age of superannuation, employer had allowed workmen to continue in service. Superannuation is a positive act for which the employer is responsible to initiate the process of superannuation. In case the employer does not take positive action to superannuate a workman and if the workman continues without being so superannuated by the employer, in that event, it is open to the workman to claim salary for the period till he is superannuated. The superannuation may be direct or may be by an intimation to the extent that he had retired on the attainment of 58 years but then if a person continues to work, there cannot be any retrospective superannuation. The superannuation would take effect only on the date when it is communicated irrespective of the fact that the date of superannuation might have expired long ago. According to him in the present case, the employer had never communicated the workman that he had attained the age of superannuation though they had not reinstated him and only for the first time by the notice dated 14-7-1994 the workman was intimated that he had retired on attainment of 58 years of age and therefore according to him the date of the said notice at best could be the date of superannuation. In that event, he will alternatively confine his claim up to 14-7-1994 and will not press for the salary for the period beyond the said date even though directed to be paid by the said award thus by exclusion of the disputed question, assuming not admitting, it would be well within the ambit and scope of Section 33C(2).;