- (1.) THE present writ petition has been filed challenging the order dated 16.6.2010 (Annexure P -10) whereby the Central Government Industrial Tribunal -cum -Labour Court -I, Chandigarh has dismissed the application of the workman under Section 33 -C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") for commutation of certain amount on the ground that an earlier application had been filed which was decided on 16.12.2004. Accordingly, it was held that once the petitioner has filed application for commutation of amount of similar nature which was claimed in the previous application, rest of the benefits shall be deemed to be waived under Order 2 Rule 2 and also barred by Explanation (IV) of Section 11 of The Code of Civil Procedure, 1908.
(2.) AFTER hearing the counsels for the parties and on a perusal of the paper -book, this Court is of the opinion that the order dated 16.6.2010 is not justified. The reasons are apparent on the face of it since apparently a fresh cause of action has arisen to the workman. If the record is examined, it would be clear that in his first application (Annexure P -1) which was filed on 22.1.2003, the workman was agitating that he was not paid the arrears of wages increased on the basis of 5th Wage Settlement arrived at between the association and the Bank and the increased subsistence allowance. The prayer clause in the application dated 22.1.2003 filed under Section 33 -C(2) of the Act reads as under: - "It is, therefore, respectfully prayed that the respondents be directed to determine the amount of arrears of wages w.e.f. 1.11.1987 to 12.9.1989 in terms of fifth wage settlements and the subsistence allowance w.e.f. 1.11.1992 to 1.11.1997 the date from which the subsistence allowance was increase also they be directed to determine the amount of subsistence allowance on reaffixed amount of basic pay w.e.f. 12.9.1989 to 1.11.1997 and they be directed to make the payment to the applicant along with interest and penalties any other relief deemed fit in the circumstances of the case may also be awarded."
(3.) THAT the aforesaid application was decided on 16.12.2004 as the management undertook to pay the said allowances. However, thereafter the workman was acquitted on 28.11.2006 since an FIR had been lodged against him on 25.9.1990 and certain rights pertaining to the amount payable during his suspension period had accrued to the workman as per the rules framed in pursuance of the Bipartite Settlement renewed from time to time which are reproduced by the respondent no.1 in its written statement. The relevant Rules read as under: - "AWARD STAFF 1) Where the case is not entrusted to or taken up by an outside Agency like CBI/Police: i) For the first three months : 1/3rd of the Pay and allowance. ii) Beyond 3 months upto one year : 1/2 *(pay + allowances). iii) After one year, full pay and allowances provided the enquiry is not delayed for reasons attributable to he workman concerned or any of his representatives. 2. Where the Investigation is done by an outside agency: i) For the first three months: 1/3rd of the Pay and allowances. ii) Beyond 3 months upto one year 1/2 *(pay + allowances) iii) After one year Full salary and allowances after one year of suspension or six months from the date of receipt of such advice whichever is later, provided the enquiry is not delay for reasons attributable to the workman or any of his representatives. b) If the employee is already put on trial/is being prosecuted by the investigating agency. In such case, it is implied that he is not entitled for full salary and allowances till the outcome of the trial." A perusal of the above would thus go on to show that where an employee was being prosecuted by the police, he was not entitled for full salary and allowances till the outcome of the trial. Once the trial had ended in favour of the petitioner on 28.11.2006, he then filed an application dated 23.1.2009 (Annexure P -6) under Section 33 -C(2) of the Act which is his second application praying for the following relief: - "(a) Difference in dearness allowance as increased during the period from 12.9.89 to 24.4.2004 amounting to Rs.1,55,000/ -. (b) Arrears of granted increments as due to the applicant during period 12.9.89 to 24.4.2004 amounting to Rs.1,10,000/ -. (c) Subsistence allowance payable at the rate of full salary after one year of suspension i.e. from 12.9.1990 to 24.4.2004 in terms of Bipartite settlement and chapter 3(a) 12 -B of the Instructions issued by the bank vide circular No.CDO/IR/CIR20 dated 28.7.1998 amounting to Rs.16,05,000/ - total amount due to Rs.18,70,000/ -.";