Telangana High Court
The Management, Hbl Engineering … vs K. Shankar Rao on 31 July, 2026
Author: Juvvadi Sridevi
Bench: Juvvadi Sridevi
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
THE HONOURABLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.26753 of 2016
DATED: 31st JULY, 2026
BETWEEN:
The Management HBL Engineering Limited ...Petitioner
AND
K. Shankar Rao and another ...Respondents
O R D E R:
The Writ Petition is filed by the petitioner with the following
prayer:
“to issue a Writ order or direction more particularly one in the
nature of Writ of Certiorari calling for the records relating to
and connected with the impugned order dated 21 01 2016
passed by the Honble Labour Court III Andhra Pradesh
Hyderabad in MP No 31/2009 on its file and quash the same
and pass”
02. Heard Sri S. Ashok Anand Kumar, learned Senior Counsel
for the petitioner and Sri K. Ujwal Babu, learned counsel, representing
Ms. Ramaa Swetha Ogirala, learned counsel for the respondent No.1
and perused the record.
03.1. Learned counsel for the petitioner-company submitted that
the impugned order dated 21.01.2016 passed by the Labour Court-III
in M.P.No.31 of 2009 is wholly illegal, arbitrary and contrary to the
2
material available on record. It is contended that the Labour Court
travelled beyond the scope of the Award dated 27.12.2003 passed in
I.D.No.48 of 2001 and erroneously granted monetary benefits to the
respondent No.1 despite his own failure to report for duty.
03.2. It is further submitted that pursuant to the Award directing
reinstatement, the petitioner-company issued proceedings dated
07.05.2004 reinstating the respondent No.1 into service and directing
him to report for duty at its Noida Unit. The respondent No.1
acknowledged the said communication and, by letter dated
17.05.2004, did not dispute the reinstatement but merely sought some
additional time to report for duty. Thus, according to the learned
counsel, the petitioner had fully complied with the Award by offering
reinstatement.
03.3. It is further submitted that instead of reporting for duty, the
respondent No.1 addressed subsequent letters requesting that he
should be retained at the Shameerpet Plant on the ground that
reinstatement necessarily required posting him at the very place from
where he was terminated. It is contended that such a demand was
wholly untenable in law, as reinstatement merely restores an
employee to service and does not confer any vested right to insist
upon posting at a particular station.
3
03.4. It is further submitted that, by letter dated 02.09.2004, the
petitioner once again afforded an opportunity to the respondent No.1
to report for duty at Noida on or before 20.09.2004. The petitioner
specifically informed him that there was no suitable vacancy at
Shameerpet or Kothur and that, in accordance with the service
conditions and the transfer policy of the company, employees were
liable to be posted anywhere depending upon the exigencies of work.
It was also made clear that failure to join duty would be treated as lack
of interest in continuing employment. Despite receipt of the said
communication, the respondent No.1 admittedly failed to join duty.
03.5. It is further submitted that, having voluntarily chosen not to
report for duty despite repeated opportunities, the respondent No.1
was not entitled to claim wages for the period during which he had not
worked. Invoking the well-settled principle of “No Work No Pay”,
learned counsel argued that no monetary liability could be fastened
upon the petitioner for the period during which the respondent No.1
deliberately abstained from joining service.
03.6. It is further submitted that the execution petition, originally
filed as M.P.No.18 of 2007 and later renumbered as M.P.No.31 of
2009, was not supported by any acceptable evidence. It is contended
that the proceedings remained pending for several years, were
4
dismissed for default on more than one occasion and were prosecuted
without leading any oral evidence on behalf of the respondent No.1.
Except marking a copy of the earlier Award, no documentary evidence
was produced to substantiate the monetary claims made in the
petition.
03.7. It is further contended that, in the absence of any legal
evidence, the Labour Court could not have directed payment of 50%
back wages from 30.05.2004 till reinstatement together with interest at
12% per annum, nor could it have directed computation of wages by
treating the respondent No.1 as being in continuous service with all
consequential allowances. According to the learned counsel, the
Labour Court exceeded the scope of the original Award and granted
benefits which were neither contemplated nor legally sustainable.
03.8. It is also submitted that the Labour Court committed a
serious error in holding that reinstatement necessarily required posting
the respondent No.1 at the Shameerpet Plant. It is contended that
reinstatement only restores the employee to the post or cadre from
which he was removed and does not prohibit the employer from
transferring or posting the employee to another establishment in
accordance with service conditions, particularly when no vacancy
existed at the earlier place of posting. The finding of the Labour Court
5
to the contrary is stated to be based on an erroneous interpretation of
the judgments relied upon by it.
03.9. It is further submitted that the Labour Court misapplied the
decisions of the Hon’ble Supreme Court while interpreting the Award
and wrongly concluded that back wages were liable to be computed
on the basis of revised pay scales and continuity of service. It is
contended that the Award dated 27.12.2003 merely granted 50% back
wages and did not authorize computation on revised pay scales or
confer any additional monetary benefits beyond what was specifically
awarded. It is, therefore, submitted that the impugned order suffers
from errors apparent on the face of the record, is unsupported by
evidence, ignores the admitted conduct of the respondent No.1 in
refusing to join duty despite repeated opportunities, and is contrary to
the settled principles governing reinstatement and entitlement to back
wages. Hence, prayed that the writ petition be allowed by setting
aside the impugned order dated 21.01.2016 passed in M.P.No.31 of
2009 by the Labour Court-III, Hyderabad.
03.10. In support of his contentions, learned counsel for the
petitioner relied upon a decision of the Hon’ble Supreme Court in
6
Fabril Gasosa v. Labour Commissioner and others1 wherein it was
held at Paragraph Nos.17, 19 to 21 that:
“17. In the instant case the period of earlier settlement of
1986 had expired but the expiry of that period would not
affect the enforcement of the binding obligations flowing from
the earlier settlement till substituted by a fresh settlement.
The obligations arising from the earlier settlement would
continue to remain in force, though as a contract and not as
a binding settlement, but that would make no difference to
the maintainability of a claim petition under Section 33-C(1)
of the Act so long as the requirements of that sub-section
are satisfied and the obligations sought to be enforced flow
from an earlier settlement or an award or under Chapter V-A
or V-B of the Act.
19. Section 33-C is in the nature of execution proceedings
designed to recover the dues to the workmen. Vide Sections
33-C(1) and (2), the legislature has provided a speedy
remedy to the workmen to have the benefits of a settlement
or award which are due to them and are capable of being
computed in terms of money, be recovered through the
proceedings under those sub-sections. The distinction
between sub-section (1) and sub-section (2) of Section 33-C
lies mainly in the procedural aspect and not with any
substantive rights of workmen as conferred by these two
sub-sections. Sub-section (1) comes into play when on the
application of a workman himself or any other person
assigned by him in writing in this behalf or his assignee or
heirs in case of his death, the appropriate Government is
satisfied that the amounts so claimed are due and payable to
that workman. On that satisfaction being arrived at, the
Government can initiate action under this sub-section for
recovery of the amount provided the amount is a determined
one and requires no “adjudication”. The appropriate
Government does not have the power to determine the
amount due to any workman under sub-section (1) and that
determination can only be done by the labour court under
sub-section (2) or in a reference under Section 10(1) of the1
(1997) 3 SCC 150
7Act. Even after the determination is made by the labour court
under sub-section (2) the amount so determined by the
labour court, can be recovered through the summary and
speedy procedure provided by sub-section (1). Sub-section
(1) does not control or affect the ambit and operation of sub-
section (2) which is wider in scope than sub-section (1).
Besides the rights conferred under Section 33-C(2) exist in
addition to any other mode of recovery which the workman
has under the law. An analysis of the scheme of Sections
33-C(1) and 33-C(2) shows that the difference between the
two sub-sections is quite obvious. While the former sub-
section deals with cases where money is due to a workman
from an employer under a settlement or an award or under
the provisions of Chapter V-A or V-B, sub-section (2) deals
with cases where a workman is entitled to receive from the
employer any money or any benefit which is capable of
being computed in terms of money. Thus, where the amount
due to the workmen, flowing from the obligations under a
settlement, is predetermined and ascertained or can be
arrived at by any arithmetical calculation or simpliciter
verification and the only inquiry that is required to be made is
whether it is due to the workmen or not, recourse to the
summary proceedings under Section 33-C(1) of the Act is
not only appropriate but also desirable to prevent
harassment to the workmen. Sub-section (1) of Section 33-C
entitles the workmen to apply to the appropriate Government
for issuance of a certificate of recovery for any money due to
them under an award or a settlement or under the provisions
of Chapter V-A and the Government, if satisfied, that a
specific sum is due to the workmen, is obliged to issue a
certificate for the recovery of the amount due. After the
requisite certificate is issued by the Government to the
Collector, the Collector is under a statutory duty to recover
the amounts due under the certificate issued to him. The
procedure is aimed at providing a speedy, cheap and
summary manner of recovery of the amount due, which the
employer has wrongfully withheld. It, therefore, follows that
where money due is on the basis of some amount
predetermined like the VDA, the rate of which stands
determined in terms of the settlement, an award or under
Chapter V-A or V-B, and the period for which the arrears are
claimed is also known, the case would be covered by sub-
8
section (1) as only a calculation of the amount is required to
be made.
20. A Constitution Bench of this Court in Kays Construction
Co. (P) Ltd. v. State of U.P. [(1965) 2 SCR 276 : AIR 1965
SC 1488 : (1965) 2 LLJ 429] while considering the scope of
Section 6-H(1) and (2) of the U.P. Industrial Disputes Act,
1947, which provisions are in pari materia with Sections 33-
C(1) and (2) opined:
“The contrast in the two sub-sections between ‘money due’
under the first sub-section and the necessity of reckoning the
benefit in terms of money before the benefit becomes
‘money due’ under the second sub-section shows that mere
arithmetical calculations of the amount due are not required
to be dealt with under the elaborate procedure of the second
sub-section. The appellant no doubt conjured up a number
of obstructions in the way of this simple calculation. These
objections dealt with the ‘amount due’ and they are being
investigated because State Government must first satisfy
itself that the amount claimed is in fact due. But the
antithesis between ‘money due’ and a ‘benefit which must be
computed in terms of money’ still remains, for the inquiry
being made is not of the kind contemplated by the second
sub-section but is one for the satisfaction of the State
Government under the first sub-section. It is verification of
the claim to money within the first sub-section and not
determination in terms of money of the value of a benefit. 21.
The law laid down by the Constitution Bench applies with full
force to the facts of the instant case and in view of the
established facts and circumstances of this case, recourse to
the proceedings under Section 33-C(1) of the Act by the
Union was just and proper.”
03.11. Further, he relied upon a decision of the Hon’ble
Supreme Court in Hasham Abbas Sayyad v. Usman Abbas
Sayyad2 wherein it was held at Paragraph Nos.22 and 24 that:
2
(2007) 2 SCC 355
9“22. The core question is as to whether an order passed by
a person lacking inherent jurisdiction would be a nullity. It will
be so. The principles of estoppel, waiver and acquiescence
or even res judicata which are procedural in nature would
have no application in a case where an order has been
passed by the Tribunal/court which has no authority in that
behalf. Any order passed by a court without jurisdiction
would be coram non judice, being a nullity, the same
ordinarily should not be given effect to. [See Chief Justice of
A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34 : 1979 SCC (L&S)
99 : AIR 1979 SC 193] and MD, Army Welfare Housing
Organisation v. Sumangal Services (P) Ltd. [(2004) 9 SCC
619] ]
24. We may, however, hasten to add that a distinction must
be made between a decree passed by a court which has no
territorial or pecuniary jurisdiction in the light of Section 21 of
the Code of Civil Procedure, and a decree passed by a court
having no jurisdiction in regard to the subject-matter of the
suit. Whereas in the former case, the appellate court may
not interfere with the decree unless prejudice is shown,
ordinarily the second category of the cases would be
interfered with.”
03.12. Further, he relied upon a decision of the Hon’ble
Supreme Court in Union of India v. Assn. of Unified Telecom
Service Providers of India3 wherein it was held at Paragraph Nos.59
and 60 that:
“59. Thus, the Tribunal in its order dated 7-7-2006 has not
just decided a dispute on the interpretation of adjusted gross
revenue in the licence agreement, but has decided on the
validity of the definition of adjusted gross revenue in the
licence agreement. As we have already held, the Tribunal
had no jurisdiction to decide on the validity of the terms and
conditions of the licence including the definition of adjusted
gross revenue incorporated in the licence agreement.
3
(2011) 10 SCC 543
10Hence, the order dated 7-7-2006 of the Tribunal insofar as it
decides that revenue realised by the licensee from activities
beyond the licence will be excluded from adjusted gross
revenue dehors the definition of adjusted gross revenue in
the licence agreement is without jurisdiction and is a nullity
and the principle of res judicata will not apply.
60. In Chandrabhai K. Bhoir v. Krishna Arjun Bhoir [(2009) 2
SCC 315 : (2009) 1 SCC (Civ) 512] this Court relying on
Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34 :
1979 SCC (L&S) 99] , Union of India v. Pramod Gupta
[(2005) 12 SCC 1] and National Institute of Technology v.
Niraj Kumar Singh [(2007) 2 SCC 481 : (2007) 1 SCC (L&S)
668] has held: (Krishna Arjun case [(2009) 2 SCC 315 :
(2009) 1 SCC (Civ) 512] , SCC p. 322, para 26)“26. … an order passed without jurisdiction would be a
nullity. It will be a coram non judice [and] non est in the eye
of the law. Principles of res judicata would not apply to such
cases.””
03.13. Further, he relied upon a decision of the Hon’ble
Supreme Court in Allahabad Bank v. Avtar Bhushan Bhartiya 4
wherein it was held at Paragraph No.13 that:
“13. In view of the order passed by this Court on 3-1-2019
[Allahabad Bank v. Avtar Bhushan Bhartiya, 2019 SCC
OnLine SC 2164] , the only question that we are called upon
to decide is, whether the officer-employee is not entitled to
back wages at all or whether he is entitled only to 50% of the
back wages as held by the High Court or whether he is
entitled to full back wages.”
03.14. Further, he relied upon a decision of the Hon’ble
Supreme Court Kallakurichi Taluk Coop. Housing Society Ltd. v.
4
(2022) 13 SCC 202
11
M. Maria Soosai 5 wherein it was held at Paragraph Nos.24 and 27
that:
“24. In this regard reference was made to the decision of
this Court in Novartis India Ltd. v. State of W.B. [(2009) 3
SCC 124 : (2009) 1 SCC (L&S) 595] wherein the dismissal
of an employee for not joining the place to which he had
been transferred, fell for consideration and it was held that
the same was hit by the principles of natural justice and such
dismissal could only be effected after holding a domestic
enquiry/disciplinary proceeding.
27. As the facts reveal, Respondent 1 unilaterally stopped
coming to work without submitting any leave application or
prior intimation and that too not for a day or two, but for
months on end. It is, in fact, surprising as to why a decision
was taken to consider his case on a compassionate basis,
despite laches of his own making. The decision of the
appellant Society to reappoint Respondent 1 on
compassionate grounds leading to the order of the Registrar
(Housing) dated 27-7-1995, permitting the appellant Society
to reappoint him, was in itself a concession made to
Respondent 1 which he misused subsequently.”
03.15. Further, he relied upon a decision of the Hon’ble
Supreme Court in State of Odisha v. Kamalini Khilar 6 wherein it was
held at Paragraph Nos.32 and 37 that:
“32. The decisions in Hindustan Tin Works (P) Ltd.
[Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC
80 : 1979 SCC (L&S) 53] and Surendra Kumar Verma
[Surendra Kumar Verma v. Central Govt. Industrial Tribunal-
cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16]
relate to industrial law and the effect of illegal termination of
a workman. An order which is passed pursuant to a direction
which is binding on the employer cannot possibly be5
(2010) 6 SCC 690
6
(2021) 6 SCC 546
12described as illegal. Therefore, the said case law cannot
advance the case of the respondent.
37. In Deepali Gundu Surwase [Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324
: (2014) 2 SCC (L&S) 184] , the matter arose under the
Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977. This Court undoubtedly laid
down that in the case of wrongful termination of service
reinstatement with the continuity of service and back wages
is the normal rule. It was subject to the qualification that the
Court may inter alia take into consideration the length of
service and the nature of misconduct if any proved, the
financial condition of the employer and similar other factors.
For the reasons which we have indicated in the facts of this
case Respondent 1 cannot be permitted to draw any benefit
from the said pronouncement.”
03.16. Further, he relied upon a decision of the Hon’ble
Supreme Court in Gowramma C. v. Hindustan Aeronautical Ltd.,7
wherein it was held at Paragraph Nos.11 and 13 that:
“11. In the decision in P.V.K. Distillery Ltd. v. Mahendra
Ram [P.V.K. Distillery Ltd. v. Mahendra Ram, (2009) 5 SCC
705 : (2009) 2 SCC (L&S) 134] again relied upon by the
respondent, the matter arose out of an award by the Labour
Court where exercise of power under Section 11-A of the
Industrial Disputes Act was made. This is also a case where
incidentally the Court noted that the appellant employer
remained closed for years together and it was declared as a
sick unit. In this regard, a fact which weighed with the Court
is found reflected in the following statement : (SCC p. 710,
para 18)“18. Although direction to pay full back wages on a
declaration that the order of termination was invalid used to
be the usual result but now, with the passage of time, a
pragmatic view of the matter is being taken by the Court
realising that an industry may not be compelled to pay to the
7
(2022) 11 SCC 794
13workman for the period during which he apparently
contributed little or nothing at all to it and/or for a period that
was spent unproductively as a result whereof the employer
would be compelled to go back to a situation which prevailed
many years ago, namely, when the workman was
retrenched.”
13. The most important question is whether the employee is
at fault in any manner. If the employee is not at all at fault
and she was kept out of work by reasons of the decision
taken by the employer, then to deny the fruits of her being
vindicated at the end of the day would be unfair to the
employee. In such circumstances, no doubt, the question
relating to alternative employment that the employee may
have resorted to, becomes relevant. There is also the aspect
of discretion which is exercised by the Court keeping in view
the facts of each case. As we have already noticed, this is a
case where apart from the charge of the employee having
produced false caste certificate, there is no other charge.
Therefore, we would think that interests of justice, in the
facts of this case, would be subserved, if we enhance the
back wages from 50% to 75% of the full back wages, which
she was otherwise entitled. The appeals are partly allowed.
The impugned judgments will stand modified and the
respondents shall calculate the amount which would be
equivalent to 75% of the back wages and disburse the
amount remaining to be paid under this judgment within a
period of six weeks from today to the additional appellants.”
03.17. Further, he relied upon a decision of the Hon’ble
Supreme Court in Novartis India Ltd. v. State of W.B., 8 wherein it
was held at Paragraph Nos.33 and 34 that:
“33. In regard to the construction of the words “last pay
drawn”, learned counsel has drawn our attention to the
decision of this Court in Dena Bank v. Kiritikumar T. Patel
[(1999) 2 SCC 106 : 1999 SCC (L&S) 466] , wherein it was
held: (SCC p. 115, paras 19-20)8
(2009) 3 SCC 124
14“19. As per the decisions of the High Courts referred to
above, the expression ‘full wages last drawn’ in Section 17-B
can mean as under:
(i) Wages only at the rate last drawn and not at the same
rate at which the wages are being paid to the workmen who
are actually working. (Daladdi Coop. Agriculture Service
Society Ltd. v. Gurcharan Singh [(1993) 5 SLR 719 (P&H)] )
(ii) Wages drawn on the date of termination of the services
plus the yearly increment and the dearness allowance to be
worked out till the date of the award. (Vishveswaraya Iron
and Steel Ltd. v. M. Chandrappa [(1994) 84 FJR 46 : (1994)
1 LLJ 555 (Kant)] and Kirtiben B. Amin v. Mafatlal Apparels
[(1995) 2 Guj LR 1362] )
(iii) Full wages which the workman was entitled to draw in
pursuance of the award and the implementation of which is
suspended during the pendency of the proceedings. (Carona
Sahu Co. Ltd. v. Abdul Karim Munafkhan [(1995) 70 FLR 25
: (1994) 2 LLN 834 (Bom)] , Macneil and Magor Ltd. v.
Labour Court [(1995) 1 LLN 1014 (Mad)] and P. Chennaiah
v. Executive Engineer [(1996) 2 LLJ 240 (AP)] )
20. The first construction gives to the words ‘full wages last
drawn’ their plain and material meaning. The second as well
as the third constructions read something more than their
plain and material meaning in those words. In substance
these constructions read the words ‘full wages last drawn’ as
‘full wages which would have been drawn’. Such an
extended meaning to the words ‘full wages last drawn’ does
not find support in the language of Section 17-B. Nor can
this extended meaning be based on the object underlying
the enactment of Section 17-B.”
34. There cannot be any doubt whatsoever that ordinarily an
employee who has been transferred should, subject to just
exceptions, join at his transferred place. Ordinarily in an
industrial undertaking indiscipline should not be encouraged.
This Court in SBI v. Anjan Sanyal [(2001) 5 SCC 508 : 2001
SCC (L&S) 858 : JT (2001) 5 SC 203] observed that the
conduct of an employee in a transfer case is material as he
cannot get a premium for his disobedience. There are,
however, certain exceptional situations in this case.
Admittedly the respondents were challenging the right of the
employer to order transfer of the employee particularly when
15
they hold some posts in the association. The dispute was
sub judice. They were in their late fiftees. They had served
the company for a period of more than 25 years. It is true
that they did not join at their transferred posts within a
reasonable time. It may also in an ordinary situation be held
that seven months is too long a period to join at the
transferred place. There cannot furthermore be any doubt
that the transfer is an incidence of service. Unless an order
of transfer is passed contrary to the provisions of the
statutory rule or settlement, the same should not be
interfered with.”
04.1. Learned counsel for the respondent No.1-employee
opposed the writ petition and supported the impugned order passed by
the Labour Court. It is submitted that the writ petition is devoid of merit
and is liable to be dismissed, as the Labour Court has rightly
interpreted and implemented the Award dated 27.12.2003 passed in
I.D.No.48 of 2001. It is further submitted that the respondent No.1
joined the services of the petitioner-company in the year 1986 as a
Chemist and was illegally removed from service by order dated
29.07.2000. Aggrieved thereby, he raised I.D.No.48 of 2001 before
the Labour Court-I, Hyderabad seeking reinstatement with full back
wages, continuity of service and all attendant benefits. Upon
considering the material on record, the Labour Court, by its Award
dated 27.12.2003, set aside the order of termination and directed the
petitioner-management to reinstate the respondent No.1 into service
within one month from the date of publication of the Award. The
16
Labour Court further granted 50% back wages together with interest at
12% per annum in the event of default in payment and also directed
that the respondent No.1 shall be entitled to continuity of service with
all attendant benefits. The said Award was subsequently published
through G.O.Rt.No.518 dated 27.03.2004.
04.2. It is further submitted that although the petitioner issued a
communication dated 07.05.2004 directing the respondent No.1 to
report for duty at Noida, the respondent No.1 immediately submitted
representations explaining that, at the time of his illegal termination, he
was working in the Production Department at the Shameerpet Unit and
possessed considerable experience in that establishment.
Accordingly, he requested the management to reinstate him at the
very place from where he had been illegally removed. Similar
representations were submitted on 01.06.2004 and thereafter,
requesting that he be retained at the original place of employment.
04.3. It is submitted that the petitioner neither considered nor
responded to the legitimate request of the respondent No.1. Instead,
the petitioner insisted that he should report for duty at Noida, thereby
compelling him to accept a posting at a place entirely different from his
original place of employment. Learned counsel contended that such
17
action is contrary to the very concept of reinstatement as
contemplated under labour jurisprudence.
04.4. It is further submitted that the petitioner also failed to
implement the Award in its true spirit by calculating the 50% back
wages only on the basis of the last drawn salary, completely ignoring
the specific direction granting continuity of service. It is submitted that
continuity of service necessarily requires that the workman be treated
as if he had remained in uninterrupted service and, consequently, the
back wages ought to have been computed by taking into account the
revisions in pay, increments and all admissible service benefits. The
petitioner also failed to extend consequential benefits such as bonus
and earned leave, thereby compelling the respondent No.1 to initiate
proceedings under Section 33-C(2) of the Industrial Disputes Act by
filing M.P.No.18 of 2007, which was subsequently transferred and
renumbered as M.P.No.31 of 2009.
04.5. It is submitted that, after considering the Award and the
law governing reinstatement and continuity of service, the Labour
Court rightly held that the respondent No.1 was entitled to 50% back
wages from 30.05.2004 till the date of reinstatement together with
interest at 12% per annum and further directed that such back wages
should be calculated by treating the respondent No.1 as having
18
continued in uninterrupted service with all consequential allowances.
According to the learned counsel, the Labour Court merely
implemented the earlier Award and did not confer any benefit beyond
what had already been granted therein.
04.6. It is further submitted that the contention of the petitioner
that the respondent No.1 failed to join duty at Noida is wholly
misconceived. It is contended that once an order of termination is set
aside and reinstatement is directed, the employer is under an
obligation to restore the employee to the original place of employment
unless there exists a valid statutory provision or service condition
authorising otherwise. The petitioner has not placed any material
before this Court to establish any such authority or compelling
administrative necessity warranting the posting of the respondent No.1
at Noida instead of the Shameerpet Unit.
04.7. In support of the said contention, learned counsel placed
reliance upon the Judgment of the Division Bench of the Madras High
Court in Lakshmi Mills Ltd., Coimbatore v. Labour Court,
Coimbatore and another9, wherein it was held that reinstatement
ordinarily means restoration of the employee to the original place of
employment and that the management cannot, under the guise of
9
1997 (3) LLN 354
19
implementing an award of reinstatement, transfer the employee to a
different place of work. Reliance was also placed upon the interim
order of the Madras High Court in W.M.P.No.3730 of 2021 in
W.P.No.10833 of 2020, dated 01.11.2021, wherein, following the
decisions of the Hon’ble Supreme Court, it was reiterated that
reinstatement should ordinarily be at the original place of employment
and that transferring the workman to another place while implementing
an order of reinstatement is contrary to the settled principles of law.
04.8. It is further submitted that the petitioner’s reliance upon
the principle of “No Work No Pay” is wholly misplaced. It is contended
that the respondent No.1 was always willing to resume duties at the
place where he had been illegally removed and had repeatedly
expressed such willingness through written representations.
According to the learned counsel, it was the petitioner who failed to
faithfully implement the Award by insisting upon a posting at a different
establishment without any legal justification. Therefore, the petitioner
cannot take advantage of its own failure to implement the Award in
accordance with law and deny the monetary benefits lawfully due to
the respondent No.1. Hence, he prayed that the writ petition be
dismissed by affirming the order dated 21.01.2016 passed by the
Labour Court-III in M.P.No.31 of 2009.
20
04.9. In support of his contentions, the learned counsel for the
respondent No.1 relied upon a decision of the Hon’ble Supreme Court
in M/s. Bombay Chemical Industries v. Deputy Labour
Commissioner and another10 wherein it was held at Paragraph
Nos.6 and 7 that:
“6. At the outset it is required to be noted that respondent
No.2 herein filed an application before the Labour Court
under Section 33(C)(2) of the Industrial Disputes Act,
demanding difference of wages from 01.04.2006 to
31.03.2012. It was thus the case on behalf of respondent
No.2 that he was working with the appellant as a salesman.
However, the appellant had taken a categorical stand that
respondent No.2 was never engaged by the appellant. It was
specifically the case on behalf of the appellant that
respondent No.2 had never worked in the establishment in
the post of salesman. Therefore, once there was a serious
dispute that respondent No.2 had worked as an employee of
the appellant and there was a very serious dispute raised by
the appellant that respondent No.2 was not in employment
as a salesman as claimed by respondent No.2, thereafter, it
was not open for the Labour Court to entertain disputed
questions and adjudicate upon the employer employee
relationship between the appellant and respondent No.2. As
per the settled proposition of law, in an application under
Section 33(C)(2) of the Industrial Disputes Act, the Labour
Court has no jurisdiction and cannot adjudicate dispute of
entitlement or the basis of the claim of workmen. It can only
interpret the award or settlement on which the claim is
based. As held by this Court in the case of Ganesh Razak
and Anr. (supra), the labour court’s jurisdiction under Section
33(C)(2) of the Industrial Disputes Act is like that of an
executing court. As per the settled preposition of law without
prior adjudication or recognition of the disputed claim of the
workmen, proceedings for computation of the arrears of
wages and/or difference of wages claimed by the workmen10
2022 LiveLaw(SC) 130
21shall not be maintainable under Section 33(C)(2) of the
Industrial Disputes Act. (See Municipal Corporation of Delhi
Vs. Ganesh Razak and Anr. (1995) 1 SCC 235).
In the case of Kankuben (supra), it is observed and held that
whenever a workman is entitled to receive from his employer
any money or any benefit which is capable of being
computed in terms of money and which he is entitled to
receive from his employer and is denied of such benefit can
approach Labour Court under Section 33C (2) of the ID Act.
It is further observed that the benefit sought to be enforced
under Section 33C (2) of the ID Act is necessarily a pre-
existing benefit or one flowing from a preexisting right. The
difference between a preexisting right or benefit on one hand
and the right or benefit, which is considered just and fair on
the other hand is vital. The former falls within jurisdiction of
Labour Court exercising powers under Section 33C (2) of the
ID Act while the latter does not.
7. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, when there was
no prior adjudication on the issue whether respondent No.2
herein was in employment as a salesman as claimed by
respondent No.2 herein and there was a serious dispute
raised that respondent No.2 was never in employment as a
salesman and the documents relied upon by respondent
No.2 were seriously disputed by the appellant and it was the
case on behalf of the appellant that those documents are
forged and/or false, thereafter the Labour Court ought not to
have proceeded further with the application under Section
33(C)(2) of the Industrial Disputes Act. The Labour Court
ought to have relegated respondent No.2 to initiate
appropriate proceedings by way of reference and get his
right crystalized and/or adjudicate upon. Therefore, the order
passed by the Labour Court was beyond the jurisdiction
conferred under Section 33(C)(2) of the Industrial Disputes
Act. The High Court has not appreciated the aforesaid facts
and has confirmed the same without adverting to the scope
and ambit of the jurisdiction of the Labour Court under
Section 33(C)(2) of the Industrial Disputes Act.”
22
04.10. He further relied upon a decision of the Hon’ble Supreme
Court in Punjab National Bank v. Atin Arora and another11 wherein
it was held at Paragraph No.4 that:
“4. The High Court, while exercising its discretion,
overlooked the provisions of Section 21 of the Code of Civil
Procedure, 1908, 2 For short, “NCLT.” “21. Objections to
jurisdiction.-
(1)No objection as to the place of suing shall be allowed by
any Appellate or Revisional Court unless such objection was
taken in the Court of first instance at the earliest possible
opportunity and in all cases where issues are settled at or
before such settlement, and unless there has Signature
been a consequent failure of justice.
(2) No objection as to the competence of a Court with
reference to the pecuniary Date: 2025.01.06 17:01:35 IST
limits of its jurisdiction shall be allowed by any Appellate or
Reason:
Revisional Court unless such objection was taken in the
Court of first instance at the earliest possible opportunity,
and, in all cases where issues are settled, at or before such
settlement, and unless there has been a consequent failure
of whose principles and rule should be applied in the
present case. The principle enjoins that objections regarding
the place of suing shall not be allowed unless such objection
is taken in the Court/tribunal of first instance at the earliest
possible opportunity. This Court, in Harshad Chiman Lal
Modi v. DLF Universal Ltd. and Anr., has held that if such
objection is not taken at the earliest, it cannot be allowed to
be taken at a subsequent stage. These principles were
reiterated by this Court in Subhash Mahadevasa Habib v.
Nemasa Ambasa Dharmadas (Dead) by LRS. and Ors.”
05. Initially, this Court on 10.08.2016 passed Interim Order in
W.P.M.P.No.33126 of 2016 which is as follows:
11
2025 Supreme(SC) 1470
23“It is the case of the petitioner that though the first
respondent was asked to report at Noida vide letter dated
07.05.2004, he expressed his inability to join the duty on
17.05.2004. He did not report for duty and he was engaged
elsewhere.
The present W.P.M.P. relates to payment of back wages
from 30.05.2004 to the date of reinstatement, which could
not have been ordered, prima facie, in view of the letter
dated 07.05.2004.
There shall be interim suspension of the impugned order.”
06. Having heard the rival submissions made by the learned
counsel for both sides, and upon perusal of the material placed on
record, the undisputed facts disclose that the Award dated 27.12.2003
passed in I.D.No.48 of 2001 directed reinstatement of the respondent
No.1 into service with continuity of service and 50% back wages.
Pursuant thereto, the petitioner-management issued proceedings
dated 07.05.2004 reinstating the respondent No.1 into service and
directing him to report for duty at its Noida Unit. The receipt of the
said communication by the respondent No.1 is not in dispute. On the
contrary, by his letter dated 17.05.2004, the respondent No.1
acknowledged the reinstatement order and merely requested some
time to join duty. Subsequently, instead of reporting for duty, he
addressed further representations requesting that he should be
reinstated only at the Shameerpet Unit where he was previously
24
working. Even thereafter, the petitioner-management, by
communication dated 02.09.2004, once again granted him an
opportunity to report for duty at Noida on or before 20.09.2004 while
specifically informing him that no vacancy was available at
Shameerpet or Kothur and that, in accordance with the service
conditions, employees were liable to be posted at any unit depending
upon administrative exigencies. Despite such repeated opportunities,
the respondent No.1 admittedly failed to join duty.
07. Now the main question that arises for consideration is
whether the petitioner-management can be said to have failed to
implement the Award merely because the respondent No.1 was
directed to report at Noida instead of the Shameerpet Unit, and
whether, on that basis, the Labour Court was justified in directing
payment of wages from 30.05.2004 till the date of actual reinstatement
together with consequential monetary benefits. The Award passed in
I.D.No.48 of 2001 directed reinstatement into service. Significantly,
neither the Award nor any statutory provision directed that the
reinstatement should necessarily be at the very same unit where the
employee was previously working. Once the employer restored the
employer-employee relationship by issuing an order of reinstatement
and called upon the workman to resume duties, the obligation cast
25
upon the management under the Award stood substantially complied
with. Thereafter, the place of posting is governed by the service
conditions applicable to the employee, unless the transfer or posting is
shown to be arbitrary, mala fide or contrary to any statutory provision.
08. It is well settled that transfer is an incidence of service. An
employee cannot claim, as a matter of right, posting at a particular
station unless such right flows from statutory rules, certified standing
orders, settlement or specific contractual conditions. In the present
case, except asserting that reinstatement necessarily required
restoration to the Shameerpet Unit, the respondent No.1 has not
placed any material before this Court establishing any statutory
prohibition restraining the petitioner from posting him at Noida. On the
contrary, the petitioner consistently maintained that no vacancy was
available at Shameerpet and that employees were liable to be posted
at any of its establishments depending upon administrative
requirements.
09. The Labour Court, however, proceeded on the assumption
that reinstatement necessarily meant restoration to the very same
place of employment. Such a finding, in the considered opinion of this
Court, travels beyond the terms of the Award itself. An executing
Court or a Court exercising jurisdiction under Section 33-C(2) of the
26
Industrial Disputes Act cannot enlarge, modify or supplement the
Award under execution. Its jurisdiction is confined to implementation
of an existing right flowing from the Award and not to creation of a
fresh right.
10. The law relating to proceedings under Section 33-C(2) is
no longer res integra. The Hon’ble Supreme Court has consistently
held that proceedings under Section 33-C(2) are in the nature of
execution proceedings and the Labour Court cannot adjudicate fresh
disputes or confer substantive benefits not flowing from the original
Award. Where adjudication of a new right becomes necessary, the
Labour Court lacks jurisdiction to determine such controversy in
computation proceedings. The judgments relied upon by the petitioner
clearly reiterate this settled principle. In the present case, the original
Award did not adjudicate the issue relating to the place of posting after
reinstatement. Therefore, whether the petitioner was justified in
directing the respondent No.1 to report at Noida constituted an
independent industrial dispute which could not have been adjudicated
in proceedings under Section 33-C(2). Nevertheless, the Labour
Court virtually determined that issue in favour of the workman and, on
that basis, directed payment of wages from 30.05.2004 till
27
reinstatement. Such an exercise clearly exceeded the limited
jurisdiction available under Section 33-C(2).
11. The ID Award had merely granted continuity of service
and 50% back wages. It nowhere directed that wages subsequent to
reinstatement should be computed by notionally extending all future
revisions without the employee having actually discharged any duties.
The Labour Court in impugned order dated 21.01.2016 directed
computation of back wages by extending revised scales of pay,
increments, allowances and other consequential monetary benefits for
the period subsequent to 30.05.2004, by issuing such directions, the
Labour Court virtually modified the Award itself, which was wholly
impermissible in law.
12. A perusal of the correspondence placed on record
establishes that the respondent No.1 had consciously declined to join
duty despite repeated opportunities. His refusal was not on account of
any physical inability or legal disability but solely because he insisted
upon being posted at the Shameerpet Unit. Once reinstatement had
been offered and the employer had called upon him to resume duties,
it was incumbent upon the workman to join first and thereafter, if so
advised, challenge the posting or seek appropriate relief in accordance
with law. He could not, by refusing to join duty altogether, continue to
28
remain away from service and simultaneously claim wages for the
entire period. The principle of “No Work No Pay”, though not of
universal application, squarely applies where the employee voluntarily
abstains from joining duty despite a lawful opportunity extended by the
employer.
13. The Hon’ble Supreme Court has repeatedly held that an
employee cannot derive monetary advantage from his own refusal to
discharge duties. In the facts of the present case, the period
subsequent to the offer of reinstatement cannot be attributed to any
wrongful act on the part of the petitioner-management. Rather, it was
the respondent No.1 who choose not to avail the opportunity extended
to him. Consequently, fastening liability upon the petitioner to pay
wages for such period would amount to rewarding the workman for his
own refusal to work, which is contrary to settled principles of service
jurisprudence.
14. The reliance placed by the learned counsel for the
respondent No.1 on the judgments of the Madras High Court holding
that reinstatement ordinarily should be at the original place of
employment does not merit his case. Those decisions turned upon
their own facts and cannot override the settled principle that transfer is
an incidence of service. More importantly, in the present case, there is
29
neither any finding in the original Award directing reinstatement
specifically at Shameerpet nor any adjudication that posting at Noida
violated any statutory provision or service condition.
15. It is the case of the petitioner that the Labour Court
ignored the admitted correspondence exchanged between the parties,
particularly the letters dated 07.05.2004, 17.05.2004 and 02.09.2004,
which conclusively establish that the petitioner had repeatedly called
upon the respondent No.1 to report for duty. Once such evidence
remained undisputed, the Labour Court ought not to have proceeded
on the premise that the petitioner had failed to implement the Award.
16. The interim order passed by this Court on 10.08.2016 also
assumes significance. While granting interim suspension of the
impugned order, this Court had prima facie observed that once the
petitioner had directed the respondent No.1 to report for duty by letter
dated 07.05.2004 and the respondent No.1 failed to join duty, the
direction to pay wages from 30.05.2004 onwards appeared
unsustainable. Upon an independent re-appreciation of the entire
material now available, this Court finds no reason to take a different
view.
30
17. In view of the aforesaid discussion, this Court is of the
considered opinion that the Labour Court travelled beyond the scope
of the Award dated 27.12.2003, exceeded the jurisdiction vested in it
under Section 33-C(2) of the Industrial Disputes Act, erroneously
treated the dispute relating to place of posting as concluded in favour
of the workman, and illegally awarded monetary benefits for a period
during which the respondent No.1 admittedly did not report for duty
despite repeated opportunities afforded by the petitioner-management.
The impugned order, therefore, suffers from patent errors of law
apparent on the face of the record warranting interference under
Article 226 of the Constitution of India and the same is liable to set
aside.
18. Accordingly, this Writ Petition is allowed. The impugned
order dated 21.01.2016 passed by the Labour Court-III, Hyderabad in
M.P.No.31 of 2009 is hereby set aside. Consequently, the claim of the
respondent No.1 for wages and consequential monetary benefits for
the period commencing from 30.05.2004 till the date of actual joining
of duty stands rejected. However, it is made clear that this order shall
not affect the original Award dated 27.12.2003 in I.D.No.48 of 2001
except to the extent that the computation order passed in M.P.No.31
of 2009 is quashed. There shall be no order as to costs.
31
As a sequel, pending miscellaneous applications, if any, shall
stand closed.
__________________
JUVVADI SRIDEVI, J
Date: 31 -JUL-2026
KHRM
