S. Mukerjee, J.@mdashThese are objections by the petitioner ex-employee praying for setting aside a part of the arbitral award dated 11.1.2000, as passed by Shri J.P. Sharma, Sole Arbitrator.
2. The background of facts, to the extent necessary for appreciating the challenge to the arbitral award, is that the petitioner joined the employment of the respondent in the capacity of the "Chief Modalist", drawing in those times, a fairly huge salary of Rs. 37,216/- per month.
3. The petitioner''s case is that he was illegally suspended w.e.f. 18.12.96, and then illegally dismissed from service w.e.f. 31.8.98 and that he was not paid his salary from December 1996 onwards, despite repeated demands.
4. The respondent had preferred a counter claim on the ground of breach of non-completion of agreed tenure of service as stipulated by the agreement of training dated 25.10.94, pursuant to which, the respondent claims, that the petitioner was obliged to serve for a minimum period of 7 years, failing which he had agreed to compensate the respondent by way of liquidated damages at Rs. 1 lakh per year of the balance period not served/less-served.
5. The Ld. Arbitrator, in his award dated 11.2.2000, came to a categorical finding that the disciplinary enquiry conducted by the respondent against the petitioner, was vitiated by illegality. The Ld. Arbitrator also held that the termination order dated 31.8.98, being based upon the illegal enquiry, is also illegal. It was further held that the petitioner is entitled to his salary w.e.f. December, 1996.
6. While all these findings were rendered in favor of the petitioner, however the petitioner is aggrieved of part of the findings of the Ld. Arbitrator, holding that the petitioner would not be entitled to the conveyance allowance and entertainment allowance for this period. The petitioner is also aggrieved of the direction/finding of the arbitrator, by which he has assumed a termination, and/or through the award, terminated the services of the petitioner, by simply ordering payment of three months salary in petitioner''s favor, and that too retrospectively for the period from September to November 1998.
7. The petitioner is also aggrieved of another finding returned to the effect that the respondent is entitled to receive Rs. 4 lakhs as compensation/damages for balance period of four years, less served out of the total agreed period of 7 years.
8. The respondent has not filed any objections against the award, and Therefore cannot claim to be aggrieved of any of the findings of the award.
9. As regards the contentions of the petitioner/objector, I do find a case made out for setting aside certain severable parts of the award, which are liable to be Therefore set aside as against the pubic policy of India. In
9A. The contract of service being one single contract with a pay package and a minimum tenure stipulation, the finding that the petitioner is not entitled to "conveyance allowance" and "entertainment allowance" for the duration of illegal enquiry and the duration of illegal suspension, is contrary to the pubic policy of India, as enshrined by the enacted laws and the law declared by the Supreme Court, which is binding in terms of Article 141 of the Constitution of India. In the entire records before the Arbitrator, no provision or document was brought out which, under the service rules, permitted the forfeiture/non-payment of the "conveyance allowance" or of the "entertainment allowance" component during the period of suspension. It is settled law, as declared by the Hon''ble Apex Court, in the Hotel Imperial, New Delhi and Ors. v. Hotel Workers Union Labour Law Journal 1959 (2) 544 that in the absence of any provision in the contract stipulating otherwise, the right of the employer to suspend, would be however subject to payment of 100% of the emoluments.
10. In this view of the matter, the direction by the arbitrator to pay only a part of the total package of emoluments in relation to the period in question, is clearly contrary to the law laid down by the Supreme Court and Therefore against the public policy of India and as such liable to be set aside to the extent to which the Ld. Arbitrator had restricted the relief awarded in favor of the petitioner, only to the extent of part of the total pay package, and not granted the whole pay package for the whole period.
11. There is another way of looking at this aspect of the matter. Once a finding has been returned to the effect that the enquiry stood vitiated, and the termination rendered illegal on that account, it would follow that the petitioner was thereby prevented by the suspension order form performing his duties, and from earning his full emoluments, As such, the moment the arbitrator came to a finding that the action of the respondent was illegal, thereupon the petitioner had to be placed back in the situation as if the termination order had not been passed at all. This is all the more so, since the arbitrator in the award, did not permit he management to hold an enquiry afresh into the matter. It is another mater, that even if the arbitrator has so ordered, the petitioner would have still been entitled to be treated as if no order of suspension had been passed at all, and moreover petitioner would have stood then as entitled to receive more money from the respondent and/or would have stood to suffer less on account of liquidated damages/penalty, because whatever causes petitioner''s service to last longer, reduces the default period for penalty.
12. The other aspect on which the award is contrary to the public policy of India, as enshrined in the enacted law and the law as laid down by the Supreme Court, is in relation to the arbitrator himself treating the three month''s notice period to be imagined to have been over in 1998 itself even though the management had not issued any communication to that effect.
13. There is an invalidity on the same account, as a corollary, in relation to the balance period of the counter claim of the respondent.
14. It is well settled that there cannot be a retrospective notice, even where same is purported to be issued by the management itself. In any case, there thus cannot be a notice by a deemed fiction, created through the award of the arbitrator.
15. A notice of termination had to be issued, if at all, under the signatures of the competent authority, on any date after the award, and that would have been applicable after further three months thereafter, and would have given a cause of action for any further grievances.
16. It is not known whether the management would have terminated the services, or whether after reading the award, holding the termination to be illegal, the management would have become considerable, or would have otherwise changed its decision. then again the date of such a notice, cannot also be based on total assumption. Furthermore, that notice had to be actually and validly issued, and had to be validly served to become enforceable. For all these reasons, this severable portion of the award regarding assumed date of notice is also set aside, consequence whereof will be that up to the date of the award, the petitioner will be entitled to full emoluments, and thereafter, the petitioner will be entitled to his legal remedies to claim salary for subsequent period by appropriate proceedings and respondent will be entitled to take action as available to a management.
17. Yet another aspect of the award also requires to be treated as severable and set aside. This is in relation to the counter-claim of the respondent. As and when the services of the petitioner are terminated by a valid and actually issued notice, thereafter the balance period, if at all, would be the maximum period which can be taken into consideration for purposes of working out the demand at Rupees one lakh for each remaining year of service, out of the seven years mandatory period. It is not known when the notice will be issued, and also that the balance period will be. Therefore, the award to this extent of the counter-claim, which is also severable, is held to be contrary the public policy of India, and hence set aside. Respondent will obviously be entitled to raise claim for damage in relation to any period remaining less served out of total seven year period. That claim will be contested or complied by petitioner as he may be advised in law.
18. In view of the above, the award is made a Rule of this Court, to the extent of the findings holding that the disciplinary enquiry against the petitioner was vitiated, and the termination order was illegal on that account. The relief of full emoluments for the period December 1996 onwards will however operate only up to the date of the award. For the subsequent period, the petitioner has to avail his legal remedies in accordance with law. The counter-claim awarded in favor of the respondents as well as the findings against the petitioner, holding that the conveyance allowance and entertainment allowance, being not payable, as well as of deemed termination by petitioner by assumed retrospective notice in October, 1998, is treated as severable findings of the arbitrator which are liable to be set aside.
19. Since the payment due to the petitioner, being Rs. 2.77 lakhs under the award, as had been passed (and now an ever larger amount, in terms of these orders passed today), is lying held-up, the petitioner will be entitled to interest at 15% thereupon from the date the amounts fell due, and up to the date on which the total dues are actually paid by the respondent to the petitioner.
20. The petitioner will also be entitled to costs which are quantified at Rs. 10,000/-.
