O.P. Bhandari Vs. Indian Tourism
Development Corporation Ltd. & Ors [1986] INSC 201 (26 September 1986)
THAKKAR, M.P. (J) THAKKAR, M.P. (J) NATRAJAN,
S. (J)
CITATION: 1987 AIR 111 1986 SCR (3) 923 1986
SCC (4) 337 JT 1986 586 1986 SCALE (2)523
CITATOR INFO: F 1988 SC 286 (5,6) R 1990
SC1054 (23,24) F 1991 SC 101 (21,45,182,223,263)
ACT:
Indian Tourism Development Corporation
(Conduct, Discipline and Appeal) Rules, 1978: Rule 31(v) - Constitutional
validity of-Termination of Services by giving ninety days' notice or pay in
lieu thereof-Whether violative of Articles 14 and 16(1).
Labour and services-Public Sector
Undertaking-High Managerial cadre-Services of-Illegal termination-Relief
against-Reinstatement or compensation-Court's discretion- Quantum of compensation
Factors to be considered. Employee entitled to relief under s. 89 of the
Income-tax Act read with r. 21-A of the Income-tax Rules.
Constitution of India, Articles 12, 14, 32
and 226- Public Sector Undertaking-A 'State'- High managerial cadre and
employees-Differential classification under service rules-Whether permissible.
HEADNOTE:
Rule 31(v) of the Indian Tourism Development
Corporation (Conduct, Discipline and Appeal) Rules, 1978 provides that the
services of an employee, who had completed his probationary period and who has
been confirmed or deemed to be confirmed, may be terminated by giving him 90
days' notice or pay in lieu thereof. The services of the appellant, who was an
employee of the respondent-Corporation holding the post of Manager of a Hotel
at the material time were terminated by Memorandum No. P-B(OP)-22 dated 18th
September, 1984, in exercise of the powers under the said rule by giving him
pay for three months in lieu of notice.
Aggrieved by the said order the appellant filed
a writ petition in the High Court assailing the constitutional validity of r.
31(v) of the said Rules, which was summarily dismissed.
Allowing the appeal by special leave, the
Court, ^
HELD: 1. The Indian Tourism Development
Corporation is an 924 instrumentality of the State and, therefore, 'State'
within the parameters of Article 12 of the Constitution of India.
[927D-E] Central Inland Water Transport
Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr., [1986] 3 S.C.C.
156 applied.
2.1 Rule 31(v) of the Indian Tourism
Development Corporation (Conduct, Discipline and Appeal) Rules, 1978, is
unconstitutional and void, for such a rule which provides for termination of
the services of the employees of the respondent-Corporation simply by giving
ninety days' notice or by payment of salary for the notice period in lieu of
such notice, cannot co-exist with Articles 14 and 16(1) of the Constitution of
India. The fundamental right embedded in these Articles is not a mere paper
tiger nor is it so ethereal that it can be nullified or eschewed by a simple
device of framing a rule which authorises termination of the services of an
employee by merely giving a notice of termination. [930D-E;928F;929F]
2.2 The tenure of service of a citizen who
takes up employment with the State cannot be made to depend on the pleasure or
whim of the competent authority unguided by any principle or policy, nor his
services allowed to be terminated on an irrational ground arbitrarily or
capriciously. The authorities cannot be invested with uncontrolled
discriminatory power to practise on considerations not necessarily based on the
welfare of the organisation but possibly based on personal likes and dislikes,
personal preferences and prejudices.
Provincialism, casteism, nepotism, religious
fanaticism, and several other obnoxious factors may in that case freely operate
on the mind of the competent authority in deciding whom to retain and whom to
get rid of. And these dangers are not imaginary ones. They are very much real
in organisations where there is a confluence of employees streaming in from
different States. Such a rule as in the instant case, is capable of robbing an
employee of the dignity, and making him a supine person whose destiny is at the
mercy of the concerned authority. The impugned rule, therefore, deserves to be
quashed. [928H; 929A-B; D-F] Central Inland Water Transport Corporation Limited
& Anr. v. Brojo Nath Ganguly & Anr., [1986] 3 S.C.C. 156;
State Electricity Board v. D. B. Ghosh,
[1985] 2 S.C.R.
1014, referred to.
3.1 The Court has full discretion in the
matter of granting relief to suit the needs of the matter at hand. If satisfied
that ends of justice so demand, the Court can certainly direct that the
employer shall have the 925 option not to reinstate, provided the employer pays
reasonable compensation as indicated by it. [932G]
3.2 In the sphere of employer-employee
relations in public sector undertakings, to which Article 12 of the
Constitution of India is attracted, it cannot be posited that reinstatement must
invariably follow as a consequence of holding that an order of termination of
service of an employee is void. Though in regard to workmen and employees,
reinstatement would be a rule, and compensation in lieu thereof a rare
exception, as regards the high level managerial cadre the matter deserves to be
viewed from an altogether different perspective. [932A-C]
3.3 The public sector needs to be managed by
capable and efficient personal with unimpeachable integrity and the requisite
vision, who enjoy the fullest confidence of the policy makers. It is but in
public interest that such undertakings or their Board of Directors are not
compelled and obliged to entrust their managements to personnel in whom, on
reasonable grounds, they have no trust or faith and with whom they are in a
bonafide manner unable to function harmoniously as a team. These factors have
to be taken into account by the Court at the time of passing the consequential
order. [932E-G] In the instant case, it cannot be said that the apprehension
voiced by the respondent-Corporation as regards the negative consequences of
reinstatement is unreasonable.
The relations between the parties appear to
have been strained beyond the point of no return. The Trade Union of the
employees has lodged a strong protest and even held out a threat of strike, in
the context of some acts of the appellants. Such unrest among the workmen is
likely to have a prejudicial effect on the working of the undertaking which
would prima facie be detrimental to the larger National Interest. In such a
situation neither the undertaking nor the appellant can improve their image or
performance. It is, therefore, a fit case for granting compensation in lieu of
reinstatement. [933A-C]
4. In the private sector the managerial cadre
of employees is altogether excluded from the purview of the Industrial Disputes
Act and similar labour legislations. It can cut the dead wood and can get rid
of a managerial cadre employee in case he is considered to be wanting in
performance or in integrity. Not so in the public sector under a rule similar
to r. 31(v). Public sector undertakings may under the circumstances be exposed
to irreversible damage at the hands of an employee belonging to a high
managerial cadre on account of the faulty policy 926 decisions or on account of
lack of efficiency or probity of such an employee. The very existence of the
undertaking may be endangered beyond recall. Such a situation can be remedied
by enacting a regulation permitting the termination of the employment of employee
belonging to higher managerial cadre, if the undertaking has reason to believe
that his performance is unsatisfactory or inadequate, or there is a bonafide
suspicion about his integrity, these being factors which cannot be called into
aid to subject him to a disciplinary proceeding. If termination is made under
such a rule or regulation, perhaps it may not attract the vice of arbitrariness
or discrimination condemned by Articles 14 and 16(1) of the Constitution of
India, inasmuch as the factors operating in the case of such an employee will
place him in a class by himself and the classification would have sufficient
nexus with the object sought to be achieved.
[931A-H] [Taking into account various
factors, compensation equivalent to 3.33 years' salary (including allowances as
admissible) on the basis of the last pay and allowances drawn by the appellant
was determined to be a reasonable amount to award in lieu of reinstatement,
with statutory relief under s. 89 of the Income-tax Act, 1961 read with r. 21-A
of the Income-tax Rules, 1961.] [934C-D; 936D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1969 of 1986 From the Judgment and order dated 26.9.1984 of the Delhi High
Court in Civil Writ Petition No. 2329 of 1984.
Govinda Mukhoty, K.G. Bhagat and Mahabir
Singh for the Appellant.
G.B. Pai, O.C. Mathur, Miss Meera Mathur,
D.N. Mishra and S. Sukumaran for the Respondents.
The Judgment of the Court was delivered by
THAKKAR, J. A CAT-scan of this appeal reveals three problems, viz: I. Whether a
rule or regulation framed by a public sector undertaking which is an authority
under the control of Government of India and is a 'State' within the parameters
927 of Article 12 of the Constitution of India empowering the employer to
terminate the services of an employee by giving notice of the prescribed period
or payment of salary for the notice period in lieu of such notice is
constitutional? II. If it is unconstitutional, whether the employee whose
services are terminated under the said rule or regulation is always and
invariably entitled to reinstatement? Whether option to pay compensation in
lieu of reinstatement can be given to the employer in fit cases? III. What
would be the appropriate amount to be reason ably awarded in lieu of
reinstatement? These are the questions which call for answers in this appeal.'
Undisputed are the following facts, the same being incapable of being disputed:
(1) The respondent Corporation (I.T.D.C.) is
'State' within the parameters of Article 12 of the Constitution of India it
being an instrumentality of the State as per the law enunciated by this Court
in Central Inland Water Transport Corporation Limited & Anr. v. Brojo Nath
Ganguly and Anr. and Central Inland Water Transport Corporation Limited &
Anr. v. Taran Kanti Sengupta & Anr., [1986] 3 S.C.C. 156.
(2) Appellant was an employee of the
Respondent Corporation holding the post of Manager of Hotel Ranjit, New Delhi,
at the material time when his services were terminated by the impugned order.2
(3) Services of the Appellant were terminated in exercise of powers under Rule
31 (v) of the ITDC Conduct Discipline and Appeal Rules 1978, (ITDC rules) by
1.By Special Leave arising out of W.P. No. 2329 of 1984 dismissed by the High
Court of Delhi summarily by its order dated 26.9.1984.
2. Annexure P-10, Memorandum No. P-B(OP)-22
dated 18th September. 1984.
928 giving pay for 3 months in lieu of 3
months' notice,3 under the said rule.
Rule 31 (v) of the I.T.D.C. Rules, the
constitutional validity of which is questioned from the platform of Articles 14
and 16 (1) of the Constitution of India, provides:- "31. Termination of
services:
The services of an employee may be terminated
by giving such notice or notice pay as may be prescribed in the contract of
service in the following manner:- i) X X X X ii) X X X X iii) X X X X iv) X X X
X v) of an employee who has completed his probationary period and who has been
confirmed or deemed to be confirmed by giving him 90 days' notice or pay in
lieu thereof." This rule cannot co-exist with Articles 14 and 16 (1) of
the Constitution of India. The said rule must therefore die, so that the
fundamental rights guaranteed by the aforesaid constitutional provisions remain
alive. For, otherwise, the guarantee enshrined in articles 14 and 16 of the constitution
can be set at naught simply by framing a rule authorizing termination of an
employee by merely giving a notice. In order to uphold the validity of the rule
in question it will have to be held that the tenure of service of a citizen who
takes up employment with the 3. Memorandum No. P-B (OP)-22 dated 18th
September, 1984.
"Please be advised that your services
are no longer required hence stand terminated with immediate effect.
In accordance with rule No. 31(v) of ITDC
Conduct, Discipline and Appeal Rule 1978, you are hereby paid three months pay
in lieu of notice and a cheque No. 089988 dated 18.9.84 drawn on State Bank of
India, New Delhi, representing a sum of Rs.7,950 (Rupees Seven Thousand Nine
Hundred and Fifty only) is enclosed." 929 State will depend on the
pleasure or whim of the competent authority unguided by any principle or
policy. And that the services of an employee can be terminated even though
there is no rational ground for doing so, even arbitrarily or capriciously. To
uphold this right is to accord a "magna carta" to the authorities
invested with these powers to practise uncontrolled discrimination at their
pleasure and caprice on considerations not necessarily based on the welfare of
the organisation but possibly based on personal likes and dislikes, personal
preferences and prejudices. An employee may be retained solely on the ground
that he is a sycophant and indulges in flattery, whereas the services of one
who is meritorious (but who is wanting in the art of sycophancy and temperamentally
incapable of indulging in flattery) may be terminated. The power may be
exercised even on the unarticulated ground that the former belongs to the same
religious faith or is the disciple of the same religious teacher or holds
opinions congenial to him. The power may be exercised depending on whether or
not the concerned employee belongs to the same region, or to the same caste as
that of the authority exercising the power, of course without saying so. Such
power may be exercised even in order to make way for another employee who is a
favourite of the concerned authority. Provincialism, casteism, nepotism,
religious fanatism, and several other obnoxious factors may in that case freely
operate on the mind of the competent authority in deciding whom to retain and
whom to get rid of. And these dangers are not imaginary ones. They are very
much real in organisations where there is a confluence of employees streaming
in from different states.
Such a rule is capable of robbing an employee
of his dignity, and making him a supine person whose destiny is at the mercy of
the concerned authority (whom he must humour) notwithstanding the
constitutional guarantee enshrined in Articles 14 and 16 of the Constitution of
India. To hold otherwise is to hold that the fundamental right embedded in
Articles 14 and 16 (1) is a mere paper tiger and that it is so ethereal that it
can be nullified or eschewed by a simple device of framing a rule which
authorizes termination of the service of an employee by merely giving a notice
of termination. Under the circumstances the rule in question must be held to be
unconstitutional and void. This Court has struck down similar rules in similar
situations. In State Electricity Board v. D.B. Ghosh, [1985] 2 S.C.R. 1014,
Chinnappa Reddy J. speaking for a three-Judge Bench of this Court has observed.
that a (similar) regulation,4 authorizing the
4. Regulation 34 of Regulations framed by
West Bengal State Electricity Board reading the 930 termination of the services
of a permanent employee, by serving three months' notice or on payment of
salary for the corresponding period in lieu thereof, was ex facie 'totally
arbitrary' and 'capable of vicious discrimination'. And that it was a naked
'hire and fire' rule and parallel of which was to be found only in the
"Henary VIII clause" which deserved to be banised altogether from
employer-employee relationship. The regulation thus offended Article 14 of the
Constitution of India and deserved to be struck down on that account. In
Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath
Ganguly and Another AND Central Inland Water Transport Corporation Limited
& Anr. v. Tarun Kanti Sengupta and Anr. (Supra) a Division Bench of this
Court has struck down a similar rule5 in so far as it authorized termination of
employment by serving a notice thereunder as being violative of article 14 of
the Constitution of India, inter alia, in as much as it was capable of being
selectively applied in a vicious manner by recourse to 'pick and choose' formula.
There is, under the circumstances, no escape
from the conclusion that Rule 31(v) of the aforesaid ITDC rules which provides
for termination of the services of the employees of the respondent corporation
simply by giving 90 days' notice or by payment of salary for the notice period
in lieu of such notice, deserves to be quashed. As the occasion so demands, we
feel constrained to place in focus and highlight an important dimension of the
matter. The impugned regulation is extremely wide in its coverage in the sense
that it embraces the 'blue collar' workmen, the 'white collar' employees, as
also the 'gold collar' (managerial cadre) employees of the Undertaking. In so
far as the 'blue collar' and 'white collar' employees are concerned, the
quashing does not pose any problem. In so far as the 'gold collar' (managerial
cadre) employees are concerned, the consequence of quashing of the "34. In
case of a permanent employees, his services may be terminated by serving three
months' notice or on payment of salary for the corresponding period in lieu
thereof. "
5. Rule 9 (i) of (Service, Discipline and
Appeal) Rules of 1979 of Central Inland Water Transport Corporation Ltd.
reading:- "9. Termination of employment
for Acts other than misdemeanour. -(i) The employment of a permanent employee
shall be subject to termination on three months' notice on either side. The
notice shall be in writing on either side. The company may pay the equivalent
of three months' basic pay and dearness allowance, if any, in lieu of notice or
may deduct a like amount when the employee has failed to give due notice."
931 regulation calls for some reflection. In the private sector, the managerial
cadre of employees is altogether excluded from the purview of the Industrial
Disputes Act and similar labour legislations. The private sector can cut the
dead wood and can get rid of a managerial cadre employee in case he is
considered to be wanting in performance or in integrity. Not so the public
sector under a rule similar to the impugned rule. Public sector undertakings
may under the circumstances be exposed to irreversible damage at the hands of a
'gold collar' employee (belonging to a high managerial cadre) on account of the
faulty policy decisions or on account of lack of efficiency or probity of such
an employee. The very existence of the undertaking may be endangered beyond
recall. Neither the capitalist world nor the communist world (where an employee
has to face a death sentence if a charge of corruption is established) feels
handicapped or helpless and countenances such a situation.
Not being able to perform as per expectation
or failure to rise to the expectations or failure to measure up to the demands
of the office is not misconduct. Such an employee cannot thus be replaced at
all. If this situation were to be tolerated by an undertaking merely because it
belongs to the public sector, it would be most unfortunate not only for the
undertaking but also for the Nation. The public sector is perched on the
commanding heights of the National Economy.
Failure of the public sector might well wreck
the National Economy. On the other hand the success of the public sector means
prosperity for the collective community (and not for an individual Industrial
House). The profits it makes in one unit can enable it to run a losing unit, as
also to develop or expand the existing units, and start new units, so as to the
generate more employment and produce more goods and services for the community.
The public sector need not therefore be encumbered with unnecessary shackles or
made lame. It is wondered whether such a situation can be remedied by enacting
a regulation permitting the termination of the employment of employee belonging
to higher managerial cadre, if the undertaking has reason to believe, that his
performance is unsatisfactory or inadequate, or there is a bonafide suspicion
about his integrity, these being factors which cannot be called into aid to
subject him to a disciplinary proceeding. If termination is made, under such a
rule or regulation, perhaps it may not attract the vice of arbitrariness or
discrimination condemned by Articles 14 and 16(1) of the Constitution of India,
inasmuch as the factor operating in the case of such an employee will place him
in a class by himself and the classification would have sufficient nexus with
the object sought to be achieved. Of course it is for the concerned authorities
to tackle the sensitive problem after due deliberation. We need say no more.
932 Time is now ripe to turn to the next
question as to whether it is obligatory to direct reinstatement when the
concerned regulation is found to be void. In the sphere of employer-employee
relations in Public Sector Undertakings, to which Article 12 of the
Constitution of India is attracted, it cannot be posited that reinstatement
must invariably follow as a consequence of holding that an order of termination
of service of an employee is void. No doubt in regard to 'blue-collar' workmen
and 'white collar' employees other than those belonging to the managerial or
similar high level cadre, reinstatement would be a rule, and compensation in
lieu thereof a rare exception. In so far as the high level managerial cadre is
concerned, the matter deserves to be viewed from an altogether different
perspective-a larger perspective which must take into account the demands of
National Interest and the resultant compulsion to ensure the success of the
public sector in its competitive co-existence with the private sector. The
public sector can never fulfil its life-aim or successfully vie with the
private sector if it is not managed by capable and efficient personnel with
unimpeachable integrity and the requisite vision, who enjoy the fullest
confidence of the 'policy-makers' of such undertakings. Then and then only can
the public sector undertaking achieve the goals of
1. maximum production for the benefit of the
community,
2. social justice for workers, consumers and
the people, and
3. reasonable return on the public funds
invested in the undertaking.
It is in public interest that such
undertakings or their Board of Directors are not compelled and obliged to
entrust their managements to personnel in whom, on reasonable grounds, they
have no trust or faith and with whom they are in a bonafide manner unable to
function harmoniously as a team working arm-in-arm with success in the
aforesaid three-dimensional sense as their common goal.
These factors have to be taken into account
by the Court at the time of passing the consequential order, for the Court has
full discretion in the matter of granting relief, and the Court can sculpture
the relief to suit the needs of the matter at hand. The Court, if satisfied
that ends of justice so demand, can certainly direct that the employer shall
have the option not to reinstate provided the employer pays reasonable
compensation as indicated by the Court.
So far as the facts of this case are
concerned, we are satisfied that 933 this is a fit case for granting
compensation in lieu of reinstatement, instead of granting 'reinstatement'.
For, it cannot be said that the apprehension voiced by the
respondent-Corporation as regards the negative consequences of reinstatement is
unreasonable. We do not propose to pronounce on the validity or otherwise of
the allegations and counter allegations made by the parties in their respective
affidavits. Suffice it to say that the relations between the parties appear to
have been strained beyond the point of no return. The Trade Union of the
employees has lodged a strong protest and even held out a threat of strike, in
the context of some acts of the Appellant. Such unrest among the workmen is
likely to have a prejudicial effect on the working of the undertaking which
would prima facie be detrimental to the larger National interest, not to speak
of detriment to the interest of concerned undertaking.
We are not impressed by the submission that
the Union is virtually a 'company's Union. In any case such disputed questions
of facts cannot be resolved in this forum. We are prima facie satisfied that
the apprehension is not ill- founded. What is more, reinstatement is perhaps
not even in the interest of the appellant as he cannot give his best in the
less-than-cordial-atmosphere and it will also result in misery to him, let
alone the other side. Neither the undertaking nor the appellant can improve
their image or performance, or, achieve success. In fact it appears to us that
both sides will be unhappy and miserable. These are valid reasons for
concluding that compensation in lieu of reinstatement, and not reinstatement, is
warranted in the circumstances of the present case.
Counsel for the appellant having forcefully
pressed the claim for reinstatement, has contended that in case the Court is
disinclined to order reinstatement, the appellant ought to be awarded the full
salary and allowances which would have accrued to him till the date of his
superannuation which is more than 8 years away. We think it would be
unreasonable to award 8 years' salary and allowances, as lump sum compensation
in lieu of reinstatement. We consider it unreasonable because:- (i) To do so
would tantamount to paying to the appellant EVERY MONTH 20% OVER AND ABOVE what
he would have earned if he was continued in service WITHOUT DOING ANY WORK as
the lump sum payment of
8 years' salary invested at 15% interest (it being the current rate of
interest) would yield a monthly recurring amount equivalent to his current
monthly salary 'plus' 20%;
934 (ii) To do so would be tantamount to
paying to him his present salary etc. plus 20% more every month not only till
his date of retirement but till his death (if he lives longer) and also to his
heirs thereafter, IN PERPETUITY.
(iii) Besides, the corpus of the lumpsum
amount so paid as compensation would remain with him in- tact.
Obvious it is, therefore, that the Court
would be conferring a 'bonanza' on him and not compensating him by accepting
this formula. The submission, accordingly, deserves to be repelled
unhesitatingly.
In our considered opinion, compensation
equivalent lo 3.33 years' salary (including allowances as admissible) on the
basis of the last pay and allowances drawn by the appellant would be a
reasonable amount to award in lieu of reinstatement taking into account the
following factors viz:-
1. The corpus if invested at the prevailing
rate of interest (15%) will yield 50% of the annual salary and allowances. In
other words every year he will get 50% of what he would have earned by way of
salary and allowances with four additional advantages:
(i) He will be getting this amount without
working.
(ii) He can work somewhere else and can earn
annually whatever he is worth over and above, getting 50% of the salary he
would have earned.
(iii) If he had been reinstated he would have
earned the salary only upto the date of superannuation (upto 55, 58 or 60 as
the case may be) unless he died earlier. As against this 50% he would be
getting annually he would get not only beyond the date of superannuation, for
his & lifetime (if he lives longer), but even his heirs would get it in
perpetuity after his demise.
(iv) The corpus of lump sum compensation
would re main intact, in any event.
No doubt he will not have the advantage of
further promotion, but 935 then what are his prospects, given the present
relationship? Besides, the chances of promotion can be set off against the risk
of a departmental disciplinary proceeding. Factors (i), (ii), (iii) and (iv)
are of such great significance that compensation on the basis of 50% of his
annual salary and allowances is much more to his advantage. We are thus satisfied
that compensation in lieu of reinstatement on the aforesaid basis is more than
reasonable. We. therefore. direct that:
I -- The Respondent Corporation shall
reinstate the appellant with full back-wages (including usual allowances), or,
at its option, II-- The Respondent Corporation shall pay to the appellant:- (1)
Salary including usual allowances for the period commencing from the date of
termination of his service under the impugned order till the date of payment of
compensation equivalent to 3.33 years' salary including usual allowances to
him.
(2) Provident Fund amount payable to the
appellant and retirement benefits computed as on the date of payment as per
clause 1 shall be paid to him within 3 months from the said date.
III- The appellant shall vacate and make over
possession of the premises provided to the appellant by the respondent company
before the expiry of 3 months from the date of this order or within one month
of the day on which payment under clause II is made, whichever is later.
IV - Respondent shall pay the costs to the
Appellant.
V -- Interim order shall stand vacated
subject to the direction embodied in Clause III.
VI - Since the amount is being paid in one
lump sum, it is likely that the employer may take recourse to Section 192 of
the Income-tax Act, 1961 which provides that any person responsible for paying
any income chargeable under the head 'Salaries', shall, at the time of payment,
deduct income-tax on the amount payable at the average rate of 936 income
computed on the basis of the rates in force for the financial year in which the
payment is made, on the estimated income of the assessee under this head for
that financial year. If, therefore, the employer proceeds to deduct Income- tax
as provided by Section 192, we would like to make it abundantly clear that the
appellant would be entitled to relief under Section 89 of the Income-tax Act
which provides that where by reason of any portion of asses see's salary being
paid in arrears or in advance by reason of his having received in any one
financial year salary for more than 12 months or a payment which under the
provisions of clause (3) of Section 17 is a profit in lieu of salary, his
income is assessed at a higher rate than that it would otherwise have been
assessed, the Income-tax officer shall on an application made to him in this
behalf grant such relief as may be prescribed. The prescribed relief is set out
in Rule 21-A of the Income-tax Rules.
The appellant is entitled to relief under
Section 89 because compensation herein awarded includes salary which has been
in arrears as also the compensation in lieu of reinstatement and the relief
should be given as provided by Section 89 of the Income-tax Act read with Rule
21-A of the Income-tax Rules. The appellant is indisputably entitled to the
same. If any application is required to be made, the appellant may submit the
same to the competent authority and the Corporation shall, through its Tax
Consultant, assist the appellant for obtaining the relief.
The appeal is allowed. The order of the High
Court is set aside. Order in the aforesaid terms is passed.
P.S.S. Appeal allowed.
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