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2007 DIGILAW 478 (GAU)

Management, Pabhojan Tea Estate v. State of Assam

2007-07-24

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. Heard Mr. D.P. Chaliha, learned Senior Counsel for the petitioner, and Mr. D.C. Mahanta, learned Senior Counsel, appearing on behalf of the respondent No. 4. Heard also Ms. V.L. Sinha, learned Government Advocate, appearing on behalf of the State respondents. 2. The relevant facts, which have given rise to the present revision, are, in brief, thus. The respondent No. 4, while working as a clerk in Pabhojan Tea Estate, was dismissed from service with effect from 16.6.1981. On a dispute having been raised by the union, which represented the respondent No. 4 as workman, a reference was made to the Labour Court of Assam at Dibrugarh for decision by the State Government under Section 10 of the Industrial Disputes Act. This reference gave rise to Reference Case No. 04/1982. The Labour Court delivered its award on 24.6.1987, whereby it held the workman not guilty of the charge and directed his reinstatement. On his reinstatement, the workman did not, however, rejoin his service and demand that lie be paid his back wages and dues before he rejoins in service. As the Management did not make payment of the alleged dues of the workman, the workman carried the matter to the Bakijai Officer. The Bakijai Officer, i.e., the respondent No. 3 accordingly issued a certificate, dated 19.10.2001. It is the certificate, so issued, which is under challenge, in the present writ petition, by the employer. 3. While considering the present writ petition, what needs to be noted is that an employee or workman, who has been dismissed from service, may or may not be directed to be reinstated with back wages, for, in a given case, the Tribunal or Court is competent to refuse to award back wages to the workman, while directing his reinstatement in service. See U.P.S.R.T.C. v. Mitthu Singh2006 (111) FLR 7 (SC). 4. What is enforceable against the employer is an award. The award in the present case, does not, admittedly, make the employer liable to pay the back wages to the workman. In such circumstances, the workman could not have demanded and the respondent No. 3 herein could not have issued the impugned recovery certificate. The recovery officer can only recover such amount, which is issued by the competent authority. The Recovery Officer himself is not competent to issue a recovery certificate. 5. In such circumstances, the workman could not have demanded and the respondent No. 3 herein could not have issued the impugned recovery certificate. The recovery officer can only recover such amount, which is issued by the competent authority. The Recovery Officer himself is not competent to issue a recovery certificate. 5. Realizing that the respondent No. 4, as a workman, is not entitled to enforce the said recovery certificate, issued by the respondent No. 3, against the employer, Mr. D.C. Mahanta, learned Senior Counsel, submits that the workman may be directed to be paid his provident fund dues and gratuity because the workman has, in the meanwhile, points out. Mr. Mahanta, retired on superannuation. To the submission so made, no objection has been raised on behalf of the petitioner. 6. In the present case, the workman, admittedly, joined his service on 1.8.1970 and he was dismissed from service on 16.6.1981. The workman is, therefore, entitled to receive the provident fund dues from his employer, i.e., the present writ petitioner, for the period commencing from 1.8.1970 and ending on 16.8.1981. As far as the workman's claim for gratuity is concerned, it needs to be noted that the workman joined his service on 1.8.1970, he was dismissed from service on 16.6.1981 and he was reinstated in service, on 24.6.1987, by virtue of the award aforementioned. The workman has, thus, having rendered service for about 17 years, is entitled, to receive, on his such reinstatement, the gratuity from his employer i.e., the petitioner. This position is not disputed on behalf of the petitioner. 7. Considering, therefore, the matter in its entirety and in the interest of justice, this writ petition is disposed of with direction to the petitioner herein to pay to the respondent No. 3, all his provident fund dues and gratuity in accordance with law and in the light of the discussion held above. The whole exercise, so directed, shall be completed within a period of three months from today. The impugned certificate of recovery and the impugned order, dated 19.10.2007, passed in the Bakijai Certificate Case No. 229/1992, shall accordingly stand set aside and quashed. 8. With the above observations and direction, this writ petition shall stand disposed of. 9. No order as to costs.