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2012 DIGILAW 625 (ALL)

DUNCANS INDUSTRIES LTD. v. STATE OF U. P.

2012-03-15

A.P.SAHI

body2012
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri V.R. Agrawal for the petitioner, Sri P.K. Sinha for Respondent No. 3 and learned Standing Counsel for respondent Nos. 1 and 2. 2. The challenge raised in this petition is to the notice issued to the petitioner - company under Section 14-A of the U.P. Industrial Disputes Act, 1947. For ready reference, the said section is quoted herein below : “14-A. Penalty for breach of term of award.—Any person who commits a breach of any term of any settlement or award, which is binding on him under this act, shall be punishable with imprisonment for a term which may extend to six months or with fine, or with both, and where the breach is a continuing one, with further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation, to any person who, in its opinion has been injured by such breach.” 3. The facts, which are not in dispute are that the workmen were laid off and the industry was closed. The Members of respondent No. 3 - Union raised an industrial dispute and thereafter the matter was adjudicated. In the award pronounced on 31.3.2003 and published on 28.8.2003 (a copy of the award is Annexure-1 to the writ petition), two issues were framed namely whether the 26 workmen for whom the dispute had been raised are employees of the Company and if so whether they are entitled to the reliefs claimed by them. The second issue framed was as to whether the workmen are entitled to be declared as permanent workmen and if so from which date and with other details. 4. Evidence was led and it was ultimately found on facts that the 26 workmen were engaged through a contractor and, therefore, they were workmen of the Company in terms of Section 2 (I) (iv) read with Section 2 (z) of the 1947 Act. The Labour Court concluded that on the basis of evidence, the 26 workmen were workers of casual category. Thus, the status of these 26 workmen was ascertained to be that of casual labourers. 5. The Labour Court concluded that on the basis of evidence, the 26 workmen were workers of casual category. Thus, the status of these 26 workmen was ascertained to be that of casual labourers. 5. The said award became final in so far as the workmen were concerned and the aforesaid finding regarding their status as casual workers has not been challenged by the workmen. 6. The other part of the award giving benefits appears to have been put into execution and recovery was issued against the company which has been assailed by the petitioner in a separate writ petition and the order of recovery has been stayed. 7. It is also undisputed that during the pendency of this writ petition, the matter was taken up before the BIFR and the Company was treated to be a sick Company and a scheme of rehabilitation has been drawn in the year 2007. 8. It is in the aforesaid background that the validity of the impugned notice under Section 14-A has to be seen. Sri Agrawal submits that there was no material available so as to warrant issuance of a notice for prosecuting the petitioner - Company inasmuch as there is no wilful breach on the part of the Company insofar as the engagement of causal workmen is concerned particularly the 26 workmen in whose favour the award has been made. He submits that there was no work at all available so as to engage casual workmen and whatever attempt was made in between to re-start the industry that was with the aid of a handful of laid-off permanent employees and, as such, there was no occasion to engage any casual labourer at all. 9. He, therefore, submits that when the application was moved in the year 2005, the Company made its offer on which the Additional Labour Commissioner passed an order on 8.8.2005 calling upon the Labour - Union and it’s labourers to submit details as to in what manner and in what capacity should the casual labourers be engaged. Sri Agrawal submits that no such details was ever given and these 26 workers unduly impressed upon the Addl. Commissioner for taking action inspite of the fact that there was no material to establish that the petitioner had violated the terms of the award. 10. Sri Agrawal submits that no such details was ever given and these 26 workers unduly impressed upon the Addl. Commissioner for taking action inspite of the fact that there was no material to establish that the petitioner had violated the terms of the award. 10. To the contrary, Sri Agrawal submits that a clear stand was taken in the reply submitted to the earlier notice and in the letter and an undertaking has been given in the present writ petition as well that the award would be implemented as and when casual labourers are required to be engaged for the purpose of running the industry. He, therefore, submits that in the absence of even a remote evidence indicating violation of the award in relation to the engagement of casual labourer the threat of prosecution is absolutely unwarranted and, therefore, the notice deserves to be set aside. 11. Replying to the said submissions, Sri Sinha contends that the petitioner - company has already been given an impetus with the framing of a scheme and as a matter of fact the company does require the engagement of labourers but on account of their incorrect stand having been taken, the Addl. Labour Commissioner was justified in proceeding to prosecute the petitioner. He submits that work is available but the Company on account of its’ litigative stand will never engage these workmen for reasons best known to them. 12. I have perused the averments contained in the writ petition as well as in the counter-affidavit. The short issue is the availability of material for the purpose of prosecuting the Company in terms of Section 14-A. To begin with, it appears that the Addl. Labour Commissioner was apprised of these facts and it is for this reason that the order was passed on 8.8.2005 calling upon the Union and the Labourers to provide detailed information with regard to the availability of the work and the status of the work against which they could be engaged. The said document is not denied by the respondents in the counter-affidavit. The petitioner in paras 20 and 21 has categorically taken a stand that no such details was ever provided and in the absence of any such material, there was nothing to indicate that there was a requirement of engaging casual labourers. 13. The said document is not denied by the respondents in the counter-affidavit. The petitioner in paras 20 and 21 has categorically taken a stand that no such details was ever provided and in the absence of any such material, there was nothing to indicate that there was a requirement of engaging casual labourers. 13. The reply to the aforesaid averments are contained in paras 44 and 45 of the counter-affidavit where nothing has been stated about providing the said details as was directed by the Addl. Commissioner in the order dated 8.8.2005. In the opinion of the Court, in the absence of any such material existing even before the Addl. Commissioner or even before this Court, the notice to prosecute the petitioner - Company was absolutely unjustified. If there was no work available at all and if no casual Labourers had been actually employed by the company, then it could not have been said that petitioner - company was violating the terms of the award insofar as the engagement of the casual labourer is concerned. In the absence of any such material worth the name either before the Addl. Commissioner or even before this Court, the only conclusion that can be drawn is that the notice was not founded on any material basis and, therefore, to prosecute the petitioner on the said stand is unwarranted. The writ petition is allowed and the notice impugned herein dated 9.12.2005 is, therefore, unsustainable and is hereby quashed. 14. The petitioner-company shall, however, as and when any occasion arises for engagement of casual workmen, shall proceed to implement the award as undertaken by them in the present petition and in the event any breach thereof is committed by them, it shall be open to the authority to take appropriate action in accordance with law. ——————