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Allahabad High Court · body

2013 DIGILAW 330 (ALL)

SWADESHI POLYTEX v. STATE OF U. P.

2013-01-29

S.U.KHAN

body2013
Sibghat Ullah Khan, J. Heard Sri Anurag Khanna, learned counsel for the employer, petitioner in the first writ petition and contesting respondent in the second writ petition and Sri L.S. Sharma, workman in person contesting respondent no.7 in the first writ petition and petitioner in the second writ petition. The first writ petition is directed against order dated 6.9.2004 passed by Additional Labour Commissioner, Ghaziabad in proceedings under Section 6-H( 1) U.P.I.D. Act L.S. Sharma Vs. M/S Swadeshi Polytex Ltd., Ghaziabad directing recovery of Rs.502251 from the employer as unpaid wages of the workman Sri L.S. Sharma and issuing recovery certificate for payment of the same to him. Sri Sharma was an employee of M/s Swadeshi Polytex Ltd. ( hereinafter referred to as the employer). His services were terminated on 13.2.1975. Against his retrenchment respondent no.7 L.S. Sharma raised Industrial Dispute after about 19 years. The matter was referred to the labour court wherein it was registered as Adjudication Case no.511 of 1994. The matter was decided by the labour court against the workman on 16.8.1996 against which award the workman filed writ petition no.9693 of 1997. The writ petition was allowed on 9.7.2003 and the matter was remanded to the labour court. In the last paragraphs of the said judgment it was observed as follows: "considering long pendency of the litigation between the parties and since there is no interim order in this writ petition, therefore employers are directed to pay half of the wages that would have been paid had his services been not terminated on 12.2.1975 till the date of this judgement, as it was admitted that the employers have absolutely no material to demonstrate that the workman was gainfully employed during this period." The employer filed review petition for recall of the said direction which was rejected, matter was carried to the Supreme Court but S.L.P. was also dismissed. The order impugned in the first writ petition was passed pursuant to the aforesaid direction on payment of half wages. Pursuant to the remand order dated 9.7.2003 labour court decided the reference on 15.10.2009 holding that since 1982 the workman was working in another concern ( a club) and in 1982 his wages were Rs.500/- per month and at the time of decision by the labour court it was about Rs.3000/- per month. He became employee of the club since 1982. He became employee of the club since 1982. Ultimately, the labour court held that in view of gainful employment of the workman. The workman was entitled to compensation for the period from 1975 to 1982 in accordance with the judgment of the High Court given in writ petition no.9693 of 1997 and the amount of Rs.2,50,000/- had already been deposited by the employer pursuant to the said direction which must be paid to the workman. Labour court further held that Sri Sharma cancelled the fact of his employment in his written statement as well as oral statement. However, when he was confronted with documents, he had to admit the same. During arguments in these writ petitions he admitted his subsequent employment. Sri Sharma crossed the age of retirement on 10.4.2003. The first writ petition by the employer was initially decided on 16.3.2011 by the following order: "Heard Shri Anurag Khanna, learned counsel for the petitioner and Ms.Sumati Rani Gupta holding brief of Ms.Pooja Srivastava. The learned counsel jointly agreed that the present writ petition may be disposed of in terms of the award dated 15.10.2009 passed by the Labour Court in pursuance of the direction given by this Court in Writ Petition No. 9693 of 1997. They agreed that the said award of the labour court has attained finality as none of the parties have challenged it. Shri Anurag Khanna, learned cousnel for the petitioner informs the court that in pursuance of the interim order passed by this Court in the present writ petition, a sum of Rs. 2,50,000/- has been deposited and the same amount is lying with the authority concerned. In view of above, all the controversy between the parties has been set at rest. The writ petition is disposed of by providing that a sum of Rs.2,50,000/- disputed by the petitioner in pursuance of the interim order dated 18.12.2008 shall be payable to the respondent no. 7 Shri L.S.Sharma. The authority concerned shall take appropriate steps for the payment of the said amount to Shri L.S.Sharma. No order as to costs." However, afterwards the workman Sri L.S.Sharma filed an application for recall of the aforesaid order dated 16.3.2011. The application was allowed. Order was recalled and writ petition was restored by the same Judge through order dated 6.4.2012. Thereafter, the matter came up before me. No order as to costs." However, afterwards the workman Sri L.S.Sharma filed an application for recall of the aforesaid order dated 16.3.2011. The application was allowed. Order was recalled and writ petition was restored by the same Judge through order dated 6.4.2012. Thereafter, the matter came up before me. I made it clear to the workman who always appeared in person that his case could be heard only if he returned the amount of Rs. 2,50,000/- which he had received. Accordingly, the workman deposited/returned the said amount. Thereafter, through the second writ petition filed on 3.7.2012 the workman challenged the award dated 15.10.2009. The main argument of the workman is that half of the wages from 1975 to 2009 are payable to him in accordance with the judgment dated 9.7.2003 which judgment has been affirmed by the Supreme Court also . Sri Sharma has further argued that the job which he joined in February 1982 carried less wages than were being paid to him by the employer ( petitioner of the first writ petition) hence it can not be said that he was gainfully employed anywhere. According to Mr. Sharma definition of gainfull employment is when a person gets more than what he was getting from his previous employer. Sri Anurag Khanna, learned counsel for the petitioner employer has argued that the direction to pay half the wages from 1975 to 2003 was tentative in nature depending upon the finalisation of the matter pursuant to the remand made through the same judgment and as thereafter labour court categorically held that the workman was employed in another concern at least since 1982 ( which fact was also admitted by Sri Sharma) hence under no circumstances any wages beyond February 1982 could be paid to the workman. Sri Khanna has further argued that there was some confusion in the mind of the Judge and under that confusion order of payment of half wages was passed on 9.7.2003 in as much as the petition was by the workman and not by the employer and in such petition there was no question of grant of any stay order and in any case if there was no stay order the workman who was petitioner in the said writ petition should have suffered and not the employer. It has been elaborated that until decision of the said writ petition which was directed against an award against the workman there was absolutely no question of payment of any wages by the employer to the workman. Sri Sharma has further placed reliance upon some direction given for recovery of the amount pursuant to the order dated 9.7.2003 and has argued that correctness of the direction in the said judgment can not be questioned after dismissal of recall application and after its confirmation by the Supreme Court. In my opinion the direction given at the end of the judgment dated 9.7.2003, to pay half wages, while remanding the matter was in the nature of temporary mandatory injunction. All temporary injunctions come to an end after final decision. Suppose in a suit plaintiff prays for temporary injunction ( prohibitory or mandatory) which prayer is not accepted but on appeal the appellate court grants temporary injunction to remain in operation until decision of the suit. Such temporary injunction order will automatically come to an end if the suit is afterwards dismissed by the trial court. Accordingly, the direction to pay half wages contained in the order dated 9.3.2003 automatically come to an end ( lapsed) after the Adjudication Case was again decided against the workman on 15.10.2009. As far as writ of 2012 through which award dated 15.10.2009 has been challenged is concerned, it has to be dismissed, firstly, on the ground of latches and secondly, on the ground that the workman himself admitted that since February 1982 he was working in another concern and thirdly the dispute had been raised after about 19 years. Even if it is assumed that termination order of 1975 was wrong still the workman could only claim wages from his termination till February 1982 when he joined another concern. By no stretch of imagination the wages for the said period of 7 years could be more than Rs.2,50,000/- which amount has been awarded to the workman through the award dated 15.10.2009 and which direction has not been challenged by the employer. Accordingly, Second writ petition is dismissed. First writ petition is disposed of by modifying the order challenged therein and holding that the workman is entitled only to Rs.2,50,000/- as directed to be paid to him by the award dated 15.10.2009. Let the said amount be paid to the workman, Sri L.S. Sharma forthwith.