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2016 DIGILAW 41 (ALL)

NAGAR NIGAM, KANPUR v. DEPUTY LABOUR COMMISSIONER

2016-01-06

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Yashwant Singh, learned counsel for the petitioner, Sri Siddharth Singh, learned Additional Chief Standing Counsel appearing for the State-respondents and Sri Mani Shanker, learned counsel for respondent No. 2. 2. This writ petition has been filed for issuing a writ of certiorari quashing the recovery certificate dated 20.8.2015 issued by the Assistant Labour Commissioner, Kanpur Division, Kanpur and recovery citation dated 24.9.2015 issued by the Tehsildar, Sadar, Kanpur. 3. vide order dated 20.8.2015, an amount of Rs. 1,33,200/- has been required to be recovered as arrears of land revenue by the Assistant Labour Commissioner through District Magistrate, whereas vide citation dated 24.9.2015 the amount under citation issued by the Tehsildar has been required to be deposited. 4. The facts giving rise to this case are that the respondent No. 2 was engaged on dailywage basis with respondent No. 1. Later on an industrial dispute was raised in between the respondent No. 2 and petitioner to the extent as to whether retrenchment of respondent No. 2 from the post of Switchman since 5.6.1998 is illegal and if the same is illegal, for what benefit the workman is entitled to. 5. After the exchange of affidavits the Labour Court, 1st U.P. has passed an award on 21.7.2010 holding the retrenchment of respondent No. 2 illegal with the direction to take back him in service as a daily wager. Regarding back wages, the labour Court has not granted any benefit. The aforesaid award was published on 13.10.2010. 6. The petitioner herein, aggrieved by the aforesaid award, filed Writ C No. 37876 of 2011 (Nagar Ayukt, Nagar Nigam, Kanpur Nagar v. Presiding Officer, Labour Court and others). The said writ petition was dismissed on 13.7.2011. Later on, the petitioner filed review application seeking review of the order dated 13.7.2011, which too in turn was dismissed on 2.12.2011. 7. Aggrieved by the aforesaid order of this Court, the petitioner herein filed Special Leave to Appeal (C) No. 34957-34958/2012 (Nagar Ayukt, Nagar Nigam, Kanpur Nagar v. Navin Kumar Bajpai). The aforesaid SLP was dismissed by the Hon’ble Apex Court vide order dated 24.7.2014. 8. It has been brought to my notice by the learned counsel for the parties that after dismissal of the SLP, recovery certificate was issued for recovering an amount of Rs. 24,960/- towards wages since 21.4.2010 to 20.3.2011. The aforesaid SLP was dismissed by the Hon’ble Apex Court vide order dated 24.7.2014. 8. It has been brought to my notice by the learned counsel for the parties that after dismissal of the SLP, recovery certificate was issued for recovering an amount of Rs. 24,960/- towards wages since 21.4.2010 to 20.3.2011. Challenging the aforesaid recovery certificate, the petitioner filed Writ C No. 13411 of 2012 before this Court. This writ petition was dismissed on 9.3.2015 as having become infructuous. However, pending S.L.P. before the Supreme Court an amount of Rs. 24,960/- was paid to respondent on 23.3.2012. 9. It is thereafter, since the petitioner has not been reinstated, the respondent No. 2 has filed another application on 20.5.2015 claiming wages since 21.4.2012 to 20.5.2015 worth Rs. 1,32,200/- before the State Government through Deputy Labour Commissioner, Kanpur. Pursuant thereto, notice was issued by the Deputy Labour Commissioner to the petitioner and the petitioner has also filed reply stating therein that application filed under Section 6H(1) of the U.P. Industrial Disputes Act, 1947 (in short, ‘the Act’) is not maintainable. It was also stated in the objection that a review application has also been filed and after the decision on the review application, further action would be taken. It was also stated in the objection that respondent No. 2 has arbitrarily fixed his pay scale. 10. The respondent denied the objection filed by the petitioner by stating that the review application has been dismissed and the petitioner is unnecessarily harassing him. The Assistant Labour Commissioner, after considering the application of the respondent No. 2 and the objection of the petitioner, came to the conclusion that pursuant to the award dated 21.7.2010, since the petitioner has not reinstated the respondent No. 2, as was directed by the labour Court, therefore, the respondent No. 2 is entitled to enjoy the wages as demanded by him. 11. From the perusal of the objection of the petitioner, which has been brought on record as Annexure 4 to the writ petition, it transpires that the main objections of the petitioner is two-fold : (1)- the application filed under Section 6H(1) of the Act is not maintainable and (2)- the respondent No. 2 has arbitrarily fixed the pay scale; whereas it was disputed. 12. 12. However, here before this Court, another argument has been advanced by the learned counsel for the petitioner that in view of the provisions contained under Section 6C of the Act, that the award could not be enforced after expiry of one year and in this case, since the present application was filed after expiry of one year, therefore, the impugned order has illegally been passed. 13. Learned counsel for the petitioner further submits that under the provision of Section 6(H) 1 of the Act only the wages pursuant to award can be computed and paid and it does not include the future wages and for that the applicant had to file application under Section 6(H)2. 14. The submission of learned counsel for the petitioner with regard to adjudication of application under Section 6(H)2 is apparently misconceived for the simple reason that the petitioner himself has paid wages to the petitioner w.e.f. 21.4.2010 to 20.3.2011 @ Rs. 120/- per day pursuant to recovery certificate dated 20.8.2015 and the respondent herein has claimed the wages w.e.f. 21.4.2012 to 20.5.2015 @ Rs. 120/- and not more than that. The application filed by the respondent has been brought on record of the writ petition as annexure-3. 15. I have gone through the chart annexed alongwith application. From perusal of which it is apparent that the petitioner has claimed wages @ 120/- and not more than that. Therefore there was no need of any further adjudication. The adjudication requires only in a case where there is some dispute between the parties regarding the wage, undisputedly the petitioner has already paid the wages for the past to the petitioner @ 120/- therefore the argument of learned counsel for the petitioner is untenable. 16. The next submission of learned counsel for the petitioner is that beyond the period of one year the award could not be enforced. This argument of the petitioner is also misconceived for the reason that the application for enforcement of the award was already filed within the prescribed period under Section 6-C and it is because of the conduct of the petitioner who has been contesting the matter by way of filing review application, SLP etc., which was ultimately dismissed on 24.7.2014, it cannot lie in the mouth of the petitioner to say that the period of one year has expired therefore award cannot be executed. The force of award will remain in operation unless it is satisfied in its letters and spirit. 17. Otherwise also Division Bench of this Court in the case of Kiran Devi v. Kesarwani Zarda Bhandar, 2005 (Law Suit (All) 1705, taking note of aforesaid two contingencies as has been raised by the petitioner has observed as under : “12- If these principles are applied to our case, we find that the second application was correctly made under Section 6-H (1) because the payment of wages was to be made on the basis of Minimum Wages Act and such payment would have to be made until the effect of reinstatement actually occurred. For finding out the amount of money due one would require information only on two counts, namely, the minimum wages prescribed under the Minimum Wages Act and the number of months for which the to be reinstated employee had not been paid such minimum wages. With these two simple bits of the information the recovery could be ordered under Section 6-H (1) on a mere arithmetical computation. Any question of assessment, any question of turning into money value what was not itself already computed in figures, never arose. It was all along, so to speak, like a liquidated claim in the Civil Court, and it was, never, so to speak, like a situation of assessing unliquidated damages by a Civil Court. 20- It has been held in numerous cases that even after lapse of one year and even after the service of notice by the employer seeking to treat an award as at an end, the award does not really came to an end. We need not consider here whether sub-section (6) of Section 19 of the Central Act is also applicable in Uttar Pradesh, there being, as argued, no inconsistency between it and the provisions of the U.P. Act of 1947. We now merely observe here that the lapse of one year does not kill the award even though it might not remain ‘ in operation’ after that period. The case of South Indian Bank Ltd. v. R. Chacko, AIR 1964 SC 1522 and the case of L.I.C. v. D.J. Bahadur, (1981) 1 SCC 315 , make it amply clear that even after the operational period of one year the award remains binding between the parties. The case of South Indian Bank Ltd. v. R. Chacko, AIR 1964 SC 1522 and the case of L.I.C. v. D.J. Bahadur, (1981) 1 SCC 315 , make it amply clear that even after the operational period of one year the award remains binding between the parties. 21- There are clear indications in these cases that even after the period of one year the award would remain as binding as a contract between the employer and the employees. We may respectfully opine that such award after the operational period of one year would remain binding as a contract with the seal of the labour authority imprinted upon it. On the basis of such imprinting the award can be enforced even outside the period of its operation even though the State Government has not yet extended such period of operation. No doubt in every case, the award itself must be looked into and it has to be seen whether it is in its forms executable on the date it is sought to be executed. All that we lay down is that the period of one year mentioned in Section 6-C above, is a matter of practically no importance when the question of enforceability of the award is raised. One should always bear in mind that whether the award is in operation or not is a question totally different from whether the award is still enforceable or not. If one makes a reference to Section 23 (c) of the Central Act, 1947 or to Section 6S.(1) (f) and 6S (2) (f) of the U.P. Act 1947 one will see immediately that during the operational period of an award industrial actions are ruled out on the very same points which are covered by the award. This is the region where the operational nature of the award is of an importance.” 18. Learned counsel for respondent No. 2 as well as learned Additional Chief Standing Counsel also endorse that the application for enforcement of award shall be treated to be filed well within one year from the date of publication of the award. This is the region where the operational nature of the award is of an importance.” 18. Learned counsel for respondent No. 2 as well as learned Additional Chief Standing Counsel also endorse that the application for enforcement of award shall be treated to be filed well within one year from the date of publication of the award. It is the petitioner who had been delaying the proceeding by challenging the orders and ultimately, after dismissal of the SLP by the Hon’ble Apex Court, some amount was paid in 2012, but even at that time, the petitioner has not chosen to reinstate the respondent No. 2 in service in terms of the award and respondent No. 2 has ultimately filed the application for recovery of the remaining dues since 21.4.2012 to 20.5.2015 worth Rs. 1,32,200/- before the State Government through Deputy Labour Commissioner, Kanpur therefore no infirmity can be attached to the impugned order and consequential citation. 19. In view of the foregoing discussions I do not find any error in the impugned order. The writ petition is dismissed.