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Gujarat High Court · body

2016 DIGILAW 690 (GUJ)

Chairman v. Tejaji Meghaji Marvadi

2016-03-30

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Patel, learned senior counsel with Mr. Sanchela, learned advocate for the petitioner - Nagar Prathmik Shikshan Samiti (hereinafter referred to as 'the petitioner') and Mr. Mishra, learned advocate for the respondents - Mr. Tejaji Meghaji Marvadi and Mrs. Sonaben Tejaji Marvadi (hereinafter referred to as 'the workmen' or 'claimants'). 2. In this group of petitions, the petitioner has prayed, inter alia, that: The relief prayed for in Special Civil Application No. 500 of 2014 "8(A) To admit this petition. (B) To issue a writ of certiorari and/or any other appropriate writ, order and/or direction in the nature of certiorari quashing and setting aside the impugned award dated 01/06/2013 passed by the Ld. Labor Court at Anand in a reference case No. 73/2008 as well as the award dated 07/06/2013 passed in recovery application 176/2008 annex at Annexure-A to this petition in the interest of justice. (C) To stay the implementation, execution and operation of the impugned Award dated 01/06/2013 passed by the learned Judge of the Ld. Labor Court at Anand in reference I.T. No. 73/2008 as well as the award dated 07/06/2013 passed in recovery application 176/2008 annex at Annexure-A to this petition, during the pendency of admission, hearing and final disposal of the petition by way of an interim relief in the interest of justice. (D) Be pleased to pass such other and further reliefs as may be deemed just and proper by this Hon'ble Court in the facts and circumstances of the case." The relief prayed for in Special Civil Application No. 503 of 2014 "8(A) To admit this petition. (B) To issue a writ of certiorari and/or any other appropriate writ, order and/or direction in the nature of certiorari quashing and setting aside the impugned award dated 01/06/2013 passed by the Ld. Labor Court at Anand in a reference case No. 74/2008 as well as the award dated 07/06/2013 passed in recovery application 177/2008 annex at Annexure-A to this petition in the interest of justice. (C) To stay the implementation, execution and operation of the impugned Award dated 01/06/2013 passed by the learned Judge of the Ld. Labor Court at Anand in a reference case No. 74/2008 as well as the award dated 07/06/2013 passed in recovery application 177/2008 annex at Annexure-A to this petition in the interest of justice. (C) To stay the implementation, execution and operation of the impugned Award dated 01/06/2013 passed by the learned Judge of the Ld. Labor Court at Anand in reference I.T. No. 74/2008 as well as the award dated 07/06/2013 passed in recovery application 177/2008 annex at Annexure-A to this petition, during the pendency of admission, hearing and final disposal of the petition by way of an interim relief in the interest of justice. (D) Be pleased to pass such other and further reliefs as may be deemed just and proper by this Hon'ble Court in the facts and circumstances of the case." The relief prayed for in Special Civil Application No. 2262 of 2014 "8(A) To admit this petition. (B) To issue a writ of certiorari and/or any other appropriate writ, order and/or direction in the nature of certiorari quashing and setting aside the impugned award dated 07/06/2013 passed by the Ld. Labor Court at Anand in recovery application 177/2008 as well as the order dated 28/01/2014 passed in recovery application 33/2013 for certificate annex at Annexure-A to this petition in the interest of justice. (C) To stay the implementation, execution and operation of the impugned Award dated 07/06/2013 passed by the learned Judge of the Ld. Labor Court at Anand in recovery application No. 177/2008 as well as the award dated 28/01/2014 passed in recovery application 33/2013 for certificate annex at Annexure-A to this petition, during the pendency of admission, hearing and final disposal of the petition by way of an interim relief in the interest of justice. (D) Be pleased to pass such other and further reliefs as may be deemed just and proper by this Hon'ble Court in the facts and circumstances of the case." The relief prayed for in Special Civil Application No. 2263 of 2014 "8(A) To admit this petition. (B) To issue a writ of certiorari and/or any other appropriate writ, order and/or direction in the nature of certiorari quashing and setting aside the impugned award dated 07/06/2013 passed by the Ld. (B) To issue a writ of certiorari and/or any other appropriate writ, order and/or direction in the nature of certiorari quashing and setting aside the impugned award dated 07/06/2013 passed by the Ld. Labor Court at Anand in recovery application 176/2008 as well as the order dated 28/01/2014 passed in recovery application 32/2013 for certificate annex at Annexure-A to this petition in the interest of justice. (C) To stay the implementation, execution and operation of the impugned Award dated 07/06/2013 passed by the learned Judge of the Ld. Labor Court at Anand in recovery application No. 176/2008 as well as the award dated 28/01/2014 passed in recovery application 32/2013 for certificate annex at Annexure-A to this petition, during the pendency of admission, hearing and final disposal of the petition by way of an interim relief in the interest of justice. (D) Be pleased to pass such other and further reliefs as may be deemed just and proper by this Hon'ble Court in the facts and circumstances of the case." 3. The Special Civil Application No. 500 of 2014 is filed against the award dated 1.6.2013, passed by the learned Labour Court in Reference No. 73/2008, which was preferred by the workman Mr. Tejaji Meghaji Marvadi. 4. Whereas Special Civil Application No. 2263 of 2014 is filed against the order dated 7.6.2013 passed by the learned Labour Court in Recovery Application No. 176/08, which was also filed by above named claimant workman. 5. Whereas Special Civil Application No. 503 of 2014 is filed by the Petitioner against the award dated 1.6.2013 passed by the learned Labour Court in Reference No. 74/2008 which was preferred by other workman Mrs. Sonaben Tejabhai Marwadi and Special Civil Application No. 2262 of 2014 is filed by the petitioner society against the order dated 7.6.2013 passed by the learned Labour Court in Recovery Application No. 177/2008 which was filed by abovenamed workman Mrs. Sonaben Tejabhai Marwadi. 6. Sonaben Tejabhai Marwadi and Special Civil Application No. 2262 of 2014 is filed by the petitioner society against the order dated 7.6.2013 passed by the learned Labour Court in Recovery Application No. 177/2008 which was filed by abovenamed workman Mrs. Sonaben Tejabhai Marwadi. 6. So far as the orders passed by the learned Labour Court in respect of two recovery applications filed by the above named two claimants-workmen are concerned, the learned Labour Court has passed two similar orders in the recovery applications filed by the said two workmen and granted entire claim made by the said two workmen which comprised: (a) The claim for difference of minimum wages for the period from 1971 to 2008; (b) Salary/leave encashment for the period from January, 1971 to July, 2008; (c) Payment for the period from 1971 to 2008 for overtime. 7. Differently put, by virtue of the orders dated 7.6.2013, passed by the learned Labour Court in two recovery applications filed by above named two workmen, the learned Labour Court allowed the claim for period covering more than 30 years in respect of unpaid difference of minimum wages, allegedly unpaid salary for leave encashment for the past 30 years and in respect of allegedly unpaid overtime work for past 30 years. 8. So far as the two awards passed by the learned Labour Court in Reference No. 73 of 2008 and in Reference No. 74 of 2008 filed by abovenamed two workmen are concerned, the learned Labour Court has proceeded on the premise that the workmen reached to the age of superannuation during the pendency of the reference. Having regard to the said fact the learned Labour Court, while partly allowing the reference, directed the petitioner to pay wages for the period from the date of termination until the date on which the workmen reached age for superannuation. 9. For the sake of convenience, rival contentions by the petitioners and the respondent workmen in respect of the two awards passed by the learned Labour Court in Reference Nos.73/2008 and 74/2008 are considered in first stage (because both the workmen prosecuted the reference on similar ground) and the orders passed by the learned Labour Court in two Recovery Application Nos. 176/2008 and 177/2008 (where also the said two workmen had based their claim on same grounds and allegations) are considered in second stage. 10. 176/2008 and 177/2008 (where also the said two workmen had based their claim on same grounds and allegations) are considered in second stage. 10. So far as the dispute raised by the workmen in Reference Nos. 73/2008 and 74/2008 are concerned, both the workmen made almost similar allegations and raised industrial dispute. It was claimed by both the workmen that their services came to be illegally and arbitrarily terminated with effect from 25.8.2008 without following any procedure prescribed by law. The said dispute raised by two workmen came to be referred for adjudication the appropriate Government. The two orders of reference were registered as Reference (LCA) Nos. 73/2008 and 74/2008. During the proceeding before the learned Labour Court, in their respective statements of claim, the claimant Mr. Tejaji Marwadi claimed that he was working with the petitioner since 1971 as Watchman, whereas the claimant Mrs. Sonaben Tejaji Marwadi claimed that she was working as Water Woman and Peon since 1971. Both the workmen claimed that during entire tenure of their services, i.e. from 1971 until their services came to be terminated in August 2008 they were paid salary at Rs. 10/- per month and then their services were abruptly terminated without following procedure prescribed by law. 11. The reference was opposed by the petitioner who filed its written statement/replies in said reference cases and denied the allegations by the said two claimants. The petitioner further submitted that second claimant, i.e. Smt. Sonaben, wife of first claimant Mr. Tejaji, was staying with him in a room/quarter situate on the precincts of the school and she was casually and intermittently engaged for filling the water and sometime for cleaning/sweeping job. Actually, there was no employer-employee relationships between the petitioner and the workmen. The petitioner claimed that neither of the two claimants were regularly appointed by the petitioner after following procedure for selection and recruitment. The petitioner also claimed that there was neither any sanctioned post nor vacancy on the sanctioned posts where the claimants could have been appointed. Actually, there was no employer-employee relationships between the petitioner and the workmen. The petitioner claimed that neither of the two claimants were regularly appointed by the petitioner after following procedure for selection and recruitment. The petitioner also claimed that there was neither any sanctioned post nor vacancy on the sanctioned posts where the claimants could have been appointed. It is also claimed that both the claimants were aged and even otherwise in view of their advanced age they were not able to perform duties or any work and that, therefore, the claim that at relevant time they were working with the petitioner as Watchman and Water Woman respectively, is incorrect, baseless and unjustified and the claimants are otherwise also not physically unable to perform any work on account of their advanced age. 12. The parties, i.e. petitioner and the claimants led oral as well as documentary evidence and after completion of the stage of evidence, the parties put forward their rival contentions before the learned Labour Court. The learned Labour Court, after considering the material on record and submissions by learned advocates for the parties, reached to the conclusion that the two claimants were employees of the petitioner and that their services were terminated without following procedure prescribed by section 25F or without conducting enquiry and in violation of principles of natural justice. The learned Labour Court also reached to the conclusion that the petitioner had terminated their services and that the termination of the services of the two claimants was illegal and that, therefore, the termination deserved to be set aside. Having reached to such conclusion, the learned Labour Court relied on the submissions by learned advocate for the workmen that the workmen had reached the age of superannuation in 2012 and that, therefore, the learned Labour Court directed the petitioner to pay backwages to the said claimants for the period from their termination until the date of superannuation. 13. Mr. Patel, learned senior counsel with Mr. Sanchela, learned advocate for the petitioner assailed the impugned award dated 1.6.2013 passed in Reference Nos. 13. Mr. Patel, learned senior counsel with Mr. Sanchela, learned advocate for the petitioner assailed the impugned award dated 1.6.2013 passed in Reference Nos. 73/2008 and 74/2008 and submitted that the said awards have been passed without application of mind and without considering the facts and circumstances of the case and the learned Labour Court has failed to take into account that the claimants had not placed any material on record to demonstrate that they were ever appointed by the petitioner. He submitted that either appointment letter or any other material which may even suggest that they were employees of the petitioner, was not placed on record before the learned Labour Court. Learned senior counsel further submitted that the learned Labour Court committed error in believing that the claimants were employees of the petitioner and that their services were terminated by the petitioner. He also submitted that the learned Labour Court failed to take into account that the claimants were otherwise also not able to perform their duties on account of their advanced age and that, therefore, the alleged termination could not have been considered as illegal termination. Learned senior advocate for the petitioner also submitted that the learned Labour Court committed error in accepting unsubstantiated bald and oral allegations by the workmen and the Court also erred in believing in absence of any document or any evidence, that the workmen reached age of superannuation in 2012 and not on only time before 2012 and the claim with regard to superannuation should not have been mechanically accepted by the learned Labour Court. Learned senior counsel for the petitioner submitted that there was no material on record before the learned Labour Court to assume that the workmen were in service in 2008 and/or they were actually working with the petitioner until August 2008. Learned senior counsel for the petitioner submitted that in present two cases, the learned Labour Court has proceeded on bald statement made by the workmen and the learned Labour Court has failed to consider that the workmen failed to place any document on record to support any allegation made by the workmen. According to the learned senior counsel for the petitioner, the reference should have been rejected. 14. Per contra, Mr. According to the learned senior counsel for the petitioner, the reference should have been rejected. 14. Per contra, Mr. Mishra, learned advocate for the workmen submitted that the learned Labour Court has, in the award, discussed the evidence which establishes the workmen's claim that they were employed by and working with the petitioner samiti. He submitted that learned Labour Court has discussed the documents and oral evidence which was available on record and in light of the evidence the learned Labour Court reached to the conclusion regarding factum of employment of the claimants with the petitioner and the said conclusion does not suffer from any error. Learned advocate for the workmen submitted that the finding of fact recorded by the learned Labour Court with regard to factum of the employment of the two workmen and their termination are based on evidence on record and therefore this Court may not interfere with the findings of fact which are supported by material on record. 14.1. The learned advocate for the claimants heavily relied on the document viz. communication dated 24.4.2003 by the petitioner addressed to the Manager, Canara Bank for crediting the salary amount in respective savings bank accounts of the employees of the petitioner. From the list of the names of the employees, learned advocate for the workmen claimed that the names of the workmen are mentioned at Sr. Nos. 69 and 70 of the list/statement annexed to the said communication dated 24.4.2013 and from the said document, it also emerges that the workmen were paid salary at the rate of Rs. 10/-. He submitted that the letter dated 3.10.1997 establishes that the said two workmen were staying in a room/quarter which is situate on the precincts of the school and was allotted to the claimants in view of their employment and that, therefore, the conclusion by the learned Labour Court about the factum of employment is well-established and the learned Labour Court has not committed error. He submitted that the services of the claimants came to be terminated orally and abruptly and without following prescribed procedure of law. 15. I have considered the submissions by learned senior counsel for the petitioner and learned advocate for the claimants and have also considered the material on record. 16. So far as the two awards passed by the learned Labour Court in Reference Nos. 15. I have considered the submissions by learned senior counsel for the petitioner and learned advocate for the claimants and have also considered the material on record. 16. So far as the two awards passed by the learned Labour Court in Reference Nos. 73/2008 and 74/2008 are concerned, it is noticed that the discussion with regard to the evidence is common and identical inasmuch as both workmen relied on the same, common and identical evidence (except their respective depositions). 16.1. It is true that the workmen did not place any document on record viz. appointment letter or any other material to demonstrate that they were appointed by the petitioner. 16.2. However, the fact that the claimants were staying in the room/quarter situate over the precincts of the school (i.e. compound - ground appurtenant to the school premises) is not disputed and denied by the petitioner. 16.3. In this view of the matter, the submission by learned advocate for the workmen that nobody, and more particularly such a local authority, would allow a stranger or an outsider to stay in a room/quarter owned by the petitioner and that very fact that the two claimants stayed, for more than 30 years, in the room/quarter situate over the precincts of the school is sufficient to establish that the said room/quarter was allotted to them in their capacity as employee of the petitioner, cannot be brushed aside or ignored, more so when the fact (viz. the claimants staying in room/quarter situate on the school's precinct and owned by petitioner) is not denied by the petitioner and according to petitioner the claimants, though intermittently, did not work with the petitioner. 17. The petitioner has also failed to dispute, in any manner, the facts emerging from the document dated 24.4.2013 which is a communication addressed to the Manager, Canara Bank and the said document recites and gives out that the petitioner had, thereby, forwarded a cheque bearing No. 08755 dated 24.4.2003 in the sum of Rs. 12,24,586.55 being salary amount for its employees. 18. By the said communication dated 24.4.2003, the petitioner instructed the Manager, Canara Bank to credit the respective amount as per the statement in respective savings bank accounts of the employees. 19. The statement annexed to the said communication dated 24.4.2003 contains and reflects names of both the claimants. 20. 12,24,586.55 being salary amount for its employees. 18. By the said communication dated 24.4.2003, the petitioner instructed the Manager, Canara Bank to credit the respective amount as per the statement in respective savings bank accounts of the employees. 19. The statement annexed to the said communication dated 24.4.2003 contains and reflects names of both the claimants. 20. The learned Labour Court has relied on the said document to accept the factum of employment and employer-employee relationships between the petitioner and the workmen. 21. In this view of the matter and when above mentioned two facts viz. (a) allotment of room/quarter owned by the petitioner to the claimants and the claimants staying - for about 30 years - in the room/quarter situate over the school's precincts; and (b) petitioner depositing salary in the claimant's account with the bank by common pay cheque in respect of all employees, the conclusion by the learned Labour Court with regard to the factum of employment of the said two claimants which is based on the said document and other facts, cannot be faulted. Thus, the conclusion and finding of fact recorded by the Court that the two claimants were employees of the petitioner. 22. Then the question about alleged termination of their service comes in picture. 23. The fact that on the date when the claimants raised the dispute they were not in service with/not employed by the petitioner and it was not (and it is not) the case even the petitioner that on the date of the dispute and/or on the alleged date i.e. on 25.8.2008 of their termination and/or on the date of reference the claimants were in service and they were not relieved/discontinued. Thus, the fact that the claimants' employment had come to an end was not and is not in dispute and the Court has to proceed on that premise viz. that the claimants' employment had come to end at the time of dispute. 24. Once it is established that the learned Labour Court has not committed any error in law while recording conclusion with regard to the factum of employment of two workmen, the issue which arises is the legality of termination of service of the said two workmen. 25. The claimants asserted that the services came to be terminated with effect from 25.8.2008. Once it is established that the learned Labour Court has not committed any error in law while recording conclusion with regard to the factum of employment of two workmen, the issue which arises is the legality of termination of service of the said two workmen. 25. The claimants asserted that the services came to be terminated with effect from 25.8.2008. The petitioner has not placed any material to establish that the workmen had reached age of superannuation before the date mentioned by learned advocate before the learned Labour Court. In absence of any evidence on record on that count the learned Labour Court proceeded by accepting the declaration/stipulation about age and superannuation and that, therefore, the Court reached to the conclusion that workmen crossed the age of superannuation during the pendency of the proceedings and not before 25.8.2008 i.e. the alleged date of termination of their services. 26. It is not the case of the petitioner that the services of the two workmen were terminated on account of any misconduct. Undisputedly, any notice alleging any misconduct was not issued and any domestic enquiry was not conducted and any order of penalty was not passed. 27. The workmen claimed that their services were orally terminated on 25.8.2008. 28. In this view of the matter (a) when the services of the workmen are not terminated on account of or on allegation of misconduct; and (b) when principles of natural justice were undisputedly not followed and complied; and (c) when the petitioner failed to establish that before the alleged date of termination the workmen had crossed the age of superannuation; (d) and when the petitioner also failed to establish that the claimants were continuously not in good health and that due to continuous ill-health they were not able to perform their duty or any work; and (e) when the petitioner failed to establish that they had tendered resignation or retired on superannuation, then the only conclusion which the learned Labour Court could reach, would be that the services of the workmen were terminated for reasons other than the reason of misconduct and/or for any reason not within purview of clause (bb) of section 2(oo) of the Act. Under the circumstances, the termination of the service of the workmen would amount to retrenchment because the petitioner failed to establish that the claimants were relieved or not continued on account of any exception mentioned in clause (bb) of section 2(oo). 29. Of course, the petitioner attempted to contend that the claimants were unable to perform their duties on account of advanced age. 30. However, any evidence to establish the age of the workmen (on the alleged date of termination) is not placed on record by the petitioner and therefore, it is not established that in August 2008 (i.e. the alleged date when their service were terminated) the workmen had crossed the age of superannuation. 31. Further, any evidence by way of medical certificate or any of any other nature is not placed on record by the petitioner to establish that the workmen were unable to perform their duties for any reason whatsoever (including the ground of advanced age). 32. When the petitioner failed to establish both the aspects viz. that the claimants were unable to perform their duties due to continuous ill-health and consequently the termination was covered by any of the exceptions under section 2(oo), the action of discontinuing the workmen would amount to retrenchment. 33. Now, it is undisputed fact that at the time of termination, the petitioner did not pay retrenchment compensation and salary in lieu of notice and it did not follow the procedure prescribed under section 25F or section 25G. 34. Under the circumstances, the conclusion by the learned Labour Court that the termination of the service is effected in breach of statutory provision cannot be faulted. In this view of the matter ordinarily the direction to reinstate the claimants would follow. However in light of the declaration and stipulation by the learned counsel for the workmen that they have crossed the age for superannuation, the obligation to actually reinstate the workmen neither arises nor survives. 35. Therefore, the conclusion and direction by the learned Labour Court that the workmen are entitled for backwages cannot be faulted. 36. Now, therefore, the question arises about petitioner's challenge against the order whereby the learned Labour Court awarded full backwages for the period from the alleged date of termination until the date declared by learned advocate for the workmen as the date on which the workmen reached 58 years of age i.e. age for superannuation. 36. Now, therefore, the question arises about petitioner's challenge against the order whereby the learned Labour Court awarded full backwages for the period from the alleged date of termination until the date declared by learned advocate for the workmen as the date on which the workmen reached 58 years of age i.e. age for superannuation. According to the petitioner the said direction deserves to be set aside. 37. Having regard to the fact that the workmen were paid only Rs. 10/- as salary during their tenure and if the amount of backwages is to be calculated on that premise, it would be unjustified and contrary to provisions under the Minimum Wages Act and having regard to the fact that as such, there is no document on record to establish the age of the workmen and consequently, it is not possible to ascertain as to whether the workmen had reached age of superannuation at any time before 2008 or in 2008 or before 2012 or in 2012 (as claimed by them) and having regard to the facts of the case e.g. their irregular appointment and lack of clarity about their birth date and no evidence about the date of joining in service, it appears that the direction to backwages is required to be modified. Even the learned advocate for the claimants, after taking into consideration the said inherent shortfall in the case could not dispute and agreed that instead appropriate and reasonable lump sum compensation deserves to be granted, more particularly when the question of actual reinstatement does not survive in view of the stipulation and declaration by the workmen themselves that they have crossed the age of superannuation. 38. Under the circumstances and having regard to the facts of the case and the discussion by the learned Labour Court in the award impugned in present petition, it appears that if each of the two workmen are allowed lump sum compensation in the sum of Rs. 1,48,000/-, then it would be just and reasonable and would serve the interest of justice and also balance the equity. Orders accordingly. So far as the learned Labour Court's direction for backwages is concerned, the said direction is modified to the aforesaid extent. 39. Now, so far as the orders dated 7.6.2013 passed by the learned Labour Court in two Recovery Application Nos. Orders accordingly. So far as the learned Labour Court's direction for backwages is concerned, the said direction is modified to the aforesaid extent. 39. Now, so far as the orders dated 7.6.2013 passed by the learned Labour Court in two Recovery Application Nos. 176/2007 and 177/2008 are concerned, at the outset, it is relevant and necessary to mention that the facts of the case of the claimants and the petitioner so far as the factum of employment and the fact regarding the salary paid to the workmen are similar and common as made out in respect of the reference (termination) cases. 40. Therefore, the said details and aspects are not repeated while dealing with the petitions against the orders passed in the recovery applications. For the aforesaid reason and with a view to avoiding repetition of facts and duplication of discussion, the relevant facts which are common in respect of both proceedings e.g. the details about employment, total tenure of service, date of joining the service, date of alleged termination, nature of duties and rate of salary are not repeated and it is clarified that the foregoing discussion with regard to said details shall enure and apply in respect of the issues arising from the orders passed in the recovery applications and therefore, the repetition is avoided. 41. As mentioned earlier in the recovery applications, the said two claimants raised - (a) claim for difference of minimum wages for the period from 1971 to 2008; (b) claim for leave encashment for the period from January, 1971 to July, 2008; (c) claim for the period from 1971 to 2008 for overtime work. 42. Towards the said three heads, the workman Mr. Tejaji claimed following amount: 1.1.1971 to 17.7.2008 - For difference in Minimum Wages - Rs. 3,84,962.10. 1.1.1971 to 17.7.2008 - For Leave Encashment - Rs. 62,341.95. 1.1.1971 to 17.7.2008 - For Overtime - Rs. 5,02,742.10. 43. Whereas other workmen Smt. Sonaben claimed following amounts: 1.1.1971 to 17.7.2008 - For difference in Minimum Wages - Rs. 3,84,962.10. 1.1.1971 to 17.7.2008 - For Leave Encashment - Rs. 62,341.95. 1.1.1971 to 17.7.2008 - For Overtime - Rs. 5,02,742.10. 44. 1.1.1971 to 17.7.2008 - For Leave Encashment - Rs. 62,341.95. 1.1.1971 to 17.7.2008 - For Overtime - Rs. 5,02,742.10. 43. Whereas other workmen Smt. Sonaben claimed following amounts: 1.1.1971 to 17.7.2008 - For difference in Minimum Wages - Rs. 3,84,962.10. 1.1.1971 to 17.7.2008 - For Leave Encashment - Rs. 62,341.95. 1.1.1971 to 17.7.2008 - For Overtime - Rs. 5,02,742.10. 44. Before proceeding further, it is relevant and necessary to mention that on examination of the orders passed by the learned Labour Court in recovery applications, it has emerged that the workmen failed to lead any evidence to establish their allegation that throughout entire period of their employment allegedly of about more than 30 yeas they were obliged to work overtime. 45. There is no evidence worth the name so far as the alleged overtime work is concerned. 46. By any stretch of imagination, it cannot be said that the workmen had put forward any evidence to support and justify their claim for overtime. 47. The claim made by the workmen towards overtime could not have been granted in absence of evidence. In present case there is complete and total absence of any evidence, more so for cogent, relevant and sufficient and satisfactory evidence to support and justify belated claim for overtime wages (made after 30 years) for entire period of their employment. Besides being a state claim, its on wholly unsubstantial and meritless claim which could not have been granted. The learned Labour Court has committed error of law and error of jurisdiction while granting the claim of overtime wages in favour of the workmen. The said order and direction deserve to be set aside it is hereby set aside. 48. Likewise, the claim for leave encashment for total span of 30 years is also unjustified and unsustainable. The workmen had not placed any evidence on record before the learned Labour Court to establish that during their entire tenure they had not availed leave for a single day and total number of leave available to them as per applicable Rules were unavailed in their leave balance/account. 49. Any provision which allowed accumulation of unlimited leave for period of 30 years was also not placed on record, and brought to the notice, of the learned Labour Court and neither it is placed on record of present petition. 50. 49. Any provision which allowed accumulation of unlimited leave for period of 30 years was also not placed on record, and brought to the notice, of the learned Labour Court and neither it is placed on record of present petition. 50. When any material with regard to number of days of leave availed by the workmen and/or number of leave which were in balance, is not placed on record and when any provision allowing accumulation of unlimited number of leave and encashment of leave without any limitation in terms of time and/or number is not placed on record and such claim or foundation of such claim is not established, the claim for encashment of leave could not have been granted. The said decision and order is not sustainable. Mr. Mishra, learned advocate for the workmen could not justify the direction to pay amount towards said two claims viz. overtime wages and leave encashment. The learned Labour Court has committed error of law and jurisdiction in granting and allowing said claim and that, therefore, the said decision and direction are also hereby set aside. 51. So far as the claim for minimum wages for entire period of their service is concerned, it is pertinent that the petitioner could not deny or even dispute the allegation of the claimants that for entire period of their employment they were paid salary @ Rs. 10/-. The said fact establishes breach of the provisions of Minimum Wages Act. The applicability of said law to the petitioner is not in dispute and said aspect was admitted by petitioner's witness. The claim for payment of difference i.e. unpaid minimum wages is, therefore, undisputable and petitioner's objection against said claim cannot be sustained and entertained. 51.1. However, Mr. Patel, learned senior counsel for the petitioner raised an objection against the claim which deserves consideration. It is contended that such claim after inordinate delay should not be entertained and alternatively it should be restricted to ordinary period of limitation for any civil/monetary claim i.e. 3 years. 52. In the decision in case of State of Punjab v. The Labour Court, Jullundur [ AIR 1979 SC 1981 ], Hon'ble Apex Court considered the issue related to claim for gratuity and the issue related to the authority of learned Labour Court to entertain such claim in an application filed by invoking under section 33(C-2). 52. In the decision in case of State of Punjab v. The Labour Court, Jullundur [ AIR 1979 SC 1981 ], Hon'ble Apex Court considered the issue related to claim for gratuity and the issue related to the authority of learned Labour Court to entertain such claim in an application filed by invoking under section 33(C-2). In the said decision, Hon'ble Apex Court observed, inter alia, that: "7. It is apparent that the Payment of Gratuity Act enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for recovery of the amount, and contains an especial provision that compound interest at nine per cent per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the Act. 8. Upon all these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee respondents under section 33-C(2) of the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal must succeed." 52.1. The petitioner's objection against the application filed by the respondent under section 33(C-2) (for claiming unpaid wage or for difference of salary between the salary actually paid and the salary payable at the rate prescribed under the Minimum Wages Act) on the ground that specific authority is constituted under the Minimum Wages Act and that, therefore, the application under section 33(C-2) for such claim should not have been entertained, is not sustainable. Mr. Mr. Patel, learned senior counsel submitted that as such, the learned Labour Court ought not have entertained the claim for minimum wages when separate statutory authority is constituted under the provisions of the Minimum Wages Act for entertaining the claim for allegedly unpaid minimum wages and in view of the said statutory alternative remedy the claim should not have been entertained by the learned Labour Court. The said contention is not tenable in view of the fact that the observations by Hon'ble Apex Court in the cited decision (with regard to claim for gratuity) have to be read in light of the fact that the gratuity is expressly excluded from the definition of the term 'wages' defined under section 2(rr) of the Industrial Disputes Act and that, therefore, an application claiming gratuity under section 33(C-2) would not be maintainable, whereas the same analogy cannot be applied in respect of claim for unpaid wages or wages short paid or not paid as per applicable law. Merely because the claim is based on the rates prescribed under the Minimum Wages Act will not oust the jurisdiction of the learned Labour Court to entertain an application claiming unpaid wages and/or difference of salary between salary actually paid and the salary payable in accordance with the law. Thus, the contention against maintainability of the application on ground of alternative remedy available under the provisions of the Minimum Wages Act is not sustainable and it is hereby rejected. 52.2. The learned senior counsel for the petitioner further submitted that though the learned Labour Court entertained the claim for payment of allegedly unpaid minimum wages in spite of the fact that alternative remedy is available under Minimum Wages Act, the learned Labour Court could not have entertained the claim for more than past three years before the date of application, whereas in present case, the claimants claimed difference of wages (on the basis of rates of minimum wages) for past 30 years, i.e. from 1971. So far as the said submission is concerned, it is relevant to take into account the observations by Hon'ble Apex Court in the case of Shiv Das v. Union of India [ (2007) 9 SCC 274 ]. In the said decision, while considering the objection against writ petition on the ground that it was filed after inordinate delay, Hon'ble Apex Court observed, inter alia, that: "6. In the said decision, while considering the objection against writ petition on the ground that it was filed after inordinate delay, Hon'ble Apex Court observed, inter alia, that: "6. Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (in short the 'Constitution'). In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports and Ors. ( AIR 1970 SC 769 ). Of course, the discretion has to be exercised judicially and reasonably. 7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc., (1874) 5 P.C. 221 at page 239 was approved by this Court in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors. ( AIR 1967 SC 1450 ) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors. ( AIR 1969 SC 329 ), Sir Barnes had stated: "Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone." 52.3. On this count, it would not be out of place to also refer to the observations by Hon'ble Apex Court in case of Union of India v. Tarsem Singh [ (2008) 8 SCC 648 ], wherein Hon'ble Apex Court observed that even in cases where there is continuing wrong, the principles relating to recurring/successive wrongs would apply, however, the arrears are ordinarily to be restricted to three years prior to filing of the writ petition. In the said decision, Hon'ble Apex Court observed, inter alia, that: "4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A 'continuing wrong' refers to a single wrongful act which causes a continuing injury. 'Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. In the said decision, Hon'ble Apex Court observed, inter alia, that: "4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A 'continuing wrong' refers to a single wrongful act which causes a continuing injury. 'Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna S.P. Waghmare v. Shree Dhyaneshwar Maharaj Sansthan - [ AIR 1959 SC 798 ], explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963): "It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury." 7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim state and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances." 53. In present case, the claim raised by the respondent is with reference to unpaid wages or for 'wages short paid', i.e. salary paid at rates less than the rates at which the salary should have been paid in ordinary course. The workman raised the claim on the premise that he/she was entitled for wages at the rates prescribed from time to time by notification issued under the Minimum Wages Act, however, the petitioner employer did not pay the salary at such rate but paid salary only at Rs. 10/-, for many years. In view of the nature of claim and considering the workmen's claim that for long time they were paid only Rs. 10/- towards salary, this Court is not inclined to accept and entertain the petitioner's objection against maintainability of the recovery application on the ground that it was hit by vice of delay. 10/-, for many years. In view of the nature of claim and considering the workmen's claim that for long time they were paid only Rs. 10/- towards salary, this Court is not inclined to accept and entertain the petitioner's objection against maintainability of the recovery application on the ground that it was hit by vice of delay. Hard facts or extraordinary facts call for and justify appropriate response and remedy. This Court would not exercise prerogative and discretionary writ jurisdiction to set aside an order passed by the learned Labour Court while entertaining an application, though filed belatedly, for claim of unpaid or short paid salary in violation of or by disregard Minimum Wages Act and the notification under said Act over long period, merely on the ground that the application was belated. However, in view of the above quoted observations by Hon'ble Apex Court, in view of this Court, it would be just and appropriate to restrict the direction for a period of three years prior to the date of claim. 54. Mr. Mishra, learned advocate for the workmen could not dispute said contention though he submitted, as regards the objection on ground of alternative remedy that when both remedy are available. The workmen can opt for any one of the two remedies. In the facts of the case Mr. Mishra, learned advocate for the workmen fairly submitted that having regard to facts and legal position appropriate directions may be passed. 55. Having regard to the said contention by learned senior counsel for the petitioner and having regard to the above-mentioned decision by Hon'ble Apex Court, it appears that the direction by the learned Labour Court allowing the claimants for minimum wages deserves to be and is required to be restricted to period of three years, i.e. three years prior to the date of the termination. On this count, it is necessary to mention that for the aforesaid purpose, the Court had requested learned advocates for the petitioner and the workmen to submit a joint statement of calculation for wages on the basis of prescribed rate of minimum wages for the period of last three years. 56. Learned advocates for the petitioner and the workmen have jointly submitted that the amount towards difference of minimum wages for the period of past three years would come to Rs. 83,021/-. Mr. 56. Learned advocates for the petitioner and the workmen have jointly submitted that the amount towards difference of minimum wages for the period of past three years would come to Rs. 83,021/-. Mr. Mishra submitted that gratuity was not claimed in the application but the said claim comes to around Rs. 69,000/- which may be granted. 57. Considering the fact that both the workmen concerned in the present petitions have already reached the age of superannuation, the Court, on the request of the learned advocate for the workmen, thinks it appropriate to also include the claim for gratuity while passing the order regarding the amount to be paid to the concerned workmen. Therefore, the petitioner is directed to pay Rs. 83,000/- towards difference of minimum wages for past 3 years before the date of termination and Rs. 69,000/- towards gratuity. 58. So far as the objection on ground of alternative remedy is concerned, it is not tenable and the Court is not inclined to accept it. The said objection is hereby rejected. 59. Having regard to the submissions by learned advocates for the petitioner and the workmen, following order is passed. 60. So far as the orders dated 7.6.2013 in Recovery Application Nos. 176/2007 and 177/2008 are concerned, (a) the direction to pay Rs. 5,02,742.10 and Rs. 5,02,742.10 to the said workmen towards the claim for overtime wages in respect of the said two claimants is set aside; (b) the direction to pay Rs. 62,341.95 and Rs. 62,341.95 to the said workmen towards the claim for leave encashment in respect of the two claimants is also set aside; (c) towards claim for minimum wages, as directed above, each of the two applicants shall be entitled to, and shall be paid, Rs. 83,000/- for the difference of minimum wage for period of three years prior to termination (as against Rs. 3,84,962/- claimed for entire service period and allowed by the learned Labour Court). 61. So far as the direction to pay backwages as per the award in reference case is concerned, in view of the foregoing discussion and for the reasons recorded hereinabove, the petitioner is directed to pay Rs. 1,48,000/- to each claimant by way of lump sum compensation instead of the impugned direction to pay backwages from the date of termination until the date when the claimant reached the age of superannuation, as passed by the learned Labour Court. 1,48,000/- to each claimant by way of lump sum compensation instead of the impugned direction to pay backwages from the date of termination until the date when the claimant reached the age of superannuation, as passed by the learned Labour Court. 61.1. It is appropriate to clarify that the said amount works out to more than 70% backwages from date of termination till date of superannuation. 62. The awards passed by the learned Labour Court in Reference No. 73 of 2008 and Reference No. 74 of 2008 are accordingly modified to the said extent. 63. Further, the petitioner is also directed to pay Rs. 69,000/- to each workman towards gratuity. Accordingly, each of the workman in this group of cases will be entitled to Rs. 3 lakh as follows: Sr.No. Amount (Rs.) Purpose 1. 83,000/- Towards difference in minimum wages for a period of three years prior to date of termination. 2. 1,48,000/- Towards backwages till the date of superannuation i.e. from 1.9.2007 to December 2012. This nearly works out about 75 of the backwages. 3. 69,000/- Towards claim for gratuity for the period they were in service. 64. Accordingly, orders passed by the learned Labour Court in Reference (LCA) Nos.73/2008 and 74/2008 and Recovery Application Nos. 176/2008 and 177/2008 are modified. 65. The petitioner has deposited a sum of Rs. 3,84,962.10 in each of the case, pursuant to orders dated 12.2.2014 passed in Special Civil Application Nos. 2262/2014 and 2263/2014. Out of the said amount, each of the respondent workman will be entitled to withdraw Rs. 3,00,000/- as aforesaid. Balance amount with accrued interest shall be refunded to the petitioner, of course after appropriate application/request for said purpose filed by the petitioner's authorised representative. 66. The said two orders dated 7.6.2013 in Recovery Application No. 176 of 2008 and Recovery Application No. 177 of 2008 and the two awards dated 1.6.2003 in Reference Case Nos. 73/2008 and 74/2008 are accordingly modified to the aforesaid extent. Rule is made absolute to the aforesaid extent. Orders accordingly.