Commissioner-cum-Secretary, Commerce & Transport (Commerce) Department, Government of Odisha v. Raghu Arakshita Sinha
2016-10-27
SANJU PANDA, SUJIT NARAYAN PRASAD
body2016
DigiLaw.ai
JUDGMENT : S.N. Prasad, J. In all these writ petitions common questions are involved and as such the same are being disposed of by this common order. 2. The orders dtd.21.11.2011 passed by the Labour Court, Bhubaneswar in Industrial Dispute Misc. Case Nos.16 of 2003 (in W.P.(C) No.7033 & 21307 of 2012) & 175 of 2004 (in W.P.(C) Nos.7032 & 21308 of 2012) are under challenge whereby and where under the Labour Court while passing order U/s.33-C(2) of the Industrial Disputes Act, 1947 has computed the claim of the applicants (workmen) with a direction to implement the order within a period of two months from the date of the order, failing which the amounts shall carry interest at the rate of 10% per annum till its realization. 3. The brief fact of the case is that a demand was raised on behalf of Employees Union for granting revised scale of pay as applicable to the State Government Employees. The dispute having not been settled a reference was made U/s.10(1) of the Industrial Disputes Act vide notification dtd.05.01.1985 of the Labour and Employment Department. The terms of reference is as follows:- 1. Whether the workmen of Orissa State Commercial Transport Corporation Cuttack are entitled to the revised scale of pay w.e.f.01.01.1981? If so, with what details? 2. Whether they are entitled to Additional D.A. from 01.01.1982, 01.06.1982, 01.09.1982, 01.12.1982, 01.03.1983, 01.04.1983 and 01.07.1983 as applicable to the State Government employees?” The said reference was decided on 26.08.1986 vide Award passed in I.D. Case No.2 of 1985 by the Industrial Tribunal, Bhubaneswar holding that the employees of the Corporation are entitled to the claim of Revised scale of pay and Additional D.As. as admissible to the State Government employees. The Management being aggrieved with the award has approached this court under its writ jurisdiction in O.J.C. No.455 of 1987, the writ petition was dismissed vide order dtd.17.01.1990 against which Special Leave Petition was filed before the Hon’ble Apex Court being S.L.P. No.12852 of 1990 which was dismissed vide order dtd.12.12.1990. The Management after being unsuccessful implemented the award and paid the revised scale of pay and additional D.A. and A.D.A. in terms of the award.
The Management after being unsuccessful implemented the award and paid the revised scale of pay and additional D.A. and A.D.A. in terms of the award. The business transaction of the Corporation closed by virtue of order passed under Sub-Section 2 of Section 25(O) of the I.D. Act vide order dtd.26.3.1998, the said decision of closure was challenged by the Union before this court under writ jurisdiction in O.J.C. No.5657 of 1998 which was dismissed vide order dtd.15.05.1998, the same was challenged before the Hon’ble Supreme Court in S.L.P.(Civil) No.9859 of 1998 which was disposed of vide order dtd.25.05.1998. While dismissing the Special Leave Petition, the Management was directed not to terminate the services of the employees for a period of two months from the date of passing that order, as the Union intends to file review application U/s.25(O) of the Industrial Disputes Act. In terms of the direction passed by Hon’ble Apex Court in S.L.P. (Civil) No.9859 of 1998 the business of the Corporation was closed w.e.f.25.7.1998. Thereafter the Employees Union filed review application before the appropriate Government challenging the permission for closure on 27.5.1998, after hearing the parties the appropriate Government was pleased to reject the same vide order passed in this regard on 01.07.1998, thereafter the Employees Union again moved the Hon’ble Supreme Court by filing Writ Petition (Civil) No.386 of 1998 and the Hon’ble Apex Court has ordered that “stay granted by the Hon’ble Apex Court on 25.05.1998 in S.L.P.(Civil) No.9859 of 1998 stand extended by 10 days or till hearing of the matter, which ever is earlier. Registry may fix the date accordingly” and thereafter the writ petition was finally withdrawn by the Union with permission to enable him to file appropriate petition in the High Court.
Registry may fix the date accordingly” and thereafter the writ petition was finally withdrawn by the Union with permission to enable him to file appropriate petition in the High Court. The Corporation thereafter has filed a modification application for modification of the order dtd.27.07.1998 taking a ground for modification that the amount from 26.07.1998 to 08.8.1998 is not payable but the Hon’ble Apex Court while passing the order has given liberty to the Union that if the Union feels that the said amount is payable, it is open to it to initiate appropriate proceeding for recovering the same and it is in this pretext the union has filed application U/s.33-C-(2) for issuance of direction upon the Management to disburse the amount as claimed by them for the period from 01.08.1983 to 3.8.1998, i.e. arrear differential pay, revised pay, D.A., A.D.A., D.P., I.R., un-utilized leave salary, notice pay and compensation. The Labour Court after hearing the parties at length has passed order on 21.11.2011 whereby and where under the Labour Court has passed order directing both the opposite parties, i.e. the Chairman-cum-Managing Director, M/s.Orissa State Commercial Transport Corporation Ltd. and the Commissioner-cum-Secretary to Government, Department of Commerce and Transport, Odisha to pay the arrear differential pay, revised pay, D.A., A.D.A., D.P., I.R., un-utilized leave salary, notice pay and compensation. So far as differential gratuity amount is concerned, the Labour Court has observed that this court is not the competent authority to compute the same but since it is already determined and paid some amount towards gratuity to the applicants, as such the differential amount of the same is only calculated towards gratuity of the applicant and accordingly directed to implement the order within a period of two months from the date of award, failing which the amount shall carry interest @ 10% per annum till its realization. 3.
3. Learned counsel for the petitioners being aggrieved with the order passed by the Labour Court U/s.33-C(2) has filed this writ petitions assailing the same on the ground that since the establishment itself has been closed vide order passed in this regard on 26.3.1998 and the same has been extended for a period of two months by virtue of order passed by the Hon’ble Apex Court in SLP (Civil) No.9859 of 1998 which was disposed of vide order dtd.25.5.1998 directing not to terminate the services of the employees of the corporation for a period of two months from today and as such the workmen continued in service till 25.07.1998 in pursuance to the order passed by Hon’ble Apex Court whereby and where under the respondent No.1 has been directed not to terminate the services of the employees of the Corporation for a period of two months from today and in pursuance to the order of the Hon’ble Apex Court the establishment has been closed w.e.f.25.07.1998 and as such the Management is liable only to pay the dues up to 25.7.1998 and not up to 03.08.1998, but according to the Management, the Labour Court without appreciating this aspect of the matter has travelled beyond his jurisdiction by calculating the amount under an application filed by the Union representing the workmen U/s.33-C(2) up to the period of 03.08.1998 and as such the said order is per se illegal, hence not sustainable. 4. We have examined the materials available on record and also examined the statutory provision as contained in Section 33-C(2) which contains provision regarding entitlement of amount to be paid to the workman by computing it in terms of money. The workmen working under the establishment are claiming their arrears from 01.08.1983 to 03.08.1998. According to the Management the arrears from 01.08.1983 up till 25.07.1998 is not in dispute since the establishment has been closed on 25.07.1998 and as such the workmen are only entitled to get arrears up to 25.07.1998.
The workmen working under the establishment are claiming their arrears from 01.08.1983 to 03.08.1998. According to the Management the arrears from 01.08.1983 up till 25.07.1998 is not in dispute since the establishment has been closed on 25.07.1998 and as such the workmen are only entitled to get arrears up to 25.07.1998. The admitted position in this case is that by virtue of order passed by the Government of Orissa through Labour and Employment Department dtd.26.03.1998 permission has been accorded for closure of the establishment in exercise of power conferred under Sub-Section 2 of Sec.25(O) of the I.D. Act, 1947 against which the workmen has preferred writ petition being O.J.C. No.5657 of 1998 which was dismissed vide order dtd.15.05.1998, assailed before Hon’ble Apex Court by preferring S.L.P.(Civil) No.9859 of 1998 and Hon’ble Apex Court while disposing of the Special Leave Petition vide order dtd.25.05.1998 has passed the following order:- “Upon hearing counsel the Court made the following order. The Special Leave Petition is dismissed. However, respondent No.1 is directed not to terminate the services of the employees of respondent No.1, Corporation for a period of two months from to-day, as the petitioner now intends to file a review application under section 25-O of the Industrial Disputes Act.” In pursuance to the order dtd.25.05.1998 the date of closure of the establishment itself has been extended up to 25.07.1998 by virtue of the order passed by the Hon’ble Apex Court in the said case. Thereafter the Hon’ble Apex Court has been pleased to pass an order in Writ Petition (Civil) No.386 of 1998 vide order dtd.27.07.1998 whereby and where under the following order has been passed:- “Stay granted by this Court on 25th May, 1998 in SLP (c) 9859 of 1998 would stand extended by 10 days or the hearing of this matter, whichever is earlier. The Registry may fix the date accordingly.” Writ Petition (Civil) No.386 of 1998 was finally been heard and withdrawn by the Union with liberty to approach the High Court and as such the matter set at rest on 03.08.1998.
The Registry may fix the date accordingly.” Writ Petition (Civil) No.386 of 1998 was finally been heard and withdrawn by the Union with liberty to approach the High Court and as such the matter set at rest on 03.08.1998. The contention of the Management that they are only liable to pay the arrears up to 25.07.1998 does not seem to be proper for the reason that by virtue of order passed by Hon’ble Apex Court on 25.05.1998 the Corporation have been restrained from terminating the services of the employees for a period of two months from 25.05.1998 and the period of two months has been subsequently extended for further ten days or till hearing of the matter, whichever is earlier and the case was listed on Board before Hon’ble Apex Court on 03.08.1998, hence the interim order granted by the Hon’ble Apex Court on 25th May 1998 first for a period of two months and the said period expires on 25.07.1998 and thereafter it has been extended up to 03.08.1998 by virtue of order passed by the Hon’ble Apex Court on 27.07.1998, since on 03.08.1998 the matter was finally been heard and the writ petition was withdrawn in order to approach the High Court and as such the workmen will be said to have performed their duties up to 03.08.1998. The contention of the Management that the establishment has been closed w.e.f. 25.07.1998 and as such they are not liable to pay beyond that period is not sustainable by virtue of the order passed by Hon’ble Apex Court on 27.07.1998 as stated hereinabove. The learned Labour Court after taking into consideration these aspects of the matter has computed the arrears from 01.09.1983 to 03.08.1998 as per the claim filed by the workers as would be evident from Annexure-19 annexed to the Additional Affidavit filed on behalf of the Management – Petitioner. Save and except this point, no other point has been urged before this court challenging the jurisdiction of the Labour Court. In view of such a situation and in view of the discussion made herein above, in our considered view, the learned Labour Court has not committed any error in passing the order, accordingly we decline to interfere with the same. In the result all the writ petitions stand dismissed.