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Gujarat High Court · body

2017 DIGILAW 91 (GUJ)

Asha Talkies v. Rajubhai Punjabhai Dabhi

2017-01-16

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Singh, learned advocate for petitioner and Mr. Mishra, learned advocate for respondent. In present petition, the petitioner has prayed, inter alia, that: "21(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 20.09.2007 passed by learned Presiding Officer, Labour Court, Nadiad in Recovery Application No. 10 of 1997 and also the Recovery Certificate dated 21.09.2007 issued by the Labour Court, Nadiad pursuant thereto." 2. Before proceeding further, it is relevant to mention that Mr. Mishra learned advocate for respondent workman submitted that in present petition, the petitioner has challenged the order passed by learned Labour Court in Recovery Application No. 10 of 1997 without challenging the award in light of which the order in Recovery Application is passed and the award has attained finality and that, therefore, the petition does not deserve to be entertained. 3. Mr. Singh could not dispute the fact that award passed by learned Labour Court in Reference has attained finality. 4. So far as factual background is concerned, it has emerged from the record that the respondent herein raised industrial dispute against allegedly illegal termination of his service. The said dispute was referred for adjudication to learned Labour Court. The dispute was registered as Reference(LCN) No. 182 of 1989. In the said reference case the claimant alleged that the employer terminated his service illegally and arbitrarily on 27.02.1989. He alleged that his service was terminated without any fault on his part and without following procedure prescribed by law. It appears that initially the opponent employer failed to attend the hearing before learned Labour Court. The learned Labour Court, after adjourning proceeding for sometime, passed award dated 22.12.1995 whereby the learned Labour Court directed present petitioner to reinstate the respondent-claimant on his original post with full backwages. Thereafter, present petitioner i.e. original opponent before learned Labour Court filed Misc. Application with a request to set aside the award and to grant opportunity of hearing to the applicant. The original opponent also preferred the application seeking condonation of delay. Learned Labour Court considered the said Applications and vide order dated 24.12.1998, rejected the application seeking condonation of delay and restoration of Reference case. 5. Application with a request to set aside the award and to grant opportunity of hearing to the applicant. The original opponent also preferred the application seeking condonation of delay. Learned Labour Court considered the said Applications and vide order dated 24.12.1998, rejected the application seeking condonation of delay and restoration of Reference case. 5. At this stage, it is pertinent to note that according to the claim of the petitioner, the workman was re-engaged by the original opponent employer i.e. present petitioner on and from 29.12.1996 and he was performing his duties as machine operator. According to the case of the present petitioner, service of the claimant was again terminated in June, 1997. It is also claimed that actually the workman was asked on 10.01.1997 to perform duty of machine operator, however, the claimant refused to do so and, therefore, he was not assigned any work and subsequently his service was terminated on 12.06.1997. 6. The petitioner employer has also alleged that the workman did not challenge the said subsequent termination in June, 1997. 7. It appears that since the direction to pay full wages passed by learned Labour Court vide order dated 22.12.1995 in Reference No. 182 of 1989 was not complied by the employer, the workman filed Recovery Application No. 10/1997 and demanded Rs. 1,13,617/- being the amount towards backwages for the period from 16.01.1989 to 31.03.1997. In the said application, the claimant also demanded amount towards bonus and leave salary for the period from January, 1989 to March, 1997. The said Recovery Application was registered as Recovery Application No. 10 of 1997. 8. The petitioner has, in present petition, also claimed that besides present respondent, service of other 5 workmen were also terminated and ultimately in the writ petition settlement was arrived at whereby the petitioner herein had paid agreed amount to the workmen and finalised full and final settlement with said workers. 9. It appears that petitioner herein neglected the proceedings of Recovery Application No. 10 of 1997 and, therefore, the learned Labour Court, after adjourning the proceeding for some time, passed order directing the petitioner to pay Rs. 1,13,617/-. 9.1 It appears that subsequently the petitioner herein filed Misc. Application which was registered as Misc. Application No. 16 of 2003 and with the said application the petitioner requested the Court to set aside the order dated 29.12.1999 in Recovery Application No. 10 of 1997. 1,13,617/-. 9.1 It appears that subsequently the petitioner herein filed Misc. Application which was registered as Misc. Application No. 16 of 2003 and with the said application the petitioner requested the Court to set aside the order dated 29.12.1999 in Recovery Application No. 10 of 1997. Since the said Misc. Application No. 16 of 2003 was filed after expiry of period of limitation, the petitioner had filed application seeking condonation of delay. 9.2 It appears that vide order dated 13.10.2004, learned Labour Court allowed the said Misc. Application No. 16 of 2003 and recalled the order dated 29.12.1999 in Recovery Application No. 10 of 1997. 10. Subsequently, the Recovery Application No. 10 of 1997 was again adjudicated and after hearing the parties, learned Labour Court passed fresh order dated 29.09.2007 in Recovery Application No. 10 of 1997 and directed the petitioner to pay Rs. 2,32,907/- which included interest for the intervening period, over the amount payable towards backwages awarded by learned Labour Court in the Reference case and also for the amount payable towards bonus, leave salary etc. Since the said amounts were undisputedly not paid, learned Labour Court issued Recovery Certificate dated 21.09.2007. 11. It is against the said orders dated 20.09.2007 and 21.09.2007 in Recovery Application No. 10 of 1997 that the petitioner has taken out this petition. 12. As mentioned earlier, Mr. Mishra has opposed maintainability of the petition on the ground that the petitioner has not challenged, at any stage, award dated 22.12.1995 in Reference No. 182 of 1989 and/or the order rejecting Misc. Application No. 7 of 1997 and, therefore, the petition challenging the consequential order passed in Recovery Application is not maintainable. 13. In this background, Mr. Singh, learned advocate for the petitioner submitted that the claimant was re-engaged on 29.12.1996 and, thereafter, his service was again terminated in 1997 and the claimant never challenged the said subsequent termination in June, 1997 and that, therefore, the petitioner cannot claim any benefit for period beyond 29.12.1996. He further submitted that the amount claimed in the Recovery Application is beyond the award dated 22.12.1995 and, therefore, also the amount claimed by the present respondent could not have been granted. He submitted that learned Labour Court failed to appreciate the contention and granted Recovery Application in totality. Therefore, impugned orders in Recovery Application are unsustainable. 14. Mr. He further submitted that the amount claimed in the Recovery Application is beyond the award dated 22.12.1995 and, therefore, also the amount claimed by the present respondent could not have been granted. He submitted that learned Labour Court failed to appreciate the contention and granted Recovery Application in totality. Therefore, impugned orders in Recovery Application are unsustainable. 14. Mr. Mishra, learned advocate reiterated his preliminary objection against the maintainability of the petition and he further submitted that Recovery Application was filed in view of the fact that the award dated 22.12.1995 in Reference No. 182 of 1989 was not complied by the petitioner. Mr. Mishra, however, could not dispute the claim of the petitioner that after the award dated 22.12.1995, the claimant was reengaged in 29.12.1996. Mr. Mishra submitted that the claimant demanded backwages and consequential benefits on the basis of the direction contained in award dated 22.12.1995 and that learned Labour Court has granted the said amount and that, therefore, there is no error or illegality in order passed by learned Labour Court on 20.09.2007 and/or in the Recovery Certificate dated 21.09.2007 issued by the learned Labour Court. 15. I have considered rival submissions by both the sides and I have also considered material available on record. 16. It is not in dispute that: (a) originally the service of the claimant i.e. present respondent was terminated in February, 1989; (b) The claimant-workman challenged the said illegal termination in Reference No. 182 of 1989; (c) The said Reference No. 182/1989 came to be decided by learned Labour Court vide award dated 22.12.1995; (d) Subsequently the petitioner filed Misc. Application No. 7 of 1997 with reference to recall the award. However, the said application and the delay condonation application came to be rejected vide order dated 24.12.1995 and the order dated 24.12.1998 in Misc. Application No. 7 of 1997 have attained finality; (e) The Recovery Application No. 10 of 1997 is based on the award dated 22.12.1995 in Recovery Application No. 182 of 1989. Therefore, the period covered by the Recovery Application is from February, 1989 to 29.12.1996. 17. Application No. 7 of 1997 have attained finality; (e) The Recovery Application No. 10 of 1997 is based on the award dated 22.12.1995 in Recovery Application No. 182 of 1989. Therefore, the period covered by the Recovery Application is from February, 1989 to 29.12.1996. 17. In view of the fact that the award dated 22.12.1995 has attained finality and in view of the fact that by the said award, learned Labour Court granted full backwages for the period from 27.02.1989 to 29.12.1996, the petitioner herein is under legal obligation to pay the claimant full backwages for the period from 27.02.1989 to 29.12.1996 and other consequential benefits. 17.1 It is for the said claim that the claimant filed Recovery Application No. 10 of 1997. 17.2 Therefore, the Recovery Application would be maintainable and the claim by the workman ought to be ordinarily granted all benefits including backwages so far as the period from 27.02.1989 to 29.12.1996 is concerned. 17.3 According the calculation by the claimant, the backwages for the said period would come to Rs. 99,490/-. In his recovery Application the claimant demanded bonus as well as leave salary. 18. So far as the claim for bonus for the said period is concerned, there is no material on record to establish that the claimant was, by virtue of any provision, entitled for bonus. 18.1 Having regard to the fact that there is no material on record to establish that the claimant was entitled for bonus, Mr. Mishra conceded the said fact and submitted that the claimant does not demand any amount towards bonus. Therefore, the said claim stands dropped and withdraw. 18.2 Now, so far as the claimant's leave salary is concerned, in the application the claimant did not specify his entitlement for any particular period. On examination of the application it comes out that specific calculation and details with regard to leave salary i.e. total number of leave for which he was eligible during one year and total number of accumulated leave and permissible accumulation and amount payable for accumulated leave was not mentioned and details were not clarified in the Recovery Application. Under the circumstances, the learned Labour Court could not have mechanically passed order with regard to claim for leave salary. Under the circumstances, the learned Labour Court could not have mechanically passed order with regard to claim for leave salary. From the order passed by learned Labour Court, it appears that learned Labour Court mechanically granted total claim without having regard to the fact that the relevant details to justify and establish the said claim was no made out by the claimant. 18.3 Under the circumstances, the claim for amount towards leave salary was not justified and was not sustainable. 18.4 Having regard to this position, learned advocate for the claimant submitted that so far as present proceedings are concerned, the claimant does not press the claim for leave salary, however, with rider that the claimant will, if so advised, take out appropriate proceeding to claim leave salary in accordance with law. 18.5 Therefore, in view of the said submission and statement the claim for leave salary also stands dropped and withdrawn from the purview of Recovery Application. 19. This would leave behind the claim for backwages and other permissible benefits for which he claimed Rs. 99,490/-. The claimant demanded the said amount for the period from 16.01.1989 i.e. date of termination to 31.03.1997. 19.1 In this context, Mr. Singh learned advocate submitted that the claimant was re-engaged with effect from 29.12.1996 and, therefore, the claim for wages for the period from January, 1997, February, 1997 and March, 1997 is not justified. 19.2 To that extent, the submission and objection by Mr. Singh learned advocate for petitioner is justified. 20. Therefore, monthly salary for 3 months i.e. January, February and March (Rs. 1380 x 3 = 5140) shall be deducted from total claim of Rs. 99,490/- The balance amount 94,350/- i.e. Rs. 94,000/- shall be payable to the claimant. 20.1 Undisputedly, the petitioner has not paid the said amount to the claimant until now. The said amount is not even deposited with the Registry of the Court. Therefore, the petitioner is liable to pay the amount with interest. 21. The sum total of the submission by Mr. Mishra learned advocate is that the claim for bonus amount and the leave salary stand dropped and the demand for backwages is restricted upto December, 1996. Consequently, the petitioner shall be liable to pay Rs. 94,000/- to the claimant with interest for the period from 20.09.2007 to the date of actual payment. 22. Mishra learned advocate is that the claim for bonus amount and the leave salary stand dropped and the demand for backwages is restricted upto December, 1996. Consequently, the petitioner shall be liable to pay Rs. 94,000/- to the claimant with interest for the period from 20.09.2007 to the date of actual payment. 22. In the impugned award, the learned Labour Court has awarded interest at 10%. Mr. Singh, learned advocate submitted that the rate of interest prescribed by learned Labour Court is on higher side. He further submitted that the financial position of the petitioner is very weak and the theater is virtually not operating. He, on such ground, requested that rate of interest may be reduced. 22.1 After discussion with the petitioner, learned advocate for the petitioner submitted that the rate of interest may be restricted upto 6% and award may be accordingly modified. 22.2 Therefore, the impugned order is modified and following order is passed: a. The petitioner will pay Rs. 94,000/- as principal amount for the period from 1989 to December, 1996. b. The petitioner shall pay said amount of Rs. 94,000/- with interest at the rate of 6%, from the date of award till the date of actual payment. 23. With the aforesaid modification, the petition is partly allowed and is accordingly disposed of. Rule is made absolute to the aforesaid extent.