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Madhya Pradesh High Court · body

2018 DIGILAW 1028 (MP)

MADAN SINGH DAWAR v. LABOUR COMMISSIONER M. P.

2018-12-17

VIVEK RUSIA

body2018
JUDGMENT Vivek Rusia, J. 1. Heard. 2. The petitioner has filed the present petition being aggrieved by order dated 23.10.2017 by which the Labour Commissioner, Indore, has granted permission for prosecution under Section 29 of the Industrial Disputes Act, 1947 (herein after referred as 'I.D. Act'), due to non-compliance of award dated 26.08.2016, passed in Case No.39/2015 by Labour Court, Indore. 3. Facts of the case in short are as under :- Madhya Pradesh Dainik Vetan Bhogi Karmchari Sangh, Water Resources Development, Indore, through its Secretary (First Party), raised the Industrial dispute before the Labour Court in respect of classification of 59 daily wagers as permanent employees with pay-scale and other benefit. The said dispute was raised against Chief Engineer, Water Resources Department Kachhar, Old Palasia, Indore (second party). That vide award dated 7.10.2005 Ld. Labour court has answered the reference in favour of First Party by direction second party to treat the members of the union as permanent employee, as per order dated 18.06.2002 and pay them salary of permanent employee and other benefits. 4. Thereafter, one respondent No.2 filed an application under Section 33(c)(2) of I.D. Act, claiming the arrears of pay Rs. 1,93,992/- along with the interest payable from 1.06.2002 to 31.12.2005. In compliance of award dated 7.10.2005, passed in ...2... Case No.40/2002, the Chief Engineer WRD has classified the respondent No.2 and 36 daily rated employees as permanent employee in work charge establishment in a minimum pay-scale. The respondent No.2 has been posted in Pench Project, District Chindwada by the same order. The respondent No.2 filed an application under Section 33(c)(2) of the ID Act, before the Labour Court claiming arrears of salary and other consequential benefits to the tune of Rs. 1,93,292/-.By order dated 22.11.2013, the application was allowed and petitioner Chief Engineer WRD was directed to pay the amount of Rs. 1,93,292/-, within a period of 90 days, as arrears of salary from 01.06.2002 to 31.12.2005. 5. Thereafter, again the respondent No.2 filed an application under Section 33(c)(2) of the ID Act, claiming arrears of salary and other consequential benefits to the tune of Rs. 6,54,000/- from the petitioner Chief Engineer WRD. 1,93,292/-, within a period of 90 days, as arrears of salary from 01.06.2002 to 31.12.2005. 5. Thereafter, again the respondent No.2 filed an application under Section 33(c)(2) of the ID Act, claiming arrears of salary and other consequential benefits to the tune of Rs. 6,54,000/- from the petitioner Chief Engineer WRD. By order dated 26.08.2016, the application has again been allowed by directing the second party, i.e., Chief Engineer to pay the arrears from 01.01.2006 to 31.12.2012, including HRA and annual increment, within a period of 45 days, failing which the same shall carry the interest @ of 9% 6. By order dated 14.09.2016, the Executing Engineer, Pench Divergent Project Chindhwada, has granted sanction for payment of Rs. 98,655/- as an arrears payable from 1.06.2002 to 31.12.2005. Thereafter, the Executive Engineer has again calculated Rs. 3,67,781.00/- payable from 1.1.2006 to 31.12.2016 in compliance of the order dated 26.08.2016 and paid to the respondent No.2. 7. The respondent No.2 filed an application before the Labour Commissioner, Indore, seeking the prosecution of the present petitioner for non-compliance of the order dated 26.08.2016, passed by the Labour Court in Case No.39/ID(2015) . According to him, the present petitioner has not paid the benefit of increment, HRA along with the arrears of salary in compliance of the award dated 26.8.2016. A show cause notice was issued to the petitioner who submitted the detailed reply on 21.2.2017 and 16.05.2017. It has been contended that in compliance of the award dated 7.10.2005, the respondent No.2 has been classified as permanent employee in a minimum pay-scale and accordingly, the difference of wages has been paid. He is not entitled for increment and HRA, therefore, the demand of prosecution is unreasonable and liable to be rejected. By order dated 23.10.2017, the Labour Commissioner has held that the order passed by the Labour Court has not been complied fully, which is binding under Section 18 of the ID Act. Hence, granted the permission for prosecution. Being aggrieved by the aforesaid order, the petitioner has filed the present petition. 8. By order dated 1.12.2017, while issuing the notice to the respondents, this court has stayed the operation of the order dated 23.10.2017. 9. After notice, the respondent No.2 has filed the return by submitting that against the award dated 7.10.2005, the Writ Petition No.1088/2006, was filed by the State Government and that has been dismissed by order dated 9.2.2010. 8. By order dated 1.12.2017, while issuing the notice to the respondents, this court has stayed the operation of the order dated 23.10.2017. 9. After notice, the respondent No.2 has filed the return by submitting that against the award dated 7.10.2005, the Writ Petition No.1088/2006, was filed by the State Government and that has been dismissed by order dated 9.2.2010. Thereafter, the said order was assailed in the writ appeal and that too has been dismissed. Thereafter, SLP No.9191/2011, was filed and the same has been dismissed vide order dated 5.7.2011. The State Government has also challenged the order dated 22.11.2013 passed under Section 33(c)(2) of ID Act by the Labour Court by way of Writ Petition No.3543/2014 and that has been dismissed vide order dated 25.3.2015. Neither the petitioner nor the State Government have challenged the order dated 26.08.2016, passed by the Labour Court, therefore, the same has attained finality. Admittedly, the respondent No.2 has not been paid increment HRA and annual increments etc.. Hence, the order dated 26.8.2016, has not been complied with in entirety. Hence, the respondent No.1 has rightly directed for prosecution. 10. Shri Prateek Patwardhan, Advocate for the petitioner urged that the Labour Court vide award dated 7.10.2005 has only directed to classify the daily rated employee as permanent employee and pay them a minimum pay-scale. The said order has been complied with. The respondent No.2 including the other daily rated employees have been classified as permanent employees in work charge establishment and they are being paid minimum pay-scale Rs. 5200 G.P. 1900 and DA Rs. 2485. They have also been paid the arrears of the salary from the date of order of award of Labour Court. By order dated 26.08.2016, the Labour Court has travelled beyond its jurisdiction by directing the payment of increment and HRA, which was not the part of the order dated 7.10.2005. In view of the law laid down by the Apex Court in the case of Ram Naresh Rawat v. Ashwini Ray & Others, (2017) 3 SCC 436 has held that the daily rated employee classified as permanent employee in pursuance to the order passed by the Labour Court, affirmed by the Superior Court are entitled to pay the scale of permanent post from the date specified in the award. They are entitled to receive only minimum pay-scale with no increment. They are entitled to receive only minimum pay-scale with no increment. Only regularisation in service would entitle grant of increment. He further submitted that the respondent No.2 has rightly been paid the minimum pay scale with grade pay and DA in light of the judgment passed by the Apex Court. He cannot claim the increment like permanent and regular Government employees. 11. He further stressed that the present petitioner is posted at Indore, whereas the respondent no.2 has been transferred to Chindwada, therefore, the present petitioner is not competent authority to comply the award. The learned Labour Commissioner did not consider this fact and directed for the prosecution. 12. Per contra, Shri A.K. Sethi, learned Senior counsel for the respondent No.2 has countered the above arguments by submitting that the present petitioner was a party before the Labour Court in a reference case as well as in a proceeding under Section 33 (c)(2) of ID Act, therefore, it was incumbent upon the respondent No.2 to initiate the proceeding for prosecution against the present petitioner. Even otherwise, when the arrears were paid, the petitioner has obtained the sanction from the Bhopal. He has further submitted that the order passed by the Labour Court on 7.10.2005, 22.11.2013 and 26.08.2016, have not been fully complied with so far. Therefore, the Labour Commissioner has not committed any error of law while directing the prosecution. The award dated 7.10.2005 and 22.11.2013 have been affirmed by this court as well as by the Apex Court as the writ petition liable to be dismissed. Even if the petitioner is having the case on merit, he can appear before the Labour court and submit his defence to save himself from the punishment. The petition is devoid of merit and is liable to be dismissed. 13. The Madhya Pradesh Dainik Vetan Bhogi Karmchari Sangh espoused the dispute of the respondent No.2 and other 58 daily rated employees, seeking classification as a permanent employee. By award dated 7.10.2005, the Labour Court has directed for classification as a permanent employee and pay them minimum wages in compliance of order dated 18.06.2002. The operative part is reproduced below :- 14. In compliance to the aforesaid order, the Water Resources Department vide order dated 11.12.2013 has classified them as permanent employee in the minimum pay-scale in work charge establishment. The operative part is reproduced below :- 14. In compliance to the aforesaid order, the Water Resources Department vide order dated 11.12.2013 has classified them as permanent employee in the minimum pay-scale in work charge establishment. The said order has not been challenged by the Union as well as by the respondent No.2. Despite the acceptance of the aforesaid order, the respondent No.2 alone has filed the application under Section 33(c)(2) of the ID Act, claiming the arrears of wages payable from 1.06.2002 to 31.12.2005. Although, the Labour Court vide order dated 22.11.2013 has allowed the application directing the payment of arrears of wages. In this order there was no reference or direction of payment of increment or HRA to him. Thereafter again he filed an application under section 33(c)(2) of ID Act, claiming the amount of Rs. 6,94,000/- from 1.06.2002 to 31.12.2005. At this stage, he claimed that he is entitled for HRA and annual increment over and above minimum pay-scale. The Labour Court vide award dated 26.8.2016, has directed the petitioner to pay the difference of wages including HRA and annual increment. Para 14 is reproduced below :- 15. The Executing Engineer Pench Divergent Project Canal Division Chorrai has calculated the amount of Rs. 3,67,781/- payable from 1.01.2006 to 31.12.2006 and paid to him. He has been paid the minimum pay-scale on grade pay and DA w.e.f. (September 2008). The similar controversy came up before the Apex Court in the case of Ram Naresh Rawat v. Ashwini Ray & Others, (supra) in which the Apex Court has specifically held that the daily rated employee who has been classified as permanent employees are entitled for minimum wages and allowance as per the fixed schedule of the pay-scale, without increment. Only after regularisation of their service as per seniority and rules, they can claim the benefit of increment and other benefits. Para 23, 24, 25, 26 and 27 are relevant which reads as under :- 23. A direct judgment on the subject is State of M.P. & Ors. v. Lalit Kumar Verma wherein it was held that a workman would be entitled to classification as permanent or temporary employee if the conditions precedent are satisfied. It was held that the respondent was not appointed against the clear vacancy, he was not appointed in a permanent post or placed on probation. v. Lalit Kumar Verma wherein it was held that a workman would be entitled to classification as permanent or temporary employee if the conditions precedent are satisfied. It was held that the respondent was not appointed against the clear vacancy, he was not appointed in a permanent post or placed on probation. This Court, thus, held that working on daily wages alone would not entitle him to the status of permanent employee. Para 7 of this judgment needs to be looked into. "7. A workman, therefore, would be entitled to classification of permanent or temporary employee, if the conditions precedent therefor are satisfied. The respondent was not appointed against a clear vacancy. He was not appointed in a permanent post or placed on probation. He had also not been given a ticket of permanent employee. Working on daily wages alone would not entitle him to the status of a permanent employee." It is, thus, somewhat puzzling as to whether the employee, on getting the designation of 'permanent employee' can be treated as 'regular' employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance, normally, a person who is known as 'permanent employee' would be treated as a regular employee but it does not appear to be exactly that kind of situation in the instant case when we find that merely after completing six months' service an employee gets right to be treated as 'permanent employee'. Moreover, this Court has, as would be noticed now, drawn a distinction between 'permanent employee' and 'regular employee'. 24. It is, thus, somewhat puzzling as to whether the employee, on getting the designation of 'permanent employee' can be treated as 'regular' employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance, normally, a person who is known as 'permanent employee' would be treated as a regular employee but it does not appear to be exactly that kind of situation in the instant case when we find that merely after completing six months' service an employee gets right to be treated as 'permanent employee'. Moreover, this Court has, as would be noticed now, drawn a distinction between 'permanent employee' and 'regular employee'. 25. Moreover, this Court has, as would be noticed now, drawn a distinction between 'permanent employee' and 'regular employee'. 25. We may mention, at this stage that this aspect has come up for consideration, in another context, in State of Madhya Pradesh and Others v. Dilip Singh Patel and Others. That was a case where similarly situated employees, who were classified as 'permanent employees' under the Standing Orders Act, were given minimum of the pay-scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof were not extended to these employees. High Court held that they would be entitled to have their pay fixed as per the revised scales in accordance with the recommendations of Sixth Pay Commission which were accepted qua regular employees. This Court, though, upheld the orders of the High Court giving them the benefit of revision of pay-scale pertained to Sixth Pay Commission, but at the same time made it clear that they would be entitled to minimum salary and allowances as per the said revised scales and would not be entitled to any increments. It was further held that such increments would be admissible only after regularisation of their services which regularisation was to take place as per the seniority list with due procedure. Following passage from the said judgment, which captures the aforesaid directions, is quoted hereunder: From the aforesaid facts, it is clear that the respondents are entitled for minimum wages and allowance as per the fixed Schedule of the pay scale but without any increment. In such case, if the pay scale is revised from time to time including the pay scale as revised pursuant to Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per the said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits. 26. From the aforesaid facts, it is clear that the respondents are entitled for minimum wages and allowance as per the fixed Schedule of the pay scale but without any increment. In such case, if the pay scale is revised from time to time including the pay-scale as revised pursuant to Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per the said revised scale without increment. In such case, if the pay scale is revised from time to time including the pay-scale as revised pursuant to Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per the said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits." From the aforesaid, it follows that though a 'permanent employee' has right to receive pay in the graded pay-scale, at the same time, he would be getting only minimum of the said pay-scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay-scale. 27. In view of the aforesaid, we do not find any substance in the contentions raised by the petitioners in these contempt petitions. We are conscious of the fact that in some cases, on earlier occasions, the State Government while fixing the pay scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. 16. It is not in dispute that the respondent No.2 has been paid wages as per the minimum pay-scale with DA and without increment. In award dated 7.10.2005 as well as 22.11.2013, there was no direction for payment of increment and HRA. First time the Labour court has passed the award dated 26.8.2016 that too under the provisions of Section 33(2)(c) directing the petitioner to pay the increment and HRA. 17. It is settled law that the scope of 33(c)(2) is very limited. The Apex Court in the case of Central Inland Water Transport Corporation Ltd. v. The Workmen & Anr., reported as (1974) 4 SCC 696 has observed thus in para 11 and 12 which reds as under :- 11. The only question which arises for determination in this Court is whether the Labour Court has jurisdiction to adjudicate on the issues referred to it under section 33 (C) (2) of the Industrial Disputes Act. The only question which arises for determination in this Court is whether the Labour Court has jurisdiction to adjudicate on the issues referred to it under section 33 (C) (2) of the Industrial Disputes Act. Sub-section(2), which is part of section 33C dealing with "the recovery of money due from an employer" reads as follows "(2) Where any work-man is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government." 12. It is now well-settled that a proceeding under section 33(C)(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In (Thief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors. it was reiterated that proceedings under section 33(C)(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the Position of an executing court. It was also reiterated that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer." 18. In the case of P.K. Singh & Others. v. Presiding Officer & Ors., reported as (1988) 3 SCC 457 the Apex Court as observed thus in para 4 which reads as under :- "The above provision came up for consideration before this Court A in the Central Bank of India Ltd. v. P.S. Rajagopalan etc., [1964] 3 S.C.R. 140. In the case of P.K. Singh & Others. v. Presiding Officer & Ors., reported as (1988) 3 SCC 457 the Apex Court as observed thus in para 4 which reads as under :- "The above provision came up for consideration before this Court A in the Central Bank of India Ltd. v. P.S. Rajagopalan etc., [1964] 3 S.C.R. 140. At pages 150-151 of the said Report this Court observed thus: - "The Legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted section 33-A in the Act in 1950 and added section 33-C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to section 10(1) of the Act, or without having to depend upon their Union to espouse their cause. Therefore, in construing section 33-C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of section 33-C cases which would fall under section 10(1). Where industrial disputes arise between employees acting collectively 'and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under section 10(1). These disputes cannot be brought within the purview of section 33-C. Similarly, having regard to the fact that the policy of the Legislature in enacting section 33-C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. In other words, though in determining the scope of section 33-C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under section 10(1) of the Act for instance, cannot be brought within the scope of section 33-C." 19. The Apex Court in the case of Reserve Bank of India. v. Bhopal Singh Panchal., reported as (1994) 1 SCC 541 as observed thus in para 4, 14 and 16 which reads as under :- 4. The Apex Court in the case of Reserve Bank of India. v. Bhopal Singh Panchal., reported as (1994) 1 SCC 541 as observed thus in para 4, 14 and 16 which reads as under :- 4. Thereafter, the employee filed the present application before the Central Government Labour Court under Section 33- C(2) of the Industrial Disputes Act (hereinafter referred to as the 'Act') claiming difference in the amount paid to him as subsistence allowance during the period of suspension from September 18, 1974 till the date of his dismissal, viz., April 28, 1977 and full pay and allowances which, according to him, were payable for the said period. He further claimed that he was entitled to increments during the period he was under suspension and prayed for arrears of salary on that account also. He also claimed that his pay on reinstatement had to be fixed taking into account the increments earned by him between the date of his suspension and dismissal. Thus the employee claimed Rs 34,742.75 in all as shown by him in his application. 14..............However, since the Bank has already implemented the award, the only question that falls for our consideration in the present application under Section 33-C(2) of the Act is whether the period from the date of suspension, i.e. September 18, 1974 till the order of dismissal, i.e. April 28, 1977 is entitled to be treated as a period on duty with full pay and allowances. 16. Further, the Labour Court while acting under Section 33-C(2) of the Act had no jurisdiction to decide the said question. Since the Labour Court in the present case took upon itself the task of deciding the said question, it clearly exceeded its jurisdiction. The order of the Labour Court is, therefore, liable to be set aside. 20. The Apex Court has also held that the workman cannot put forward the new claim in an application under Section 33(c)(2) of ID Act because the labour court acts as executing court. The Apex Court has held that the application under Section 33 (c)(2) of the ID Act is maintainable only when workman right has been established in a proceeding under section 10 of ID Act. The Apex Court has held that the application under Section 33 (c)(2) of the ID Act is maintainable only when workman right has been established in a proceeding under section 10 of ID Act. In the case of Ram Naresh Rawat v. Ashwini Ray & Others, (supra), the Apex Court has held that the employee who have classified as permanent employees are not entitled for the increment and other benefit like regular employee. Hence, the right of the respondent No.2 to claim the annual increment and HRA has not been established by the Labour Court in proceeding under Section 10 of the ID Act, therefore, the impugned order passed by the Labour Commissioner - respondent No.1 is unsustainable in law and liable to be set aside. Hence the same is set aside. 21. The petition is allowed. 22. No orders as to cost.