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2018 DIGILAW 17 (UTT)

Divya Pharmacy v. State of Uttarakhand

2018-01-08

K.M.JOSEPH, U.C.DHYANI

body2018
JUDGMENT : K.M. JOSEPH, J. : Appellant is the writ petitioner. The writ petition was filed seeking to quash orders dated 26.05.2014 (Annexure No. 1) and 31.05.2014 (Annexure No. 2). These orders were passed by the third respondent, who is the Assistant Labour Commissioner, Haridwar. A direction was also sought to the third respondent to verify the facts as directed by the Apex Court in its true spirit and meaning. 2. Briefly put, the case of the writ petitioner is as follows: On 21.05.2005, the alleged settlement was arrived at between the parties, namely, the appellant and the workers represented by the Union. Annexure No. 3 is the settlement. It was, inter alia, agreed upon, going by the terms of the settlement, that the workmen would be paid the salary for the month of April, 2005 and the status as on 01.05.2005 will be resumed in the establishment. The employees were to end their agitation and were to maintain discipline in the establishment. Suffice it to say that the matter reached the Apex Court in the form of a challenge by the writ petitioner to the settlement. However, the Apex Court disposed of the same in the light of the willingness shown by the writ petitioner to abide by the settlement. The following is the order passed by the Apex Court: “Leave granted. Without going into the question of law, it has been submitted by the learned senior counsel appearing for the appellant that the employer is ready and willing to abide by the settlement, but the workmen with whom the employer had arrived at the settlement are no more in service, therefore, implementation of the settlement is difficult. In these circumstances, the learned counsel for the Union has submitted that he will check the list in presence of the District Labour Officer (DLO) so that those persons, who are in service, can be given the benefit of the settlement. In view of the above, it is directed that the aforesaid facts shall be examined in presence of the DLO and those who are in service shall be given the benefit of the settlement. In view of the above observations and directions, the Civil Appeals are disposed of with no order as to costs. The question of law is kept open. In view of the above observations and directions, the Civil Appeals are disposed of with no order as to costs. The question of law is kept open. The period of Notification under which the matter had been settled in Form III-A of the U.P. Industrial Disputes Rules is extended for a period of six months from today.” It is following this, apparently, that the present controversy has arisen. 3. The complaint of the writ petitioner appears to have been that 93 persons have been counted by the third respondent as persons entitled to the benefit of the settlement. The short controversy, which is sought to be raised by the writ petitioner, is that the third respondent has failed to consider the Apex Court’s order in its true spirit. Expatiating on true spirit, apparently, support is sought to be drawn from the second paragraph of the order, which we have quoted, namely, that it was the bounden duty of the third respondent to ascertain whether the employees were in service. This mandate was observed in its breach by the Assistant Labour Commissioner. This is the complaint, which was projected by the writ petitioner. 4. The learned Single Judge dismissed the writ petition. Hence, the appeal 5. We have heard Mr. S.K. Agarwal, learned Senior Counsel assisted by Mr. Sanjay K. Shandilya, learned counsel appearing on behalf of the appellant / writ petitioner. We have also heard Mr. Pankaj Miglani, learned counsel for respondent No. 4; besides Mr. Narain Dutt, learned Brief Holder appearing for the State. 6. The learned Senior Counsel for the writ petitioner would reiterate that the order passed by the Apex Court makes it clear that there is a duty on the part of the Assistant Labour Commissioner to not just count the heads; but to find out whether they are actually in service and this is not being done. 7. Mr. Pankaj Miglani, learned counsel appearing for respondent No. 4 would point out that though, on three occasions, opportunity was given, the writ petitioner did not turn-up. It is pointed out that there were 115 workers, who were entitled to the benefit of the settlement, out of which, 93 turned-up and 3 were found dead. Learned Brief Holder for the State also reiterated the same stand. 8. It is pointed out that there were 115 workers, who were entitled to the benefit of the settlement, out of which, 93 turned-up and 3 were found dead. Learned Brief Holder for the State also reiterated the same stand. 8. The learned Senior Counsel for the writ petitioner would, in fact, point out that there was an interim order passed by the learned Single Judge at the time when the writ petition was admitted. The same reads as follows: “Mr. S.K. Agarwal, Senior Advocate assisted by Mr. G.K. Verma, Advocate for the petitioner Mr. S.S. Chauhan, Deputy Advocate General for the State/respondent Nos. 1, 2 & 3. Mr. S.K. Agarwal, learned Senior Counsel appearing for the petitioner, submits that Hon’ble Apex Court vide order dated 26.11.2013, Annexure No. 12 to the writ petition, has observed that settlement shall be implemented only for those workmen, who are still in service; it has further been held by Hon’ble Apex Court that list of the workmen still in service shall be checked in the presence of District Labour Officer. Mr. S.K. Agarwal, learned Senior Counsel for the petitioner, submits that instead of checking and finalizing the list of the workmen, who are still in Service, to whom benefit of settlement shall be given, Deputy Labour Commissioner vide orders impugned directed the petitioner to extend the benefit of the settlement in favour of all 93 workmen and in favour of legal heir of 3 dead workmen. Issue notice to respondent no. 4 by Registered Post AD in addition to normal mode of service. Mr. S.S. Chauhan, Deputy Advocate General, appearing for respondent Nos. 1, 2 & 3, seeks and is granted three weeks’ time to file counter affidavit. Meanwhile, operation and effect of the impugned orders dated 26.05.2014 and 31.05.2014 shall remain stayed. However, it is provided that Deputy Labour Commissioner shall finalize the list of the workmen still in service and to do the needful as held by Hon’ble Apex Court in the order, Annexure No. 12 to the writ petition. CLMA No. 7776 of 2014 stands disposed of accordingly.” 9. Learned Senior Counsel would submit that, in terms of the last paragraph of the said order, the matter has not been re-done. CLMA No. 7776 of 2014 stands disposed of accordingly.” 9. Learned Senior Counsel would submit that, in terms of the last paragraph of the said order, the matter has not been re-done. He would further submit that, irrespective of whether the writ petitioner turned-up at the office of the Assistant Labour Commissioner, the duty of the third respondent remained the same, namely, it was incumbent upon him to not merely do a physical head count, but also to find out whether they were actually in service. 10. We have already referred to the settlement. The settlement dates back to the year 2005. There is no specific case for the writ petitioner that the 93 persons, who have been verified by the Assistant Labour Commissioner, were not working in the establishment. According to Mr. Pankaj Miglani, even the three dead persons had been working at the relevant time. This, in our view, may go to the root of the writ petitioner’s case; in that, it fatally affects its case. We further notice that the writ petitioner also did not participate despite opportunity being given. We do not think that any blame can be laid at the doorstep of the Assistant Labour Commissioner and we see no reason to interfere with the judgment passed by the learned Single Judge. 11. The argument that there was an interim order, which was not complied with, also does not appeal to us. Though it may be true that the said order has not been, as such, complied with, yet the interim order would merge in the final order and, once a decision is taken, if on it’s own right, the judgment of the learned Single Judge is to be sustained, then we would only do so and we do so. 12. Accordingly, the appeal fails and it is dismissed. No order as to costs.