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2019 DIGILAW 119 (HP)

Mohan Lal v. Union Of India

2019-01-09

AJAY MOHAN GOEL, SURYA KANT

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JUDGMENT Surya Kant, C J. (Oral) - The petitioner has filed the instant writ petition seeking directions for grant of following reliefs:- "a. Direct the respondents to award the bonus due to the petitioner since 2014 under the Payment of Bonus Act and the tenders, along with interest; b. Direct the respondents to award the arrears/ unpaid salary, EPF and other dues to the petitioner along with interest; c. Direct the respondents to prohibit unfair labour practice in the establishment by ending arbitrary break in service of the petitioner; d. Direct the respondent to end break in service of the petitioner and hire him back at work; e. Direct the respondents to abolish contract labour under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 for manpower services in IIT Mandi and appoint petitioner on a regular basis; f. Direct the respondents to register an FIR and investigate into the demand of bribe by the officials at IIT Mandi;" 2. It appears from the averments made in the writ petition that Indian Institute of Technology, Mandi, has been exempted under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and consequently, it engages manpower for different works through Outsourcing Agency, some of whom have been impleaded as respondents No. 5 to 7. It further appears from the averments that the petitioner was also engaged to work as a Labourer in the Horticulture Department of IIT Mandi through the Outsourcing Agency in the year 2014. From the averments, it is also revealed that the annual contract of providing manpower has been exchanging hands, but the petitioner has remained employed through one or the other Outsourcing Agency. As the petitioner appears to have not been paid bonus in accordance with the provisions of the Payment of Bonus Act, 1965, he made a complaint to the Authorities, including the Labour Commissioner (Central), Chandigarh. During the course of conciliation proceedings held between the petitioner and the IIT Mandi/its Outsourcing Agency, the petitioner was advised on 11.09.2018 (Annexure P-15) to raise a formal "industrial dispute'' against non-payment of the bonus, however, he opted to withdraw the complaint to pursue the matter before "another Authority". 3. Thereafter, the instant writ petition has been filed seeking the reliefs as reproduced above. 4. 3. Thereafter, the instant writ petition has been filed seeking the reliefs as reproduced above. 4. It goes without saying that the Payment of Bonus Act, 1965, is a complete Code in itself and in the event of failure of the employer to pay bonus, an effective mechanism for the recovery thereof has been provided. In the event of any dispute, section 22 of the Payment of Bonus Act, 1965, provides that the dispute raised by an employee Re: nonpayment of bonus "shall be deemed to be an industrial dispute within the meaning of Industrial Disputes Act, 1947.....". Regardless of this provision, the petitioner has a misconception in his mind that he requires the banner of a Trade Union to raise the dispute. In our considered view, no Trade Union is required for the petitioner to seek payment of bonus, to which he might be entitled to, under the provisions of Payment of Bonus Act, 1965. To say it differently, once the petitioner has moved an application before the competent Authority for the release of bonus and, if any dispute has arisen thereto, it shall be deemed to be an "industrial dispute'' within the meaning of Industrial Disputes Act, 1947 and has to be adjudicated by the Industrial Tribunal-cum-Labour Court, in accordance with law. 5. Be that as it may, the withdrawal of earlier complaint by the petitioner would not deprive him to raise such dispute so long as the alleged due amount of bonus is not paid to him. 6. At this stage, we may also take notice of another grievance raised orally on behalf of the petitioner. It is argued by his Counsel that the petitioner is a poor person and is not in a position to engage counsel to raise or pursue the industrial dispute. We see no merit in this plea also. The Parliament being conscious of the fact that there are poor, marginalized and deprived sections of Society, who are unable to seek enforcement of their rights, on account of financial disabilities, has enacted the Legal Services Authorities Act, 1987. It is the statutory obligation of the State/District Legal Services Authority, which includes the High Court Legal Services Committee, to provide meaningful, effective and timely free legal aid to a poor person to seek enforcement of his fundamental, statutory, legal or human rights. It is the statutory obligation of the State/District Legal Services Authority, which includes the High Court Legal Services Committee, to provide meaningful, effective and timely free legal aid to a poor person to seek enforcement of his fundamental, statutory, legal or human rights. The petitioner, who is working as a labourer, is surely entitled to the benefit under the aforesaid Legislation. 7. The petitioner however cannot be granted the status of a direct employee of IIT Mandi as it is a pure question of fact which can only be established on lifting the veil with the appreciation of evidence to be led by the parties. Nothing precludes the petitioner to raise a comprehensive industrial dispute, including the alleged unfair labour practice, if any, being practised by the principal employer and establish his claim as espoused in the writ petition. 8. Nothing precludes the petitioner to raise a comprehensive industrial dispute, including the alleged unfair labour practice, if any, being practised by the principal employer and establish his claim as espoused in the writ petition. 8. The writ petition is accordingly disposed of with the following directions:- (i) The petitioner may submit an application for the release of bonus to the Outsourcing Agency with a copy to IIT Mandi and the Labour Commissioner (Central), Chandigarh-cum- "Appropriate Government", with full particulars of the period for which he is entitled to be paid bonus; (ii) The Labour Commissioner (Central), Chandigarh-cum-"Appropriate Government", will seek a report as to whether or not the petitioner is entitled to be paid any bonus and if so, whether such amount is paid to him or not; (iii) The claim of the petitioner Re: payment of bonus shall be decided by the Outsourcing Agency or IIT, Mandi, as the case may be, within a period of two months from the date of receipt of the application; (iv) In case, the Appropriate Government finds that there is a dispute Re: payment of bonus, the same shall refer to the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, in terms of section 22 of the Payment of Bonus Act, 1965; (v) In the event of dispute, the Appropriate Government shall treat the same as an "industrial dispute'' within the meaning of the Industrial Disputes Act, 1947 and refer the same for adjudication in the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, within a period of one month thereafter; (vi) The Appropriate Government shall inform the petitioner in writing regarding reference, if any, made to the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh; (vii) On receipt of the intimation, the petitioner may approach the Member Secretary U.T. Legal Service Authority, Chandigarh, who in turn, shall provide services of a competent Lawyer, expert in Labour Laws, as a free Legal Aid Counsel to the petitioner; and (viii) The industrial dispute, if arises for adjudication, shall be decided by the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, expeditiously and in accordance with law. 9. With the aforementioned observations/directions, the writ petition stands disposed of, so also pending miscellaneous application(s), if any.