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Himachal Pradesh High Court · body

2019 DIGILAW 979 (HP)

Renu Baljee v. Shiv Charan

2019-07-18

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, Judge These three applications are being decided together by this common order, as question of interpretation of terms and conditions of one and the same compromise is involved therein. 2. It is undisputed that this Court is not the =Court of first instance' in present matter and thus is not an Executing Court. Alive to such fact, learned counsel for the parties have submitted that these applications be not treated as applications filed for execution of order/ final judgment, passed by this Court, on the basis of compromise arrived at between the parties, terms and conditions whereof have also been made part of final judgment, but the applications are to be treated to have been filed for interpretation of terms and conditions, as some confusion has arisen between the parties as also between the tenant- employer and their workers/staff, with reference to certain clauses of the compromise, especially clause (l) of the terms and conditions of the compromise, which has resulted into obstruction in complying with the final judgment in the matter, despite willingness and readiness of parties to comply with and in these extraordinary unavoidable circumstances parties have approached this Court as it would not be possible for any other Court/forum to interpret the essence and meaning of terms and conditions of compromise contained in final judgment passed by this Court. 3. CMP No.6377 of 2019 has been preferred by Landlords, wherein referring the condition of transfer of vacant and peaceful possession of the premises in question on or before 15.7.2019, interference of this Court has been called for to explain the meaning of ?vacant and peaceful possession? inclusive of the transfer of basic amenities, like water and electricity connections by the tenants in the name of the Landlords, instead of surrendering/disconnecting the same for disconnection. 4. inclusive of the transfer of basic amenities, like water and electricity connections by the tenants in the name of the Landlords, instead of surrendering/disconnecting the same for disconnection. 4. During the course of hearing, it is submitted by learned counsel for the Landlords and Tenants that misunderstanding with regard to transfer of vacant and peaceful possession of premises stands clarified between the landlords and tenants and, as such, tenants have agreed and undertaken to facilitate the transfer of water and electricity connections by extending all kind of necessary help on the part of tenants, and landlords and tenants have arrived at mutual agreement to sort out the misunderstanding arising between them with respect to interpretation and implementation of terms and conditions of compromise, which has resulted into filing of CMP No.6377 of 2019. In view of these submissions by the contesting parties, with respect to subject matter of this application, nothing survives to be adjudicated. 5. CMP No.6479 of 2019 has been preferred by tenants, stating therein that tenants are ready and willing to handover vacant and peaceful possession of the premises to the landlords, but staff of erstwhile Baljees Restaurant and Fascination, earlier being run by the tenants in the premises, is occupying the premises and causing obstruction in removing the articles belonging to the tenants, resultantly disabling them to handover the vacant and peaceful possession of the premises to the landlords. It is further contended in the application that despite reporting the matter to the Administration, including the Police, no help is being extended to the tenants to protect their legal rights so as to facilitate them to comply with the terms and conditions agreed between the parties, which are part of the final judgment passed by this Court. It is further stated that the major amount, which was payable to the staff and workers, stands paid and balance amount, of ten days salary of month of July 2019 and leave encashment, etc., which is due as per calculations of the tenants-employer, shall also be paid on or before 20.7.2019, regarding which tenants employer have already given undertaking to the Labour Officer, who is exercising the power under the Industrial Disputes Act, on the complaint/application preferred by the workers/employees. Commitment of tenants-employer to pay the said amount on or before 20.7.2019 has also been reasserted. Commitment of tenants-employer to pay the said amount on or before 20.7.2019 has also been reasserted. It is also submitted that as for inaction of administration and action of workers/staff, handover of possession of premises being delayed and there being possibility of damage to the property, key of the premises be retained in the Court or be ordered to be handed over to the Police. 6. CMP No.6478 of 2019 has been preferred by the workers/staff of the erstwhile Baljees Restaurant and Fascination for direction to the tenants-employer to make all payments with respect to liability towards workers before handing over the vacant and peaceful possession to the landlords. The applicants have submitted that the workers/staff derive right to claim payment of all dues, on or before 15.7.2019, from Clause (l) of the terms and conditions of the final judgment, passed by this Court and, therefore, unless the dues claimed by the workers/staff with respect to their retrenchment, gratuity, bonus, etc. are not cleared by the tenants-employer, the premises cannot be permitted to be handed over to landlord, as the tenants-employers themselves have undertaken in clause (l) of the terms and conditions of the compromise not to create any liability on the landlords with respect to dues payable to the workers/ staff. 7. Learned counsel for applicants has also submitted that workers/staff has every right to take all necessary steps for protecting their rights with regard to dues payable to them, in accordance with law, and shall follow the course for asserting their rights, which is available to them under law and they shall not take the law in their hands. 8. 7. Learned counsel for applicants has also submitted that workers/staff has every right to take all necessary steps for protecting their rights with regard to dues payable to them, in accordance with law, and shall follow the course for asserting their rights, which is available to them under law and they shall not take the law in their hands. 8. Learned counsel for the tenants, relying upon the averments made in CMP No.6479 of 2019 and referring to documents filed therein, and also Clause (l) of the compromise, has contended that Clause (l) is a settlement between the landlords and tenants, wherein the tenants have agreed not to pass over their liabilities concerning the business run by them in the premises in question, including the admissible dues of the workers/ staff, upon the landlords and for that reason tenants had issued the notice to the workers/staff, vide letter dated 11.1.2019, intimating handing over of vacant possession to the landlords of the premises on or before 15.7.2019, in terms of order dated 12.7.2018, passed in present Revision Petition No.138 of 2014 and said letter was received by Shri Bhagat Ram, President of Baljees Workers Union, who is also applicant in CMP No.6478 of 2019, however, he had responded to the intimation only on 3.6.2019, asking for payment of certain benefits to the workers and also to adjust them in case of shifting of existing business to any other place in or around Shimla and further that the tenants, in order to pay the admissible dues of workers/staff, had calculated the gratuity payable to the employees, as on 15.7.2019, and had reimbursed the same vide Cheque No.000167 dated 11.7.2019, amounting to Rs.63,51,909/- and also reimbursed the bonus vide Cheque No.497773 dated 11.7.2019, amounting to Rs.6,17,960/-, upto 31.3.2019 for the Financial Year 2018-19, by transferring the same into respective bank accounts of the workers/staff. 9. Learned counsel for the workers has submitted that though the workers/staff have received the payment, but calculation thereof has been made on lower side, including calculation of bonus at the rate of 8.33% instead of 14% and further after removing the articles from premises in question, tenants-employer will not be available in proceedings initiated by workers/staff against them for their various claims. 10. 10. So far as payment of salary of ten days of month of July, 2019 and leave encashment are concerned, learned counsel for the tenants-employer has submitted, as also reiterated, in reply to CMP No.6478 of 2019, that the tenants have already undertaken before the Labour Officer to pay the same by 20.7.2019, with further submission that tenants have again reiterated the commitment to pay the same by 20.7.2019 herein also and further that other claims of the workers/staff are not admissible, in view of the reply filed by tenants-employer before the Labour Officer and has also submtited that in the application filed on behalf of the workers/staff, material fact with regard to pendency of dispute before the Labour Officer has been concealed and, therefore, this application deserves to be dismissed for not approaching the Court with clean hands and further that as tenantsemployer Renu Baljee is permanent resident of Shimla, and is also owner of sufficient property in Shimla, apprehension of workers/staff, that she will flee after handing over of possession of premises in question, is baseless and uncalled. 560 11. Learned counsel for the landlords has submitted that workers/staff of tenants is not party to the Rent Petition, as the dispute is between the tenants and landlords, under the Urban Rent Control Act and, therefore, they were not required to be associated in the case and Clause (l) and the compromise is an arrangement between the tenants and landlords, which does not create any right in favour of the workers/staff to cause hindrance in handing over and taking over of vacant and peaceful possession of the premises. They are already before the authority, i.e. Labour Officer, where their claim is yet to be adjudicated and for dispute between the tenants and their workers, landlords should not be deprived from their legal right. It is also submitted that for any reference in compromise with regard to claims of dues by the tenants, which are payable to their workers/staff, this Court will not assume jurisdiction with respect to a dispute for which appropriate forum under the Industrial Disputes Act is available. It is further submitted that Clause (l) is to be read as a whole for its real meaning and interpretation. 12. It is further submitted that Clause (l) is to be read as a whole for its real meaning and interpretation. 12. In rebuttal, learned counsel for the workers/ staff has submitted that Clause (l) of the compromise deals with the interest of workers/staff, wherein tenants have undertaken not to create any liability upon landlord, with respect to dues payable to workers/staff, with assurance to clear them on or before 15.7.2019 and further the moment the possession of premises will be handed over to the landlords, relation of master and servant between the tenants and workers will come to an end and the workers will be rendered remediless, as the Labour Officer has already refused to interpret Clause (l) in favour of the workers/staff and in these unavoidable circumstances, workers/staff, who are not party and could not have been party to the Rent Petition, have approached this Court, relying upon and having confidence in Clause (l) of the compromise and except this there is no other efficacious remedy available to them. 13. It is undisputed that the compromise, on the basis of which litigation between the landlords and tenants has come to an end, with respect to the premises in issue, is between the landlords and tenants and terms and conditions incorporated therein, are to be read in that context. Undoubtedly, if there is an undertaking for clearance of any liability due towards third party, payable by either of the parties to the compromise, the same has to be cleared by the concerned party. Therefore, Clause (l) of the compromise is to be interpreted within the aforesaid parameters. Clause (l) basically deals with handing over of vacant and peaceful possession of the premises in question by the tenants to the landlords, with condition that tenants have agreed and undertaken to clear off all liabilities, in respect of electricity and water consumption and any other taxes payable by tenants on account of running of business in the premises upto 15.7.2019. In this clause further undertaking has been given by the tenants not to create any kind of business liability, liability in respect of their workers/staff and any other liability till they remained involved in the business activity upto 15.7.2019 and uptill the landlords are put in vacant and peaceful possession of the premises in question. In this clause further undertaking has been given by the tenants not to create any kind of business liability, liability in respect of their workers/staff and any other liability till they remained involved in the business activity upto 15.7.2019 and uptill the landlords are put in vacant and peaceful possession of the premises in question. It means that for all kinds of liabilities accrued upto 15.7.2019, on account of business activity carried on in the premises in question, the tenants shall be liable to clear such liabilities. It does not mean that liability in respect of their workers/staff or any other liability is to be cleared off by 15.7.2019, as this clause contains that liability upto 15.7.2019 or till handing over of possession, is to be borne by the tenants. Though there is no clause for clearance off liability of the workers by 15.7.2019, however, the tenants being employer were expected to clear the same and they have made efforts to clear all liabilities towards workers, which, according to them, were admissible to the workers and part of that liability has been transferred to the bank accounts of the workers and rest amount of salary of ten days of month of July, 2019, alongwith leave encashment, which is admissible according to the tenants, has been undertaken to be paid by 20.7.2019. Rest of the claims of workers/staff are already pending adjudication before the Labour Officer and in case the tenants are found to be liable for payment thereof, they would be legally bound to make the payment thereof or to face consequences in accordance with law. 14. In Clause (l), it is not pre-condition to clear off all dues before handing over of possession, but the assurance of the clause is that all dues for the period upto 15.7.2019 are to be cleared by the tenants and such clearance may be either before 15.7.2019 or thereafter, as and when occasion arises to clear such liabilities, as there may be certain liabilities including the liabilities towards workers/staff, water and electricity which might be determined on a date beyond 15.7.2019 after adjudication of claims and counterclaims by the concerned authorities. Plea and claim of workers, with regard to making payment by the tenants by calculating the amounts on lower side, including the payment of bonus at lower rate, is also one such a dispute which is to be adjudicated by the appropriate authority, in accordance with law and this Court is neither supposed nor competent to determine the same in present proceedings. 15. In any case, dispute between the tenants and their workers does not create any right of workers/staff upon the suit premises, which belongs to the landlords and on account of final judgment passed by this Court, in the Rent Petition between the landlords and tenants, possession thereof was to be handed over to the landlords by tenants by 15.7.2019, failing which the tenants had to suffer the adverse consequences. 16. During hearing, it is also fairly admitted by learned counsel for workers/staff that the workers/staff have no right in the premises in question and thus they are not there for creating any hindrance in transfer of possession of the suit premises to the landlords. 17. Crux of the terms and conditions of the compromise, including Clause (l) is that tenants have undertaken to transfer the premises in question to landlords on 15.7.2019 and to bear all liability arisen before 15.7.2019, on account of running of business in the premises, which also includes liability towards the workers/staff also. Tenants have also taken effective steps to clear the liability towards the workers/staff, which was considered by them admissible to workers/staff and has also undertaken to pay balance claim, which is admissible according to them by 20.7.2019. Though Clause (l) does not prescribe the date for clearing of the liability but it certainly creates obligation on the tenants-employer to clear off all types of liabilities related to the workers/staff, which are admissible according to them and/or which may be determined after adjudication of the claims and counterclaims of the workers and tenants by the concerned authorities, under the relevant law, including the authority under the Industrial Disputes Act. Therefore, in future, if tenants-employer are found liable for making any payment to the workers/staff, the tenants shall be legally bound to clear off the same. 18. Therefore, in future, if tenants-employer are found liable for making any payment to the workers/staff, the tenants shall be legally bound to clear off the same. 18. Plea that after handing over of possession of the premises, the relationship of master and servant between the tenants and their workers shall come to an end is misconceived, as the relationship of master and servant has already come to an end on closure of the business being run by the tenants and for period after closure of business, i.e. 10.7.2019. However, master and servant relation for previous period is not affected by either closure of business or handing over of possession of premises, as the relationship of master and servant has no concern with the handing over of possession of the premises to the landlords and the premises does not belong to the tenants and the relationship of master and servant is not because of the premises but because of running of business by the tenants, which according to the tenants has now been closed for handing over the vacant and peaceful possession of the premises to the landlords. Industrial Disputes Act provides remedy to the workers in such situation also and, therefore, on closure of the business also the workers are not remediless and even otherwise for that reason also workers/staff will not have any charge or right to occupy the premises in question. Rights and liabilities of workers and tenants-employer shall be determined by the appropriate forum, including the competent authority under the Industrial Disputes Act. 19. For non-compliance of the conditions of the compromise, the tenants would have also been liable for punishment under the Contempt of Courts Act. Therefore, tenants have approached this Court for bringing on record the unavoidable circumstances, which have delayed the handing over to the possession of the premises to the landlords on or before 15.7.2019 and have also placed on record various communications made by them to the administration including the Police, for providing adequate police protection to hand over the vacant and peaceful possession of the premises, as the workers/staff alongwith other union leaders had occupied the premises in question. 20. Considering the averments made in the applications of tenants-employer and their workers/staff, this Court had ordered sealing of the premises in question by the SHO, Sadar (Shimla) to avoid any untoward incident and to prevent damage to the property. 20. Considering the averments made in the applications of tenants-employer and their workers/staff, this Court had ordered sealing of the premises in question by the SHO, Sadar (Shimla) to avoid any untoward incident and to prevent damage to the property. Now, and rightly so, the workers/staff have undertaken not take law in their hands and to take recourse of law for redressal of their grievances. Therefore, no purpose is going to be served by continuing the sealing of the premises in question. 21. Tenants were already keen and willing to hand over the possession of the premises to the landlords on 15.7.2019 and are still ready for that and in application also prayer has been made by them for permitting the tenants to deposit the key in the Court on 15.7.2019. 22. The landlords are entitled for possession of the premises on or before 15.7.2019, which has been sealed by the SHO, Sadar (Shimla) on 15.7.2019, by taking possession from the tenants. Therefore, since 15.7.2019, possession from the tenants has been taken over by the Police and, therefore, in such facts and circumstances, it is clarified that in terms of the compromise, tenants shall not be liable to pay any liability, w.e.f. 16.7.2019 and as the tenants have already proposed and agreed to hand over the possession of the premises to the landlords, the SHO, Sadar (Shimla) is directed to hand over the possession to the landlords, certainly in presence of both, i.e. tenant(s) and landlord(s) and landlord(s) shall permit the tenants to remove their articles from the premises in question, within two days or any other extended period mutually agreed between them as no other person, having legal preferential charge on the articles/property in question, has come forward to claim right thereon. All the three applications are disposed of in the aforesaid terms. Authenticated copy to counsel for all applicants and SHO, Sadar (Shimla).