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2022 DIGILAW 1320 (JHR)

JEMCO Ltd. v. Jaspal Singh

2022-11-22

RAJESH KUMAR

body2022
JUDGMENT : 1. Heard learned counsel for the petitioner and learned counsel for the respondent-workman. 2. A detailed order dated 28.08.2019 has been passed in I. A. No.7840 of 2019. The said order is extracted herein below :- “The instant Interlocutory Application has been filed for staying of the further proceeding in M.J. Case No. 01 of 2019, pending before the learned Presiding Officer, Labour Court, Jamshedpur. Present writ petition has been filed for quashing the Award dated 27.05.2017 passed by Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 01 of 2011, whereby reference has been answered in favour of the respondent-workman, correcting his date of birth as 25.01.1954, which has wrongly been recorded as 22.06.1950. It appears that the workman was a permanent employee under the petitioner-company since 1974. He has been retired w.e.f. 01.07.2010. As per respondent-workman, this was premature retirement. Accordingly, industrial dispute has been raised, which has been referred as Reference Case No. 01 of 2011. The terms of reference is as follows:- “Whether the premature termination of the services of Shri Jaspal Singh, workman of M/s. JEMCO Ltd. (A Division of I.S.W.P.), Jamshedpur without rectifying his date of birth is justified? If not what relief he is entitled to?” The Labour Court has framed two issues for deciding the case, which are as follows:- “(1) What is actual date of birth of workman Jaspal Singh? (2) Whether the premature termination of the services of workman by management without rectifying his date of birth is justified? If not what relief he is entitled to?” Both issues have been answered in favour of the respondent-workman, considering the evidence brought on record by the parties. This Court finds no error, so far as finding of fact is concerned, especially in view of the fact that the petitioner-management has realised its mistake and has offered to the respondent-workman to join his duty vide letter dated 08.02.2012. Counsel for the petitioner-company has assailed the impugned Award dated 27.05.2017 only to the limited extent regarding entitlement of the respondent-workman to get the wages on or after refusal to join the duty i.e. 08.02.2012. Counsel for the respondent has defended the Award and the contention of the petitioner-company, by submitting that the offer was merely an eyewash, as rightly held by the Labour Court. The offer should have been through the process of the Court, not outside the Court. Counsel for the respondent has defended the Award and the contention of the petitioner-company, by submitting that the offer was merely an eyewash, as rightly held by the Labour Court. The offer should have been through the process of the Court, not outside the Court. It is settled principle of law that every labour is entitled for wages. The labour cannot be destroyed or can be made idle, but, if labour by its own conduct, make himself idle, then he is not entitled for wages. In the present case, rightly or wrongly an offer of appointment has been issued to join the duty but the same has been refused by the workman making himself unavailable for the work and as such he is not entitled for any wages for such period of refusal. The argument of the respondent-workman that since the date of birth has not been corrected in the service record and as such refusal of joining the duty was justified. This contention of the respondent-workman is not appreciable. Refusal to make himself available for the work is sufficient ground for non-payment of wages. Wages is always paid for work performed or if the labour is made idle by the employer. In view of above submission, further proceeding in M.J. Case No. 01 of 2019 pending before the learned Presiding Officer, Labour Court, Jamshedpur is, hereby, stayed. Accordingly, I.A. No. 7840 of 2019 stands disposed of.” 3. It appears that the workman was the permanent employee under the petitioner-company since 1974 and he was made to retire w.e.f 01.07.2010 while his actual date of retirement should have been 25.01.2014. The dispute is regarding date of birth and it has been settled by the impugned Award in favour of the workman. The settlement of issue regarding date of birth is not in dispute in the present writ petition. The only dispute has been raised regarding the payment of salary for the period from 09.02.2012 to 25.01.2014, i.e., the period when the workman had not joined the service in spite of offer letter dated 08.02.2012, which has been exhibited as M/2. 4. It has been submitted by the learned counsel for the petitioner that once the offer has been made and the concerned workman has been asked to join but on refusal the concerned workman is not entitled for the salary. 5. 4. It has been submitted by the learned counsel for the petitioner that once the offer has been made and the concerned workman has been asked to join but on refusal the concerned workman is not entitled for the salary. 5. On the other hand, learned counsel for the respondent-workman has supported the impugned Award and it has been submitted that the said offer letter has been considered by the Labour Court and it has been recorded by the Labour Court that the said offer letter was nothing but a ploy just to deny the salary of the workman and as such he has been awarded salary till his date of retirement, i.e., 25.01.2014. The concerned workman was wrongfully denied to work till the date of his retirement and as such he is entitled for the entire salary for the said period. 6. Having heard learned counsel for the parties and from perusal of record, it appears that the concerned workman has raised the dispute regarding his date of birth and ultimately it has been settled in favour of the respondent-workman. So far as the date of birth is concerned, the same is not in dispute now and as per the settled date of birth the concerned workman was supposed to retire on 25.01.2014 while he was wrongfully made to retire on 01.07.2010. The Labour Court has awarded the entire back wages and only the period which has been disputed before this Court is the period from 9.02.2012 to 25.01.2014, i.e., the period after issuance of offer letter dated 08.02.2012. From perusal of the offer letter dated 08.02.2012, it appears that the offer was made without prejudice to the pending case. The dispute between the parties has been left open. It further appears from the reply of the offer letter submitted by the workman that the workman was only desirous to join the duty on the settlement of the issue not otherwise. As it has been noted by this Court vide its earlier order dated 28.08.2019 that the every labourer is entitled for wages. The labour cannot be destroyed or can be made idle, but, if labour by its own conduct, make himself idle, then he is not entitled for wages. As it has been noted by this Court vide its earlier order dated 28.08.2019 that the every labourer is entitled for wages. The labour cannot be destroyed or can be made idle, but, if labour by its own conduct, make himself idle, then he is not entitled for wages. In the present case, during the period from 09.02.2012 to 25.01.2014 the concerned workman had kept himself idle and as such he is not entitled for the wages for the said period. Accordingly, the Award dated 27.05.2017, passed by the Presiding Officer, Labour Court, Jamshedpur in Reference Case No.01 of 2011, is modified to the extent that he will not be entitled for salary from 09.02.2012 to 25.01.2014, but date of retirement will be 25.01.2014 for all purposes. Rest part of the Award is upheld. 7. The writ petition stands disposed of.