Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 269 (UTT)

Jagir Singh v. Ms Durrung Steels Limited

2022-08-29

R.C.KHULBE, VIPIN SANGHI

body2022
JUDGMENT : Vipin Sanghi, J. In this Special Appeal, the appellants have assailed the judgment dated 23rd February, 2015 rendered by the learned Single Judge in Writ Petition No. 2065 of 2010 (M/S). The learned Single Judge disposed of the writ petition preferred by the writ petitioners-who were twenty-seven in number, by holding that the employer will pay wages of six months @ last drawn salary to each of the employees as compensation in lieu of reinstatement. 2. This case has a checkered history. The appellants/the predecessors-in-interest were serving as workmen at the Industrial Unit of M/s Durrung Steels Limited, situated at Industrial Estate, Ram Nagar, Roorkee. After serving for about twelve years, they were retrenched. Their retrenchment was challenged, and the Labour Court passed an award on 23.06.1996. Finding the retrenchment to be in breach of Section 6-N of the U.P. Industrial Disputes Act, 1947 (for short the ‘UPID Act’), the Labour Court directed the reinstatement of the twenty-seven workmen with 50% back wages. The challenge to the award by the respondent-Employer before this Court was rejected, and the award was upheld. 3. The workmen moved the State Government under Section 6-H(1) of the UPID Act. In the application filed by the workmen, they computed the wages that, according to them, were payable by the respondents. Copies of these applications were placed on the writ record, including as Annexure-1. The amount claimed by the workmen in one of these applications was Rs. 32,14,275/-. Accordingly, a recovery certificate was issued on 10.03.2006. The workmen moved another application under Section 6-H(1) of the UPID Act claiming an additional amount of Rs. 21,06,000/- for the period 01.12.2003 to 08.11.2005. Thus, the workmen sought recovery of Rs. 83,20,275/-. 4. On the representation/objections raised by the employer, the Deputy Labour Commissioner recalled the recovery vide order dated 10.03.2006. 5. The stand taken by the Employer was that the unit where the workmen were serving, was closed in the later part of 1996 because of non-payment of debt due to the Uttar Pradesh Financial Corporation (for short ‘UPFC’), and the unit was put under the lock and key by the UPFC on 05.01.1997. 6. This stand of the respondents was accepted by the Assistant Labour Commissioner, and he passed an order holding that the workmen were entitled to their wages only till 05.01.1997, when the unit was closed. 6. This stand of the respondents was accepted by the Assistant Labour Commissioner, and he passed an order holding that the workmen were entitled to their wages only till 05.01.1997, when the unit was closed. He also held that the workmen should move the Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947 (for short the ‘ID Act’) since there were disputes with regard to computation. This order, passed by the Assistant Labour Commissioner, was challenged by the workmen in Writ Petition No. 1825 of 2006 (M/S). The learned Single Judge of this Court found that the finding returned by the Assistant Labour Commissioner with regard to the closure of the unit of the respondent was based on conjectures and surmises, as no permission under Section 6-W of the UPID Act was produced by the Employer, and there was no material to support the same. Thus, the learned Single Judge held that the finding that the right of the workmen was to receive wages only up till 05.01.1997, was without any basis. The learned Single Judge remanded back the matter before the Assistant Labour Commissioner under Section 6-H(1) of the UPID Act. 7. In the second round, the Assistant Labour Commissioner again passed an order. The respondent/Employer admitted its liability to the tune of Rs. 16,43,391/-. Consequently, to that extent, a direction was issued to the respondent Nos. 1 to 3 to make payment of the said amount. The learned Assistant Labour Commissioner again directed the workmen to move an application under Section 33C(2) of the ID Act, 1947 in the light of the disputes raised by respondent Employer with regard to its status as a closed unit. This order was again assailed by the workmen by preferring the writ petition, in which the impugned order has been passed. 8. A preliminary objection has been raised by Mr. Pullak Raj Mullick, learned counsel for respondent Company, with regard to the maintainability of the Special Appeal. Learned counsel submitted that the Special Appeal is not maintainable under Rule 5 of Chapter VIII of the High Court Rules (Allahabad). He sought to place reliance on a judgment of the Division Bench of this Court in Intezar Hussain & another vs. State of Uttarakhand and others (Special Appeal No. 66 of 2014, with connected Special Appeals, decided on 24th July, 2015). 9. He sought to place reliance on a judgment of the Division Bench of this Court in Intezar Hussain & another vs. State of Uttarakhand and others (Special Appeal No. 66 of 2014, with connected Special Appeals, decided on 24th July, 2015). 9. The submission of the learned counsel for respondent Company is that the writ petition preferred by the writ petitioners/workmen was under Article 227 of the Constitution of India, and not under Article 226 of the Constitution of India, and therefore, under Rule 5 of Chapter VIII of the High Court Rules (Allahabad), the Special Appeal would not be maintainable. 10. We may firstly deal with this preliminary objection to the maintainability of the present Special Appeal. 11. The said Rule 5 reads as follows:- “5. Special appeal. – An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award - (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.” 12. The Division Bench observed in Paragraph-16 of the said judgment as follows:- “16. Rule 5 is a fairly long and seemingly cumbersome provision; but, we would think that it is not incapable to glean its true meaning and ambit on a proper reading of the Rule. The Division Bench observed in Paragraph-16 of the said judgment as follows:- “16. Rule 5 is a fairly long and seemingly cumbersome provision; but, we would think that it is not incapable to glean its true meaning and ambit on a proper reading of the Rule. We would think that the Rule provides for an appeal from a judgment of a learned Single Judge except in the following contingencies, i.e. an appeal will not lie from a judgment of a learned Single Judge to the Division Bench under Rule 5 if,: (i) it is a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order passed by a court subject to the superintendence of the court; (ii) the judgment is passed in respect of an order made in the exercise of revisional jurisdiction; (iii) the judgment is passed in the exercise of its power of superintendence; (iv) an appeal is sought to be maintained against a judgment of a Single Judge, which is pronounced in the exercise of criminal jurisdiction; (v) an appeal is sought to be maintained against a judgment of a Single Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award – (a) of a Tribunal, court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or Authority, which is made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act. We may clarify that the words “any such Act” would appear to us to refer to the Acts, which are indicated in clause (a), which means any Uttar Pradesh Act or any Central Act, which, in turn, must be with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution. Therefore, there is a long list of exclusions from the appellate jurisdiction, which would, otherwise, be available against a judgment of a learned Single Judge, as enumerated by us.” 13. Therefore, there is a long list of exclusions from the appellate jurisdiction, which would, otherwise, be available against a judgment of a learned Single Judge, as enumerated by us.” 13. If we apply the test laid down by the Division Bench in Intezar Hussain (supra), we find that there is no merit in the objection raised by the learned counsel for respondent Company to the maintainability of the present Special Appeal. This is because the present Appeal is not directed against the judgment passed by the learned Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court. The learned Single Judge was entertaining a writ petition. According to the respondents, the said petition was preferred under Article 227 of the Constitution of India. However, it is argued by Mr. Pankaj Miglani, learned counsel for the appellants, that the nomenclature used by the writ petitioners is not relevant, and one has to go by the content of the writ petition and the relief(s) sought therein. We find force in this submission of Mr. Pankaj Miglani, learned counsel for the appellants. 14. The writ petition was preferred to assail an administrative order passed by the Assistant Labour Commissioner, who was not functioning as a Tribunal, and therefore, the writ petition could lie under Article 226 of the Constitution of India. 15. Mr. Pullak Raj Mullick, learned counsel for respondent Company, has also referred to Clause-5 to submit that the impugned order could be treated as having been passed by the learned Single Judge under Article 226/227 of the Constitution of India in respect of a judgment, order or “award” of the Tribunal, Court or statutory arbitrator made or purported to be made in the purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matter enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution. Once again, we find no merit in this submission. Learned Assistant Labour Commissioner was neither a Tribunal, nor a Court, nor a statutory arbitrator, therefore, sub-clause (a) of Clause-5 of Paragraph 16, as extracted, is also not attracted. We, therefore, reject the objection raised by the respondent/Employer to the maintainability of the present Special Appeal. 16. The submission of Mr. Once again, we find no merit in this submission. Learned Assistant Labour Commissioner was neither a Tribunal, nor a Court, nor a statutory arbitrator, therefore, sub-clause (a) of Clause-5 of Paragraph 16, as extracted, is also not attracted. We, therefore, reject the objection raised by the respondent/Employer to the maintainability of the present Special Appeal. 16. The submission of Mr. Pankaj Miglani, learned counsel for the appellants, is that when the workmen had approached the Court vide Writ Petition No. 1825 of 2006 (M/S) Jagir Singh and others vs. M/s Durrung Steels Ltd. and another, this Court had returned the finding that the so called closure of the unit of the respondent Company was illegal. We do not find any merit in this submission. All that the Court observed was that the learned Assistant Labour Commissioner had returned the finding with regard to the closure of the unit of the respondent Company without any basis, and merely on the basis of surmises and conjectures. It is on this count that the matter was remanded back to the Assistant Labour Commissioner to decide the application moved by the workmen under Section 6-H(1) of the UPID Act. 17. Mr. Pankaj Miglani has next argued that while passing the order impugned in the writ petition, the learned Assistant Labour Commissioner had again gone into the issue with regard to closure of the unit of the respondent Company. He is also aggrieved by the direction issued by the learned Assistant Labour Commissioner that the workmen should invoke Section 33C(2) of the ID Act, in the light of the dispute raised by the respondent Employer with regard to its liability post 05.01.1997. He submits that these aspects had been raised and considered while deciding Writ Petition No. 1825 of 2006 (M/S), and could not have been raised again before the Assistant Labour Commissioner. In our view, since the matter had been remanded back to the learned Assistant Labour Commissioner, it was open to the respondent Company to raise the issues with regard to its liability-on whatever grounds available to it, including the ground that its unit had closed down on 05.01.1997. We, therefore, do not find merit on the above submission of Mr. Miglani. We, therefore, do not find merit on the above submission of Mr. Miglani. As the said issue had not been decided on merits, either by the Assistant Labour Commissioner, or by this Court, the issue with regard to closure of the Unit was undetermined, and required adjudication in competent proceedings. 18. The next submission of Mr. Miglani is that while passing the impugned order, the learned Single Judge could not have directed respondent Company to pay compensation of wages of six months @ last drawn salary in lieu of reinstatement. He submits that respondent Company could have argued before the Court that the compensation in lieu of reinstatement may be awarded at the stage of assailing the award. However, this Court has already upheld the award and, therefore, at the stage when the workmen were seeking to enforce the award, such a direction could not have been issued by the learned Single Judge. He submits that if the learned Single Judge did not find merit in the writ petition preferred by the workmen to assail the order dated 17th July, 2010, at the highest, the learned Single Judge could have dismissed the writ petition. However, the learned Single Judge has put the workmen in a more precarious situation by denying them their right of reinstatement. 19. On the other hand, learned counsel for respondent Company, has argued that the present was a case of involuntary/forced closure of the unit of the respondent Company, inasmuch, as, on account of nonpayment of loans to the UPFC, the unit was taken over by the UPFC, and the same was transferred to M/s Amritvarsha Udyog Limited, Kotdwar, District Pauri Garhwal. In support of his submission, he sought to place reliance on the judgment of the Allahabad High Court in Sanyukta Kaleen Mazdoor Sabha vs. The State of Uttar Pradesh and others (Writ Petition No. 4772 of 1989, decided on 07.07.2003) and the judgment of the Supreme Court in District Red Cross Society vs. Babita Arora and others (Appeal (Civil) Nos. 3735-3738 of 2007, decided on 14.08.2007). On the aspect as to when a closure could be considered to be illegal, he has sought to place reliance on M/s Hatisingh Manufacturing Company Ltd. vs. Union of India and others, AIR 1960 SC 923 . 3735-3738 of 2007, decided on 14.08.2007). On the aspect as to when a closure could be considered to be illegal, he has sought to place reliance on M/s Hatisingh Manufacturing Company Ltd. vs. Union of India and others, AIR 1960 SC 923 . He submits that the compensation, as awarded in lieu of reinstatement, is in the light of the recent trend against grant of reinstatement with back wages, as reflected in Incharge Officer and Anr. Vs. Shanker Shetty (2010) 9 SCC 126 . He also relies on Union of India and others vs. Sicom Limited and another (2009) 2 SCC 121 to submit that the secured claims of the State Financial Corporation constituted under the State Financial Corporations Act, 1951 would take precedence even over the crown debts. Therefore, the take-over of the unit of the respondent Company, and its subsequent sale to M/s Amritvarsha Udyog Limited, Kotdwar, District Pauri Garhwal took precedence over the claims of the workmen. 20. Having heard the learned counsels at length, and perused the impugned order as well as the record, we are, firstly, of the view that the proceedings under Section 6-H of the UPID Act could be maintained only in respect of money, which is due to a workman from the employer, inter alia, under an award given by an Adjudicator or the State Industrial Tribunal. Pertinently, Section 6-H of the UPID Act is in two parts. Sub-section (1) talks about “where any money is due to a workman from an employer…under an award”. Sub-section (2) talks about the right of a workman who is entitled to receive from the employer any “benefit which is capable of being computed in terms of money,”. The course of action available to the workman under both these clauses is distinct. Under Subsection (1), where the money claim is crystallized, the workman may make an application to the State Government for recovery of the money due to him, and if the State Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were arrears of land revenue. Under Section 6-H(1) of the UPID Act, the recovery procedure is prescribed in respect of money, which is clearly due under an award. 21. Under Section 6-H(1) of the UPID Act, the recovery procedure is prescribed in respect of money, which is clearly due under an award. 21. In the present case, the workmen sought to make their own calculation of the amount which, according to them, was due under the award as 50% arrears of pay. The respondent Company disputed the claimed amount, and consequently, the recovery certificates, earlier issued, were recalled. Since the respondent Company disputed its liability in the first round, the learned Assistant Labour Commissioner left it open to the workmen to invoke the remedy under Section 33C(2) of the ID Act while returning the finding that no amount would be due on account of closure of the unit of the respondent Company after 05.01.1997. As aforesaid, the said order was set aside, and the matter was remanded back to the learned Assistant Labour Commissioner. In the second round as well, the respondent Company disputed their liability, except to the tune of Rs. 16,43,391/- again on the ground that its unit had closed down due to take over by the UPFC. Once again, the learned Assistant Labour Commissioner left it open to the workmen to invoke the remedy under Section 33C(2) of the ID Act. However, he did not determine the issue of closure on his own, and rightly so. 22. At this stage, we may also notice Section 33C(2) of the ID Act, which reads as follows:- “(2) Where any workman 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; within a period not exceeding three months:] Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]” 23. On a plain reading of Section 33-C(2) of the ID Act, it is evident that whenever a dispute arises with regard to the amount of money claimed by the workman in respect of an award, the same has to be determined by the Labour Court. It cannot be the ipse dixit of either the workman, or the employer, to state as to what is the amount due under the award. Unless there is agreement between the workman and the employer with regard to the amount due, the determination of the amount due under an award can be undertaken only through an adjudicatory process, and it cannot be done unilaterally by one or the other party, when there is a dispute raised. Therefore, the direction issued by the learned Assistant Labour Commissioner in the order dated 17.07.2010, permitting the workmen to invoke the provisions of Section 33-C(2) of the ID Act appears to be a correct approach adopted by the learned Assistant Labour Commissioner. 24. So far as the aspect of closure is concerned, pertinently, the learned Assistant Labour Commissioner, while passing the order dated 17.07.2010, has merely recorded the stand of the parties, but he has correctly not ventured into examination of the said issue. 25. The issue of closure was an issue, which required adjudication. On the determination of the said issue depended the determination of the liability of the respondent Company. Therefore, in our view, the learned Assistant Labour Commissioner correctly left it open to the parties to raise the said issue in proceedings under Section 33-C(2) of the ID Act. In this background, the learned Single Judge, in our view, was not justified in getting into the said issue on merits, and returning the finding with regard to the closure of the unit of the respondent Company on account of its take-over by the UPFC, and its subsequent transfer to M/s Amritvarsha Udyog Limited, Kotdwar, District Pauri Garhwal. 26. So far as the direction with regard to payment of compensation in lieu of reinstatement is concerned, in our view, the said direction could not have been issued by the learned Single Judge as the award had already attained finality with the dismissal of the writ petition preferred by respondent Company being Writ Petition No. 962 of 2002 (Old No. 29171 of1996). 27. We, therefore, set aside the impugned order. 27. We, therefore, set aside the impugned order. We also hold that the learned Assistant Labour Commissioner was justified in leaving it open to the appellants to invoke the remedy under Section 33-C(2) of the ID Act. 28. If and when the appellants invoke the said remedy, it shall be open to the parties to canvass their submissions with regard to the liability of the unit of the respondent Company, and it shall also be open to the respondent Company to establish its case with regard to closure of the unit. While determining the said issue, if raised, the Labour Court shall not be influenced by the findings returned in the impugned judgment by the learned Single Judge, and shall undertake an independent inquiry in the said aspect in accordance with law. 29. In case the appellants move an application under Section 33-C(2) of the ID Act within one month from today, we request the learned Labour Court to expedite the hearing of the matter, keeping in view that the matter has been hanging fire since 1991. 30. The Appeal stands disposed of accordingly.