AI Structured Summary
Not yet generated for this judgment
Judgment
Dharam Chand Chaudhary, J.—Aggrieved by order dated 4.5.2012 passed by the learned Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala in an application u/s 33-C(2) of the Industrial Disputes Act, 1947 (for short referred to as "the Act"), registered as Application No. 485 of 2011, the petitioner-workman has approached this Court by filing the present writ petition with the following prayers:-
That the respondent may kindly be directed to implement the settlement dated 28.8.2008 in letter and spirit with all consequential benefits.
That the respondent may kindly be directed to give the continuity of the service to the petitioner from the date of his first appointment.
That the direction may kindly be given to the respondents to deposit the money (contribution share for P.F. being employer) in the old P.F. Number as issued by the respondent on the date of initial appointment of the petitioner.
That respondent may kindly be direct to pay the compensation amount of Rs. 15,00,000/- to the petitioner for non-implementation of the terms of the settlement.
That the direction may kindly be given to the respondent No. 5 to take the action against the management of the respondents-Company for continuous breach of the settlement and for non-implementation of settlement.
It is seen that the Labour Court-cum-Industrial Tribunal below has dismissed the application being not maintainable while applying the ratio of judgment dated 23.6.2011 of a Co-ordinate Bench of this Court in CWP No. 1260 of 2008, titled "Arvind Kumar Sharma v. Executive Engineer, HP PWD and others." Whether the judgment (supra) has any bearing in the present case or not, is the sole question arises for determination by this Court. However, before that it is desirable to make a reference to the provisions contained u/s 33-C(2) of the Act and also u/s 33-C(1) of the Act, because section 33-C deals with the question of recovery of money due to a workman from his employer under a settlement or an award. The provisions contained u/s 33-C(1) and (2) read as follows;-
33-C. Recovery of money due from an employer.-(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter V-A or Chapter VB] the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
(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 questions 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.]
True it is that section 33-C(1) empowers the appropriate Government if satisfied that money is due to a workman from his employer, to issue a certificate for recovery of that amount to the Collector, who shall proceed to recover the same in the same manner applicable to the recovery of an arrear of land revenue. Whereas, sub-section (2) empowers the Labour Court concerned to decide a question qua entitlement of a workman to receive any money from the employer or any other benefit capable of being computed in terms of money within a period not exceeding three months.
Now, if coming to the reasons recorded by the Labour Court-cum-Industrial Tribunal below in the impugned order while arriving at a conclusion that the application is not maintainable, the same reads as under:-
Without entering into the merits or demerits of the claim put forth by the applicant, I will like to say that the present application seems to be not maintainable before this Court in view of the observations made by our Hon''ble High Court in CWP No. 1260 of 2008, decided on 23.6.2011 titled as Arvind Kumar Sharma v. Executive Engineer, HPPWD and others.
In the above noted authoritative pronouncement, the Hon''ble High Court has laid that the power of the Labour Court u/s 33-C(2) of the Act was to deal with by interpretation of award or settlement on which the workman''s rights rests like executing Court''s powers for the purpose of the execution where the basis of the claim is referable to the award or settlement and that it does not extend to determination of the dispute of the very entitlement or the basis of the claim if thereby no power of adjudication or recognition of the same by the employer.
As already mentioned, the amount which as per the version of the applicant is recoverable from the respondent is being disputed by the latter. Since there is no award or settlement between the parties till date, the instant application does not lie before this Court in view of the trite laid down in Arvind Kumar Sharma''s case (supra).
Now, if coming to the question as to whether the reasons so recorded by the Labour Court-cum- Industrial Tribunal below are legally and factually sustainable, the answer in all fairness and also in the ends of justice would be in negative for the reason that as per admitted case of the parties, the petitioner was engaged as Book Binder on 1.6.2004 by the Management of respondent-Company, i.e. M.B.D. Printographics, Pvt. Ltd., Gagret, District Una and deployed as such in its unit at Gagret. There is again no controversy so as to his disengagement from service w.e.f. 5.11.2007 and raising an industrial dispute by issuance of a demand notice (Annexure P-4), as contemplated u/s 2-A of the Act by him against his employer, the respondent No. 1 on 15.11.2007. Consequent upon conciliation tried by the Labour Officer-cum-Conciliation Officer, Una, the petitioner and his employer-respondent No. 1 have amicably settled all the disputes and the terms of such amicable settlement were reduced into writing in the shape of compromise deed, Annexure P-5. The terms and conditions on which the petitioner and his employer had settled the controversy amicably, reads as follows:-
It is seen that in terms of the deed of settlement, Annexure P-5, the petitioner-workman was required to be re-engaged by his employer-the respondent w.e.f. 1.9.2008 at Jalandhar with seniority/continuity in service, however, on payment of wages only w.e.f. 1.9.2008. The wages were agreed to be paid to the petitioner at par with I.T.I. trained workmen in the State of Punjab. However, in the event of the wages being paid by the Government of Himachal Pradesh to such workmen is found on higher side, to get the same wages. Besides a sum of Rs. 10,000/- in the shape of ex-gratia amount was also agreed upon to be paid by the respondent to the petitioner-workman in lump-sum on 1.9.2008.
In view of the petitioner having raised an industrial dispute within the meaning of section 2-A of the Act and during the conciliation tired by the Labour Officer-cum-Conciliation Officer, Una, an amicable settlement was arrived at between the parties and as per the settlement so arrived at, the petitioner-workman is entitled to recover money capable of being computed, it is not understandable as to how and on what basis, the Labour Court-cum-Industrial Tribunal below has arrived at a conclusion that the application u/s 33-C(2) was not maintainable before it. It is shocking, if not unfortunate, to note that the judgment of this Court in Arvind Kumar Sharma''s case, (supra), though has no bearing in the given facts and circumstances of this case, however, applied erroneously to negate the claim of the petitioner-workman. In this behalf, it is worthwhile to mention here that in Arvind Kumar Sharma''s case (supra), the petitioner was not a workman within the meaning of the Act and was awarded the work of construction of Water Sports Complex on contract basis, viz., to carry out the welding work on piece rate basis. On completion of the work while he claimed a sum of Rs. 1,80,646/-, the respondent paid only a sum of Rs. 1,00,000/-. It is the balance amount of Rs. 80,646/- allegedly due to him, was sought to be recovered against the respondent by filing the application u/s 33-C(2) of the Act. It is in such factual matrix and also after taking into consideration the provisions contained u/s 33-C(2) of the Act as well as the law laid down by this Court in H.P. State Electricity Board and Another Vs. Presiding Officer and Others, and by the Hon''ble Apex Court in D. Krishnan and Another Vs. Special Officer, Vellore Co-operative Sugar Mill and Another, , the learned Single Judge has held in para-9 thereof as under:-
Here the basic dispute was-what was the value of the work done by the claimant? This could not have been the subject-matter of proceedings u/s 33-C(2) of the Act. The Labour Court had no jurisdiction to decide this dispute which did not fall within the ambit of section 33-C(2) of the Act. The award of the learned Tribunal is set aside. xxx xxx
If coming to the case in hand, the subject-matter of dispute is not the value of work done by the petitioner-workman, but the recovery of money due and admissible to him pursuant to the amicable settlement arrived at between him and his employer-the respondent during the course of conciliation tried by the Conciliation Officer during the course of proceedings in an industrial dispute, he raised by way of issuance of demand notice, Annexure P-4 in terms of section 2-A of the Act. The petitioner is thus a workman, whereas, Shri Arvind Kumar Sharma, in the judgment, cited supra, was not a workman under the respondent as he was awarded the work of construction of Water Sports Complex on contract basis. Not only this, but learned Labour Court-cum-Industrial Tribunal below has failed to take note of that portion of the judgment of this Court in H.P. State Electricity Board v. Presiding Officer (supra), extracted in Arvind Kumar Sharma''s case and reads as follows:
........It is by now well settled by authoritative pronouncements of more than one decisions of the Apex Court that proceedings contemplated by section 33-C(2) are analogous to execution proceedings and the Labour Court, like the executing Court, as in the execution proceeding governed by the CPC on the interpretation of the award on which the claim is made by implementing the adjudication, if any already, made by a decree and not to adjudicate any dispute the claim of which itself requires adjudication for its enforcement in the form of a decree. The power of the Labour Court u/s 33-C(2) was to deal with by interpretation of award or settlement on which the workman''s rights rest like executing Court''s powers for the purpose of the execution where the basis of the claim is referable to the award or settlement and that it does not extend to determination of the dispute of the very entitlement or the basis of the claim if there be no power of adjudication or recognition of the same by the employer..........
The ratio of the judgment of Hon''ble Apex Court in D. Krishnan''s case, extracted by the learned Single Judge in the judgment delivered in Arvind Kumar Sharma''s case (supra), which reads as follows, also seems to have escaped the notice of the Labour Court-cum-Industrial Tribunal below:
We have considered the arguments advanced by the learned Counsel for the parties. The fact that proceedings u/s 33-C(2) are in the nature of execution proceedings is in no doubt and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced......
When the settlement arrived at between the petitioner and his employer-the respondent vide Annexure P-5 has culminated into existence of a right, i.e. the recovery of money capable of being computed in favour of the petitioner-workman and the same needs adjudication, therefore, the application u/s 33-C(2) of the Act filed by the petitioner-workman was very much maintainable and should have not been dismissed in the light of what has been stated hereinabove.
In this context, it is pertinent to point out that as per own case pleaded by the respondent-employer in reply to the application u/s 33-C(2) of the Act (Annexure P-12) before the Labour Court-cum-Industrial Tribunal that the settlement Annexure P-5 stands implemented and nothing is due to be paid to the applicant. Also that as agreed upon vide clause (2) of the agreement/settlement deed, Annexure P-5, it has been decided to maintain the seniority of the petitioner and on comparison of the wages being paid to semiskilled worker in both the States, i.e. Punjab and Himachal Pradesh the wages being paid to such workers in Punjab being on higher side as compared in the State of Himachal Pradesh, at the rate of Rs. 3386/- per month is being paid to the petitioner w.e.f. 1.9.2008. The petitioner-workman in rejoinder, Annexure P-13 no doubt has vehemently opposed such contentions. The payment of Rs. 10,000/- in lump-sum in the shape of ex-gratia grant as agreed upon vide clause (4) of Annexure P-5 has however, been admitted by the petitioner also. In view of it is held that the application u/s 33-C(2) of the Act is maintainable before the Labour Court-cum-Industrial Tribunal below, it may not be appropriate for this Court to make any observation qua the contentions of either parties with respect to the implementation of the agreement/deed of settlement, Annexure P-5 and rather to leave the same open to be considered by the Labour Court-cum-Industrial Tribunal below after taking into consideration all pros and cons and affording the parties due opportunity of being heard.
As regards the transfer of the petitioner to Holy Faith International (P) Ltd., 137-139, Sector-1, Special Industrial Area, Semrakalan, Gobind Pura, Bhopal (MP) vide order Annexure R-4 is concerned, learned Counsel representing the petitioner has stated at bar that the respondent-Company may appoint him with seniority and continuity by restricting the actual payment of salary w.e.f. 1.9.2008 at such rate as payable to an I.T.I., trained similarly situated workman in terms of clauses (1) and (2) of Annexure P-5 and may transfer him thereafter to any place either to its own establishment or the establishment of its sister concern.
The respondent-Company no doubt, has made an effort to substantiate its stand by placing on record the letter of appointment Annexure R-2 to the short reply, however, the same has been issued by Malhotra Book Depot, Jalandhar and thereby he has been given appointment as Helper w.e.f. 1.4.2010, whereas, in terms of clause (1) of Annexure P-5, he was to be given appointment by maintaining his seniority w.e.f. 1.9.2008. Whether Malhotra Book Depot, Jalandhar is sister concern of the respondent-Company or not, remains unexplained and a bare perusal of Annexure R-2 rather shows that the petitioner has been appointed in Malhotra Book Depot, Jalandhar w.e.f. 1.4.2010. Thus the apprehension of the petitioner that the same is not as per agreed terms and conditions, prima facie, seems to be justifiable. Any-how, as already pointed out hereinabove, it may not be appropriate for this Court to make any observation on merits at this stage, however, this Court feels that till the matter is not considered by the Labour Court-cum-Industrial Tribunal below, it may not be in the interest of justice, equity and fair play to approve the transfer of the petitioner, a physically challenged person to Bhopal, ordered by Malhotra Book Depot aforesaid vide order dated 23.06.2012, Annexure R-4.
In view of the foregoing reasons, this writ petition succeeds and the same is accordingly allowed. The order dated 4.5.2012 (Annexure P-14), passed by the Labour Court-cum-Industrial Tribunal, Dharamshala is quashed. There shall be a direction to the Labour Court-cum-Industrial Tribunal to restore the application u/s 33-C(2) of the Act, registered as Application No. 485 of 2011 to its original number and file and decide the same afresh in the light of the above observations after hearing both the parties. Liberty, however, is reserved in favour of either party to approach this Court if still feel aggrieved by the order so passed in the application.
The transfer of the petitioner to Bhopal vide order dated 23.6.2012 (Annexure R-4) shall be deferred till the decision of the application by the Labour Court-cum-Industrial Tribunal and the respondents shall allow him to continue to discharge his duties at Jalandhar, where he is presently working.
Parties are directed to appear before the Labour Court-cum-Industrial Tribunal, Dharamshala on August 18, 2012. Pending application(s), if any, also shall stand disposed of accordingly. No orders so as to costs.
Authenticated copy of this judgment be sent to the Labour Court-cum-Industrial Tribunal, Dharamshala, for compliance.