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Judgment
Rameshwar Singh Malik, J.—This is yet another glaring example of high handedness at the hands of the petitioner-management, to avoid strict implementation of the award passed by the learned Industrial Tribunal-cum-Labour Court, Panipat, thereby causing undue harassment to the private respondents-workmen. The above-said two identical writ petitions filed by the same management, are proposed to be decided together as both the writ petitions are based on similar set of facts and raise common issues. However, for the facility of reference, the facts are being culled out from CWP No. 453 of 2014.
Facts first Respondents No. 4 to 11 in CWP No. 453 of 2014 and respondents No. 4 to 32 in CWP No. 477 of 2014 were employed by the petitioner-management on daily wages on DC rates. Services of the private respondents-workmen in both the writ petitions were terminated. The private respondents-workmen raised the industrial dispute vide demand notice dated 22.1.1993. The learned Labour Court answered the reference in favour of the private respondents-workmen vide its award dated 4.12.2002 (Annexure P-1), directing reinstatement with continuity of service and 40% back wages. When the petitioner-management neither challenged the above-said award dated 4.12.2002 nor implemented the same, the workmen approached this Court by way of CWP No. 11022 of 2003, seeking implementation of the above-said award.
Having been served with notice of motion issued by this Court in CWP No. 11022 of 2003 (Karambir Singh and others v. H.S.E.B. and others), petitioner-management having found itself caught on the wrong foot, woke up from the slumber and filed CWP No. 11377 of 2004 (Executive Engineer, Uttar Haryana Bijli Vitran Nigam Ltd., Sonepat and another v. Presiding Officer, Industrial Tribunal-cum-Labour Court etc.), challenging the above-said award dated 4.12.2002 passed by the learned Labour Court. Both these writ petitions came to be decided by a Division Bench of this Court vide order dated 8.10.2004 (Annexure P-2). CWP No. 11022 of 2003 filed by the private-respondents-workmen was allowed, whereas CWP No. 11377 of 2004 filed by the present petitioner-management was dismissed with costs of Rs. 10,000/-. The petitioner-management filed SLP before the Hon''ble Supreme Court. With slight modification limited to the extent that since the workmen raised the demand on 22.1.1993, they shall be entitled for the back wages only from that date, the above-said Division Bench judgment of this Court was upheld by the Hon''ble Supreme Court, vide its order dated 20.1.2005 (Annexure P-3).
When failed up to the Hon''ble Supreme Court, petitioner-management tried to play another trick with the private respondents-workmen. Although, the workmen were reinstated in service and their services were also regularized, yet arrears of pay were denied to private respondents-workmen vide order dated 19.3.2008 (Annexure P-4). When the repeated requests made by the private respondents-workmen fell on the deaf ears, workmen approached the Labour Commissioner, Haryana-respondent No. 1, by way of notice dated 10.4.2012 (Annexure P-7) under Section 33-C (1) of the Industrial Disputes Act, 1947 (''ID Act'' for short), claiming their due amount which had been illegally withheld by the petitioner-management. Consequently, respondent No. 1 issued communication dated 29.8.2012 (Annexure P-8) to the petitioner-management, for recovery of the outstanding dues of the workmen and also for revival of earlier proceedings brought against the employer-petitioner herein.
The petitioner-management appeared before the Labour Commissioner, Haryana-respondent No. 1 and filed its reply vide Annexure P-9. Respondent No. 1 sought the report of Deputy Labour Commissioner, Rohtak, who heard both the parties and thereafter, submitted its detailed report dated 27.2.2012 (Annexure P-13) with CWP No. 477 of 2014 to the Labour Commissioner, Haryana-respondent No. 1. It is pertinent to note here that since the petitioner-management was not implementing the above said award dated 4.12.2002 passed by the learned Labour Court, Government of Haryana (Labour Department) vide its order dated 17.11.2003 accorded sanction for prosecution of the responsible officer of the petitioner-management, authorizing Labour Inspector Sonepat to lodge a complaint under Section 29 of the ID Act in the court of Illaqa Magistrate, Sonepat against the erring/responsible officer of the petitioner-management.
Accordingly, a complaint was filed in the court of Chief Judicial Magistrate, Sonepat. Faced with the complaint, petitioner-management tried to mislead the authorities of labour department, by way of writing a communication dated 3.12.2008 (Annexure P-12) to respondent No. 1, requesting for withdrawal of complaint dated 29.7.2004, claiming that the Labour Court award dated 4.12.2002 has been implemented. Having been misled by the petitioner-management, Labour Department vide its order dated 11.5.2009 (Annexure P-13) decided to withdraw the complaint and finally the complaint was ordered to be withdrawn, vide order dated 25.7.2009 Annexure P-14 passed by the learned CJM, Sonepat. However, Labour Court award dated 4.12.2002, as a matter of fact, had not been implemented in its letter and spirit, as directed by the Division Bench of this court, vide its judgment dated 8.10.2004 and modified by the Hon''ble Supreme Court, vide its order dated 20.1.2005.
Finally respondent No. 1, on the basis of the above-said detailed report of the Deputy Labour Commissioner, Rohtak, issued the impugned recovery notice as arrears of land revenue from the petitioner-management, vide order dated 8.2.2013 (Annexure P-10). Feeling aggrieved against the impugned recovery notice, petitioner-management has filed these two writ petitions before this court, under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing the impugned order of recovery.
Notice of motion was issued and pursuant thereto written statement was filed on behalf of respondents No. 1 to 3 and a separate written statement was filed on behalf of private respondents No. 4 to 11.
Learned Senior Counsel for the petitioner-management submits that since the private respondents-workmen did not challenge the order dated 19.3.2008 (Annexure P-4), they were not entitled for any other amount. Whatever amount was found due has already been paid to the private respondents. He further submits that respondent No. 1 has failed to apply his mind to the peculiar facts of the case and ordered the recovery of the same amount whatever was demanded by the private respondents-workmen. He also submits that the application under Section 33-C (1) of the ID Act, moved by the private respondents-workmen before respondent No. 1, was not maintainable as the due amount had already been paid to them. He concluded by submitting that the impugned order passed by respondent No. 1 was without jurisdiction. He prays for setting aside the impugned order of recovery, by allowing these two writ petitions.
Per contra, learned counsel for the private respondents-workmen submits that the learned Labour Commissioner had the jurisdiction to entertain and decide the application, which was rightly decided by passing the impugned order. He further submits that the petitioner-management has put the private respondents-workmen to an unwarranted harassment, during this long period of more than two decades. The concerned officers of the petitioner-management had been misleading the authorities of the labour department of the respondent-State including respondent No. 1, because of which the complaint filed in the Court of CJM, Sonepat was got illegally withdrawn. He would next contend that although the private respondents-workmen had been found entitled for regularization and further promotion as well, yet the financial benefits on account of arrears of salary have been illegally denied to the private respondents, because the petitioner-management has not implemented the labour court award dated 4.12.2002 in its letter and spirit, as directed by the Division Bench of this Court. He submits that the action of the petitioner-management to deny the arrears of salary of regular pay-scale, despite having been regularized the services of the private respondents, was patently illegal as the same runs counter to the Division Bench judgment of this Court, whereby the writ petition filed by the petitioner-management against the Labour Court award was dismissed with costs. He prays for dismissal of both the writ petitions with exemplary costs.
Learned counsel for the State also fairly states that the petitioner-management, though a government undertaking, acted in a most arbitrary manner, while dealing with the private respondents-workmen. Since the Labour Court award dated 4.12.2002 was not being implemented in letter and spirit, as directed by the Division Bench judgment of this Court, the learned Labour Commissioner, Haryana-respondent No. 1, was duty bound to entertain the application under Section 33-C (1) of the ID Act. In fact, respondent No. 1 was left with no other option, except to pass the impugned order of recovery against the petitioner-management. Referring to the averments taken in the written statement filed on behalf of respondents No. 1 to 3, he further submits that both the writ petitions were wholly misconceived and the same were liable to be dismissed with heavy costs.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in view of the peculiar facts and circumstances of the cases in hand, both the writ petitions are liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record that a Division Bench of this Court, vide its detailed judgment dated 8.10.2004, dismissed the writ petition filed by the present management bearing CWP No. 11377 of 2004 with costs of Rs. 10,000/-, upholding the Labour Court award dated 4.12.2002, whereas CWP No. 11022 of 2003 filed by the private respondents-workmen, for implementation of the award, was allowed. The operative part of the judgment rendered by the Division Bench of this Court, reads as under:-
"In conjunction with the conclusion drawn here in above, it would be pertinent to mention, that the learned counsel for the management did not dispute the fact, that persons similarly situated as the workmen in the instant case (whose services had been dispensed with for the same reason, and at the same time as the workmen herein, by the HSEB) had challenged the action of the management in the same manner as the workmen herein. The labour court, while answering reference nos. 437 of 1989 and 438 of 1989, adjudicated the claim in favour of the workmen as been done by the same labour court through the impugned award dated 4.12.2002. The aforesaid adjudication came to be challenged at the hand of the management through Civil Writ Petition No. 10457 of 1992. This court in its judgment dated 6.11.1996, repelled all the contentions advanced on behalf of the HSEB. The aforesaid judgment has since attained finality and the workmen involved have since been reinstated and regularized in the employment of the HSEB. In view of the above, it is not only unfortunate but wholly unjustified for the management to challenge the impugned award of the labour court dt. 4.12.2002.
In view of the above, we find no merit in Civil writ Petition No. 11377 of 2004, which is hereby dismissed with costs, which are quantified at t 10,000/- which shall be payable to the workmen along with the dues payable to them in furtherance of the award of the labour court dt. 4.12.2002. The natural consequence of the aforesaid determination is that Civil Writ Petition No. 11022 of 2003 is liable to be allowed. From the sequence of facts narrated above, it emerges that the award of the labour court dated 4.12.2002 has remained unimplemented for such a long time without any justification. During the course of hearing of the instant case, we were informed that the State Govt. has also sanctioned prosecution against the erring officers of the HSEB on account of the non-implementation of the impugned award. In the peculiar circumstances notices above, we direct the successor of the Secretary of the Haryana State Electricity Board to implement the award of the labour court dt. 4.12.02 in letter and spirit, within one month from today, not only by reinstating the workmen in service but also by paying them the dues payable to them in furtherance of the award of the labour court dated 4.12.02 as well as the costs awarded to them through the instant judgment.
Disposed of in the aforesaid terms.
(Emphasis supplied)"
Feeling aggrieved against the above-said judgment of Division Bench of this Court, the petitioner-management filed SLP before the Hon''ble Supreme Court and Civil Appeals No. 683 and 684 of 2005 came to be disposed of vide order dated 20.1.2005 (Annexure P-3), which reads as under:-
"ORDER
"Issue Notice
Ms. Chandan Ramanmuratahi, learned counsel appears on caveat and accepts notice on behalf of the workmen.
Leave granted
Heard Parities
It is fairly admitted that in the earlier matter only 40% of the back wages were awarded and that as the demand had been raised only on 22nd January, 1993, the back wages can only be from that date. We thus modify the High Court''s judgment to direct that only 40% of the back wages from 22nd January, 1993 shall be paid. Save as above no other orders. The Appeals stand disposed of accordingly. There will be no order as to costs."
When the Labour Court award dated 4.12.2002 became final against the present petitioner-management, it proceeded on a wholly unjustified and clever approach. With a view to deny the back wages to the private respondents-workmen, order dated 19.3.2008 (Annexure P-4) was passed. Although the respondents-workmen were reinstated and their services were regularized w.e.f. 2.9.1994 vide order dated 19.3.2008 (Annexure P-4), yet the actual financial benefits of arrears of salary were sought to be denied to the respondents-workmen. The offending clause (iv) of order dated 19.3.2008 (Annexure P-4) reads as under:-
"(iv) The benefit of pay fixation to the official shall be given from the deemed date of their regularization. However there will be only notional pay fixation and no arrears will be payable." The above-said clause (iv) clearly runs counter to the specific and unambiguous directions issued by the Division Bench of this Court, as well as the true spirit of the above-said order passed by the Hon''ble Supreme Court. Having said that, this Court feels no hesitation to conclude that the concerned officers of the petitioner-management had no respect for the law of the land. This was the precise reason that the State Government had to grant sanction for prosecution of the responsible officers of the petitioner-management for non-implementation of the award passed by the learned Labour Court.
However, it seems that the concerned officers of the petitioner-management were not only taking the courts as well as the justice delivery system for a ride, treating themselves above the law but they were incorrigible also. It is so said, because the concerned officers of the petitioner-management were bent upon to put the respondents-workmen to maximum harassment for a period of more than 22 long years and particularly after passing of the Labour Court award dated 4.12.2002, which has not been implemented in its letter and spirit, even after expiry of a period of more than 12 years. It is not only unfortunate but also wholly unjustified on the part of a model employer, particularly when it is an undertaking of a welfare State.
Each and every argument raised by the learned senior counsel for the petitioner has been duly considered but none of them has been found worth acceptance, being wholly without any substance. Since the learned senior counsel for the petitioner has laid stress that respondent No. 1 was not having any jurisdiction to entertain the application under Section 33-C (1) of the ID Act, it would be appropriate to refer to the provisions thereof. Relevant part of Section 33-C (1) of the ID Act, reads as under:-
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 VA 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." A bare perusal of the above-said provisions of law leaves no room for doubt that since the money was due to the private respondents-workmen from the petitioner-management, under the award dated 4.12.2002, respondent No. 1 was not only having the jurisdiction but he was duty bound to entertain the application of the private respondents-workmen, under Section 33-C (1) of the ID Act. In view of the circumstances of the present case, respondent No. 1 committed no error of law, while entertaining the application of the private respondents-workmen under Section 33-C (1) of the ID Act and deciding the same by passing the impugned order of recovery which deserves to be upheld. Any contrary interpretation of Section 33-C (1) of the ID Act, would run counter to the very object and scheme of the ID Act and also to the unambiguous legislative intent.
So far as the argument raised by the learned senior counsel for the petitioner-management regarding the order dated 19.3.2008 (Annexure P-4) is concerned, the same is to be noted to be rejected, because it has been found bereft of any merit. Since the above-said offending clause (iv) of the order dated 19.3.2008 (Annexure P-4), was inserted in the order contrary to the true import of the Labour Court award dated 4.12.2002, judgment dated 8.10.2004 passed by a Division Bench of this Court as well as the order dated 20.1.2005 passed by the Hon''ble Supreme Court of India, the same would be of no consequence and liable to be ignored out rightly.
Further, this offending clause (iv) in order Annexure P-4 cannot be read to the detriment of the private respondents-workmen. In the peculiar circumstances of the case, private respondents-workmen were not supposed to challenge it, because they had been rightly pursuing their justified cause, by seeking strict implementation of the Labour Court award dated 4.12.2002. Under these circumstances, it can be safely concluded that the petitioner-management proceeded on a wholly unjustified and most arbitrary approach, to say the least. Thus, the impugned action of the petitioner-management cannot be sustained either on facts or in law.
Coming to the argument raised by the learned senior counsel for the petitioner about the alleged improper calculation of the amount on the part of the private respondents-workmen, the same has been found to be fallacious. During the course of arguments, when a pointed question was put to the learned senior counsel for the petitioner-management as to what was the proper calculation as per the stand of the petitioner-management, he had no answer and rightly so, because the petitioner-management has not placed on record any calculation sheet prepared by it.
A detailed written statement has been filed on behalf of the private respondents-workmen and the petitioner-management has chosen not to file any replication thereto. The specific and category averments taken on behalf of the private respondents-workmen in para 3 (e) and (f) of preliminary objections in the written statement, which have gone undisputed on record, read as under:-
e) That the Respondents/workmen were however, entitled to the payment of wages, as under:
f) However, the petitioner made payment of wages for the period w.e.f. 22.01.1993 to 31.05.2009 only as per D.C. Rate."
Learned counsel for the State was well justified, while opposing the prayer made by the petitioner-management. The averments taken by official respondents No. 1 to 3 in their written statement and particularly in paras 5 to 8 of preliminary objections, which have gone undisputed on record, deserve to be referred here and relevant part thereof reads as under:-
"It is pertinent to state here that the petitioner management had taken the private respondents back in services and also regularized their services w.e.f. 2.9.1994 vide order dated 19.3.2008 (Annexure P-4). On the basis of the regularization the private respondents were entitled to 40% of the regular pay scale w.e.f. 2.9.1994 instead of D.C. rate and hence the recovery certificate (Annexure P-10) was rightly issued by the office of the answering respondents.
That since payments were not made by the petitioner-management in accordance with the said award dated 4.12.2002 (Annexure P-1), so the private respondents had submitted an application dated 10.4.2012 (Annexure P-7) under section 33-C (1) of the Industrial Disputes Act, 1947 before the answering respondent for computing of money. The answering respondent vide letter dated 17.8.2012 sent the said application to the Deputy Labour Commissioner, Rohtak for enquiry and report.
That the said Deputy Labour Commissioner after hearing the parties vide his letter dated 26.10.2012 sent his report to the answering respondent clearly stating therein that "workers are entitled for "full wages for the period 4.12.2002 to 20.1.2005 in compliance of the award of Labour Court and subsequent judgments of Hon''ble High court of Punjab and Haryana, Chandigarh and Supreme Court of India. But as admitted by the respondents payments for the above mentioned period has been made @ 40% of the DC rate. Therefore, 60% of the wages that were due for the period 4.12.2002 to 28.2.2005 is delayed and the workers are entitled for the same.
That on receipt of the above said report, the matter was examined by the office of the answering respondents and it was found that the petitioner-management had not paid full amount as ordered by the learned Labour Court and thus the impugned recovery certificate dated 8.2.2013 (Annexure P-10) was issued and sent to the Collector, Sonepat for effecting recovery from the petitioner-management as land revenue.
In view of the aforementioned submissions, it is respectfully prayed that this petition may kindly be dismissed in the interest of justice."
It does not be hove a model employer to treat its employees in the manner petitioner-management has treated the private respondents-workmen in the case in hand. The respondents-workmen had been litigating for a genuine and justified cause for more than two decades. So far as the financial capabilities of both the parties are concerned, the workman cannot compete with the employer. This is the underlying object behind the beneficial legislation in the form of ID Act, for the welfare of the workman.
In the present case, petitioner-management has been found miscomputing itself, at every relevant stage of this avoidable litigation, with a view to defeat the very object of ID Act. It is not permissible in law. The courts of law cannot be a silent spectator in such a situation. It is the bounden duty of the Court to make an endeavour to do complete and substantial justice between the parties. Exceptions apart, leaning of the courts must be in favour of the down-trodden because the rich can afford long drawn litigation but the poor cannot.
In the present case, petitioner-management has been wasting public time and money on this wholly unwarranted litigation, which has been repeatedly imposed on the private-respondents-workmen. The present dishonest litigation, at the hands of the petitioner-management, clearly amounts to abuse of the process of law. Since the intention of the petitioner-management has not been found to be a bona fide one by this Court and the present litigation can be said to be almost frivolous litigation, both these writ petitions are liable to be dismissed with costs, so as to compensate the private respondents-workmen, at least to some extent.
The view taken by this Court for imposing the costs is also supported by the judgments of the Hon''ble Supreme Court in State of Bihar and others Vs. Subhash Singh, , Haryana Dairy Development Cooperative Federation Limited Vs. Jagdish Lal, , a Division Bench of this Court in Jag Ram Vs. Financial Commissioner (Revenue), : Jag Ram Vs. Financial Commissioner (Revenue), and also a Division Bench of Rajasthan High Court in Smt. Vandana Meena Vs. State of Rajasthan and Others, .
No other argument was raised.
Considering the peculiar facts and circumstances of both these cases noted above, coupled with the reasons aforementioned, this Court is of the considered view that both these writ petitions are wholly misconceived, bereft of merit and without any substance. Thus, these must fail. No case for interference has been made out.
Consequently, both the writ petitions are ordered to be dismissed with costs, which are quantified at Rs. 50,000/- in each case, to be paid to the private respondents-workmen along with their unpaid dues, in strict compliance of the award of the Labour Court dated 4.12.2002. Petitioner-management is also directed to ensure the meticulous compliance of the Division Bench judgment dated 8.10.2004 passed by this Court in its true letter and spirit, without any further loss of time and in any case within a period of two months from today. This direction is being issued keeping in view the undue delay caused by the petitioner-management in true implementation of the Labour Court award dated 4.12.2002. Before parting with the order, it is clarified that the Managing Director of the petitioner-corporation will be at liberty to order a fact finding enquiry, so as to fix the financial liability of erring officials and officers of the department, to recover all the amount spent on this unwanted, unwarranted and avoidable litigation.
Resultantly, with the above-said observations made and directions issued, both the writ petitions stand dismissed with costs.