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Judgment
Rajiv Narain Raina, J.—The present Petition has been filed under Article 226 /227 of the Constitution of India praying for quashing of the order dated 13.9.2011 (Annexure P-7) passed by the Labour Court, U.T. Chandigarh, dismissing the Application filed by the Petitioners u/s 33-C(2) of the Industrial Disputes Act, 1947, in which a claim was made for payment of arrears of revised pay scales. The background facts are that the Haryana Confed Employees'' Welfare Union, Chandigarh served a Charter of Demands on the Respondent-Management on 9.2.1998 raising 26 demands, two of which sought grant of regular pay scales to Salesmen/Helpers on the doctrine of equal pay for equal work and for implementation of the Fourth Pay Commission Report w.e.f. 1.1.1986 inter alia re: Demands 2 & 3. The extract of the findings returned by the Labour Court in its award on those relevant demands for the purposes of decision on the present Petition are as follows:
Demand No. 2:
Therefore in my opinion, there should be no discrimination between the Employees who are working against the same post and having similar nature of work. There is no reason that some of the Employees should be paid consolidated salary and some of them should be appointed on regular pay scales. Therefore, demand No. 2 is accepted.
Demand No. 3:
After considering the respective contentions raised by both the parties, I conclude that the Employees of the Federation are entitled to Revision in their pay scales w.e.f. 1.1.1986. Moreover it is not explained as to on what grounds the revision of pay scales have been adopted w.e.f. a later date. The reason of incurring losses given by the Management is not at all relevant for the purpose of granting pay scales to the Employees. The workman has placed on record a copy of the award passed by Mrs. Nirmal Yadav, Presiding Officer, Industrial Tribunal Labour Court, Gurgaon in Ref. No. 378 of 1988 between the Workman and Management of Haryana Dairy Development Corporation Federation, wherein the learned Presiding Officer after considering the fact that Revision in pay scales w.e.f. 1.1.1986 has also been granted to the Employees of the Haryana State Employees of Tube well Corporation Haryana Urban Development Authority, Haryana State Small Scale Industrial and Export Corporation Limited have granted the pay scales to the workman of Haryana Diary and Development Corporation Federation w.e.f. 1.1.1986. The act of the Management is discriminatory and cannot be sustained. Therefore, it is held that the employees of the Claimant union shall be entitled to Revision of pay scales w.e.f. 1.1.1986.
The award was announced on 4.9.1992. Aggrieved by the award, the Management filed CWP No. 536 of 1993 which was decided by the learned Single Judge of this Court by order dated 30.5.1996. This Court held as follows:
In view of my discussion, I am of the opinion that the award of the Labour Court does not require interference by this Court except to the extent of modification in the date from which the Employees are entitled to the revised pay scales.
Subject to the modification in the date of implementation of the revised pay scales i.e. with effect from December 1, 1989 instead of January 1, 1986, the Writ Petition is dismissed. No order as to costs.
While modifying the award of the Labour Court it was directed that the revised pay scales would be granted from 1.12.1989 instead of as awarded by the Labour Court. The unsuccessful Management aggrieved by the order of the learned Single Judge preferred an intra-Court Appeal bearing LPA No. 756 of 1996 which was dismissed on 22.11.2004. The Appellate Bench held in the operative part of the judgment and order as follows:
Yesterday, we had after hearing the arguments of Shri Rajesh Garg for some time, adjourned the case for today with a direction to him to produce the original record pertaining to resolution dated 15.1.1981 passed by the Board of Directors of the Appellant. Today, Shri Garg produced the fuel which contains over 1000 pages and made a statement that resolution dated 15.1.1981 passed by the Board of Directors of the Appellant federation clearly postulated grant of regular pay scale to the salesmen to be appointed for implementing the scheme framed by the State Government in 1979. Sh. Garg further stated that at this stage, he is not in a position to make a statement as to why the salesmen recruited after 15.1.1981 were not given regular pay scale and why they were given fixed salary because no one has come from the Federation to give him proper assistance.
He gave out that this may be so because the federation has already gone in liquidation.
Be that as it may, having purchased the record produced by the learned Counsel for the Appellant, we are convinced that the learned Single Judge did not commit any error by rejecting the Appellant''s challenge to the award passed by Respondent No. 1 in so far as it relates to the grant of regular pay scales to the Salesmen, who are appointed against the posts created in pursuance of resolution dated 15.1.1981.
The SLP filed before the Supreme Court against the order in Appeal failed on 14.3.2005.
The Workmen faced with the continued situation resulting from the non implementation of the award and of the orders of this Court thereon filed COCP No. 721 of 2005 before this Court which was decided on in which the following observations were made:
Alleging non-compliance of the aforementioned award of the judgments, this Contempt Petition has been filed.
In response to the show cause notice, the Respondents have come up with the plea that in the light of the award passed by the Labour Court, a self-speaking order dated 16.3.2006, which has already been taken on record as Mark A, has been passed and all the monetary benefits arising out of the award have been released.
The aforesaid contention is however, disputed by learned Counsel for the Petitioners and it is argued that some of the consequential monetary benefits have yet not been released.
Conscious of the jurisdiction of a Contempt Court and not to permit the same to be converted into that of a Executing Court, this Petition is disposed of with liberty to the Petitioners to impugn that part of the order dated 16.3.2006 which according to them is not in consonance with the award passed by the Labour Court.
It would, therefore, be necessary to examine the Administrative Order dated 16.3.2006 referred to in the aforesaid order. The relevant part of the order requires reproduction. It reads as follows:
Since the SLP has already been dismissed, the matter was examined by the office to release the arrears of pay to the salesmen. As the payment of arrears involved a huge amount, therefore, before taking any action the matter was placed before the Hon''ble Chief Minister who vide his order dated 5.4.2005 directed that the advice of LR Haryana may be sought before putting up the matter to him. The federation in the meanwhile has obtained the advice of Sh. Dhiraj Chawla, Advocate, who is on the panel of the Advocates.
This case was also sent to LR for seeking necessary guidance. The LR has given his opinion which is reproduced hereunder:
The award of the Labour Court in respect of Demand No. 2 and Demand No. 3 ought not to be confused so as to connect them with the question of arrears. While directing that the Workmen be paid a regular pay scales on the doctrine of equal pay for equal work (Demand No. 2) the Labour Court held that the Workman would be entitled to Revision of pay scales w.e.f. 1st January, 1986 as per the recommendation of 4th Pay Commission.
The purport of interim order dated 16.7.1998 passed by the Hon''ble High Court was that a regular pay scales of the Workmen would have to be fixed on the basis of the initial pay on their respective appointments. This order read with the final order in context with the award passed by the learned Labour Court does not make out a case for payment of arrears. To comply with the award, the AD should first of all, fix regular pay scale of the Workmen concerned of the date of their respective appointments then the scales have to be revised as per 4th Pay Commission with effect from 1.12.1989. The arrears, if any, have to be paid from the date of announcement of the award i.e. from 4.9.1992. The arrears prior thereto having not been granted cannot be read into the award.
In view of the advice of L.R. Haryana the above case was sent to Hon''ble Chief Minister, Haryana for seeking necessary approval. Hon''ble Chief Minister, Haryana desired that before taking final decision, advice of Chief Secretary to Govt. of Haryana may also be sought.
Accordingly, the case was sent to the Chief Secretary to Govt. of Haryana for seeking necessary advice. Chief Secretary, Govt. of Haryana returned the case with the advice to seek the advice from the Advocate General Haryana regarding the payment of arrears and also about any other way out to seek specific orders from the Court regarding payment of arrears if required at all. The case was received in CONFED on 20.7.2005.
Accordingly the case was sent to the Advocate General Haryana for seeking necessary advice on 22.7.2005. Advice from the Advocate General Haryana was received on 19.8.2005 wherein it was advised that since the award dated 4.9.1992 passed by the Labour Court has attained finality upto the Hon''ble Apex Court, the same is to be implemented in accordance with law; paying the arrears of salary to the Workmen, which is found due to them while making meticulous compliance of the Court orders. Accordingly, the matter was placed before the Board of Administration in their meeting on 14.10.2005 for consideration.
The Board of Administrators decided as under:
Matter may be referred to the State Government giving full facts as the case had earlier also been referred to the Government.
Accordingly, the case was referred to the State Government. This State Government has accorded the necessary approval on 6.12.2005.
The matter was again placed before the BOA in its meeting held on 17.2.2006 vide agenda item No. 1. As per decision of the BOA, the case was moved to Haryana Bureau of Public Enterprises through DFS, Haryana vide this office letter No. 298 dated for their concurrence. The HBPE vide their UO letter No. 1/6/2--6/Asstt./HBPE(FD) dated 14.3.2006 has accorded necessary approval.
In view of the approval of the HBPE, the Ex-salesmen who were on fixed salary are hereby allowed arrears on account of grant or regular pay scale from 4.9.1992 to 19.2.1997.
A careful reading of the order leaves no manner of doubt that CONFED and its Managing Director juggled with the interim order dated 16.7.1998 of the Letters Patent Bench and tinkered with the final order of the Division Bench to make out a case for payment of arrears w.e.f. the date of the award, and not as modified by the learned Single Judge from 1.1.1986 to 1.12.1989 and upheld till the Supreme Court and allowed arrears on account of grant of Regular Pay Scales only from 4.9.1992 to 19.2.1997 and not with effect from 1.12.1989.
Aggrieved by the order dated 16.3.2006 restricting grant of arrears from the date of passing of the award, the workmen filed CWP No. 14808 of 2006 which was dismissed as withdrawn with the liberty granted in the order. The order reads as follows:
Learned Counsel for the Petitioners requests for withdrawal of the Petition with liberty to raise all the issues before the Labour Court by filing an appropriate application u/s 33-C of the Industrial Disputes Act.
Dismissed as withdrawn with liberty as aforementioned.
We also permit the Petitioners to raise all the issues raised in this Petition before the Labour Court. The Labour Court shall decide their Application as expeditiously as possible.
It was in this background that the Application u/s 33-C(2) came to be filed before the Labour Court which has been dismissed giving rise to the present Petition.
The only issue pressed and debated before this Court is as to whether the Workmen had a pre-existing right to revised pay scales from or not. It is the contention of the learned Counsel for CONFED that the Application u/s 33-C(2) was not maintainable and the proper forum for agitating that right could be only u/s 10 of the Act on reference to the Court by the appropriate Government.
The further moot point which calls for decision is whether the award dated 4.9.1992 read with the order of the learned Single Judge and the Letters Patent Bench which have attained finality created vested or accrued right in the Workmen for the revised pay scales with effect from which could be computed in terms of money by the Labour Court in the Application presented before it.
A careful reading of the order dated 16.3.2006 passed by the Managing Director at the stage of Contempt proceedings appears in effect to over step the award of the Labour Court dated 4.9.1992 as modified by the judgment and order of the learned Single Judge save and limited to varying the date of implementation of the sought after pay scales. The clear and unambiguous conclusion of the Labour Court in its award dated 4.9.1992 was that the Employees of the Federation are entitled to Revision in their pay scales w.e.f. 1.1.1986 (modified to 1.12.1989 in Writ proceedings). When a person is held entitled to Revision of pay scale with effect from a particular date, it ought to flow as a natural consequence inherent in the order, that it means nothing less than tangible arrears of pay scales for which a simple computation in terms of money was capable of being done by the Labour Court in Section 33-C(2) proceedings. If the award had created a vested or pre-existing right by judicial fiat then it could possibly not be taken away by executive decision altering the date of entitlement from 1.12.1989 to the date when the award was announced by whim or caprice. The doctrine applied to declare the right was the principle of equal pay for equal work which has not been disputed before me. It is well settled that interim orders give way to final orders unless saved and made part of the final order. The Division Bench itself spoke of arrears when at one stage it passed interim orders. The learned Single Judge specifically directed while modifying the award of the Labour Court fixing 1.12.1989 as the "date of implementation of the revised pay scales The word "implementation" to my mind without twisting it beyond recognition can refer only to tangible arrears of pay in terms of money and nothing else. It would, therefore, be difficult to hold on the combined reading of the award and the orders passed by this Court that the Workmen would not be entitled to arrears from the date the right was declared to be implemented. Besides, it was inherent in Demands Nos. 2 & 3 that in case declaration was made according to Workmen''s assertion then financial consequences would follow. The learned Single Judge has altered the date obviously keeping in view the date of acceptance of the recommendations of the pay commission and its implementation by the State Government. The Respondent-Federation would be deemed to be conscious of the case against it and the result that might ensue if prayers were allowed. The only underlying reason that appears to me to have been the prime mover to tinker with the date of applicability as fixed by this Court was financial constraint. The Respondent had not specifically pleaded defence of pecuniary losses suffered by the Management as the reason for granting pay scales w.e.f. from a later date. This Court is, however, at a loss to discern from the order dated 16.3.2006 that the cut off date has been fixed keeping in view the date of award i.e. for financial reasons. It was also not the case set up by CONFED that it was not bound by the date of implementation of pay scales accepted by the State Government. The date chosen in the order dated 16.3.2006, that is, was clearly arbitrary and picked out of the hat to cause financial loss. The approval said to have been granted by the Haryana Bureau of Public Enterprises dated 14.3.2006 has neither been placed on record nor its contents made known in the order dated 16.3.2006 (Annexure P-5). The advice sought from outside agencies appears laboured and all decisions taken with respect to the opinion received from the Legal Remembrancer, Haryana, the Chief Minister, the Chief Secretary, the learned Advocate General, Haryana and finally from the Haryana Bureau of Public Enterprises by the Co-operative Society/CONFED are not strictly in conformity with judicial orders and, therefore, the order being unsustainable in law and in fact deserves to be ignored for the reason that it amounts to executive overruling of judicial decision. Therefore, the Labour Court fell in error in dismissing the Application and showing the door of Section 10 of the Act to the Respondent-Union. There has been failure to exercise jurisdiction vested in the Labour Court for reasons which are not germane to proper decision making which was in the nature of Execution proceedings arising out of an award dated 4.9.1992.
The reliance placed by the learned Counsel for the Respondents on the decisions of the Supreme Court in State of Bihar and Others Vs. Bihar Pensioners Samaj, and Municipal Corporation of Delhi Vs. Ganesh Razak and Another, are distinguishable on facts since in neither of those cases the right to revised pay scales to be implemented from a particular date had been adjudicated from Labour Court till the Supreme Court nor was such issue considered or decided. Neither in those cases had the executive by its flat tinkered with or overruled a judicial decision. Nor those cases have special and peculiar litigation history as in the present case.
The orders of this Court cannot be treated as vacuous or an exercise in futility or purely academic as the order dated 16.3.2006 purports to do, The victory of the Union before the learned Single judge modifying the date of implementation of the award to read 1.12.1989 instead of was not pyrrhic.
This Court is, therefore of the considered opinion that there is an error in the impugned order dated 13.9.2011 inasmuch as there has been failure to exercise jurisdiction vested in the Labour Court to implement its own award which is sufficient to warrant Certiorari to issue quashing it. That would serve the ends of justice in a long and hard fought litigation and bring it to the end of a new beginning. In the result this Writ Petition is allowed and the impugned order dated 13.9.2011 (Annexure P-7) is quashed. The matter is remanded to the Labour Court. Section 33-C(2) Application is restored to its original number and the Labour Court is directed to start fresh adjudication on merits. It will be open to the Labour Court to deal with all issues raised by the parties before it including sustainability of financial constraint as a defence plea in an action for computation of money due under the award. The parties are directed to appear before the Labour Court on 18.2.2013. The learned Labour Court shall endeavor to decide the matter on merits as soon as possible since the matter is old.