M/S Manisha Pharmoplast (P) Ltd. vs Brijesh Katiyara and Another

Manoj Kumar Tiwari, J.

This Appeal is directed against the judgment and order dated 23.07.2018 rendered by the learned Single Judge of this Court in Writ Petition (M/S)

No. 824 of 2015 ‘M/S Manisha Pharmoplast (P) Limited vs. Brijesh Katiyar & Another’.

The brief facts which are necessary for adjudication of this appeal are that respondent no.1 was a workman employed in Umergaon, Gujrat Unit of

the appellant since 01.07.1990. On 26. 07.2005 respondent no.1 was transferred to Haridwar Unit where he joined duties. Subsequently on

31.07.2007, his services were orally terminated. He raised industrial dispute against his termination, which was referred to Haridwar Labour Court and

was registered as Adjudication Case No. 279 of 2009 (Old Adjudication Case No. 08 of 2008). The Labour Court answered the reference in favour

of the workman and held that termination of his services is unjust and illegal.

On the question of relief, learned Labour Court provided that respondent no.1. would be entitled to reinstatement with continuity of service.

However, regarding wages, it was provided that he would be entitled to wages only from the date of the award.

Employer (appellant) challenged the award rendered by learned Labour Court by filing Writ Petition No. 2177 of 2009. A learned Single Judge of

this Court rejected the Stay application filed by the appellant and also directed the appellant to reinstate respondent no.1 in service, vide order dated

23.12.2009.

The appellant sought modification of the order dated 23. 12.2009, whereby, he was directed to reinstate respondent no.1. The said application was

rejected vide order dated 23.03.2010 and it was provided that in the event appellant does not reinstate the workman then appellant shall be required to

pay wages to the workman, till disposal of the Writ Petition.

It is the case of the appellant that in terms of the said order dated 23.03.2010, appellant paid wages to the respondent w.e.f. 23. 12.2009 i.e. the

date when the first order was passed by the learned Single Judge of this Court directing the appellant to reinstate respondent no.1 workman in service.

Mr. Pankaj Miglani, learned counsel for the appellant, fairly submits that the wages from the date of award till 23.12.2009 were not paid to the

respondent which are payable to him.

While appellant’s Writ Petition No. 2177 of 2009 against the award was still pending, appellant passed an order on 09.07.2010, whereby, the

respondent was asked to join at Umergoan (Gujrat). Since, the respondent did not join at Umergoan (Gujarat), therefore, an application was filed by

the appellant in Writ Petition No. 2177 of 2009 seeking a direction to respondent no.1 to join at Umergoan. The said application was rejected by

learned Single Judge vide order dated 20. 08.2010 by holding that such direction cannot be issued however appellant is free to take appropriate action

against the workman.

Subsequently, Writ Petition No. 2177 of 2009 filed by the appellant was dismissed vide judgment dated 15.04.2014 and the award rendered by the

learned Tribunal was upheld. As the appellant had stopped paying wages to the respondent since 09.07.2010, purportedly, on the strength of the order

dated 20.08.2010 passed by this Court, therefore, respondent no.1 filed an application under Section 6H(1) of U.P. Industrial Disputes Act, claiming

monetary benefits in term of the award.

Notices were issued on the application filed by respondent no.1 and after considering the objection submitted by the appellant, the Assistant

Labour Commissioner, Haridwar, passed an order on 27.03.2015, whereby the amount of wages was computed, as total `10,79,615/- and after

adjusting the amount already paid a sum of `10,06,552/- was directed to be paid to the workman within seven days.

Thus feeling aggrieved by order dated 27.03.2015 passed by the Assistant Labour Commissioner, under Section 6H(1) of U.P. Industrial Disputes

Act, appellant filed Writ Petition under Article 226 of Constitution of India. The said Writ Petition was dismissed by reason of the impugned judgment

dated 23.07.2018. Operative portion of the said judgment is extracted below:-

“ The case of the Management before this Court is that it has directed the respondent/workman to join his duties in Gujarat. He did not comply

with the orders and this Could not filed application under Section 6H (1) of the Uttar Pradesh Industrial Dispute Act, 1947 claiming the salary.

The respondent/workman was never reinstated in service, even after the orders passed by this Court on 23. 12.2009. The Management of its own

wisdom, instead of, appointing the workman, had decided to pay him the salary. The Management has also come to this Court that orders were not

complied with by the Workman whereby he was transferred to Gujarat.

It was categorically stated by the Court that the application was misconceived and it was rejected. The Management has not placed on record the

copy of the reinstatement order on the basis of which, the respondent/workman could join his duties at Gujarat. The Management has not dealt with

the respondent/workman in a just and fair manner.â€​

The principal contention raised on behalf of the appellant is that once he started paying wages to respondent no.1 w.e.f. 23. 12.2009 in compliance

of order of this Court dated 23.03.2010, it would amount to taking the respondent back on the rolls, therefore, the relationship of employer and

employee is re-established. In other words, it would amount to reinstatement of respondent in service.

Learned counsel for the appellant further submits that the learned Single Judge vide order dated 20.08.2010 passed in Writ Petition No. 2177 of

2009 had granted liberty to the appellant to take appropriate action against the respondent, therefore, appellant was justified in stopping payment of

wages to the respondent w.e.f. 9. 07.2010.

We are not impressed by the submission made by learned counsel for the appellant. The relationship of Master and Servant got severed when

respondent’s services were terminated on 31.01.2007. Learned Labour Court although declared the termination to be unjust and illegal, however,

the appellant did not accept the award rendered by learned Tribunal and challenged the same by filing a Writ Petition before this Court. The wages

which were paid by the appellant to respondent no. 1 for a few months were paid pursuant to an interim order passed by the learned Single Judge of

this Court, which will not have the effect of reestablishing the relationship of Master and Servant, which was severed on 31.07.2007. The fact remains

that no order reinstating respondent no. 1 was passed by the appellant.

The second submission of learned counsel also is without substance. Learned Single Judge had granted liberty to the appellant to take appropriate

action against the respondent, in case he fails to join at the transferred place. In the event of reinstatement of respondent no. 1 in service, appellant

could have initiated disciplinary enquiry against respondent no. 1 for not complying the transfer order, which has never done. On the other hand,

appellant unilaterally stopped wages which were paid to respondent no. 1 pursuant to interim order of this Court. Therefore, conduct of the appellant

cannot be justified.

Learned counsel for the appellant, lastly, submitted that the appellant had disputed the computation made by Assistant Labour Commissioner,

which aspect has not been dealt with in the impugned judgment. We have gone through the Writ Petition. No such plea regarding quantum of the

amount payable as wages to the respondent was taken by the appellant in his Writ Petition, therefore, this plea cannot be taken for the first time in

Appeal.

In such view of the matter, we concur with the view taken by the learned Single Judge. There is no scope of interference. Accordingly, the

Special Appeal is dismissed.

No order as to cost.