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Judgment
Tarun Agarwala, J.—Heard Sri J.P. Pandey, the learned Counsel for the petitioner and Sri Ashutosh Shukla, the learned Counsel for the respondent workman.
This group of petitions is being decided together since the issue involved in the same. For facility, the facts of Writ Petition No. 16095 of 1999 is being taken into consideration. The services of the workman was terminated with effect from 1st January 1979. An industrial dispute was raised on 27th July, 1987 with regard to the validity and legality of the order of termination dated 1st February, 1979. The Labour Court, after considering the material evidence on record, gave an award dated 20th December, 1995 directing reinstatement of the workman and also awarded a lump-sum compensation of Rs. 8,000/-towards back wages. The petitioners, being aggrieved, filed a writ petition, in which, no interim order was passed and, accordingly, the award became enforcible. Ultimately, the writ petition was dismissed on 27th May, 2005, against which, a SLP was filed, which was also dismissed on 12th December, 2006, by the Supreme Court. The said award consequently, became final inter se between the parties.
During the pendency of the writ before the High Court, the workman moved an application u/s 6-H(1) of the U.P. Industrial Disputes Act for computation of wages for the period January, 1996 to 31st October, 1998 claiming wages of a regular workman in terms of the award. The petitioners filed their objections stating therein that the workman was working on muster roll on daily rated basis, and therefore, under the award he was liable to be reinstated on muster roll and was liable to be paid the wages of a muster roll provided he joined in terms of the award. Inspite of this objection, the Deputy Labour Commissioner passed an order dated 31.12.1998 for the recovery of the wages as per the award for the period January, 1996 to 31st October, 1998. The petitioner, being aggrieved, by the said order has filed the present writ petition, in which, an interim order dated 21st April, 1999 was passed directing the petitioner to deposit the entire amount and permitting the workman to withdraw half of the amount. It has come on record that the workman has withdrawn half of the amount.
During the pendency of this petition, the workman moved another application u/s 6-H(1) of the Act for the recovery of the wages for the period 1st January, 1999 to 31st December, 2001 alleging that the employers are not allowing the workman to join the duties in terms of the award and that he was liable to be paid the wages of a permanent workman, bonus and other allowances as paid to regular workers of the employers. The petitioner filed their objections alleging that the workman was not interested in joining in terms of the award and was only interested in getting the arrears of wages without putting in actual work. The employers disputed that they had refused to allow the workman to join the duty.
It transpires that the Deputy Labour Commissioner proceeded ex parte and passed an order for the recovery of the amount, against which, the petitioner filed a writ petition, which was allowed and the order of the Deputy Labour Commissioner was set aside and the matter was remitted to the Deputy Labour Commissioner to decide the matter afresh. After hearing the employers, the Deputy Labour Commissioner after considering the matter again issued an order dated 26.10.2002 for the recovery of the wages for the period January, 1999 to December 2001, against which, the petitioner has filed Writ Petition No. 12456 of 2003. Similar orders were passed by the Deputy Labour Commissioner in the connected writ petitions.
The learned Counsel for the petitioner submitted that under the award, the workman was only entitled for compensation as awarded by the Labour Court and was also entitled for reinstatement, but the workman did not join, and therefore, was not entitled for any wages. The learned Counsel further submitted that the amount claimed is not a ''money due'' under the award inasmuch as the workman has claimed the wages of a regular workman whereas the award only directed the workman to be reinstated on the post, on which, he was originally working, that is, on muster roll and consequently, the application u/s 6-H(1) of the U.P. Industrial Disputes Act was not maintainable. The learned Counsel submitted, that at best, the workman claim could be an ''entitlement'' under the award which could be adjudicated only in an application u/s 6-H(2) of the U.P. Industrial Disputes Act. The learned Counsel further submitted that post award wages could not be claimed u/s 6-H(1)of the Act. In the end, the learned Counsel submitted that the Deputy Labour Commissioner has not given any reason while passing the impugned order u/s 6- H(1).
On the other hand, the learned Counsel for the respondent submitted that the workman had been fighting for his rights and the matter went right upto the Supreme Court where the award was eventually affirmed, inspite of which, the employers refused to reinstate the workman, and therefore, a sham plea was being raised by the employers to the effect that the workman was not interested in reinstatement pursuant to the award. The learned Counsel submitted that in such an eventuality, the application u/s 6-H(1) was maintainable since only an arithmetical calculation of the wages, that was payable to the workman, was only required to be calculated, and therefore, the Deputy Labour Commissioner was justified in passing the order for recovery of the amount.
Having heard the learned Counsel for the parties at some length and having perused the record, this Court is of the opinion that the order of the Deputy Labour Commissioner passed u/s 6-H(1) of the U.P. Industrial Disputes Act cannot be sustained for the reasons stated hereunder. The Deputy Labour Commissioner exercises quasi judicial powers and consequently, while adjudicating any claim u/s 6-H(1), was required to give reasons while allowing or disallowing a claim. In the present case, I find that no reason whatsoever has been given by the Deputy Labour Commissioner while passing the order dated 31st December 1998. On this ground, the impugned order cannot be sustained.
Further, the Court finds that the claim made by the workman could not be adjudicated in an application u/s 6-H(1) of the U.P. Industrial Disputes Act. A perusal of the two applications of the workman indicates that the workman had claimed the wages of a regular workman. The workman has also claimed bonus and other allowances, which was payable to a regular workman. Under the award, the workman was entitled to compensation amounting to Rs. 8,000/- and was entitled for reinstatement. The reinstatement was on the post, on which, the workman was working earlier at the time of his termination. Admittedly, the workman was working on muster roll on daily rated basis. Consequently, in terms of the award, the workman could only be reinstated on muster roll as a daily rated workman and would be entitled for wages of a muster roll from the day when he joins the service of the petitioner. The claim for wages of a regular workman was not in consonance with the award, and therefore, such claim could not be adjudicated u/s 6-H(l) since it is not a ''money due'' under an award. In the U.P. Avas Evam Vikas Parishad and others v. Madhu Shanker Aganval and another, this Court held that post award wages cannot be calculated in proceedings u/s 6-H (1) of the Act.
The workman''s claim, if any, is one of an entitlement which in my opinion can only be adjudicated u/s 6-H(2) or u/s 4-K before the Labour Court.
No doubt, if the petitioner refuses to reinstate the workman, the workman would be obliged to move an application for the recovery of the wages u/s 6H(1). But in the event, the workman does not join the duly in terms of me award, in that event, the Deputy Labour Commissioner has no jurisdiction to decide the matter.
This leads to the question as to whether post award wages in such a scenario could be adjudicated u/s 6-H(1) of the U.P. Industrial Disputes Act. In U.P. Avas Evam Vikas Parishad and others v. Madhu Shanker Aganval and others (Sic) (3) ADJ 34, the Court held that where the workman at no point of time offered employment pursuant to his reinstatement in terms of the award and only moved an application u/s 6-H(1) for the computation of the wages, the said application was in fact an application for the enforcement of the contract and was not maintainable. The Court held that post award wages would not come under the category of ''money due'' and, consequently, the application u/s 6-H (1) of the Act could not be filed. The said judgment is squarely applicable to the present case.
In the light of the aforesaid, this Court is of the opinion that the application of the workman filed u/s 6-H(1) of the U.P. Industrial Disputes Act was not maintainable. Consequently, the order passed by the Deputy Labour Commissioner could not be sustained and is quashed to the extent of awarding post award wages. The application for the recovery of Rs. 8,000/- towards lump sum compensation in terms of the award was only maintainable.
By an interim order, the Court had directed the petitioner to deposit the entire amount before the Deputy Labour Commissioner. It has come on record that 50% of the amount have already been withdrawn. Consequently, it is open to the petitioner to withdraw the remaining amount, which has been deposited before the Deputy Labour Commissioner.
In the event, the workman files an appropriate application claiming post award wages and the same is adjudicated by the appropriate authority/Court and if any amount is found to be payable to the workman, the amount so paid to the workman in terms of the interim order of this Court would be adjusted.
The writ petitions are allowed.