Upper Deob Sugar Mills Ltd. vs Deputy Labour Commissioner and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

Both the petitioners have challenged the same order, i.e., order dated 15.9.2005 (Annexure-11 to the first writ petition) passed by Deputy Labour Commissioner u/s 6H (1) of U. P. Industrial Disputes Act (equivalent to Section 33C of I. D. Act). The application on which impugned order was passed, was filed on 28.12.2004 by respondent Nos. 2 to 6, Sri Deshpal Sharma and others against both the petitioners.

Services of these five workmen (respondents No. 2 to 6) were terminated by the petitioners. They raised industrial dispute. Matter was referred to the Labour Court, U. P., Meerut, where it was registered as Adjudication Case Nos. 1, 2, 3, 4, 5 and 9, all of 1981. Services had been terminated on 28.2.1979. All the cases were decided by common judgment/award dated 6.6.1983 given by Presiding Officer, Labour Court. Termination order was declared to be illegal and reinstatement with full back wages was directed. However, said award was set aside in writ petition by this Court, against which Civil Appeal No. 2706 of 2000 was filed before the Supreme Court. Supreme Court allowed the appeal. Operative portion of the Supreme Court judgment dated 18.4.2000 has been annexed as Annexure-2 to the writ petition and is quoted below:

In our view, justice of the situation requires reinstatement of the workmen concerned being the appellants herein, forthwith and with continuity of service with the council as was directed by the labour court. The reinstatement of the appellants shall be effective within a period of eight weeks from the date hereof. But so far as the payment of back-wages is concerned, since there is no evidence of non-employment of the workmen concerned for all these years, we feel it expedient in the facts and circumstances of the matter, to direct that 30 per cent of the back wages shall be paid to the appellant herein and of the same, 50 per cent (i.e., 15% of back wages) be borne by the Mill and the balance 50 per cent (i.e., only 15%) shall be borne by the council. The appeal therefore, succeeds as aforesaid. The impugned order of High Court is set aside. There will be no order as to costs.

(Italics supplied)

Thereafter, petitioners were reinstated on 15.5.2000. An amount of Rs. 2,80,000 was paid by the petitioner of the first writ petition and an equal amount by the petitioner of the second writ petition. According, to the petitioner''s counsel, this was in full compliance of the order of the Supreme Court. However, respondents after receiving the said amount filed application u/s 6H (1) of U.P.I.D. Act, claiming that they were entitled to more amount as their back salary had not been calculated in the revised pay scale, which was revised in between the period of their termination and reinstatement and increments etc., had also not been added. One application earlier filed by them on 3.10.2000 was consigned to record and thereafter, they filed second application on 28.12.2004 on which impugned order was passed. Copy of the said application is Annexure-8 to the writ petition.

Deputy Labour Commissioner, in the impugned order, held that respondents had not filed any chart and petitioner''s chart of due salary was quite correct. However, detailed reasons were not given by Deputy Labour Commissioner. Ultimately, Deputy Labour Commissioner directed payment of Rs. 17,84,300.

Petitioners had claimed the arrears till December, 2004.

The entire controversy in the writ petitions revolve around the interpretation of concluding portion of the Supreme Court judgment dated 18.4.2000 (supra).

The argument of learned Counsel for the petitioners that as earlier . application had been, consigned to record, hence second application was barred by principles of res judicata and not maintainable is not tenable. Applications u/s 6H of U.P.I.D. Act or 33C of I.D. Act are in the nature of execution application and dismissal of execution application in default or not on merit does not debar the decree holder from filing second application.

Regarding res judicata, learned Counsel for the petitioner has cited an authority of the Supreme Court in 2004 (103) FLR 460 and P. K. Village Industries Board v. P. Kulothangan 2003 (99) FLR 1175. In the said authorities it has been held that general principles of res judicata and principle of Order II, Rule 2, C.P.C. apply to Industrial Disputes and writ proceedings also.

However, dismissal of earlier execution application without any decision on merit does not attract principles of res Judicata.

Learned Counsel for the petitioner has cited an authority of the Supreme Court in Andhra Pradesh State Road Transport Corporation (A.P.S.R.T.C.) and Others Vs. Abdul Kareem, . In the said authority the Supreme Court has held that if labour court passed the award of reinstatement without back wages and nothing was stated about continuity of service and notional increments for the period for which workman was not in service then the workman will not get the benefit of increments notionally. Similar view has been taken in A.P.S.R.T.C. v. B.S. David Paul AIR 2006 SC 965 : 2006 (5) AWC 4803 (SC).

Learned Counsel for the petitioner has also vehemently argued that in proceedings u/s 6H of U.P.I.D. Act or Section 33C of I.D. Act only computation is possible and in such proceedings determination cannot be made for the first time. The point argued by learned Counsel for the petitioner is quite correct but it has got no application to the facts of the instant case. The Supreme Court in several authorities including the following has held that u/s 33C of Industrial Disputes Act determination is not possible.

- Union of India (UOI) and Another Vs. Kankuben (Dead) by LRs. and Others etc. etc.,

- U.P. State Road Transport Corporation Vs. Shri Birendra Bhandari, and

- Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner and Others,

However, in my opinion in the instant case complete adjudication has already been made by the Supreme Court in its order dated 18.4.2000 (supra). In the said order reinstatement with continuity in service has been directed.

Accordingly, in my opinion absolutely no determination is required to be made and it is only and only a question of computation. All notional increments which the workmen would have earned had their services not been terminated will have to be taken into account for determining 30% back wages as well as their wages/salaries after reinstatement.

However, as petitioners did not give their detailed version about the notional increments hence in the interest of justice I consider it appropriate to grant one more opportunity to the petitioners to give their version of notional increments after making payment of a reasonable percentage of the amount directed to be paid by the impugned order.

Accordingly impugned order is set aside and the matter is remanded to Deputy Labour Commissioner concerned. Petitioners are directed to deposit Rs. 6 lacs (Rs. 3 lacs by each of the petitioner) before the Deputy Labour Commissioner on 2.7.2009 positively (this is almost l/3rd of the amount directed to be paid by the impugned order). Alongwith deposit of Rs. 6 lacs petitioners shall give their detailed version regarding the notional increment. Workmen must also be permitted to give their counter version and thereafter the amount payable must be determined and paid. Both the parties are directed to appear before the Deputy Labour Commissioner on 2.7.2009. On 2.7.2009, aforesaid amount of Rs. 6 lacs shall be deposited and the detailed statement as directed above should be submitted by the petitioners. The amount of Rs. 6 lacs to be deposited as above shall be distributed among the respondents proportionately. However, in case Rs. 6 lacs are not deposited on 2.7.2009, then this order shall stand automatically vacated and writ petitions shall stand dismissed.

Writ petitions are accordingly disposed of.