Vasubhai Kumar Patel vs Shakti Engineering Works

K.S. Jhaveri, J.—The petitioner has prayed to quash and set aside the impugned order granting restoration application of the respondent.

The petitioner raised an industrial dispute on the ground of illegal termination of his services by the respondent on 26th February 1987. The dispute was adjudicated upon and the Labour Court passed an award on 3rd May 1999 directing reinstatement of the petitioner with full back wages. The said award was published on 18th August 1999. Since the award was not complied with, the petitioner preferred Recovery Application No. 3111 of 1999 wherein a direction was issued to the respondent to pay an amount of Rs. 56,256/- within 30 days and a further direction was issued to pay cost of Rs. 1500/-. The said order was passed on 21st February 2000.

The respondent herein filed Misc. Civil Application No. 53 of 2000 in Reference LCA No. 1515 of 1987 in March 2000. The Labour Court restored the original reference against which the present petition has been filed.

The main contention raised on behalf of the petitioner is that the respondent had not filed any application for condonation of delay and without condoning delay the Labour Court ought not to have entertained the application. In order to support his contention learned Advocate for the petitioner has relied upon the following decisions:

Sangham Tape Co. v. Hans Raj reported in 2005 SCC (L & S) 65 wherein it is held that while an industrial court will have jurisdiction to set aside the award having regard to the provisions contained in Section 17A, application therefore must be filed before expiry of 30 days from publication of the said award.

Order dated 13th September 2006 passed in Special Civil Application No. 9231 of 2006 wherein it is directed as under:

This order is made on conditions that, the petitioner will, within four weeks from today, pay a sum of Rs. 50,000/- to the workman towards the back-wages; will pay a cost of Rs. 5,000/- to the workman,will file its reply in the above referred T. Application No. 2 of 1997 and will thereafter diligently attend the Court proceedings. In the event the workman succeeds in aforesaid T. Application No. 2 of 1997 and the back wages are awarded the aforesaid sum of Rs. 50,000/- shall be adjusted against the amount of back wages which may become due and payable tot he workman. In the event the workman loses in the aforesaid T. Application No. 2 of 1997, the petitioner will not be entitled to recover the aforesaid sum of Rs. 50000/-. In the event the aforesaid conditions are not complied with as directed, this order shall stand cancelled and the orders of the Courts below shall stand revived.

This Court in Special Civil Application No. 1901 of 1999 on 29th April 1999 passed the following order:

However, since the learned Labour Court has exercised his discretion in favour of the employer-Deputy Executive Engineer, I do not consider it expedient to interfere with the exercise of his discretion. However, a direction is required to be issued to the respondent employer that hereafter he should act promptly and put forth his defence before the Court below without further delay. The respondent shall also pay a sum of Rs. 25,000/- to the petitioner workman towards the back wages to the workman. In the event the Reference is allowed hereafter and back wages is awarded to the petitioner-workman, the aforesaid amount of Rs. 25,000/- shall be adjusted against the back wags to be paid by the respondent State. In the event the petitioner workman fails or no back wages is awarded to the petitioner-workman, in either case, the petitioner workman shall be entitled to retain the aforesaid amount of Rs. 25000/-. The aforesaid amount of Rs. 25,000/- shall be paid to the workman on or before 31st May 1999. Subject to the above directions, petition is disposed of. Rule is discharged.

Similar orders have been passed by this Court in Special Civil Application No. 7686 of 1998 on 7.9.1999 and in Special Civil Application No. 13541 of 2000 on 11.10.2001.

Learned Advocate for the respondent submitted that in fact the respondent workman was working with one Shakti Building Works and not with M/s Shakti Engineering works. However, the fact remains that the Labour Court has passed the order after the recovery application was allowed.

Having considered the overall facts and circumstances of the case I am of the view that interest of justice would be met by imposing a cost of Rs. 50000/- (Rupees fifty thousand only) upon the respondent and which can be adjusted against the award if ultimately the petitioner succeeds before the Labour Court, the same can be adjusted against back wages. Learned Advocates for the parties could not controvert this proposition.

Accordingly it is directed that a sum of Rs. 50000/- shall be paid to the petitioner by the respondent. If ultimately the petitioner succeeds before the Labour Court the aforesaid amount will be adjusted against back wages. In the event the petitioner workman fails or no back wages is awarded to the petitioner-workman, in either case, the petitioner workman shall be entitled to retain the aforesaid amount of Rs. 50000/- Such amount will be deposited within a period of six weeks from today and only after deposit of the said amount the Labour Court shall proceed with the matter. Rule is made absolute to the aforesaid extent with no order as to costs.