Punjab-Haryana High Court
Punjab General Mazdoor Federation ... vs Union Of India And Another on 22 May, 2012
Author: Alok Singh
Bench: Alok Singh
CWP No.5648 of 2011
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.5648 of 2011
Date of decision: 22.05.2012
Punjab General Mazdoor Federation (Regd.)
....Petitioner
Versus
Union of India and another
....Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ALOK SINGH
Present: - Mr. Amarjit Singh, Advocate, for the petitioner.
Mr. A.S. Grewal, Sr. Standing Counsel,
for respondent No.1.
Mr. J.S. Sidhu, Sr. Addl. A.G., Punjab,
for respondent No.2.
1.Whether to be referred to the Reporters or not?
2.Whether the judgment should be reported in the Digest?
*****
ALOK SINGH, J.
1. Petitioner - Punjab General Mazdoor Federation - has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India challenging the vires of Section 7 of the Industrial Disputes (Amendment) Act, 2010, whereby sub-sections (9) and (10) were inserted in Section 11 of the Industrial Disputes Act, 1947 (for brevity 'the 1947 Act').
2. As per the averments made in the petition, after the incorporation of sub-sections (9) and (10) in Section 11 of the 1947 Act by way of Amendment Act of 2010 all the awards, orders or settlements arrived at are being sent to the civil Court for the execution thereof as a decree of the civil Court, therefore, workman is being deprived to CWP No.5648 of 2011 -2- enforce the award either by resorting to Section 29 or Section 33-C of the 1947 Act. As per petitioner, since there is a mandate under sub- section (10) of Section 11 of the 1947 Act to transmit the award to the civil Court, therefore, all the awards/orders/settlements are being sent to the civil Court and are not being sent to the appropriate Government for publication thereof under Section 17 of the 1947 Act, therefore, workmen are being deprived to resort to Section 33-C or Section 29, as the case may be, which according to the petitioner, is a fastest and cheapest remedy to enforce the award; execution of the award in civil Court shall be complicated, expensive and lengthy procedure.
3. In the reply filed by Union of India, it has been specifically asserted that newly added sub-sections (9) and (10) to Section 11 of the 1947 Act are not in suppression or in derogation to existing provisions contained in Sections 15, 17, 29 and 33-C of the Act rather sub-sections (9) and (10) to Section 11 of the 1947 Act are in addition to the existing provisions of the Act.
4. We have called for the original record to find out as to why amendment was necessitated in Section 11 of the 1947 Act. Having perused the original record it transpires that deliberation started way back in 2005. Some of the labour organizations and Government of India felt that present provisions to enforce the award are not adequate; publication of award takes 30 days and thereafter it cannot be executed within next 30 days and sometimes execution of award is stayed by the notification issued under Section 17-A, therefore, an amendment was felt necessary in the 1947 Act to treat award as decree of the civil Court and to transmit the same to the civil Court for execution thereof in CWP No.5648 of 2011 -3- accordance with the provisions of law for execution of civil Court decree.
5. Sub-sections (9) and (10) of Section 11, Sections 15, 17, 17-A, 29 and 33-C of the 1947 Act are being reproduced herein to understand and appreciate the grievances and apprehensions of the petitioner: -
"11. Procedure and power of conciliation officers, Boards, Courts and Tribunals. -
(1) x x x x
(2) x x x x
(3) x x x x
(4) x x x x
(5) x x x x
(6) x x x x
(7) x x x x
(8) x x x x
(9) Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree of a Civil Court under Order 21 of the Code of Civil procedure, 1908.
(10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it.
15. Duties of Labour Courts, Tribunals and National Tribunals.- Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of section 10, submit its award to the appropriate Government.
17. Publication of reports and awards.- (1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the CWP No.5648 of 2011 -4- appropriate Government thinks fit.
(2) Subject to the provisions of section 17A, the award published under sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.
17A. Commencement of the award.- (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17:
Provided that--
(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.
(3) Where any award as rejected or modified by an order made under sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-
section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2).
(4) Subject to the provisions of sub-section (1) and sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes CWP No.5648 of 2011 -5- enforceable under sub-section (1) or sub- section (3), as the case may be.
29 Penalty for breach of settlement or award.- Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both,and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach.
33C. Recovery of money due from an employer.- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government; 1[within a period not exceeding three months:
[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so CWP No.5648 of 2011 -6- to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.] (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1).
(5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.
Explanation.--In this section "Labour Court"includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State."
6. Having perused the provisions reproduced hereinabove, we are satisfied that by the Amendment Act, 2010 neither existing provisions of Sections 17, 17-A, 29 or 33-C are repealed nor sub- sections (9) and (10) to Section 11 of the 1947 Act are in derogation and suppression of existing provisions. Language of Section 33-C of the1947 Act would go to suggest that power under Section 33-C is without prejudice to any other mode of recovery meaning thereby even if award, order or settlement is transmitted to the civil Court and workman or his legal heir, at his wisdom, wants to take recourse of Section 33-C of the 1947 Act, he can still move an application under the provisions of Section 33-C of the 1947 Act.
7. Learned counsel for the petitioner has vehemently argued CWP No.5648 of 2011 -7- that since word 'shall' is used in sub-section (10) to Section 11 of the 1947 Act, therefore, it is incumbent on the part of the Tribunal or Labour Court to transmit the award, order or settlement to the civil Court for its execution, therefore, award, order or settlement shall not be submitted to the appropriate Government for its publication as provided under Sections 15 and 17 of the 1947 Act and without publication, its enforcement would be impossible under Sections 29 and 33-C of the 1947 Act.
8. Learned counsel appearing for the Union of India has fairly stated that all the Tribunals or Labour Courts should prepare two copies of the award, one to be transmitted to the civil Court as per sub-section (10) of Section 11 and second to be forwarded to the appropriate Government for publication as required under Sections 15 and 17 of the 1947 Act so that workman shall have option either to proceed under Section 11(9) & (10) or to invoke Sections 29 or 33-C of the 1947 Act.
9. We are in full agreement with the suggestion made by the learned counsel appearing for the Union of India.
10. Record produced before us does not suggest that provisions of sub-sections (9) and (10) to Section 11 of the 1947 Act are in derogation or suppression of existing provisions made under Sections 15, 17, 17-A, 29 and 33-C of the 1947 Act, therefore, Labour Court or Tribunal shall prepare the award in duplicate and shall transmit the award to the civil Court as well as to the appropriate Government for publication in accordance with Sections 15 and 17 of the 1947 Act so that workman can exercise his option either to approach the civil Court for its execution under Section 11 or to approach the authority under CWP No.5648 of 2011 -8- Sections 29 or 33-C of the 1947 Act.
11. In view of the observations made hereinabove, sub-sections (9) and (10) of Section 11 of the 1947 Act cannot be held to be in derogation or suppression of any other provision of the 1947 Act and same are in addition to existing provisions, therefore, their vires are upheld.
12. Petition stands disposed of accordingly.
(M.M. Kumar) Acting Chief Justice (Alok Singh) Judge May 22, 2012 R.S.