Allahabad High Court
Abhimanyu And 11 Others vs Pramod Gupta, Divisional Officer, ... on 11 February, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- CONTEMPT APPLICATION (CIVIL) No. - 7057 of 2019 Applicant :- Abhimanyu And 11 Others Opposite Party :- Pramod Gupta, Divisional Officer, Social Forestry Counsel for Applicant :- Shyam Narain,Sudhanshu Narain Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the parties.
In response to the earlier order passed by this Court, the opposite party is present.
Present contempt application has been preferred against the wilful defiance of the order dated 28.2.2018 passed in Writ Petition No.33432 of 2012 (Abhimanyu & Ors. v. The Principal Secretary & Ors.), which is quoted as under:-
"The petitioners who are 12 in number were retrenched from the service of the respondents no. 2 with effect from 1.3.1990. Thereupon they raised industrial disputes which were referred by the State Government to the Labour Court on 2.6.1991. A combined award in all the references was passed on 31.10.2011. However, when by the award the relief of reinstatement and back wages was not allowed and only a lump sum compensation was awarded, the petitioners approached this Court by means of this writ petition for the modification of the award.
It has been submitted by the learned counsel for the petitioners that when under similar circumstances Mahindra s/o Triveni and Prabhunath s/o Gazar were retrenched on 19.9.1991 and 1.8.1990 respectively then they had also challenged their retrenchments before the Labour Court and by awards dated 20.4.2011 and 29.3.2011 they were reinstated and taken back in service and they were awarded 50% of their back wages. Learned counsel for the petitioner has submitted that just as the retrenchment of Mahendra and Prabhunath were found illegal, the petitioners retrenchments were also found illegal by the Labour Court and, therefore, the petitioners should have also been reinstated and 50% of their back wages should have been awarded to them.
Further more, the counsel for the petitioner alongwith his written argument here has filed a written argument which he had placed before the Labour Court where in it was specifically stated that similar awards were passed in the cases of other workmen and they were reinstated with back wages. The awards of the other workmen were also brought to the notice of the Labour Court through the written submission filed before it.
Learned counsel for the petitioner further submitted that it is a settled principle of law that when it is found that a workman's termination was bad then he should be reinstated with full back wages. If reinstatement is not done and back wages are not awarded then the employer instead of getting punished would be rewarded for a wrong which he had definitely committed.
Learned Standing Counsel who represents the respondents submitted that when the petitioners had not taken up the case that they were not gainfully employed elsewhere then they should not be given their back wages. Further learned Standing Counsel has submitted that reinstatement should also not be directed as the petitioners were employed for a very short period and there was no work available for them with employees.
Having heard the learned counsel for the parties and after having gone through the record, I am of the view that the award requires to modified. The petitioners should be reinstated and they should also be awarded 50% of their back wages. The forest department is engaged in the work of afforestation in various regions of the State of U.P. and their work is still continuing. Further, when Mahendra S/o Triveni and Prabhunath S/o Gazar who were reinstated with 50% of their back wages after finding that they were also wrongly retrenched then the petitioners who were under similar circumstances retrenched should also be reinstated with back wages. 50% of their back wages should also be paid to them.
Under such circumstances, the award dated 31.10.2011 is modified. The petitioners shall now be reinstated and they shall be awarded 50% of their back wages. The lump sump compensation which was given to the petitioners by the employer shall be adjusted.
The writ petition is, thus, partly allowed."
On the matter being taken up today, learned counsel for the opposite party has filed affidavit dated 11.2.2020, which is taken on record. By means of the said affidavit, it is claimed that inspite of notice to the applicants in response to the order dated 28.2.2018, they have not joined the department. On one hand inspite of notices the applicants-petitioners had not joined the department and on the other hand they have also instituted proceeding under Section 6H (1) of U.P. Industrial Disputes Act. While filing subsequent writ petition being Writ Petition No.18657 of 2019 (Abhimanyu & Ors. v. State of U.P. & Ors.) they have also raised grievance that the aforesaid order of this Court has not been complied with so much so that the neither the petitioners have been reinstated nor the back wages paid. Finally the said writ petition was disposed of on 29.5.2019 with following observations:-
"The petitioners' services were terminated by respondent No.2 w.e.f. 1.3.1990. They raised an industrial dispute that was referred to the Labour Court under Section 2K of the U.P. Industrial Disputes Act. The Labour Court dealt with the matter arising out of various references by different workmen, who are in multiple number here also, that include Adjudication Case Nos.358, 340, 341, 342, 343, 344, 345, 346, 348, 349, 350, 370, 371, 372, 373 and 374 of 1992. All of them were decided by a common award dated 31.10.2011 by which relief of reinstatement and back wages was refused and instead a lump-sum compensation was awarded. The petitioners challenged the award before this Court by means of Writ C-No.33432 of 2012 whereby the writ petition aforesaid was partly allowed, and in modification the award, it was ordered that the petitioners shall be reinstated with 50% back wages. The lump-sum compensation paid to the petitioners by the employers was directed to be adjusted. The grievance of the petitioners is that the order of this Court has not been complied with somuch so that neither the petitioners have been reinstated or the back wages paid. The petitioners have made an application under Section 6H(1) of the U.P. Industrial Disputes Act, which has been registered as R.D. Case No.2 of 2018.
Heard Sri Sudhanshu Narain, learned counsel for the petitioners and Sri S.K. Chaudhary, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3.
Sri Sudhanshu Narain, learned counsel for the petitioners has come up with two prayers. The first prayer cannot be granted for the reason that a mandamus cannot be issued for the enforcement of a judgment of this Court. The remedy lies elsewhere. So far as the second relief is concerned, it is the duty of the Deputy Labour Commissioner to expeditiously dispose of the application under Section 6H(1) of the Act, and in sitting over the matter, the Deputy Labour Commissioner is in breach of his statutory duties.
Accordingly, the Deputy Labour Commissioner, Gorakhpur is ordered to decide pending application under Section 6H(1) of the Act, filed by the petitioner giving rise to R.D. Case No.2 of 2018 under the U.P. Industrial Disputes Act, within a period of four weeks from the date of receipt of a certified copy of this order.
This petition is disposed of in terms of the aforesaid orders.
No order as to costs."
So far as proceeding under Section 6H (1) of U.P. Industrial Disputes Act ( in short "the Act") is concerned, the same has been finalised by the Deputy Labour Commissioner, U.P. Gorakhpur vide order dated 3.6.2019, which is appended at page 85 of the paper book of the contempt application.
In this backdrop, Shri K.R. Singh, learned Addl. Chief Standing Counsel submits that so far as actual joining of the applicants are concerned, till now they have not assured the Court that under what circumstances they have not joined. On the other hand in the garb of proceeding under Section 6H (1) of the Act they are receiving the amount without any work. It is contended that in the proceeding under Section 6H (1) an exorbitant amount of Rs.73,96,560/- has been directed to be paid to the applicant without any work. Even before this Court no assurance has been made for joining the department. More so the order dated 28.2.2018, which is alleged to be flouted by the opposite party, is subject matter of challenge in special leave petition having Diary No.5426 of 2020.
In the aforesaid facts and circumstances of the case, the Court is not inclined to proceed any further in the matter as the applicants have utterly failed to establish their bonafide in the matter.
Consequently, the contempt application is dismissed. Notices, if any, stand discharged. The presence of the opposite party is dispensed with.
Order Date :- 11.2.2020 SP/