Allahabad High Court
Electricity Distribution Division And ... vs Ajuddi And Another on 15 March, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 17.11.2017 Delivered on 15.3.2018 Case :- WRIT - C No. - 44957 of 2011 Petitioner :- Electricity Distribution Division And Another Respondent :- Ajuddi And Another Counsel for Petitioner :- S.C. Srivastava Counsel for Respondent :- C.S.C.,Rajendra Prasad Tiwari Hon'ble Mrs. Sangeeta Chandra,J.
1. The petitioners before this Court have challenged the Recovery Certificate dated 19.4.2011 passed in Misc Case No. 8 of 2009 arising out Adjudication Case No. 151 of 1994 and the Citation dated 28.6.2011 issued by the Tehsil Authorities in pursuance of the said Recovery Certificate.
2. The facts relevant for the controversy are to the effect that respondent no. 1 was initially engaged on muster roll as daily wage employee at the rate of Rs. 25/- per day sometime in the year 1983. The services of respondent no. 1 were terminated on 11.5.1993 without paying him retrenchment compensation or notice pay. The respondent no. 1 raised an industrial dispute and reference was made under Section 4K of the U.P. Industrial Dispute Act, 1947 to the Presiding Officer, Labour Court by the State Government. The Labour Court passed an ex-parte Award on 6.9.1996 against which Award the petitioner filed Writ Petition No. 28988 of 1997 U.P. Power Corporation Ltd. Vs. Presiding Officer, Labour Court & others.
3. During the pendency of the Writ petition No. 28988 of 1997, an interim order was passed on 22.9.1997 directing the petitioners to reinstate the workman and consequently the respondent no. 1 was reinstated in service and continued to be paid wages as admissible to daily wage unskilled labour as notified under the Minimum Wages Act.
4. Writ Petition No. 28988 of 1997 was eventually allowed on 30.4.2007 and the matter was remanded to the Labour Court to decide afresh after giving opportunity of hearing to the employer. However it was further directed that the workman would continue to be employed and to be paid his current salary.
5. In compliance of the orders passed by this Court on 30.4.2007, during the pendency of the Adjudication before the Labour Court, the respondent no. 1 was paid minimum wages as notified by the Labour Commissioner on 28.2.2007 i.e. Rs. 2600/- per month along with dearness allowance of Rs. 298.85/- per month. On 19.2.2008, an Adjudication Case No. 151 of 1994 was again allowed by the Labour Court and the employers were directed to reinstate the workman with continuity in service and to pay him all back wages since the date of his termination i.e. since 11.5.1993.
6. The petitioners thereafter filed Writ Petition No. 65182 of 2008 against the Award. During the pendency of the writ petition, an application under Section 6H(1) of the U.P. Industrial Disputes Act, 1947 was filed by the respondent no. 1 claiming Rs. 9,18,565/- as wages w.e.f. 11.5.1993 upto November 2009 on the basis of wages as admissible to a regular Class-IV employee.
7. This Court dismissed the Writ Petition No. 65182 of 2008 on 31.3.2010. The petitioners filed their objections before the Deputy Labour Commissioner on 8.4.2010 disputing the claim of the respondent no. 1 to regular salary as admissible to Class-IV employee. In the said objections, the petitioners clearly stated that the Labour Court in its Award dated 19.2.2008 had directed for reinstatement along with back wages and continuity in service and since the respondent no. 1 was initially engaged as a muster roll employee on daily wages, he could only be reinstated as a muster roll employee and could not claim salary admissible to regular Class-IV employee.
8. During the pendency of the application under Section 6H(1), a Special Leave Petition No. 13942 of 2010 was also preferred by the petitioners against the judgment and order dated 31.3.2010 passed by this Court in Writ Petition No. 65182 of 2008. The Special Leave Petition was dismissed by Hon'ble the Supreme Court on 13.9.2010.
9. It has been alleged by the petitioner that the Deputy Labour Commissioner without looking into the objections filed by the petitioners, by the impugned order dated 19.4.2011 has issued a Recovery Certificate directing for recovery of Rs. 9,18,965/- as claimed by the workman. Consequently, a recovery citation was issued by the District Magistrate on 28.6.2011.
10. Counsel for the petitioner at the time of argument has informed this Court that in compliance of the interim order passed by this Court on 9.8.2011, the amount of Rs. 9,18,965/- has been deposited before the Collector, Jhansi and 50% of the said amount has been released in favour of the workman and the remaining 50% has been invested in a fixed deposit in the Bank.
11. Learned counsel for the petitioners on the basis of the Award dated 19.2.2008 has submitted that from a perusal of the same, it is evident that the workman was engaged at Rs. 25 per day on muster roll and on his services being terminated on 11.5.1993 had raised the industrial dispute. The Award on the basis of which the claim has been raised in the application under Section 6H(1) by the respondent no. 1 does not direct for reinstatement of the workman on a Class-IV post.
12. The operative portion of the Award only states that the workman is reinstated and shall be entitled to back wages for the entire period when he remained out of employment along with other allowances to be paid to him within one month of the Award being published. If such payment was not made within the time prescribed then the workman would be entitled to 12% interest on delayed payment also.
13. It has been contended that in compliance of the interim order passed by this Court in earlier round of litigation, the respondent no. 1 had already been reinstated as a muster roll employee and was getting Rs. 765/- per month as minimum wages and dearness allowance admissible to unskilled labour. When the Award was given by the Labour Court on 19.8.2008 and Writ Petition No. 65182 of 2008 was pending before this Court, in pursuance of an interim order, the respondent no. 1 was being given Rs. 2899/- w.e.f. 1.5.2007, and he continued to get the same and was not entitled to regular salary of a Class-IV employee as claimed by him.
14. The case set up by the respondent no. 1 in Adjudication Case No. 151 of 1994 was with regard to continuous engagement on muster roll on daily wages of Rs. 25/- per day. The Award directing his reinstatement could only be interpreted to the effect of reinstating him as on muster roll basis only, as the minimum wages for unskilled daily wage labour had been upwardly revised by a notification issued by the Labour Commissioner on 28.2.2007 Rs. 2899/- became admissible to the respondent no. 1. which was given to him w.e.f. 1.5.2007. The Deputy Labour Commissioner has wrongly ignored the objections filed by the employers before it and the Recovery Certificate issued on 19.4.2011 is liable to be quashed in view of the law laid down by the Hon'ble Supreme Court in its judgment rendered in Municipal Corporation of Delhi Vs. Ganesh Razak 1995 (1) SCC 235 and also judgments rendered by this Court in U.P. Avas Evam Vikas Parishad & others Vs. Madhu Shanker Agarwal & another 2009 (3) ADJ 34; U.P. Power Transmission Corporation Ltd. Vs. Saheb Lal Kureel & another 2009 121 FLR 501 and U.P. State Electricity Board, Aligarh Vs. Presiding Officer, Labour Court, Agra 2009 (123) FLR 340.
15. It has been submitted that Sections 6H(1) and 6H(2) of the U.P. Industrial Disputes Act are pari materia to Sections 33C(1) and 33C(2) of the Central Industrial Disputes Act and should be interpreted in a similar fashion and only computation of wages which are undisputed or that benefit which can be logically inferred from the Award, should alone be granted by the Labour Commissioner in an application under Section 6H(1). Any benefit which is seriously disputed by the employer requires to be adjudicated upon under Section 6H(2) by sending a Reference to the Labour Court.
16. Learned counsel for the respondent no. 1 however has stated that from the Award dated 19.2.2008 itself, it would be evident that the Labour Court had found that the workman had been working for the past ten years continuously and being paid on daily wage basis was not at all justified, from a perusal of the operative portion of the Award dated 19.2.2008, it would be evident that the workman was found entitled to all wages as admissible to regular employee along with allowances. The challenge to the Award dated 19.2.2008 had failed before this Court in writ petition and even a Special Leave Petition and it was not open for the employers to challenge what has been held by the Labour Court to be admissible to the workman by filing this writ petition.
17. The counsel for the respondent has further argued that the Deputy Labour Commissioner has found that the workman was entitled to reinstatement along with full back wages and all consequential benefits, therefore back wages were to be determined as admissible to a regular employee. Had the Labour Court intended to direct reinstatement on daily wage basis, it would not have observed that the respondent no. 1 was entitled to consequential benefits also.
18. Having heard the rival submissions, this Court has carefully perused the Award dated 19.2.2008. In the initial Award dated 19.2.2008, the Labour Court has mentioned that the workman has filed his claim and has also stated in his oral evidence that he was engaged by the employers on daily wage muster roll basis at the rate of Rs. 25 per day, he was being given Rs. 750/- per month through cheque, at the time of his termination on 11.5.1993. He has challenged his termination as he was neither given retrenchment compensation nor notice pay.
19. The Labour Court had allowed the Adjudication Case No. 151 of 1994 recording a finding that although the muster roll for the year 1983 to 1993 was summoned, it was not produced by the employers. The copy of the cashbook for the period of 3.4.1983 to 25.6.1993 alone was produced by the employers. The Labour Court found that in the absence of payment of retrenchment compensation and notice pay, the termination of service of the workman on 11.5.1993 was vitiated and therefore had directed reinstatement. However, the Labour Court had not specified the post on which the respondent no. 1 was to be reinstated. It can safely be assumed that reinstatement can only occur on a post / status to which a workman was initially engaged.
20. Undisputedly, the workman was a muster roll employee given consolidated wages of Rs. 750/- per month, therefore reinstatement would only be as a muster roll employee and the money due under the Award would be only with regard to arrears of minimum wages as admissible to unskilled workman notified under the Minimum Wages Act. The employers have rightly paid Rs. 2899/- per month on the basis of notification of minimum wages by the Labour Commissioner on 28.2.2007.
21. The scope of Sections 6H(1) and 6H(2) of the U.P. Industrial Disputes Act was firstly considered by the Hon'ble Supreme Court in Kays Construction Co. Private Ltd. Vs. State of Uttar Pradesh & others 1965 SC 1488 paragraphs 6 & 7 of the said judgment being relevant for decision of the controversy involved herein are being quoted herein below:-
6. "It is contended before us that the judgment of the Divisional Bench is erroneous in its interpretation of s. 6- H(1) and (2). The question thus is how are the two sub- sections to be read ? This section is analogous to Section 33(C) of the Industrial Disputes Act, 1947 and s. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950, It is significant that in all the three statutes the cognate section is divided into two parts and the first part deals with recovery of 'money due' to a workman under an award and the second deals with a 'benefit' computable in terms of money. Under the first sub-section the State Government (or its delegate), if satisfied that any money is due, is enabled to issue a certificate to the collector who then proceeds to recover the amount as an arrears of land revenue. The second part then speaks of a benefit computable in terms of money which benefit, after it is so computed by a Tribunal, is again recoverable in the same way as money due under the first part. This scheme runs through Section 6-H sub-section. (1) and (2).
7. That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in the second sub-section is not "money due" but some advantage or perquisite which can be reckoned in terms of money. The Divisional Bench has given apt examples of benefits which are computable in terms of money, but till so commuted are not "money due". For instance, loss of the benefit of free quarters is not loss of "money due" though such loss can be reckoned in terms of money by inquiry and equation. The contrast between ,'money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub- sections. If the word "benefit" were taken to cover a case of mere arithmetical calculation of wages, the first sub- section would hardly have any play. Every case of calculation, however, simple, would have to go first before a Tribunal. In our judgment, a case such as the present, where the money due is back wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two sub-sections between "money due" under the first sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the "amount due" and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between "money due" and a "benefit which must be computed in terms of money" still remains, for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. The judgment of the Division Bench was thus right. The appeal fails and will be dismissed with costs. The companion appeal will also be dismissed but we make no order about costs in that appeal. Appeal dismissed."
(emphasis supplied)
22. The judgment rendered by the Supreme Court in Kays Construction Co. Private Ltd. Vs. State of Uttar Pradesh & others 1965 SC 1488 was followed in U.P. Electric Supply Company Ltd. Vs. R.K. Shukla AIR 1969 SC. In paragraphs 12 to 14 of the judgment, the Supreme Court has again reiterated that there is a difference between the two subsections and Section 6H(1) of the Act provides for a proceeding which is in the nature of an execution proceeding. The said provision can be invoked in the event any money is due to a workman under an Award, it cannot be invoked in a case where ordinarily an industrial dispute can be raised and can be referred to adjudication to the Labour Court. The Authority vested with the power to execute the Award cannot determine any complicated question of law. It cannot determine a dispute with regard to existence of a legal right. It cannot usurp the jurisdiction of the State Government to refer the matter under Section 4K of the Industrial Disputes Act, 1947. The post Award wages at best could be a benefit which becomes capable of being computed in terms of money and such an application would be maintainable under Section 6H(2) of the Act.
23. In M/s Hamdard (Wakf) Laboratories Vs. Deputy Labour Commissioner & others 2007 (5) SCC 281, the Supreme Court was considering a case where the workmen were demanding bonus as according to them under the Award bonus was part of the wages and therefore admissible and could be validly granted under Section 6H(1) by the Deputy Labour Commissioner. When such an application was filed, it was found by the Supreme Court to be dehors the Award as it was an independent claim.
24. Almost similar observations were made by the Hon'ble Supreme Court in Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Labour Commissioner 2007 (11) SC 576.
25. A Coordinate Bench of this Court in judgment rendered in U.P. Avas Evam Vikas Parishad & others Vs. Madhu Shanker Agarwal 2009 (3) ADJ 34 has observed that where the Award mentioned reinstatement with back wages such reinstatement could only be on a post on which the workman was working earlier. The workman being admittedly engaged as a muster roll employee, could only be reinstated as a muster roll employee, and back wages would be wages which were last drawn by the workman and the Deputy Labour Commissioner could calculate the arrears on the said basis alone, and could not calculate the wages on the basis of current wages that were admissible allegedly to similaraly situated employees being in service for ten years or more.
26. In U.P. State Electricity Board, Aligarh Vs. Presiding Officer, Labour Court, Agra & others 2009 (123) FLR 340, this Court held that a workman would only be entitled for reinstatement on the post on which he was originally working i.e. on muster roll and consequently his back wages would have to be calculated as admissible to a daily wage worker. The claim of the workman for wages of a regular Class-IV employee would be an entitlement under the Award which could be adjudicated only in an application under Section 6H(2).
27. Under any application moved under Section 6H(1) only an arithmetical calculation of the wages which were payable to the workman could be done and recovery orders passed thereafter. The mere fact that the Award stated that consequential benefits would also fallow, would not entitle the workman who was working on muster roll, or daily wage basis to be treated as a regular Class-IV employee. The workman's claim as a regular Class-IV employees, if any, is one of the entitlement under an Award, which could only be adjudicated under Section 6H(2) or under Section 4K before the Labour Court.
28. In U.P. Power Transmission Corporation Ltd. Vs. Saheb Lal Kureel 2009 (121) FLR 501, the claim for reinstatement and back wages of a regular Class-IV employee was similarly rejected as having been wrongly granted by the Deputy Labour Commissioner in an application under Section 6H(1) as such a claim would have to be adjudicated under an application under Section 6H(2) by the Labour Court after adducing of evidence.
29. The Supreme Court in Ganesh Razak (supra) considered the scope of Sections 33C(1) and 33C(2) of the Central Act and has observed that a proceeding under Section 33C(2) is also a proceeding in the nature of an execution proceeding which would follow an investigation of the plaintiff's right to relief and the corresponding liability of the defendant. Once such determination has been done under an Award, the extent of the defendant's liability, if any, alone can be looked into under Section 33C(2). Where the very basis of the claim or the entitlement of the workman to certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is therefore clearly outside the scope of a proceeding even under Section 33C(2), the Labour Court has no jurisdiction to first decide the workman's entitlement and then proceed to compute the benefits so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. The claim of the respondent workmen who were all daily wagers / casual workman to be paid wages at the same rate as regular workers, had not been earlier settled by adjudication or recognition by the employer, without which the stage for computation of that benefit could not be said to have been reached, therefore applications made by such workmen under Section 33C(2) of the Act were not maintainable before the Labour Court and no benefit could have been granted by the Labour Court thereunder.
30. In this case the Deputy Labour Commissioner in the order impugned has observed that the workman was given continuity in service and therefore would be deemed to have been entitled to a Class-IV post and salary thereof. Such an observation by the Deputy Labour Commissioner would amount to adjudication of the workman's claim for regularisation as a Class-IV employee on grounds of working for sufficiently long years as a daily wager. Such an order would not have been passed under an application under Section 6-H(1).
31. Hence it is set aside. The writ petition is allowed. Consequences to follow.
Order Date :- 15.3.2018 Arif