Punjab-Haryana High Court
Phool Chand vs Assistant Labour Commissioner And ... on 1 June, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
C.R. No. 3647 of 2011 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CR No. 3647 of 2011 (O&M)
Date of Decision: June 1, 2012
Phool Chand
.....Petitioner
Vs.
Assistant Labour Commissioner and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Petitioner in person.
Mr.Divya Sharma, Advocate for respondent No.1.
-.-
M.M.S. BEDI, J. (ORAL)
Through instant revision petition under Article 227 of the constitution of India, the petitioner has challenged order 27.8.2010 passed by the Authority under the Payment of Wages Act, 1936 ( for short 'the Act') and the order dated 23.5.2011 passed by the learned Additional District Judge, Ludhiana dismissing the application for payment of wages from March, 2007 till the date of filing of the petition u/s 15 (2) of the Act, which C.R. No. 3647 of 2011 (O&M) [2] was instituted in the year 2010. The Authority under the payment of Act, had dismissed the claim of the petitioner with the following observations:-
"I have heard the applicant and have gone through the case file. As per Section 15(2) of the Payment of Wages Act, 1936 (hereinafter called the Act) two type of cases are permissible to be filed i.e. Case regarding (i) unauthorized deductions (ii) delay in payment of wages. Although the application has not been addressed properly to the authority under the Act, yet I do not find it proper to reject this application on this ground because the claim therein has been raised under the payment of Wages Act, 1936. The case of the applicant before undersigned is that since March, 2007, he has not been allowed to enter the premises of the establishment and was not allowed to do his duty and as such was not paid his wages and prayed for issuance of a direction to the respondent-employer to make payment of the wages to the applicant. However, the applicant in his claim application did not mention the amount of wages alleged to be delayed for payment. On the other hand, the contention of the respondent- management is that the applicant was absent from duty and charge him, in which enquiry was being conducted against him and he was not C.R. No. 3647 of 2011 (O&M) [3] participating in the enquiry proceedings inspite of opportunities given to him. However, in view of directions dated 20.10.2009 of the Hon'ble Labour Court, Ludhiana, the respondent completed the inquiry proceedings ex-parte within two months. Although as per version of the respondent- management, the services of the applicant have been terminated on the basis of enquiry report, but they could not produce the copy of termination orders.
As per Section 15(2) of the Payment of Wages Act, 1936 the workman can claim only those wages which have actually accrued and payment thereof has been delayed. In the present case the applicant has himself stated before various courts including the Hon'ble High Court that he has not been allowed to enter the premises and to do his duty by the management, which make it clear that the wages as claimed, have not been accrued to the applicant because during whole of the period from March, 2007 to the date till the termination of his service, the applicant did not remain on duty. Inspite of direction of the labour court vide order dated 20.10.2009, he failed C.R. No. 3647 of 2011 (O&M) [4] to participate in the enquiry proceedings as a result of which the respondent- management completed the enquiry proceedings as ex-parte and this has no where been denied by the applicant. Thus, I am of the considered opinion that when the applicant did not remain on duty since march, 2007 to the date of his termination, the wages do not supposed to accrue to the applicant and when the wages do not have accrued, he is barred to say this his wages have been delayed.
The position explained in the foregoing paragraphs depicts that the applicant right from the beginning has been stating that he has not been allowed to enter the premises of the establishment and do his duty since March 2007 by the employer and has been agitating for the recovery of his wages for the said period. In this regarding he has not only filed various complaints, but also filed cases in different courts including the Hon'ble High Court. He also did not obey the directions of the Labour Court to participate in the enquiry proceedings initiated against him by the employer. It has also been seen that when he observed that C.R. No. 3647 of 2011 (O&M) [5] the cases/ complaint filed by him will not go in his favour, he has withdrawn the cases/ complaint from the courts such as reference under section 10 (1) of the Industrial Disputes Act, 1947, application under Section 33-C(2) of the Industrial Disputes Act, 1947, complaint No. 705/2009. This shows that the applicant is in the habit of filing cases/ complaints in different courts and has been wasting the time of the authorities/ courts un-
necessarily."
A perusal of the above said order indicates that despite the orders passed by the Lower appellate court dated 20.10.2009, the petitioner had failed to participate in the enquiry proceedings, as a result of which the respondent- management had completed the enquiry proceedings ex-parte. The petitioner having not remained on duty w.e.f. March 2007 till the date of his termination, he is not entitled to the wages claimed by him. The above said order was upheld in appeal u/s 17 of the Act.
The petitioner, appearing in person, has argued that he had not been permitted to enter the place of work to perform his duty without there being any suspension or termination order, therefore, his claim for wages cannot be declined on the principle of no work no pay. He has also submitted that the order passed by the High Court in CWP 16272 of 2009, C.R. No. 3647 of 2011 (O&M) [6] the cause of action had accrued to the petitioner while dismissing his claim u/s 33-C (2) under the Industrial Disputes Act.
Learned counsel for the respondent has submitted that termination order dated 2.2.2010 has not been challenged by the petitioner and his petition under Section 33-C(2) of the Industrial Disputes Act having been withdrawn; he having not worked for the period from March 2007 till 2010, the authorities below have rightly dismissed his claim.
I have considered the contention of petitioner who has appeared in person. The main emphasis has been laid by the petitioner on the observations made by the High Court while disposing of his writ petition seeking relief under Section 33 (c) (2) of the Payment of Wages Act, 1936. The observation that the workman shall be entitled to pursue such remedy as per law qua the claim for wages which have been denied to him, is concerned, will not ipso facto confer a right upon the petitioner to claim the back wages. The right of the petitioner regarding his entitlement of any wages has to be construed in the light of the facts and circumstances of each case. If the petitioner had been denied his back wages as per the provisions of the Payment of Wages Act, 1936. Section 15 (2) of the Act provides that the workman is entitled to the release of back wages in case unauthorized deductions have been made or there has been delay in payment of wages.
The petitioner claims that since March 2007, he had not been allowed to enter the premises for his establishment as such he was entitled to a direction for payment of back wages.
C.R. No. 3647 of 2011 (O&M) [7]
The petitioner has not disclosed the details of his earlier litigation. The services of the petitioner have been terminated after an inquiry. The Labour and Conciliation Officer under Payment of Wages Act has rightly observed that on account of conduct of the petitioner having failed to participate in the inquiry proceedings and enquiry proceedings having been concluded against him, he was not entitled to claim back wages having failed to establish that he worked since March 2007 till the date of his termination. It has been observed that it is not a case of delay in release of the wages. On the directions of the Court, the copies of the enquiry reports have been made available. A detailed list of cases/ complaints filed by the petitioner before different forms has also been placed on record as annexure R-4.
In view of the abovesaid circumstances, there is no ground to interfere in the order dated August 27, 2010 passed by the authority under the Payment of Wages Act and the order dated May 23, 2011 passed by the Additional District Judge dismissing the application of the petitioner for payment of wages from March 2007 onwards.
Dismissed.
June 1, 2012 (M.M.S.BEDI) sanjay JUDGE