Jammu & Kashmir High Court
Ex. Engineer vs Rita Devi And Others on 15 December, 2022
Author: Rahul Bharti
Bench: Rahul Bharti
Sr.No. 6
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 130/2003
IA No. 565/2009
IA No. 1226/2013
IA No. 157/2003
Ex. Engineer, PHE ....Petitioner(s)
Through:- Mr. R. S. Jamwal, AAG
V/s
Rita Devi and others ....Respondent(s)
Through :- Mr. Aseem Sawhney, Advocate
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
Judgment
15.12.2022
1. Heard learned counsel for the parties and perused the pleadings & the documents placed on record and evaluated the respective side submissions.
2. "Stitch in time saves nine" is a mantra which perhaps for the government officials and administrators is more a matter of precept rather than practice which they habitually miss in applying in the handling of litigation against the Government and the State only to end up crying over spilt milk. The mindset with which the officials and authorities of the government department/s conduct themselves in handling litigation for and against the government officials/administrators/departments is dereliction and default prone taking it as given that the court/s or the tribunal/s will carry the baton for the government authority/department involved in the litigation.
2 OWP No. 130/2003
3. The present case is a fitting exhibit of the said mindset of the government official involved in the case. A litigation which originated in 1992 but left uncared in the course of its making has come to bother the Public Health Engineering Department, the Union Territory of Jammu and Kashmir staring with a liability of payment of Rs.93,150/- along with recurring interest to each of the eight respondents in the present petition from escaping which the present writ petition, filed in the year 2003, was and is a poor legal effort which was destined to fail from the very first day of its institution and that inevitable is happening through the medium of this judgement.
4. The eight respondents herein, who were engaged purportedly as daily wagers with the Public Health Engineering Department, Doda, had come to suffer without notice disengagement effected from 01.05.1992. Being aggrieved of the same, the respondents had come forward with a joint writ petition no. 869/1992 titled „Parvesh Raj and others vs. State and others‟ before this Court which was allowed to be withdrawn in terms of an order dated 25.11.1992 with liberty reserved in favour of the respondents to resort to the provisions of the Industrial Disputes Act, 1947 for seeking redressal of their purported grievance against their alleged retrenchment/disengagement from the employment.
5. Resultantly, the respondents came to resort to conciliation proceedings under the provisions of the Industrial Disputes Act of 1947 against the Public Health Engineering, Division, Doda represented through its Executive Engineer which resulted in a Failure Report whereupon the then Government of Jammu and Kashmir came to make an industrial reference in terms of SRO 77 dated 25.02.1997 in exercise of power under section 10 (1) (c) of the Industrial 3 OWP No. 130/2003 Disputes Act, 1947. The industrial reference to the Jammu & Kashmir Industrial Tribunal carried three issues and those were:-
"(i) Whether the status of the employees is covered
under the J&K Civil Service Regulations?
(ii) Whether the action of the Executive Engineer in
terminating the service of the aforesaid employees
is justified?
(iii) If no, to what relief the said employees are entitled to?"
6. On the basis of the evidence led in the case, the Jammu & Kashmir Industrial Tribunal, Jammu came to pass an award dated 16.09.1998 on file no. 613/L.C in favour of the respondents against the petitioner i.e., Executive Engineer , Public Health Engineer Division, Doda holding the disengagement of the respondents being retrenchment not in accordance with law and as such declared the respondents entitled to reinstatement along with all back wages and other service benefits. Before the J&K Industrial Tribunal Jammu, the petitioner herein, as being the respondent in the Reference before the J&K Industrial Tribunal, Jammu, had caused appearance , submitted response and thereafter absented which resulted in ex parte proceedings and finally passing of the said award.
7. The award dated 16.09.1998 so passed by the Jammu & Kashmir Industrial Tribunal Jammu was sent to the Government of Jammu and Kashmir through its Commissioner/Secretary, Law Department for information and publication in the Government Gazette and the same came to be published in the Government Gazette of 11.03.1999 thereby investing it with force of law.
8. The Public Health Engineering Division, Doda, or for that matter the State of Jammu and Kashmir through its Public Health Engineering Department 4 OWP No. 130/2003 never, at any point of time, felt bothered to come forward to challenge the industrial award dated 16.09.1998 which, thus, attained finality leaving no scope for the purported employer, i.e., the State of Jammu and Kashmir through its Public Health Engineering Department to escape from the effects and consequences of the said award.
9. For the purpose of deriving the effects of the said award in their favour as the said industrial award had remained in a state of non-compliance at the end of the Public Health Engineering Division, Doda through its Executive Engineer, the respondents came to invoke the jurisdiction of the Jammu and Kashmir Industrial Tribunal/Labour Court, Jammu through a petition under section 33-C (2)of the Industrial Disputes Act, 1947 on the file no. 679/L.C., preferred on 27.11.2000 thereby asking for a direction for effecting recovery in the context of non-payment of the back wages to the respondents. The amount of back wages due in favour of the respondents were duly tabulated and reflected in the claim petition so filed by the respondents before the Jammu &Kashmir Industrial Tribunal/Labour Court, Jammu.
10. Even in these proceedings, the Public Health Engineering Department Division, Doda failed to act with any sense of alertness and concern to lay its side correct facts and circumstances for the notice of the Jammu and Kashmir Industrial Tribunal/Labour Court viz-a-viz the respective claim of the respondents for the back wages and was proceeded ex parte.
11. The Jammu and Kashmir Industrial Tribunal/Labour Court Jammu, on the basis of the inquiry proceedings, came to pass a judgment/award dated 14.05.2002 thereby holding the respondents entitled to back wages to the extent as reflected against each of the respondents in the judgment/award. In fact, the 5 OWP No. 130/2003 all the eight respondents were held entitled to the back wages payment of Rs. 93,150/- each. Thus, both the award dated 16.09.1998 and judgment/award dated 14.05.2002 were ex parte against the petitioner. Such was the state of irresponsibility on the part of the Executive Engineer of the time, Public Health Engineering Department, Doda in dealing and attending the legal proceedings of consequence before the J&K Industrial Tribunal/Labour Court.
12. It is against this judgment/award dated 14.05.2002 of the Jammu & Kashmir Industrial Tribunal/Labour Court, Jammu that the then Executive Engineer Mr. Sadhu Ram Bhagat, Public Health Engineering Division, Doda, felt bothered and on his own flight, without taking the State of J&K and even the Chief Engineer as being the Head of the Public Health Engineering Department, Govt. of J&K on board, came forward with the institution of the present writ petition before this Court on 21.02.2003 for seeking quashment of the impugned judgment/award dated 14.05.2002. Thus State Govt. and its Officials were so placed that right hand least knowing what left hand was doing.
13. Now even the conduct and prosecution of the writ petition was with hiccups. The writ petition so filed came to suffer first dismissal in terms of an order dated 31.08.2007 for non-prosecution to be restored back in terms of an order dated 27.12.2008. The writ petition again came to suffer dismissal in default on 10.03.2010 to be again restored back in terms of an order dated 31.05.2010.
14. This writ petition, upon its second time restoration, came to earn an adjudication when this Court in terms of a judgement dated 28.04.2011 dismissed the same, thereby holding that no illegality attended the judgment 6 OWP No. 130/2003 /award dated 14.05.2002 of the Jammu & Kashmir Industrial Tribunal/Labour Court, Jammu.
15. Against this judgement dated 28.04.2011 of the dismissal of the writ petition, a letters patent appeal, bearing LPAOW no. 155/2011, came to be preferred in the name of "State of Jammu & Kashmir and another Vs Parvesh Raj and others". The Division Bench, vide its order dated 29.11.2011, came to set aside the judgment dated 28.04.2011 of the writ Court and remanded the matter back for adjudication on merits. The Division Bench, in its judgement dated 29.11.2011, put an observation on record to the fact that it was open to the writ petitioner to raise all contentions available in challenging the order of the Jammu & Kashmir Industrial Tribunal, Jammu/ Labour Court dated 14.05.2002 passed on File no. 679/L.C.
16. Upon remand of the matter and during the pendency of the writ proceedings the original respondent no. 1-Parvesh Raj had come to demise which resulted in bringing on record his Widow - Rita Devi as legal representative in his place.
17. In disposing of the LPAOW no. 155/2011, the letters patent bench had directed the writ petitioner (the appellants in said LPA) to deposit 50% of the relief granted by the J&K Industrial Tribunal/Labour Court in term of its judgement/award dated 14.05.2002 passed on File no. 679/L.C. in respect of each of the respondent within a period of six weeks from the date of receipt of copy of the judgement of the Division Bench and upon the deposit of the said amount, the operation of the judgement/award dated 14.05.2002 of the Labour Court was to remain stayed pending final disposal of the writ petition. Upon deposit of 50% of the award amount, the respondents were reserved with liberty 7 OWP No. 130/2003 to seek withdrawal on furnishing their personal securities of the payment of the balance amount depending upon the outcome of the writ petition which was remanded for adjudication to the writ Court. Requisite 50% of the total amount payable in terms of judgement/award dated 14.05.2002 of the J&K Industrial Tribunal/Labour Court came to be deposited short of Rs. 3,68,618/- as being deficit, which too was ordered to be deposited in terms of an order dated 06.09.2013 by the writ petitioner for which number of opportunities were availed in terms of interim orders passed when the writ petition again came to suffer dismissal in default on 20.05.2014 to be restored back on 25.05.2017.
18. On 29.07.2013, an application CM no. 1500/2013 came to be filed for seeking amendment of the writ petition as also of addition of party as petitioner in the writ petitioner. This application was filed on behalf of the State of Jammu & Kashmir through Commissioner/Secretary to Government, Public Health Engineering, I&FC Department, joined by the original writ petitioner Executive Engineer, PHE Division Doda. By virtue of this application, an amendment sought in the writ petition was for the purpose of challenging the J&K Industrial Tribunal, Jammu award dated 16.09.1998. In the application seeking amendment, it came to be pleaded that in absence of challenge to the said industrial tribunal award dated 16.09.1998, the challenge posed in the writ petition to the judgement/ award dated 14.05.2002 of the Labour Court was not sustainable. It is pertinent to mention herein that after fourteen years of passing of the Jammu & Kashmir Industrial Tribunal, Jammu award dated 16.09.1998 it had occurred to the then Govt. of the State of Jammu & Kashmir to question the said award. This application CM no. 1500/2013 came to be disposed of by this Court in terms of an order dated 23.07.2018 by providing that the plea taken in the application to be considered at the time of final consideration of the case. 8 OWP No. 130/2003
19. Even if this Court were to grant amendment of the writ petition, as solicited in terms of CM no. 1500/2013 with respect to which in terms of an order dated 23.07.2018 this Court had provided that the plea taken in the application shall be considered at the time of final consideration of the case, it would be compounding injustice to the cause by entertaining a delay and laches laden challenge through the amended form of the writ petition. This court considers that reckoning from the industrial tribunal award dated 16.09.1998 of the Jammu & Kashmir Industrial Tribunal, Jammu to the date of filing of the application for amendment in the year 2013 for calling in question the said industrial tribunal award, a gap of almost fifteen years is intervening and then a gap of eleven years from the date of the second judgement/award dated 14.05.2002 of the J&K Industrial Tribunal/ Labour Court in terms whereof an amount of back wages payable to the respondents had come to be computed.
20. The principle of delay and laches is not petitioner sensitive that in case the delay and laches suffering writ petition is by the government or its officials then the court has to relax the application of principle, and if the petition is by a private person/concern then the court has to enforce it with full vigor. Law and its principles are even-handed in application.
21. In fact, the filing of this amendment application was prompted by the fact that in absence of challenge to the award dated 16.09.1998 of the Jammu & Kashmir Industrial Tribunal, Jammu, the challenge posed in the writ petition to the judgement/award dated 14.05.2002 of the Labour Court would have failed as a house of cards. In fact, the Hon‟ble Supreme Court of India in the case of "Edukanti Kistamma Vs. V. Venkatareddy" (AIR 2010 SC 313, para 20) has held that it is settled legal proposition that challenge to consequential award 9 OWP No. 130/2003 without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained and therefore it is a legal obligation on the part of the party to challenge the basis order and only if the same is found to be wrong, the consequential order may be examined.
22. Thus, even if by some stretch of reasoning and reference at the end of the petitioner there is and was any lacuna attending the industrial award dated 16.09.1998 of the Jammu & Kashmir Industrial Tribunal, Jammu still the long course of time for which this industrial award remained unquestioned thereby generating a settled expectation in favour of the respondents in the context of their claim for back wages cannot now be allowed to frustrate the said settled expectation of the respondents, who at the end of the day, were and are of very poor section of the society whose only capital at their disposal for earning their livelihood was heir bodily labour, which they had invested and lent to the Public Health Engineering Department, Doda, before they had come to suffer disengagement and retrenchment which came to be held illegal and in violation of the provisions of the Industrial Disputes Act, 1947.
23. Considering the facts and circumstances of the case, this Court is at loss to appreciate the situation as to how in the original writ petition without ever questioning the industrial award dated 16.09.1998 of the Jammu & Kashmir Industrial Tribunal passed in favour of the respondents and against the petitioner, the petitioner could be said and heard to have any grievance against the impugned judgment/award dated 14.05.2002, which did nothing except to compute the amount of the back wages due and payable in favour of the respondents from the petitioner‟s end in the light of the industrial award dated 16.09.1998 of the Jammu &Kashmir Industrial Tribunal. In fact, in the grounds 10 OWP No. 130/2003 of the challenge in the writ petition the petitioner herein is questioning the very jurisdiction of the Jammu &Kashmir Industrial Tribunal in entertaining the petition against the Public Health Engineering Department mentioning it not to be an Industry to be covered under the Industrial Disputes Act, 1947 and further is also questioning the very factual basis of the claim made by the respondents for the back wages. In fact, if read between the lines, the petitioner has literally condemned the industrial award dated 16.09.1998 without making any whisper of reference to it.
24. This Court cannot hit from back the industrial award dated 16.09.1998. This Court cannot lend any assistance in favour of the petitioner to relieve the Public Health Engineering Division, Doda from the consequences of the duly gazetted industrial award dated 16.09.1998 read with judgment/award dated 14.05.2002 of the Jammu &Kashmir Industrial Tribunal and, as such, this petition is found to be meritless and deserves dismissal.
25. This Court would take the opportunity to register its observation that at the end of the Government Departments there operates a tendency to take with non-seriousness the cases filed by the employees/workmen against the Government Departments before the Industrial Tribunal/Labour Court under the provisions of the Industrial Disputes Act, 1947 as if the Industrial Disputes Act 1947 is not meant for the consumption of the Government Department of the UT of J&K and Ladakh and, as such, when the consequences come into picture from the proceedings originating from the Industrial Disputes Act, 1947, then the Government Department/s are found resorting to shadow chasing to relieve itself/themselves from the situation of its/their own acts of omission and commission but it becomes too late for the Department/s to relieve 11 OWP No. 130/2003 itself/themselves from the legal consequences borne out of the adjudication of the industrial dispute/matter from the Industrial Tribunal/Labour Court.
26. The Industrial Disputes Act, 1947 is one of the legislations which is very active in use and operation having created not only rights and liabilities of the workmen/employees covered by it but also the adjudicatory mechanism to deal with the grievances of the employees/workmen and, as such, it is high time for the Government and its official to enlighten themselves to take seriously the pending proceedings before the Industrial Tribunal/Labour Courts in which the Government Departments/Offices/Officials found themselves as respondents.
27. With these observations, this writ petition is hereby put to disposal by dismissal. The petitioner or for that matter the Public Health Engineering Department, Doda UT of Jammu and Kashmir shall be well advised to honor the compliance of the judgment/award dated 14.05.2002 of the Jammu and Kashmir Industrial Tribunal/Labour Court, Jammu.
(Rahul Bharti) Judge Jammu:
15.12.2022 Meenakshi , Whether the order is reportable : Yes Whether the order is speaking : Yes