Sheela vs The Presiding Officer, Industrial Tribunal-Cum-Labour Court and Another

Rajiv Narain Raina, J.—This order will dispose of CWP Nos. 5336, 5337, 5340, 5343, 5350, 5351, 5352, 5353, 5356, 5357 and 6758 of 2012. The facts are taken from CWP No. 5336 of 2012 titled Sheela v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar and another. The present petitions are directed against an order passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar u/s 33-C(2) of the Industrial Disputes Act, 1947 (for short "the ID Act"). The applications have been dismissed. Relief has been denied to the workmen for the reason that the workmen entered into a memorandum of settlement outside the conciliation process, to wit, if they are reinstated to service they would relinquish claim for back wages. The settlement was arrived at on 14.07.2006. The Labour Court has held that the workmen had given up their rights to back wages and, therefore, there was no pre-existing right in them to make a claim u/s 33-C(2) of the ID Act.

Against the impugned order dated 29.01.2010 the present petitions have been filed under Articles 226 & 227 of the Constitution of India. The management is a Medical College established at Agroha, Hisar and is in receipt of grant-in-aid.

The brief facts necessary for settling the controversy raised in these petitions is that some years ago, the services of the worker were terminated. The industrial dispute raised by them was referred for adjudication before the Labour Court u/s 10(I)(c) of the ID Act. The workmen remained successful before the Labour Court. By award dated 18.07.2005 the workmen were ordered to be reinstated to service with continuity from the past and 50% back wages were also granted.

Against the award dated 18.07.2005, the management preferred CWP No. 7770 of 2006. The operative part of the judgment reads as follows:-

We have heard learned counsel for the parties and have also perused the award dated July 18, 2005. We are of the considered opinion that the management has not been able to establish the plea set out before the Labour Court and have not been able to prove that the appointment was co-terminus to the approval of the Government of Haryana. The management has also not produced the undertaking submitted by the workmen. It has been established beyond any doubt that the workmen had worked beyond 240 days and that they were entitled to retrenchment compensation in accordance with law, if the termination by the management was justified. So far as the contention that the workmen had availed the alternative remedy and therefore, are not entitled to invoke the jurisdiction of the Labour Court is not sustainable in view of the law laid down by the Hon''ble Supreme Court rendered in re Rajasthan State Road Transport Corporation and Another Vs. Khadarmal, , i.e. the Civil Court has no jurisdiction to entertain such civil suit.

The judgment of the Division Bench of this Court was rendered on 02.11.2006. It has been specifically noticed in the judgment that the management did not produce the undertaking submitted by the workmen.

All that remains to be examined in this case is the settlement arrived at u/s 18(1) of the ID Act during the pendency of CWP No. 7770 of 2006 between the workmen and the management on 14.07.2006. Clause (c) of the terms and conditions of the Settlement reads as follows:-

(c) That the management will reinstate the workman into service with immediate effect on the same terms and conditions and on the same salary with annual increments, with other consequential benefits and continuity of service subject to the conditions that the workman relinquishes his claim of back wages and the management is getting grant-in-aid from the Haryana Government and subject to the decision of CWP No. 7770 of 2006 pending for 17.07.06 at Punjab & Haryana High Court, Chandigarh.

A reading of the term (c) upon which the fate of this case hinges shows that it contains two riders which would operate upon reinstatement. Firstly, that the workmen will relinquish their claim to back wages and, secondly, that entire Clause (c) would itself remain subject to decision in CWP No. 7770 of 2006. When the matter was finally heard by this Court on 02.11.2006 the Memorandum of Settlement signed by the parties was not produced on the record of the writ petition nor was it shown or pressed before this Court in these bunch of cases. Obviously, the management was sitting on the fence and taking its chances. In case, the writ petition had been dismissed, the management would have gloated and rubbished the Memorandum of Settlement signed about three and half months before the decision of this Court which upheld the award of the Labour Court in favour of the workers. I do not find a word in the judgment which can come to the aid and rescue of the management with respect to the settlement or relinquishment by the workmen of their rights to back wages. Therefore, the reasoning adopted by the Labour Court in its order dated 29.01.2010 is completely perverse and either layman like or deliberate misreading of the judgment of the Division Bench of this Court. There is apparently a calculated attempt in it to brush aside and ignore the decision of the Division Bench of this Court and remains in breach of it. The settlement after all was itself subject to writ petition. The second rider in clause (c) overarches and broods over the entire memorandum of settlement. When we ignore the settlement, a pre-existing surfaces immediately which the workers could justifiably press to their service with the right preserved to claim back wages as originally awarded by the Labour Court in the award impugned by the management in CWP No. 7770 of 2006 and upheld. That the judgment and order has attained finality was not disputed before this Court. I have no hesitation in setting aside the perverse orders passed by the Labour Court in this and connected cases. The writ petitions are allowed. The impugned orders are set aside. The right to back wages as awarded by the Labour Court in the impugned awards stands upheld, preserved and executable. The applications u/s 33-C(2) stand allowed. The matter is, however, remitted to the Labour Court, Hisar only to execute this order within 3 months after computing money due strictly in terms of the award dated 18.07.2005 as upheld by this Court. Parties to appear in the Court below on 2.5.2013 for further execution proceedings.