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Judgment
Heard Mr. A. Venkatesh, learned Senior Counsel representing Mrs. K. V. Vani, learned counsel for the appellant and Mr. M. Vijaya Kumar Goud, learned counsel appearing for respondent No.2.
The appellant preferred the present Intra Court Appeal under Clause - 15 of the Letters Patent challenging the order dated 08.12.2023 in I.A. No.1 of 2022 in W.P. No.20479 of 2005.
FACTS:
Respondent No.2 is a Trade Union registered under the Trade Union Act, 1926. It is espousing the cause of its Members, who are Employees of the appellant society. It has raised an industrial dispute and the same was referred to Labour Court-I, Hyderabad in respect of 42 workmen which is extracted as under:
“Whether the Management of St.Joseph’s Education Society 48, Aravindnagar, Domalguda, Hyderabad is justified in retrenching 42 workers whose names are mentioned in the Annexure-I? If not, for what relief the workmen are entitled to?”
The Labour Court-I had passed an Award dated 31.12.2003 in I.D. No.44 of 1998 holding that the action of the appellant management is not justified in retrenching 42 workers whose names are mentioned in Annexure-I of the reference, and consequently they are entitled for compensation of 50 months wages as per the provisions of the Minimum Wages Act and their services rendered in the appellant society except Sri P. Anthony Reddy whose name is shown at serial No.27 of the Annexure-I of the reference. The Labour Court-I further directed that the said amounts shall be paid to the said workers in lieu of reinstatement and other benefits within two months after careful calculation from the date of publication of the award, failing which, they shall be entitled for interest on their respective amounts at 12% per annum, thereafter till realization.
Challenging the said award, the appellant management has filed a writ petition vide W.P. No.20479 of 2005. Vide order dated 28.09.2005 in W.P. M.P. No.26112 of 2005 in W.P. No.20479 of 2005, a learned Judge of this Court granted interim stay of the implementation of the said award on condition of the appellant depositing 15% of the amount awarded by the Labour Court within four (04) weeks except the case of Mallesh. Challenging the said order, the appellant management preferred an appeal vide W.A. No.2040 of 2005, and a Division Bench of this Court dismissed the said writ appeal on 20.10.2005.
However, finally the said writ petition was disposed of vide order dated 19.07.2021. Three (03) paragraphs of the said order are relevant and the same are extracted below:
“Learned counsel appearing for the petitioner contended that the Labour Court has mechanically passed an Award on 31.12.2003 in I.D.No.44 of 1998 without appreciating the fact that the transport wing of the petitioner-society was closed and directed the petitioner-society to pay 50 months wages to the workmen as compensation. Learned counsel further contended that the petitioner-society is willing to pay 40 months wages instead of 50 months as adjudicated by the Labour Court.
Learned counsel appearing for the 2nd respondent contended that the 2nd respondent has agreed to receive 40 2 months wages instead of 50 months wages as awarded by the Labour Court.
Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that ends of justice would be met if the Award dated 31.12.2003 passed by the Labour Court in I.D.No.44 of 1998 is modified as under.
“The Award dated 31.12.2003 passed by the Labour Court in I.D.No.44 of 1998 is modified and the petitioner society is directed to pay 40 months wages instead of 50 months wages to the workmen as directed by the Labour Court within a period of eight weeks from the date of receipt of a copy of this order.”
Accordingly, the Writ Petition is disposed of. No costs.”
According to the appellant management, despite best of its efforts to get the details of the workmen whose names are mentioned in Annexure-I of the reference, they failed to get it. Therefore, they have not deposited the said amount within time. Then, they have filed an application vide I.A. No.1 of 2021 in W.P. No.20479 of 2005 seeking permission to deposit the amount as calculated by the management before the Labour Court-I, Hyderabad. Vide order dated 11.03.2022, this Court permitted the appellant management to deposit the amounts before the Labour Court-I within ten (10) days from the said date, and upon such deposits, it is always open for the employees to file an application seeking withdrawal of the same and the Labour Court-I would consider the same and pass appropriate orders, if such application is filed by the employees. According to the appellant, they have deposited the said amount on 28.03.2022.
Perusal of record would reveal that respondent No.2 Union had filed an Execution Petition vide S.R. No.105 of 2022, to execute the said Award. Vide order dated 22.02.2022, learned Presiding Officer of the Labour Court-I, Hyderabad, held that the execution petition is not maintainable before the Labour Court as the prayer of the petitioner therein is for not making the payment of minimum wages for 40 months along with interest @ 12% per annum, there is no such direction from this Court in W.P. No.20479 of 2005, dated 19.07.2021. The same was re-submitted. On hearing respondent No.2 - decree holder, learned Presiding Officer of Labour Court-I had passed an order dated 08.03.2022 in the said S.R. holding that the Labour Court is divested of jurisdiction and appropriate forum for execution of any award or order passed by the Labour Court or any settlement arrived at before the Labour Court is the Civil Court of competent jurisdiction. Therefore, the said application is not maintainable for want of jurisdiction. With the said findings, the Labour Court-I returned the execution petition filed by respondent No.2 for want of jurisdiction. Thus, the Labour court-I returned the said execution petition for want of jurisdiction and for presentation of the same before appropriate Court.
Respondent No.2 did not challenge the said order and now it cannot contend that the said order is illegal in the present Intra Court Appeal.
It is relevant to note that instead of challenging the said order, respondent No.2 had filed an Interlocutory Application vide I.A. No.1 of 2022 in W.P. No.20479 of 2005 to clarify the orders dated 19.07.2021 passed by this Court in W.P. No.20479 of 2005 directing the appellant management to pay 40 months minimum wages along with interest @ 12% after 30 days from the date of publication of the award in I.D. No.44 of 1998 published on 06.08.2005.
The said clarification petition was filed contending that:
a) the members of respondent No.2 union (workmen) are entitled for interest @ 12% per annum on 40 months minimum wages after 30 days from the date of publication of the award;
b) It reserves right to raise the issue whether the Civil Court is having jurisdiction or the Labour Court is having jurisdiction to entertain execution petition on the award passed by the Labour Court;
c) The appellant management has filed I.A. No.1 of 2021 in W.P. No.20479 of 2005 seeking permission to deposit and the said application was allowed;
d) At the time of arguments in the said writ petition, this Court categorically stated that this Court is modifying the orders of the Labour Court only to the extent of 50 months minimum wages to 40 months wages and there is no modification with regard to the interest part; and
e) The objection raised by learned Presiding Officer of the Labour Court-I has to be answered giving clarification by this Court.
With the said contentions, respondent No.2 sought clarification.
The said application was opposed by the appellant contending that;
a) the appellant is not liable to pay any interest since interest part is default clause in the award;
b) Respondent No.2 cannot file a clarification petition and it has to file appropriate application before the Labour Court-I seeking execution of the award;
c) There is no challenge to the order dated 08.03.2022 in E.P.S.R. No.105 of 2022 passed by the Labour Court-I; and
d) The order dated 19.07.2021 in W.P. No.20479 of 2005 is a consent order and respondent No.2 having given up the interest portion, now cannot claim the interest.
With the said submissions, they have opposed the said application.
Vide impugned order dated 08.12.2023, learned Single Judge of this Court allowed the said application on the ground that this Court has only modified the award passed by the Labour Court, directed respondent No.1 therein to pay 40 months wages instead of 50 months wages, which would mean that this Court has modified the award passed by the Labour Court only to the extent of months but not in respect of the interest. Therefore, the award passed by the Labour Court holds good and the order passed in W.P. No.20479 of 2005, dated 19.07.2021 should be read with the said order.
Challenging the said order, Mr. A. Venkatesh, learned senior counsel representing Mrs. K.V. Vani, learned counsel for the appellant, would contend that the appellant is not liable to pay any interest, it has already complied with the order dated 19.07.2021 in W.P. No.20479 of 2005. It is a consent order. Respondent No.2 cannot raise interest issue by way of filing clarification petition. Respondent No.2 has to file an execution petition as per the provisions of the Industries Disputes Act, 1947, but not a clarification petition. He has also placed reliance on the decision in Supertech Limited v. Emerald Court Owner Resident Welfare Association (2023) 10 SCC 817. Without considering the said aspects, learned Single Judge allowed the said clarification petition filed by respondent No.2.
Mr. M. Vijaya Kumar Goud, learned counsel for respondent No.2 would contend that the Members of respondent No.2, whose names are mentioned in the Annexure-I of the reference, are entitled for interest. The appellant did not comply with the award passed by the Labour Court-I or the order dated 19.07.2021 in W.P. No.20479 of 2005 passed by learned Single Judge of this Court. They have not paid the compensation as per the provisions of the Minimum Wages Act as directed by the Labour Court-I in the subject award. Though an execution petition was filed, learned Presiding Officer of the Labour Court-I returned the same erroneously for want of jurisdiction. Respondent No.2 reserves its right to challenge the said order dated 08.03.2022. A clarification is required. Therefore, it has filed I.A. No.1 of 2022. The same was allowed by learned Single Judge and there is no error in it.
As discussed above, there is no dispute with regard to raising a dispute by respondent No.2 and passing of award by the Labour Court-I, Hyderabad holding that the retrenchment is illegal and that the members of respondent No.2 except Mr. P. Anthony Reddy are entitled for compensation of 50 months as per the provisions of the Minimum Wages Act. The Labour Court-I directed the appellant management to pay the said amount of compensation within two (02) months after careful calculation from the date of publication of the award, failing which they shall be entitled for interest on their respective amounts @ 12% per annum thereafter till realization.
The said award was under challenge in W.P. No.20479 of 2005. This Court vide order dated 28.09.2005 granted interim stay of the said award on condition of the appellant depositing 15% of the amount awarded by the Labour Court within four (04) weeks except Mr. Mallesh. The said period was extended up to 10.11.2005 by a Division Bench of this Court while dismissing the writ appeal on 20.10.2005 filed vide W.A. No.2040 of 2005 challenging the said interim order dated 28.09.2005. Vide order dated 11.03.2022 in I.A. No.1 of 2021 in W.P. No.20479 of 2005, this Court permitted the appellant management to deposit the said amount before the Labour Court-I within ten (10) days, and upon such deposit, liberty was granted to the employees/members of respondent No.2 society to withdraw the same. According to the appellant, it has deposited the said amount on 28.03.2022, and in proof of the same, it has filed copy of challan. However, ultimately, the said writ petition was disposed of vide order dated 19.07.2021. Thus, there is interim stay of the impugned award from 28.09.2005 till 19.07.2021.
According to respondent No.2, the appellant failed to deposit the compensation in terms of award and also the order passed by learned Single Judge dated 19.07.2021 in W.P. No.20479 of 2005. If it is entitled for minimum wages and interest, it has to file an application under Section - 11B of the Industrial Disputes Act, 1947. It is relevant to extract Section - 11B and the same is as under:
“11B. Power of Labour Court or Tribunal to execute its award by decree.- A Labour Court or a Tribunal shall have the power of a Civil Court to execute its award or any settlement as a decree of a Civil Court.”
Accordingly, respondent No.2 had filed an execution petition vide EPSR No.105 of 2022. Vide order dated 08.03.2022, learned Presiding Officer of the Labour Court-I returned the same for want of jurisdiction. Respondent No.2 should have challenged the said order. Instead, it has filed a clarification petition seeking to clarify with regard to awarding of interest.
In paragraph No.7 of the affidavit filed in support of I.A. No.1 of 2022 in W.P. No.20479 of 2005, respondent No.2 contended that it has filed the said petition seeking clarification from the Court that the members of respondent No.2 Union are entitled for interest @ 12% per annum on 40 months minimum wages after 30 days from the date of publication of the award. Therefore, instead of pursuing execution petition, seeking clarification by respondent No.2 Union vide I.A. No.1 of 2022 is improper.
In Supertech Limited1, the Apex Court held that application for clarification, modification or recall by way of filing miscellaneous applications or applications for clarification/ modification under the guise of review cannot be countenanced. Paragraph Nos.13 and 14 of the said judgment are important and the same are extracted hereunder:
“13 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather [Meghmala v. G. Narasimha Reddy [(2010) 8 SCC 383]. A disturbing trend has emerged in this court of repeated applications, styled as miscellaneous applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly (“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”).
14 Further, there is another legal principle which is applicable in the present case. It is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden [Taylor v. Taylor (1875) LR 1 Ch D 426]. Hence, when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all and other methods of performance are necessarily forbidden [Nazir Ahmad v. King Emperor, 1936 SCC OnLine PC 41]. This Court too, has adopted this maxim [Parbhani Transport Coop. Society Ltd. v. RTA, 1960 SCC OnLine SC 46]. This rule provides that an expressly laid down mode of doing something necessarily implies a prohibition on doing it in any other way.”
In the said case, the appellant filed an application seeking modification of the order. On examination of facts therein and also relying on the principle laid down by it in several judgments, the Apex Court held that miscellaneous application filed therein was filed to seek a substantive modification of the judgment and the same is impermissible in a miscellaneous application.
Referring to the principle laid down by the Apex Court in Ajanta LLP v. Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. (2022) 5 SCC 449, Mr. A. Venkatesh, learned senior counsel appearing for the appellant would submit that the order dated 19.07.2021 is a consent order and, therefore, respondent No.2 having invited consent order estopped from raising further claim including claim of interest and that the amount deposited by the appellant is not in terms of award of the Labour Court-I and the order passed by this Court dated 19.07.2021 i.e., compensation shall be calculated as per the provisions of the Minimum Wages Act. In the said judgment, it was held that a judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. A consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. The Court in exercise of its inherent power may rectify the consent decree to ensure that it is free from clerical or arithmetical errors so as to bring it in conformity with the terms of the compromise.
i) It was further held that the Court can entertain an application under Section - 151 of the CPC for alterations/ modification of the consent decree if the same is vitiated by fraud, misrepresentation, or misunderstanding. Even assuming there is a mistake, a consent decree cannot be modified/altered unless the mistake is a patent or obvious mistake. Otherwise, there is a danger of every consent decree being sought to be altered on the ground of mistake/ misunderstanding by a party to the consent decree.
In the present case, there is no allegation that the order dated 19.07.2021 in W.P.No.20479 of 2005 was obtained by playing fraud, misrepresentation and misunderstanding. The said aspects were not considered by learned Single Judge in the impugned order. Therefore, on the said ground alone, the order dated 08.12.2023 in I.A. No.1 of 2022 in W.P. No.20479 of 2005 is liable to be set aside.
It is the specific contention of respondent No.2 that the appellant failed to pay the compensation as per the provisions of the Minimum Wages Act and though W.P. No.20479 of 2005 was disposed of on 19.07.2021, the appellant had deposited the amount only on 28.03.2022. Therefore, the Members of respondent No.2 are entitled for interest. As discussed above, if the Members of respondent No.2 claim compensation on minimum wages and interest, it has to file an execution petition in terms of Section - 11B of the Industrial Disputes Act, 1947. Respondent No.2 cannot seek clarification.
The present writ appeal is accordingly allowed. The impugned order dated 08.12.2023 in I.A. No.1 of 2022 in W.P. No.20479 of 2005 is set aside. However, liberty is granted to respondent No.2 Union to pursue its remedies under the provisions of the Industrial Disputes Act, 1947 with regard to the interest and calculation of compensation as per the provisions of the Minimum Wages Act. In the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending in the writ appeal shall stand closed.