Vimla Jaiswar vs Presiding Officer, Labour Court, U.P., Kanpur and another

Tarun Agarwala, J

Pursuant to the order of the Court dated 23rd of January, 2009, the Superintending Engineer (respondent no.2) is present in Court in person along with a Bank Draft of Rs.1,87,224.00, drawn on State Bank of India, Service Branch, Kanpur, dated 7th February, 2009, in favour of the petitioner.

Heard Shri Sudhanshu Narain, the learned counsel for the petitioner and Shri S.S. Sharma, the learned Standing Counsel, appearing for the respondents.

It transpires that the services of the petitioner was terminated w.e.f. 1st February, 1987. The petitioner raised a dispute with regard to validity and legality of the order of termination. The Labour Court, by its award dated 23rd March, 1998, found that the order of termination was illegal and, consequently directed reinstatement of the workman w.e.f. the date of her termination with continuity of service. The Labour Court, however, directed that the back wages would be payable w.e.f. 1st January, 1996 onwards. The respondents, being aggrieved by the aforesaid award, filed Writ Petition No. 16657 of 1999, which was dismissed by a judgment dated 6th February, 2002. It further transpires that a review application was filed which was also rejected by an order dated 22nd of October, 2003. In the meanwhile, the petitioner moved an application under Section 6H (1) of the U.P. Industrial Disputes Act for computation of the benefit in terms of the award. The Deputy Labour Commissioner, by an order dated 17th September, 2002, computed the benefit for the period 1st January, 1996 to 31st of July, 2002 amounting to Rs.3,61,445.00. However, on a review application filed by the employers, the Deputy Labour Commissioner, by an order dated 28th December, 2002, reduced the amount to Rs.1,87,224.05. In spite of this amount being computed, the employers did not pay this amount nor complied with the award, namely, reinstatement of the workman. The petitioner was made to run from pillar to post and, eventually she moved an application under Section 33C (2) for computation of her wages and other benefits, in terms of the award for the period 01.01.1996 to 31.07.2003. This application was rejected by the Labour Court, by an order dated 30th September, 2004, on the ground that the application was not maintainable, since the award did not mention as to what amount was payable to the petitioner as wages and that her status as a workman was also not defined, and consequently, directed the petitioner to raise a reference again under Section 4K of the U.P. Industrial Disputes Act. The petitioner, being aggrieved, has filed the present writ petition.

Before this Court, the respondent was called upon to intimate the Court as to why the award of the Labour Court and consequentially, the subsequent order of the Deputy Labour Commissioner under Section 6H (1) was not complied with. In paragraph 11 of the counter affidavit, it has been stated specifically that against the judgment of the High Court, a writ petition was filed before the Supreme Court of India (wrongly mentioned as writ petition and that, only a special leave petition could have been filed).

This averment has been sworn in on the basis of record was specifically refuted by the petitioner and, consequently, this Court by an order dated 26th of September, 2008, and again, by an order dated 23rd of January, 2009, directed the respondent to intimate the Court and give necessary details of the special leave petition filed before the Supreme Court of India.

Shri A.B. Dixit, Superintending Engineer (respondent no.2), as identified by the learned Standing Counsel, submitted that no special leave petition has been filed as yet before the Supreme Court of India and that, the averments made in paragraph 11 of the writ petition is incorrect and, presumably, the officer in question, who had sworn the affidavit had made an incorrect statement, presumably on the assumption that a special leave petition was going to be filed before the Supreme Court of India. The fact remains that a false affidavit has been filed by the employers misleading the Court. With regard to nonimplementation of the award and non compliance of the order of the Deputy Labour Commissioner, the learned Standing Counsel submitted that the amount was not payable, since the petitioner was never a workman of the respondentemployer.

In my opinion, this submission cannot be raised at this stage. It is too late for the employers to allege that the petitioner was never a workman since there is an award given by the Labour Court, in which it was found that the petitioner was a workman of the employers, namely, the respondents and such an award has been affirmed by the High Court.

In view of the aforesaid, the order of the Deputy Labour Commissioner dated 28th of December, 2002 is required to be implemented. This Court by an order dated 23rd of January, 2009, had directed the Superintending Engineer to appear in person along with a Bank Draft of Rs.1,87,224.00 which was the amount computed by the Deputy Labour Commissioner. The said Bank Draft No. 897811, drawn on State Bank of India, Service Branch, Kanpur dated 2nd February, 2009, in favour of the petitioner, Smt Vimla Jaiswar, has been produced today, which has been handed over to Shri Sudhanshu Narain, the learned counsel for the petitioner for onward delivery to the petitioner. An endorsement to this effect shall be recorded by the learned counsel in the order sheet. With regard to the reinstatement of the workman, it is open to the petitioner to take such recourse as available to her under the Industrial Laws for compliance of the award.

In so far as the present controversy is raised in the present writ petition, this Court is of the opinion that the application under Section 33C (2) for computation of the wages for the same period, was not maintainable since the petitioner''s application under Section 6H (1) had already been allowed for virtually the same period and the benefit of that amount has now been received by the learned counsel for the petitioner.

In view of the aforesaid, the writ petition is disposed of accordingly, and the respondents are further directed to pay a sum of Rs.20,000.00 for the cost and harassment which they have caused to the petitioner. This amount of Rs.20,000.00 shall be paid by means of a Bank Draft in favour of the petitioner within four weeks from today, failing which, it would be open to the petitioner to immediately move an application under the Rules of the Court for recovery of this amount as arrears of land revenue.