Court No. - 7
Case :- WRIT - C No. - 40714 of 2018 Petitioner :- M/S Elephanta Oil And Vanaspati Industries Limited Respondent :- Additional Labour Commissioner And Another Counsel for Petitioner :- Manisha Chaturvedi Counsel for Respondent :- C.S.C.,Samarth Sinha,Vijay Sinha
Hon'ble Saumitra Dayal Singh,J.
1. Heard Mr. Shakti Swaroop Nigam, Advocate alongwith Ms. Manisha Chaturvedi and Ms. Tania Sharma, learned counsel for the petitioner and Sri Samarth Sinha alongwith Sri Vijay Sinha, learned counsel for the respondents.
2. The present writ petition has been filed against the order dated 27.11.2012 passed by the Assistant Labour Commissioner (U.P.), Ghaziabad, by which that authority has provided for recovery to be made from the petitioner with respect to back-wages claimed for the period 31.07.1978 to 09.10.2012 under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act).
3. The above claim has been made on the basis of an earlier award of the Labour Court dated 14.09.1981. By that award, the respondent-workman had been directed to be reinstated with full back-wages. It is the case of the petitioner that though the back-wages upto the date of the award and wages upto 1983 had been paid, no order under Section 6-H(1) of the Act could have been passed for the post-award period.
4. Reliance has been placed on an earlier decision of this Court in the case of U.P. Avas Evam Vikas Parishad and Another Vs. Madhu Shankar Agarwal and Another reported in 2009 (122) FLR 335 wherein it was held as below:
"23. There is yet another aspect. If a claim has been made under section 6-H(1) for the enforcement of the award, the said award attains finality when the amount payable thereunder is calculated and is recovered. Another application under Section 6-H(1) of the Act, for the purpose of the enforcement of the award, namely, for post award wages, is in my opinion, not maintainable."
5. Same view had also been taken by this Court in the case of Manik Chandra Srivastava Vs. Regional Deputy Labour Commissioner and Others passed in Civil Misc. Writ Petition No. 31505 of 2004 wherein it was held as below:
"In my opinion, the computation of the benefit in terms of the award, especially, the post award wages cannot be computed under Section 6-H(1) of the Act for the simple reason that other factors comes into play, namely, whether the petitioner had worked in terms of the award or not. In the present case, I find that the award does not speak clearly about the reinstatement of the workman. The award only states that the petitioner is entitled to such relief and compensation that is available under the law. Since there was no specific order of reinstatement and for payment of wages, such adjudication could not be made under Section 6H(1) of the Act and the remedy available, if any, could either be under Section 6H(2) of the Act where such benefit could be computed and adjudicated or a reference is made under Section 4-K of the U.P. Industrial Disputes Act.
Another reason for the rejection of the claim is, that the employer has disputed that the petitioner was willing for employment pursuant to the award. This again, being a disputed question of fact could not be adjudicated under Section 6H(1) of the Act and such questions could only be adjudicated before the Labour Court in an appropriate forum.
In view of the aforesaid, the Deputy Labour Commissioner was justified in rejecting the petitioner's second application under Section 6-H(1) of the Act by its order dated 28.6.2004. The writ petition filed against the said order fails and is dismissed.
In view of the dismissal of the aforesaid writ petition, the interim order dated 16.1.2007 comes to an end automatically. The recovery proceedings initiated pursuant to the interim order of the Court also falls through and cannot be recovered. In any case, if the interim order of the Court was not complied with by the employers it does not entitle the petitioner to move an application under Section 6H(1) for the simple reason that the petitioner has not worked and, further, the recovery of any amount under Section 6H(1) can be for such benefit which has already been adjudicated or computed. The mere fact that the employers have refused to give employment to the petitioner in terms of the award does not entitle the petitioner for the computation of salary under Section 6H(1). At best, the petitioner can complain of the non-compliance and for the punishment of the employer for non-compliance of the order of the Writ Court.
In view of the aforesaid, Writ Petition No.362 of 2009 fails and is dismissed. No such mandamus could be issued to the Collector to recover the amount pursuant to the recovery certificate. This Court further holds that the recovery certificate dated 25.6.2008 issued by the Deputy Labour Commissioner was illegal and void. The writ petition is dismissed."
6. The above position of law has been fairly admitted by learned counsel for the respondents inasmuch as undisputedly, the order under Section 6-H(1) of the Act has been passed with respect to post-award wages.
7. In view of the above position of fact and law being admitted, the impugned order passed under Section 6- H(1) of the Act cannot be sustained and it is hereby quashed.
8. The result of this writ petition may in no way prejudice the rights of the respondent-workman to either file a proper application under Section 6-H(2) of the Act or to seek reference, if required.
9. However, in the event, respondent-workman files an application under Section 6-H(2) of the Act before the Labour Court within a period of three weeks from today along with a certified copy of this order, it is expected that the Labour Court may conclude those proceedings, as expeditiously as possible, preferably within a period of six months from the date of such application being filed. It is further understood between the parties that they will not seek any undue or long adjournment.
10. The present writ petition stands allowed.
Order Date :- 20.12.2018 Abhilash