Court No. - 47
Case :- WRIT - C No. - 15469 of 2010 Petitioner :- Mansoor Ali And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- P.K. Sinha,A.K.Singh,Arun Kumar Singh Counsel for Respondent :- C.S.C.,S.Chatterjee
Hon'ble J.J. Munir,J.
This Court is distressed to find that the order dated 22.04.2019 was passed on account of facts being incorrectly laid before the Court by the learned counsel appearing on behalf of the petitioners. It was represented to this Court that the substitution application seeking to bring on record the heirs of petitioner no. 1, Mansoor Ali that had been filed in Registry on 16.12.2013, was not on record. Accordingly, office was directed to trace out the same and restore it to record. An Office report has submitted in this regard saying that they have not been able to trace out the said application so far. When this Court examined the record, the Court was unpleasantly surprised to find that the application, which the learned counsel for the petitioner had reported on 22.04.2019 to be missing from the record and still pending, has already been allowed along with an application for condonation of delay in making that substitution. Not only that, the heirs of petitioner no. 1, Mansoor Ali have been brought on record in compliance with the order dated 16.12.2013. The order dated 22.04.2019 was passed on incorrect facts being placed before the Court by the learned counsel for the petitioner. The said order is, therefore, recalled. The office report dated 27.04.2019 accordingly looses its significance.
Heard Sri Deepak Kumar Srivastava, Advocate holding brief of Sri P.K. Sinha, learned counsel for the petitioner and Sri S. Chatterjee, learned counsel appearing on behalf respondent nos. 3 and 4.
Petitioner raised an industrial dispute under Section 4K of the U.P. Industrial Disputes Act, 1947. A reference was made in the following terms:
"क्यया ससेवयाययोजककों दयारया ससंलग्न पररशशिष्ट मम उशल्लिखखित अपनसे 22 कमरचयाररयकों कयो आई०ससी०आई० इणणण्डियया खल० , पनकक, कयानपपुर कया स्थयाइ कमरचयारसी घयोशषित न शकयया जयानया उशचत तथया / अथवया ववैधयाशनक हवै? यशदि नहह , तयो सम्बणनधत श्रशमक क्यया लयाभ / क्षशतपपूशतर पयानसे कसे अखधकयारसी ह, शकस शतखथ ससे तथया अनय शकस शववरण सशहत?"
The said reference came up before the Presiding Officer, Industrial Tribunal-III, U.P., Kanpur, where it was registered as Adjudication Case No. 106 of 1990. The claim of the petitioners-workmen was that they were entitled to be declared as permanent employees, a right that has been wrongfully denied. The Labour Court while dealing with the reference arising out of the said claim in terms set out has been answered in the manner that for the reasons given in the award passed in Adjudication Case No. 189/1989, the same principle would apply to the rights of the petitioners-workmen. It was, therefore, awarded that the workmen, who were parties in adjudication case under reference were entitled to be treated as casual hands of the respondent-employer, and entitled to their wages on the aforesaid basis from the date of reference that is 21.02.1990 and other benefits to which they would be entitled as such. It was further declared against the petitioners-workmen that they were not entitled to be declared permanent. The reference was, thus, answered in the affirmative.
The reasons for the aforesaid conclusion are recorded in the award dated 31.03.2003 passed in Adjudication Case No. 189/1989, where dealing with a reference at the instance of another set of workmen similarly circumstanced. The Presiding Officer, Industrial Tribunal- III, U.P. Kanpur gave his reasoning, where it was held that the workmen were employees of a contractor but had claimed rights to be treated as regular employees of the principal employer/respondent nos. 3 and 4 relying on the rights created under the Contract Labour (Regulation and Abolition) Act, 1970. The Tribunal after examining various decisions and authorities on the issues concluded that notwithstanding with the provisions carried in 2(i)(iv) and 2(z) of the Contract Labour (Regulation and Abolition) Act, 1970, the workmen could not be regarded as regular employees of the 4th respondent-employer; however, they were liable to be treated as casual hands. It appears that tracing their rights to the award dated 05.04.2003 passed in Adjudication Case No. 106 of 1990 published on 29.08.2003, the petitioners-workmen moved before to the Deputy Labour Commissioner under Section 6H(1) of the U.P. Industrial Disputes Act asking for arrears on account of dues under the various heads including duty wages, matching allowance, canteen allowance, house rent allowance, bonus, leave encashment besides overtime, all for different periods of time in case of different workmen as shown in the appended chart to the application. The said application has come to be rejected by the Deputy Labour Commissioner by means of the impugned order dated 30.04.2008, with a remark that the claim involved adjudication for which an appropriate remedy may be invoked before the appropriate forum by the workmen.
The petitioners-workmen applied for a review of the said order which also came to be rejected by an order dated 26.02.2010, adopting the same reasoning. It was clarified there also that there were disputes to be adjudicated about entitlement regarding wages, based on the award which were beyond the scope of proceedings under Section 6H(1) of the Act. Learned counsel for the petitioner has assailed the impugned order saying that the Deputy Labour Commissioner has failed to exercise the jurisdiction vested in him because it was his duty to give effect to the award passed by the Industrial Tribunal in the adjudication case, already decided inter partes.
Sri S. Chatterji, learned counsel for respondent nos. 3 and 4 has opposed the aforesaid claim and submits that the relief sought by the petitioners is clearly beyond the scope of Section 6H(1) of the Industrial Disputes Act which is specifically designed to deal with an almost non- contentious claim arising under an award of the Labour Court or the Industrial Tribunal or a contract. He submits that the petitioner's remedy would be under Section 6H(2) of the said Act that he has not availed.
This Court on a consideration of the matter finds that what the petitioners have claimed through the application under Section 6 H(1) of the Industrial Disputes Act, indeed involve claims under different heads, relating to different workmen, and for different periods of time. It inherently involves adjudication of facts, where there would be dispute by the employers on various facet of the claim. This kind of a dispute is not only eminently fit to be adjudicated under Section 6H(2) of the Industrial Disputes Act, but it is clearly beyond the scope of Section 6H(1) where non contentious claims are to be adjudged.
It is all the more important to note that the fora to deal with an application under Section 6H(1) and 6H(2 ) of the Industrial Disputes Act are different; whereas an application under Section 6H(1) of the Act is to be dealt with by the Labour Commissioner/Deputy Labour Commissioner/Assistant Labour Commissioner, going by its non contentious nature, an application under Section 6H(2) of the Act is to be dealt with by a Labour Court, where essentially adjudication is involved in the sense of a lis.
In this view of the matter, this Court does not find that the impugned orders suffer from any manifest illegality so as to invite interference by this Court.
Accordingly, this writ petition fails and is dismissed. Costs easy.
Order Date :- 29.4.2019 Deepak