1. Heard learned advocates for the parties.
2. The petitioner, workman, by way of this petition has prayed as under:
“(A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or Certiorari or other appropriate writ, order or direction, declaring the impugned decision of the Official Liquidator denying the benefits of continuity of service and consequential benefits required to be given to the petitioner as per award as arbitrary, illegal, unjust and in violation of Art 14 & 16 of the Constitution of India and be pleased to direct the respondent to pay all arrears of amount to the petitioner with 18% interest.
(B) Be pleased to declare that the petitioner is entitled to get all consequential benefits of reinstatement as if he was in continuous employment hence direct the respondent to grant all consequential benefits to the petitioner as granted to other similarly situated Khalasis employed with the petitioner and pay all arrears with 18% interest.
(C) Pending admission and final disposal of this petition be pleased to direct the respondent to deposit the amount before this Hon'ble Court as per the calculation furnished by the petitioner at Annex.D.
(D) Pending admission and final disposal of this petition be pleased to direct the respondent to reconsider the case of petitioner in light of the award passed by the Hon. Labour Court.
(E) Any other relief to which this Hon'ble Court deems fit and proper in interest of justice together with cost.”
3. Facts in brief leading to filing this petition deserve to be set out as under:
The petitioner was at the relevant time working with Petrofils Cooperative Ltd, a Government of India undertaking. His services came to be terminated with effect from 31.1.1992. Being aggrieved and dissatisfied, this workman has raised Industrial Dispute, which came to be referred to the concerned Labour Court, wherein, it was registered as Reference 245 of 1992. During the pendency of the Reference, the Official Liquidator came to be appointed by the Government of India. The reference was allowed vide order dated 20.12.2000 and the petitioner was ordered to be reinstated with continuity of service with 50% of back wages. This award remained unchallenged. However, as the unit was under liquidation, the question of reinstatement did not arise but as the claim dues were not paid, the petitioner was constrained to file writ petition being Special Civil Application No. 12172 of 2002, which came to be disposed of by this Court vide order dated 5.5.2002, whereunder, this Court observed as under:
“In view of this controversy in respect to the opposed by the Liquidator, it is directed to the respondent No.1 i.e. Official Liquidator to consider the claim of the petitioner workman on the basis of the order passed by the Labour Court as well as other authority and take appropriate decision in respect to the total claim of the workman and meanwhile, whatever the amount according to the Liquidator is available to the workman is directed to be paid by Account Payee Cheque in favour of the workman. This exercise is required to be completed by the Official Liquidator within a period of two months from the date of receiving the copy of the said order. It is made clear that whatever the payment will be made by the Official Liquidator to the petitioner workman will be without prejudice to the rights and contentions raised in the claim made before the Official Liquidator. Learned advocate Mr. S.J.Shah has submitted that the claim is already registered with the Official Liquidator. However, still question is required to be examined by the Official Liquidator in respect to the total claim which has been raised by the petitioner whether he is entitled or not according to the law. Therefore, in view of the above observation and direction, present petition is disposed of. DS Permitted.”
4. Accordingly, the respondent issued an order on 5.7.2003 indicating that amount of Rs.57,698.20ps was due and payable and accordingly, the cheque was issued. The petitioner was not satisfied with this amount, approached the respondent and hence, filed present petition on grounds mentioned in the memo of petition.
5. Learned advocate for the petitioner contended that the petitioner could not have been denied the benefits, which were ordered by the Court vide award dated 20.12.2000 made in the Reference No. 245 of 1992. The counsel for the petitioner further submitted that plain reading of the award, clearly indicates that the petitioner was ordered to be reinstated with continuity of service and payment of back wages was reduced to 50% only. Therefore, the respondent was under an obligation to grant all the benefits which would have accrue, had he not been dismissed from service and that proposition of law would entitled the petitioner to receive higher amount than the amount which is paid, based upon the last drawn wages of Rs.800/- when the petitioner's service came to be terminated illegally.
6. The petitioner's counsel further contended that averments made in this petition qua the petitioner's entitlement to receive the wages at the rate of Rs.4500/- p.m, is not specifically denied by the respondent and merely terming the petitioner to be a 'temporary employee'. The same would not absolve the respondent from its liability to comply with the award in its totality.
7. The petitioner has averred averments in para-9.1 in the memo of petition, the same averments could not have been specifically controverted. In absence of such controverting, the respondent cannot succeed by saying that the petitioner is temporary employee and therefore, he was not entitled to anything except last drawn wages. If this submission is accepted, then, it would amount to nullifying the effect and benefits granted by the competent court, order whereof is not challenged anywhere in any forum.
8. Learned advocate appearing for the respondent contended that the petitioner cannot claim benefits of continuity as permanency issue is an issue to be adjudicated separately. It is nowhere disputed by the workman that he was temporary employee and therefore, even if the order of reinstatement is taken to its logical conclusion, then, it will entail the payment of wages being admissible to temporary employee from the date of award. The petitioner's claim purportedly based upon junior's wages without any further submission and averments entitled the petitioner to claim wages on those lines and therefore, this petition being bereft of merits, is required to be rejected.
9. Learned advocate appearing for respondent relied upon the decision in case of Hindustan Petroleum Corporation Ltd Vs. Ashok Ranghba Ambre, reported in (2008) 2 SCC 717, contended that setting aside of the illegal termination for violation of Section 25F in itself would not result into indicating the workman is entitled to status of permanency and claim of regular pay scales and other benefits bases on permanency. Therefore, on this ground also, it was urged that the petition be dismissed as the petitioner has no further claim to be made which would justified in eye of law.
10. Learned advocate appearing for respondent has invited this court's attention to the averments made purported to be taken controverting the averments made in the petition and contended that those averments are sufficient to indicate that claim of petitioner as mentioned in para- 9.1, is sufficiently negatived and therefore, on this ground also, the petitioner cannot say that averments are not controverted in any manner. The petitioner has not indicated any material and/or substance basis whereupon petitioner can submit that there exists a pay-scale available to junior to the petitioner, which was denied to the petitioner.
11. Learned advocate appearing for respondent further submitted that the petitioner's Recovery Application No. 65/1994 and order made thereon also go to show that petitioner cannot have claimed regularization and/or permanency benefits.
12. Learned advocate appearing for respondent, however, could not controvert the fact that the petitioner could not have been paid wages less than the prevalent minimum wages in the area in industry nor could the learned advocate for petitioner indicate as to what was the rate prevalent which was admissible as per Payment of Minimum Wages Act to the petitioner treating him to be temporary employee when the order came to be passed in favour of the petitioner.
13. This Court has heard learned advocates for the parties and perused the papers available on record. The Court is not inclined to accept the petition qua the prayer of petitioner to be treated as regular employee and on that basis, grant further relief as the petitioner is yet to overcome the findings of the order passed by the competent Labour Court on the Recovery Application, whereunder, it is in terms mentioned that Reference was not qua the petitioner's any claim or dispute with regard to regularization. The reference was in respect of illegal termination and hence, in view of the judgment cited as bar namely Hindustan Petroleum Ltd. (Supra), this court is of the considered view that the petitioner could not have claimed any benefits based upon the aspect of permanency nor petitioner could have claimed any parity with the permanent employee. When the petitioner's claim is not accepted to be equated with permanent employee, then question arise as to whether stand taken by the respondent is justified to pay the petitioner the last drawn wages only, especially when the order of the competent Court, which has not been challenged anywhere in terms, award continuity of service and non-reinstatement is only on account of winding up of the employer unit. The fact remains to be noted that the petitioner was temporary employee but on that basis it cannot be said that he was eligible for receiving wages at the rate of Rs.800/- only in the year when the order of reinstatement was made, nor, are the respondent in any manner prompt in pointing out to the Court as to what was the minimum wages rate admissible to the temporary employee reinstatement at his original post even as temporary employee, is required to be given benefits of continuity of service as if the petitioner had continued and on that basis, all other benefits which were admissible to temporary employee, were to be given to the petitioner. Mere payment of Rs.57,698.20ps, as mentioned in the impugned order, in my view cannot be said to be a compete compliance with the order of the Labour Court passed in Award. Therefore, the petition is partly allowed. The order impugned is quashed and set aside. The respondent is hereby directed to undertake a fresh exercise of considering the admissible dues payable to the petitioner as temporary employee and be paid such wages which was in fact paid to such temporary employee in the year 2001 i.e. the date of award and in case such similarly situated is not available then at least minimum wages prevent at that time be taken as base for counting arrears. The entire exercise shall be completed within 30 days from today and payment thereafter be made to the petitioner by account payee cheque after deducting the money, which is already paid to the petitioner. The amount of difference be paid within 15 days thereafter. If same is not paid within 15 days, then, said amount shall carry interest @ 12%. The petition is partly allowed. Rule is made absolute to the aforesaid extent. No costs.
(S.R.BRAHMBHATT, J.) pallav