C.W.P.No.2643 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.2643 of 2008 Date of Decision:- 23.03.2009 Ram Karan ....Petitioner(s) vs. Labour Court, Ambala and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Kapil Kakkar, Advocate for the petitioner. Mr.Puneet Bassi, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. The petitioner-workman, in the present writ petition challenges order dated 6.12.2007 (Annexure P-3) passed by the Labour Court, Ambala whereby the application moved by the workman under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) claiming therein back wages as per the award dated 26.3.2003 (Annexure P-1) passed in favour of the workman holding him entitled to reinstatement in service with full back wages and continuity of service has been partly allowed. The Labour Court on the basis of the evidence led by the parties has returned a finding that the workman is entitled to full back wages for the period the workman-petitioner was not gainfully employed i.e. from the date of his termination ( 19.6.1996 to 31.12.2001 ) on the rates as were prevailing in the respondent-Institution at the relevant time and have been enhanced from time to time along with other allowances as were permissible C.W.P.No.2643 of 2008 -2- to the applicant-workman according to the Rules and not upto the date of his reinstatement i.e. 24.12.2004 as he was gainfully employed. Counsel for the petitioner contends that the services of the petitioner-workman were terminated on 19.6.1996. A demand was raised by the workman, and on the failure of the conciliation proceedings a reference dated 1.4.1997 was made to the Labour Court by the Appropriate Government. On the basis of the pleadings and the evidence led by the parties, the Labour Court vide award dated 26.3.2003 while holding the termination of the workman to be not in accordance with law, held him entitled to reinstatement with continuity of service and full back wages. Counsel contends that thereafter the Management preferred C.W.P.No.4249 of 2004. A Division Bench of this Court after hearing both the parties passed a detailed order dismissing the writ petition vide order dated 23.8.2004. The award having become final, the workman made a request to the Management to reinstate him with continuity of service and grant him full back wages. In compliance with the award, the workman was reinstated in service with continuity thereof on 24.12.2004 but he was not granted any back wages from the date of termination till his reinstatement. The workman submitted his resignation from service after about 5 months on 20.5.2005 which was accepted by the Management. Counsel submits that since the workman was not granted the back wages, he preferred an application under Section 33-C (2) of the Act on 13.6.2005 before the Labour Court, Ambala. The Labour Court adjudicated upon the matter and has granted him full back wages from 19.6.1996 to 31.12.2001 and not upto his date of reinstatement i.e. 24.12.2004. In this way, the workman has been deprived of the full back C.W.P.No.2643 of 2008 -3- wages from 1.1.2002 to 23.12.2004. He, in the present writ petition, is therefore, claiming full back wages from 1.1.2002 to 23.12.2004. It would not be out of way to mention here that it is an admitted position that the workman has been granted the benefit which he has been held entitled to by the Labour Court vide the impugned order dated 6.12.2007 (Annexure P-3) i.e. full back wages along with interest from 19.6.1996 to 31.12.2001. Counsel for the petitioner-workman contends that the proceedings under Section 33-C (2) of the Act are in the nature of execution proceedings. He submits that the scope of the proceedings are very limited and the Labour Court while exercising its powers under Section 33-C (2) of the Act cannot go beyond the award, which is the basis for claiming the benefit under Section 33-C (2) of the Act. He contends that once through an earlier award dated 26.3.2003 (Annexure P-1), the workman was held entitled to full back wages, the Labour Court had no option but to merely compute the wages from the date of his termination i.e. 19.6.1996 till the date of his reinstatement i.e. 24.12.2004. It could not go into the question about the workman being gainfully employed or not for the said period as it was merely giving effect to the award dated 26.03.2003 passed in favour of the workman. He relies upon the judgments of the Hon'ble Supreme Court in the cases of Central Inland Water Transport Corporation Ltd. vs. The Workmen and another, AIR 1974 Supreme Court 1604, Municipal Corporation of Delhi vs. Ganesh Razak and another, 1995 Supreme Court Cases (L&S) 296 and a Division Bench judgment of this Court in Municipal Committee Gidderbaha, District Faridkot vs. Labour Court, Bathinda and others, 1998 (3) RSJ 517 and a Single Bench judgment of this Court in the case of M/s. Whirlpool of India Ltd. vs. Presiding C.W.P.No.2643 of 2008 -4- officer, Labour Court, Faridabad, 1999 (4) SCT 184. He on the basis of these judgments submits that while exercising jurisdiction under Section 33-C (2) of the Act, the Labour Court cannot adjudicate upon the dispute of entitlement or the basis of claim of the workman. It can only interpret the award or settlement on which the claim is based. He, therefore, submits that the impugned order cannot be sustained and the workman be held entitled to full back wages from 19.6.1996 to 23.12.2004. On the other hand, counsel for the respondent contends that what has been held by the Labour Court vide its award dated 26.3.2003 (Annexure P-1) is the entitlement of the workman to his reinstatement with continuity of service and full back wages. The period for which the workman is entitled to back wages has not been specified in the said award. The jurisdiction of the Labour Court as submitted by the counsel for the petitioner cannot be disputed with. He, however, contends that for the purpose of making determination of the period of back wages the workman would be entitled to and for computing the said entitlement in terms of money, the Labour Court can interpret the award on which the claim of the workman rests. In the present case, as the period for which the workman is entitled to back wages has not been computed by the Labour Court, the Labour Court has full authority to determine the said period for which the workman would be entitled to the back wages. For this contention, he relies upon the judgments of the Hon'ble Supreme Court in the cases of The Bombay Gas Co.Ltd. vs. Gopal Bhiva and others, AIR 1964 Supreme Court 752 and The Central Bank of India Ltd. vs. P.S.Rajagopalan etc., AIR 1964 Supreme Court 743. He further contends that it is a case where the Labour Court C.W.P.No.2643 of 2008 -5- should have outrightly rejected the claim of the workman under Section 33- C (2) of the Act. The workman while making statement before the Labour Court, in the proceedings under Section 10 of the Act, where the reference made by the Appropriate Government was being adjudicated upon leading to the passing of award dated 26.3.2003, which is being made the basis for the claim under Section 33-C (2) of the Act, has committed a fraud by stating that he was unemployed from the date of his termination. A workman who bases his claim on fraud, is not entitled to any benefit or relief from the Court. The award with regard to his entitlement of back wages having been obtained on the basis of fraud played on the Court, is a nullity and non-est in the eyes of law which cannot be enforced by way of proceedings under Section 33-C (2) of the Act. He relies upon a judgment of the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. and others, AIR 1994 Supreme Court 853. On this basis, he submits that the impugned order has been passed by the Labour Court taking into consideration the evidence led by the parties before it and cannot be said to be illegal or not in consonance with law as there is unrebutted evidence produced by the Management before the Labour Court showing that the workman has been gainfully employed since 2002 onwards which is further fortified by the fact that after the reinstatement of the workman on 24.12.2004, the workman has resigned on 20.5.2005 after putting just 5 months of service after reinstatement. On this basis, he prays for dismissal of the writ petition as being devoid of any merit. I have heard counsel for the parties and have gone through the records of the case and the impugned order. The submission made by the C.W.P.No.2643 of 2008 -6- counsel for the petitioner that the proceedings under Section 33-C (2) of the Act is generally in the nature of execution proceedings, the Labour Court calculates the amount of money due to the workman from his employer holding him entitled to the benefit of the same and the proceedings under Section 33-C (2) of the Act, therefore, puts a limit on the Labour Court cannot be disputed. However, for the purpose of making the necessary determination, it would be open to the Labour Court to interpret the award or settlement on which the workman's right rests. It is also true that the Labour Court would not be, while exercising its powers under Section 33-C (2) of the Act, entitled to determine the right of the workman, nevertheless, where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, the Labour Court can determine the amount of money due. In this view of the matter, the question therefore, which needs to be determined in the present case is the entitlement of the workman of his claim under the award dated 26.3.2003 which is the basis for claiming the amount of back wages under Section 33-C (2) of the Act. The relief, therefore, granted by the Labour Court vide its award dated 26.3.2003 would be the determining factor which reads as follows:- “Relief: 15. As a sequel of my aforesaid discussion, evidence and issuewise findings, I am of the view that the order terminating the services of the workman, is illegal, null & void, unconstitutional and is hereby set aside. Workman is ordered to be reinstated with continuity of service and full back wages as he categorically stated that C.W.P.No.2643 of 2008 -7- he is unemployed and his testimony remained un- challenged.” A perusal of the above would show that the Labour Court has granted the relief of reinstatement with continuity of service to the workman but with regard to full back wages, it was stated that as the workman had categorically stated that he is unemployed and this testimony of his has gone unrebutted. The relief of full back wages granted to the workman was on the basis of the statement made by him that he was unemployed. It is also clear from the above relief that the period for which the workman has been held entitled to full back wages has not been stipulated. Nevertheless, one thing is clear that the workman has been held entitled to full back wages for the period for which he had remained unemployed. When he moved an application under Section 33-C (2) of the Act claiming the benefit of the award with regard to the amount of back wages he would be entitled to, the Labour Court on the basis of the pleadings of the parties framed issues. One of the issues framed was; “Whether the respondent is liable to be directed to compute the monetary and other benefits which are due to the applicant and to pay the same immediately to the applicant in terms of the award dated 26.3.2003 passed by the Labour Court, Ambala?” On this issue, evidence was led by the Management wherein RW-I Natha Singh who was the Head Technician of Kapil Eye Hospital, Ambala, categorically stated that “the workman Ram Karan is doing his own work. He is doing the work of eye testing. He prepares the eyes of those which are to be prepared and receives the money from the patients of C.W.P.No.2643 of 2008 -8- his own. He is not getting any money from the Hospital. Ram Karan is working with us in the Hospital since 2002.” However, in his statement Natha Singh has stated that Ram Karan was not the employee of the Kapil Eye Hospital and he was not being granted any salary from the Hospital. What, therefore, comes out from the statement of Natha Singh-RW-I is that the workman is self-employed. The assertion of this witness has gone un- rebutted. Even in his cross-examination, no suggestion to the contrary has been put to him. This shows that the workman was gainfully employed from 2002 onwards. A perusal of the writ petition clearly shows that the workman has neither denied that he was gainfully employed from 2002 onwards nor has he pleaded that he was unemployed for the period for which the Labour Court has held him gainfully employed and on this ground rejected his claim of back-wages. What has been asserted in the writ petition by the petitioner is that the Labour Court could not go beyond the award and, therefore, the petitioner-workman was entitled to full back wages from 19.6.1996 i.e. the date of termination till 23.12.2004 i.e. the day before his date of reinstatement. This clearly brings out the lust of the workman to gain undue benefit which he is not entitled to. The back wages are granted to a workman who due to his illegal termination by the employer remained unemployed or who is not gainfully employed. The Management has been able to prove that the workman was indeed gainfully employed from 2002 onwards, and, therefore, what is being claimed by the workman beyond 2001 till 23.12.2004 was undue benefit which under law he cannot be held entitled to. The Labour Court while exercising its powers under Section 33- C (2) of the Act has not over-stepped the limits as prescribed under the C.W.P.No.2643 of 2008 -9- Statute nor has it ventured out the limitations as culled out by the judgments referred to by the counsel for the petitioner or the Management. It has merely, while exercising its powers under Section 33-C (2) of the Act, given effect to the award passed by the Labour Cout on 26.3.2003 (Annexure P-1) on which the claim of the workman is based. Since the period for which the workman is entitled to back wages was not specified in the award, the Labour Court on the basis of the evidence led by the parties, has determined the period for which the workman had remained unemployed and has accordingly granted him the benefit of back wages for the said period. This, by no stretch of imagination, can be said to be beyond the jurisdiction of the Labour Court while exercising powers under Section 33-C (2) of the Act. The Industrial Courts while adjudicating upon the disputes between the Management and the workmen must take into consideration the purpose, the law seems to achieve. Earlier the payment of full back-wages on a declaration of order of termination being invalid was the usual result but with the passage of time, a pragmatic view of the matter is being taken by the Courts. The employer may not be compelled to pay the workman for the period during which he apparently contributed slightly or nothing at all. A period that was spent unproductively has to be looked at in the light of the fact whether the workman was gainfully employed during that period or not. For the period the workman is unemployed or not gainfully employed, there might be some justification to compelling the employer to grant him wages for the said period but whether the workman has been gainfully employed or had been employed, it would not be justified in compelling the employer to pay the workman the back wages. The emphasis, thus, has to be upon doing justice between the parties. No precise C.W.P.No.2643 of 2008 -10- formula can, therefore, be laid down and it would not be correct to hold that the payment of entire back wages should be allowed automatically in a mechanical manner only because the order of termination has been held to be invalid. A person is not entitled to get something only because it would be lawful to do so. He must, therefore, prove that he is not only entitled to get something under the Law but deserves it as well. Therefore, in the present case, merely because the petitioner has been held entitled to back wages vide the award dated 26.3.2003 would not be enough to claim entire back wages but he will have to show that he deserves it as he has remained unemployed despite of his best efforts. Apart from what has been held above, another aspect which needs to be highlighted here is the conduct of the workman. By all means, the workman is fully entitled to the benefits which have been conferred on him on the basis of the award passed in his favour. The award has held him entitled to the back wages on the basis of his being unemployed as he had stated so before the Labour Court. As regards the determination of the claim of the workman under Section 33-C (2) of the Act i.e. the amount he would be entitled to for the period for which he had been unemployed entitling him to the back wages, un-rebutted evidence has come on record showing that he was indeed gainfully employed since 2002. The evidence having come on record in regard to the workman being gainfully employed, the Labour court could not have proceeded to grant him back wages for the period he was gainfully employed as the claim of his back wages was on the basis that he had remained unemployed. The workman has, therefore, made a claim before the Labour Court which was incorrect. He has, as a matter of fact, mis-stated thereby, misled the Labour Court to pass the award dated C.W.P.No.2643 of 2008 -11- 26.3.2003 (Annexure P-1) with regard to back wages, thus fraudulently misguided the Court into granting him a claim to which he was not entitled to. He has not come to the Court with clean hand. A person who approaches the Court with unclean hands is not entitled to any equity or relief. The Hon'ble Supreme Court in S.P. Chengalvaraya Naidu's case (supra) has stated as follows:- “Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/ decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” In the light of the facts of the present case and what has been held by the Hon'ble Supreme Court, even if the Labour Court has determined the period for which the workman was entitled to back wages vide its award dated 26.3.2003 but still under proceedings under Section 33- C (2) of the Act, if it comes out and is proved that the benefit or the claim has been obtained by the workman by playing fraud upon the Court, such claim and benefit would be a nullity and non est in the eyes of law, dis- entitling the workman of such benefit or claim. The Courts of Law are established for imparting Justice. To claim Justice, Truth is the foundation. A claim based on falsehood shall C.W.P.No.2643 of 2008 -12- crumble and perish. The Courts cannot close its eyes to such claims and claimants, who use untruth as their weapon to defeat Justice. Even Law cannot be used to defeat Justice. Law is the way and the means to achieve Justice, for which the Law is enacted and the Courts apply it to do Justice, which is the destination. Law is, thus, subservient to Justice and not vice- versa. Truth is Justice and it shall prevail in Court, the Temple of Justice. Thus, one who approaches the Temple of Justice, must come with clean hands, failing which, he is bound to be thrown out and may be penalised as well, for trying to pollute its purity and sanctity. In these circumstances, the workman is held not entitled to any benefit except for the one granted to him by the Labour Court vide its impugned order dated 6.12.2007 (Annexure P-3). No illegality has been committed by the Labour Court which would call for interference by this Court. In this view of the matter, finding no merit in the present writ petition, the same stands dismissed. March 23, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No