CWP No.8735 of 2002 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.8735 of 2002 (O&M) Decided on : 22-03-2011 State of Haryana and others ....Petitioners VERSUS Sh.Faquir Chand and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Sunil Nehra, Sr. DAG, Haryana Ms. Sonia Jain, Advocate for the respondent-workman MAHESH GROVER, J This writ petition is directed against the orders dated 23.2.2000 and 14.6.2001 passed by the Labour Court, Hissar pursuant to an application under Section 33 (c) (2) of the Industrial Disputes Act having been preferred by the respondent no.1. The basis for filing this application was an earlier award passed in favour of the respondent no.1 on 13.12.1990 holding him entitled for reinstatement with back wages. In the said award, the respondent-workman had pleaded that he was working as a Mechanic with the petitioners w.e.f 18.12.1985 and his services were wrongly terminated on 2.2.1988 without compliance of the provisions of Section 25F and 25G of the Act. The petitioners pleaded that the respondent was working on daily wages as a labourer and since he was not a regular employee, therefore, his services were terminated in accordance with law and denied the entitlement of the respondent-workman to claim reinstatement. The Tribunal answered the reference in favour of the workman and held him entitled to reinstatement with full back wages and benefit of continuity of CWP No.8735 of 2002 (O&M) 2 service. This award was challenged by the petitioners State of Haryana by way of CWP no. 6888 of 1991 which was dismissed on 6.1.1997. The matter was further agitated before Hon'ble Supreme Court by way of SLP no. 15263-276 of 1997 which was also dismissed on 1.9.1997. Since the respondent had not been paid any dues he filed a contempt petition in which some amount was paid to the respondent. The instant application under Section 33(c) (2) was preferred by the respondent seeking the benefits arising from the award. The petitioners availed several opportunities to respond to the application but failed to do so inspite of costs having been imposed upon them and ultimately the defence of the petitioners was struck off vide order dated 23.2.2000. The Tribunal then determined the issue in favour of the respondent – workman and accepted his plea and the calculation that he had submitted in support of his claim. He was held entitled to a sum of Rs.3,37,186.90 alongwith interest at the rate of 12% from the date of filing of the application till the date of its realisation. This has resulted in the filing of the instant writ petition where the claim of the respondent- workman has been disputed. Learned counsel appearing for the petitioner has raised a multi fold submissions; his first contention is that just before the dismissal of SLP on 1.9.1997 and two months after the date of decision of the High Court the respondent approached the petitioners to rejoin the services on 21.5.97. He was informed by virtue of order dated 25.11.1993 ( Annexure P-7) that the unit in which he was employed/engaged earlier had since been relocated and taken over by the Forest Development Corporation. He was thus asked to work on Fatehabad range which place of posting was offered on account of CWP No.8735 of 2002 (O&M) 3 the re-location of the unit. The respondent-workman refused to accept the place of posting vide his letter dated 30.5.1997. He was again directed to join as a labourer in the office of Regional Manager, Haryana Forest Development Corporation, Hisar which offer he once again refused. It is thus clear that the respondent workman has spurned the offer of the petitioners to take him back in service. The next contention that has been raised by the learned counsel for the petitioners is that even though the respondent-workman claimed himself to be mechanic they had denied his status as such and had pleaded that he was merely working as a daily wager. This question was however not determined by the Labour Court in the first instance and as such to accept it now would result in grave infirmity and specially when the respondent is claiming all the arrears on account of his working as Mechanic. It has also been contended by the learned counsel for the petitioners that since the respondent had not accepted the plea of rejoining the services he was at best entitled to the wages he was drawing as daily wager. Lastly, it has been contended that under Section 33(c) (2), the Labour Court could not have awarded interest. Learned counsel appearing for the respondent-workman has vehemently opposed the plea of the petitioners. She has contended that there is no infirmity in the award impugned before this Court. On due consideration of the matter, I am of the considered opinion that there is infirmity in the impugned award. The respondent while submitting his application under Section 33(c) (2) proceeded on the assumption that he was a regular employee and therefore had laid a claim to CWP No.8735 of 2002 (O&M) 4 HRA etc. and other service benefits which are admissible only to regular employee. It is indeed true that the petitioners had themselves invited such a situation upon themselves as they did not participate in the proceedings but the material on record could not be ignored. Annexure P-10 is the communication addressed by the respondent to the petitioners wherein he has categorically stated that he be given the amount in accordance with the decision of the Labour Court dated 13.12.1990 and his arrears of pay as mechanic at DC rates fixed on 2.2.1992 till 31.3.1993 may be made available to him. This aspect had been totally ignored by the Labour Court and it has proceeded on the assumption that respondent was working on regular basis and was entitled to the other benefits claimed by him. The Labour Court could also not have awarded interest as has been observed by Division Bench of this Court in CWP no. 2927 of 2006 titled as State of Haryana vs. The Presiding Officer, Labour Court, Ambala and others decided on 11.1.2008 which decision was based on the observations of Hon'ble Apex Court in Central Inland Water Transport Corporation Ltd. vs. Workmen reported as (1974) SCC 696 wherein it has been observed as follows:- “it is well settled that proceedings under Section 33-C(2) are in the nature of execution, proceedings and therefore, this does not involve a right of plaintiffs to relief and the corresponding liability of the defendant i.e whether the defendant is at all liable or not. These two functions are normally regarded as functions of a suit and not of execution proceedings. To call determination of such points as incidental to execution proceedings will be perversion. So when a claim CWP No.8735 of 2002 (O&M) 5 is made before the Labour Court under Section 33-C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions- say of an Industrial Tribunal which alone is entitled to make such adjudication. The workmen cannot put forward a claim in an application under Section 33 C (2) in respect of a matter not based on an existing right.” In view of the aforesaid, I am of the considered opinion that the material on record overwhelmingly states that the respondent - workman was not employed on regular basis and was merely employed as a daily wager which facts have been over-looked by the Labour Court. It would thus be in the fitness of things that the impugned award be set aside and the matter be remitted back to the Labour Tribunal for decision afresh by taking into consideration the observations made above and the entire material on record. Ordered accordingly. Before parting with the case, I deem it appropriate to observe that the Court cannot ignore the lapses on the part of the petitioners. It had not participated in the proceedings initiated by the respondent-workman under Section 33(c) (2) and there is no plausible reason why this was not done; worse still, the order by which their defence was struck off was not challenged at the appropriate time even though challenge has been made now after coming into existence of the award. For this lapse and for causing delay to the case of the respondent-workman, I deem it appropriate to impose a punitive costs of Rs.50,000/- which shall be paid to the respondent-workman. This amount shall be deposited by the petitioners and same shall be recovered from the pocket of the official who has committed CWP No.8735 of 2002 (O&M) 6 this lapse. The same shall be recovered from him after fixing the liability even if such a person has retired from services. The costs shall be paid to the respondent – workman before the proceedings are commenced on by the Tribunal. Accordingly, the writ petition is accepted. Annexures P-12 and P- 14 are hereby set aside and the matter is remitted back to the Labour Tribunal Hissar for decision afresh. The matter shall be concluded by the Tribunal as expeditiously as possible preferably within a period of 8 months from the date of receipt of the copy of this order. Parties are directed to appear before the Labour Court on 25.5.2011. March 22, 2011 (Mahesh Grover) rekha Judge