1 S.B. CIVIL WRIT PETITION NO.835/2004 (Dungarpur Kendriya Sahkari Bank Vs. Basant Lal & Another) Date of Order : July 04th , 2007 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. P.R. Mehta, for the petitioner. Mr. Kamal Dave & Mr. M.C. Bishnoi, for respondents. By this writ petition, petitioner Dungarpur Kendriya Sahkari Bank, Dungarpur seeks to challenge order dated 03.12.2002 (Annexure-5) passed by the Labour Court Udaipur whereby the application filed by respondent No.1 workman under Section 33-C (2) of the Industrial Disputes Act, 1947 was allowed and the learned Judge, Labour Court passed order for payment of Rs.4,33,026/- to respondent No.1 alongwith interest at the rate of 9% with effect from 01.02.1997. According to facts of the case, the respondent workman was initially appointed as cashier-cum-clerk in the petitioner Bank and he was transferred to Sagwara Branch with effect from 03.08.1965. The services of respondent No.1 was terminated with effect from 23.8.1966. The said termination order was challenged by the respondent No.1 by way of raising industrial dispute. After conciliation proceedings by the Conciliation Officer, a failure report was submitted; and, thereafter, reference was made by the appropriate Government to the Labour Court, Udaipur. As a result of full-fledged trial, order of termination of the workman was set aside and 2 award dated 12.12.1985 was passed in favour of respondent No.1 and he was ordered to be reinstated in service and it was specifically ordered that the workman will not be entitled to back-wages and he was allowed Rs.2000/- as compensation alongwith wages for the period of suspension. The said award was challenged by the Bank by way of filing S.B. Civil Writ Petition No.4021/1988. No stay order was passed by this Court in the said writ petition and, at last, the writ petition filed by the petitioner Bank (No.4021/1988) was dismissed as having become infructuous. At the time of passing order dated 19.2.1999 by this Court, it was observed that the petitioner Bank has challenged the award by which the respondent was reinstated in service without back-wages and inspite of the fact that there was no stay order it is submitted on behalf of the petitioner that the respondent never joined the duties and has, in the meantime, crossed the age of superannuation. Upon this submission, this Court dismissed the petitioner as having become infructuous. After the decision of the writ petition filed by the petitioner Bank earlier challenging the award dated 12.12.1985, the award passed by the Labour Court attained finality, therefore, respondent No.1 moved an application under Section 33-C (2) of the Industrial Disputes Act for back- wages from the date of award to the date of attaining the age of superannuation alongwith Rs.2000/- as compensation as awarded by the Judge, Labour Court, Udaipur and 1/3rd part of the wages for the period of suspension as ordered by the Labour Court. In the application filed under 3 Section 33C (2), it was specifically mentioned that though the award was passed by the Labour Court, Udaipur, the order of termination was set aside vide the said award dated 12.12.1985, therefore, from the date of award till the date of superannuation, the petitioner was very much entitled to salary because he was not reinstated in service though he had filed applications on 21.4.1986 and 22.4.1986; but, he was informed by the Bank that the award was challenged by the Bank and he was not taken on duty. The learned Judge, Labour Court, after following the procedure laid down in the Industrial Disputes Act, finally passed order impugned dated 03.12.2002 whereby the application filed under Section 33C (2) was allowed and categorical finding was given by the Labour Court that it was the obligatory duty of the employer to comply with the order passed by the Labour Court and respondent No.1 was very much entitled to reinstatement in service alongwith wages for the period of suspension and compensation as ordered by the Labour Court; but, the order was not complied with the even the writ petition filed by the Bank was dismissed. The award passed by the Labour Court attained finality, therefore, the respondent workman is entitled to wages from the date of award to the date of attaining the age of superannuation i.e., 01.01.1997; and, for this period, the total salary was calculated to be Rs.4,33,026/-. Accordingly, the Labour Court passed order for payment of the said amount alongwith 9% interest and it is held that the employer has failed to comply with the award passed by the Labour Court, therefore, the petitioner workman is entitled to payment of salary. 4 Learned counsel for the petitioner while challenging the validity of said order submitted that respondent No.1 is not entitled to get any payment because he failed to join duties and he has not worked for the said period, therefore, the Judge, Labour Court has committed an error of law while allowing the application under Section 33C (2) for payment of wages under the award. It is prayed by learned counsel for the petitioner that the impugned order dated 03.12.2002 deserves to be set aside. Per contra, learned counsel for respondent No.1 submits that it was obligatory duty of the petitioner Bank to comply with the direction issued by the Labour Court whereby the termination order was set aside and the workman was ordered to be reinstated but no order was passed for taking him back on duty and as and when the respondent approached the Bank he was informed that the award has been challenged by the Bank before the Hon'ble High Court. It is further submitted that this Court dismissed the said writ petition filed by the Bank whereby the validity of the award was challenged. It is contended by learned counsel for the respondent No.1 that thereafter the award passed by the Labour Court attained finality and, therefore, the compliance of the award was to be made by the petitioner Bank. In these circumstances, the finding given by the Learned Judge, Labour Court vide the impugned order dated 03.12.2002 with regard to entitlement of the workman to payment of salary from the date of award to be date of attaining the age of superannuation does not require to be interfered with. 5 I have carefully gone through the entire record including award dated 12.12.1985 as well as impugned order dated 03.12.2002. It is not disputed before this Court that termination was set aside by the Labour Court nor it is in dispute that respondent No.1 was ordered to be reinstated in service by the Labour Court. It is obvious from the facts of the case that till today the award passed by the Labour Court is in existence and the writ petition challenging its validity was dismissed though, of course, having become infructuous. However, the fact remains that neither the award was set aside by this Court nor any stay order was granted. Therefore, indisputably the order of reinstatement of the workman was in existence and it was not stayed by the High Court, therefore, the employer was under obligation to reinstate the workman and pay him salary. But, in fact, the petitioner Bank made no compliance of the award though it was known to the Banik that it was not stayed by the High Court. Thus, the employer acted in total disobedience of the direction issued by the Labour Court vide award dated 12.12.1985. After dismissal of the writ petition, due to crossing of the date of age of superannuation of respondent No.1, there was no option for the Labour Court except to allow the application filed under Section 33C (2) in pursuance of the award passed by the Labour Court. It may be observed that at the time of judicial scrutiny, in such matters, this Court is required to take serious note of non-compliance of the orders of the Court. The employer has, in the case on hand, refused to comply with the directions passed by the Labour Court though it was the 6 duty of the petitioner Bank to pass orders for taking the workman back on duty in compliance of the direction of the Labour Court but no order was passed. The employer Bank challenged the validity of the award by way of writ petition and the writ petition, too, was dismissed, may be, upon the prayer made on behalf of the petitioner Bank that respondent workman has crossed the date of superannuation; meaning thereby, at the time of final arguments also, it was prayed before this Court by the Bank itself that the award may remain intact but, only on the ground that the workman has crossed the age of superannuation the writ petition became infructuous. Upon the prayer made by the counsel for the Bank, this Court dismissed the writ petition as having become infructuous and thus, in fact, this Court never interfered with the award passed by the Labour Court. For the period from the date of the award till 12.02.1999 the award was not complied with by the Bank, therefore, the action of the Bank is illegal and, accordingly, I see no reason to interfere in the impugned order. In the facts and circumstances of the case, for the foregoing reasons, this writ petition is dismissed with cost of Rs.20,000/-. The poor workman has contested the matter since three decades but, till today, he has not received a single penny from the Bank though Labour Court passed award in his favour and he was ordered to be reinstated in service. It is required to be observed that due to inaction of the Bank in not complying with the directions issued by the Labour Court not only respondent No.1 but his whole family has been made to suffer irreparable loss and has been 7 deprived of bread and butter. The action of the employer is highly deprecatory and it is ordered that the amount as ordered by the Labour Court vide impugned order dated 03.12.2002 along with cost ordered by this Court shall be paid within a period of two months from the date of this order. The petitioner Bank is directed to inform this Court with regard to compliance of the order within three months. The compliance report shall be produced before this Court for perusal. (GOPAL KRISHAN VYAS), J.