IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A.No.13 of 2008 (O&M) Date of decision:13.7.2009 Managing Director,Punjab Land Development and Reclamation Corporation. ......Appellant Vs. Kanwar Singh ...Respondent CORAM:- HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MRS.JUSTICE DAYA CHAUDHARY PRESENT: Mr.M.K.Tiwari, Advocate, for the appellant. Mr.R.L.Gupta, Advocate, for respondent-workman. Mr.Suvir Sehgal, Addl. Advocate General, Punjab. **** ADARSH KUMAR GOEL, J. (Oral) 1. This appeal has been preferred by the Management against order of learned Single Judge quashing order dated 25.9.2006 (Annexure P9) passed by the appellant-Management purporting to be in implementation of earlier judgment of this Court dated 4.10.1996. 2. The respondent was serving as a Block Officer with the appellant-Management. He served w.e.f. 23.7.1966 to 18.2.1969 when his services were terminated. He raised an industrial dispute which was referred for adjudication and vide award dated 2.2.1978, order of termination was held to be not justified. The workman was directed to be reinstated with continuity of service and back-wages to the extent of 30% at the rate of Rs.120/- per month from the date of termination till his actual reinstatement. Against the said award, the Management filed C.W.P.No.1854 of 1980 which was dismissed on 30.10.1992. The workman had also filed C.W.P.No. 3308 of 1980 which was allowed on 4.10.1996. L.P.A.No.13 of 2008 [2] 3. The workman filed C.W.P. No.10776 of 1997 for implementation of judgment dated 4.10.1996 which was allowed vide order dated 22.10.1997. The workman also filed a contempt petition which was dismissed on 16.2.1999. It was observed that the workman had already superannuated and had already been paid a sum of about Rs.2,00,000/-. The workman could approach for recovery of the balance amount or take his remedy under the law. Further order dated 15.3.1999 was passed making it clear that the workman could pursue any available remedy if the amount due was not paid. Similar orders were passed on 29.5.2004 and 31.5.2005 by the Division Bench. 4. Thereafter, the Management passed order Annexure P-9, dated 25.9.2006. The earning of the workman was assessed to be Rs.30,26412/- from agriculture, during the period of unemployment. The arrears payable were assessed to be Rs.8,93,503.80, out of which Rs.2,00,000/- approximately had already been paid and the amount remaining to be paid was Rs. 6, 90,928/-. Since the earning was more, nothing was held to be payable to the workman. 5. The workman thereafter filed C.W.P.No.12097 of 1999 with a grievance that workman had already been held to be entitled to reinstatement with back wages and judgment by this Court dated 4.10.1996. Direction had already been granted for implementation of the said judgment vide order dated 22.10.1997. The appellant, in the guise of calculating the amount payable, had gone behind the judgment and declared that the workman was not entitled to any payment, contrary to the judgment dated 4.10.1996. In case the appellant was not satisfied with the L.P.A.No.13 of 2008 [3] order of this Court dated 4.10.1996, only remedy for the appellant was to challenge the said order at an appropriate forum. Once judgment had become final, the same had to be carried out. 6. The reply of the appellant before the learned Single Judge was that in contempt proceedings, the workman was directed to approach the appellant for recovery of the balance amount. Only remedy for the workman was to approach the Labour Court and in absence of which, the appellant could have gone into the question whether the workman was gainfully employed during the period of unemployment and whether any amount was to be paid. 7. Learned Single Judge held that since the issue whether workman was gainfully employed or not, had already been gone into in the writ petition of the workman, the appellant could not go into the said question in the order Annexure P-9. The order passed by the appellant was, thus, an attempt to over reach the Court. Accordingly, the writ petition was allowed and order passed by the appellant was set aside. The workman was held entitled to all the benefits flowing from the order of this Court dated 4.10.1996 vide which the appellant had already been directed to release the benefits due to the workman from the date of demand to the date of reinstatement within two months. 8. We have heard learned counsel for the parties. 9. Learned counsel for the appellant submits that the result of order passed by this Court on 16.2.1999 in contempt proceedings, read with further orders dated 15.3.1999 and orders passed by Division Bench on 29.5.2004 and 31.5.2005, was that the only remedy for the workman L.P.A.No.13 of 2008 [4] was to go to the Labour Court, in absence of which, the appellant could pass an appropriate order on the issue of right of the workman under judgment dated 4.10.1996, including the issue whether the workman was gainfully employed during the unemployed period. 10. To appreciate the submission, it will be appropriate to reproduce the order dated 4.10.1996 passed by this Court which admittedly has become final; “ The Management brought no proof on the records of the case that the petitioner during the period of his enforced idleness, was gainfully employed and therefore, there was nothing at all to disbelieve the statement of the workman. Following the dictum of law laid down by Full Bench in Hari Palace's case (supra), I modify the award Annexure P-2 and hold the workman entitled to full back wages from the date he made a demand upto the date of reinstatement. No orders as to costs”. 11. Perusal of the above order shows that the issue whether workman was gainfully employed or not, and whether workman will be entitled to full back-wages or not, has been finally concluded by this Court and the appellant could not reverse or nullify the said finding. 12. Order passed in contempt proceedings dated 16.2.1999 is as under: “ It is not disputed that in pursuance to the Court Direction the award of the Labour Court has since L.P.A.No.13 of 2008 [5] been implemented and that petitioner was made to join duty. He has since superannuated. The only claim, which has now to be met by the Corporation, is in regard to back wages to be paid to him. Admittedly, a sum of Rs.2,00,000/- has been paid to him. This does not appear to be the full amount of wages due to the petitioner on the basis of award of Labour Court. He is directed to approach the Corporation for recovery of the balance amount and in case the same is not paid, it will be open to him to pursue his remedy under the Industrial Disputes Act. No case for contempt is made out. Consequently, the petition is dismissed”. 13. Thereafter, further order was passed on 15.3.1999 to the following effect: “ Having heard counsel for the applicant, the application is disposed of with an observation that the petitioner will be at liberty to pursue whatever remedy is available to him under the law in case the amount due to him, if any, is not paid by the Corporation. This is, however, no ground to review my order dated 16.2.1999”. L.P.A.No.13 of 2008 [6] 14. The appellant challenged the same before the Division Bench and the Division Bench vide order dated 29.5.2004 (Annexure R-3) observed as under: “ We have considered the submissions made by Shri Tiwari. In our view, the order dated 15.3.1999 passed by the learned Single Judge need not be construed to mean as it has conferred an independent cause of action upon the respondent- workman to pursue his legal remedy. It is self- evident from the afore-mentioned order that the learned Single Judge declined to review his order dated 16.2.1999, therefore, his observations that “the applicant-workman will be at liberty to pursue whatever remedy is available to him under the law in case the amount due to him, if any, is not paid”. Need to be read in conjunction and in continuation of the order dated 16.2.1999. We, are, therefore, of the considered view that the remedy available to the workman for recovery of the balance amount, if any, would be one under Section 33-C(ii) of the Industrial Disputes Act as neither the disputed questions of fact regarding kinds of monetary claims can be gone into in exercise of discretionary jurisdiction of the High L.P.A.No.13 of 2008 [7] Court under Article 226 of the Constitution of India nor the proceedings under the Contempt of Courts Act can be allowed to be converted into execution proceedings of a judgment, order or direction of the Court. With these observations, the appeal is dismissed being infructuous with no order as to costs.”. 15. The order was further clarified vide order dated 31.5.2005 in the following terms: “However, if the appellant-workman can establish his right to recover any monetary benefit from the Corporation independently before the Writ Court, our judgment and order dated 29.5.2004 does not and would not preclude him from claiming such benefits. The present application, therefore, is disposed of with the clarification and modification of the order dated 29.5.2004 to the extent that it would be open for the applicant / respondent/workman to have recourse under the Industrial Disputes Act, 1947 for the recovery of balance amount, if any, and/or to establish for any other monetary benefit independently before the Court in the writ proceedings. He, however, cannot be permitted to L.P.A.No.13 of 2008 [8] interpret the order dated 15.3.1999 passed by the learned Single Judge in a contempt petition which had already been dismissed to mean as if he can initiate fresh contempt proceedings against the authorities or Corporation so as to get his money benefits recovered under the threat of such proceedings.” 16. The above orders clearly show that the appellant was not given any right to decide the question whether workman was entitled to back- wages or not, or whether workman was gainfully employed. The only question which the appellant could decide was, subject to orders of this Court, the amount due. While passing order dated 25.5.2006, not only the appellant examined the question of amount due to the workman which was worked out to be Rs.8,93,503.80, it also held that the workman was gainfully employed and had earning of Rs.30 lacks and was not entitled to back-wages which was clearly in violation of orders of this Court and without jurisdiction. 17. Learned counsel for the appellant has relied upon judgment of the Hon'ble Supreme Court in Jitendra Singh Rathor vs. Shri Baidyanath Ayurved Bhawan Ltd and another AIR 1984 SC 976 to submit that the High Court should not interfere with exercise of discretion of the Tribunal under Section 11A of Industrial Disputes Act, 1947. We do not find any relevance of this judgment to the issue herein. He also referred to judgment of the Hon'ble Supreme Court in State of Maharashtra and L.P.A.No.13 of 2008 [9] others vs. Kumari Tanuja [1999[ 2 Supreme Court Cases 462 to submit that the legal basis of the judgment could be removed by passing an order. We are unable to accept the submission. Once the order has been passed by this Court, there is no power with any litigant to pass any order in conflict with orders passed. Passing of a retrospective law by legislature stands on different footing. The judgment relied upon instead of supporting the appellant, goes against it. Reference was then made to judgment of the Hon'ble Supreme Court in Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar and others [2008] 9 Supreme Court Cases 54 to submit that nullity can be defence to the plea of res judicata. We do not see application of this principle to the issue in question as judgment of this Court could not be treated to be nullity. He also relies upon judgment of the Hon'ble Supreme Court in State of Punjab and others vs. Krishan Dayal Sharma AIR 1990 SC 2177 wherein it was observed that executing Court could not modify the decree, which is not the proposition under consideration. He further relies upon a judgment of the Hon'ble Supreme Court in North East Karnataka Road Transport Corporation vs. M.Nagangouda AIR 2007 SC 973 to submit that engagement in agriculture is also a gainful employment. Since the issue whether the workman was gainfully employed or not, had already attained finality, the judgment relied upon has no relevance. 18. View taken by learned Single Judge is, thus, not shown to be erroneous. The appellant is liable to pay the amount determined to be due, without taking into account alleged income during period of unemployment. If workman is not satisfied with the calculation, he can L.P.A.No.13 of 2008 [10] take his remedy in accordance with law. 19. The appeal filed by the appellant is, thus, frivolous and is dismissed with costs, quantified at Rs.50,000/-. (ADARSH KUMAR GOEL) JUDGE (DAYA CHAUDHARY) July 13, 2009 JUDGE raghav Note: Whether this case is to be referred to the Reporter ........Yes/No