IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.18947 of 1996 Date of decision: 28.07.2009 The Management of Kharga Canteen Ambala Cantt. ...Petitioners and another versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. R.P.Singh Ahluwalia, Advocate, for the petitioners. Mr. D.S.Nalwa, Additional Advocate General, Haryana. Mr. B.S.Saini, Advocate, for respondent No.5. --- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J. I. Scope, fundamental challenge to claim wages 1. The writ petition challenges the proceedings of the Labour Commissioner, Haryana, requesting the Collector, Ambala, to recover the arrears of wages alleged to be due to the workman by resort to Revenue Recovery Act. The ground of challenge is that the recovery process initiated by the Government through notice following a certificate issued by the Labour Commissioner was a disputed claim that did not form part of the order to invoke Section 33-C(1) of the Industrial Disputes Act. The petitioner made a complete denial of liability to make any payment to the workman and challenged the proceedings of the Government as wholly without any legal justification. Civil Writ Petition No.18947 of 1996 - 2 - II. Finality of direction to reinstate workman 2. The admitted case was that the workman had been ordered to be terminated by the management on 03.07.1987. This termination was successfully challenged by the workman by resort to Labour Court which resulted in the order of reinstatement on 01.02.1994. This award was challenged by the management by means of a Writ Petition No.7982 of 1994 contending that the order of reinstatement was erroneous and relied essentially on a standing order that provided that on completion of 15 years of service, the workman was liable to be superannuated Admittedly, the workman had joined service initially on 01.09.1976 and according to the management, he was liable to be superannuated on 01.09.1991. Therefore, it contended that the direction for reinstatement made on 01.02.1994 could not be complied with. This Court refused to entertain the plea of the management and dismissed the writ petition summarily without considering the contention raised by the management. The decision was again sought to be challenged through a Special Leave Petition No.13041 of 1994 to the Hon'ble Supreme Court, but it was also dismissed. III. Management's order of deemed superannuation from anterior date, while ordering reinstatement and its jurisdiction. 3. Faced with the situation of having to reinstate the workman in spite of the objection that the workman was liable to be superannuated, the management sought a queer method of complying with the order of reinstatement by purporting to comply with the award by allowing him to join duty on 18.03.1995 and on the same day passed an order of termination w.e.f. 01.09.1991 on the basis that the workman was liable Civil Writ Petition No.18947 of 1996 - 3 - for superannuation as per the standing orders. 4. The justification for the management to doggedly insist on the operation of the standing order was a fact that yet another workman Sarasamma had challenged the validity of the standing order through a writ petition that contained a reference to superannuation resulting from 15 years of service as unjust and unfair. The challenge was repelled by a decision of this Court in Sarasamma Versus Union of India-1996 (1) PLR 393. According to the learned counsel appearing for the management, this subsequent judgment of this Court upheld the legitimacy of the standing order and therefore, the management was entitled to treat the termination as having resulted on 01.09.1991 itself and it was liable to pay salary only from the date of termination namely 03.07.1987 to 01.09.1991 and that amount according to the management had been sent and therefore, there was no further amount that was payable to the workman. IV. Rival contention-dispute regarding wages, when order of reinstatement with back wages became final a) Contention of management 5. The learned counsel would also submit that the issue that the workman was entitled to treat himself as continuing in employment beyond 01.09.1991, whether the effect of the order of reinstatement made by the award of the Labour Court dated 01.02.1994 was to treat his service enuring till 01.02.1994 or till 18.03.1995 when the order of termination w.e.f. 01.09.1991 was communicated to him were all matters that were disputed and required an adjudication. Having regard to the specific objection raised by the management, the Government should Civil Writ Petition No.18947 of 1996 - 4 - have only directed a reference before the Labour Court and the Government could not have issued certificate or ordered further process for recoveries for wages calculated as due upto 18.03.1995. b) (i) Response on behalf of workman, as regards dismissal of writ petition and SLP 6. The learned counsel appearing for the workman would vehemently contend that after the order of reinstatement made by the Labour Court on 01.02.1994 and the confirmation of the award by dismissal of the writ petition in the SLP filed by the management, would leave no ground available for the management to contend that the workman to be treated as superannuated w.e.f. 01.09.1991. He would further contend that the applicability of the standing order relied on by the management to say that the workman ought to be treated as superannuated after completion of 15 years of service must be treated as rejected by the Hon’ble High Court and the Hon’ble Supreme Court by dismissing the writ petition and SLP respectively. Although not expressly stated to have been disposed of on merits, the effect of dismissal and allowing the award of the Labour Court to operate would only mean that the management was not entitled to contend that the workman was to be treated as superannuated after 15 years of service. b) (ii) As regards the effect of Sarasamma's case and uncertified nature of standing order 7. The learned counsel appearing for the workman would add a second string to the bow contending that even the standing order had not been certified and therefore the mere provision of the standing order would not operate to take away the right of the workman to treat Civil Writ Petition No.18947 of 1996 - 5 - himself as continuing in service. On the effect of the judgment of this Court in Sarasamma’s case (supra), the learned counsel would submit that the enforceability or the binding nature of the standing order itself was not in question in the writ petition and all that this Court did was to examine the clauses in the standing order to uphold that a tenure of 15 years of service or permission to serve upto the age of 60 years whichever was earlier, could be taken as just and fair. b) (iii) As regards finality of award regarding back wages 8. As regards the recovery certificate and the proceeding initiated by the Government, the counsel appearing for the workman would stoutly support the Government action by pointing out that after the finality that the award of the Labour Court had obtained as regards the illegality of termination of services directing reinstatement with wages, there could be no further dispute regarding the entitlement to wages and he had given a calculation to the Assistant Labour Commissioner on the basis of which the recovery certificate had been issued. The rate of wages had been worked under the Minimum Wages Act and even the narration of dates and events in the writ petition conceded the fact that the Government had issued a notice to which the management had given its reply and the ultimate order for recovery which is impugned in the writ petition was passed only after hearing the objections of the management. V. Present disposition: (i) as regards entitlement to wages on the basis of award that had become final. 9. As regards the first contention that the workman was entitled to receive wages only upto 01.09.1991 on the basis that the workman was Civil Writ Petition No.18947 of 1996 - 6 - deemed to be superannuated with effect from that date, it has only to be stated to be rejected as most untenable. An award that directed reinstatement on 01.02.1994 had become final and a challenge by placing reliance on the standing orders had been rejected. It is irrelevant that the rejection was in limine and that neither the High Court nor the Hon’ble Supreme Court had specially adverted to the standing orders. If the judgments did not refer to the standing orders, it was all the worse for the management to persist in the contention that as per the provisions of the standing order, the workman must be deemed to be superannuated even on 01.09.1991. The management was barred from taking such a plea in the face of finality of the award of the Labour Court directing reinstatement and back wages. (ii) Effect of uncertified standing orders 10. Even as regards the enforceability of the standing orders, the defence emanating from the workman was two fold: (i) he had been terminated from service wrongfully on 03.07.1987 and the standing orders were supposed to have been drafted in the year, 1988 and hence, he would not be bound by the standing orders; (ii) in the absence of certification of the standing orders, it cannot take effect at all. The first objection regarding the fact that the workman had not been retained in service at the time when the standing orders were sought to be given effect has no meaning, for, the presence of the workman in employment is of no consequence. The only relevant consideration shall be whether the standing order had been certified and whether the management could rely on such a standing order even without certification. Civil Writ Petition No.18947 of 1996 - 7 - (contd.)Scheme of Industrial Employment (Standing Orders) Act, an over view 11. The Industrial Employment (Standing Orders) Act, 1946, states as its objective a requirement of employers of industrial establishment formally to define conditions of service employed under them. By the very nature of things, the standing orders are a formal document on which an employee enters into service with the employer and it creates a multi-lateral agreement with all the employees defining the terms and conditions generally that are applicable to all workmen, save for modification as regards any individual employee or group of employees by special contracts that are permissible by law. The Act prescribes a procedure as to how the standing orders would be given effect. Section 3 contemplates submission of draft standing orders within a period of six months from the date of the Act with five copies of the draft to be sent to the Certifying Officer. The Certifying Officer shall ensure that conditions for certification as prescribed under Section 4 are complied with before forwarding the copy to the trade union and if there is no such trade union, to the workman calling for objections from the workman. After giving the employer and the trade union or other representatives an opportunity of being heard, he shall render the draft standing orders certifiable with or without modifications. A person aggrieved by the standing orders certified under Section 5 could appeal under Section 6 and in the absence of appeal, the standing orders would come into operation on the expiry of 30 days from when the authenticated copies are sent to the employer and to the trade union. There are other provisions that the Act contemplates relating to maintenance of register Civil Writ Petition No.18947 of 1996 - 8 - on standing orders, posting of standing orders, duration and modification of standing orders etc. No employer can ever bind an employee by conditions through a standing order that is uncertified. iii) Decision in Sarasamma's case does not make standing orders enforceable, if uncertified To the specific arguments of the counsel from the respondent that the standing orders were not certified and therefore a clause relating to superannuation for 15 years of service could not be applied, the learned counsel appearing for the management is unable to substantiate that the standing orders had been duly certified and how they could be said to have come into operation. The judgment of this Court in Sarasamma Versus Union of India will have no value for the management against the workman who expressly pleads inapplicability of the standing orders by its status as being an uncertified one. I reject therefore the contention of the management that the workman should be treated as having been superannuated on 01.09.1991 and that no salary payable subsequent to the date. iv) Recovery Certificate is merely consequential to the first award 12. The issuance of certificate by the Government and the order for recovery made subsequently required no adjudication regarding the entitlement of the workman, any more than merely examining whether there was an award for back wages, and the quantum as claimed whether it confirmed to the stipulated wages. The enquiry under Section 33-C(1) of the Industrial Disputes Act is very minimal. All that the Government shall do is to be satisfied that money is due, when the application is made Civil Writ Petition No.18947 of 1996 - 9 - to the Government for recovery, as per settlement or award. The satisfaction of the Government that the said section contemplates does not involve any detailed enquiry. It can be on the basis of calculation submitted by the workman and after receiving the representation of the management, the Government will be entitled to pass further orders. It cannot be now contended that the order was passed by the Government without any form of notice to the management. As a matter of fact, the list of events submitted by the management along with the writ petition clearly admits issue of show cause notice by the Labour Commissioner on 22.06.1995 and his alleged reply on 29.06.1995 disputing the claim and that further show cause notice had also been issued on 30.10.1995 to which also the management had replied on 01.10.1995. It was after exchange of notices that the Government ultimately passed the impugned notice dated 05.11.1996. The objection of the petitioner was that the Government could not have passed the impugned proceedings without previous adjudication and that without there being an order under Section 33-C(2). This argument is equally untenable for the enforcement of the award by issuance of a certificate and recovery process by the Government is done only under Section 33-C(1) and not under Section 33-C(2). Even a mere objection of the management denying the workman’s entitlement in a petition filed under Section 33-C (2) has also been held by the Hon’ble Supreme Court in Sahu Minerals and Properties Ltd. Versus Presiding Officer-(1976) 3 SCC 93 , as not to have the effect of taking away the powers of the Labour Court to pass orders under Section 33-C(2). I have already observed that Section Civil Writ Petition No.18947 of 1996 - 10 - 33-C(2) itself is not applicable and the Government was passing the impugned proceedings on the basis of an award that directed reinstatement. v). Irrelevance of applicability of Section 33-C(2) to the present case 13. The learned counsel refers to the decision of Gujarat High Court in Director Versus Parmar Mahesbhai Devjibhai-2007-III-LLJ 222, that held that a proceeding under Section 33-C(2) could not be entertained by the Labour Court without prior adjudication and if a dispute is raised by an employer, the Labour Court had to stay its hands and ask the applicant to apply under Section 10 of the Industrial Disputes Act. Such a situation does not obtain here since no order is sought under Section 33- C(2) by the workman. Yet another decision of the Himachal Pradesh High Court in Sidh Shri Baba Balak Nath Mandir Sabha Versus Pyare Chand-2008-II-LLJ 1096, is equally untenable which laid down the proposition that the claim cannot be made under Section 33-C(2) without prior adjudication. The decision of this Court in General Manager Versus Sh. Dyal Singh-1995(2) PLR 28, is also a case that dealt with the proceedings before the Labour Court under Section 33-C(2), where this Court held that if the question of entitlement of wages arose, it had to be adjudicated first in the competent Court of jurisdiction. The reliance on this judgment is equally without substance for we are not dealing with the case of a claim under Section 33-C(2). The prior adjudication had been effected already and that was the award passed by the Labour Court. The enforceability of the award could not be in challenge after Civil Writ Petition No.18947 of 1996 - 11 - the disposal of the writ petition and the SLP, in the manner mentioned above. vi) Objection regarding the quantum of claim The only objection that the management could have was that the amount mentioned in the notice by the Government was in excess or it had no basis. All those objections have been taken before the Labour Commissioner and the recovery sought was in conformity to the decision already made by the Labour Court and he favours there is any dispute that dispute could only relate to the so-called letter of termination made by the management on 18.03.1995. At worst, if the management’s contention was that the order of termination would be effective even from September 1991 or any rate from the date when it was communicated on 18.03.1995 and that had been denied by the management, it was for the management to raise an industrial dispute and seek for a reference before the Labour Court. The industrial dispute need not be raised only by the workman. Such a right is also available to the management. The claim now made by the workman and the recovery that was sought through the proceedings of the Labour Commissioner have been for wages from the year 1987 to 24.05.1994 that is upto the period that falls even before the date when the letter of termination was ever served on the workman. His rights had already fructified by the award and there could not be any obstruction to the same. vii) Conclusion- writ petition untenable 14. The workman has been kept at bay for more than 22 years by the unreasonable attitude of the management. The writ petition itself is most Civil Writ Petition No.18947 of 1996 - 12 - untenable that denies to the workman of what he was found entitled as per the award that was concluded in the year 1994. The writ petition is dismissed, with exemplary cost which is assessed at Rs.25,000/- payable to the workman. (K.KANNAN) JUDGE 28.07.2009 sanjeev