* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C.) No. 3081/2007 and C.M. No. 5793/2007 (for stay) % Date of Decision: 10th August, 2009 # THE EXECUTIVE ENGINEER, CPWD ..... PETITIONER ! Through: Mr. A.K. Bhardwaj with Ms. Jagrati Singh, Advocates. VERSUS $ THE REGIONAL LABOUR COMMISSION (CENTRAL) & OTHERS .....RESPONDENTS ^ Through: Respondent No. 3 in person. CORAM: Hon'ble MR. JUSTICE S.N. AGGARWAL 1. Whether reporters of Local paper may be allowed to see the judgment? YES 2. To be referred to the reporter or not?YES 3. Whether the judgment should be reported in the Digest?YES S.N.AGGARWAL, J (ORAL) The petitioner in this writ petition seeks setting aside of impugned notice of recovery dated 08.09.2006 issued by the Assistant Collector Grade-II (respondent No. 4 herein) pursuant to an order dated 23.08.2004 passed by the CGIT-cum-Labour Court-II under Section 33(C)(2) of the Industrial Disputes Act, 1947. Vide impugned notice of recovery dated 08.09.2006, the petitioner has been directed to deposit an amount of Rs.4,28,600/- with respondent No. 4 by 29.09.2006. 2. Briefly stated the facts of the case are that on 20.07.1992, the Central Government had referred the following industrial dispute to the Central Government Industrial Tribunal, New Delhi for adjudication:- W.P.(C) No.3081/2007 Page 1 of 7 “Whether the action of the management of CPWD, New Delhi in terminating the services of Shri Sajjan Kumar w.e.f. March, 1991 is justified? If not, what relief he is entitled to?”. 3. Vide award dated 06.11.1998 passed in ID No. 66/1992, the CGIT, New Delhi passed the following award in favour of Sh. Sajjan Kumar (respondent No. 3): “I am, therefore, of the opinion that the claimant is entitled to be reinstated with the management. The claimant, however, in my opinion was not entitled to back wages because it cannot be accepted that a mason could remain idle continuously for such a long period without any job or the work. However, for the illegal act of the management I burden the management with Rs. 5000/- lump sum as costs of this dispute for which the management is responsible. The workman shall be reinstated by the management in their regular cadre immediately.” 4. The aforementioned award was challenged by the petitioner before this Court in W.P.(C.) No. 7086/1999 but this writ petition was dismissed vide order dated 26.11.1999. 5. Aggrieved by the said order of dismissal, the petitioner filed a Letters Patent Appeal being LPA No. 565/1999 which also stood dismissed vide order passed by a Division Bench on 10.01.2002. Thereafter, the workman (respondent No. 3) was reinstated in service by the petitioner w.e.f. 10.03.2003. After his reinstatement, he filed a writ petition being W.P.(C.) No. 7131/2004 seeking to challenge the award dated 06.11.1998 in I.D. No. 66/1992 to the extent he was not granted back wages. This writ petition filed by the workman/ respondent No. 3 was withdrawn by the workman and accordingly, the said petition was dismissed as withdrawn vide order dated 03.12.2008. Consequently the award of the CGIT dated 06.11.1998 in I.D. No. 66/1992 attained finality. The award directs reinstatement of the respondent No. 3 and also directions to the petitioner to reinstate him in his regular cadre immediately. Costs of Rs.5,000/- was also awarded in favour of respondent No. 3. W.P.(C) No.3081/2007 Page 2 of 7 6. Although the award was passed by the CGIT on 06.11.1998 but respondent No. 3 was reinstated in service by the petitioner w.e.f. 10.03.2003. The respondent No. 3, after he was reinstated, filed an application under Section 33(c)(2) and claimed Rs. 4,00,500/- besides costs of Rs. 5,000/- as amount due to him in terms of award dated 06.11.1998 in his favour. The CGIT-cum-Labour Court-II has passed the following order on application of respondent No. 3 under Section 33(c)(2) on 23.08.2004: “The applicant has demanded Rs. 4,00,500/- as per his chart and cost of the dispute Rs. 5,000/-. He has submitted a chart from Nov 1998 to May 2002 but it cannot be ascertained whether the chart is correct or not. So no specific amount is given. The management will pay the entire arrears of his salary right from 06.11.1998 till he was reinstated. The management will also pay the cost of Rs. 5,000/- as awarded in I.D. No. 66/1992. ORDER The application is allowed. The respondent/management is directed to pay all benefits and dues which accrued w.e.f. 06.11.98 + Rs. 5,000/- cost of ID case within one month from the date of the order. In case the entire arrears referred above are not paid within one month from the date of the order, the applicant will be entitled to get 9% interest per annum on all the arrears that have accrued from 06.11.98 and also on Rs. 5,000/- the cost of the ID case.” 7. Thereafter, the petitioner paid an amount of Rs. 2,90,172/- to the respondent No. 3 on 06.02.2006 on account of arrears of pay for the period from 06.11.1998 to 09.03.2003. However, the respondent No. 3 vide his letter dated 22.03.2003 sent by him to the Assistant Labour Commissioner, Curzon Road Barracks, New Delhi, informed that he had received Rs. 2,90,172/- with interest of Rs. 37,559/- from the petitioner management. The respondent No. 3 vide his aforesaid letter dated 23.03.2006 requested the Assistant Labour Commissioner that the petitioner be directed to pay him Rs. 4,28,600/- more with interest @ 9% W.P.(C) No.3081/2007 Page 3 of 7 per annum being the further amount due to him in terms of award dated 06.11.1998. 8. The Assistant Collector (Grade-II), office of Dy. Commissioner (SW), Kapashera, New Delhi-110037, on this communication addressed to him by respondent No. 3 issued the impugned notice dated 08.09.2006 to the petitioner directing it to deposit an amount of Rs. 4,28,600/- mentioned in the letter of respondent No. 3. 9. The petitioner, on 11.10.2006, made an application to the CGIT Labour Court-II for recall of order dated 23.08.2004. The petitioner also requested the Regional Labour Commissioner on 20.10.2006 to recall and withdraw the recovery proceedings pending before Assistant Collector (Grade-II), Kapashera, New Delhi. Since the impugned recovery proceedings were not withdrawn by the Assistant Collector (Grade-II), Kapashera, New Delhi, the petitioner has filed the present writ petition for setting aside the impugned notice dated 08.09.2006 and also order dated 23.08.2004 passed by CGIT-cum-Labour Court-II. 10. I have heard the arguments of the learned counsel appearing on behalf of the petitioner and also heard respondent No. 3, who has appeared in person. I have also gone through the entire case file. 11. Mr. A.K. Bhardwaj, learned counsel appearing on behalf of the petitioner, contends that the respondent No. 3 has already been paid whatever was due to him in terms of award dated 06.11.1998 in I.D. No. 66/1992 on account of arrears of his salary for the period from 06.11.1998 till 09.03.2003. 12. As against this argument advanced on behalf of the petitioner, the respondent No. 3 who has argued his case in person, says that in terms of award dated 06.11.1998 he was entitled for regularisation since 1989 and after his regularisation from 1989, his pay should have been fixed by W.P.(C) No.3081/2007 Page 4 of 7 the petitioner with effect from the date of his deemed reinstatement, i.e. 06.11.1998 and according to him, he should have been paid arrears of salary after fixation of his pay correctly. The respondent No. 3 says that in case his pay was correctly fixed by the petitioner, then he should have been found entitled to recover the amount mentioned by him in his communication dated 23.03.2006 sent to the Assistant Labour Commissioner where he has pointed out that an amount of Rs. 4,00,500/- more was due to him in addition to the amount he has already received from the petitioner. 13. It seems that the Assistant Collector (Grade-II), Kapashera, New Delhi has issued the impugned notice dated 08.09.2006 merely picking up the figure from the communication of respondent No. 3 dated 23.03.2006 without ascertaining as to what amount was actually due to him in terms of award dated 06.11.1998/23.08.2004 referred above. It may be noted that the CGIT-cum-Labour Court-II vide its order dated 23.08.2004 had simply directed the management of the petitioner to pay to the respondent No. 3 arrears of his salary from 06.11.1998 till he was reinstated along with costs of Rs. 5,000/- as awarded in I.D. No. 66/1992. 14. Neither award dated 06.11.1998 in I.D. No. 66/1992, nor the order of CGIT dated 23.08.2004 under Section 33(c)(2) directs the petitioner to fix his pay on 06.01.1998 treating him as regularised with effect from 1989. The award dated 06.11.1998 simply directs reinstatement of respondent No. 3 with further directions to the petitioner to put him in regular cadre immediately. Vide order dated 23.08.2004 under Section 33(c)(2), the petitioner was directed that respondent No. 3 should be paid his salary right from 06.11.1998 till he was reinstated. In view of these directions given by the Labour Court in favour of respondent No. 3, what the authorities below ought to have examined was to what amount the W.P.(C) No.3081/2007 Page 5 of 7 respondent No. 3 was actually entitled to, in terms of award dated 06.11.1998 in I.D. No. 66/1992 and unless this question was first determined, the impugned recovery certificate could not have been issued. 15. Mr. Bhardwaj, learned counsel appearing on behalf of the petitioner, has drawn my attention to Annexure A-8 (at pages 42-44 of the Paper Book) to contend that the respondent No. 3 was placed in the maximum of pay scale of the post held by respondent No. 3 at the time his pay was fixed with effect from the deemed date of his reinstatement, i.e., 06.11.1998 and, therefore, according to him, whatever payment was due to respondent No. 3 has already been paid and acknowledged by respondent No. 3. 16. However, respondent No. 3 present in person, submits that the pay scale of Mason starts from Rs. 3050/- and it is not the maximum pay in the scale of pay admissible to the Mason. The respondent No. 3 further submits that he was also entitled to have annual increments after his deemed reinstatement w.e.f. 06.11.1998 but Mr. Bhardwaj, learned counsel appearing on behalf of the petitioner, submits that in terms of FR 26, the annual increments are granted to employees only when they actually earn the increment and, therefore, according to him, since respondent No. 3 did not work with the department till the time he was actually reinstated w.e.f 10.03.2003, he was not entitled to any increment from the deemed date of his reinstatement till the date he was actually reinstated. 17. The contentions in regard to the above raised on behalf of the parties give rise to a disputed question of fact which cannot be decided by this Court in exercise of its extraordinary discretionary writ jurisdiction under Article 226 of the Constitution. It is for the concerned Labour Court W.P.(C) No.3081/2007 Page 6 of 7 to hear and decide the question as to whether any more amount is payable to respondent No. 3 in terms of award dated 06.11.1998 in I.D. No. 66/1992 and in case any amount is found due to him, then appropriate orders may be passed by the Court below under Section 33(c)(2) of Industrial Disputes Act, 1947. 18. Respondent No. 3 further submits that despite the directions of the Tribunal contained in award dated 06.11.1998 for his immediate regularisation, the petitioner has not regularised him till date. The petitioner is, therefore, directed to regularise respondent No. 3 on the post of Mason in terms of award dated 06.11.1998 immediately, if he has not already been regularised. Needless to state that regularisation of respondent No. 3 should take place w.e.f 06.11.1998, i.e., the date of the award. 19. For the foregoing reasons, the impugned recovery notice dated 08.09.2006 is hereby quashed and the concerned Court below is directed to decide the question regarding entitlement of respondent No. 3 in terms of award dated 06.11.1998 afresh after giving an opportunity of hearing to both sides. The parties are directed to appear before the concerned Court below/Successor Court for further directions at 2:00 P.M. on 02.09.2009. 20 In view of the above, this writ petition along with stay application, stands disposed of. AUGUST 10, 2009 S.N.AGGARWAL, J 'bsr' W.P.(C) No.3081/2007 Page 7 of 7