C.W.P.No.5931 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.5931 of 2010 Date of Decision:- 01.04.2010 M/s East India Cotton Manufacturing Company Ltd. ....Petitioner(s) vs. Parsu Ram Singh and ors. ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Sanjiv Sharma, Sr. Advocate with Mr.Shekhar Verma, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. Prayer in the present writ petition is for issuance of a writ in the nature of Certiorari for quashing of order dated 29.7.2009 (Annexure P-11) passed by the Labour Court, Faridabad and the Award dated 3.3.2000 (Annexure P-5) passed by the Presiding Officer, Labour Court-II, Faridabad. Counsel for the petitioner submits that an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) was preferred by respondent No.1-workman after a delay of more than 6 years and, therefore, the said application could not have been entertained by the Labour Court. His further contention is that the present application would not be maintainable as the workman had not preferred an application under Section 33-C (1) of the Act. He contends that there is a C.W.P.No.5931 of 2010 -2- limitation provided under Section 19 (3) of the Act, according to which the Award shall remain in operation for a period of one year. He, thus, contends that the Labour Court has wrongly entertained the application preferred by the workman under Section 33-C (2) of the Act. His further contention is that the petitioner-company had retrenched the respondent- workman from service with effect from 3.8.1996 after seeking permission from the competent Authority under Section 25-N of the Act. A cheque amounting to Rs.6396/- was offered to the respondent-workman who refused to accept the same and thereafter, a letter of retrenchment along with the cheque was sent at his address available with the company through registered AD post but the same was returned undelivered. The company was locked out with effect from 12.9.1996 due to violence created by the workers and physical assault to the senior staff, officers and the workmen. During the pendency of this lock out, a settlement under Section 12(3) of the Act was signed between the Union/workmen and the Management of the petitioner-company on 23.2.2005 wherein it was mentioned that no wages would be payable for the period of closure and all calculations for payment shall be made considering 11.9.1996 as the last working day. Counsel, on this basis, contends that the Order passed by the Labour Court cannot be sustained and deserves to be set aside. I have heard counsel for the petitioner and have gone through the records of the case. On a demand raised by the workman, conciliation proceedings were held between the Management and the workman which failed. Thereby leading to the reference of the dispute for adjudication by the Competent Authority to the Labour Court, Faridabad, vide endorsement dated C.W.P.No.5931 of 2010 -3- 15.4.1998. Petitioner-Management initially appeared before the Labour Court but thereafter absented itself and accordingly, was proceeded against ex parte. On the basis of the oral as well as documentary evidence led by the respondent-workman, the Labour Court vide its Award dated 3.3.2000 (Annexure P-5) ordered reinstatement of the workman in service with full back wages. This Award of the Labour Court was not challenged by the Management and, thus, the same attained finality. On the passing of the Award dated 3.3.2000, the respondent-workman submitted a letter dated 6.6.2000 to the Labour Inspector for implementation of the Award (Exhibit W-2). He also moved a letter dated 30.8.2000 (Exhibit W-3) to the petitioner company for implementation of the Award. When no action was taken on the said application, the petitioner preferred an application under Section 33-C (2) of the Act for computation of the wages as per the Award dated 3.3.2000 reinstating him with full back wages and continuity of service. The calculations as submitted by the petitioner have not been challenged by the Management but the maintainability of the application under Section 33-C (2) of the Act has been challenged. The respondent-Management has challenged the claim of the respondent-workman primarily on the ground that the services of the workman had been retrenched after seeking permission of the competent Authority with effect from 30.3.1996 for which he was offered retrenchment compensation by way of a cheque which he refused to accept. The cheque amounting to Rs.6396/- along with the letter of retrenchment was sent at the address of the workman through registered AD post but the same was returned back undelivered. It was, thus, the stand of the C.W.P.No.5931 of 2010 -4- Management that in the light of retrenchment of the workman in accordance with law, the workman was not entitled to any wages. The Management had, however, offered him the amount of retrenchment compensation which was still in possession of the Management. This stand of the Management cannot be accepted for the reason that the workman-respondent had challenged his termination by raising a demand. Conciliation proceedings were held which, however, failed. Nothing has been brought on record to suggest that at that stage, the Management had taken a stand that the services of the workman stood retrenched and he was offered an amount of retrenchment compensation in accordance with law. The dispute was referred to the Labour Court vide endorsement dated 15.4.1998 which was registered as Reference No.44 of 1999. Upon notice issued by the Labour Court, Faridabad, the petitioner-Management initially appeared before the Labour Court but thereafter absented itself and accordingly, was proceeded against ex parte. On consideration of the oral and documentary evidence submitted by the workman, the Labour Court passed an Award dated 3.3.2000 (Annexure P- 5) holding the workman-respondent entitled to reinstatement in service with full back-wages. It is not the case of the Management that they were not aware of the passing of the Award. The Award stood duly published but still, the Management chose not to challenge the same, which thereafter attained finality. The workman had duly proved before the Labour Court that he had approached the Labour Inspector vide letter dated 6.6.2000 (Exhibit W-2) for implementation of the Award, which was well within the period of one year from the date of passing of the Award. Similarly, the petitioner-company was also issued letter dated 30.8.2000 (Exhibit W-3) by C.W.P.No.5931 of 2010 -5- the workman for implementation of the Award but the same was not acted upon. The workman, thus, had availed of the remedy under the provisions of Section 33-C (1) of the Act. The workman waited but still when nothing came out of it, he preferred application dated 16.10.2006 under Section 33-C (2) of the Act. Thus, now an objection has been taken that the application is barred by limitation. There is no limitation provided under the Act for approaching the Labour Court under the provisions of Section 33-C (2) of the Act. Thus, the application preferred by the workman-respondent cannot be said to be not maintainable before the Labour Court. The workman had preferred an application under Section 33-C (1) of the Act as is apparent from Exhibits W-2 and W-3 and when nothing fruitful came out of the same, the workman had no option but to move an application under Section 33-C (2) of the Act. The Hon'ble Supreme Court in the case of Chief Mining Engineer, M/s East India Coal Company Limited vs. Rameshwar and others, AIR 1968 SC 218 has held that claim under Section 33-C (2) of the Act cannot be declined on the ground of limitation as there is none provided under the Act. Limitation cannot be introduced in the provisions of Section 33-C (2) of the Act. Still further, the Hon'ble Supreme Court in the case of Management of State Bank of Hyderabad vs. Vasudev Anand Bhinde and others, AIR 1970 SC 196, has held that Article 137 of the Limitation Act, 1963 is not applicable to a claim preferred under Section 33-C (2) of the Act as no limitation is prescribed for such application. Thus, the contention of the counsel for the petitioner that the Labour Court could not have entertained the application of the respondent- workman under Section 33-C (2) being barred by limitation as provided C.W.P.No.5931 of 2010 -6- under Section 19 of the Act, cannot be accepted. It would not be out of way to mention here that Section 19 (3) of the Act only refers to the proceedings under Section 33-C (1) of the Act which remedy in the present case has been availed of by the workman as spelt out from the Exhibits W-2 and W- 3. As regards the contention of the counsel for the petitioner that the services of the workman were duly retrenched after seeking permission of the competent Authority and he was offered the retrenchment compensation which he had refused and thereafter the same was sent through cheque by a registered AD post but was received back undelivered, also cannot be accepted. In support of this contention, the Management was required to prove that the services of the workman-respondent were retrenched after seeking permission from the competent Authority. It is not in dispute that the competent Authority allowed the retrenchment of 500 workers out of 991 workers who were working with the petitioner-company. The management was, thus, required to produce the list of workers who were allowed to be retrenched by the competent Authority under Section 25- N of the Act. In the absence of any evidence on the record that the name of the respondent-workman was included in the list of workers regarding which permission for retrenchment was granted by the competent Authority, the contention of the counsel for the petitioner-company with regard to the retrenchment of the workman/respondent cannot be accepted. The findings, thus, recorded by the Labour Court in this regard are in accordance with law and, thus, do not call for any interference by this Court. The next contention of the counsel for the petitioner that a settlement dated 23.2.2005 Exhibit M-6 had been entered into between the C.W.P.No.5931 of 2010 -7- petitioner-Management and the workers' Union and, therefore, the workman-respondent would not be entitled to any claim under Section 33-C (2) of the Act as the said settlement under Section 12 (3) of the Act provided that no wages were payable for the period of closure and the calculations for payment shall be made considering 11.9.1996 as the last working day again cannot be accepted. There is no specific term in the agreement that all orders/Awards passed by the Court shall be treated as cancelled or settled but what is mentioned therein is that there would be individual settlement in case of individual workman and whoever accepts the settlement and receives full and final amount, would not be entitled to receive the benefit of the orders or Awards passed by the Courts. Clause (c ) of the settlement dated 23.2.2005 (Exhibit M-6 & Annexure P-7 herein) reads as follows:- “(c ) That as per the above terms and conditions the workers will receive their full and final amount. After this payment the mutual relation of worker and management will be terminated and in the personal disputes of the workers personal compromises are also going/will be done and after receiving the above final amount as per order/award passed in all that cases, the workers will not be entitled for any benefit and at personal level also all the pending disputes which are going on in Labour Court, Civil Court, High Court, Labour Department and whatever decree/order have been passed by any court or Labour Department will be deemed as dismissed.” C.W.P.No.5931 of 2010 -8- No evidence had been produced by the Management before the Labour Court that in compliance with the settlement dated 23.2.2005 Exhibit M-6, the respondent-workman had received his full and final claim as settled between them and, therefore, was not entitled to the benefit of the claim made by him in his application preferred under Section 33-C (2) of the Act. The finding returned by the Labour Court on this ground also is in accordance with proper interpretation of the settlement dated 23.2.2005 which cannot be faulted with. There is thus, no merit in the contention raised by the counsel for the petitioner on this point as well. Accordingly, the order dated 29.7.2009 (Annexure P-11) passed by the Labour Court-II-cum-Industrial Tribunal, Faridabad being in accordance with law, does not call for any interference by this Court. It would not be out of way to mention here that although Award dated 3.3.2000 (Annexure P-5) has been challenged in the present writ petition but no arguments have been addressed in support of the challenge to the Award. In any case, there is an unexplained and inordinate delay in the challenge put to the Award dated 3.3.2000 which itself is a good ground for not interfering with the said Award passed by the Labour Court. Dismissed. April 01, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE