C.W.P.No.18918 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.18918 of 2008 Date of Decision:- 30.03.2009 Om Parkash ....Petitioner(s) vs. Presiding Office Labour Court and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Sandeep Punchhi, Advocate for the petitioner. Mr.P.K.Ganga, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the impugned order dated 10.10.2006 (Annexure P-8) passed by the Labour Court on an application moved under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) rejecting the application of the petitioner-workman on the ground that the same was not maintainable as the claim of his entitlement for back wages, had not been established. Learned counsel for the petitioner contends that on on earlier dispute raised by the workman, an award dated 21.8.2000 was passed in favour of the workman by the Industrial Tribunal-cum-Labour Court, Hisar wherein the workman was held entitled to reinstatement with continuity and other consequential service benefits. However for back wages, the Labour Court had relegated the petitioner to the remedy of filing an application C.W.P.No.18918 of 2008 -2- under Section 33-C (2) of the Act. He contends that as per the said liberty granted by the Labour Court, the workman preferred an application under Section 33-C (2) of the Act on 16.6.2001. He contends that despite various opportunities having been granted to the Management, no evidence was led by it rebutting the claim of the workman of having remained unemployed for the period in question. Since no evidence was led, the entitlement of the workman for the same and the computation cannot be disputed by the Management. He further submits that since the application of the workman under Section 33-C (2) of the Act was on the basis of the award passed in his favour which was an award inter-partes which has attained finality, as the same was not challenged by the Management, the respondents could not have taken a plea with regard to the said application being not maintainable. He, on this basis, challenges the order dated 10.10.2006 passed by the Labour Court. On the other hand, counsel for the respondent contends that the present application under Section 33-C (2) of the Act is not maintainable on the ground that the workman has not been held entitled to back wages and since there is no adjudication on this issue, the application under Section 33-C (2) of the Act was not maintainable before the Labour Court. He further contends that the Labour Court had no jurisdiction to proceed and decide the application under Section 33-C (2) of the Act. He relies upon the judgment of the Hon'ble Supreme Court in the case of U.P.State Brassware Corporation Ltd. and another vs. Udai Narain Pandey, 2006 (1) RSJ 372 and Municipal Corporation of Delhi vs. Ganesh Razak, 1995 (1) SCT 408 as also a Single Bench judgment of this Court in Mange Ram vs. The Presiding Officer, Labour and others, 2003 (2) SCT 138. C.W.P.No.18918 of 2008 -3- I have heard counsel for the parties and have gone through the records of the case. A perusal of the award dated 21.8.2000 (Annexure P-4) wherein the reference was answered in favour of the workman. In para 13, the Labour Court has held as follows:- “xxxx xxxx xxxx. The workman will not be entitled for back wages automatically. However he will be free to avail remedy under Section 33-C (2) of the Act for back wages and in that case the management will be at liberty to plead and to prove that during this period workman remained in gainful employment and management is also at liberty to take action against the workman for the alleged misconduct after conducting proper enquiry. But the management will allow the workman to join the services within 90 days from the date of publication of this award.” In the relief clause also, the Labour Court has clearly stated that for the relief of back wages, the workman may avail the remedy under Section 33-C (2) of the Act. It is an admitted position that the present award which is between the Management and the workman has attained finality as the same was not challenged. The reproduced portion of the award would clearly show that the workman has been held entitled to back wages but liberty has been granted to the Management to plead and prove that during this period the workman remained gainfully employed and the Management was also given an opportunity to take action against the workman for the alleged misconduct after conducting proper enquiry in C.W.P.No.18918 of 2008 -4- accordance with law and as per the award the workman has proceeded to file an application under Section 33-C (2) of the Act. The Management having accepted the award passed by the Labour Court cannot now turn around and state that the said application under Section 33-C (2) of the Act would not be maintainable. The award passed by the Labour Court is binding on both the parties unless set aside. The Labour Court having given liberty to the workman to move an application under Section 33-C (2) of the Act vide its award dated 21.8.2000 and the workman having availed the said remedy, the findings as recorded by the Labour Court about the non- maintainability of the application under Section 33-C (2) of the Act is not acceptable. Further, a perusal of the award would show that the Labour Court had in fact stated that the workman would not be entitled to back wages automatically meaning thereby that if he is able to substantiate his contention that he was not gainfully employed and the onus having been discharged or the Management able to prove otherwise, he would not be entitled to back wages. In the present case, since no evidence has been led by the Management rebutting the assertion of the workman, the findings as recorded by the Labour Court vide its award dated 10.10.2006 is not maintainable. The judgments as relied upon by the counsel for the respondent-Management are with regard to cases where the entitlement of the wages was in dispute. In the present case, the Labour Court has in its initial award dated 21.8.2000 held the workman entitled to back wages but has put a rider that he would not be automatically entitled to back-wages meaning thereby that he will have to prove his assertion of his being not gainfully employed. The Labour Court further gave liberty to the Management to prove that the workman was gainfully employed. C.W.P.No.18918 of 2008 -5- These judgments, therefore, as relied upon by the counsel for the Management have no application to the facts of the present case and further the lis between the parties having attained finality as the award dated 21.8.2000 (Annexure P-4) passed by the Labour Court had not been challenged by any of the parties. In this view of the matter, the impugned order dated 10.10.2006 (Annexure P-8) passed by he Industrial Tribunal-cum-Labour Court, Hisar is hereby set aside. A direction is issued to the Labour Court to proceed and compute the wages the workman would be entitled to as per the evidence led by the parties. Parties are directed to appear before the Labour Court on 18.4.2009. The writ petition is disposed of accordingly. March 30, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No