Indian Oil Corporation vs Presiding Officer, Labour Court ...
2018 Latest Caselaw 973 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 25
 

 
Case :- WRIT - C No. - 33776 of 2014
 

 
Petitioner :- Indian Oil Corporation
 
Respondent :- Presiding Officer, Labour Court And Another
 
Counsel for Petitioner :- Ankush Tandon,Ankush Tiwari,Anoop Tiwari,Anoop Trivedi
 
Counsel for Respondent :- S.C.,A.Srivastava,Ranjeet Asthana
 

 
Hon'ble Siddhartha Varma,J.

When certain grievances were there of the workmen working with the petitioner, an industrial dispute was raised and on 3.3.1986, it was referred to the Central Government Industrial Tribunal, New Delhi, (hereinafter referred to as 'the Tribunal'). The reference as was made was to the following effect:-

"Whether, in law, the petitioners and the 48 workmen whose services have been terminated are employees of the Indian Oil Corporation. Mathura Refinery Project, Mathura? Whether the termination of the services of 48 workmen was justified? And to what relief are the workmen entitled?"

The award was finally passed on 15.9.1989 and it was held in paragraph 17 that the contract labour employed at the Mathura Refinery were in law not employees of the Indian Oil Corporation. Paragraph 17 is being reproduced here as under:-

"17. In the light of the foregoing discussion it is held that the contract labour employed at the Mathura Refinery are in law not the employees of the Indian Oil Corporation."

However, reference was answered in paragraph 19 of the award which is as follows:-

"19. In view of the discussion made above this is answered against the petitioners/Union in favour of the Management."

Even though the reference was answered against the workman a certain observation was made in the award which was as follows:-

"Till such time the Central Advisory Board makes its recommendations and action is taken, the management may ensure that the contract labour shall be paid at least the minimum of the pay scale of its regular employees performing the same or similar duties as the workmen of the Contract labour and further that the workmen among the contract labour who have put in 5 years or more of work at the Mathura Refinery shall be continued to be employed in the same work even if there is a change in the contractor and such workmen shall not be terminated except as a punishment inflicted by way of disciplinary action for misconduct etc. voluntary retirement or retirement on reaching the age of superannuation (which may be taken as the superannuation age for the I.O.C. Employees) or on ground of continuous ill health. In AIR 1985 SC 409 ibid, it was observed as under:"

Against the award, a civil appeal was entertained by the Supreme Court which was dismissed on 15.2.1991. However, the Supreme Court made a certain observation which is relevant for the purpose of this case and so the same is being reproduced here as under:-

"Those casual workers were under the employment of the state and the State came out with a scheme for phased absorption and a grated financial responsibility. In the instant case before us, the contract labourers are not, and have also not been found to be, having a direct connection with the refinery, even though it is a State for the purpose of enforcement of fundamental rights. The suggestions/directions given by the Tribunal, appear to us to be the only relief which was due to the appellant and its members in the given situation and circumstances. Therefore, the impugned award of the Tribunal cannot be improved upon."

On 9.11.1998, the Labour Court under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, issued a certain order. The petitioners here filed a writ petition numbered as Writ Petition No. 426 of 1999 before the Delhi High Court.

In the meantime, one Sohan Lal who is respondent no. 2 in this writ petition filed an application before the Regional Labour Commissioner (Central) at Kanpur with a prayer for the implementation of the direction as was given in the award dated 15.9.1989. On this application, the Regional Labour Commissioner vide order dated 14.11.2007 ordered that the application of the Mazdoor Sangh shall remain in abeyance till the disposal of the writ petition no. 426 of 1999 which was filed by the Mathura Refinery before the Delhi High Court. This order dated 14.11.2007 was challenged by the Mazdoor Sangh by means of writ petition no. 15447 of 2008 and this Court on 20.8.2009 directed that the Mazdoor Sangh was to get the matter adjudicated under Section 10 or under Section 33C(2) of the Industrial Disputes Act, 1947. Against the order dated 20.8.2009, a Special Leave Petition was also filed which was dismissed on 29.8.2011. Consequently, the respondent no. 2 now filed an application before the Central Government Industrial Tribunal and the Labour Court, at Kanpur, which was numbered as LCA No. 18 of 2008. This application was dismissed on 25.2.2011. Thereafter, the respondent no. 2 taking advantage of the amendment made in the Industrial Disputes Act, 1947, whereby Sections 11(9) and 11(10) were added on 15.9.2010 by the Act No 24 of 2010 filed an Execution Case no. 1 of 2011. On this application on 10.4.2012, the Presiding Officer passed the following order:-

"Therefore, award has to be implemented. The management is directed to ensure that the contract labour shall be paid at least the minimum of the pay scales of its regular employees performing the same or similar duties as the workmen of the employer."

Against this order, the petitioners filed a writ petition numbered as Writ Petition No. 22965 of 2012, which was dismissed on 10.4.2013. The operative portion of the order is being reproduced here as under:-

"The Contention of the learned counsel for the petitioner that in the absence of any specific claim being filed for a particular contract labourer, the application for enforcement of the award should have been rejected summarily, instead of disposing in the manner as stated aforesaid.

The contention of the learned counsel for the petitioner appears to be attractive but the result at the end of the day would remain the same, namely, that the order passed by the Executing Court does not affect the liability of the petitioner at this stage. The Executing Court has only enforced the directions of the award of the Tribunal and has reiterated that the management would ensure that the contract labourer would be paid the minimum of the pay scale who were performing same or similar duties as performed by the regular workers of the employer. Nothing more or less has been directed by the Executing Court.

Consequently, the Court does not find any error in the order passed by the Tribunal under Section 11(9) of the Industrial Disputes Act."

Thereafter, various applications were filed and orders were also passed by the Presiding Officer of the Central Government Industrial Tribunal, Kanpur. When, on 4.9.2013, an order was passed by the Tribunal, the petitioner also filed its compliance report on 29.10.2013. When, however,by an order dated 23.1.2014, the Tribunal transmitted the Execution Application no. 1 of 2011 to the Civil Court, Mathura (District Mathura) for execution, the petitioner approached this Court and assailing the order made the following submissions:

I. Before the order dated 23.1.2014 was passed no notice/opportunity was afforded to the petitioner and, therefore, the order dated 23.1.2014 was in violation of the principles of natural justice.

II. By the order dated 23.1.2014, the Tribunal at Kanpur had transferred the execution of case no. 1 of 2011 which was filed for the execution of the award dated 15.9.1989 and this award, learned counsel submitted as was passed by the Tribunal at New Delhi and, therefore, he submitted that under the Order XXI Rule 5 of the C.P.C. only a Court at Delhi could have transferred the case to Mathura.

III. Since the rights of the parties had yet not been quantified, no execution could take place.

IV. Learned counsel further submitted that as per Section 11 (9) an award had to be executed in accordance with the procedure laid down for the execution of Orders and Decrees of a Civil Court. He submitted that as the law of limitation had to be adhered to the award passed in the year 1989 could not have been executed in the year 2011 and for this purpose Learned counsel for the petitioner placed reliance upon Article 136 of the Schedule provided in the Limitation Act . Article 136, therefore, is being reproduced here as under:-

136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court"

Twelve years

[When] the decree or order becomes enfroceable or where the decree or any subsequent order directs any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place:

Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.

He submitted that if the execution was not filed within 12 years of the passing of the decree/award then the same could not have been entertained by the Tribunal and also by the Civil Court.

Learned counsel further relied upon Section 3 of the Limitation Act and submitted that since the Execution Application was barred by limitation, the Tribunal ought to have dismissed the same out right. He further submitted that as per the section 3 of the Limitation Act the application had to be dismissed by the Court although limitation was not taken as a ground by the petitioners. In this regard, the petitioner read Section 3 of the Limitation Act which is being reproduced:-

"Section 3.- Bar of limitation - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purpose of this Act, -

(a) A suit is instituted, -

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted -

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter-claim, on the date on which the counter-claim is made in Court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court."

V. Learned counsel for the petitioner submitted that if the relief clause of the Execution Application no. 1 of 2011 was seen then it would be evident that the Execution Application was, in fact, not an Execution Application at all and was a fresh application for certain payments with effect from September 2011. The prayer of the execution application no. 1 of 2011 is being reproduced here as under:-

"Therefore considering the facts and circumstances of the case this Hon'ble Court may graciously be pleased to direct the management to make payment of minimum of pay scale plus allowances without any delay from the month of September, 2011."

Learned counsel, therefore, submits that not only had the Tribunal wasted its time ever since 2011 but the transfer of the execution application to the Civil Court was also a wastage of the time of the Court, and, therefore, he submitted that not only should the order dated 23.1.2014 be quashed but also the execution proceedings which had arisen out of the execution application no. 1 of 2011 be quashed.

Learned counsel for the respondent, Sohan Lal, however, in reply, submitted that the observations in the award which were confirmed by the judgement of the Supreme Court on 15.2.1991 should be implemented and, in fact, he submits that even the order of the Delhi High Court passed in Writ Petition No. 426 of 2009 should be given effect to.

Learned counsel has submitted that when orders were being passed in the execution case on 10.4.2012 whereby the petitioners were required to comply with the award dated 15.9.1989, then it did not now lie in the mouth of the petitioner to say that the execution application was not maintainable. He submits that the writ petition be dismissed and the Civil Court at Mathura be directed to decide the application forthwith.

Having heard the learned counsel for the parties and after having gone through the record of the petition, I am of the view that the Execution Case no. 1 of 2011 could not have been transferred to Mathura in as much as the prayer in the application did not disclose as to which order had to be executed under Sections 11(9) and 11(10) of the Industrial Disputes Act. However, when the respondent no. 2 by the Execution Application was not exactly wanting the execution of the award and was only wanting a certain payment with effect from September, 2011, then the transfer from the Tribunal to the Court should not have been done.

In the instant case, no transfer of any Execution Application was demanded. The prayer in the Execution Application clearly shows that it was not an Execution Application at all.

Under such circumstances, the impugned order dated 23.1.2014 is quashed. The writ petition is allowed.

The Labour Court under Section 33 C (2) of the Industrial Disputes Act can definitely quantify the amounts which were payable to the workmen under the award dated 15.9.1989. Thereafter, the execution of it could take place.

In the instant case, the quantification as per the award dated 15.9.1989 had yet not been done and, therefore, the decision on the Execution Application would be an exercise in futility. The Labour Court shall now proceed to quantify as to what amounts were payable to the workmen under the directions of the Award dated 15.9.1989.

Order Date :- 28.5.2018

praveen.