Idrish vs M.K. Janu Divisional Director ...
2019 Latest Caselaw 5491 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 53
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 4968 of 2012
 

 
Applicant :- Idrish
 
Opposite Party :- M.K. Janu Divisional Director Social Forestry
 
Counsel for Applicant :- Shyam Narain,Gopal Narain,Sudhanshu Narain
 
Counsel for Opposite Party :- K.R. Singh,S.C.
 

 
Hon'ble Jayant Banerji,J.

This contempt application has been filed alleging disobedience of the order of the writ Court dated 22.2.2012 passed in Writ-C No.- 59276 of 2007 (State of U.P. & Others Vs. Idrish & Others).

In the affidavit filed in support of the contempt application, it has been stated that the applicant was appointed as permanent driver in the office of the respondent on 5.12.1996 and he continuously discharged his duties till 30.11.1998 and on 1.12.1998 his services were terminated without giving any notice and retrenchment compensation. The applicant, thereafter, raised an industrial dispute and the dispute was referred for adjudication before the Labour Court, Agra and the labour court by means of an award dated 11.12.2006, that was published on 12.4.2007, set aside the order of termination of the petitioner and reinstated his service with 50 percent back wages. The applicant then filed an application before the authority concerned under Section 6-H(1) of the U.P. Industrial Disputes Act. The employer/opposite party filed a writ petition before this Court being Writ-C No.- 59276 of 2007, wherein the interim order was granted staying payment of back wages while directing the opposite party to pay the current wages to the petitioner. The writ petition came to be heard on merits and by means of the judgment and order dated 22.2.2012, the writ petition was dismissed, whereby the opposite party was directed to comply with the award of the labour court within two months and pay the back wages awarded by the labour court and also to pay the simple rate of interest at the rate of 9 percent per annum to the petitioner. It is alleged that despite an application filed before the Collector, Agra and a direction issued to the opposite party by the office of the Collector, Agra, the applicant is not being permitted to join on the post of the driver nor is he being paid any wages pursuant to the order of the High Court dated 22.2.2012, hence, this contempt application was filed.

A short counter affidavit was filed on 20.12.2012 by the opposite party in which it was mentioned the the order of the writ Court was challenged before the Supreme Court by means of the Special Leave to Appeal (Civil) No. 19089 of 2012 (State of U.P. and another Vs. Idrish) in which by means of an interim order dated 16.7.2012, the Supreme Court stayed the operation of the judgement of the writ Court dated 22.2.2012. It was further stated in the affidavit that this material fact regarding filing of the Special Leave to Appeal before the Supreme Court by the opposite parties was concealed by the applicant at the time of the filing of the contempt application.

A short rejoinder affidavit was filed by the applicant on 3.1.2014 enclosing therewith the judgement and order dated 8.7.2013 passed by the Supreme Court in the aforesaid Special Leave to Appeal in which the Supreme Court recorded the submission made by the applicant that he is prepared to give up the back wages provided he is reinstated with continuity of service. Accordingly, the Supreme Court modified the orders passed by the labour court and also of High Court and directed that the respondent shall be reinstated in service with continuity of service though without back wages and the appeal was disposed of.

An affidavit of compliance was filed by the opposite party on 18.2.2014 in which it was stated that after receiving the order dated 17.1.2014 passed in this contempt application by this Court, the opposite party had passed an order reinstating the applicant in service on the work he was doing and a communication dated 5.2.2014 was sent to him. The letter of 5.2.2014 is enclosed as Annexure No. 1 which reflects that the applicant was reinstated as a daily wager.

In a supplementary affidavit dated 22.2.2014 was filed by the applicant in reply to the aforesaid affidavit of compliance in which the receipt of the letter dated 5.2.2014 issued by the opposite party was acknowledged but it was stated that wages from the date of publication of the award dated 12.4.2007 was not paid by the respondents. It was further stated that the amount from 12.4.2007 to January, 2014 is near about Rs. 3,55,000/-.

Thereafter, another affidavit of compliance was filed on 12.3.2019 by Manish Mittal, Divisional Director Social Forestry Division, Agra stating that the petitioner was engaged on a daily wage basis; pursuant to the award passed by the labour court, the petitioner submitted his joining on 4.6.2007 and worked with breaks up to 11.10.2007. With effect from 12.10.2007, the petitioner absconded from duty and he did not turn up on duty. It was stated that the petitioner was repeatedly informed to join duty failing which wages would not be payable to him but despite that, he did not return on duty. It was stated that in the writ petition the petitioner had alleged that his wages were not being paid to him despite the interim order dated 13.12.2007, therefore the writ Court directed the department to file an affidavit with regard to the payments to the petitioner. A supplementary affidavit dated 8.2.2012 was filed before the writ Court by the State Government, a copy of which is enclosed in the affidavit of compliance as Annexure No. 2. In this supplementary affidavit, it was pointed out that the petitioner, pursuant to the order dated 1.6.2007 passed by the Labour Court submitted his joining report on 4.6.2007 before the office of the Forest Range Officer, Khairagarh, District Agra and rendered his service till 11.10.2010 and thereafter, since 12.10.2007 till the date of the filing of the affidavit, he did not render his services. The entire wages from the period 4.6.2007 to 11.10.2007 were paid to the petitioner. The absence of the applicant was reported also to the Divisional Director, Social forestry Division, Agra. The opposite party was further informed by means of letter dated 26.8.2008 to appear before the office of the Forest Range Officer, Khairagarh and join his duties but he did not appear, therefore, the wages from the period since 12.10.2007 till the date of filing of the affidavit were not paid to him. Copies of the letters dated 6.4.2009 and 9.6.2010 were also enclosed with the affidavit which contained directions to the petitioner to resume his duties but to no effect. It was stated that pursuant to the order dated 5.2.2014 passed by the opposite party, the petitioner worked up till 7.5.2015 and thereafter from 8.5.2015, the petitioner absconded from work and did not return for duty. It was stated that the wages of the petitioner from February 2014 to March 2015 has been paid. It was further stated that in view of the petitioner's absence from duty, the Forest Range Officer, Agra City Range, Agra by his letter dated 21.5.2015 wrote that the applicant may be attached in any other range since he was not reporting for duty since 8.5.2015. Letters dated 8.6.2015 and 8.7.2015 were issued by the Forest Range Officer to the petitioner to join his duties but to no effect. It is stated that since the petitioner is not reporting for duty since 8.5.2015, therefore, no wages are payable to the petitioner. In supplementary counter affidavit dated 22.4.2019 filed on behalf of the applicant, it is stated that the salary is not being paid to the applicant nor his work of driver is being taken from him. It is alleged that the opposite party is not obtaining the signature of the applicant on the attendance sheet even though he is continuously discharging his duties.

A perusal of the record reveals that the order of the High Court and Labour Court were modified by the Supreme Court in the aforesaid Special Leave Petition (which was later converted into a Civil Appeal No. 5352 of 2013) by means of the order dated 8.7.2013 with the direction that opposite party shall be reinstated in service with continuity of service. There are categorical assertions of the opposite party in the various affidavits filed in the present contempt application as well as before the writ Court that the applicant was absenting from duty for various periods of time. It has been stated by the learned counsel for the opposite party that for the periods of time that the applicant actually worked on daily wage basis, the due amount has been paid in full. However, Shri Sudhanshu Narain, learned counsel for the applicant though stated that the applicant is not claiming wages for the period from 1996 to 1998, but has asserted that wages for the period from 2007 till 2014 are required. It has also been stated by the learned counsel for the applicant that the opposite party is taking the work of "Khalasi" from the applicant and not that of a driver. It is not in dispute that pursuant to the decision of the Supreme Court in the aforesaid Civil Appeal and the order passed in this contempt application, an order was passed reinstating the petitioner on a daily wage basis. That order of reinstatement dated 5.2.2014 has not been challenged by the applicant, therefore, there is no material to show that the petitioner was getting any emoluments apart from the daily wages. A perusal of the affidavits filed by the contesting parties in this contempt application reveals disputed issues and questions of fact which cannot be gone into by this Court in exercise of the contempt jurisdiction.

There is another aspect of the matter. The petitioner in this contempt application has sought to challenge the order of the writ Court dated 22.2.2012. This order itself has been modified by the Supreme Court in the aforesaid Civil Appeal by means of its order dated 8.7.2013. Thus, for the reasons aforesaid this contempt application fails and is, accordingly, dismissed.

Order Date :- 8.7.2019

A. V. Singh

(Jayant Banerji, J.)