Bombay High Court
Kashinath Parvati Labade vs The State Of Maharashtra on 11 December, 2013
Bench: R.V. Ghuge
( 1 ) Writ Petition No.3807 of 2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION No.3807 OF 2011
Kashinath Parvati Labade,
Age-47 years, Occu-Labour,
R/o.At Post : Autewadi, Tq.Shrigonda,
Dist. Ahmednagar PETITIONER
VERSUS
1.
The State of Maharashtra
Through its Secretary,
Department of Social Forestry,
Mantralaya, Mumbai,
2. The Deputy Director,
Department of Social Forestry,
Ahmednagar Division,
Delhi Gate, Ahmednagar RESPONDENTS
...
Mr.P.V.Barde, Advocate for petitioner,
Mr.K.M.Suryawanshi, A.G.P. for respondent No. 1 and 2
M/s T.K.Prabhakaran, Ashok Patil, S.V.Dankh and Y.I.Thole,
Advocates (amicus curiae).
...
CORAM : RAVINDRA V.GHUGE, J.
RESERVED ON : 04/12/2013
PRONOUNCED ON : 11/12/2013
::: Downloaded on - 23/12/2013 20:34:20 :::
( 2 ) Writ Petition No.3807 of 2011
JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by
consent of the parties.
2. By this petition, the petitioner assails the judgment and order
of the Industrial Court, Ahmednagar dated 31/01/2011 delivered in
Complaint U.L.P.No. 32/2001.
3. The petitioner workman, who had joined services of respondent
No.2/Department of Social Forestry, was allegedly illegally terminated
on 01/05/1987. Being aggrieved by such termination, he raised an
industrial dispute under Section 2A of the I.D.Act, 1947. On failure
of the conciliation proceedings, the appropriate Government referred
the dispute to the 2nd Labour Court, Ahmednagar (Hereinafter
referred to as a Labour Court) for adjudication. It was registered as
Ref. IDA No.71/1988.
4. After the entire adjudicatory process was completed, the
Labour Court delivered its award dated 23/07/1996, by which, the
( 3 ) Writ Petition No.3807 of 2011
termination of the petitioner w.e.f. 01/05/1987, was held to be an act
of retrenchment by the respondent employer. Since the Law of
Retrenchment under the Industrial Dispute Act, 1947 (Hereinafter
referred to as I.D. Act) was not complied with, the termination was
set aside and the respondent employer was directed to re-instate the
petitioner without continuity of service and without back wages. It
is an admitted position that the said award was subsequently
published in accordance with the provisions of the I.D. Act and the
Industrial Disputes (Bombay) Rules, 1957.
5. The petitioner, claimed to have pursued the respondents for the
implementation of the award after it was published on 02/01/1997.
Since then the respondents kept on delaying the matter by keeping
the petitioner under the hope that the said award would be
implemented. During this period, the petitioner was also engrossed
in pursuing some other cases against the same employer.
6. After a passage of almost about 4½ years, the petitioner filed
Complaint U.L.P. No.32/2001 u/s 28(1) r/w items 9 and 10 of
Schedule IV of the Maharashtra Recognition of Trade Unions and
( 4 ) Writ Petition No.3807 of 2011
Prevention of Unfair Labour Practices Act, 1971 (Hereinafter referred
to as State Act) seeking implementation of the award and for
declaration of commission of acts amounting to unfair labour
practices (U.L.P.) at the hands of the respondents. An application for
interim relief u/s 30(2) of the State Act was also filed. Neither does it
emerge from the petition paper book nor have the respondents
contended that the said award dtd. 23/07/1996 has been challenged
by the respondents before any higher Court.
7. The respondents had filed their written statement to the
complaint as well as to the application for interim relief before the
said Industrial Court, Ahmednagar. Contention of the respondents
was that the award is sought to be implemented belatedly and the
grievance about non implementation of the award is made after about
4½ years. Several other contentions were put forth by the
respondents. It was prayed that the complaint be dismissed.
8. By its judgment and order dated 31/01/2011, the Industrial
Court dismissed the complaint filed by the petitioner. It is this
judgment that has been impugned by the petitioner employee in this
( 5 ) Writ Petition No.3807 of 2011
petition.
9. The grounds for challenge have been set out by the petitioner
under para No. 7 of the petition. The impugned judgment is assailed
on several counts. The respondents (employer) have filed their
affidavit-in-reply along with several documents.
10. I had heard the learned advocates for the respective parties on
04/12/2013. This Court noticed from the impugned order that the
Industrial Court, by itself, went into the issue pertaining to the
tenure of an award. Section 19(3) of the I.D. Act was considered and
interpreted to mean that an award shall remain in operation for a
period of one year from the date on which it becomes enforceable.
Based on the same, the Industrial Court concluded that the award
was published more than 4½ years ago and therefore, it is not
permissible in the eyes of Law for the employee to seek
implementation of the award, as the complaint is not within
limitation. So also, the Court came to a conclusion that an employee
can not approach the employer, as per his whims and wishes, and
can not seek implementation of the award whenever he may desire.
( 6 ) Writ Petition No.3807 of 2011
The Court, therefore, concluded that the complaint was untenable in
Law.
11. In view of the contents of the petition, grounds for challenge
and the conclusions drawn by the Industrial Court in the impugned
judgment, I felt that the issue, "Whether an award delivered in
Reference Proceeding u/s 10(1) r/w 12(5) in relation to an
industrial dispute u/s 2A of the I.D. Act has a tenure of one
year?" needs consideration. With the consent of the learned
Advocate for the petitioner, members of the bar, especially those who
practice in the Labour and Industrial Field, were called upon to
address the Court. Learned Advocate Mr.Barde for the petitioner
supplied them copies of his petition and appraised them of the said
issue. As such, some of the members of the Bar have graciously
assisted the learned Advocate for the petitioner and the Court on the
said issue. They were heard and their submissions have been
considered in this judgment.
( 7 ) Writ Petition No.3807 of 2011
Submissions of Adv.Mr.T.K.Prabhakaran
12. The Learned advocate has referred to Section 2A of the I.D. Act,
which reads thus :
2A. Dismissal, etc., of an individual
workman to be deemed to be an industrial dispute. -
Where any employer discharges, dismisses, retrenches or
otherwise terminates the services of an individual
workman, any dispute or difference between that
workman and his employer connected with, or arising out
of, such discharge, dismissal, retrenchment or termination
shall be deemed to be an industrial dispute
notwithstanding that no other workman nor any union of
workmen is a party to the dispute.
13. The said Section was inserted by Act No. 35 of 1965 w.e.f.
01/12/1965. Contention is that the Act of discharge, dismissal,
retrenchment or otherwise amounting to termination of service of an
individual workman, if subjected to any dispute or grievance or
difference between the workman and his employer, connected with
the said Act, shall be deemed to be an industrial dispute. There is a
deeming fiction in relation to the said section and therefore, on the
( 8 ) Writ Petition No.3807 of 2011
strength of the same, a dispute under Section 2A would amount to a
deemed industrial dispute. Therefore, the appropriate Government
under the I.D. Act was empowered to resort to the process of
conciliation on the said dispute with the intention of arriving at a
resolution or settlement.
14.
He referred to Section 2(b), which defines an award :
"(b) 'Award' means an interim or a final
determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial
Tribunal or National Industrial Tribunal and includes an
arbitration award made under section 10A; ......."
15. As such, any interim or final determination of any industrial
dispute or of any question relating thereto, by any Labour Court,
Industrial Tribunal or National Industrial Tribunal would amount to
an award. According to him, the deemed industrial dispute u/s 2A
I.D. Act has been held to be an area in which an interim or final
determination is legally permissible.
16. He has then adverted to Section 17A of the I.D. Act, which
( 9 ) Writ Petition No.3807 of 2011
reads thus -
"Commencement of the award : (1) An award
(including an arbitration award) shall become enforceable
on the expiry of thirty days from the date of its publication
under section 17......"
17. He, therefore, canvasses that the mode of publication of the
award is provided under the 4 clauses of Section 17A of the I.D. Act.
As held by this Court in the case of Chhabada Petrol Pump Vs.
Shaikh Hasan reported at 2007 II CLR 1080, if the award is of
great importance, the same could be published in the official gazette.
If an award is not of such importance and is restricted to the dispute
between the parties, it will be published by the same Court or
Tribunal which has delivered the said award. According to the
scheme enshrined u/s 17A of the I.D. Act, an award becomes
enforceable after 30 days of its publication by the Court which has
delivered it.
18. He has then turned to sections 19(2), 19(3), 19(5) and 19(6) of
the I.D. Act, which read as under :
( 10 ) Writ Petition No.3807 of 2011
19. Period of operation of settlements and awards :
(2) Such settlement shall be binding for such period as
is agreed upon by the parties, and if no such period is
agreed upon, for a period of six months 2[from the date on
which the memorandum of settlement is signed by the
parties to the dispute], and shall continue to be binding on
the parties after the expiry of the period aforesaid, until
the expiry of two months from the date on which a notice
in writing of an intention to terminate the settlement is
given by one of the parties to the other party or parties to
the settlement.
(3) An award shall, subject to the provisions of this
section, remain in operation for a period of one year from
the date on which the award becomes enforceable under
section 17A:
Provided that the appropriate Government may
reduce the said period and fix such period as it thinks fit:
Provided further that the appropriate Government
may, before the expiry of the said period, extend the
period of operation by any period not exceeding one year
at a time as it thinks fit so, however, that the total period
of operation of any award does not exceed three years
from the date on which it came into operation.
( 11 ) Writ Petition No.3807 of 2011
(5) Nothing contained in sub-section (3) shall apply to
any award which by its nature, terms or other
circumstances does not impose, after it has been given
effect to, any continuing obligation on the parties bound by
the award.
(6) Notwithstanding the expiry of the period of operation
under subsection (3), the award shall continue to be
binding on the parties until a period of two months has
elapsed from the date on which notice is given by any
party bound by the award to the other party or parties
intimating it intention to terminate the award.
19. He, therefore, submits that Section 19(3) of the I.D. Act
indicates that an award shall remain in operation for a period of one
year and will be enforceable and binding.
20. While adverting to Section 19(5) of the I.D. Act, he has stressed
on the phraseology used therein to contend that Section 19(3) will not
apply to any award which by its nature, terms or other circumstances
do not impose, after it has been given effect to, any continuing
obligation on the parties bound by the award. He, therefore, submits
( 12 ) Writ Petition No.3807 of 2011
that an act of termination is a one time act and similar is the case
with an act of re-instatement.
21. According to him, there is a slight distinction between these
two acts, when it comes to the follow up action. Normally once
termination on a particular date has occurred, the act of termination
is complete and the limitation period begins. He clarifies that under
the I.D. Act, there is no limitation for raising an industrial dispute.
However, the act of re-instatement, though is a one time act, the
obligation cast on the employer to cause re-instatement will be of
continuous nature till re-instatement occurs. The moment, the
employer re-instates an employee, the obligation ends with the re-
instatement. He, therefore, lays emphasis on the words, ".....does not
impose, after it has been given effect to, any continuing obligation on
the parties bound by the award" in Section 19(5) of the I.D. Act.
22. He has then turned to Section 29 of the I.D. Act, which deals
with a penalty for breach of settlement or award. Section 29 reads
thus :
( 13 ) Writ Petition No.3807 of 2011
29. Penalty for breach of settlement or
award. - Any person who commits a breach of any term of
any settlement or award, which is binding on him under
this Act, shall be punishable with imprisonment for a term
which may extend to six months, or with fine, or with both,
and where the breach is a continuing one, with a further
fine which may extend to two hundred rupees for every
day during which the breach continues after the conviction
for the first and the Court trying the offence, if it fines the
offender, may direct that the whole or any part of the fine
realised from him shall be paid, by way of compensation,
to any person who, in its opinion, has been injured by
such breach.
23. He, therefore, contended that the non-implementation of an
award delivered with reference to Section 2A proceedings is of a
continuous nature till it is implemented. Penalty for breach or non
implementation will continue as long as non implementation
continues.
Submissions by Adv.Mr.Ashok Patil
24. He contended that an industrial dispute u/s 2(k) of the I.D. Act
has used the words in plural tense. The phraseology of Section 2(k)
( 14 ) Writ Petition No.3807 of 2011
necessarily imports a meaning in the plural tense. As such, for
several decades, common demands on behalf of workers in
togetherness, have been brought within the purview of the definition
"industrial dispute" u/s 2(k) of the I.D. Act. Section 2A has been
brought in as an amendment since the Legislature realized that
industrial disputes pertaining to a personal cause of action and
essentially of the nature of termination/removal etc. from service had
not been specifically provided for in the I.D. Act.
25. By the amendment, in the form of Section 2A and 11A, this
individual need of a workman was taken care of. The handicap that
a worker faced before introduction of this amendment was that a
union at times would not canvass or agitate a personal dispute of a
workman of the nature of discharge, dismissal, retrenchment or
termination. The intent and object of introducing an amendment in
the form of Section 2A was to take care of this personal need of a
workman. However, neither Section 17A nor section 19 was amended.
He, therefore, has urged that a harmonious interpretation of this
position of law in light of Section 2A is needed so that the intent and
( 15 ) Writ Petition No.3807 of 2011
object of introducing Sections 2A and 11A is not defeated.
26. He adopts the submissions of Adv.Mr.Prabhakaran and further
submits that if Section 2A is given a life span of one year, the very
purpose and object of its introduction by an amendment would be
defeated. Any relief granted by the Court u/s 11A, cannot be taken
away by an employer by terminating such an Award. This would
amount to nullifying the powers of the Court u/s 11A.
27. However, while adverting to Section 29, his submissions are
that after one year, an award will be operable but penalty for non
implementation can not be awarded. According to him, it will
assume the nature of a personal contract between the parties. The
fact that an award becomes enforceable after 30 days of its
publication, limitation u/s 19(3) can be applied here only to the
extent of preventing the workman from seeking penalty for breach of
the award beyond a year, u/s 29 of The I.D. Act, 1947.
( 16 ) Writ Petition No.3807 of 2011
Submissions of learned Advocate Mr.S.V.Dankh
28. He has adopted the submissions of both the above mentioned
advocates. While he is in agreement with the said submissions, he
contends that though our Court has not handed down any such
pronouncement on this issue, there have been occasions where other
High Courts and the Hon'ble Apex Court have taken a view. He
submits that for the reasons put forth by his colleague advocates, it
can be safely deduced that Section 19(5) is a clear exception carved
out from the ambit of Section 19(3) and 19(6) of the I.D. Act.
29. According to him, an award on an industrial dispute raised u/s
2A and in light of the powers duly vested in the concerned Tribunal
u/s 11A, more so in light of catena of judgments, indicates that the
Tribunal has been given exclusive jurisdiction to consider the
proportionality of a punishment awarded to a workman, to set aside
the order of discharge or dismissal, to direct re-instatement or to
mold the relief. This clearly indicates that this adjudicatory process
has to stand apart from the adjudicatory process involved in deciding
wage rise demands.
( 17 ) Writ Petition No.3807 of 2011
30. The powers of the Tribunal in dealing with such cases is
exclusive and distinct from the powers invoked while deciding a wage
rise settlement. He further submits that in every wage rise
settlement, the employer or the workman as the case may be,
indicates a time period for which the said wage structuring is to be
applied based on socio economic conditions prevailing in the society.
Parties concerned urge the Tribunal to decide a tenure of the award.
This is absolutely missing in an industrial dispute u/s 2A, where
neither of the parties pray for limiting the award to a particular time
period.
Submissions of learned Advocate Mr.Y.I.Thole
31. He has, while adopting the submissions of his colleague
advocates, highlighted an additional element involved in this case.
He has drawn my attention to Section 19(2) which reads thus :
"(2) Such settlement shall be binding for such
period as is agreed upon by the parties, and if no such
period is agreed upon, for a period of six months 2[from
the date on which the memorandum of settlement is
signed by the parties to the dispute], and shall continue to
( 18 ) Writ Petition No.3807 of 2011
be binding on the parties after the expiry of the period
aforesaid, until the expiry of two months from the date on
which a notice in writing of an intention to terminate the
settlement is given by one of the parties to the other party
or parties to the settlement."
32. He, therefore, submits that since in a settlement, a period is
agreed upon, the settlement or award would be operable in that
period. If no period is agreed upon, the settlement shall be operable
for a period of 6 months from the date it is signed and shall continue
to be binding on the parties until expiry of the period. Even after
that, it will be binding up to the expiry of 2 months from the date on
which notice in writing of the intention to terminate the settlement is
given by one of the parties to the settlement.
33. He submits that an award in relation to an industrial dispute
u/s 2A r/w 11A can not and ought not to be brought within the
purview of Section 19(2) or else it would lead to an absurd situation.
The losing party in such an adjudicatory process, would give notice
of termination of the award and thereby intend to again terminate or
( 19 ) Writ Petition No.3807 of 2011
discharge the workman on the pretext of having terminated the
Award. According to him, this would result in travesty of justice and
is bound to cause mis-carriage of justice.
34. Learned Advocate Mr.P.V.Barde for the petitioner, while
adopting the submissions canvassed by his colleague advocates,
stated that an award with reference to the removal from service of an
employee needs to be treated differently and no time frame can be
given to such an award.
35. In light of the grounds raised by the petitioner, the conclusions
drawn by the Industrial Court in the impugned judgment and the
submissions of the learned Advocates mentioned above, the following
points arise for my consideration :
(a) Can an award in relation to an industrial dispute u/s
2A r/w Powers of the Court u/s 11A be held to be
covered by section 19(3) and 19(6) of the I.D. Act ?
(b) Whether such an award can be terminated u/s 19(2)
or deemed to have ended, after one year, by efflux of
( 20 ) Writ Petition No.3807 of 2011
time OR would it fall u/s 19(5) of the I.D. Act ?
(c) Can a workman, upon being re-instated in
employment, by virtue of such an award, be relegated
to the earlier position of a terminated employee on the
basis of the said award being covered u/s 19(3) and
19(6) of the I.D. Act ?
36. In the case of Velayudhan (M.) and State of Kerala and
others, reported at 1960(1) LLJ 319, a similar situation was under
consideration. The dispute between the parties is noted in para No.6
of the judgment, which reads thus :
"It is contended on behalf of the petitioner that
under section 19(3) of the Industrial Disputes Act, the
award continues to be in force only for a period of one year
from the date on which it becomes enforceable under
section 17(1) and that the proceedings taken after the
expiry of the said term are therefore without jurisdiction."
While deciding the case, the Kerala High Court has come to a
conclusion that where there is no continuing obligation on the
parties to the award, such an award will be out of the purview of
( 21 ) Writ Petition No.3807 of 2011
Section 19(3) of the I.D. Act.
37. In the case of South Indian Bank Versus A. R. Chacko
reported at 1964 SCR (5) 625, the Full Bench of the Hon'ble Apex
Court, while dealing with a somewhat similar situation, has
concluded as under :
"Quite apart from this, however, it appears to us that
even if an award has ceased to be in operation or in force
and has ceased to be binding on the parties under the
provisions of S.19(6), it will continue to have its effect as a
contract between the parties that has been made by
industrial adjudication in place of the old contract. So long
as the award remains in operation under S.19(3), S.23(c)
stands in the way of any strike by the workmen and
lockout by the employer in respect of any matter covered by
the award. Again, so long as the award is binding on a
party, breach of any of its terms will make the party liable
to penalty under Section 29 of the Act, to imprisonment
which may extend to six months or with fine or with both.
After the period of its operation and also the period for
which the award is binding have elapsed Ss. 23 and 29
can have no operation."
( 22 ) Writ Petition No.3807 of 2011
38. In case of Annamma Thomas Vs. T.Joseph, reported at
1984(2) LLJ 208, the Division Bench of the Kerala High Court was
considering an almost similar case. The issue involved was with
regard to an award directing re-instatement of an employee with back
wages and whether such an award ceases to be in operation after a
period of one year.
39. The observations of the said Court are thus :
"In the Law of Industrial Disputes, Third Edition,
Vol. I, by Malhotra and Malhotra, it is stated thus at page
1225 :
There are two types of awards. The awards of the
first type are which decide the questions under reference
once and for all. For instance, the awards involving
personal rights e.g. Upholding the discharge or dismissal
of workmen or directing reinstatement of a discharged or a
dismissed workman for victimization or any other unfair
labour practice; or the awards dealing with questions like
transfer, legality or justifiability of lock outs or strikes etc.
(c). In such cases, the question of period of operation of
the award as contemplated by sub-s (3) does not arise as
the dispute under reference is decided once and for all by
( 23 ) Writ Petition No.3807 of 2011
the award of the adjudicator. Such awards do not cast
any continuing obligation on the parties bound by the
award. The awards of the second type are those which
cast continuing obligations on the parties bound by them.
For instance, the awards dealing with the wage-structure,
dearness allowance, gratuity and other allowances and
benefits etc. Sub-s (5) makes Sub-s.(3) applicable to the
awards of the former type. From a combined reading of
sub-s.(3) and (5) it is clear that these two provisions apply
only to an award which, after pronouncement and
publication, continues to impose obligations on the parties
making it necessary to know for what period it would be
in operation under sub-s. (3)(d). Furthermore, by
implication of the words "subject to the provisions of this
section" in sub-s.(3), sub-s(4) and sub-s.(6) also become
inapplicable to such awards because in such awards
there is no question of the period of operation as the
questions in dispute have been decided once for all. Sub-
sections (3), (4), (6) and (7) deal with the period of
operation of the second type of awards because the
obligation under such awards being of continuing nature,
the period of their operation is a material consideration.
After the period of operation of such awards is over, it is
for the parties themselves to consider whether the
obligations should be continued, revised or rescinded.
8. Where the termination of services of an employee
( 24 ) Writ Petition No.3807 of 2011
is set aside, he should be deemed to be in continuous
service is no longer open to doubt. In the decision of the
Supreme Court in Mohan Lal Vs. The Management of M/s.
Bharat Electronics Ltd., reported in (AIR 1981 SC 1253), it
is stated thus at page 1262:
"But there is a catena of decisions which rule that
where the termination is illegal especially where there is
an ineffective order of retrenchment, there is neither
termination nor cessation of service and a declaration
follows that the workman concerned continues to be in
service with all consequential benefits. No case is made
out for departure from this normally accepted approach of
the Courts in the field of social justice and we do not
propose to depart in this case."
9. From these authorities cited above, it is clear that
an award of the Industrial Tribunal declaring the
termination of service of an employee as invalid and
inoperative and directing reinstatement with back wages
does not cease to be in force after the period of one year
mentioned in sub-s.(3) of S.19." (emphasis supplied)
40. In the case of L.I.C. Of India Versus D.J. Bahadur, reported
at 1981(1) LLJ 1, Full Bench of the Hon'ble Apex Court has
considered the scope of Section 19(2) and 19(3) as well as the extent
( 25 ) Writ Petition No.3807 of 2011
to which the obligations would remain on the parties to the award.
Justice V.R.Krishna Iyer, as he then was, has held as under :
21. The I.D. Act is a benign measure which seeks to
pre-empt industrial tensions, provide the mechanics of
dispute resolutions and set up the necessary infra-
structure so that the energies of partners in production
may not be dissipated in counter-productive battles and
assurance of industrial justice may create a climate of
good-will. Industrial peace is a national need and,
absent law, order in any field will be absent. Chaos is the
enemy of creativity sans which production will suffer.
Thus, the great goal to which the I.D. Act is geared is legal
mechanism for canalizing conflicts along conciliatory or
adjudicatory processes. The objective of this legislation
and the component of social justice it enbodies were
underscored in the Bangalore Water Supply and Sewerage
Board Vs.Rajappa, [1978-I L.L.J.349]; (1978) 2 S.C.C. 213
at 232 thus :
To sum up, the personality of the whole statute, be it
remembered, has a welfare basis, it being a beneficial
legislation which protects labour, promotes their
contentment and regulates situations of crisis and tension
where production may be imperiled by untenable strikes
and blackmail lock outs. The mechanism of the Act is
geared to conferment of regulated benefits to workmen
( 26 ) Writ Petition No.3807 of 2011
and resolution, according to a sympathetic rule of law, of
the conflicts, actual or potential, between managements
and workmen. Its goal is amelioration of the conditions of
workers, tempered by a practical sense of peaceful co-
existence, to the benefit of both - not a neutral position but
restraints on laissez faire and concern for the welfare of
the weaker lot. Empathy with the statute is necessary to
understand not merely its spirit, but also its sense.
43. It is inconceivable that any other alternative
subsists. For instance, imagine a case where for 30 years
an award or settlement might have given various benefits
to employees and at the end of 30 years a notice
terminating the settlement were given by the employer.
Does industrial law absurdly condemn the parties to a
reversion to what prevailed between them 30 years ago ?
If the employees were given Rs.100 as salary in 1947
and, thereafter, by awards and settlements the salary
scale was raised to Rs.1000 could it be the Management
might, by unilateral yet disastrous action give notice under
S.19(2) or (6) terminating the settlement or award, tell the
workers that they would be paid Rs.100 which was the
original contract although in law that contract had been
extinguished totally by a later contract of settlement or by
force of an award ?
The horrendous consequences of such an
interpretation may best be left to imagination. Moreover, if
( 27 ) Writ Petition No.3807 of 2011
industrial peace is the signature tune of industrial law,
industrial violence would be the vicious shower of
consequences if parties were relegated either to an ancient
and obsolete contract or to a state of lawless hiatus. No
cannon of interpretation of statutes can compel the Court
to construe a statutory provision in this matter. We have,
no doubt, that the precedents on the point, the principles
of industrial law, the constitutional sympathy of part IV
and the sound rules of statutory construction converage to
the same point that when a notice intimating termination
of an award or settlement is issued the legal import is
merely that the stage is set for fresh negotiations or
industrial adjudication and until either efforts ripens into
a fresh set of conditions of service the previous award or
settlement does regulate the relations between the
employer and the employees. The Court never holds
justice as hostage with law as janitor ! Law, if at all
liberates justice through the judicial process.
Fundamental error can be avoided only by remembering
fundamental values."
41. The Division Bench of this Court in the case of Mangaldas
Narandas and Payment of Wages Authority, reported at (1957) II
LLJ 256 Bombay had an occasion to consider the scope of Section
( 28 ) Writ Petition No.3807 of 2011
19(3) and 19(6). It was concluded that the effect of the termination
of the award is only to prevent enforcement of the obligations under
the Award in the manner prescribed, but the rights and obligations
which flow from the award are not wiped out. Termination of the
award or lapsing of the award does not have effect of wiping out the
liabilities flowing from the award.
42. It was held thus :-
"When an award is delivered by the industrial
tribunal it has the effect of imposing a statutory contract
governing the relations of the employer and the employee.
It is true that statutory contract may be terminated in the
manner prescribed by Sub-section (6) of Section 19. After
the statutory contract is terminated by notice the employer
by failing to abide by the terms of the award does not
incur the penalties provided by the Industrial Disputes
Act, nor can the award be enforced in the manner
prescribed by Section 20 of Industrial Disputes (Appellate
Tribunal) Act, 1950. But the termination of the award has,
in our judgment, not the effect of extinguishing the rights
flowing therefrom. Evidently by the termination of the
award the contract of employment is not terminated. The
employer and the employee remain master and servant in
( 29 ) Writ Petition No.3807 of 2011
the industry in which they are engaged, unless by notice
the employer has also simultaneously with the termination
of the award terminated the employment of the employee.
If the employment is not terminated, it is difficult to hold
that the rights which had been granted under the award
automatically cease to be effective from the date on which
notice of termination of the award becomes effective. In
our judgment, the effect of termination of the award is
only to prevent enforcement of the obligations under the
award in the manner prescribed, but the rights and
obligations which flow from the award are not wiped out.
In taking that view we are supported by a judgment of the
Calcutta High Court in Judhisthir Chandra v. Mukherjee .
That was a case in which an award was made under the
Industrial Disputes Act, 1947, on 25 May 1948, under the
provisions of Sub-section (3) of Section 19. As it then stood,
the award was to remain in operation for one year. A
subsequent award was made on 20 May 1949 and by
that award the previous award was modified
retrospectively. An application was made to set aside the
subsequent award and it was contended that the
modification did not affect the interests of the workers as
the original award had ceased to be effective after 25 May
1949. Mr. Justice Banerjee, in rejecting the contention,
observed that the contention raised by the employer was
not correct as it overlooked the fact that though the
( 30 ) Writ Petition No.3807 of 2011
previous award had become ineffective by the passage of
time, the rights flowing therefrom had not been wiped out.
The award directed payment of certain dearness
allowance which, if not paid, created a debt in favour of
the workmen and it was a binding debt which could be
enforced by a civil suit and that the penalty clause in the
Act did not bar such a suit. This case is evidently an
authority for the proposition that the termination of the
award or the lapsing of the award has not the effect of
wiping out the liabilities flowing from the award. Mr.
Bhabha, on behalf of the employer, contended that this
case was decided under the Industrial Disputes Act, 1947,
under Sub-sections (3) and (4) of Section 19, before those
Sub-sections were amended. It is undoubtedly true that
by Act 48 of 1950, Sub-sections (3) and (4) have been
amended and Sub-sections (5), (6) and (7) have been
added. Under the Act, as it originally stood, every award
lapsed at the expiry of one year; by amended Act every
award becomes quasi-permanent, subject to termination
by either party by giving notice of two months' duration.
But whether the award lapses at the expiry of the period
provided under the Act or is terminated by notice served
by the employer or the employee, the consequence of
termination must in our judgment be the same. If the
rights flowing from the award are not wiped out even after
it has lapsed, it is difficult to appreciate why they are
( 31 ) Writ Petition No.3807 of 2011
wiped out when the award is terminated by notice under
Sub-section (6) of Section 19."
43. In the case of Banaras Ice Factory Limited Versus the Uttar
Pradesh Government, reported at 1956, Allahabad 730 (AIR), the
Division Bench of the Allahabad High Court has considered the
submissions of the counsel and observed as under :
".......and the argument of learned counsel is that
the absence of any such provision in the Government's
Order of 15-03-1951, makes it clear that cl.17 applies to all
decisions or awards of an Industrial Tribunal or an
Adjudicator. The question is not free from difficulty but we
have come to the conclusion that the submission of
learned counsel is one which should not be accepted.
The award of an Industrial Tribunal or an
Adjudicator may impose upon an employer the duty of
doing some act which extends over a period of time, such
for example as the re-instatement of dismissed employees,
or it may impose upon the employer an obligation to pay a
sum of money. In the first case the obligation is one of a
continuing nature, in the second it is not; and in our
opinion the terms of Cl.17 are such as to make its
( 32 ) Writ Petition No.3807 of 2011
provisions applicable to obligations of the first kind only.
We think that sub-s.(5) of S.19 of the (Central) Industrial
Disputes Act, 1947, explains and does not modify the
provisions of sub-s.(3). Sub-section (5) is not in form nor,
we think, in effect, a proviso to sub-s. (3)."
44. In the case of Sri Krishnarajendra Mills Workers Unions and
Assistant Labour Commissioner, reported at 1967 (15) FLR 2, the
Court has held as under :
"In considering the intendment of sub-sections (3)
and (6) of Section 19, the distinction between the
expressions 'in force" and 'in operation' has to be borne in
mind. While sub-section (3) lays down that an award
shall be in operation for the different periods mentioned in
that sub-section whenever action has been taken by the
Government after the expiry of the period of operation, the
award does not automatically cease, but it continues to be
in force and binds the parties until it is terminated by a
notice and such termination takes effect two months after
the notice. The words 'in operation' have reference to the
period fixed by law or by the parties according to law
while the words 'in force' have reference to the period
(subsequent to the period of operation) during which it will
( 33 ) Writ Petition No.3807 of 2011
statutorily be binding on the parties to the award or
settlement."
45. The Full Bench of this Court in the case of M.S.R.T.C. Nagpur
Vs. Premlal Khatri Gajbhiye, reported at 2003(3) All M.R. 1022
has held has under :
"24. The decision of the Division Bench of this Court
in Regional Manager, Maharashtra State Road Transport
Corporation, Nagpur and another is also of no help to the
appellants. Therein it was specifically ruled that "the
respondent has invoked Item 9 of Schedule IV of the Act
No. 1 of 1972, which entry relates to failure of
implementing the settlement which according to both the
parties is still in force and binding upon them. Therefore, in
our opinion the unfair labour practice will continue to recur
so long as the settlement remains unimplemented." As
already held above, Clause 49 of 1956 settlement is still in
force and, therefore, non-compliance thereof would amount
to unfair labour practice by the appellants and it will
continue to recur till and until the appellants grant the
benefit under said Clause 49 of 1956 settlement to the
respondents.
25. Similarly the decision in M. S.R.T.C 's case by
( 34 ) Writ Petition No.3807 of 2011
the Division Bench of this Court clearly assist the
respondents. The Division Bench therein has held thus:
"In order to ascertain whether the limitation has expired, it
is necessary to find out whether the activities complained
of as unfair labour practices are of the recurring nature, or
whether the occurrence of the unfair labour practices were
over once it was engaged in and only the effect continues
to flow therefrom. Where the occurrence is of recurring
nature, the limitation would continue to extend as long as
the occurrence continues. In other words, if the acts of
partiality and favouritism continue from time to time the
occurrence of unfair labour practice would be of a recurring
nature, in which case the limitation will not come to an end
on expiry of the ninety days from the date when the unfair
labour practices were first committed. For this proposition
reliance can be placed on the decision of this Court in
Regional Manager, M. S. R. T. C. v. Regional Secy.,
Maharashtra S. T. Kamgar Sanghatana, 1984 LIC 1721."
26. It is well settled that as long as the default in
performance of obligation continues, the wrong is deemed
to have continued and therefore, it is to be taken as a
continuing wrong. If the duty continues from day to day,
the non-performance of that duty from day to day is a
continuing wrong. (Vide Smt. Maya Rani Punj Vs.
Commissioner of Income Tax, Delhi. (1986) 1 SCC 445).
( 35 ) Writ Petition No.3807 of 2011
27. In the case in hand as already observed above,
the unfair labour practice by the appellants in continuing
the denial of the benefits under Clause 49 of 1956
settlement to the respondents is of recurring nature and till
and until such benefits are given, it will continue to recur
and, therefore, there is no substance in the contention of
the appellants that the complaints were barred by Law of
Limitation."
46. Termination of a wage revision award is solely with an intention
for raising new/further demands. This concept of giving a life span
to an award and seeking its termination is necessarily aimed at
facilitating the raising of further or new demands after a passage of
time because a wage rise settlement or an award pertaining to wage
rise demands are meant for particular periods. Changing socio and
economic conditions prevailing in the society compel a revision of
wage structuring along with allied demands. The said concept can
not be read into an award delivered after adjudicating a personal
cause of action u/s 2A of the I.D. Act.
47. The adjudicatory power u/s 11A indicates that it is an
( 36 ) Writ Petition No.3807 of 2011
adjudication of a personal cause of action in the nature of discharge,
dismissal, retrenchment or termination. A judicial pronouncement
is handed down, either upholding the removal from service or holding
it illegal. This is a one time adjudication of such a dispute and there
is neither a variation in the dispute nor is there any further/new
demand to be made against an employer. A judicial pronouncement
on such a cause of action can not be limited to a particular period.
For the same reasons, there can not be any termination of such an
award under Section 19(2) of the I.D.Act, 1947.
48. The adjudicatory process dealing with such an industrial
dispute takes years. After the award and relief of re-instatement has
attained finality, an employer cannot be permitted to resort to Section
19(2) of the I.D. Act for terminating the award. This, also runs
counter to Section 17B of the I.D. Act which provides for payment of
full wages to a workman pending proceedings in Higher Courts. If
the intent and object of introducing Section 2A, 11A and 17B as
amendments and the scheme of the I.D. Act is considered, it would
clearly indicate that the Legislature never intended to limit an award
( 37 ) Writ Petition No.3807 of 2011
in relation to an industrial dispute u/s 2A and much less to a
particular period of one year or the like.
49. As discussed above, an award in relation to the termination of
services of a workman can lead to grant of relief of re-instatement in
service with consequential benefits. It is clearly an adjudication of a
personal cause of action which leads to the judgment of the
adjudicating authority. It is also clear that the relief granted creates
an obligation on the employer to re-instate an employee with other
benefits as may be granted. When Law mandates an employer to
implement an award, it amounts to an obligation and the obligation
will continue till such an award is implemented. Once an employee
is re-instated in employment by virtue of an award, the obligation
ends and the status of the said workman would then be that of a
workman being in the employment of the concerned employer. It
creates a fiction that there was no termination in the eyes of Law.
Therefore, the action of re-instatement completes the process of
implementation of the award and leaves no continuing obligation.
( 38 ) Writ Petition No.3807 of 2011
50. Therefore, in the light of the provisions of the I.D. Act referred
and the authorities cited, I do not have any doubt that an award
allowing a reference and directing the re-instatement of an employee
falls u/s 19(5), since the continuing obligation cast on the employer
ends with the act of re-instatement. Section 19(6) of the I.D. Act is
supplementary to Section 19(3). Section 19(2), (3) and (6) would
therefore not be applicable to those cases which are covered under
Section 19(5) of the I.D. Act. Section 19(5) is neither in form nor in
effect, a proviso to Section 19(3), as observed in the case of
Mangaldas (supra).
51. However, to strike a note of caution. it is desirable that a
workman should resort to an appropriate and expeditious remedy to
have the Award implemented. Nevertheless, his laxity will not
disentitle him from seeking its implementation. Similarly employer
would be equally accountable for its non-implementation and will be
precluded from invoking Section 19(2) or 19(3) of the I.D. Act.
Section 29 of the I.D. Act can very well deal with such non-
implementation.
( 39 ) Writ Petition No.3807 of 2011
52. For the above said reasons, the impugned judgment of the
Industrial Court is quashed and set aside. Complaint U.L.P. No.
32/2001 is allowed and respondent No.2 / Employer is held to have
committed unfair labour practices under Item No.9 of Schedule IV of
the State Act. Respondent No.2 / employer is directed to implement
the said award dtd. 23/07/1996, passed by the Labour Court in Ref.
(I.D) No.71/1988. This petition is, therefore, allowed and Rule is
made absolute with no order as to costs.
53. Before I part with the judgment, I wish to place on record my
gratitude to all the learned Advocates who have taken pains and
graciously assisted the Court along with the learned Advocate for the
petitioner and the learned A.G.P. for the respondents in the proper
adjudication of the issue.
( RAVINDRA V.GHUGE, J.)
...
khs/Dec.2013/wp3807-11
