Shiv Nath Sao And Ors. vs Presiding Office Labour Court And ...
2005 Latest Caselaw 331 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition arise from the direction given by the Hon'ble Supreme Court in M.C. Mehta v. Union of India, , and in particular relevant direction in paragraph 28(9)(d) which is material for the determination of the present writ petition and reads as follows:-

"(d) The workman employed in the industries which fail to relocate and the workmen who are not willing to shift along with the relocated industries, shall be deemed to have been retrenched with effect from 30-11-1996 provided they have been in continuous service (as defined in Section 25 of the Industrial Disputes Act, 1947) for not less than one year in the industries concerned before the said date. They shall be paid compensation in terms of Section 25 of the Industrial Disputes Act, 1947. These workmen shall also be paid, in addition, one year's wages as additional compensation."

2. It is not in dispute that by a subsequent order in M.C. Mehta v. Union of India, reported as 1997(1) SCALE 16, this direction of the one year's wages as additional compensation was increased to six years' wages as additional compensation. The relevant portion of the said judgment reads as follows:-

"6. We are of the view that the compensation provided in the above quoted direction is on the lower side in the facts and circumstances of the situation. We may mention that during the long period of about 3 years, when this Court has been monitoring the matter pertaining to the shifting of hazardous industries from the city of Delhi, the objective in view was to re-locate all the industries so that the development of the industries as well as the environment and the interests of the workmen are safeguarded. It is no doubt correct that some of the industries have opted to relocate, but there are many have not till date taken any steps towards relocation. Mr. Deepankar Gupta, learned counsel appearing for M/s Birla Textiles has stated that for various reasons including financial, the industry has decided not to relocate and as such it would have to retrench approximately 2,800 workmen. Similarly, Mr. Shanti Bhushan states that the industry he represents is dependent on peculiar location. According to him the industry shall have to be closed. On our suggestion, learned counsel state that the industries shall have a fresh look into the matter. We would appreciate if in the interest of development of the industry, these big industrialists take a decision to relocate, specially when all the facilities regarding land etc. are being offered to them. Any way, this is a matter which concerns the industries. Keeping in view all the facts and circumstances of this case, we are of the view that the interest of the workmen would be met if we substitute the words "one year's wages" in the last line of direction 9(d) quoted above with "six years' wages". The net result would be that the workmen referred to in direction 9(d) shall be paid in addition, six years wages as additional compensation in place of one year's wages as initially directed by us.

7. We, however, clarify that six years' wages as modified by us shall only be payable to workmen of those industries which are not relocating and which have closed down. The workmen of industries who refused to be relocated along with the relocating industries shall be entitled to one year's wages as additional compensation as originally directed."

3. On 8th December, 2000, the Hon'ble Supreme Court was pleased to pass the following order in I.A. No. 1191 in WP(C) No. 4677/1985 moved by the workmen i.e. the petitioners employed by respondent No. 2 Hindustan Vegetables Oils Corporation which led to proceedings before the Labour Court under Section 33 of the Industrial Disputes Act (hereinafter referred to as the 'Act') culminating in the present writ petition :-

"Application is dismissed as withdrawn with liberty to workmen to move an application under Section 33 of the Industrial Disputes Act."

4. The material averments made in the said application filed under Section 33 of the Act, pursuant to the order of the Hon'ble Supreme Court dated 8th December, 2000, read as follows:-

"12. That when the workmen went for collecting the dues on 27th March, 2000, they found that though the retrenchment compensation has been calculated on the basis of the last pay drawn (i.e. the last pay received in February, 2000), the additional compensation was calculated on the basis of the pay drawn as on 30.11.1996. Even workman, including the workman/claimant received the amounts with following objections:

"Received without prejudice to my rights in the application I.A. No. 1191 in I.A. No. 22, in W.P. No. 4677/85, Ganesh Flour Mill Mazdoor Sangh v. HVOC which was pending before the Hon'ble Supreme Court."

5. The plea of the learned counsel for the petitioner is that as per the prayer made in paragraph 12 they have to be granted six years' wages for additional compensation based upon the last drawn wages of the year of 2000 when their services were retrenched. The Labour Court has dealt with this plea in the following terms:-

"12. It is also an undisputed fact on the record that vide Order dated 4.12.1996 in IA No. 30 in WP(C) No. 4677 of 1985 this period of one year wages as additional compensation was modified as six years wages. I have carefully perused the order dated 4.12.1996 in IA No. 30 passed by Hon'ble Supreme Court and it is clear that at the time of enhancing the "period of one year wages" to "six years wages" as additional compensation, managements were directed to pay this additional compensation by April 30, 1997. Thereafter, an application for extension of the time for payment of this compensation was moved by Management No. 1 namely, Hindustan Vegetable Oil Corporation, but that Application was rejected by Hon'ble Supreme Court on 22.9.1999 in IA No. 446 in WP(C) No. 4677/1985. From the plain reading of the various directions given by the Hon'ble Supreme court in para 28 of its Judgment in the case of M.C. Mehta v. Union of India (1996) 4 SCC page 351 as modified vide Order 4.12.1996, it is clear that this additional compensation for six years were to be paid to the workmen employed in the industries which failed to relocate after 30.11.1996 by deeming those workmen as having been retrenched w.e.f. 30.11.1996. The mere fact that the present applicants/claimants continued to perform their duties with Management No. 1 in Delhi even after 30.11.1996 and Management No. 1 failed to relocate does not confer any right upon these applicants/claimants to claim the additional compensation for six years wages on the basis of last drawn wages as on 29.2.2000. The directions given by Hon'ble Supreme Court were unconditional and this additional compensation for six years wages has to be calculated on the basis of last drawn wages as on 30.11.1996. No other interpretation is deducible from these directions. Such interpretation of this Direction No. 9(d) as modified vide Order dt. 4.12.1996 is also clear from this order dated 4.12.1996 in IA No. 30 when Managements were directed to pay the amount of additional compensation by April 30th, 1997 and even Application moved on behalf of the Management No. 1 for extension of the period for payment of this Compensation was rejected by Hon'ble Supreme Court in IA No. 446 vide its Order dated 22.9.1999. No doubt the Union of these applicants/claimants had filed an Application for Directions before Hon'ble Supreme Court which was registered as IA No. 1191 in IA No. 22 in WP(C) 4677/85 but that Application was dismissed as withdrawn with liberty to the workman to move an Application U/S 33 of the ID Act vide Order dated 8.12.2000, but that Order does not confer any right upon these applicants/claimants to claim the additional compensation for six years on the basis of last drawn wages as on 29.2.2000. Considering all these facts and circumstances of these cases as well directions given by Hon'ble Supreme Court in the case of M.C. Mehta v. Union of India , as modified vide Order dated 4.12.1996, I am of the view that these applicants/ claimants have no pre-existing right to claim the additional amount of compensation for six years wages on the basis of the last drawn wages as on 29.2.2000, because such additional compensation has to be calculated and paid to these applicants/workmen/ claimants on the basis of last drawn wages as on 30.11.1996 as mentioned in Direction No. 9(d) contained in Para 28 of the aforesaid cited case. Since all these applicants/claimants have already been paid additional compensation on the basis of their last drawn salary as on 30.11.1996 and as such these applicants/claimants have no pre-existing right in their favor to claim this additional amount of compensation for six years on the basis of their last drawn salary as on 29.2.2000. Accordingly, this Preliminary Issue No. 2 is decided against the applicants/claimants by holding that these applicants/claimants have no pre-existing right in their favor to claim the additional amount of compensation for six years wages on the basis of their last drawn wages as on 29.2.2000. Accordingly, all these seven applications are dismissed as not maintainable in view of the reasons given above. Main Order be kept in the case file bearing LCA No. 5/2001 and in the remaining six cases, copy of this Order be kept on record. File be consigned to Record Room after necessary compliance."

6. It is the correctness of the above reasonings of the Labour Court which is under challenge in the present writ petition filed by the workmen of the respondent No. 2 company. The direction in paragraph 9(d) of the Hon'ble Supreme Court in MC Mehta v. UOI (supra) clearly provided for six years' wages as additional compensation for the closed industries on the deemed date of retrenchment of 30th November, 1996. Thereafter, the Hon'ble Supreme Court had clarified in paragraph No. 7 of the order dated 4th December, 1996 reported in 1997(1) SCALE 16, that six years' wages as modified would only be payable to the workmen of the industries which are not relocating industries and were closed down which is the situation in the present case as the factory of the respondent No. 2 ceased to work and did not relocate.

7. In my view the finding of the Labour Court is fully in consonance with the view of the Hon'ble Supreme Court and are indeed are the only findings which can be given on the basis of orders of the Hon'ble Supreme Court. The additional compensation of six years' wages directed by the Hon'ble Supreme Court was granted in the circumstances of the case emanating from the direction to cleanse the environment of Delhi and were predicated on the presumption that such compensation shall be payable on wages last drawn as on 30th November, 1996. To magnify such observation so as to pay the six years' compensation on the basis of last wages drawn as on 29th February, 2000, which is indisputably higher than that drawn on 30th November, 1996 and is the date of actual retrenchment would amount indeed to re-writing the judgment of the Hon'ble Supreme Court. The Hon'ble Supreme Court has clearly indicated that the compensation for six years wages was to be calculated on the basis of the deemed retrenchment as on 30th November, 1996. It is not open to the Labour Court or this Court that too under proceedings under Section 33 to enlarge the direction given by the Hon'ble Supreme Court. Accordingly, there is no merit in the writ petition which is dismissed.

8. The learned counsel for the respondent states that the issue raised in the present writ petition is involved in more than 50 matters in respect of employees of respondent No. 2 pending before the Labour Courts on the basis of computation of six years' compensation and the rate of wages on which basis such calculation has to be done. A copy of this order be placed in the files of all such matters. The learned counsel for the respondent is permitted to do so. The said applications thereafter be disposed of in terms of the law laid down in this judgment as the issue involved in such applications is said to be common with the present writ petition.