Yoga Employees Association And ... vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1789 Del

JUDGMENT

Manju Goel, J.

1. The respondent No. 2 is a Society registered under the Societies Registration Act. The Society had been receiving regular grant-in-aid from the Ministry of Health and Family Welfare. The petitioner association is a Union of ten workers of the respondent No. 2. The other petitioners are those ten workers. On 30.4.1990, the respondent No. 2 declared a lock-out at its units in Delhi as well as at Katra which was challenged in industrial disputes referred to the Industrial Tribunal No. 1, Delhi and to Industrial Tribunal, Jammu respectively. The terms of reference to the Industrial Tribunal, Delhi were:

Whether the workman are entitled to wages for the lock-out period commencing 30.4.90 and if so, what directions are necessary in this regard?

The respondent No. 2 declared closure w.e.f. 30.4.90. Delivering the award, the Industrial Tribunal, Delhi declared the lock out illegal and unjustified. It also expressed an opinion that the action of the respondent No. 2 in declaring the closure was a sham. It held that the petitioners were entitled to full wages for the lock out period commencing from 30.4.90 on wards. The respondent No. 2 paid wages for the period 30.4.90 to 30.9.90 on 5.3.2002 following an undertaking given to the Court in 22.2.2002 in Civil Writ Petition No. 1300/2002 which was filed by the respondent No. 2 to challenge the award. The petitioners filed an application under Section 17-B of the Industrial Disputes in that writ petition. This Court vide order dated 25.7.2003 held that since no order of reinstatement has been made by the Industrial Tribunal, the provisions of Section 17-B were not applicable. In the meantime, a recovery certificate was issued by the respondent No. 3, Labour Commissioner for a sum of Rs. 88,69,533/-.

2. The Labour Court, Katra on the other hand passed an award on 26.7.94 declaring the lock-out as illegal and directed full back wages for the lock-out period. The workmen of Jammu then filed a writ petition in the High Court of Jammu and Kashmir seeking a mandamus to absorb the petitioners in the Central Research Institute of Yoga being SWP No. 1158/93. In that writ petition an injunction order was passed on 24.5.95 pending service of notice directing the respondents to consider the petitioners if they were otherwise eligible.

3. The petitioners alleged that 15 employees of Jammu were absorbed in Delhi following an order of the High Court of Jammu and Kashmir on 28.2.96. The petitioners claim that those employees are regularly getting salary while the petitioners are deprived of reinstatement and wages.

4. It is alleged that 15 employees of Jammu are getting salary out of grant-in-aid while no grant-in-aid is being given by the Ministry of Health and Family Welfare for the petitioners and so the petitioners are deprived of their wages. The petitioners further plead that the respondent No. 2 is in fact running its regular activity in various places in Delhi. They seek the following reliefs:

a) a mandamus to direct the respondent No. 1 Union of India to provide grant-in-aid to satisfy the recovery certificate issued in favor of the petitioners:

b) restrain the respondent No. 2 from stopping the petitioners from joining duty

c) mandamus to direct Collector, respondent No. 4 to take steps for recovery of the amount of the Certificate:

d) Direction to the respondent No. 4 to launch prosecution against respondent No. 2.

5. The writ petition is opposed by all the four respondents. The respondent No. 3, Labour Commissioner in his counter affidavit says that pursuant to the award he issued a Recovery Certificate for the sum of Rs. 88,69,533/- on 29.4.2003. The respondent No. 4, S.D.M., Parliament Street, responsible for recovery says that he attached the bank account of respondent No. 2 and in return he received a Banker's cheque for Rs. 3,93,059/- which was sent to the Labour Commissioner, that respondent No. 2 informed him that it has no movable or immovable property, that the Labour Commissioner was asked to furnish details of properties of the respondent No. 2 and that the Labour Commissioner has not furnished any of those details. The S.D.M., thus, says that he has done all that was due from him.

6. The respondents No. 1 & 2 are the main contesting defendants. The respondent No. 2's principal defense is that the writ is not maintainable against it and cites a judgment of 16.1.91 of a Division Bench of this Court in CW No. 127/91. The copy of the judgment is annexed as `R-1' to the counter of the respondent No. 2. It appears from the judgment that the CW No. 127/91 arose out of a dispute over termination of the services of some employees of the respondent No. 2. It was held that the respondent No. 2 was not an instrumentality of the State and that no writ petition was maintainable against it. The petitioner association was the petitioner in that writ petition and as such that finding is res judicata. It is further submitted by the respondent No. 2 that no writ petition to execute the award is maintainable since the provisions for implementation of the award are present in the Industrial Dispute Act itself. It is further alleged that the petitioners have suppressed material facts and have abused the process of the Court.

7. The respondent No. 1 in its counter affidavit says that the respondent No. 2 is a defunct society and that the respondent No. 1 Union of India has nothing to do with it. No law is shown under which the respondent No. 1 can be compelled to give grant to the respondent No. 2 to satisfy any recovery certificate. It is also submitted that the validity of closure was not challenged in the industrial dispute referred to the Industrial Tribunal. The finding of the Tribunal in this respect is without jurisdiction. How wages are being paid to the workers of Jammu centre of respondent No. 2 is explained in an additional affidavit. Some ex employees of the respondent No. 2 at Katra filed a writ petition in the High Court of Jammu and Kashmir seeking a direction that petitioners be considered for absorption in Central Research Institute of Yoga. The High Court passed an order on 24.5.95 wherein the respondents were directed to consider the petitioners, if otherwise eligible. Later on 27.11.95, the same workers filed a contempt petition for violating the order dated 24.5.95. On the advice of some Senior Advocate of the Supreme Court, the employees were reinstated. It is submitted by the respondent No. 1 in the additional affidavit that the officials of the Ministry as well as the Senior Advocate misconstrued the aforesaid order of the High Court and accordingly those employees of Katra have been paid wages under a mistake which is being rectified.

8. Faced with the preliminary objections raised by the respondent No. 1, Shri Jay Salva, counsel for the petitioners gave up the relief against the respondent No. 2. Hence, the reliefs at (b) (c) and (d) have become infructuous. So far as the prayer at (a) is concerned, the claim of the petitioners rest on the right to equality enshrined under Article 14 of the Constitution of India. But from the facts narrated above even that ground cannot succeed. Neither the Industrial Tribunal in Delhi nor that in Jammu ordered either reinstatement or back wages although an allegation otherwise is made in the writ petition. The employees at Jammu were reinstated following an order of the High Court of Jammu and Kashmir dated 27.11.95 and not by way of implementation of the Award of the industrial adjudicator. No such order was passed for the employees at Delhi, who are the petitioners. Further, the respondent No. 1 has contended that the same was done under a mistake following misconstruction of the High Court's order for considering the employees in Jammu in case they were otherwise eligible. The respondent No. 1 is now taking steps to correct the mistake in appreciating the import of the order of the High Court. "Reinstatement" of the employees of Jammu was not a voluntary act of the respondent No. 1. It was done under threat of contempt proceedings and on misconstruction of the order of the High Court of Jammu and Kashmir. Can the petitioners claim that in view of what is stated above, they are entitled to the relief (a) on the ground of parity? The answer is clearly `No'.

9. Before ending the judgment, it is necessary to say a few words about the frivolous nature of the present writ petition.

10. The allegations of the petitioners at para (q) and (v) are misleading. In para (q), it is stated that the Industrial Tribunal, Jammu held that the 19 workmen were entitled to reinstatement with full back wages. This is quite different from the award which is annexure `P1' to the rejoinder of the petition.

11. The petitioners then proceed to say that as the award was not implemented, the workmen filed a writ petition before the High Court of Jammu and Kashmir for implementation of the award. In fact, they had sought their absorption in the Central Research Institute of Yoga. The petitioners then say that the employees of Jammu were reinstated following an order of the High Court of Jammu and Kashmir of 28.2.96. The petitioners have withheld the order of 28.2.96. In fact, as disclosed by the respondent No. 1, the reinstatement of the workmen of Jammu was a consequence of order dated 24.5.95.

12. Further the petitioners earlier filed a petition bearing CW No. 127/91(supra) with virtually the same relief as in (a). The second paragraph of the order dated 16.1.91 indicates that the petitioners had asked for taking over of the management of the respondent No. 2 by the Union Govt. and the petitioners failed to show any law in support of the prayer. The effort of the petitioners then also was to get the wages from the respondent No. 1. Having failed in that effort, the present writ petitions are filed. The writ petitions are conspicuously silent about the writ petition No. 127/91 and the order dated 16.1.91. Thus the intention and effort of the petitioners to get some relief by misrepresentation and suppression of facts is quite clear.

13. The Supreme Court in the case of Salem Advocate Bar Association, T.N. v. Union of India has lamented that the Courts have failed to award suitable cost which have led to filing of frivolous cases. The Courts are always reluctant to impose cost on workmen. However, in view of the way in which the present petitioners have put forth their case by concealing material aspects of the case and by misrepresenting certain other aspects, they deserve to be saddled with cost which the other party has been made to bear to defend the claim of the petitioners in these writ petitions. However, keeping in view the fact that the petitioners had to lose their job on account of the closure of respondent No. 2, it will be sufficient to impose a symbolic cost. Hence, the petitioners shall pay a cost of Rs. 12,000/- to be divided equally between the respondents.

14. The writ petitions are accordingly dismissed with a cost of Rs. 12,000/- (Rs.3,000/- for each respondent).