Delhi High Court
The Executive Engineer Cpwd vs The Regional Labour Commission ... on 10 August, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 3081/2007 and C.M. No. 5793/2007 (for stay)
% Date of Decision: 10th August, 2009
# THE EXECUTIVE ENGINEER, CPWD
..... PETITIONER
! Through: Mr. A.K. Bhardwaj with Ms. Jagrati Singh,
Advocates.
VERSUS
$ THE REGIONAL LABOUR COMMISSION (CENTRAL) & OTHERS
.....RESPONDENTS
^ Through: Respondent No. 3 in person.
CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper may be allowed to see
the judgment? YES
2. To be referred to the reporter or not?YES
3. Whether the judgment should be reported in the
Digest?YES
S.N.AGGARWAL, J (ORAL)
The petitioner in this writ petition seeks setting aside of impugned
notice of recovery dated 08.09.2006 issued by the Assistant Collector
Grade-II (respondent No. 4 herein) pursuant to an order dated 23.08.2004
passed by the CGIT-cum-Labour Court-II under Section 33(C)(2) of the
Industrial Disputes Act, 1947. Vide impugned notice of recovery dated
08.09.2006, the petitioner has been directed to deposit an amount of
Rs.4,28,600/- with respondent No. 4 by 29.09.2006.
2. Briefly stated the facts of the case are that on 20.07.1992, the
Central Government had referred the following industrial dispute to the
Central Government Industrial Tribunal, New Delhi for adjudication:-
W.P.(C) No.3081/2007 Page 1 of 7
"Whether the action of the management of CPWD, New Delhi
in terminating the services of Shri Sajjan Kumar w.e.f. March,
1991 is justified? If not, what relief he is entitled to?".
3. Vide award dated 06.11.1998 passed in ID No. 66/1992, the CGIT,
New Delhi passed the following award in favour of Sh. Sajjan Kumar
(respondent No. 3):
"I am, therefore, of the opinion that the claimant is entitled
to be reinstated with the management. The claimant,
however, in my opinion was not entitled to back wages
because it cannot be accepted that a mason could remain
idle continuously for such a long period without any job or
the work. However, for the illegal act of the management I
burden the management with Rs. 5000/- lump sum as costs
of this dispute for which the management is responsible. The
workman shall be reinstated by the management in their
regular cadre immediately."
4. The aforementioned award was challenged by the petitioner before
this Court in W.P.(C.) No. 7086/1999 but this writ petition was dismissed
vide order dated 26.11.1999.
5. Aggrieved by the said order of dismissal, the petitioner filed a
Letters Patent Appeal being LPA No. 565/1999 which also stood dismissed
vide order passed by a Division Bench on 10.01.2002. Thereafter, the
workman (respondent No. 3) was reinstated in service by the petitioner
w.e.f. 10.03.2003. After his reinstatement, he filed a writ petition being
W.P.(C.) No. 7131/2004 seeking to challenge the award dated 06.11.1998
in I.D. No. 66/1992 to the extent he was not granted back wages. This
writ petition filed by the workman/ respondent No. 3 was withdrawn by
the workman and accordingly, the said petition was dismissed as
withdrawn vide order dated 03.12.2008. Consequently the award of the
CGIT dated 06.11.1998 in I.D. No. 66/1992 attained finality. The award
directs reinstatement of the respondent No. 3 and also directions to the
petitioner to reinstate him in his regular cadre immediately. Costs of
Rs.5,000/- was also awarded in favour of respondent No. 3.
W.P.(C) No.3081/2007 Page 2 of 7
6. Although the award was passed by the CGIT on 06.11.1998 but
respondent No. 3 was reinstated in service by the petitioner w.e.f.
10.03.2003. The respondent No. 3, after he was reinstated, filed an
application under Section 33(c)(2) and claimed Rs. 4,00,500/- besides
costs of Rs. 5,000/- as amount due to him in terms of award dated
06.11.1998 in his favour. The CGIT-cum-Labour Court-II has passed the
following order on application of respondent No. 3 under Section 33(c)(2)
on 23.08.2004:
"The applicant has demanded Rs. 4,00,500/- as per his
chart and cost of the dispute Rs. 5,000/-. He has
submitted a chart from Nov 1998 to May 2002 but it
cannot be ascertained whether the chart is correct or not.
So no specific amount is given. The management will pay
the entire arrears of his salary right from 06.11.1998 till
he was reinstated. The management will also pay the cost
of Rs. 5,000/- as awarded in I.D. No. 66/1992.
ORDER
The application is allowed. The respondent/management
is directed to pay all benefits and dues which accrued
w.e.f. 06.11.98 + Rs. 5,000/- cost of ID case within one
month from the date of the order. In case the entire
arrears referred above are not paid within one month from
the date of the order, the applicant will be entitled to get
9% interest per annum on all the arrears that have
accrued from 06.11.98 and also on Rs. 5,000/- the cost of
the ID case."
7. Thereafter, the petitioner paid an amount of Rs. 2,90,172/- to the
respondent No. 3 on 06.02.2006 on account of arrears of pay for the
period from 06.11.1998 to 09.03.2003. However, the respondent No. 3
vide his letter dated 22.03.2003 sent by him to the Assistant Labour
Commissioner, Curzon Road Barracks, New Delhi, informed that he had
received Rs. 2,90,172/- with interest of Rs. 37,559/- from the petitioner
management. The respondent No. 3 vide his aforesaid letter dated
23.03.2006 requested the Assistant Labour Commissioner that the
petitioner be directed to pay him Rs. 4,28,600/- more with interest @ 9%
per annum being the further amount due to him in terms of award dated
06.11.1998.
8. The Assistant Collector (Grade-II), office of Dy. Commissioner (SW),
Kapashera, New Delhi-110037, on this communication addressed to him
by respondent No. 3 issued the impugned notice dated 08.09.2006 to the
petitioner directing it to deposit an amount of Rs. 4,28,600/- mentioned in
the letter of respondent No. 3.
9. The petitioner, on 11.10.2006, made an application to the CGIT
Labour Court-II for recall of order dated 23.08.2004. The petitioner also
requested the Regional Labour Commissioner on 20.10.2006 to recall and
withdraw the recovery proceedings pending before Assistant Collector
(Grade-II), Kapashera, New Delhi. Since the impugned recovery
proceedings were not withdrawn by the Assistant Collector (Grade-II),
Kapashera, New Delhi, the petitioner has filed the present writ petition for
setting aside the impugned notice dated 08.09.2006 and also order dated
23.08.2004 passed by CGIT-cum-Labour Court-II.
10. I have heard the arguments of the learned counsel appearing on
behalf of the petitioner and also heard respondent No. 3, who has
appeared in person. I have also gone through the entire case file.
11. Mr. A.K. Bhardwaj, learned counsel appearing on behalf of the
petitioner, contends that the respondent No. 3 has already been paid
whatever was due to him in terms of award dated 06.11.1998 in I.D. No.
66/1992 on account of arrears of his salary for the period from
06.11.1998 till 09.03.2003.
12. As against this argument advanced on behalf of the petitioner, the
respondent No. 3 who has argued his case in person, says that in terms
of award dated 06.11.1998 he was entitled for regularisation since 1989
and after his regularisation from 1989, his pay should have been fixed by
the petitioner with effect from the date of his deemed reinstatement, i.e.
06.11.1998 and according to him, he should have been paid arrears of
salary after fixation of his pay correctly. The respondent No. 3 says that
in case his pay was correctly fixed by the petitioner, then he should have
been found entitled to recover the amount mentioned by him in his
communication dated 23.03.2006 sent to the Assistant Labour
Commissioner where he has pointed out that an amount of Rs. 4,00,500/-
more was due to him in addition to the amount he has already received
from the petitioner.
13. It seems that the Assistant Collector (Grade-II), Kapashera, New
Delhi has issued the impugned notice dated 08.09.2006 merely picking
up the figure from the communication of respondent No. 3 dated
23.03.2006 without ascertaining as to what amount was actually due to
him in terms of award dated 06.11.1998/23.08.2004 referred above. It
may be noted that the CGIT-cum-Labour Court-II vide its order dated
23.08.2004 had simply directed the management of the petitioner to pay
to the respondent No. 3 arrears of his salary from 06.11.1998 till he was
reinstated along with costs of Rs. 5,000/- as awarded in I.D. No. 66/1992.
14. Neither award dated 06.11.1998 in I.D. No. 66/1992, nor the order
of CGIT dated 23.08.2004 under Section 33(c)(2) directs the petitioner to
fix his pay on 06.01.1998 treating him as regularised with effect from
1989. The award dated 06.11.1998 simply directs reinstatement of
respondent No. 3 with further directions to the petitioner to put him in
regular cadre immediately. Vide order dated 23.08.2004 under Section
33(c)(2), the petitioner was directed that respondent No. 3 should be paid
his salary right from 06.11.1998 till he was reinstated. In view of these
directions given by the Labour Court in favour of respondent No. 3, what
the authorities below ought to have examined was to what amount the
respondent No. 3 was actually entitled to, in terms of award dated
06.11.1998 in I.D. No. 66/1992 and unless this question was first
determined, the impugned recovery certificate could not have been
issued.
15. Mr. Bhardwaj, learned counsel appearing on behalf of the
petitioner, has drawn my attention to Annexure A-8 (at pages 42-44 of
the Paper Book) to contend that the respondent No. 3 was placed in the
maximum of pay scale of the post held by respondent No. 3 at the time
his pay was fixed with effect from the deemed date of his reinstatement,
i.e., 06.11.1998 and, therefore, according to him, whatever payment was
due to respondent No. 3 has already been paid and acknowledged by
respondent No. 3.
16. However, respondent No. 3 present in person, submits that the pay
scale of Mason starts from Rs. 3050/- and it is not the maximum pay in
the scale of pay admissible to the Mason. The respondent No. 3 further
submits that he was also entitled to have annual increments after his
deemed reinstatement w.e.f. 06.11.1998 but Mr. Bhardwaj, learned
counsel appearing on behalf of the petitioner, submits that in terms of FR
26, the annual increments are granted to employees only when they
actually earn the increment and, therefore, according to him, since
respondent No. 3 did not work with the department till the time he was
actually reinstated w.e.f 10.03.2003, he was not entitled to any
increment from the deemed date of his reinstatement till the date he was
actually reinstated.
17. The contentions in regard to the above raised on behalf of the
parties give rise to a disputed question of fact which cannot be decided
by this Court in exercise of its extraordinary discretionary writ jurisdiction
under Article 226 of the Constitution. It is for the concerned Labour Court
to hear and decide the question as to whether any more amount is
payable to respondent No. 3 in terms of award dated 06.11.1998 in I.D.
No. 66/1992 and in case any amount is found due to him, then
appropriate orders may be passed by the Court below under Section
33(c)(2) of Industrial Disputes Act, 1947.
18. Respondent No. 3 further submits that despite the directions of the
Tribunal contained in award dated 06.11.1998 for his immediate
regularisation, the petitioner has not regularised him till date. The
petitioner is, therefore, directed to regularise respondent No. 3 on the
post of Mason in terms of award dated 06.11.1998 immediately, if he has
not already been regularised. Needless to state that regularisation of
respondent No. 3 should take place w.e.f 06.11.1998, i.e., the date of the
award.
19. For the foregoing reasons, the impugned recovery notice dated
08.09.2006 is hereby quashed and the concerned Court below is directed
to decide the question regarding entitlement of respondent No. 3 in
terms of award dated 06.11.1998 afresh after giving an opportunity of
hearing to both sides. The parties are directed to appear before the
concerned Court below/Successor Court for further directions at 2:00 P.M.
on 02.09.2009.
20 In view of the above, this writ petition along with stay application,
stands disposed of.
AUGUST 10, 2009 S.N.AGGARWAL, J
'bsr'
