M/S Bata India Ltd. vs Govt. Of N.C.T. Of Delhi & Ors
2011 Latest Caselaw 941 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 17th February, 2011

+      W.P.(C) 6664/2001 & CM No.11432/2001 (for stay), CM
       No.9344/2005 (for vacation of stay) & CM No.8929/2006

       M/S BATA INDIA LTD.                                ..... Petitioner
                     Through:           Mr. P.R. Sikka & Mr. V.K.
                                        Gupta, Advocates.

                                 Versus

    GOVT. OF N.C.T. OF DELHI & ORS        ..... Respondents
                  Through: Ms. S. Janani, Adv. for
                            respondent no.3 workman.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                     No

2.     To be referred to the reporter or not?              No

3.     Whether the judgment should be reported             No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the Recovery Certificate dated 18th

September, 2001 issued by the Deputy Labour Commissioner, Govt. of

NCT of Delhi for `45,558/- being the amount recoverable by the

respondent no.3 workman under Section 33C(1) of the Industrial

Disputes (ID) Act, 1947 from the petitioner employer for the period 6th

January, 2000 to 31st July, 2001. Notice of the writ petition was issued

and subject to the petitioner employer depositing `15,000/- in this

Court, the operation of the Recovery Certificate was stayed.

2. Prior thereto, the following dispute raised by the respondent no.3

workman was referred to the Labour Court:-

"Whether Sh. Narender Kumar Saini abandoned his job voluntarily or his services have been terminated illegally and/or unjustifiably by the mgt. and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. An award dated 21st August, 1999 came to be made holding that

the respondent no.3 workman had not abandoned his job voluntarily as

contended by the petitioner employer but his services had been

terminated illegally and unjustifiably by the petitioner employer. The

petitioner employer was directed to reinstate the respondent no.3

workman with back wages.

4. No challenge was made to the said award. Rather, it is the case

of the petitioner employer that in compliance with the award, the

petitioner employer called upon the respondent no.3 workman to join

duty and also paid the entire back wages to the respondent no.3

workman. The same is also supported from the fact that the claim of

respondent no.3 workman under Section 33C(1), for which Recovery

Certificate was issued, was for the emoluments for the period after the

award. It is further the case of the petitioner employer that the

respondent no.3 workman inspite of being called upon, did not join the

duty.

5. This writ petition was filed as aforesaid only against the

Recovery Certificate aforesaid for `45,558/-.

6. The amount of `15,000/- which the petitioner employer as

aforesaid was directed to deposit in this Court was vide order dated

22nd September, 2003 ordered to be released to the respondent no.3

workman.

7. Even though the challenge in the present writ petition was not to

any award of reinstatement and in which case alone an application

under Section 17B could be preferred, CM No.8929/2006 was filed in

these proceedings under Section 17B. In between, request was made

by the respondent no.3 workman for direction to the petitioner

employer to allow him to join duty in the NCR region instead of at

other places as directed by the petitioner employer. Vide order dated

27th August, 2004, the respondent no.3 workman was directed to join

duty at Meerut. It was the case of the respondent no.3 workman that

though he reported for duty at Meerut but owing to delay of ten

minutes, he was not allowed to join. In view of the said submission,

this Court vide order dated 3rd March, 2005 allowed the application

under Section 17B with direction to the petitioner employer to pay with

effect from 1st April, 2005. Rule was also issued in the writ petition.

The writ petition has thereafter been adjourned from time to time.

With grievance being made by the respondent no.3 workman from time

to time that the payment under Section 17B was not being made, the

counsel for the petitioner employer today states that up to date payment

under Section 17B has been made.

8. I have enquired from the counsel for the petitioner employer as

to how the challenge can be made to the Recovery Certificate and that

the challenge, if any ought to be to the order on the application of the

respondent no.3 workman under Section 33C(1) of the Act and

pursuant to which the Recovery Certificate was issued. The counsel

for the petitioner employer states that there is no order under Section

33C(1) of the Act. There is no such pleading. I also find it hard to

believe that the Recovery Certificate would be issued without any

order on the application under Section 33C(1) finding the amount to be

due to the respondent no.3 workman.

9. Be that as it may, it has been enquired from the counsel for the

respondent no.3 workman as to whether any such order was made and

to produce a copy thereof. The counsel for the respondent no.3

workman is equally clueless and states that order, if any ought to have

been filed by the petitioner employer.

10. The aforesaid state of affairs show that this writ petition though

has been pending for the last about nine years, is totally misconceived.

The remedy, if any of the petitioner employer, is to challenge the order,

if any pursuant to which the Recovery Certificate has been issued and

which order has not been challenged.

11. The counsel for the petitioner employer has also stated that the

respondent no.3 workman has till date not joined duty with the

petitioner employer. Even if that be so, the said dispute cannot be

adjudicated in the present writ petition. If the respondent no.3

workman inspite of readiness and willingness of the petitioner

employer in compliance of the award to reinstate the respondent no.3

workman does not join the duty, the remedy of the petitioner employer

is to take appropriate action against the respondent no.3 workman

therefor. The said disputed question cannot be adjudicated in this writ

petition.

12. The writ petition is accordingly dismissed as misconceived but

with liberty to the petitioner employer to approach the Labour Court

which has issued the Recovery Certificate and to represent against the

order, if any pursuant to which the said Recovery Certificate has been

issued. The counsel for the respondent no.3 workman opposes the

grant of such liberty stating that the said liberty cannot be granted after

nine years since when the writ petition is pending.

13. Having found both the petitioner employer as well as the

respondent no.3 workman to have pursued this writ petition mindlessly

for the last nine years, it is deemed expedient that the rival contentions

are properly adjudicated before the Fora competent to decide the same.

The writ petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 17, 2011 bs