Shri Subhash Chand vs M/S. Parkash Enterprises And ...
2015 Latest Caselaw 4748 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: 06.05.2015
                                             Decided on : 07.07.2015
+      W.P.(C) 8497/2008
       SHRI SUBHASH CHAND                                 ..... Petitioner
                    Through: Mr S.L. Kathpal, Advocate for
                    petitioner along with petitioner in person.


                          versus

       M/S PARKASH ENTERPRISES AND THREE OTHERS
                                            ..... Respondents
                     Through: Mr Inderjit Singh, Adv for
                     respondents No.1 and 2
       CORAM:
       HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

%

1. In the present case, the petitioner had raised an industrial dispute on

the ground that his services have been illegally terminated by his

Management. The said dispute was referred to for adjudication to the

Presiding Officer, Labour Court and was registered as ID No.1158/2001.

The petitioner had filed his claim and an ex parte award dated 14.03.2005

had been passed in favour of the petitioner, whereby it was ordered that the

petitioner (claimant) was entitled to reinstatement with continuity in service

and 5% of back wages last drawn by him for the intervening period, i.e.,

W.P.(C) 8497/2008 Page 1 from the date of termination till publication of the award. The 5% of the

back wages were awarded to the workman as the learned Labour Court

found that the delay of the proceedings could be attributed to the petitioner

and also that he had violated the mandate of law as per Rule 10B(1) of the

I.D. Central Rules, 1957.

2. The petitioner, thereafter, filed an execution application for execution

of the said award before the Deputy Labour Commissioner and the Labour

Commissioner. He also furnished an affidavit dated 07.07.2008 before the

Labour Commissioner during the pendency of execution application. The

Labour Commissioner passed an order dated 26.09.2008, whereby it had

ordered the recovery of a sum of ` 7643 from the respondent-employer of

the petitioner. It was also observed that the new address of the Management

had been supplied by the workman through his affidavit and the recovery be

effected from there and the amount be recovered as land revenue under

Section 33C(1) of Industrial Disputes Act, 1947 and on recovery of the

amount the cheque/draft be made in the name of the workman and be sent

for payment to his office. The petitioner has challenged the said order vide

this writ petition before this Court.

3. It is submitted that despite the award in his favour, the petitioner

W.P.(C) 8497/2008 Page 2 could not be reinstated since the respondent had reportedly closed/sold his

factory, i.e., M/s Prakash Enterprises, C-273, Maya Puri Industrial Aria

Phase-I, New Delhi-110064, but they had started another factory in Kirti

Nagar Industrial Area, New Delhi, wherein they were functioning under a

different name and style as M/s RGH Exports 53A/1, Rama Road and this

fact had been mentioned by him in his affidavit dated 07.07.2008, but the

said affidavit was got misplaced and he had to submit the copy of the said

affidavit along with the fresh application. It is submitted that the

Management had been managing the recovery certificate, i.e., the impugned

order and therefore the same be stayed. It is further submitted that the

respondent be directed to reinstate him and the award be modified and the

quantum of back wages be increased from 5% of last drawn wages to 100%

of last drawn wages at current rate of minimum wages which has not been

paid to this petitioner till date. It is also prayed that respondents be directed

to release his withheld wages for the period 01.08.1999 till 08.09.1999 at the

rate of minimum wages of Machineman and his withheld leave salary of

Machineman's post for one year .i.e. for 1998 to 1999, at current minimum

wages and also the bonus for the said period be also ordered to be released

to him.

W.P.(C) 8497/2008 Page 3

4. The claim is contested by the respondent. It is submitted by the

respondent that they had come to know of the raising of the industrial

dispute only when they received the copy of the execution of the award. The

award was passed ex pare yet they have paid the entire decretal amount to

the petitioner. It is further submitted that since the workman has already

filed the execution petition for implementation of this award, the award

cannot be challenged by him. It is further submitted that it was the petitioner

who had abandoned his services when he had met with an accident. It is

further submitted that he was working as a Helper and he had been paid the

wages of the Helper. It is further submitted that respondent has already

closed down its factory, therefore, the petitioner cannot be reinstated. From

these facts, it is submitted that the petition is liable to be dismissed.

5. This Court, vide its order dated 21.11.2011, asked the respondents to

file an affidavit in support of their contention that the award stood satisfied.

Pursuant to this direction, the respondents had filed the affidavit in which

they have further reiterated that the manufacturing unit/factory which was

started by the respondent in the year 1986, wherein the respondent was

working was closed down in the year 1996 and the petitioner was also aware

of this fact. It is further submitted during the pendency of the execution

W.P.(C) 8497/2008 Page 4 proceedings, they have cleared the awarded amount. It is further submitted

that the petitioner has filed an application before the Labour Court, wherein

it had stated that payment of 5% back wages was a clerical mistake and the

Court vide its order dated 21.02.2008 in Miscellaneous No.9/2007 dismissed

the application. On these facts, it is submitted that petition is liable to be

dismissed.

6. I have heard the arguments and given due consideration to the rival

contentions.

7. Admittedly, in the present case, the award dated 14.03.2015 had been

published and in terms of Section 17 of the Industrial Disputes Act and had

thus become enforceable. Admittedly, after the award became enforceable,

the petitioner had filed an execution petition for execution of the award. It is

the case of the respondent that in the execution petition, the respondent had

made the payment of the back wages in terms of the award. The

reinstatement of the petitioner could not be made due to the reason that the

respondent had closed down its factory, wherein the petitioner was

employed. This fact has himself been admitted by the petitioner in his

affidavit dated 07.07.2008 submitted by him before the Labour

Commissioner in the proceedings on his execution application. Since the

W.P.(C) 8497/2008 Page 5 petitioner had claimed certain due amount, the Labour Commissioner had

issued the Recovery Certificate in exercise of its powers under Section

33C(1) of the Industrial Disputes Act. The petitioner has failed to point out

any illegality in the impugned order dated 26.09.2008. The appropriate

authority has acted as per the provisions of law. I therefore found no reason

to set aside an order passed on the application of the petitioner and in his

favour. As far as the claim of the petitioner for reinstatement is concerned,

the petitioner has himself stated in his affidavit dated 07.07.2008 that the

respondent had closed down his factory. His contention is that respondent

had started working in new name. These are finding of the facts and the

petitioner is free to take up his issue of reinstatement before the appropriate

authority which is bound to act under the relevant provisions of law.

8. The petitioner has also claimed wages at current minimum rate for the

post of Machineman. Since the remedy under the relevant provisions of law

is available to the petitioner, the petitioner is free to take its remedy under

the relevant provisions of law. There is no requirement for this court to

exercise its writ jurisdiction. Moreover, it is a mixed question of law and

fact which can be adjudicated upon only by a Competent Court of

jurisdiction under relevant provisions of law.

W.P.(C) 8497/2008 Page 6

9. The present writ petition along with all the pending applications, is, therefore, dismissed, with no order as to costs.

                                                         DEEPA SHARMA
                                                            (JUDGE)
JULY 07, 2015
BG




W.P.(C) 8497/2008                                                       Page 7