Karu Bijal Makwana vs The Dy. Executive Engineer
2021 Latest Caselaw 18487 Guj

       C/SCA/2118/2019                            ORDER DATED: 16/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2118 of 2019
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 2120 of 2019
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                            KARU BIJAL MAKWANA
                                    Versus
                         THE DY. EXECUTIVE ENGINEER
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MR DG CHAUHAN(218) for the Respondent(s) No. 1,2
NOTICE SERVED(4) for the Respondent(s) No. 3
RONAK D CHAUHAN(7709) for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 16/12/2021
                            COMMON ORAL ORDER

1. The present writ petitions are filed seeking implementation and execution of the award dated 09.08.2016, whereby the Labour Court, Jamnagar has allowed the reference in part and directed the respondent to reinstate the petitioners in service. Since the aforesaid award was not made complied, the present writ petitions have been filed for execution of such award.

2. Learned advocate Mr.T.R.Mishra has placed reliance on the judgment dated 24.08.1998 passed in Special Civil Application No.7737 of 1997 and has submitted that the petitioners can straightaway filed writ petitions for execution of the award. He has also placed reliance on the judgment of the Coordinate Bench of this Court in the case of Manjulaben Dhirajlal Joshi vs. Kodinar Municipality and Anr., 2008 III CLR 790 and has submitted that filing of an execution application for implementation of the award would not have an alternative efficacious remedy and hence, the present writ petitions can be filed for execution of the award.

C/SCA/2118/2019 ORDER DATED: 16/12/2021

3. Per contra, learned advocate Mr.D.G.Chauhan has referred to the provisions of Section 11(8)(9)(10) of the Industrial Disputes Act, 1947 (for short "the ID Act"). He has submitted that when the statute provides for execution proceedings, the present writ petitions cannot be entertained.

4. I have heard the learned advocates appearing for the respective parties.

5. As narrated hereinabove, the writ petitions are seeking execution and implementation of the awards filed by the petitioners have been ordered to be reinstated.

6. At this stage, it would be apposite to refer to the provisions of Section 11, more particularly, sub-sections (8) and (9) of the ID Act.

"11. Procedure and power of conciliation officers, Boards, Courts and Tribunals:- 1[(1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit].

(2) A conciliation officer or a member of a Board, 2[or Court or the presiding officer of a Labour Court, Tribunal or National Tribunal] may, for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.

(3) Every Board, Court, 3[Labour Court, Tribunal and National Tribunal] shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely-

(a) Enforcing the attendance of any person and examining him on oath;

(b) Compelling the production of documents and material objects;

(c) Issuing commissions for the examination of witnesses;

C/SCA/2118/2019 ORDER DATED: 16/12/2021

(d) In respect of such other matters as may be prescribed; and every inquiry or investigation by a Board, Court, 4[Labour Court, Tribunal or or National Tribunal] shall be deemed to be a judicial proceeding, within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860).

(4) A Conciliation Officer 5[may enforce the attendance of any person for the the purpose of examination of such person or call for] and inspect any document which he has ground for considering to be relevant to the industrial dispute 6[or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under this Act, and for the aforesaid purposes, the conciliation officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) 7[in respect of enforcing the attendance of any person and examining him or of compelling the production of documents].]

8[(5) A Court, Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in the proceeding before it.

[(6) All conciliation officers, members of a Board or Court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860).

[(7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of that Labour Court, Tribunal or National Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be paid, and to give all necessary directions for the purposes aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue].

1[(8) Every 2[Labour Court, Tribunal or National Tribunal] shall be deemed to to be a Civil Court for the purposes of 3[Sections 345, 346 and 348 of the Code of of Criminal Procedure, 1973 (2 of 1974)]]"

A bare reading of the aforesaid provisions will signify that every award, made, ordered, issued or settlement arrived at by or before

C/SCA/2118/2019 ORDER DATED: 16/12/2021

Labour Court, Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree of civil court under Order 21 of the Code of Civil Procedure, 1908.

7. It appears that, the aforesaid provision has been inserted with effect from 15.09.2010. The reliance placed on the judgment of the Division Bench by the learned advocate Mr.Mishra is prior to such amendment and the same is made on 28.04.1998. The decision of the Coordinate Bench will also not rescue the present petitioners in view of the aforesaid provisions since the same is also decided prior to the institution of the said provisions.

8. Be that as it may, at this stage, I may, with profit, refer to the judgment of the three judges Bench of the Hon'ble Supreme Court in the case of Alahar Coop. Credit Service Society vs. Sham Lal, 1995 (2) G.L.H. 550. The Supreme Court, while examining the provisions of the ID Act, more particularly, Sections 7, 10 and 33(C) (2) thereof has held thus:-

"4. The Labour Court is not a court subordinate to the High Court in the sense the Contempt of Courts Act makes provision requiring the High Court to deal with contempt of its subordinate courts; therefore, the High Court should have looked into that aspect before entertaining the contempt proceedings for non-compliance with the direction of the Labour Court. Contempt proceedings are again not intended to be a substitute of the execution process and, therefore, care should have been taken before entertaining the contempt petition to examine the maintainability of such action.

5. The appropriate court to compute the dues of the respondent is the court constituted under the Industrial Disputes Act before which at the instance of the respondent cases under Section 33-C(2) are pending. We direct that authority to finalise its computation within two months from today. Once the claim is finalised in accordance with law, the appellant Society shall by this order of ours be obliged to satisfy the claim within two months from the date of finalisation"

Thus, the Supreme Court has held that the High Court cannot

C/SCA/2118/2019 ORDER DATED: 16/12/2021

entertain the contempt proceedings for non-compliance of the direction of the Labour Court, since the contempt proceedings are not intended to be substituted of the execution process and, therefore, care should have been taken before entertaining the contempt petition. It is further observed that the appropriate court to compute the dues of the respondent is the court constituted under the Industrial Disputes Act before which, at the instance of the respondent, cases are filed under Section 33-C(2) of the ID Act.

9. Thus, in light of the specific provisions of the ID Act, which provides for implementation and execution of the awards, the writ petitions are not maintainable. It will be open for the petitioners to file appropriate proceedings under Section 11(8)(9)(10) of the ID Act for getting the award executed. The writ petitions are rejected. Notice is discharged.

(A. S. SUPEHIA, J) ABHISHEK/11+12