General Manager vs Narain Gosai
2023 Latest Caselaw 1362 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                W.P.(L) No. 2744 of 2019
                                         With
                                 I.A. No. 8186 of 2019

                General Manager, Eastern Jharia Area of M/s. Bharat Coking Coal
                Limited, P.O.-Bhowra, P.S.-Jharia, District-Dhanbad, through Sri
                Phool Kumar Dubey, son of Late G.R. Dubey, General Manager, E.J.
                Area, resident of G.M. Bungalow, Jorapokhar, P.O. & P.S.-
                Jorapokhar, District-Dhanbad                ...     ...     Petitioner
                                         Versus
                Narain Gosai, son of Late Kedar Gosain, resident of Manaitand,
                Kumharpatti, P.O. P.S. and District-Dhanbad, PIN-826001
                                                     ...        ...       Respondent
                                         ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

I.A. No.8186 of 2019

06/28.03.2023 Heard Mr. Anoop Kumar Mehta, learned counsel appearing on behalf of the petitioner.

2. This interlocutory application has been filed seeking stay of Execution Case No.41 of 2019 said to be pending in the court of learned Civil Judge Junior Division - I at Dhanbad. W.P.(L) No. 2744 of 2019

3. This writ petition has been filed challenging the judgment dated 21.06.2018 passed by Sri Virendra Kumar Tiwari, the learned Presiding Officer, Labour Court, Dhanbad In M.J. Case No. 9 of 2016 (Annexure-6); whereby the said learned court has been pleased to allow the application filed under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act') and has directed the petitioner to pay an amount of Rs. 1,53,237/- for the period 12.10.1987 to 05.01.1996 together with cost.

4. On the merits of the main case, the learned counsel for the petitioner has submitted that the respondent was dismissed from service which was challenged before the Industrial Tribunal. An award was passed in the year 1992 whereby the respondent was reinstated with full back wages. The award was challenged by the petitioner before this Court in writ petition being C.W.J.C. No.1220 of 1993 (R). In the writ petition, there was an order to pay wages under Section 17B of Industrial Dispute Act, 1947 and also a direction was

issued to make payment of back wages to the extent of 50%. The writ petition was dismissed. The petitioner filed appeal being LPA No.457 of 2003. In the said LPA, it has been held that the respondent workman who was dismissed from service with effect from 1987 cannot be held to be automatically liable for entire back wages and, therefore, the respondent workman would be entitled only to 50% of the back wages, which he may have got under the interim order passed by this court.

5. Learned counsel submits that after the order passed in the LPA No.457 of 2003 dated 08.12.2011, the respondent, after a considerable gap, had filed a petition under Section 33-C (2) of the Industrial Dispute Act, 1947 before the learned Labour Court, Dhanbad which was numbered as M.J. Case No.9/2016 seeking payment of Rs.1,53,237/- on account of 50% back wages.

6. He submits that the specific case of the petitioner is that the entire amount of 50% back wages as directed by the writ court was already paid to the respondent and nothing was payable and therefore the impugned order directing payment of Rs.1,53,237/- is not sustainable in the eyes of law.

He submits that the factum of payment was admitted by the respondent workman even in the L.P.A. proceedings. The learned counsel has also submitted that the claim was a stale claim raised after 30 years from the date of dismissal and after 20 years from the date, the respondent was taken back into service in the year 1996 and the documents in support of payment were very old records and could not be produced before the learned court below.

7. Further point argued by the learned counsel for the petitioner is that the respondent in his petition filed before the learned labour court had only made a prayer for grant of 50% back wages to the extent of Rs.1,53,237/ but no claim of any interest was made. He has also submitted that by the impugned order, the learned Presiding Officer has not only granted the said amount of Rs.1,53,237/- but has also directed for payment of interest on the amount. He has also submitted that so far as interest is concerned, the same was beyond the relief prayed for by the private respondent before the learned court below

and therefore, the award of interest is also not sustainable in the eyes of law.

8. The learned counsel for the petitioner submits that notice be issued to the respondent and the execution proceedings be stayed. Findings of this Court.

9. The impugned order has been challenged on the following grounds: -

"(a) Whether the order passed by the learned Labour Court, Dhanbad is legal, valid and proper?

(b) Whether the learned Labour Court has erred in law in allowing the application of the respondent?

(c) Whether the learned Labour Court has erred in having failed to take into consideration the judgment dated 8.12.2011 passed by a Division Bench of this Hon'ble Court in L.P.A. No. 457/2003?

(d) Whether in view of the fact that the learned Counsel for the Respondent/Workman made a statement before the Division Bench of this Hon'ble Court in L.P.A. No. 457/2003 that in terms of the interim order dated 8.3.1994 passed in C.W.J.C. No. 1220/1993, 50% of back wages has been paid to the workman, the learned Labour Court has erred in holding that the Petitioner/Management has failed to prove that the amount of 50% of back wages have been paid?

(e) Whether in view of the fact that pursuant to the order dated 8.3.1994 passed by the Ranchi Bench of Hon'ble Patna High Court in CWJC. No 1220/1993(R), the workman was paid 17-B wages until he was reinstated/allowed to join vide order dated 12/13/2/1996, the learned Labour Court has erred in directing the petitioner to pay the wages for the period 12.10.1997 to 5.1.1996?

(f) Whether in view of the fact that L.P.A. No. 457/2003 filed by the Management of BCCL was allowed in part, holding that the workman is entitled only to 50% back wages, the learned labour court has erred in passing the impugned judgment?"

10. The order passed in LPA No. 457 of 2003 reflects the undisputed fact that the respondent was dismissed from service with effect from 11/12th October, 1987 which was subject matter of reference case no. 154 of 1989 by the Central Government Industrial Tribunal No. 1. It was held that the Management was not justified in dismissing the workman and a direction was issued for reinstatement

from the date of dismissal with full back wages and continuity of service.

11. The petitioner preferred writ petition being CWJC No. 1220 of 1993(R) and an interim order dated 08.03.1994 was passed for payment of 50% of back wages in addition to payment of 17B wages under the Industrial Disputes Act, 1947 and the Award was stayed. The writ petition was ultimately dismissed on 02.06.2003.

12. The petitioner preferred appeal being LPA No. 457 of 2003 wherein the Hon'ble Division Bench was of the considered opinion that the respondent workman who was dismissed from service with effect from 1987 cannot be held to be automatically liable for entire back wages and therefore, the respondent workman was now entitled to only 50% of the back wages which he may have got under the interim order passed by the Division Bench of this Court. The LPA was partly allowed with the aforesaid modification.

13. Thus, the award became final with aforesaid modification as directed vide order dated 08.12.2011 in LPA No. 457 of 2003 and the respondent was ultimately held to be entitled to only 50% back wages.

14. The respondent filed a petition under section 33 (C) (2) of the aforesaid Act of 1947 vide affidavit dated 11.03.2016 stating that vide letter dated 06.01.1996, he was allowed to resume duty and claimed 50% wages for the total period from 12.10.1987 to 05.01.1996 i.e 8 years , 2 months and 23 days and quantified the same as 1,53,237/- in terms of the High Court's order.

15. A written statement was filed by the petitioner primarily raising two points: -

i. The workman had raised the claim of 50% back wages after 20 years from being reinstated and after 30 years from the date of his dismissal and therefore the claim was a stale and time barred claim.

ii. Half of the full back wages from 03.01.1987 to 29.09.1992 i.e. upto the date of award were paid to the workman and for rest of the period, the workman was paid full wages of 17B of Industrial Disputes Act. It was also stated that the matter was examined by the management vide note-sheet dated 12.12.2011 and the management paid the amount under 17B of the Act of

1947. It was further stated that the management be allowed to submit the document which was available on date and also to adduce evidence to prove the facts.

16. The computation of back wages from 12.10.1987 to 05.01.1996 was not in dispute; 50% of back wages from 03.01.1987 to 29.09.1992 i.e. upto the date of award were said to have been paid and for rest of the period, full wages of 17B of Industrial Disputes Act were also paid. It was also stated that the matter was examined by the management vide note-sheet dated 12.12.2011 and that the management paid the amount under 17B of the Act of 1947 and a prayer was also made to enable the management to adduce evidence.

17. The learned court below, recorded that the petitioner had raised the issue of stale claim and also recorded that the petitioner did not produce any evidence to show that the payment was made in terms of the award/order passed in writ petition or in LPA No. 457 of 2003. In such circumstances, the learned court below held while deciding first point i.e. the point of maintainability that the petition under section 33 (C) (2) of the aforesaid Act of 1947 was maintainable.

18. The claim was decided under the second issue. It was recorded that of course the defences have been pleaded in the written statement but those defences were neither emphasized nor supported by any evidence. It was held that it was crystal clear that the claim of the applicant was genuine and defect raised by the present petitioner was not maintainable. The learned court below also recorded that the management failed to prove that any amount had been paid as per Section 17B of the aforesaid Act of 1947 and that the management did not produce any evidence to prove payment of any amount. The learned court below held that the applicant deserved payment of the dues and directed the petitioner to pay the computed dues of Rs. 1,53,257/-. Additionally, interest was also awarded although there was no direction by this Court in the earlier writ petition or in the L.P.A. regarding payment of interest.

19. The specific argument of the petitioner before this Court is that the 50% back-wages was already paid to the workman as recorded in the L.P.A. order and that the claim was a stale claim and the petitioner did not have the required evidence to prove that the amount was

already paid to the respondent -workman as they were very old documents.

20. From the perusal of the impugned order, it is apparent, the petitioner did not adduce any evidence before the learned court below to substantiate their stand that the payment was already been made although it was their specific case in the written statement that they shall produce evidence in support of their points raised in the written statement. The impugned order as well as the written statement does not reflect any reason for non -production of the evidences in order to substantiate that the payment was already made to the respondent workman. It was never the case of the petitioner that they were not in possession of the evidences for any reason whatsoever and there is no reason shown from the written statement or the impugned order for non-production of evidence in support of their stand.

21. Although an argument has been made by the learned counsel for the petitioner that before the Hon'ble Division Bench in the LPA , the workman had admitted the payment of the entire amount before this court but from the perusal of the order passed in the L.P.A. court no finding as such has been recorded that the amount was already paid to the respondent. Rather the operative portion of the order passed in the LPA reflects that this court recorded that the workman may have got the payment in terms of the interim order. The para 7 and 8 of the order passed in L.P.A. NO. 457 of 2003 is quoted as under: -

7. "Be that as it may, we are of the considered opinion that the respondent- workman who was dismissed from service with effect from 1987 cannot be held to be automatically liable for entire back wages and, therefore, the respondent- workman is now entitled to only 50% of the back wages, which he may have got under the interim order passed by the Division Bench of this Court in writ jurisdiction (as at the relevant time, writ petitions were heard by the Division Bench and subsequently it was finally decided by the learned Single Judge.).

8. In view thereof, with the above modification, this Letters Patent Appeal is partly allowed to the extent mentioned above."

22. Thus, the argument that the respondent had admitted before this court in L.P.A. that he had received the entire payment, is devoid of any merits. It is also important to note that no such plea was ever taken by the petitioner before the learned court below that the

respondent had admitted before this court in L.P.A. that he had received the entire payment.

23. So far as the point of staleness of the claim is concerned, this court is of the considered view that the award as a whole was subject matter of challenge before this court till the L.P.A. was finally decided on 08.12.2011 and the award was ultimately modified entitling the respondent workman to only 50% back wages. This court is of the considered view that the plea taken by the petitioner before the learned court below that the claim was a stale claim was ex-facie not a sound defence and the learned court below has rightly found that the claim was maintainable.

24. The case was filed before the learned court below by the respondent vide affidavit dated 11.03.2016 and in such circumstances the claim of the respondent cannot be said to be a stale claim or dead claim calling for any interference in writ jurisdiction.

25. In the judgement passed by the Hon'ble Supreme Court in the case of Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd., (1999) 6 SCC 82 passed in the context of section 10 and section 33 ( C ) of the Industrial Disputes Act , 1947 , it has been held in para 10 that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Industrial Disputes Act , 1947 and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. The Hob'ble Supreme Court also referred to the full bench judgement of Hon'ble Punjab and Haryana High Court in the case of Ram Chander Morya v. State of Haryana and held that the Punjab and Haryana High Court was not justified in prescribing the limitation of five years for getting the reference made or an application under Section 33-C of the Act to be adjudicated and it is not the function of the court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period.

26. The argument of the learned counsel appearing on behalf of the petitioner that the claim was a stale claim, is ex-facie not sustainable in the eyes of law in view of the fact that the parties were contesting their respective case arising out of the award and the liability of the petitioner stood finally crystalized only when the judgement was passed in LPA No. 457 of 2003 dated 08.12.2011. Article 137 of the Limitation Act is not applicable in the proceedings under Industrial Disputes Act and this Court is of the considered view that there has been no much delay in approaching the learned court below for payment of the back wages. Further, it was never the case of the petitioner before the learned court below that they were not in possession of evidences for any reason whatsoever, rather in the written statement it was clearly stated by the petitioner that the management may be allowed to submit the documents which is available on date and also adduce their evidence to prove facts stated in the written statement and a reference to the note sheet of the management dated 12.12.2011 was also made and it was stated in the written statement that from the note sheet it could be evident that the management had paid the amount under section 17B of the Act of 1947 . Even this document was not produced by the petitioner before the learned court below. In fact, the petitioner did not lead any evidence, neither oral nor documentary.

27. Thus, both the arguments advanced by the learned counsel for the petitioner i.e admission before the L.P.A. Court that the amount was already paid and that the claim was stale claim, are rejected.

28. In view of the aforesaid findings, the impugned order to the extent directing payment of Rs.1,53,237/- does not call for any interference by this court under Article 226/227 of the Constitution of India in absence of any illegality or perversity.

29. However, so far as direction regarding payment of interest on the aforesaid amount of Rs.1,53,237 /- is concerned, the same appears to be beyond the prayer made by the respondent before the learned court below and accordingly, notice is required to be issued to the concerned workman on this limited point.

30. Issue notice to the respondent on the aforesaid limited point regarding direction issued in the impugned order to pay interest on

Rs.1,53,237/- . The requisites etc. for the notice under speed post as well as ordinary process be filed by 03.04.2023. Office is directed to track the speed post-delivery and prepare proper office note in connection with the service of notice upon the sole respondent.

31. In the meantime, further proceeding in Execution Case No.41 of 2019 said to be pending before the Court of Civil Judge Junior Division I at Dhanbad is directed to be stayed subject to the deposit of Rs.1,53,237/- before the learned court below by 17.04.2023.

32. Post this case on 26.04.2023 awaiting service report.

(Anubha Rawat Choudhary, J.) Saurav/