Orissa High Court

Prasanna Kumar Biswal vs Ram Bali Prasad And Another on 8 May, 2023

          IN THE HIGH COURT OF ORISSA, CUTTACK
                           WP(C) No.2458 of 2017
                            (Through hybrid mode)

      Prasanna Kumar Biswal                           .......   Petitioner


                                     -Versus-


      Ram Bali Prasad and another                     ......    Opposite Parties

      Advocates appeared in the case:

            For petitioner            -     Ms. P.P. Mohanty &
                                            Mr. G.N. Mishra, Advocates

            For opposite parties -          Mr. Satyabrata Mohanty, Advocate
                                            (for opposite party no.1)
                                             Mr. S.P. Sarangi, Advocate
                                            (for opposite party no.2)

            CORAM:

            JUSTICE ARINDAM SINHA
            JUSTICE SANJAY KUMAR MISHRA
-------------------------------------------------------------------------------------
            Date of Hearing: 01.02.2023, 03.05.2023 and
            Date of Judgment: 08.05.2023
-------------------------------------------------------------------------------------

S.K. Mishra, J.

1. The Petitioner workman, being aggrieved by the award dated

23rd December, 2016 passed in I.D. Case No.30 of 2014, has

approached this Court. Vide the said impugned award, though the

Labour Court answered issue no.1 in favour of the petitioner workman holding that the termination of services of the petitioner workman by

the present opposite party management no.1, without compliance of

section 25-F of the Industrial Disputes Act, 1947, shortly, I.D. Act,

1947, is illegal and unjustified, while answering issue no.2, as to what

relief the petitioner workman is entitled to, the Labour Court awarded

a lump sum compensation of Rs.1,10,000/- to be just and proper with

an observation that the opposite party management no.1 has no work

under the opposite party management no.2.

2. It is pertinent to mention here that one of his co-workman

namely, Salila Pradhan was also illegally retrenched from service in a

similar manner on the same date i.e. on 1st September, 2013. Both the

petitioner and Salila Pradhan raised industrial disputes separately.

Because of inaction of the Conciliation Officer to conclude the said

proceeding within the stipulated time, both of them directly

approached Labour Court, Bhubaneswar separately in terms of the

provision enshrined under section 2-A(2) of the Industrial Disputes

Act, 1947, hereinafter referred to as 'I.D. Act, 1947' for brevity. The

complaint of the present petitioner workman was registered as I.D.

Case No.30 of 2014, whereas the complaint lodged by his co-workman

Salila Pradhan was registered as I.D. Case No.03 of 2015.

3. The case of the present petitioner workman and his co-workman

being same and similar and the employer of both of them being same,

WP(C) no.2458 of 2017 so also the cause of action being same, both of them filed identical

claim statements in their respective complaints. In response to the said

claim statements filed by both of them, the present opposite party

management no.1 also filed written statement with identical stand and

pleadings.

Similarly, the present opposite party management no.2, being

noticed by the Labour Court, Bhubaneswar also appeared and filed

identical written statements in both the I.D. cases i.e. I.D. Case No.30

of 2014 and I.D. Case No.03 of 2015. All the parties to the said I.D.

cases led similar evidence, which are almost identical. Finally, the

Labour Court passed two separate awards, both dated 23rd December,

2016, in I.D. Case No.30 of 2014, so also I.D. Case No.03 of 2015

with identical findings.

However, so far as relief granted, in view of the admission made

by the opposite party management no.1 before the Labour Court in the

present case, a lump sum compensation of Rs.1,10,000/- was granted

in favour of the present petitioner workman, whereas in case of Salila

Pradhan, in I.D. Case No.03 of 2015, an amount of Rs.1,60,000/- was

granted towards compensation. The workman in I.D. Case No.03 of

2015 preferred W.P.(C) No.2459 of 2017, whereas against the award

passed in I.D. Case No.30 of 2014, the petitioner workman has

preferred the present writ petition.

WP(C) no.2458 of 2017

4. Since pleadings of the parties, evidence on record, findings of

the Labour Court in both the cases, so also relief granted is almost

same and similar, on prayer made by the learned Counsel for the

petitioner, this matter was tagged up with W.P.(C) No.2459 of 2017

and both the matters were heard together.

5. A detailed judgment has been pronounced in W.P.(C) No.2459

of 2017 on 5th May, 2023 by this Court. Paragraphs 17 to 25 of the

said judgment are extracted below:

" 17. In view of the evidence on record as detailed above, so also settled position of law, we are of further view that it is a fit case to set aside the findings/observation, so also relief granted by the Labour Court while answering issue no.2. Accordingly, the relief granted vide issue no.2 is set aside.

18. In view of the averments made in the counter affidavit filed by the opposite party management no.1, a query being made, learned counsel for the petitioner workman confirmed that though the cheque dated 20th January, 2017 for an amount of Rs.1,60,000/- was sent to her client by post, the same was never encashed by the petitioner. Rather, the petitioner filed a misc. case in the present case seeking liberty to encash the said cheque without prejudice to his rights and contentions in the writ petition. However, the cheque has lapsed since long. Undisputedly, the alleged dues of the petitioner workman to the tune of Rs.1,42,169/- was lying with the opposite party management no.1 since September, 2013 i.e. almost for about last 10 years. It would have accrued huge interest had it been kept in shape of fixed deposit in any nationalized Bank.

That apart, there is a specific finding as to non-

compliance of section 25-F of the I.D. Act, 1947 by the opposite party management no.1. Also there is an admission by the M.W. no.1, who deposed for the management no.1, as to non-compliance of section 25-G of the I.D. Act, 1947 at

WP(C) no.2458 of 2017 the time of retrenching the workers, so also continuance of work even after termination of service of petitioner workman by way of refusal of employment by instructing the security personnel not to allow him to enter into the factory premises w.e.f. 1st September, 2013. Hence, we are of the view that the petitioner workman should be paid Rs. 3,00,000/- (Rupees three lakhs) over and above Rs.1,60,000/-, which has been paid to the petitioner workman, to compensate him for the period he remained unemployed, so also for illegally terminating him from service in contravention of sections 25-F and G of the I.D. Act, 1947 by the opposite party management no.1.

19. At this stage, it is apt to extract Paragraph 25(c) from the written statement filed by the opposite party no.1 in I.D. Case No.3 of 2015.

" That, the contents of paragraph no.-6 of the statement of claim filed by the workman is not correct, hence denied. It is submitted that the 1st party was a mere contractor and was working under the control and direction of the IFFCO. The payment was also given by the IFFCO, but the workman has not impleaded the IFFCO as party in the present reference, hence he is not entitled for any relief from the present 1st party and the present reference is bad in law in absence of the proper party."

(Emphasis supplied)

In view of such stand, as quoted above, opposite party no.2, at instance of the petitioner workman, was impleaded as management no.2 in I.D. Case No.30 of 2015.

20. Section 18 (3) (b) of the I.D. Act, 1947 mandates as to binding effect of a settlement or award. The same is extracted below.

"18. Persons on whom settlements and awards are binding.-

(3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3-A) of section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on -

(a) xxx

WP(C) no.2458 of 2017

(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;"

(Emphasis supplied)

21. Section 21(4) of the CLRA Act, 1970 mandates as to the responsibility of the principal employer for ensuring payment of wages to the contract labourer. Wages, as defined in clause (h) of section 2(1) of the CLRA Act, 1970, read with clause (vi) of section 2 of the Payment of Wages Act, 1936, includes the benefits flowing out of an award.

The said provision under section 21(4) and section 2 (1)(h) of the CLRA Act, 1970, so also relevant portion from the definition of "wages" in clause (vi) of section 2 and section 3(2) of the Payment of Wages Act, 1936 are reproduced below:

Extract from CLRA Act, 1970

"21. Responsibility for payment of wages.-(1) a contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.

(2) Every principal employer shall nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.

(3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorized representative of the principal employer.

(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.

"2(1) (h) "wages" shall have the meaning assigned to it in clause

(vi) of section 2 of the payment of Wages Act, 1936."

WP(C) no.2458 of 2017 Extract from Payment of Wages Act, 1936

"2(vi) "wages" means all remuneration (whether by way of salary, allowances, or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes-

(a) any remuneration payable under any award or settlement between the parties or order of a Court;"

"3. Responsibility for payment of wages.(1) Every employer shall be responsible for the payment of all wages required to be paid under this Act to persons employed by him and in case of persons employed,-

(a) In factories, if a person has been named as the manager of the factory under clause (f) of sub-section (1) of section 7 of the factories act, 1948 (63 of 1948);

(b) In industrial or other establishment, if there is a person responsible to the employer for the supervision and control of the industrial or other establishment;

              (c)       xxx
              (d)       xxx
              (e)       xxx

              (2)     notwithstanding anything contained in sub-section (1), it

shall be the responsibility of the employer to make payment of all wages required to be made under this act in case the contractor or the person designated by the employer fails to make such payment."

(Emphasis supplied)

22. Since the opposite party management no.2, because of the specific stand of opposite party management no.1 in its written statement, was impleaded as management no.2 in I.D. Case No.03 of 2015, the award passed in the said case, which is partially set aside as above, is also binding on the opposite party management no.2 in terms of section 18(3) (b) of the I.D. Act, 1947.

23. That apart, in view of the provisions enshrined under section 21(4) of the CLRA Act, 1970 and definition of "wages", as defined in clause (h) of section 2(1) of the CLRA Act, 1970, read with clause (vi) (a) of section 2, so also section

WP(C) no.2458 of 2017 3(2) of the Payment of Wages Act, 1936, we are of the view that it is also obligatory on the part of the opposite party no.2 to ensure payment of unpaid dues as well as compensation to the petitioner workman.

24. Accordingly, we direct the opposite party management no.1 to pay the petitioner workman Rs.3,00,000/- (three lakhs only) in addition to Rs.1,42,169/- (Total Rs.4,42,169/-) within four weeks hence. The management no.2 is directed to ensure payment of the said amount to the petitioner workman within the stipulated time, as directed. If required, it will pay the said amount at the first instance and recover the same from opposite party no.1 in terms of Section 21(4) of the CLRA Act, 1970, if so advised.

25. So far as reinstating/reengaging the workman in the establishment of opposite party management no.2, in view of the stand of both the managements that management no.1 is no more working in the establishment of management no.2, we direct the opposite party management no.2 to ensure reengagement of the petitioner through other contractors, including the establishment owned by the son of proprietor of opposite party no.1 establishment, if he is working at present, for carrying out the jobs, in which the present petitioner was deployed, at the earliest, preferably within a period of two weeks hence."

6. In view of the said judgment in W.P.(C) No.2459 of 2017, the

present case being identical to the said writ petition as detailed above,

we set aside the relief granted vide issue no.2 in the impugned award

passed in I.D. Case No.30 of 2014.

7. As the alleged dues of the petitioner workman to the tune of

Rs.94,546/- is lying with the opposite party management since

September, 2013 till date, in view of our judgment delivered in

W.P.(C) No.2459 of 2017, we direct the opposite party management

no.1 to pay the present petitioner workman a sum of Rs.2,00,000/-

WP(C) no.2458 of 2017 (rupees two lakhs) in addition to alleged admitted dues of Rs.94,546/-

(Total Rs.2,94,546/-) within four weeks hence. The management no.2

is also directed to ensure payment of the said amount to the petitioner