Uttarakhand High Court
Consequently vs Unknown on 13 September, 2023
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WPMS No. 687 of 2012
Hon'ble Sharad Kumar Sharma, J.
Mr. M.C. Kandpal, Senior Advocate, assisted
by Mr. Tarun Mohan and Devesh Kandpal,
Advocates, for the petitioner.
Mr. Yogesh Chandra Tiwari, Standing
Counsel, for the State of Uttarakhand.
The petitioner, who was a workman, has
prayed for quashing of the order dated 17th March,
2012, which has been passed by the Deputy Labour
Commissioner, Garhwal Division, whereby he has
prayed for, that he may be granted with a regular
salary of Pump Operator, on the basis of the decision
taken by the Labour Court in Adjudication Case
No. 165 of 1999, as decided on 21st November, 2001.
Consequently, also for the purposes of the grant of
the wages, he has invoked the provisions contained
under Section 6-H (1) and Section 33-C (2) of the
Industrial Disputes Act, 1947, praying for that he may
be granted, with the backwages.
The respondent had earlier approached this
Court and had filed Writ Petition (M/S) No. 248 of
2002, Garhwal Jal Sansthan Vs. Presiding Officer,
Labour Court, Dehradun and another, in which, the
petitioner has prayed for, that the direction may be
issued as against the impugned order dated 21st
November, 2021, passed by the Labour Court
Dehradun, in Adjudication Case No. 165 of 1999.
The said Writ Petition was finally decided by
the Coordinate Bench of this Court by a judgment
dated 11th August, 2008, whereby, the Coordinate
Bench has observed that the looking to the nature of
engagement of the workman, who is engaged in the
Department on the post of Pump Operator, since he
has worked for 240 days in every calendar year, it
was held that his termination was illegal and,
consequently, the shelter taken by the petitioner
before the Labour Court, and the finding as it has
been recorded therein by the Labour Court, does not
require any interference. The relevant observation
made by the judgment of 11th August, 2008, is
extracted hereunder:-
"6. I have heard the learned counsel for the
parties at length and perused the impugned award. It
is not disputed that the workman was engaged by the
department on the post of Pump Operator and he has
worked more than 240 days in every ear upto his
termination. The petitioners took shelter of
Government Order dated 16.05.1995 while the
Tubewell was operating much prior to the issuance of
the aforesaid Government Order. The labour court
has recorded finding of fact which calls for no
interference. I do not find any illegality in the
impugned award. However, the petitioner shall not
be paid any back wages. The writ petition is liable to
be allowed in part."
The consequential effect of the judgment of
th
11 August, 2008, which was rendered by the
Coordinate Bench on a Writ Petition (M/S) No. 248
of 2002, Garhwal Jal Sansthan Vs. Presiding Officer,
Labour Court, Dehradun and another, preferred by the
Garhwal Jal Sansthan, will amount to that the award
passed by the Labour Court has attained finality. If
we may have a reference to the award of the Labour
Court itself, the Labour Court has directed
reinstatement of the present petitioner, but however,
the backwages were declined to be paid. The relevant
observation made by the Labour Court is extracted
hereunder :-
"vr: eSa vfHkfu.kZ; nsrk gwW fd lsok;kstdksa }kjk vius
Jfed lsokjke iq= Jh bUnjflag] iEi vkijsVj dh lsok;sa fnukad
15&8&98 ls lekIr fd;k tkuk vuqfpr o voS/kkfud gS rFkk ;g
funsZ"k nsrk gWw fd mls lsok esa iquZLFkkfir fd;k tk; o fiNyh
vof/k dk iw.kZ osru o :1000/- okn O;; fn;k tk;A"
What becomes relevant is the direction given
in the last part of the award, that the petitioner was
permitted to be reinstated into the services, and for
the earlier period of services rendered by him, he was
directed to be paid with entire backwages, plus
Rs.1,000/- as a cost.
It is an admitted case of the petitioner, that
consequent to the aforesaid judgment, the petitioner
has been reinstated into the services, and thereafter,
he has been paid with the wages as it was payable to
the petitioner, and consequently, in pursuance to the
direction issued by the judgment of this Court, he was
paid with the minimum of the wages.
As far as the petitioner's claim for invoking the
provisions contained under Sections 6-H (1), the
same has been adjudicated by the Labour Court by
the impugned order dated 17th March, 2012, whereby,
the petitioner's application under Section 6-H (1) has
been rejected on the ground, that it will be apt that the
provisions contained under Section 6-H (1) would not
be applicable because since there being a dispute of
wages, in that eventuality, the appropriate recourse
available to the petitioner for determination of his
wages, would have been to invoke Section 33-C (2).
The direction as given therein the award, does
not find any illegality as such because enforcement of
an admissible wages could be done only by virtue of
filing of an application under Section 33-C (2) and
not by way of invoking the provision contained under
Section 6-H (1) of the Industrial Disputes Act.
Thus the reason which has been assigned by
the Court for rejecting the application holding that the
provisions contained under Section 6-H (1) would not
be available to be made applicable to the present
applicant is absolutely justified because, even if the
language of Section 6-H (1) is taken into
consideration, it only contemplates for the recovery
of the money due from an employer, which may not
be a case herein in accordance with direction of the
award, and also of the earlier judgment as rendered
by the Coordinate Bench, and rather, once he has
been directed to be reinstated with the backwages,
that will be the only admissible amount due to be
paid, which could be made payable to be made under
Section 33 of the Industrial Disputes Act, which
provides for, that where any money is due to be paid
to the workman from an employer "under a
settlement or an award", the same could be
claimed under Section 33-C (1) and not by way of
invoking the provisions contained under Section 6-H
(1).
Thus the observation made by the learned
Labour Court while rejecting the application under
Section 6-H (1), leaving it open for the applicant to
file an appropriate applicable under Section 33-C (2),
does not suffer from any legal vices, quite apparently,
if it is read in consonance with the award rendered in
his favour by the learned Labour Court on 27th
March, 2001.
In that eventuality, the impugned order, which
is under challenge in the instant Writ Petition
rejecting the application under Section 6-H (1) of the
present petitioner, does not suffer from any illegality
as such to be interfered under Article 227 of the
Constitution of India.
Thus, the Writ Petition lacks merit with regard
to the subject involved for consideration, and the
same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
Dated 13.09.2023
Shiv
