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SRI MANVIR SINGH & OTHERS versus A.D.J./PRESIDING OFFICER & ORS.

High Court of Judicature at Allahabad

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Sri Manvir Singh & Others v. A.D.J./Presiding Officer & Ors. - WRIT - C No. 47597 of 2004 [2005] RD-AH 2191 (30 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Civil Misc. Writ Petition No. 47597 Of 2004

Sri Manvir Singh & Others

Vs

                          The Addl. District Judge/Presiding Officer,

                       Nagar Mahapalika Nyayadhikaran, Agra & Ors.

  Counsel For petitioners   (1) Sri Shyam Narain, Advocate.

                                          (2) Sri Sudhanshu Narain, Advocate                      

               For respondents (1) Sri Pankaj Mithal, Advocate.

                                          (2) Standing Counsel

                                              Connected with

Civil Misc. Writ Petition No. 41927 of 2002

     Executive Engineer Vs Jai Singh

Civil Misc. Writ Petition No. 41928 of 2002

Executive Engineer Vs Rakesh Kumar Tyagi

Civil Misc. Writ Petition No. 41929 of 2002

Executive Engineer Vs Hukum Singh

Civil Misc. Writ Petition No. 41930 of 2002

Executive Engineer Vs Suresh Chand

Civil Misc. Writ Petition No. 41931 of 2002

Executive Engineer Vs Yogendra Singh

Civil Misc. Writ Petition No. 41932 of 2002

Executive Engineer Vs Bhupendra Singh

&

Civil Misc. Writ Petition No. 41933 of 2002

Executive Engineer Vs Madan Lal Sharma

Counsel For petitioners:        Sri Pankaj Mithal, Advocate.

  For respondents :     (1) Sri V.S.Kushwaha, Advocate.

   (2) Standing Counsel

                                                                ~~~~~~

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition and the connected writ petitions are knit by cord of common fact and question of law, hence are being decided by the judgment in Writ Petition No.47597 of 2004 which will govern the decision in the connected writ petitions also.

The petitioners, 12 in number, were employed by the U.P. Avas Vikas Parishad and were working at Agra under the Executive Engineer as Muster Roll employees on daily wages. An industrial dispute about the regularization was pending before the learned Labour Court, Agra. During the pendency of the said dispute the services of the petitioners and other workmen were terminated on 24.6.1996 without obtaining any approval as required under Section 6 (E) of the U.P. Industrial Disputes Act from the court concerned.

Consequently the petitioners made a complaint/application under Section 6-F to the Labour Court which was registered as Misc. Case No. 1/1996. The application was allowed by the Labour Court vide award dated 9.5.1997 (which was enforced by publication on the notice board on 18.9.1997) setting aside the order of termination of the workmen and directing the employer to reinstate them in service with full back wages.

The petitioners, however, were not reinstated by respondent no. 3 nor their back wages were paid to them as directed under the award of the Labour Court dated 9.5.1997. It appears that on an undertaking relinquishing their claim for back wages, i.e., for the period 24.6.1996 up till the date of rejoining by the petitioners, the U.P. Awas Evam Vikas Parishad reinstated the petitioners on 24.1.1998.

The petitioners filed a joint application on 16.9.2002 under Section 15 (2) of the Payment of Wages Act before the Payment of Wages Authority claiming back wages under the award of the Labour Court aforesaid. The authority allowed the application of the petitioners vide order dated 27.2.2004 (Annexure 6 to the writ petition).

Aggrieved by the order the employer filed Appeal No. 169/2004 under Section 17 of the payment of Wages Act which was allowed by the respondent no. 1 rejecting the appeal vide order dated 16.10.2004 in favour of the respondent.

Learned counsel for the petitioners has assailed the order of the appellate court that the petitioners and their family members were on the verge of starvation; the education of their children was also stopped, besides other economic difficulty faced by them and their family; hence they were compelled to give an undertaking not to claim back wages under the award as they had no choice. The learned counsel submits that the petitioners under the aforesaid compelling circumstances had to give the undertaking to the employer (respondent no. 3) on 5.1.1998 for not claiming their back wages and it is only thereafter that the petitioners were reinstated in service by the employer on 24.1.1998 though the award of the Labour Court dated 9.5.1997 had become final and had not been challenged by the employers. It is also submitted that the award of the Labour Court having become final between the parties, as such non-payment of back wages to the petitioners by the employer amounts to illegal deduction of the wages of the petitioners and as such the Authority appointed under the Payment of Wages Act had jurisdiction to entertain the application in view of Explanation 1 to Section 7 (1) of the Payment of Wages Act. Any other deduction whether by way of payment of any amount by the workman to the employer or agent or under any agreement is illegal and void and prohibited by Section 23 of the Payment of Wages Act. The written undertaking is also illegal on the ground that Section 23 of Payment of Wages Act prohibits it.

It is submitted that the apex court in Mohd. Salim Uddin Vs Misri Lal and another, A.I.R. 1986 S.C. 1019, has held that the petitioners could not be deprived of their wages on the principle of "Pari delicto" (equally guilty) as the said principle does not apply in a case of weaker party. Since the undertaking was not given in any conciliation proceedings between the parties and is also not a registered under Section 6-I of the U.P. Industrial Disputes Act, it is not binding as held in: -    

1- Ramala Sahkari Chini Mills Vs Deputy Labor Commissioner & Others, 2005 (104) F.L.R. 985

2- Wimco Vs Workmen, A.I.R. 1973 S.C. 2650 (Para 10)

Reliance has also been placed on S.P.Srivastava Vs Banaras Electric Light & Power Company, 1968 A.L.J. 257 (F.B.), wherein it has been held that no terms of agreement can override a provision of a Standing Order.

The counsel for the respondents contends that all the petitioners voluntarily of their own free-will and without any pressure from any officer or employee of the U.P. Avas Evam Vikas Parishad gave a written undertaking to the Housing Commissioner on 5.1.1998 relinquishing their claim for back wages, i.e., for the period 24.6.1996 till the date of re-joining. On the basis of the said unilateral undertaking of the petitioners they were reinstated in service on 24.1.1998 and were not paid back wages for the period 24.6.1996 to 24.1.1998. It is stated that the petitioners never applied for the enforcement of the award of the Labour Court under Section 6-H (1) of the U.P. Industrial Disputes Act, 1947 or 33-C of the Industrial Disputes Act, but straightaway filed application under Section 15 of the Payment of Wages Act, 1836 claiming back wages for the above period 24.6.1996 to 24.1.1998. It is stated that in the Appeal 169/2004 preferred by the Parishad from the order/direction dated 27.2.2004 passed by the Payment of Wages Authority in Case No. 3/2003, it was held that the petitioners are not entitled to back wages as they themselves have relinquished their claim by giving an undertaking.

Rebutting the contentions the learned counsel for the respondents submits that the petitioners have placed reliance upon a decision of this Court in Ramala Sahkari Chini Mills Ltd. Vs Deputy Labour Commissioner, Meerut & Others, 2005 (5) A.W.C. 4022 wherein the workman on the dictates of the Management gave up his claim for back wages under an agreement which was not registered. Therefore, recovery under Section 6-H (1) of the U.P. Industrial Disputes Act was held to be justified. Thus from this case also the first argument of the Parishad finds support inasmuch as the proper course open to the petitioners was to get the award enforced and to recover the back wages, if any, under Section 6-H (1) of the Act. The application under Section 15 of the Payment of Wages Act, as such was not maintainable. In the present case there is no material on record to establish that the undertaking given by the petitioners was not voluntary or was given under pressure. Relying upon 1990 (1) ALJ 273, 2001 (91) F.L.R. 1023 and 1997 (77) F.LR6851990 (1) ALJ 273, 2001 (91) F.L.R. 1023 and 1997 (77) F.LR. 685, he submits that the petitioners have no right to resile from their undertaking. He further submits that the second submission of the petitioners that they have a choice either to apply under Section 15 of the Payment of Wages Act or under Section 6-H (1) of the U.P. Industrial Disputes Act is also not tenable. It is urged that the petitioners have a right to choose the forum but the award of the Labour Court made under the provision of U.P. Industrial Disputes Act cannot be enforced by recourse to the provisions of Payment of Wages Act inasmuch as the said Act itself provides for the procedure of enforcement of the award and for recovery of the dues under it. In support of his contentions reliance has been placed on Union of India Vs Shri Punni Lal and others, J.T. 1996 (09) S.C. 740.

It is urged that in the aforesaid case the Hon'ble Supreme Court has categorically stated that the authority under the Payment of Wages Act has no inherent jurisdiction in the matter to entertain the claim for payment of back wages, therefore, the only remedy open to the petitioners, if any, was to proceed and recover the back wages under Section 6-H (1) of the U.P. Industrial Disputes Act. In this respect reliance has also been placed upon 2001 (91) F.L.R. 1023 (Madras) S. Gopalkrishnan Vs Management of South Aircot Saravana Bawa Consumers Co-operative Stores Ltd. and Others, as such the undertaking given by the petitioners voluntarily is to be distinguished from a compromise settlement contract or agreement. The submission of undertaking is a unilateral act whereas a contract, agreement or settlement is bilateral in nature, therefore, it is not covered by Section 23 of the Act and cannot be treated as null and void.

The moot point for consideration is whether the said undertaking by the workmen relinquishing their back wages under the award was unilateral as claimed by the employers or forced as claimed by the workmen and what was its effect in the aforesaid circumstances.  

The workmen were out of employment from June 1996. The socio-economic condition during the pendency of the industrial dispute would certainly have deteriorated. This finds support from their case that not only the workmen were on the verge of starvation but the education of their children had also been stopped. Had they been gainfully employed, education of their children would not have been stopped. It may be that no officer or employee of the U.P. Awas Evam Vikash Parishad had pressurized them for giving an undertaking by any overt act or in express words, but circumstances were powerful enough coupled with the ''inaction' or will to implement the award to force the employees to give an undertaking. Circumstances are a powerful weapon to obliterate even the mightiest.

The contention of the learned counsel for the respondents that the workmen did not approach under Section 6-H (1) of the U.P. Industrial Disputes Act for implementation of the award which was the only remedy, also has no force.  The workmen had a choice of forum, i.e., to get the award implemented under Section 6-H (1) of the U.P. Industrial Disputes Act, 1947 and before the Authority under the Payment of Wages Act which also had jurisdiction in view of ''wages' defined in Section 2 (vi) of the Act.

The term ''wages' as defined in the Act is an inclusive definition. It includes "(a) any remuneration payable under any award or settlement between the parties or order of a court." If the officers of the U.P. Awas Vikas Parishad were so righteous, they being officers of State Government ought to have acted like a model employer and implemented the award in letter and spirit and not have waited for the workers for initiation of proceedings for implementation of the award. It is obvious that the employers cannot take advantage of their stronger position by creating circumstances forcing the workmen to give an undertaking, for complying with the award, by not reinstating them.

The forum under the Payment of Wages Act was more beneficial to the workmen as it provided for compensation also. There is no bar under the Act that recovery under the award cannot be made. Rather Section 2 (vi) specifically provides that the amount can be recovered under the Payment of Wages Act.

 

I disbelieve the case set up by the employers that the undertaking was unilateral. It is evident that the award was enforced by publication on notice board on 19.9.1997. The workmen were not reinstated immediately thereafter when they reported for joining. It was only after they had given the said undertaking that they were reinstated by the employers and not earlier. The workmen were not enlightened in dreams that they would be reinstated only after giving an undertaking. They must have come to know from some quarters that they shall be reinstated after giving undertaking. The mightier organization could afford to wait but not the workmen whose resistance had waned during all these years of litigation in fighting for their rights against the illegal and unjustified action of termination of their services. Neither they nor could their families have survived to receive the fruits of the award had not they succumbed to the circumstances created by the employers.

It is not in dispute that the services of the workman were terminated on 24.6.1996 and were reinstated on 24.1.1998 by the employers. It is also admitted fact that no approval had been taken by the employers as required under Section 6-F of the U.P. Industrial Disputes Act, 1947 and that by award dated 9.5.1997 reference was decided in favour of the workman holding the action of termination of services by the employers as illegal and unjustified granting relief of reinstatement with full back wages to them.

The award of the Labour Court was not challenged by the Parishad and became final between the parties. It was legal and moral duty of the Parishad to have implemented the award in the circumstances, but no action was taken by it, even the workmen were not issued any letter calling upon them to join their duties. On the contrary the respondents frustrated the efforts of the workmen for joining their duties whenever they approach the employers.

To wait for direction to be issued for compliance of the award by an authority or court is not proper for an instrumentality of Corporation or a limb of the State Government. It has to be a model for the people. The Parishad should have implemented the award immediately on its receipt and ought not to have waited for said ''unilateral undertaking' or an action for enforcement of the award under Section 6-H (1) of the U.P Industrial Disputes Act, 1947.

It is settled position of law that a settlement of an award can be substituted by an award or a registered settlement under the U.P. Industrial Disputes Act, 1947, but an award which has become final between the parties cannot in any circumstances be varied by any unilateral undertaking said to be given by a workman relinquishing his right to back wages under the award which even otherwise has been denied by the workman to have been given on his own and cannot therefore be sustained.

For the reasons stated above the writ petition succeeds and is allowed.  No order as to costs.

The connected writ petitions filed on behalf of the employer U.P. Avas Evam Vikas Parishad, 5-C-115, Hanspuram, Hamirpur Road, Kanpur through their Executive Engineer are dismissed.

Let a copy of this judgment be placed on the record of the connected writ petitions.

Dated: 30.8.2005

Rpk/        


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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