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Allahabad Development Authority,Allahabad v. Om Narain Gaur & Others - WRIT - C No. 4409 of 2001  RD-AH 146 (3 January 2006)
COURT NO. 26
CIVIL MISC. WRIT PETITION NO. 4409 OF 2001
Allahabad Development Authority, Allahabad
Om Narain Gaur and others
HON. SHISHIR KUMAR, J.
The present writ petition has been filed by the petitioner for quashing the order / award dated 7.6.2000, Annexure-5 to the writ petition passed by respondent no.2 in Adjudication Case No. 41 of 1997 and for issuing a writ of mandamus commanding the respondents not to enforce the impugned award dated 7.6.2000.
The facts arising out of the present writ petition are that the petitioner submits that respondent no.1 was never in the employment of the petitioner but on the basis of the award of the Labour Court dated 28.10.1994 raised by respondent no.1 which was in his favour and the relief of reinstatement was granted and in view of the award Rs.1,55,400/-were paid to respondent no.1 on 28.11.1996. A writ petition challenging the award-dated 2.5.1995 was filed before this Court, which was numbered as Writ Petition No.25082 of 1992.
After receiving the aforesaid amount, respondent no.1 has never worked in the office of the petitioner but in the year 1997, he made an application before the Industrial Court under Section 6-H (2) of the U.P. Industrial Disputes Act read with Section 33-C (2) of the Industrial Disputes Act, 1947 (in short the Act). The petitioner submits that he has filed a detailed objection before the Court stating therein that the respondents have never worked in the office of the petitioner and after the award also, they have never turned up and they are not working, therefore, they are not entitled to get any salary from 29.10.1994 to January 1997. An objection was also raised before the Court that the application under Section 33-C (2) of the Act itself is not maintainable as the respondent no.1 was a daily wager and when he worked, the payment had been made. The principle of ''no work no pay' is applicable in the case, as respondent no1 has not worked during the aforesaid period. In para 5 of the said objection it has also been stated that for the amount claimed, respondent no.1 is not entitled. The Labour Court vide its order dated 7.6.2000 has passed an order directing the petitioner to pay the amount as it is being paid to the muster roll employees and if the payment is not made within the period of one month, the petitioner will be liable to pay 12% interest on the said amount. Aggrieved by the aforesaid order dated 7.6.2000, the petitioner has approached this Court.
While entertaining the writ petition on 7.2.2001, this Court has passed an order that the order dated 7.6.2000 will remain stayed subject to only back wages are concerned. As regards reinstatement of respondent no.1 it was directed that on furnishing joining report by respondent no.1, the petitoner shall permit him to work and pay the current wages. The petitioner further submits that aggrieved by the aforesaid order dated 7.2.2001, which was an interim order, the petitioner had approached the Apex Court but the Apex Court had also rejected the contention of the petitioner. Now a submission has been made that there was a dispute regarding working of the petitioner whether after the award of the Labour Court dated 28.10,.1994 in Adjudication Cases No.104 , 113, 114, 115,117,118 and 120 of 1989, as the workmen have not worked and they were not working, as such the question to be decided by the Court was that if they are not working, whether they are entitled to any wages. When the specific plea regarding non-functioning of the respondent-workmen was taken by the petitioner, the Industrial Court was obliged to decide this question but as the same has not been decided and only direction has been given to pay the wages, therefore, the order is liable to be quashed. It has further been submitted on behalf of the petitioner that the application under Section 33-C (2) of the Act filed before the Labour court itself was not maintainable because it was to be decided whether the workman is working with employer or not. The burden of proof lies on the workman and the Tribunal cannot shift the initial burden on the employee.
Reliance has been placed by the petitioner upon a judgment reported in 2005 (107) F.L.R. Page 642, Ramesh Watch Co. Vs. Additional Industrial Tribunal-cum- Additional Labour Court, Hyderabad and has submitted that the inquiry under Section 33-C (2) in such type of cases would have to be proceeded by an inquiry into existence of right and such an enquiry is incidental to the main determination which has been conferred on the Labour Court under Section 33-C (2) of the Act. In such a way the counsel for the petitioner submits that the award passed by the Labour Court is liable to be set aside as the same was not maintainable.
On the other hand the counsel for respondent no.1 has submitted that finality has been attached to the award dated 2.5.1995 as the writ petition filed by the Development Authority has already been dismissed by this Court vide order dated 27.9.2002 in Writ Petition No. 25082 of 1995. It has further been submitted on behalf of the respondents that when the workman was not permitted to join his duties and was not being paid salary, then he filed an application before the competent court for payment of the wages, which were due to him. The application under Section 33-C (2) was maintainable, as in the earlier Adjudication Case the Labour Court had granted an award in favour of respondent no.1.
I have considered the submissions made on behalf of the petitioner as well as on behalf of the respondents and have perused the record. It is clear from the record that the various persons had approached the Labour Court and all the claim petitions were clubbed and Adjudication Case No.104 of 1999 was made the leading case and the award has been given in favour of the workman giving relief of reinstatement- vide its order dated 28.10.1994. It is the admitted case of the parties that the award-dated 28.10.1994 has become final and the writ petition, which was filed by the Degvelopment Authroity petitoner, has already been dismissed. In the counter affidavit filed on behalf of the respondents in Writ Petition No. 25082 of 1995 it has clearly been stated that the petitioner inspite of the order passed by the Labour Court and inspite of the fact that no interim order has been granted, they have not been permitted to join and has not complied with the provisions of Section 17-B of the Act. In my view as the writ petition has already been dismissed against the original award, therefore, the respondent no.1will be treated to be an employee of the petitioner, therefore, the Industrial Court has rightly entertained the application under Section 33-C (2) of the Act and has directed the petitioner to pay the wages from 1994 to 1997. There was no dispute before the Labour Court regarding the relationship of employer and employee because that has already been settled in Adjudication Case No.104 of 1989. The petitioner has failed to prove from the record that the respondent-workman was given opportunity to join but he had not deliberately joined the service inspite of direction and notice, therefore, he is not entitled for the wages.
In view of the aforesaid fact, I see no justification to interfere in the order passed by the Labour Court on 7.6.2000. The writ petition is devoid of merit and is hereby dismissed. No order as to costs.
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