w w w . L a w y e r S e r v i c e s . i n



Bhumi Vikas Bank Fatehgarh v/s Presiding Officer, Labour Court-3, Kanpur & Others


Company & Directors' Information:- BHUMI CORPORATION PRIVATE LIMITED [Active] CIN = U45201MH2007PTC175222

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- VIKAS PVT LTD [Strike Off] CIN = U99999MH1949PTC007334

Company & Directors' Information:- THE VIKAS LIMITED [Strike Off] CIN = U24231UP1934PLC000592

    Writ-C. No. 37549 of 2001

    Decided On, 10 April 2019

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE JAHANGIR JAMSHED MUNIR

    For the Petitioner: K.N. Mishra, Abhishek Mishra, Advocates. For the Respondents: C.S.C., Abhishek Srivastava, Prakash Chandra Srivastava, Satyendra Kumar Pandey, Advocates.



Judgment Text

1. This Writ Petition has been filed by the Bhumi Vikas Bank, since renamed as U.P. Sahkari Gram Vikas Bank, District Office Fatehgarh, District Farrukhabad, acting through its Senior Manager praying inter alia for the following material reliefs, in the terms that the Petition was originally framed and filed:“(i) issue a Writ, Order or direction in the Nature of Certiorari and to quash the Order, dated 26.9.2000 passed by the Presiding Officer, Labour Court (III), U.P. Kanpur in Misc. Case No.27 of 1996 (Annexure-1 to the Writ Petition).(ii) issue a Writ, Order or direction in the Nature of Certiorari and to quash the impugned recovery Notice, dated 13.8.2001 issued by the Deputy Labour Commissioner, U.P. Kanpur (Annexure-2 to the Writ Petition).”2. Later on, through an amendment permitted by this Court vide Order, dated 26.3.2019, a further relief numbered as (ii-A) was added, which is to the following effect:“(ii-A) issue a Writ, Order or direction in the Nature of Certiorari and to quash the impugned recovery Notice/Certificate, dated 21.10.2001 issued by the Deputy Labour Commissioner U.P., Kanpur (Annexure-9 to the Writ Petition).”3. By the first relief, which is the most substantive of them all the Petitioner has sought to quash an Order, dated 26.9.2000 passed by the Presiding Officer, Labour Court-III, Kanpur in Misc. Case No.27 of 1996, filed under Section 33-C(2) of the Industrial Disputes Act, 1947. By the said order, the Application under Section 33-C(2) has been allowed. That application made by Respondent No.3, seeks to enforce an Award, dated 16.10.1989 passed by the Presiding Officer, Labour Court-5, Kanpur Nagar, in Adjudication Case No.106 of 1988, to the extent that in terms of the said Award, Wages for the period 1.7.1985 to 31.8.1990 in the sum of Rs.1,24,930.84 paise were claimed payable to the Third Respondent. It was alleged that the said money due was not paid and the same required calculation.4. The Labour Court allowed the said application ordering the Petitioner to pay the Third Respondent, a sum of Rs.1,24,930.84 paise. The other reliefs, that have been asked for, include a second in the Petition originally framed, and a third, introduced by way of amendment, relate to quashing the recovery Certificates issued by the Deputy Labour Commissioner, pursuant to the impugned Order, dated 26.9.2000 passed by the Labour Court, as above detailed. Those reliefs are, thus, consequential in nature.5. Heard Sri Abhishek Mishra, learned Counsel for the Petitioner, Sri P.C. Srivastava, learned Counsel appearing for the Respondent-Workmen and Sri Devendra Pratap Singh, learned Standing Counsel on behalf of Respondent Nos.1 & 2.6. It appears that the Third Respondent-Workman was engaged by the Petitioner-Bank on a Daily Wage basis, initially for a period of 90 days, looking to the exigencies of work at the Kannauj Branch of the Bank. His engagement on similar terms as a Daily Wager for a period not exceeding 90 days at a time was made by the Petitioner-Bank, whenever a temporary hand was required at the Kannauj Branch. According to the Petitioner's case, the Workman's last engagement at the Kannauj Branch was on 30.6.1984. It is further acknowledged by the Petitioner that looking to the requirements of the Bank, Respondent No.3 was engaged at Taiba Branch of the Bank for a period of 90 days, again w.e.f. 5.2.1985 on a remuneration of Rs.15 per day on temporary basis, and was last engaged at Taiba Branch of the Petitioner-Bank on 30.6.1985. According to the Petitioner, the Third Respondent worked a total of 183 days at the Taiba Branch.7. The Respondent-Workman impugned the discontinuance of his engagement as a Daily Wager w.e.f. 1.7.1985 by raising an Industrial Dispute, that was referred by the State Government for adjudication of the Labour Court, Kanpur vide Order, dated 30.8.1988. The dispute referred under Section 4-K of the U.P. Industrial Disputes Act went in the following terms:[Vernacular omitted]8. The proceedings before the Labour Court were contested by the Petitioner-Bank, but an Award was made on 16.10.1989, that was published on 13.12.1989 in Adjudication Case No.106 of 1988, whereby the reference was answered in favour of the Respondent-Workman and against the Petitioner, in terms that disengagement of the Respondent-Workman from service w.e.f. 1.7.1985 was neither lawful or proper. It was further awarded that the Respondent-Workman be reengaged with continuity of service and full Back Wages. Rs.200 were awarded as Costs.9. It is the Petitioner's case that in compliance with the Award, dated 16.10.1989, the Third Respondent was reinstated as a daily rated Employee at the rate of Rs.15 per day, vide Order, dated 7.5.1991, against a temporary vacancy of Assistant Branch Accountant and was paid arrears of Daily Wages for the period 1.7.1985 to 17.5.1991 at the rate of Rs.15 per day. It is also admitted to the Petitioner that subsequently, Daily Wages were enhanced to Rs.20 per day w.e.f. 15.3.1988, and Rs.30 per day w.e.f. 1.6.1991. It is asserted by the Petitioner that the Third Respondent received all arrears on 3.7.1992, and he further received arrears on account of difference in the Daily Wages. Some Government Orders, dated 30.7.1988 & 26.7.1990 appeared to have been issued, under which a Regularization Committee considered the cases of regularization for Daily Wagers/temporary Employees. The said Committee by its Resolution adopted in a Meeting, dated 21.7.1998, regularized the Third Respondent as a Branch Accountant, against a temporary vacancy with the Petitioner-Bank. The Respondent-Workman has been appointed subsequently in the Pay Scale of Rs.1200 to 2040 on a temporary vacancy vide Order, dated 15.3.1999, and his pay was fixed at Rs.1200 (Basic) at the time of his appointment, as such. He was posted to the Sri Nagar Branch in Garhwal Region. A copy of his appointment and posting Order, dated 15.3.1999 is on record as Annexure 5 to the Writ Petition. But, there is not much cavil about the fact that the Respondent-Workman accepted the aforesaid appointment, and continued in the Bank's service.10. In between, however, in the year 1993 while he was working as a Daily Wager, he filed a Writ Petition before this Court asking to be paid the same emoluments as a Regular Employee, instead of the daily-rated payment, that was his remuneration at that time. The basis of the Petition was violation of the principle of 'Equal pay for Equal work'. This Court entertained the Writ Petition, issued notice and by an Interim Order, dated 17.8.1993, ordered that the Respondent-Workman (Petitioner in the Writ Petition aforesaid) will be paid the same Salary as was being paid to a Regular Employee. The said Interim Order, dated 17.8.1993 was challenged by the Petitioner-Bank by way of Special Appeal No.584 of 1993. The Appeal came up for determination before the Division Bench on 7.7.1994. The Appeal was allowed and the Interim Order, dated 17.8.1993 passed in favour of Respondent-Workman by the learned Single Judge was set aside. A copy of the Judgment and Order, dated 7.7.1994 passed in Special Appeal No.584 of 1993 is on record as Annexure 6 to the Writ Petition. Even before the Writ Petition of 1993 was filed, and proceedings above described before this Court on the Writ side took shape, the Respondent-Workman moved an Application under Section 33-C(2) of the Industrial Disputes Act (the Central Act) before the Presiding Officer (Labour Court-V), U.P., Kanpur, enclosing with it a calculation of his emoluments worked out on the basis of a Regular Salary in four Schedules, being Schedule and . Schedule or Form, carries a Summary of the first three Schedules regarding Wages, that he claimed in terms of a Regular Salary due to him from 1985 to 1991. This he liquidated at a figure of Rs.1,24,930.84 paise. The basis of the application set out was the Award passed by the Labour Court on 16.10.1989 in Adjudication Case No.106 of 1988. It was urged in the application that by the said Award, the Respondent-Workman had been directed to be reinstated in service with continuity and all Back Wages, but that neither the Respondent-Workman was taken back in service, or were the arrears of his Salary and Bonus paid to him in terms of the Award. The said application was verified on 12.11.1990 and filed on the said date; or almost about that date. It was registered as Misc. Case No.189 of 1990 under Section 33-C(2) of the Industrial Disputes Act, 1947. It does not need repetition that in compliance with the Award, dated 16.10.1989, the Respondent-Workman was reinstated in service on 7.5.1991, initially on a Daily Wage of Rs.15 per day, the rate at, which he was working before he was disengaged. The rest of facts regarding revision of Daily Wages and subsequent appointment in the regular establishment w.e.f. 15.3.1999 are not in issue.11. The moot question, according to the learned Counsel for the Petitioner, is that the award of the Labour Court had been fully complied with by reinstating the Respondent-Workman in service, sometime after he filed the Application under Section 33-C(2), and, therefore, was there anything left to be enforced or capable of enforcement ? Admittedly, the Respondent-Workman was a Daily Wager when he was disengaged w.e.f. 1.7.1985, and the reference to the Labour Court was whether that disengagement of the Respondent-Workman was lawful and proper, attended with a further reference that in case it was illegal, to what relief the Respondent-Workman was entitled. The learned Counsel for the Petitioner submits that the Labour Court having answered the reference, in favour of the Respondent-Workman in terms that his disengagement w.e.f. 1.7.1985 was unlawful and improper, and that he be reengaged in service with continuity, and paid full Back Wages only meant that he should be reinstated on the terms that he was working, when he was disengaged. It also meant that he be paid Back Wages, on the same terms that he was receiving, when he was disengaged on 1.7.1985. Admittedly, the Respondent-Workman was a Daily Wager at the time of his disengagement. He was, therefore, directed to be re-engaged in the same capacity. Possibly, the Labour Court could not have directed that he be appointed to a post in a regular Pay Scale, as part of the regular establishment. It is for this reason that the Award was fully complied with, when the Respondent-Workman was reinstated on 7.5.1991, on a Daily Wage of Rs.15 per day. There was absolutely nothing to the Application under Section 33-C(2), even at the time it was filed, except reinstatement, which in any case was beyond its scope. The Respondent-Workman could not have asked for payment of Back Wages, calculated at the same rate and in the same manner as a Regular Employee that he did through the Application under Section 33-C(2). A perusal of three Schedules attached to the Application show that in the various Columns he has mentioned his Basic Pay, Dearness Allowances, Medical Reimbursement, House Rent Allowance, City Compensatory Allowance, which go with the Salary of a Regular Employee, and not a daily-wager.12. This Court is inclined to think that the learned Counsel for the Petitioner is right in his submission that it was never the intendment of the Award not only to declare the Respondent-Workman's disengagement as a Daily Wager unlawful, but also to reinstate him back in service of the Petitioner-Bank as a Regular Employee. This could never have been done by the Labour Court while passing the Award, dated 16.10.1989. The Labour Court could at best and did, in fact, reinstate the Respondent-Workman on the same terms as he was disengaged, that is to say, as a Daily Wager.13. It is thereafter that in due course not only the Respondent-Workman's Daily Wages were revised according to the decisions of the Bank, but the services of the Respondent-Workman were regularized by a Committee constituted for the purpose, that came about finally on 5.3.1999. It must be noticed here that during this period of time, the efforts made by the Respondent-Workman in the year 1993, while still a Daily Wager, to secure for himself the same emoluments as a Regular Employee, ultimately failed before the Division Bench in Special Appeal, after an initial success at the interim stage before the learned Single Judge. Though the Division Bench set aside the Interim Order and did not dismiss the Writ Petition, it appears that the Writ Petition was never pursued for further relief, as result of the same was all to obvious. A Daily Wager could not be paid Regular Salary, till he was regularized in service in accordance with law. This Court thinks that the impugned Order passed by the Labour Court, dated 26.9.2000, granting all arrears of Salary to the Respondent-Workman from 1.7.1985 to 31.8.1990, purportedly in terms of the Award and on ground that the Petitioner was ex parte, who did not contest or offer evidence in rebuttal, would not afford valid ground to the Labour Court to pass an order granting relief, that was never given by the Award passed by the Labour Court in Adjudication Case No.106 of 1988. The Award had never directed, as already held, the reinstatement of a Daily Wager on regular basis. When it was said that Workman be reinstated with continuity of service and Back Wages, all that was meant was that he be paid the arrears of Back Wages as a daily rated Employee, and not that the Respondent-Workman be paid Salary of a Regular Employee. The Order impugned, dated 26.9.2000 is, therefore, ex facie beyond the terms of the Award, dated 26.10.1989 passed in Adjudication Case No.106 of 1988. It is manifestly illegal.14. Learned Counsel for the Petitioner was made much of the issue that the impugned Order is illegal since it involves determination of entitlement of the Respondent-Workman to a certain emoluments, which could not have been done, unless the entitlement was based on a determination made in an Award or founded on a settlement, reached in accordance with the U.P. Industrial Disputes Act. In support of the said contention, Sri Abhishek Mishra, learned Counsel for the Petitioner has drawn the attention of the Court to a decision of the Hon'ble Supreme Court in Municipal Corporation of Delhi v. Ganesh Rajak and another, 1995 (1) SCC 235: LNIND 1994 SC 1606, where in Paragraphs 12 & 13 of the report their Lordships have held thus:"12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the Workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the Employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the Workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the Employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the Decree for the purpose of its execution.13. In these matters, the claim of the Respondent-Workmen who were all daily-rated/Casual Workers, to be paid Wages at the same rate as the Regular Workers, had not been earlier settled by adjudication or recognition by the Employer without which the stage for computation of that benefit could not reach. The Workmen's claim of doing the same kind of work and their entitlement to be paid Wages at the same rate as the Regular Workmen on the principle of “equal pay for equal work” being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other Workmen are alleged to have made a similar claim by filing Writ Petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the Writ Petitions filed by some other Workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these Respondents as well. The Writ Petitions by some other Workmen to, which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the Applications made under Section 33-C(2) of the Act by these Respondents.“15. The aforesaid principle laid down authoritatively by their Lordships in Municipal Corporation of Delhi v. Ganesh Rajak and another (supra) is firmly established. But, this Court is of opinion, that to the facts of the present case, it has no application. This case is one where the Workman-Respondent moved an application founded on rights emanating from an Award of the Labour Court, made in a regular adjudication case. Both the Workman and the Labour Court, however, were in error in ill-appreciating the terms of the Award to mean that what was granted by the Labour Court was reinstatement on a regular post, and salary, including arrears, attached to a regular post; not just reinstatement on a Daily Wage basis. The fact is that the Award was fully complied with by reinstating the Respondent-Workman on Daily Wage basis and paying him arrears due to a daily-rated Workman for the period in question.16. It must be noticed here that through a supplementary Counter Affidavit filed, the Respondent-Workman has removed all doubts about what he has understood of the Award, dated 10.6.1989, which would be evident from the averments made in Paragraphs 6, 7, 8, 10 & 11 of the said supplementary Counter Affidavit. That are extracted below:”6. That as by Award, dated 10.6.1989 the Petitioner's-Bank was directed to reinstate the deponent with full salary as well as with non breaking service, but the Petitioner's Bank by issuing Appointment Letter, dated 7.5.1991 did not comply with the Award in it's full term and as such deponent in pursuant to the appointment Letter, dated 7.5.1991 joined his service under protest on 23.5.1991. A true copy of the joining letter of the deponent is being filed herewith and marked as Annexure No. S.C.A. 1 to this Affidavit.7. That subsequently the Wages of the deponent was increased to Rs.30, which was accepted by deponent under protest by submitted Application, dated 18.9.1991. A true copy of the Application, dated 18.9.1991 is being filed herewith and marked as Annexure No. S.C.A. 2 to this Affidavit.8. That it is also relevant to mention here that as the Award, dated 10.6.1989 was not implemented fully the deponent made an application to Additional Labour Commissioner, Kanpur, requesting him to direct the Managing director of Petitioner's-Bank to implement the Award, dated 10.6.1989 in full terms and the Assistant Labour Commissioner in his turn by Letter, dated 16.9.1991 directed the managing director to implement the Award, dated 10.6.1989 in its full term. A true copy of the Letter, dated 16.9.1991 issued by Assistant Labour Commissioner is being filed herewith and marked as Annexure No. S.C.A. 3 to this Affidavit.10. That, however after filing the aforesaid Writ by the deponent as well as after long deal of persuasion the Petitioner's-Bank regularized the service of deponent by Order, dated 15.3.1999.11. That, however it is also relevant to mention here that as the Award, dated 10.6.1989 was not implemented properly. The deponent made an application under Section 33C(2) of the Industrial Dispute Act, which was numbered as Case No.189 of 1990, which letter on was re-numbered as Misc. Case No.27 of 1996 and was decided on merit by Order, dated 29.9.2000."17. Indeed, the said averments show that the Respondent-Workman in moving the Labour Court, under Section 33-C(2) thought that the Award, dated 10.6.1989 was not frilly implemented, by not reinstating him on a post, carrying Regular Salary. This relief after failing on the Writ side of this Court, he sought to secure under Section 33-C(2) of the Industrial Disputes Act (the Central Act). There is no cavil about the fact that the execution desired in the Application under Section 33-C(2) was not about any kind of a fresh determination of disputed rights, but what the Respondent-Workman thought was in inchoate implementation of the Award passed by the Labour Court, in the Adjudication Case. It is quite another matter, and undoubtedly so, that in the understanding of the Award, the Respondent-Workman and the Labour Court, both went disastrously wrong.18. It has further been argued by the learned Counsel for the Petitioner that the provisions of the Industrial Disputes Act, are not at all available to an Employee, governed by the provisions of the U.P. Cooperative Societies Act. There is no dispute on facts that the Petitioner is an establishment, which is a Cooperative Society, within the meaning of the U.P. Cooperative Societies Act, 1965. The Respondent-Workman is an Employee of a Cooperative Society, and it is not at all open to him to invoke the provisions of the Industrial Disputes Act, be it the U.P. Act or the Central Act. It is urged that in the case of an Employee of a Cooperative Society governed by the U.P. Cooperative Societies Act, 1965, all his remedies regarding his service interest are confined to the Cooperative Societies Act, which is a complete Code in itself to the exclusion of the U.P. Industrial Disputes Act, 1957. In this connection, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd. v. Addl Labour Commr., 2007 (4) LLN 32 (SC): 2007 (11) SCC 756: LNIND 2007 SC 58. In Ghaziabad Zila Sahkari Bank Ltd. v. Addl Labour Commr. (supra), it has been held in Paragraphs 61 & 65 of the report th

Please Login To View The Full Judgment!

us:“61. The general legal principle in interpretation of Statutes is that”the general Act should lead to the special Act“. Upon this general principle of law, the intention of the U.P. Legislature is clear, that the special enactment U.P. Cooperative Societies Act, 1965 alone should apply in the matter of employment by Cooperative Societies to the exclusion of all other Labour laws. It is a complete code in itself as regards employment in Cooperative Societies and its machinery and provisions. The general Act, the U.P. Industrial Disputes Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the U.P. Cooperative Societies Act. This is also clear from necessary implication that the legislature could not have intended head-on conflict and collision between authorities under different Acts. In this regard reference can be made to Coop. Central Bank Ltd. v. Addl. Industrial Tribunal, 1969 (2) SCC 43........”“65. We are therefore of the view that the Assistant Labour Commissioner's (ALC) jurisdiction was wrongly invoked and his Order, dated 15.3.2003 under Section 6-H, U.P. Industrial Disputes Act, 1947 is without jurisdiction and hence, null and void and it can be observed that, in view of the said general legal principle, it is immaterial whether or not the Government has enforced Section 135 (UP. Cooperative Societies Act) because, in any case the said provision (Section 135) had been included in the Act only by way of clarification and abundant caution.”19. The aforesaid decision of the Hon'ble Supreme Court clearly excludes the applicability of the Industrial Disputes Act (whether State or Central) in relation to a dispute, relating to the employment of a Workman in an establishment governed by the U.P. Cooperative Societies Act, 1965. In this view of the matter, the proceedings taken before the authorities, that is to say, the Presiding Officer (Labour Court-III), U.P. Kanpur, under Section 33-C(2) of the Industrial Disputes Act, 1947 are patently without jurisdiction, and the impugned Order passed there, ultra vires.20. In the result, this Petition succeeds and is allowed. The impugned Order, dated 26.9.2000 passed by the Presiding Officer (Labour Court-III), U.P., Kanpur in D.K. Saxena v. Manager, Bhumi Vikas Bank Ltd., Misc. Case No.27 of 1996, as also the impugned Recovery Notices, dated 13.8.2001 & 21.10.2001, issued by the Deputy Labour Commissioner, U.P. Kanpur are hereby quashed. Costs shall be easy.
O R