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



National Boards employees Union, Rep. by its General Secretary, Dilip Nath v/s The State of Assam, rep. by its Secretary, Labour & Employment Department, Dispur & Others


Company & Directors' Information:- NATIONAL BOARDS LIMITED [Active] CIN = L20211AS1960PLC001196

Company & Directors' Information:- A-1 BOARDS INDIA PRIVATE LIMITED [Active] CIN = U20210MH2006PTC158764

Company & Directors' Information:- BOARDS AND BOARDS PVT LTD [Strike Off] CIN = U21012RJ1974PTC001587

Company & Directors' Information:- A P BOARDS PRIVATE LIMITED [Active] CIN = U21016HR2002PTC035003

Company & Directors' Information:- NATIONAL UNION CORPN PVT LTD [Strike Off] CIN = U51909WB1940PTC010240

Company & Directors' Information:- NATIONAL UNION LTD [Not available for efiling] CIN = U74999KL1951PLC000818

    WP (C) No. 85 of 2005

    Decided On, 23 March 2015

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE B.K. SHARMA

    For the Petitioner: A.C. Ray, Advocate. For the Respondents: B.S. Goel, G.A., M. Katakey, Advocate.



Judgment Text

Judgment & Order (Oral):

1. Heard Mr. A.C. Roy, learned counsel for the petitioner. Also heard Ms. B.S. Goel, learned State Counsel as well as Mr. M. Katakey, learned counsel representing respondent No. 4.

2. The petitioner, namely, National Boards Employees Union is said to be a registered Trade Union. The prayer made in the writ petition is to direct the respondent No. 1 to hold conciliation on the statement of demands and other matters arising between the parties i.e. the petitioner and the respondent No. 4 by a Conciliation Officer other than the respondent No.3. As stated in the writ petition, the respondent No.4 has neglected to pay due wages to its employees. Accordingly, upon raising of industrial dispute, the same was adjudicated upon and an ward was passed on 06/09/2002 by the learned Presiding Officer, Industrial Tribunal, Guwahati, providing for payment to the workmen represented by the petitioner as indicated in the award within 3 (three) months.

3. According to the petitioner, the respondent No. 4 did not take any steps to implement the above award. Consequently, a Bakijai proceeding bearing No. BJ. 2/2003 (Misc) was initiated, on which an order was passed on 22/08/2003 for adjudication of the properties of the respondent No.4. It is further stated in the writ petition that consequent upon such order, the Assistant Labour Commissioner, Kamrup, Guwahati, called both the parties to the dispute and on 30/12/2003, a settlement was reached. Consequently, the Bakijai proceeding was stayed. In para 3 of the writ petition it has been stated that inspite of such settlement, the respondent No. 4 after the initial payment indicated in the said paragraph, stopped further payment.

4. In the aforesaid circumstances, the petitioner union made further representations even on the issues which were not covered in the conciliation proceeding. In several paragraphs in the writ petition, a stand has been taken that during conciliation proceeding, the respondent No. 4 had agreed to pay some of the amount involved but has not cleared the entire amount. It is in the aforesaid circumstances, the petitioner has prayed for a direction to the respondents to hold conciliation proceeding.

5. In the counter affidavit filed by the respondents on 28/04/2005, the aforesaid plea of the petitioner has been denied. It has been stated that the respondent No. 4 has already paid 4 installments to the petitioner and out of 1474 workers, 29 workers have already received all the payment. For a ready reference, the stand of the respondents in their counter affidavit is reproduced below :-

'6. That since the Award of the Industrial Tribunal did not specify the amount to be paid by the respondent No. 4 to the workers, the then Assistant Labour Commissioner, Kamrup calculated that the respondent No. 4 was liable to pay an amount of Rs. 56,83,016.00 (Rupees Fifty six lacs eighty three thousand and sixteen only) to the workers. Thereafter, discussions were held between the petitioner and the respondent No. 4 regarding the payment of the said amount. Although the petitioner had submitted a proposal on 26.11.2003 but the terms and conditions were finalized in the Memorandum of Settlement executed on 30.12.2003 by both the parties in the presence of tdhe then Assistant Labour Commissioner. The Memorandum of Settlement provided that the amount of Rs. 56,83,016.00 shall be paid in two parts, i.e. Rs. 27.00 lacs in cash in 6 installments and the rest in the form of Bigha of land to each of the 74 workers. It was agreed by the parties that the payments shall constitute wages for 2 months (2 months wages shall be treated to be equivalent to the amount payable for Notice and 15 days pay on account of leave encashment) and the Bigha of land shall be a part of the retrenchment compensation and leave encashment in addition to the cash payment. The Settlement dated 30/12/2003 provided for the payment of the outstanding salary and wages and all other dues to the petitioner as full and final payment. The Settlement also provided that the respondent No. 4 shall be entitled to sell/dispose its assets and properties; that the petitioner shall be entitled to occupy the quarters of the respondent No. 4 till payment of their dues; that the petitioner shall withdraw all pending cases against the respondent No. 4 after receiving their dues; that the petitioner shall be given preference for employment as fresh employees in the event of the respondent No. 4 restarting etc. Thereafter, the petitioner vide application dated 15.03.2004 demanded payment of Gratuity, retrenchment compensation as well as modification of the payment clause in the Settlement dated 30.12.2003. On the basis of the said application, the Clause 1 of the Settlement dated 30.12.2003 was modified on 29.03.2004 in the presence of the Labour Officer, Kamrup wherein it was stated that out of the cash amount of Rs. 27.00 lacs, Rs. 200 lacs was to be deposited with the fund of the petitioner for reimbursing the litigation expenses incurred by the petitioner and another amount of Rs. 2.50 lacs being 10% of the remaining Rs. 25.00 lacs was also to be deposited with the Union fund as contribution of the workers. Regarding the other demands mentioned in the application dated 15.03.2004 of the petitioner, the Labour Officer on 29.03.2004 asked the respondent No. 4 to clarify it’s stand and accordingly, the respondent No. 4 vide letter dated 08.04.2004 complied with the WP(C) 85 of 2005 oral dated 23/03/15 Page 6 of 12 same. Despite all possible efforts by the respondent No.4, the Settlement could not be implemented fully due to the belligerent stand of the petitioner by frustrating the implementation of the Settlement. On 06.08.2004, the respondent No.4 submitted a Report to the Labour Commissioner, Assam explaining in details the reasons why the Settlement could not be fully implemented within 30.06.2004. It is pertinent to mention in this regard that out of 6 installments, the respondent No. 4 has already paid 4 installments to the petitioner and out of 74 workers, 29 workers have already received all the installments as well as the cash in lieu of their respective shares of land. The statements made by the petitioner in paras 4 and 5 of the writ petition, are, as such, not substantially correct.

7. That in the Settlement dated 30.12.2003, it was specifically mentioned that the petitioner and the respondent No. 4 would mutually carry out the process for identification and handing over the land to the workers. But the petitioner failed to provide any cooperation to the respondent No. 4 in the matter of allotment of land and the respondent No. 4 had to solely take all initiative in that regard. Although the respondent No.4 had put up notices on different dates inviting the workers to take possession of the land by furnishing necessary particulars, the petitioner for reasons best known, prevented the workers from responding to the said notices. This resulted in infighting amongst the workers, for which 28 workers approached the respondent No. 4 and opted to avail the cash equivalent to the value of Bigha of land. The respondent No. 4 consented to the said request of the said 28 workers and accordingly, paid to each of them, the cash equivalent to Bigha of land. After taking the cash equivalent of the land as well as the 5th and 6th installments, these 28 workers left the respondent No. 4 Company. Apart from the 28 workers, 1 workers has already availed his dues from the respondent No. 4 before the Settlement dated 30.12.2003 while 1 worker has not yet turned up to collect a single installment from the respondent No. 4. It is pertinent to mention in this context that 44 workers have refused to collect the 5th and 6th installments from the respondent NO. 4. Therefore, out of Rs. 56,83,016.00, the respondent NO. 4 has already paid Rs. 29,42,300.00 as per the Settlement and another amount of Rs. 2,00,496.00 has been deposited with the Bakijai Branch, Kamrup on 04.02.2005, totaling Rs. 31,42,796.00 (Rupees Thirty one thousand forty two thousand seven hundred and ninety six only). As such, out of the Certificate Amount, only an amount of Rs. 25,40,220.00 has remained as outstanding. The payments made by the respondent No. 4 is evident from the report of the Labour Officer dated 28.01.2005 and Money Receipt No. 4526508 dated 04.02.2005 issued by the Bakijai Branch, Kamrup. In the Bakijai Case, the Assistant Labour Commissioner is the Certificate Holder and the respondent No. 4 is the Certificate Debtor. Since the respondent No. 4 has already paid a substantial amount out of the original Certificate amount as stated above, the Assistant WP(C) 85 of 2005 oral dated 23/03/15 Page 8 of 12 Labour Commissioner, i.e. the respondent No. 3 herein is bound to inform the Certificate Officer to embark upon an enquiry for ascertaining the payments made by the Certificate Debtor. Since the petitioner is not a party in the Bakijai case, it has no locus standi to interfere in the said Bakijai case. The letters issued by the respondent No. 3 to the Certificate Officer are purely administrative in nature and the letters do not appear to be adverse to the interest of the petitioner. Moreover, the allegation of the petitioner about the respondent No. 3 being under the influence of the respondent No. 4 is stoutly denied. The respondent No. 4 has never influenced anybody in any manner and that apart, neither the respondent No. 3 nor any authority has done any favour to the respondent No.4. The allegations made by the petitioner in paras 6, 7 and 9 of the writ petition are baseless and devoid of any merit.

9. That the statements made in para 10 of the writ petition of false and concocted by the petitioner. As stated, Clause-4 of the settlement dated 30.12.2003 empowered the respondent No. 4 to sell/dispose its assets and properties. The petitioner had filed T.S. 273/2004 against the respondent No. 4 for declaration and permanent injunction. Along with the plaint, the petitioner also filed an application for temporary injunction namely, Misc. (J) Case No. 57/2004 for restraining the respondent No. 4 from selling/disposing its assets and properties. The learned Civil Judge (Senior Division) No. 3, Guwahati by his order dated 21.06.2004 was pleased to dismiss the said injunction application of the petitioner. Regarding the enquiry conducted by the Labour Officer, the deponent begs to state that he same is not admissible in a court of law since the enquiry was ordered and conducted in clear violation of the relevant provisions of law. Moreover, from a bare perusal of the said Report, it shall be evidence that the Report has been based only on surmises and conjectures of the Labour Officer. The findings and comments of the enquiry conducted by the Labour Officer only in the presence of the petitioner, clearly reflect the allegations of the petitioner. The respondent No. 4 by letter dated 18.09.2004 duly objected to the said enquiry and Report of the Labour Officer.

10. That with regard to the statements made in paras 11, 12, 13, 14, 15 and 16 of the writ petition, the deponent begs to state that the so called statement of demands raised by the petitioner is untenable in law. The Memorandum of Settlement dated 30.12.2003 executed by the petitioner and the respondent No. 4 towards implementation of the Award passed by the Industrial Tribunal had already settled the issue of paying statutory dues to the petitioner for stoppage of production at the factory. The respondent No. 3 is also not bound to comply with each and every allegation of the petitioner. There is nothing in the Industrial Disputes Act, 1947 whereby, a Conciliation Officer is bound to conciliate each and every matter and more so, when the issue is frivolous. Since the Labour Commissioner, Assam is not a party in this writ petition, neither any effective order or direction as prayed for by the petitioner nor any other relief can be given to the petitioner in the absence of the Labour Commissioner. The petitioner has failed to make out any ground for interference by this Hon’ble Court and as such, the writ petition is liable to be dismissed with compensatory costs.

12. That the deponent begs to submit that he Ref. Case No. 13of 2001 before the Industrial Tribunal arose due to the closure of production of the factory by the respondent No. 4 without paying the statutory dues applicable to the workers in the event of closure. After the Award of the Industrial Tribunal and the execution of the Settlement, the issue of payment of statutory dues for closure has already been settled. This fact is evident from a plain reading of the terms and conditions enumerated in the Clauses of the Settlement dated 30.12.2003. Clause 6 of the Settlement dated 30.12.2003 read as under :-

'6. In the event of the factory restarting, these employees would be given preference for employment as fresh employees by the management.'

From the language of Clause 6, it is evident that the petitioner has duly accepted and agreed that the factory of the respondent No. 4 is closed and also that in the event of the factory restarting, they shall be given employment as fresh employees by the respondent No. 4 implying thereby that the petitioner is no longer in the service of the respondent No. 4. Clause 1 of the Settlement states that he payments to the petitioner shall be made against the outstanding salary and wages and all other dues as full and final payment and Clause 3 of the Settlement states that the workers shall be entitled to occupy the company’s quarters till payment of their dues. It is pertinent to mention that the workers would have had no reason to vacate the accommodation offered by the respondent No. 4 after receiving the dues as per the Settlement if the workers continued to be in service as regular employees. By entering into the Settlement, the petitioner has admitted that they are no longer in continuous service under the respondent No.4. As such, there is no scope for any furt

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her payment of wages or any other dues to the petitioner. The language used in the said clause of the Settlement is plain and unambiguous and requires no interpretation. The claim of the petitioner about the non closure of the factory of the respondent No. 4 as well as their right to receive wages from 07.09.2002 or from any other date is, therefore, baseless and not tenable.' 6. The aforesaid affidavit dated 28/04/2005 was followed by further affidavit filed on 09/03/2006 in which it has been brought on record that the respondent No. 4 has already cleared all the dues payable as per the award referred to above. It has also been stated that the Bakijai Officer, Kamrup vide his memo No. BJ No. 2/2003(Misc)/65 dated 29/12/2005 issued the clearance certificate of the Bakijai case No. 2/2003 (Misc) to the Assistant Labour Commissioner, Guwahati. Thereafter, the Assistant Labour Commissioner, vide his Memo dated 28/02/2006 also issued certificate certifying that the respondent No. 4 has duly cleared all the dues and liabilities as per the award. 7. The aforesaid stand of the respondent No.4 in their affidavit has not been denied by the petitioner by filing any affidavit-in-reply for the last 9/10 years. That apart, this Court exercising writ jurisdiction cannot issue any direction to the authority to hold further conciliation proceeding. If the petitioner is still aggrieved, it will be open for him to pursue such legal remedy as may be available in law. 8. With the above observation, the writ petition stands disposed of.
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