Rakesh Tiwari, J.
1. Heard Smt. Kirtika Singh for the petitioner and perused the record.
2. The application has been filed for recall of the order dated 25.11. 2003 dismissing the writ petition for want of prosecution. The ground taken in the application is that she failed to mark the case in the list of 25.11.2003, as such no counsel could appear from the Side of the petitioner when the case-was taken up. The nature of work of an advocate is professional, as such there is no question of exoneration of such mistakes on their part, as such no sufficient cause has been shown for restoration of the writ petition.
3. I have gone through the record at the instance of the learned Counsel for the petitioner who states that the matter may be decided on merits.
4. From the record I find that this petition has been filed for quashing the award of the Labour Court dated 25.06.1984 enforced by publication on the notice board on 23.8.1084. The award arose of a reference made h the State Government vide reference order No. 6977 (Shra. Aa.)/36 Shram 1 CB. 1328 (Kanpur) 81 dated 4.10.1983 under Section 4-K of the U.P. Industrial Disputes Act for the adjudication of an industrial dispute between M/s Swadesh Cotton Mills and their workman Hardaya Narain Misira. The terms of reference are as under:
Kya scvayojkon dwara apney shramik Hardaya Narain Misra putra Sri Deviratan Misra, senior lipik, ticket No. 88459 shift general, price control vibhag ko incharge price control ka pad va tadnusur vetan na diya jana uchit athwa vaidhanik hai? Yadi nahin to vivadit shramik kya/labh anutosh (relief) paney ka adhikari hai tatha kis tithi sey avam kin anya vivaran sahit?
5. The Labour Court has given the findings:
I have gone through the pleadings of the parties, the documents filed by the workman and the oral evidence produced by the parties and have also he heard representatives appearing for the two parties. It is the common case of both the parties that H.N. Misra workman is working as a senior clerk in M/s Swadeshi Cotton Mills. It is also conceded by both the parties that there was a post of Incharge price control m the employers concerned and the post was held till Nov. 75 by one Bhagwat Dayal who resigned from service and that since then the post has not been filled up. The employers say that they have not filled up this post as they did not see the necessity and have given charge of the Incharge Price Control to some other officers of the concern in addition to their duties. The workman, on the other hand, says that he has been working as an Incharge Price Control Section since the retirement of Bhagwal Daxal in Nov. '75 and has been signing all the papers as Incharge Price Control and therefore he should be designated and paid as such.
I have closely perused the documentary and oral evidence and have given my anxious consideration to the evidence and the circumstances of the case. Some facts which prominently came out are:
(1) Undisputedly the post of Incharge Price Control existed in M/s Swadeshi Cotton Mills uptil Nov. 1975 and was held by one Bhagwat Dayal The post has not been abolished by the employers. They do not assert that the post has been abolished. The numerous notes addressed to Incharge Price Control filed by the workman also show that the post of Incharge Price Control continued to exist through the years 1977, 1978, 1980, 1981 and 1982 right upto 1984. In the documents filed by the workman there are numerous notes which are actually addressed to Incharge Price Control. If this post had been abolished in Nov. '75, the aforesaid notes should not have been addressed in this form. It is abundantly clear that the post of Incharge Price Control was not abolished after the resignation of the last incumbent Bhagwat Dayal, but continue to exists and even now exists.
(2) There is no written order of 1975 or 1976 by the Management saying that after the resignation of Mr. Bhagwat Dayal, Incharge Price Control, such officer or official will now be the Incharge of Price Control Section and will perform the Incharge Price Control's functions.
(3) Inspite of opportunity given to the employers and inspite of specific query, the employers representative could not produce a single paper signed by Sri Satya Narain or Sri T.K.V. Raman, who according to them were looking after the price control section. It is significant that there is a long period from 1975 to 1984, but no paper signed by any officer as Incharge Price Control could be produced by the employers to controvert the documentary evidence of the workman.
(4) There is overwhelming documentary evidence in support of the workman's version that he has been working as Incharge Price Control Section. In the documents filed by the workman, there are numerous notes and letters sent by him under his signatures to various sections and officers of the Mill as Incharge Price Control. He has also produced numerous notes addressed to Incharge Price Control. All these notes have conic from workman Misra's custody.
The above facts clearly show that the post of Incharge Price Control has not been abolished and has continued to exists in the years 1976-77 and onward right upto now and that Sri H.N. Misra, Senior Clerk has been performing the functions of Incharge Puce Control all these years and signing the papers as Incharge Price Control. He should, therefore, have been designated as Inchage Price Control and given the salary admissible on that post. The employers contention that the post of Incharge Price Control is a promotion post and the employers have right to promote a suitable man, is not tenable in this case, because they have been sitting over the matter all these nine years and have not passed any orders regarding the promotion of anybody. I, therefore, hold that the employers anion in not giving the designation and the salary of Incharge Price Control to workman H.N. Misra was not valid and legal and that he is entitled to be given this designation and the pay scale right from Nov. '75. I give my award accordingly.
I may, however, add that since no regular selection to this promotion post of Incharge Price Control has been made by the employers, they are even now free to make a regular selection out of the illegible persons till then Senior Clerk H.N. Misra will continue as Incharge Price Control.
The Soot Mill Mazdoor Sabha which sponsored the workman's case shall be paid Rs. 100/- as costs.
A copy of this award shall be sent to Govt. for further action.
Sd/- P.D. Chaturvedi
Presiding Officer Labour Court-I
Kanpur
6. It appears from the record of the writ petition that no interim order whatsoever was passed in the writ petition and the matter was taken up on 25.11.2003. His Lordship Hon'ble Ravi S. Dhavan, J. rejected the Civil Misc. Application No. 106L3 of 1987 filed on 5.5.1987 for stay of the order dated 9.4.1987 of the Labour Court II, Kanpur in Misc. Case No. 98 of 1985 in the following terms:.Having heard learned Counsel for the petitioner and for the workman, this Court considers it in the interest of justice and equitable that while employer may retain the monetary benefits, which have been declared on the application of the workman under Section 33(C)(2) as from the dale of the order passed on 9.4.1987, the amount will be retained by the employer. Thereafter, he shall add simple interest @ 10% p.a. From the date of the order and until June, 1990. Then during this month the employer shall deposit this amount in one of the monthly income schemes of a nationalised bank or a public finance institution like the Unit Trust of India. The interest accrued in this scheme shall go to the workman and the principal amount shall he subject to the final orders of this Court. Thus, the workman shall have the monthly income on benefits which have been computed in terms of money and later on if the petition is allowed this amount will go to the workman. Should the petition he dismissed the amount will be retained India employer.
Thus, this application is decided accordingly.
7. Thus, the position is that the petitioner who was employer has neither complied with the Award of the Labour Court even though there was no interim order granted in the writ petition nor they have complied with the order of this Court dated 5.5.1987 passed by this Court rejecting the stay application.
8. Even after the petition was dismissed in default by order dated 25.11.2003 the petitioner has not paid a single penny to the workman, as such they have denied the designation and pay scale of the workman which were due to him under the Award right from November 1975.
9. The conduct of the petitioner as stated above clearly establishes that they are only interested in delaying the matter.
10. However, in the interest of justice the petition may be considered to lx restored on payment of costs and on imposing conditions as has been held In the Hon'ble Supreme Court in Salem Advocate Bar Association, Tami Nadu v. Union of India : AIR2005SC3353 , wherein the Hon'ble Supreme Court has held:
So far as awarding of costs at the time of judgment is concerned, awarding of cost must be treated generally as mandatory inasmuch as the liberal attitude of the courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points which were unnecessarily raised, costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the panics has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expenses incurred for the purpose of attendance on the adjourned dates.
11. The learned Counsel for the petitioner prays that the petitioner may he allowed to deposit the entire amount of arrears due to be paid to the respondent-workman by imposing conditions and costs as the Court ma think just and proper in the circumstances of the case.
12. On the aforesaid prayer of the learned Counsel for the petitioner the petitioner is permitted to deposit the entire amount due to the workan according to the Award before the Labour Court (I), U.P., Kanpur in pursuance of the Award dated 25.6.1984 in Adjudication Case No. 90/83 as per order of the Court dated 9.4.1987 on application No. 10613/87 within 15 days from today as prayed by Smt. Kritika Singh. The amount to be deposited shall be calculated as uptil 31.07.2007. The amount of Rs. 2000/- as costs for restoration of the writ petition will be deposited by the petitioner in the Allahabad High Court Mediation and Conciliation Centre.
13. In case the petitioner fails to comply with any of the conditions laid down above, the regular bench hearing the matter on merits shall take cognizance of the effect of non-compliance of this order as well as of the order which were passed.
14. List this case for hearing before the appropriate bench after one month.
15. The amount so deposited by the petitioner before the Labour Court shall be invested by the Labour Court in highest interest bearing deposit initially for a period of one year, renewable thereafter for further period as per direction of this Court which may be sought from time to time by the petitioner till disposal of the writ petition. This deposit shall be subject to final decision of the writ petition.
16. Let a certified copy of this order be provided to the learned Counsel for the parties on payment of usual charges.