imperial Calendar Pvt. Ltd. and anr. Vs. S. Dasgupta, Assistant Labour Commissioner - Court Judgment

Excerpt:
- orderd.k. seth, j.1. an award was passed on december 20, 1999 in case no. vii-116/96 by the fourth industrial tribunal, west bengal. the operative part of the said award reads as follows: '**** *** *** *** 12. i have already found that the order of dismissal of the workman is invalid as no charges could be proved against him for want of iota of evidence. that being the position the workman is entitled to be reinstated in service and he is entitled to back wages. the continuance of service of the workman after april 3, 1996 and entitlement to back wages after april 3, 1996 will depend upon the findings of legality, propriety and validity of closure of the company by appropriate forum.' 2. on the ground that the said award has not been complied with, there has been a breach of section 29 of the industrial disputes act (hereinafter referred to as 'the said act') for which a complaint was lodged after obtaining sanction from the state government under section 34(1) of the said act which is annexure 'h' of this petition at page 64. it is this complaint that has since been challenged in this writ petition. 3. in support of his contention mr. r. m. chatterjiee, learned counsel for the petitioners, points out that the said award is the subject matter of challenge in writ petition no. 1206 before this court which is pending. in his usual fairness, he submits that, however, no order of stay of operation of the award has since been obtained in the appeal. pointing out to the operative part of the award he contends that so far as the reintstatement is concerned, there is no scope for reinstatement in view of award itself on the ground that the question of continuance of service after the alleged closure on april 3, 1996 was dependent on a contigency which has not yet taken place. so far as the part of payment of back wages is concerned according to him, the same has not yet been quantified or determined and, as such, the back wages could not be paid. that apart, since the award is under challenge, therefore, the petitioners are not liable to pay back wages. by reason of such situation, no criminal proceeding can be maintained against the petitioners on the alleged ground of breach of the award in respect of non- payment of the back wages. according to him, it is to be calculated or computed under section 33-c(2) of the said act and until it is so done, there cannot be any cause of action for lodging the complaint. 4. the learned counsel for the workman, on the other hand, contends that there being an award for reinstatement with back wages, the petitioners are supposed to make such payment to the workman and reinstatement attracts application of section 29 of the said act. he then contends that assuming but not admitting reinstatement cannot be implemented by reason of the alleged closure, the fact that is disputed by him, is that there has been breach of the award by reason of non-payment of back wages. according to him such back wages need not be calculated under section 33-c(2) of the said act. it can be calculated by the employer from their records and could be offered to the workman within a reasonable time. since it has not been done so, there has been a breach attracting section 29 read with section 34(1) of the said act and, therefore, this writ petition should be dismissed. 5. the learned counsel for the state-respondent, on the other hand, contends that this petition is not maintainable because of the stand taken by the employer itself. according to him, unless there is a stay, the petitioners are bound to implement the award. even if the reinstatement part cannot be implemented, the back wages part can be implemented according to the calculation of the petitioners themselves and any breach thereof would definitely attract section 29 read with section 34(1) of said act. 6. the learned counsel for the respondents contends that he does not require filling of any affidavit-in-opposition. since the facts are almost admitted, the question may be determined on the basis of the materials on record and on the basis of law that is involved. 7. i have heard the learned counsel for theparties at length. as it appears from theoperative part of the award as quoted above,the reinstatement with back wages was meantconditional by the following sentence: 'the continuance of service of the workman after april 3, 1996 and entitlement to back wages after april 3, 1996 will depend upon the findings of legality, propriety and validity of closure of the company by appropriate forum.' 8. countering the contention of the counsel for the workman that no permissionwas afforded to close down the establishment by the government, mr. chatterjee that this is an establishment employing less than 21 workmen. therefore, that provision is not attracted in the case of the petitioners'establishment. according to him, such provision is applicable only in respect of an establishment employing 100 or more workmen which is not the case of the petitioners. this proposition has not beendisputed by the learned counsel for the workmen who has not also disputed the numberof the workmen employed in the said establishment. 9. with regard to certain settlement pointed out by mr. chatterjee, the learned counsel for the workman had contended that these documents are all forged documents and there was no settlement. but this question is not germane to the issue and as such, is not necessary to be gone into. since the award itself made it dependent on certain contingencies, therefore, there could not be any question of reinstatement, if there is a closure. the said question has been accepted and mentioned in the award itself and as such, this court, while exercising writ jurisdiction in respect of the present subject matter, is precluded from entering into the merits of the award or going behind the award. this court is supposed to proceed on the basis of the award as it stands. thus, on the ground of non- reinstatement it cannot be said that there was a breach of the award having regard to the tenor of the award that has been passed. therefore, no criminal proceeding could be maintained against the petitioners at this stage until there is a finality with regard to the closure or a finding that there was no closure, so far as the question of reinstatement is concerned.10. but, however, the question of non-payment of back wages is dependent on the award which specifies a particular cut-off date being april 3, 1996. therefore, there cannot be any doubt that the workman was entitled to back wages till april 3, 1996. there may not be any application under section 33-c(2) of the said act but that does not prevent the employer from tendering back wages for the said period according to their own calculation. it is only when a dispute is raised by the employees, that section 33-c(2) of the said act be attracted in regard to the computation of the disputed amount; but there is nothing to prevent the employer from tendering the amount according to their own calculation pursuant to the award. if that is not done, in that event, the same would definitely attract the mischief of section 29 of the said act. so far as the payment after april 3, 1996 is concerned the same may be ascertained through appropriate proceeding including the proceeding under section 33-c(2) or such other proceeding as the case may be. but there is nothing to prevent the employer from making payment in respect of the back wages for the period till april 3, 1996. therefore, the complaint with regard to that part of the breach of this award definitely comes within the scope and ambit of section 29 of the industrial disputes act. 11. in the circumstances, in case within a period of one month from date the employer tenders the entire amount of back wages till april 3, 1996 with simple interest calculated at 9% per annum till the date of payment from the date of the award, in that event the criminal proceeding shall not be proceeded with. for one month from this day there will be an unconditional stay of the said proceeding. in default criminal proceeding shall continue and be decided in accordance with law. so far as the payment with regard to the period after april 3, 1996 having been made dependent on certain contingencies and when only such contingencies take place there cannot be any question of attracting the mischief of section 29 in respect of such period. however, it would be open to the employer to tender the retrenchment benefit and other benefits that were due (sic) to the workman concerned and the workman may receive the same without prejudice to the rights and contentions in the pending writ petition. however, all these payments shall be subject to the result of the writ petition pending being writ petition no. 1206 of 2000. 12. it is also contended by mr. chatterjee that in view of the pendency of the writ petition challenging the award no liability accrues for which section 29 could be attracted. admittedly no order of stay has been granted. therefore, on the expiry of 3 months from the date of the award, the award had become final and executable. until there is an order of stay there is nothing to prevent the execution of the award. in the absence of the stay the liability of the employer continues and thereafter the mischief under section 29 cannot be prevented from being attracted to the present situation, so far as the employer in the present case is concerned. therefore, i am unable to agree with the contention of mr. chatterjee so far as tips point is concerned. in case the amount as directed above is paid within the period stipulated above in that event the criminal proceeding will remain stayed until disposal of the writ petition no. 1206 of 2000 subject to further orders passed in the said proceedings. 13. mr. chatterjee referred to the decision in the case of indian hume pipe co. ltd. v. their workmen reported in : (1969)illj242sc . the ratio decided therein is not of any help so far as the present question is concerned. this decision may be of relevance so far as the writ petition no. 1206 of 2000 is concerned. 14. at this stage mr. chatterjee prays that the writ petition no. 1206 of 2000 may be listed for hearing. the workman is being represented by the learned counsel. he may file his affidavit-in-opposition within 3 weeks from date, reply, if any, within, one week thereafter and the matter (w. p. 1206 of 2000) to appear 4 weeks hence. the state respondents may also file their affidavit-in-opposition with in the same period and reply within the same time. 15. the writ petition no. 1260 of 2001 is thus disposed of. 16. no costs. 17. all parties are to act on a xerox signed copy of this dictated order on the usual undertaking.

Judgment:
ORDER

D.K. Seth, J.

1. An Award was passed on December 20, 1999 in case No. VII-116/96 by the Fourth Industrial Tribunal, West Bengal. The operative part of the said Award reads as follows:

'**** *** *** ***

12. I have already found that the order of dismissal of the workman is invalid as no charges could be proved against him for want of iota of evidence. That being the position the workman is entitled to be reinstated in service and he is entitled to back wages. The continuance of service of the workman after April 3, 1996 and entitlement to back wages after April 3, 1996 will depend upon the findings of legality, propriety and validity of closure of the Company by appropriate forum.'

2. On the ground that the said Award has not been complied with, there has been a breach of Section 29 of the Industrial Disputes Act (hereinafter referred to as 'the said Act') for which a complaint was lodged after obtaining sanction from the State Government under Section 34(1) of the said Act which is Annexure 'H' of this petition at page 64. It is this complaint that has since been challenged in this writ petition.

3. In support of his contention Mr. R. M. Chatterjiee, learned counsel for the petitioners, points out that the said Award is the subject matter of challenge in Writ Petition No. 1206 before this Court which is pending. In his usual fairness, he submits that, however, no order of stay of operation of the Award has since been obtained in the appeal. Pointing out to the operative part of the Award he contends that so far as the reintstatement is concerned, there is no scope for reinstatement in view of Award itself On the ground that the question of continuance of service after the alleged closure on April 3, 1996 was dependent on a contigency which has not yet taken place. So far as the part of payment of back wages is concerned according to him, the same has not yet been quantified or determined and, as such, the back wages could not be paid. That apart, since the Award is under challenge, therefore, the petitioners are not liable to pay back wages. By reason of such situation, no criminal proceeding can be maintained against the petitioners on the alleged ground of breach of the Award in respect of non- payment of the back wages. According to him, it is to be calculated or computed under Section 33-C(2) of the said Act and until it is so done, there cannot be any cause of action for lodging the complaint.

4. The learned counsel for the workman, on the other hand, contends that there being an Award for reinstatement with back wages, the petitioners are supposed to make such payment to the workman and reinstatement attracts application of Section 29 of the said Act. He then contends that assuming but not admitting reinstatement cannot be implemented by reason of the alleged closure, the fact that is disputed by him, is that there has been breach of the Award by reason of non-payment of back wages. According to him such back wages need not be calculated under Section 33-C(2) of the said Act. It can be calculated by the employer from their records and could be offered to the workman within a reasonable time. Since it has not been done so, there has been a breach attracting Section 29 read with Section 34(1) of the said Act and, therefore, this writ petition should be dismissed.

5. The learned counsel for the State-respondent, on the other hand, contends that this petition is not maintainable because of the stand taken by the employer itself. According to him, unless there is a stay, the petitioners are bound to implement the Award. Even if the reinstatement part cannot be implemented, the back wages part can be implemented according to the calculation of the petitioners themselves and any breach thereof would definitely attract Section 29 read with Section 34(1) of said Act.

6. The learned counsel for the respondents contends that he does not require filling of any affidavit-in-opposition. Since the facts are almost admitted, the question may be determined on the basis of the materials on record and on the basis of law that is involved.

7. I have heard the learned counsel for theparties at length. As it appears from theoperative part of the Award as quoted above,the reinstatement with back wages was meantconditional by the following sentence:

'The continuance of service of the workman after April 3, 1996 and entitlement to back wages after April 3, 1996 will depend upon the findings of legality, propriety and validity of closure of the Company by appropriate forum.'

8. Countering the contention of the counsel for the workman that no permissionwas afforded to close down the establishment by the Government, Mr. Chatterjee that this is an establishment employing less than 21 workmen. Therefore, that provision is not attracted in the case of the petitioners'establishment. According to him, such provision is applicable only in respect of an establishment employing 100 or more workmen which is not the case of the petitioners. This proposition has not beendisputed by the learned counsel for the workmen who has not also disputed the numberof the workmen employed in the said establishment.

9. With regard to certain settlement pointed out by Mr. Chatterjee, the learned counsel for the workman had contended that these documents are all forged documents and there was no settlement. But this question is not germane to the issue and as such, is not necessary to be gone into. Since the Award itself made it dependent on certain contingencies, therefore, there could not be any question of reinstatement, if there is a closure. The said question has been accepted and mentioned in the Award itself and as such, this Court, while exercising writ jurisdiction in respect of the present subject matter, is precluded from entering into the merits of the Award or going behind the Award. This Court is supposed to proceed on the basis of the Award as it stands. Thus, on the ground of non- reinstatement it cannot be said that there was a breach of the Award having regard to the tenor of the Award that has been passed. Therefore, no criminal proceeding could be maintained against the petitioners at this stage until there is a finality with regard to the closure or a finding that there was no closure, so far as the question of reinstatement is concerned.

10. But, however, the question of non-payment of back wages is dependent on the Award which specifies a particular cut-off date being April 3, 1996. Therefore, there cannot be any doubt that the workman was entitled to back wages till April 3, 1996. There may not be any application under Section 33-C(2) of the said Act but that does not prevent the Employer from tendering back wages for the said period according to their own calculation. It is only when a dispute is raised by the employees, that Section 33-C(2) of the said Act be attracted in regard to the computation of the disputed amount; but there is nothing to prevent the employer from tendering the amount according to their own calculation pursuant to the Award. If that is not done, in that event, the same would definitely attract the mischief of Section 29 of the said Act. So far as the payment after April 3, 1996 is concerned the same may be ascertained through appropriate proceeding including the proceeding under Section 33-C(2) or such other proceeding as the case may be. But there is nothing to prevent the employer from making payment in respect of the back wages for the period till April 3, 1996. Therefore, the complaint with regard to that part of the breach of this award definitely comes within the scope and ambit of Section 29 of the Industrial Disputes Act.

11. In the circumstances, in case within a period of one month from date the employer tenders the entire amount of back wages till April 3, 1996 with simple interest calculated at 9% per annum till the date of payment from the date of the award, in that event the criminal proceeding shall not be proceeded with. For one month from this day there will be an unconditional stay of the said proceeding. In default criminal proceeding shall continue and be decided in accordance with law. So far as the payment with regard to the period after April 3, 1996 having been made dependent on certain contingencies and when only such contingencies take place there cannot be any question of attracting the mischief of Section 29 in respect of such period. However, it would be open to the employer to tender the retrenchment benefit and other benefits that were due (sic) to the workman concerned and the workman may receive the same without prejudice to the rights and contentions in the pending writ petition. However, all these payments shall be subject to the result of the writ petition pending being Writ Petition No. 1206 of 2000.

12. It is also contended by Mr. Chatterjee that in view of the pendency of the writ petition challenging the award no liability accrues for which Section 29 could be attracted. Admittedly no order of stay has been granted. Therefore, on the expiry of 3 months from the date of the award, the award had become final and executable. Until there is an order of stay there is nothing to prevent the execution of the award. In the absence of the stay the liability of the employer continues and thereafter the mischief under Section 29 cannot be prevented from being attracted to the present situation, so far as the employer in the present case is concerned. Therefore, I am unable to agree with the contention of Mr. Chatterjee so far as tips point is concerned. In case the amount as directed above is paid within the period stipulated above in that event the criminal proceeding will remain stayed until disposal of the Writ Petition No. 1206 of 2000 subject to further orders passed in the said proceedings.

13. Mr. Chatterjee referred to the decision in the case of Indian Hume Pipe Co. Ltd. v. Their Workmen reported in : (1969)ILLJ242SC . The ratio decided therein is not of any help so far as the present question is concerned. This decision may be of relevance so far as the Writ Petition No. 1206 of 2000 is concerned.

14. At this stage Mr. Chatterjee prays that the writ petition No. 1206 of 2000 may be listed for hearing. The workman is being represented by the learned counsel. He may file his affidavit-in-opposition within 3 weeks from date, reply, if any, within, one week thereafter and the matter (W. P. 1206 of 2000) to appear 4 weeks hence. The State respondents may also file their affidavit-in-opposition with in the same period and reply within the same time.

15. The writ petition No. 1260 of 2001 is thus disposed of.

16. No costs.

17. All parties are to act on a Xerox signed copy of this dictated order on the usual undertaking.