Bamra Engineering Works v. Sukhdev Sharma

ORDER %

18.09.2015 CM No.9802/2014 (Delay) in LPA 421/2014 CM No.9805/2014 (Delay) in LPA 422/2014

¶1For the reasons stated in the applications the delay of 341 da>^ in filing the appeals is condoned.

¶2Application is disposed of.

¶1Sukhdev Sharma and Harkyal Sharma raised industrial disputes which were adjudicated by the learned Labour Court vide the award dated April 04, 2003 whereby they were directed to be reinstated with 50% back wages. Claiming that the award of the Labour Court in LD.Nos.6/95 and 8/95 ha-d not been implemented as Sukhdev Sharma and Harkyal Sharma were neither reinstated, nor back wages and further wages paid Sukhdev Sharma and Harkyal Sharma filed claim petitions under Section 33C (2) of the Industrial Disputes Act, 1947 (in short 'the ID Act')-

¶2During the course of proceedings the Authorised Representative of the Respondents Shri R.D.Yadav admitted having received the back wages by way of cash however, stated that he could not hand over the same to the workmen and thus handed over the same on October 25, 2008 under receipt and Sukhdev Sharma and Harkyal Sharma also admitted that they have received the total amount due under the award from Shri R.D.Yadav. Though the managementhad challengedthe awards by filing writ petitions however, the order sheet of the Labour Court revealed that on April 07, 20"0 the Authorised Representative of the management stated that management was still ready to take Sukhdev Sharma and Harkyal Sharma back on duty however, they refused to resume the duty. Further the order sheets of :he Labour Court dated March 03, 2009 would reveal that Sukhdev Sharma and Harkyal Sharma were directed to report to the management to resume cuty on March 05, 2009 at 10.00 A.M. whereafter the report of the Labour Inspector was received stating that though Sukhdev Sharma and Harkyal Sharma resumedjob however, after IV2 months they abandonedthe same and sent medical certificates. Thus the Labour Court held that from the evidence on record it can be safely inferred that the workmen were not interestedto resume the duty and were prolongingthe matter in order to pressurisethe managementto cull out more and more backwages. Sincethe back wages as directedunder the award had already been receivedand the wprkmen though resumed the duty had abandoned it the learned Labour Court dismissed the petitions under Section 33C (2) ID Act filed by Sukhdev Sharma and Harkyal Sharma. However, the learned Labour Court directedto pay a sum of ^715/- along with interestwithin 30 days which were due to Sukhdev Sharmaand Harkyal Sharma.

¶3Challenging the order of the Labour Court dated April 15, 20:0 SukhdevSharmaand HarkyalSharmafiled writ petitions. The management led evidenceto provethat the respondentswere askedtojoin dutiesbut they did not respond. The contention of the management was that both tne brotherswere owning20-25 bighasof agriculturalland on which they were carryingout cultivationand thus were in self-employment.

¶4The learned Single Judge on the basis of communication sent to the ALO on January 27, 2005 Ex.WW-1/1 wherein the managementstated that they had challenged the award by way of writ petition came to tiie conclusionthat no reinstatementwas granted. Learned Single Judge noted that self-employmentin agriculturecannot in any event be equated to the employment in an industrial undertaking. The respondents have stated in cross-examination that they earn approximately ?5000/- over six mon:hs from agriculturewhichtranslateto less than ^1000/- per month. The learned Single Judge vide the impugnedorder held that the award was for granting Page 3 of6 50% back wages with reinstatement and continuity of service to thi-respondents and the award could not be defeated by refusing reinstatemer i to the workmen on the ground that they were gainfully employed. Taking the respondents to be skilled workers and on the basis of minimum rates cf skilled workers the learned Single Judge noted the wages during the various periods as under:

23.10.2003 to 31.01.2004 @ Rs.3207.90p.m. Rs. 10,552.00

01.02.2004 to 31.07.2004 @Rs.3286.90p.m. Rs. 19,721.40

01.08.2004 to 31.01.2005 @ Rs.3318.90p.m. Rs. 19,913.40

01.02.2005 to 31.01.2005 @Rs.3465.90p.m. Rs. 20,813.40

01.08.2005 to 31.01.2006 @ Rs.3589.90p.m. • Rs.21,539.40

01.02.2006 to 31.07.2006 @ Rs.3695.00p.m. Rs.22,170.00

¶5The learned Single Judge thus directed the appellant management ^o pay to the respondent a sum of ?1,22,418.14 upto 31.07.2006 and for the periodthereaftertill March 05, 2009 at the minimumwages prescribedfrom time to time for skilled workmen to be paid within six weeks to the respondents in the two writ petitions.

¶6As noted above admittedly the back wages in terms of the awaM dated April 04, 2003 have already been paid to the workmen respondents. Thus the only issue that remainedto be implementedas an executingCourt was with regard to the reinstatement and in case no reinstatement was offered whether Sukhdev Sharma and Harkyal Sharma were entitled to wagestill they were reinstatedor they abandonedthejob. LPA 421/2014 andLPA 422/2014 Page 4 of6 lo

¶1Supreme Court in the decision reported in 1995 (1) SCC 23 S MunicipalCorporationof Delhi vs.Razakfollowingthe earlierconstitution Bench judgment in AIR 1964 SC Central Bank of India V:. P.S.Rai20palan held: This decision itself indicatesthat the power of the Labour Court under Section33C(2)extendsto interpretationof the award or settlementon which the workman'sright rests, like the ExecutingCourt'spower to interpretthe decreefor the purpose of execution, where the basis of the claim is referable to the award or settlement but it does not extend to determinationof the dispute of entitlementor the basis of the claim if there be no prior adjudicationor recognitionof the same by the employer. This decisionnegativesinsteadof supporting the submission of learned Counsel for the respondents. Anotherdecisionon thepoint is BombayGas CompanyLtd. V. Gopal Bhiva and Ors. 1964 (3) SCR 700, wherein also Gajendragadkar, J., (as he then was) speaking for the Bench, referring to the above Constitution Bench decision, stated that the proceedings contemplated by Section33C(2)are analogous to executionproceedings and the Labour Court, like the Executing Court in the execution proceedings governed by the CPC, would be competent to interpret the award on which the claim is based. It is obvious that the power of the Executing Court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in theform of decree. The Executing Court, after the decree has been passed, is howevercompetentto interpret the decreefor thepurpose of its implementation. This position was settled by the above Constitution Bench decision and has been the consistent view of this Curt ever since then. Page 5 of i

¶8A perusal of the evidenceon record would reveal that the workmen admittedthat afterpassingofthe award they went to the managementonlv once when they met a lady managerof the managementwhose name they did not know and they never visited the managementagain. Though the workmendeniedthe letterdated October28, 2003 Ex.MW-1/1,howeverthe managementproved the same being sent by postal receipt and U.P.C.vide Ex.WW-1/2and Ex.MW-1/3. The addresson the postal receiptand U.P.C. were admittedto be correctby the workmen. Hence the inferencedrawn by the learnedLabourCourt that despite offer the workmen did not report duty for reinstatementcannot be faulted. Learned Single Judge read Ex.WW-1/1 in isolationignoringthe otherevidenceas noted by the learned Labour Court. The finding of fact arrived at by the learnedLabour Court was not based on no evidence and is also not perverse warranting interferenceby the Writ Court. Havingreceivedoffer of reinstatementand not joiningthe job, the learnedSingleJudge erred in grantingwages in lieu of reinstatement. Consequently,the impugned orders passed in the wftt petitions are set aside.

¶9Appeals are disposed off. CM No.9800/2014

(Stay) in LPA 421/2014 CM No.9803/2014 (StavJ in LPA 422/2014 Applications are dismissed as infructuous. PRADEEPNANTOAjOG,J. SEPTEMBER 18, 2015/'vn'

MUKTA GUPTA, J. LPA 421/2014and LPA 422/2014

* IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 421/2014 BAMRA ENGINEERING WORKS Appellant Represented by: Ms.Raavi Birbal, Mr.Ravindra and Mr.Shriram Chauhan, Advocates. versus SUKHDEV SHARMA Respondent Represented by: Respondent in person. + LPA 422/2014 BAMRA ENGINEERING WORKS Appellant Represented by: Ms.Raavi Birbal, Mr.Ravindra and Mr.Shriram Chauhan, Advocates. versus HARKYAE SHARMA Respondent Represented by: Respondent in person. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA