IRSHAD MOHD KHAN Vs. ADDITIONAL LABOUR COMMISSIONER

JUDGEMENT

(1.) Writ Petition No. 33988 of 2004 has been filed by the M/s Hamdard (Wakf) Laboratory, Meerut Road, Ghaziabad questioning the validity of the order dated 7.8.2004 wherein orders have been passed for recovery in exercise of authority vested under Section 6-H(1) of U. P. Industrial Disputes Act, 1947 for ensuring payment of wages due to the workmen. Civil Misc. Writ Petition No. 36724 of 2008 has been filed by Irshad Mohd Khan and others questioning the validity of the order dated 30.1.2008 refusing to pass order of reinstatement and rejecting and disposing of the application dated 15.11.2006 moved by petitioners in this behalf accordingly. Issue in both the writ petitions are arising out of common facts, in such a situation both the writ petitions have been taken up together and are being decided together accordingly.

(2.) Brief background of the case is that in the District of Ghaziabad there is company known M/s Hamdard (Wakf) Laboratory, Ghaziabad. Petitioners of Civil Misc. Writ Petition No. 36724 of 2008 have been performing and discharging their duties in the aforementioned establishment. In the establishment concern, there has been strike w. e. f. 2.6.1983 and it appears that petitioners of the Civil Misc. Writ Petition No. 36724 of 2008 as per employer indulged in strike. In respect of the same, Labour Department started conciliation proceeding between representative of workmen and employer before the Deputy Labour Commissioner at Ghaziabad and conciliation was arrived at before the Deputy Labour Commissioner, U. P. at Ghaziabad, wherein workmen were required to resume their duties w. e. f. 18.8.1983 and said date was extended to 1.9.1983. Employers have come up with the specific case that various workmen reported for their duty w. e. f. 1.9.1983 and as far as petitioners of Civil Misc. Writ Petition No. 36724 of 2008 are concern, they did not report for their duty nor did they move application for leave and in this background services of the striking workmen were terminated w. e. f. 9.9.1983. Workmen at the said point of time raised Industrial Dispute and accordingly on reference being made by the State Government under Section 4-K of U. P. Industrial Disputes Act, 1947, Labour Court considered the matter and passed award holding therein that termination w. e. f. 9.9.1983 was improper and illegal and Labour Court gave award directing reinstatement of 17 workmen, on the same post and on the same pay-scale, inasmuch as out of 37 workmen, 19 workmen had settled their dispute with the management and one workman namely Komal Singh had died in October, 1991, hence there was no question of his reinstatement. As regard payment of back wages, Labour Court took view that 17 workmen would be entitled to 50% of their wages and allowance w. e. f. 1.8.1987 till the date of their reinstatement as were admissible to them on 2.6.1983 and the said amount had been directed to be paid within two months from the date of publication of the award. Against the said award passed by the Labour Court, M/s Hamdard preferred Civil Misc. Writ Petition No. 45663 of 1993 and this Court on 3.11.1995 proceeded to dismiss the aforementioned writ petition. Against the same Special Leave to Appeal was filed and said appeal was dismissed on 26.5.1993 and said order in question attained finality.

(3.) After the matter had been finalised upto the level of Apex Court and validity of the award has been upheld inspite of the same there was no attempt or endeavour on the part of the employer to comply with the directives given in the award. In such a situation as award in question had become enforcible, in this background workmen filed an application for execution of the award under section 6H of U. P. Industrial Disputes Act, 1947. The employers paid wages upto June, 1996 during pendency of said proceeding and refused to pay wages from 1.7.1996 till 31.7.1996 and thereafter plea had been taken that 17 workmen have been suspended w. e. f. 1.7.1996 for misconduct and further plea was taken that workmen at the best would be entitled for subsistence allowance and not wages. Issue of bonus was also raised by the workmen and thereafter requisite orders were passed and two sets of writ petitions were filed Civil Misc. Writ Petition No. 41961 of 1996, Civil Misc. Writ Petition No. 35708 of 1996 and this Court on 9.4.2003 taking note of the fact that workmen were not permitted by the employer to join on their respective post, proceeded to uphold the order for grant of full wages for the month of July, 1996 as well as the order passed for ensuring bonus to workmen. Against the said order passed by the Single Judge, Special Appeal No. 443 and 444 of 2003 had been filed and said appeal, has been dismissed on 25.7.2006 and 5.9.2006 respectively. Against the said order in question, Special Leave to Appeal No. 17526 of 2006 had been filed and same had also been dismissed on 4.4.2007. Civil Appeal No. 2204 of 2007 in reference to Bonus has been allowed by order dated 24.4.2007. See Humdard Wakf Laboratories v. Dy Labour Commissioner, 2007 5 SCC 231. This much has come on record that workmen have not been actually reinstated and to the contrary by means of letter dated 1.7.1996 workmen have been sought to be placed under suspension and reference of charges levelled against them was also mentioned therein and further workmen have been asked to report for duty on every working day. Employer have come with specific case that thereafter, pursuant to the aforementioned charge-sheet in question, disciplinary proceedings have been undertaken and thereafter, dismissal order has been passed and same has been communicated to the workmen as well as the respective Union. Ignoring the said order, in proceedings under section 6-H, directives were given for payment of entire wages, at the said point of time Civil Misc. Writ Petition No. 33888 of 2004 had been filed by Hamdard (Wakf) Laboratories, and therein subject to employers depositing salary upto 10.10.1998, recovery was stayed. Thereafter, workmen moved an application for issuing direction for ensuring of joining and thereafter, Deputy Labour Commissioner has proceeded to pass order holding therein that as order of termination has been passed on 10.10.1998 and same has not been challenged, as such workmen are entitled for wages only for the period prior to it. At this juncture Civil Misc. Writ Petition No. 36724 of 2008 had been filed and as already mentioned above, said writ petition has been taken up alongwith Civil Misc. Writ Petition No. 33988 of 2004.