High Court
Case Details
WP(C) 85/2005 BEFORE HON’BLE MR. JUSTICE B. K. SHARMA JUDGEMENT AND 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 repre senting 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 re spondent No. 1 to hold conciliation on the statement of demands and other matter s 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 petit ion, the respondent No.4 has neglected to pay due wages to its employees. Accor dingly, 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 Trib unal, Guwahati, providing for payment to the workmen represented by the petition er as indicated in the award within 3 (three) months. 3.
Legal Reasoning
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 ad judication of the properties of the respondent No.4. It is further stated in the writ petition that consequent upon such order, the Assistant Labour Commissione r, 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 par a 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, sto
Decision
pped further payment. In the aforesaid circumstances, the petitioner union made further repres 4. entations even on the issues which were not covered in the conciliation proceedi ng. In several paragraphs in the writ petition, a stand has been taken that duri ng conciliation proceeding, the respondent No. 4 had agreed to pay some of the a mount involved but has not cleared the entire amount. It is in the aforesaid cir cumstances, the petitioner has prayed for a direction to the respondents to hold conciliation proceeding. In the counter affidavit filed by the respondents on 28/04/2005, the afo 5. resaid plea of the petitioner has been denied. It has been stated that the respo ndent No. 4 has already paid 4 installments to the petitioner and out of 1474 wo rkers, 29 workers have already received all the payment. For a ready reference, the stand of the respondents in their counter affidavit is reproduced below :- That since the Award of the Industrial Tribunal did not specify the amou (cid:28)6. nt 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 a mount of Rs. 56,83,016.00 (Rupees Fifty six lacs eighty three thousand and sixte en only) to the workers. Thereafter, discussions were held between the petitione r and the respondent No. 4 regarding the payment of the said amount. Although th e 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 t he parties in the presence of tdhe then Assistant Labour Commissioner. The Memor andum of Settlement provided that the amount of Rs. 56,83,016.00 shall be paid i n two parts, i.e. Rs. 27.00 lacs in cash in 6 installments and the rest in the f orm of ‰ Bigha of land to each of the 74 workers. It was agreed by the parties t hat 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 acc ount of leave encashment) and the ‰ Bigha of land shall be a part of the retrenc hment compensation and leave encashment in addition to the cash payment. The Set tlement 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 Settle ment also provided that the respondent No. 4 shall be entitled to sell/dispose i ts assets and properties; that the petitioner shall be entitled to occupy the qu arters of the respondent No. 4 till payment of their dues; that the petitioner s hall withdraw all pending cases against the respondent No. 4 after receiving the ir dues; that the petitioner shall be given preference for employment as fresh e mployees in the event of the respondent No. 4 restarting etc. Thereafter, the pe titioner vide application dated 15.03.2004 demanded payment of Gratuity, retrenc hment compensation as well as modification of the payment clause in the Settleme nt dated 30.12.2003. On the basis of the said application, the Clause 1 of the S ettlement dated 30.12.2003 was modified on 29.03.2004 in the presence of the Lab our 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 re imbursing 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 deposi ted with the Union fund as contribution of the workers. Regarding the other dema nds 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 accor dingly, the respondent No. 4 vide letter dated 08.04.2004 complied with the 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 frustrati ng the implementation of the Settlement. On 06.08.2004, the respondent No.4 subm itted a Report to the Labour Commissioner, Assam explaining in details the reaso ns why the Settlement could not be fully implemented within 30.06.2004. It is pe rtinent 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 w orkers 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 t hat the petitioner and the respondent No. 4 would mutually carry out the proces s for identification and handing over the land to the workers. But the petitione r failed to provide any cooperation to the respondent No. 4 in the matter of all otment of land and the respondent No. 4 had to solely take all initiative in tha t regard. Although the respondent No.4 had put up notices on different dates inv iting the workers to take possession of the land by furnishing necessary particu lars, the petitioner for reasons best known, prevented the workers from respondi ng to the said notices. This resulted in infighting amongst the workers, for whi ch 28 workers approached the respondent No. 4 and opted to avail the cash equiva lent 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 w ell 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 n ot yet turned up to collect a single installment from the respondent No. 4. It i s pertinent to mention in this context that 44 workers have refused to collect t he 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 Set tlement and another amount of Rs. 2,00,496.00 has been deposited with the Bakija i Branch, Kamrup on 04.02.2005, totaling Rs. 31,42,796.00 (Rupees Thirty one tho usand 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 outstand ing. 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 Certifica te Debtor. Since the respondent No. 4 has already paid a substantial amount out of the original Certificate amount as stated above, the Assistant Labour Commiss ioner, i.e. the respondent No. 3 herein is bound to inform the Certificate Offic er to embark upon an enquiry for ascertaining the payments made by the Certifica te Debtor. Since the petitioner is not a party in the Bakijai case, it has no lo cus standi to interfere in the said Bakijai case. The letters issued by the resp ondent 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. Moreo ver, 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 n ever 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 an d devoid of any merit. 9. That the statements made in para 10 of the writ petition of false and co ncocted by the petitioner. As stated, Clause-4 of the settlement dated 30.12.200 3 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 ap plication for temporary injunction namely, Misc. (J) Case No. 57/2004 for restra ining 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. R egarding 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, fr om a bare perusal of the said Report, it shall be evidence that the Report has b een based only on surmises and conjectures of the Labour Officer. The findings a nd comments of the enquiry conducted by the Labour Officer only in the presence of the petitioner, clearly reflect the allegations of the petitioner. The respon dent No. 4 by letter dated 18.09.2004 duly objected to the said enquiry and Repo rt 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 Sett lement dated 30.12.2003 executed by the petitioner and the respondent No. 4 towa rds implementation of the Award passed by the Industrial Tribunal had already se ttled the issue of paying statutory dues to the petitioner for stoppage of produ ction 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 Disp utes Act, 1947 whereby, a Conciliation Officer is bound to conciliate each and e very matter and more so, when the issue is frivolous. Since the Labour Commissio ner, 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 t he petitioner in the absence of the Labour Commissioner. The petitioner has fail ed to make out any ground for interference by this Hon’ble Court and as such, th e 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 worker s in the event of closure. After the Award of the Industrial Tribunal and the ex ecution of the Settlement, the issue of payment of statutory dues for closure ha s already been settled. This fact is evident from a plain reading of the terms a nd conditions enumerated in the Clauses of the Settlement dated 30.12.2003. Clau se 6 of the Settlement dated 30.12.2003 read as under :- (cid:28)6. In the event of the factory restarting, these employees would be giv en preference for employment as fresh employees by the management. (cid:29) From the language of Clause 6, it is evident that the petitioner has dul y accepted and agreed that the factory of the respondent No. 4 is closed and als o 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 st ates that he payments to the petitioner shall be made against the outstanding sa lary 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 qua rters till payment of their dues. It is pertinent to mention that the workers wo uld 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 petitione r has admitted that they are no longer in continuous service under the responden t No.4. As such, there is no scope for any further 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 petiti oner about the non closure of the factory of the respondent No. 4 as well as the ir right to receive wages from 07.09.2002 or from any other date is, therefore, baseless and not tenable. (cid:29) 6. The aforesaid affidavit dated 28/04/2005 was followed by further affidav it filed on 09/03/2006 in which it has been brought on record that the responden t No. 4 has already cleared all the dues payable as per the award referred to ab ove. 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. T hereafter, the Assistant Labour Commissioner, vide his Memo dated 28/02/2006 als o issued certificate certifying that the respondent No. 4 has duly cleared all t he dues and liabilities as per the award. 7. The aforesaid stand of the respondent No.4 in their affidavit has not be en denied by the petitioner by filing any affidavit-in-reply for the last 9/10 y ears. That apart, this Court exercising writ jurisdiction cannot issue any direc tion 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.