Punjab State Electricity Board v. Dhian Chand & Anr.

Judgment

2. To be referred to the Reporters or not? Whether the judgment should be reported in the digest? M.M. KUMAR, J The instant appeal by the Punjab State Electricity Board (for brevity, ‘the Board’) filed under Clause X of the Letters Patent, is directed against the judgment dated 18.11.2009 (P-9), passed by the learned Single Judge by accepting the Review Application No. 278 of 2009, reviewing his earlier order dated 24.3.2009 (P-6).

2. The case has a chequered history and accordingly the facts are necessary to be delineated. The workman-respondent No. 1 had succeeded before the Labour Court and vide award dated 2.12.1992 (P-1 with the writ petition) the Labour Court directed the appellant-Board to reinstate the L.P.A. No. 386 of 2010 (O&M) -2- workman-respondent No. 1 with continuity of service and full back wages from the date of demand notice dated 10.12.1988 till re-instatement. It is appropriate to mention that the Labour Court has recorded a finding that on

6.5.1986 the workman-respondent No. 1 was getting a monthly salary of Rs. 660/- per month. His services were terminated in January 1988 without any notice or pay nor any retrenchment compensation was paid. The Labour Court also found that he has remained un-employed after his termination and could not secure any job despite efforts. He worked for total 425 working days. Accordingly, it was found that in the preceding calendar year/12 calendar months, the workman-respondent No. 1 worked for more than 240 days. The Labour Court accordingly held that it was obligatory for the appellant-Board to comply with the mandatory provisions of Section 25- F of the Industrial Disputes Act, 1947 (for brevity, ‘the Act’) while terminating his services in January 1988.

The award of the Labour Court was challenged before this Court by the appellant-Board by filing C.W.P. No. 1020 of 1994. In those proceedings the workman-respondent No. 1 filed an application under Section 17-B of the Act, bearing C.M. No. 17091 of 1997. While disposing of the said application vide order dated 22.11.2006 (P-2), this Court held that the workman-respondent No. 1 was entitled to grant of relief under Section 17-B of the Act and payment of last drawn wages at the time of termination of service from the date of publication of the award. In that regard this Court placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of Dena Bank v. Kirti Kumar T. Patel, (1992) 2 SCC 106. The operative part of the order dated 22.11.2006 reads as under:- L.P.A. No. 386 of 2010 (O&M) -3- “ Thus, I hold that the workman is not gainfully employed as envisaged under Section 17-B of the Act. Therefore, he is entitled to the relief under Section 17-B of the Act of payment of last drawn wages at the time of termination of his services. In view of the above, the management is directed to make compliance of Section 17-B of the Act from the date of publication of the award in view of the dicta settled by Hon’ble Supreme Court in Dena Bank’s case (supra). It shall be appreciated, if the compliance is made within 15 days before the date fixed for hearing of the petition. It is further observed that if the compliance is not made, the petition shall stand dismissed without being referred to the Bench for further order. Adjourned to 10.01.2007.”

4. It is, thus, obvious that a direction was issued to the appellant- Board by this Court to comply with the provisions of Section 17-B of the Act for payment of back wages at the rate of last drawn wages at the time of termination of the services of the workman-respondent No. 1. If the compliance was not made within the period of 15 days then the writ petition was to be taken as dismissed without being referred to the Bench for any further order.

5. However, the order dated 22.11.2006 (P-2) was challenged by the appellant-Board before Hon’ble the Supreme Court by way of SLP (C) No. 3657 of 2007, which initially stayed operation of the order passed by this Court. Eventually, the matter was decided on 5.12.2008 by Hon’ble the Supreme Court by passing the following order:- “ ORDER L.P.A. No. 386 of 2010 (O&M) -4- The special leave petition is dismissed. Time to comply with order of the High Court is extended till January 31, 2009.”

6. The learned Single Judge, however, un-aware of the aforesaid order passed by this Court under Section 17-B of the Act on 22.11.2006 or by Hon’ble the Supreme Court on 5.12.2008, proceeded to decide the petition vide his order dated 24.3.2009 and quashed the award dated

2.12.1992 holding that the workman-respondent No. 1 was not entitled to re-instatement with continuity of service and full back wages. Learned Single Judge although held that there was violation of Section 25-F of the Act but only awarded the workman-respondent No. 1 a sum of Rs. 20,000/- as compensation (P-6).

7. The workman-respondent No. 1 then filed Review Application No. 278 of 2009 seeking review of the order dated 24.3.2009, by pleading that the direction issued by this Court under Section 17-B of the Act on

22.11.2006 and the order passed by Hon’ble the Supreme Court on

5.12.2008 have not been considered by the learned Single Judge.

8. After noticing the aforesaid facts, the learned Single Judge allowed the review application by reviewing his earlier order dated

24.3.2009 passed by him in CWP No. 1020 of 1994. The learned Single Judge also held that order dated 22.11.2006 issuing direction under Section 17-B of the Act have not been complied with by the appellant-Board within the time fixed by this Court nor on the date when the writ petition was heard on 24.3.2009, therefore, the writ petition was liable to be dismissed. After noticing the aforesaid controversy, the learned Single Judge proceeded to held as under:- “ ……This order having been challenged before the L.P.A. No. 386 of 2010 (O&M) -5- Hon’ble Supreme Court by preferring Special Leave to Appeal (Civil) No. 3657 of 2007 by the Punjab State Electricity Board wherein initially the operation of the order of this Court dated

22.11.2006 was stayed but thereafter after various dates having been fixed, the order dated 05.12.2008 came to be passed wherein the Special Leave Petition was dismissed by the Hon’ble Supreme Court. However, time to comply with the order passed by this Court dated 22.11.2006 was extended till January 31, 2009. The effect thereof was that the order dated

22.11.2006 stood upheld by the Hon’ble Supreme Court with the only exception that the time to comply with that order stood extended till January 31, 2009. It is not in dispute that the order passed by this Court dated 22.11.2006 had not been complied with by the Board till the petition was taken up for hearing and final disposal by this Court on 24.03.2009. In the light of the order dated 22.11.2006 passed by this Court, the writ petition was deemed to be dismissed for non-compliance of the order dated 22.11.2006. The writ petition could survive at the most till 31.01.2009 and would have survived still further, if the Board would have complied with the order passed by this Court dated 22.11.2006. That having not been done by the Board, the writ petition could not have been taken up for hearing by this Court on 24.03.2009 as the same, as per the order dated 22.11.2006, stood already dismissed. When the case came up for hearing before this Court on

24.03.2009, the order dated 05.12.2008 passed by the Hon’ble L.P.A. No. 386 of 2010 (O&M) -6- Supreme Court in the SLP preferred by the Punjab State Electricity Board dismissing the SLP was not brought to the notice of the Court, leading to the passing of order dated

24.03.2009. In view of the above, the present review petition is allowed, order dated 24.03.2009 passed by this Court in CWP No. 1020 of 1994 is reviewed and in the light of the fact that the order dated 22.11.2006 having not been complied with by the Board within the time fixed by the Hon’ble Supreme Court i.e. by 31.01.2009 nor on the date when the case was taken up for hearing i.e. 24.03.2009.”

9. Feeling aggrieved, the appellant-Board has filed the instant appeal under Clause X of the Letters Patent. When the appeal was filed on

23.2.2010, there was delay and an application being C.M. No. 1073 of 2010 accompanied the appeal seeking condonation of delay of 10 days in filing the appeal. The appellant-Board, however, had not complied with the direction issued by this Court on 22.11.2006 under Section 17-B of the Act nor the direction could be complied with during the extended period granted by Hon’ble the Supreme Court by its order dated 5.12.2008. It is pertinent to mention that Hon’ble the Supreme Court extended the time till 31.1.2009.

10. Learned counsel for the appellant-Board applied for adjournment after adjournment and then an application being C.M. No. 2033 of 2010 was filed in the instant appeal showing that the aforesaid order dated 22.11.2006 as upheld by Hon’ble the Supreme Court vide order dated 5.12.2008, extending the period up to 31.1.2009, stands complied with. According to the affidavit of Senior Executive Engineer, a sum of Rs. L.P.A. No. 386 of 2010 (O&M) -7- 1,19,988/- was paid to the workman-respondent No. 1 vide cheque No. 429050, dated 2.7.2009 and the balance amount of Rs. 99,988/- has also been handed over to him vide draft No. 429091, dated 11.5.2010.

11. We have heard learned counsel for the parties and perused the record. It may be true that the workman-respondent No. 1 is not entitled to re-instatement in view of the judgments of Hon’ble the Supreme Court rendered in the cases of Ghaziabad Development Authority v. Ashok Kumar, (2008) 4 SCC 261; Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408; and Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), (2010) 3 SCC 637, yet in the present case the appellant-Board has to blame itself.

12. This Court vide order dated 22.11.2006 while disposing of C.M. No. 17091 of 1997 in CWP No. 1020 of 1994 had held the work- respondent No. 1 entitled to the relief under Section 17-B of the Act i.e. payment of last drawn wages at the time of termination of his services and the appellant-Board was directed to comply with the provisions of Section 17-B of the Act from the date of publication of the award and specified period for compliance was fixed. It was made clear that if the compliance was not made within the period stipulated then the writ petition was deemed to be dismissed. The appellant-Board did not comply with the direction and preferred to assail the same before Hon’ble the Supreme Court. Order dated

22.11.2006 remained stayed, however, on 5.12.2008, Hon’ble the Supreme Court dismissed the Special Leave Petition and extended the time to comply with the order of this Court passed on 22.11.2006 till 31.1.2009. In other words, the direction of this Court was upheld by Hon’ble the Supreme L.P.A. No. 386 of 2010 (O&M) -8- Court. Accordingly, the learned Single Judge extended the legal fiction of dismissal of the writ petition as per the condition imposed in the order dated

22.11.2006 read with order dated 5.12.2008 passed by Hon’ble the Supreme Court.

13. Once the aforesaid facts are clear, we are of the considered opinion that the learned Single Judge has taken correct decision in refusing to exercise jurisdiction under Article 226 and reviewed his earlier order dated 24.3.2009. The appellant-Board has not only contravened the direction issued by this Court on 22.11.2006 but it has also not complied with the direction issued by Hon’ble the Supreme Court vide order dated

5.12.2008. The compliance of the direction after the aforesaid date is in- consequential. The matter is aggravated further that even on the date of filing the appeal on 23.2.2010, the directions were not fully complied with. Therefore, we are not inclined to interfere with the order passed by the learned Single Judge, dated 18.11.2009 (P-9), which is subject matter of challenge in the instant appeal.

14. As a sequel to the above discussion, this appeal is wholly without merit and the same is accordingly dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE August 17, 2010 Pkapoor