JUDGMENT
Sunil Ambwani, J.
1. Heard Shri A.K. Singh, learned Counsel for petitioners and Shri V.M. Zaidi, for respondent.
2. By this writ petition, the Union of India through its Secretary. Ministry of Finance, New Delhi and General Manager, Government Opium and Alkaloid Works, Ghazipur, have prayed for a direction to quash an order dated 10.10.2005 passed by Regional Labour Commissioner, (Central) Kanpur by which a requisition certificate in Form II in compliance with the order dated 3.10.2005 of this Court in writ petition No. 64221 of 2005 as per Section 33C(1) of the I.D. Act, 1947 is to be enforced for recovery of the amount as per settlement dated 20.4.1998 and EGIT Award No. 11/1978 in favour of 40 casual labourers. The requisition certificate in Form-II seeks to recover Rs. 7,80,120/- as per settlement dated 20.4.1998 in favour of 40 casual labours. The Sub Divisional Magistrate has directed the Branch Manager, State Bank of India Ghazipur to attach the account of the petitioners in pursuance to the recovery certificate giving rise to this writ petition.
3. Shri A.K. Singh learned Counsel for petitioners submits that the respondent-union tiled a writ petition which was allowed directing the appellant to engage the members of the petitioner-union as casual worker and to pay their dues. The Division Bench in Special Appeal No. 743 of 2002 by its judgment dated 29.1.2003, relying upon Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant , set aside the judgment and directed the workmen to seek their remedies by industrial adjudication.
4. The respondent union filed application on 17.2.2003 before the Assistant Labour Commissioner, Allahabad for implementing the settlement arrived at between the management of Opium and Alkaloid Factory Workers Union on which a notice was issued. The Opium factory Labours Union also moved an application before the Central Government, Industrial] Tribunal, Kanpur on 10.4.2003, for asking the petitioners to pay the amount under the settlement to the 40 workmen. In its reply, the General Manager submitted to the Assistant Labour Commissioner, on 29.9.2003 that the 40 workers were paid as per the terms and conditions of the ministry’s letters dated 17.1.1997 and 7.5.1999. The Regional Labour Commissioner advised the General manager of the Opium and Alkaloid Works Ghazipur on 18.3.2005 to pay the amount and or to show cause within 15 days as to why certificate should not be issued to the Collector under Section 33C(1) of the I.D. Act 1947. The General Manager submitted its reply on which an order was made by the office of the Assistant Labour Commissioner (Central) on 27.11.2003 to implement Clause-4 of the settlement in letter and spirit.
5. While referring to the settlement dated 20.4.1998 arrived at between the management and the union, the Assistant Labour Commissioner considered the reply that the proposal for implementation has been sent to the higher authorities for approval. The Clause 4 of the settlement clearly stated “providing the employment to the 40 daily wages (casual workers) should be appointed as casual workers in view of large work load in the Opium season. Chief Controller of Factories approval should be taken immediately. The management agreed to the proposal of the Union.” The office of the Regional Labour Commissioner thereafter passed an order on 11.7.2005 informing the petitioner No. 2 that he would like to visit Ghazipur factory on 21.7.2005 to intervene into the dispute. On 3.8.2005 in a joint meeting between the General Manager, Opium and Alkaloid Works Ghazipur, the Manager of the Factory, the Advisory of the Union, Sub Divisional Magistrate, Sadar, Ghazipur and Additional Labour Commissioner, Allahabad, it was agreed that the General Manager will take up the matter with senior officers, Special C.C.F. to settle the long pending disputes and communicate the decision of C.C.F. to Regional Labour Commissioner, Kanpur within one week. It appears that instead of giving specific reply with regard to the decision of the C.C.F., a letter was sent by the General Manager, Government Opium and Alkaloid Factory on 11.8.2004 that Clause-4 of the settlement dated 20.4.1098 has been fully complied/implemented with by the Management and in this regard the letter dated 19.12.2003 was submitted to the Regional Labour Commissioner, Kanpur. The Manager again intimated to the Regional Labour Commissioner on 19.12.2003 that the workers were engaged after taking their written consent to be appointed as daily wage workers and therefore the question of claim of these workers for any higher wages is not justified. It was submitted that these workers were employed for 90 days during 1999 season but that did not entitle them for regular appointment and reiterated with Clause-4 of the settlement has been implemented. On 28.6.2000 the General Secretary, Ministry of Finance informed Commissioner and Directorate of B.E.C. that daily wages cannot be given temporary status for appointment of vacancies. It is in these circumstances the recovery was initiated.
6. Shri A.K. Singh states that the award has been implemented and that seasonal workers, engaged only for a short period, are not entitled to temporary status. He submits that there was no industrial adjudication and that the order under Section 33C(1) of the I.D. Act 1947 is wholly without jurisdiction. The factory cannot treat the casual seasonal labourers as temporary hands for payment of wages.
7. The petitioners have not denied that mere was a settlement between the management and the union registered with Assistant Labour Commissioner, Allahabad on 20.4.1998. It was singed by Shri Prem Chandra representing management and Shri Bal Roop Slianna representing workmen. The settlement preceded a notice of strike No. 10 of 1998 dated 19.3.1998 w.e.f. 10.4.1998 with 12 demands. The Assistant Regional Commissioner called both the parties for discussion/conciliation on 9.4.1998 and that the union agreed to defer the proposed strike and agreed to resolve the issue through mutual discussions and that on 20,4.1998 the following terms and settlements were entered between them and was verified by Assistant Labour Commissioner, Allahabad.
“Terms of retirement.
1. Payment of minimum wages to the daily wages workers as per Cat’s judgment in case No. 11/1978
The management agreed to send the proposal to implement the Award in true spirit for payment of minimum wages.
2. Consideration of casual workers having technical certificate for the technical post in the case of Sh. Subhash Chandra Prajapati, Sh. Dharam Dev Yadav and Sh. Ravindrq.
The management assured that they will be considered whenever vacancies arise.
3. Payment of Hazard allowance to casual and seasonal workers.
The management informed that the issue will be taken up with the appropriate Authority immediately.
4. Providing the employment to the 40 daily wages casual workers) should be appointed as casual workers in view of large work load in the Opium Season. CCF., Approval should be taken immediately.
The management agreed to the proposal of the Union.
Both the parties agreed to resolve the other issues mutually.
The parties shall submit implementation/compliance report by 15.5.1998.
Representing management Representing workman
Sd/- Sd/-
(Prem Chandra) (Bal Roop Sharma)
Witnesses Before
1. Sd/- illegible
2. Sd/-Illegible (G.P.V.L.N. Rao)
Asstt. Labour Commissioner (c)
Allahabad
8. Clause-4 of the settlement clearly provides that the employment to 40 daily wages (casual workers) should be appointed as casual workers in view of large work load in the opium season. Chief Controller of Factories approval should be take immediately.
9. The management has not implemented Clause-4 of the settlement entered in conciliation proceedings before the Assistant Labour Commissioner for nine years. Learned Counsel for petitioner contends that the matter required approval of the higher authorities. The response made to the Assistant Labour Commissioner, Central in the letters dated 19.12.1993 and 11.8.2004 shows that the stand taken by the petitioners was not clear. In the letter dated 19.12.2003, the Manager; Government Opium & Alkaloid Works Undertakings, Ghazipur stated on his own that these workers were employed for 90 days during 1999 season and that they are not entitled to regular employment. It was further stated in this letter that Ministry vide their letter F. No. 66012/5/96 CM dated 25.7.1990 and 7.5.1999 addressed to the Chief Controller of Factories, Gwalior had conveyed their approval to engage 40 workers for specific job of scraping, cleaning and washing of vats and trays for a period not exceeding three months and also the Chief Controller of Factories Gwalior vide his letter F. No. 11/15/3Estt/3097 dated 12.09.95 (copy enclosed) has permitted to engage the said 40 number of persons on contract basis after completing the required formalities at the rate fixed by the District Collector of State Government. The said workers were engaged after getting their written consent to be appointed as daily wage workers, therefore the question of claim of these workers for the higher wages does not arise and hence not justified. The offer of said job does not confer on them any right to have a continuous or regular appointment under any rules what so ever not does it entitled them for higher wages. In this regard the petitioner relies upon a copy of O.M. F. No. 49014/2/86 Estt/(C) of D.O.P.T. Dated 7.6.88 states mat contention of Asstt. Labour Commissioner that the said 40 workers were not given appointment as per approval of the Ministry/Chief Controller of Factories in para 6 of his letter is not based on facts.
10. It is apparent that the petitioners are still relying upon the letter of Chief Controller of Factories, Gwalior dated 12.9.1996 whereas the settlement was entered on 20.4.1998 and that vide letter dated 7.5.1999 addressed to Chief Controller of Factories, Gwalior had conveyed their approval to engage 40 workers for specific job scrapping, cleaning and washing plats and trays for a period not exceeding three months. This letter was in response to the letter of the Chief Controller of Factories dated 12.9.1996 and not to the approval for settlement dated 20.4.1998. In fact, there is no pleading nor anything suggests on record that after the settlement dated 20.4.1998 the management requested for approval of Chief Controller of Factories for engaging 40 daily wagers as casual Workers.
11. It is in these circumstances that the order was made by the Regional Labour Commissioner (C) Kanpur under Section 33C(1) of I.D. Act 1947 to recover the wages of these 40 casual labourers from the petitioner.
12. A perusal of the record shows that after the settlement a letter was sent by the General Manager, Government Opium Alkaloid Works Ghazipur to Chief Controller, Government Opium & Alkaloid Factories, New Delhi for payment of minimum wages with financial implications of Rs. 4,53,040.00 with his opinion that it will be difficult to pay the daily wagers as casual workers. The Government of India, in response to the letter of Chief Controller of Factories dated 22.4.1999, wrote to him conveying approval of the Government for engagement of 40 casual workers for a period not exceeding three months subject to the condition that employment of casual workers may be considered on merits and only those workers may be employed whose number of working days in a particular year does not reach the limit whereby they get entitled for being appointed on regular basis and as such approved the engagement of 40 casual workers for three months in a year without recognising their appointment of regular basis. The management of the Government Opium & Alkoid Works, Ghazipur, however, did not extend this benefit to these workmen and have still allowed to them to continue on daily wages basis.
13. I do not find any error in the order passed by the Assistant Labour Commissioner,(Central) Allahabad under Section 33C(1) of I.D. Act 1947 for implementation of the settlement which was approved by the Central Government. The Chief Controller, Government Opium & Alkaloid Factories has failed to implement Clause-4 of the settlement giving rise to the proceedings under Section 33C(1) of the I.D. Act, 1947 and the order of the Assistant Labour Commissioner to pass the order.
14. The quantum of the amount in the recovery certificate has not been denied. The writ petition is dismissed.