JUDGMENT
H.K. Rathod, J.
1. Heard learned advocate Mr. Deepak R. Dave on behalf of the applicants – original respondents and learned advocate Mr. D.J. Bhatt for opponent – original petitioner – workman, so also, the learned AGP Mr. N.D. Gohil for opponent No. 2.
2. This application, initially, circulated before this Court on 8.8.2003 and on that occasion, learned advocate Mr. Deepak Dave for the applicants had argued the matter at length and since this Court was not inclined to allow the application and when this Court was about to pass the order rejected the present application, at that time, learned advocate Mr. Deepak Dave requested this Court not to pass rejecting the application and requested to grant of some time to enable him to seek instructions from his client about withdrawal of this matter by adjourning this matter for today. Today also, when this matter is taken up for hearing, learned advocate Mr. Dave again has requested this Court to show some indulgence but today also this Court has made it clear to the learned Advocate Mr. Dave that this Court is not inclined to entertain this application and asked him to make clear whether the applicants intend to withdraw the present application or not, but learned advocate Mr. Dave submits that the applicants are not prepared to withdraw the present application and further requested this Court to pass appropriate orders. In light of this background, this Court is required to examine the matter on merits.
3. In the present application, the applicants employer have raised contention that this Court has passed the order on 21st April, 2003 without hearing the present applicants and since certain facts regarding pendency of restoration application and other facts are required to be brought to the notice of this Court, this application is preferred. The second contention which has been raised that the original petitioner has not placed the entire facts before this Court and also not brought to the notice of this Court that restoration application being Misc. Application No. 75 / 2001 under the Payment of Wages Application No. 159 / 1996 has been filed by the employer before the Labour Court, Kalol which is pending for adjudication. Similarly, restoration application No. 74 / 2001 in Recovery Application No. 405 / 1988 has also been preferred before the labour court, Kalol which is also pending for restoration along with delay condonation application. In Reference No. 332 / 1988, Misc. Application No. 73 / 2001 has been preferred for restoration which is also pending for adjudication. In Reference No. 332/1988, according to the applicants, the applicant Nos. 2 & 3 were never party in the Reference proceedings and the award of the said reference is the subject matter of all the disputes. Therefore, the applicant Nos. 2 & 3 have been unnecessarily dragged into litigation though they are not concerned with the award. The applicants have also pointed out that because of the circumstances beyond their control and that is how they remained absent and exparte order has been passed and in absence of the details not given by the original petitioner, the order in question in this application, has been passed by this Court. It is also contended by the applicants that these facts were very well in the knowledge of the Union but the facts were not disclosed by the original petitioner before this Court. It is further submitted that just to frustrate the pending proceedings and to become the same infructuous, the workman had filed the main matter and in their absence, has obtained the orders by the original petitioner workman. Therefore, the prayer made in the application to direct the labour court, Kalol in Payment of Wages Authority to hear the restoration application submitted by the applicants. However, some allegations made against the petitioner as to deliberate suppression of the material facts and earlier similar type of case was filed by the original petitioner in Payment of Wages Application No. 8/1988 which was rejected by the labour court. There is delay in filing present review application and therefore, prayer is made to recall or review the orders passed by this Court on date 21.4. 2003.
4. Learned advocate Mr. Dave has submitted that the factory Unit has been closed down on 30.6.1992. Therefore, learned advocate Mr. Deepak Dave for the applicants has submitted that some indulgence may be shown by this Court so that the proceedings which are pending before the lower authority may be effectively moved and proper orders can be passed after hearing the respective parties.
5. Learned advocate Mr. D.J. Bhatt for the respondent original petitioner workman has submitted that the labour court has issued recovery certificates dated 3rd July, 2000 annexed at page. 19 & 20 of the original petition in favour of the Collector, Baroda but since the District Collector, Baroda has not recovered the amount in question as mentioned in the recovery certificate and therefore, the original petitioner – workman was constrained to file the main petition only against inaction on the part of the Collector which gives cause of action to file the main petition. Therefore, according to him, inaction on the part of the statutory authority is being cause of action, this Court can exercise the powers and issue proper direction to the statutory authority so that the authority concerned may implement the orders in proper perspective. Therefore, he submitted that this misc. civil application itself is not maintainable because there is no order passed by this Court against the present applicants directly but this Court has merely directed the Collector to implement the recovery certificates issued by the labour court concerned. Therefore, he submitted that present misc. civil application is not maintainable and the same is required to be rejected accordingly. He, however, emphasized that there is no need to point out and / or mention pendency of any proceedings arose after issuance of the recovery certificate in the writ petition as recovery certificate had already been issued by the labour court, Kalol and the same has not been effectively implemented by the Collector and therefore, on account of inaction on the part of the statutory authority, the main petition is filed without any consideration of merits of the matter and therefore, the Court has rightly directed to the Collector to implement the recovery certificates. Therefore, there is no need to mention the factual aspects relating to the merits of the matter in the writ petition preferred by the workman and the same has not been mentioned by the original petitioner.
6. I have considered submissions made by the learned advocates for the respective parties. In the facts of this case, certain details are required to be referred. The respondent workman was working with applicants herein for more than four years as workman and his services came to be terminated on 2nd June, 1988. Therefore, he raised industrial dispute, which referred for adjudication on 22nd August, 1988 being Reference No. 332/ 1988. The Labor Court, Kalol has issued Notices to the applicants V.J. Engineering Works addressed to the Manager and the applicant had engaged the Advocate Mr. H.J. Trivedi before the labour court, Kalol. Thereafter, the labour court, Kalol has examined the matter on merits after hearing respective parties on merits. Ultimately, the labour court, Kalol has passed the award on 13th November, 1992 wherein the labour court has set aside the termination order and granted reinstatement with continuity of service with full backwages of the interim period and also directed to the present applicants to implement the award within 30 days from the date of its publication. It is necessary to note at this stage that it was by parte award wherein relief has been granted in favour of the respondent workman and the same has not been challenged till date by the applicants before the higher forum. But one Misc. Application No. 73 / 2001 has been filed by the present applicants before the labour court in the year 2001 challenging the award, which was in fact not exparte passed by the labour court on 13th November, 1992. In pursuance of the award passed by the labour court in above Reference No. 332/ 1988, not implemented by the present applicants and therefore, for the claim of the workman for backwages as well as regular current salary for each month the labour court has passed the order in favour of the workman and that is how, the workman has filed recovery application under the Payment of Wages Act being Recovery Application No. 159 / 1996 wherein the labour court, Kalol has passed the order on 6th December, 1996 allowing the recovery application under Payment of Wages Act and directed the applicants to make payment as per the order passed by the Payment of Wages Authority. This order has been passed by the Payment of Wages Authority in absence of the present applicant though notices were issued by the Payment of Wages Authority to the applicants but they remained absent and therefore, ultimately, exparte order has been passed. Thereafter, the workman had filed another Recovery Application under Section 33[2][C] of the I.D. Act, 1947 being Recovery Application No. 405 / 1988. However, the same was also remained exparte because, inspite of notices though served on the present applicants but the applicants herein not remained present and no appearance of the Advocate was filed and ultimately, the labour court was not having any other option but to proceed with the matter and to pass order on 12th December, 1997 allowing the recovery application with direction to the applicants to make necessary payment which has been found to be due by the labour court. Against this exparte order, under the Recovery Application No. 405 / 1988, one Misc. Application No. 74 / 2001 has been filed in the year 2001. Therefore, on behalf of the applicants, in all three misc. applications have been filed by the applicants viz. 73 / 2001, 74/2001 and 75/ 2001 challenging the orders dated 13th November, 1992, 6th December, 1996 and 12th December, 1997 passed by the labour court, at least after a period of more than five years subsequently with a view to see that the award in question may not be implemented effectively against the present applicant. It is also necessary to note that in none of the applications filed by the applicants, wherein, delay has been condoned by the labour court, so that the matters still remained at the stage of consideration of delay condonation application submitted by the applicants. Therefore, even the main application is not entertained till date for more than two years have passed. From the date of filing of these three applications before the labour court by the applicants, no interim stay has been granted in any of the applications by the labour court and the matter remained pending for a period of more than two years before the labour court. It is also necessary to note that after filing of the application before the labour court in the year 2001, present applicants remained inactive and no effective steps have been taken for early hearing of the application before the labour court.
7. At this stage, learned advocate Mr. Deepak Dave has submitted that the matter is on the board of the labour court and every time the matter is being adjourned from time to time. At this occasion, this Court has asked pertinent question to the learned advocate Mr. Deepak Dave to the effect that whether on any occasion during the last two years, the applicants have insisted upon the labour court to proceed with all three matters and whether such request made by the learned advocate for applicants has been rejected by the labour court. But while replying this querry, he submits that he is not in a position to make any statement because he is not aware of any such facts, meaning thereby, once the learned advocate Mr. Dave is not aware of the factual aspect and therefore, the natural presumption that during this two years period, the applicants herein have not made any effective steps for hearing of either delay condonation application and / or main application or interim relief applications before the labour court. Thus, this is a clear inaction on the part of the applicants.
8. The labour court has passed the order in Recovery Application under the Payment of Wages Act in Application No. 159 / 1996 dated 6th December, 1996 and recovery application No. 405 / 1988 dated 12th December, 1997 which remained without any implementation by the applicants and no steps have been taken by the applicants for a period of five years for the order dated 6th December, 1996 and for a period of four years in respect of the order dated 12th December, 1997. In between, when the order of the labour court has not been implemented by the applicants and therefore, the respondent workman has approached the labour court and requested to issue recovery certificate in favour of the Collector so that the Collector, Baroda can recover the amount in question as ordered by the labour court. Upon request made by the respondent workman, the labour court, Kalol has issued recovery certificate in favour of the Collector, Baroda on date 3rd July, 2000 in respect of both the proceedings. One certificate issued for a sum of Rs. 1,43,893/- in respect of payment of wages application No. 159 / 1996 dated 3rd July, 2000 and second certificate is issued in respect of Application No. 159 / 1996 dated 3rd July, 2000 for the order dated 5th February, 1998 passed by the Labour Court. Except these two certificates, the respondent workman has not produced any other certificate in main petition. Therefore, now the matter is required to be considered by this Court that recovery certificate is in respect of the only one proceeding under Payment of Wages Application No. 159 / 1996 and the order therein passed by the labour court. In respect of the recovery application No. 405 / 1988, by order dated 12th December, 1997, the labour court has issued recovery certificate which is not annexed by the petitioner. However, learned advocate Mr. Bhatt submitted that in respect of the Recovery Application No. 405 / 1988, recovery certificate has been issued by the labour court, Kalol in favour of the Collector , Baroda dated 27th July, 1998 which was not implemented by the Collector and therefore, a writ petition being Special Civil Application No. 6428 / 2003 was filed wherein according to learned Advocate Mr. Bhatt, this Court has directed the workman to approach by way of representation to the Collector, Baroda because in Special Civil Application No. 4830 / 2003 once the direction has already issued by this Court. Therefore, considering this fact, this Court has directed to the Collector, Baroda to implement the recovery certificates which are annexed to this petition at page. 19 & 20 Annexure-C dated 3rd July, 2000 relating to the only payment of wages authority Application No. 159 / 1996.
9. At this stage, learned advocate Mr. Bhatt has submitted against the submissions made by the learned advocate Mr. Dave that the factory is closed down in the year 1992 but the same employer has restarted the said factory at GIDC in the name of Jupiter Engineering Works and even in the recovery proceedings also, they were joined as the party and notices were served but they remained absent and therefore, recovery certificate came to be issued by the labour court, Kalol against Jupiter Engineering Works. Therefore, in light of this fact, this Court has passed the order on 21st April, 2003.
10. It is pertinent to note that this Court has directed the District Collector, Baroda to make effective recovery as per the recovery certificate which is at page. 19 & 20 dated 3rd July, 2000 to recover the said amount as mentioned in Recovery Certificate from the respondent Nos. 1 to 3 present applicants within two months from the date of receiving the copy of this order. Thus, it is clear that the petition which has been filed by the respondent workman only against inaction on the part of the District Collector, Baroda. There is no need for this Court to enter into merits of the matter when there is clear inaction of the part of the statutory authority under challenge. It is to be reminded that this Court having powers to issue writ of mandamus even without calling such statutory authority when this Court satisfy that there is inaction on the part of the statutory authority which is under statutory obligation to implement the recovery certificate issued by the labour court. Therefore, this Court has not issued any notice to any of the party including the District Collector concerned. For that, in my opinion, there is nothing wrong while straightaway issuing directions on the statutory authority as per the recovery certificate which is mandate of the labour court to implement the recovery certificate within some reasonable time. Therefore, this Court has passed the order on 21st April, 2003 in absence of the respondent – applicants herein as there was no need to issue any notice to the applicants since this Court had not examined the merits of the matter. Even considering the prayer made by the original petitioner workman in the main petition, to direct the respondent authority to recover the amount of Rs. 1,43,893.00 ps as per the recovery certificate issued by the Labour Court, Kalol. Therefore, as per the main prayer in the main petition, the applicants herein were the formal parties and the main prayer was sought against the respondent authority – Collector concerned and therefore, the applicants herein have no locus to resist or request this Court to recall and / or review the order passed by this Court on 21.4.2003. If the applicants had any grievance, they would have certainty remained present in the recovery application proceedings preferred by the workman but the applicants have chosen not to remain present before the labour court concerned at the relevant time in said proceedings preferred by the workman. It is also necessary to note that the lethargic approach of the present applicants and tactics not to give effect of any of the orders passed by the labour court by adopting such practice which ultimately amounts to misuse and abuse of process of Court by merely filing such applications admittedly time barred after delay of four to five years and this delay itself suggests that such intentional gross delay may not be condoned by the court. Therefore, according to my opinion, this Court has rightly passed the order with direction to the Collector to implement these two recovery certificates annexed on page. 19 & 20 of the main petition, within two months. Now if this Court considers the agony of the workman, it clearly transpires that the workman came to be terminated on 2nd June, 1988 and by now, 15 years have passed and the workman is without reinstatement or any financial benefits which he is able to establish after long litigation but on the other hand, the employer is happily enjoying the process of Court and made efforts to remain silent upto 2001 despite of the fact that no order has been passed by the labour court concerned in favour of the employer either in the Reference or even in the recovery application. Not to take cognizance of the authority and the order passed by the labour court as if what will happen ultimately and at the most, the employer can approach the Court by way of an application and the concerned court will consider the same and thereby they will delay the matter to create a situation and circumstances to an extent just to delay the matter and ultimately, to see that the workman must surrender the terms of the employer and comes forward across the table for a settlement as per the desire of the employer. This is nothing but a practice and tactic adopted by the present applicants to see that the workman may not be able to get complete result of the proceedings which has been decided by the competent Court long back in the year 1992, 1996 and 1997. It also transpires that this is clear case of misuse and abuse of process of Court to file such application with prayer to recall or modify the order passed by this Court on 21st April, 2003. Therefore, in my opinion, such type of efforts made by the applicants only in the guise of pendency of such application which is apparently time barred for more than four to five years. Such applications were filed for the sake of defence to show on record that some proceedings are pending initiated by the employer. But fact remains that the workman who remained out of job since 1988 despite of having award in his favour from 13th November, 1992 and the orders in recovery applications dated 6th December, 1996 and 12th December, 1997 but till this date he is not able to receive any single pie from the applicants and even not able to get reinstatement. Therefore, it is pertinent to note that this is nothing but some lacuna in the implementing law and procedure under the relevant Act either in the Industrial Disputes Act, 1947 and Industrial Disputes [Gujarat] Rules, 1966. The appropriate authority is the Labour Court and the High Court is not entertaining the Contempt Petition only on the ground that workman having alternative remedy to file recovery application if award is not implemented by the employer. When recovery application is filed and ultimately, if any order is passed in the recovery application and the same is not being implemented by the employer, then the workman is remained without any remedy except with remedy to approach the labour court with request to issue recovery certificate. It is second stage of award passed by the labour court. In third stage, after issuance of the recovery certificate in favour of the Collector, but if the Collector concerned is not implementing such recovery certificate within reasonable time, then the workman shall have to approach this Court seeking directions on the Collector concerned so that he can implement the recovery certificate while recovering the amount from the employer as mentioned in the recovery certificate. Therefore, at the third stage, this Court has to direct the authority concerned to implement the recovery certificate within some reasonable time. In the instant case, this Court, at the third stage discussed above, has directed the Collector concerned to take effective steps within two months. But at this stage also, the present application is filed by the employer with a view to see that delay condonation application which are pending, some orders may be passed by this Court directing the labour court concerned to expedite the hearing of such grossly belated applications pending before the Labour Court. However, if the prayer made in the present application is entertained, it would amount to encouraging the employer and giving them a handle for fresh round of litigation against the workman. Therefore, this Court is not inclined to accept the prayer made by the applicants, nor inclined to encourage such belated litigation preferred by the employer with a view to avoid implementation of the award when four to five years have already passed from the date of order passed by the labour court concerned. The application is filed in the year 2001 but prior thereto, on 7th March, 2000 the labour court has passed the order granting recovery certificate in favour of the District Collector, Baroda but it is surprising that the concerned Collector has also set tight over the matter for more than one year and as such, not made any efforts giving a chance and / or opportunity to the applicants to move such applications before the labour court concerned in the year 2001. This Court fails to understand as to why the Collector has not implemented the recovery certificate within one year which has given cause to the employer to file such belated applications before the labour court. That is how, the workman who is able to get the result in his favour after a period of atleast four to five years in the Reference proceedings, then he is not able to get final result in such proceedings because of some lacuna for effective implementation of such award and the order passed by the labour court. Therefore, it is necessary to note that the State Government should amend the Law similar to the West Bengal State Rules, and the A.P. State Rules where the labour Courts are having powers to execute the order like decree of the Civil Court in case of the award in question is not being implemented by the employer. No such powers have been conferred under the State Law under the Industrial Disputes [ Gujarat ] Rules, 1966 and therefore, in my opinion, such powers should be conferred on the Labour Court and the labour court should be made competent to entertain the execution applications in case the award in question is not being implemented by the employer within time prescribed by the labour court. Therefore, this is really an important issue which requires immediate attention of the State Government to amend the Rules giving powers to the labour court for execution so that the workman should not suffer and the management will not be able to easily avoid implementation of the award / orders passed by the labour court concerned.
11. In one such similar case of VINODRAI AMRUTLAL ADHVARYU v. SAVARKUNDLA NAGAR PALIKA in Special Civil Application No. 2765 of 2000, this Court (Coram : H.K. Rathod, J.) has passed interim order on 10th April, 2000. The observations made by this Court which are relevant and material for the purpose of the present matter are reproduced as under:
“Considering these aspects of the matter, under the provisions of the ID Act, 1947, there are only two remedies one is that of prosecution and the another is recovery. Except that, there is no machinery provided under the ID Act, 1947 for implementation of the award or order passed by the Labour Court or the Industrial Tribunal. Therefore, considering this aspects, two States of this Country namely State of Andhra Pradesh and State of West Bengal have carried out amendment in the Statute Book by introducing section 11B in the main Principal Act, has given power to the labour court or the Industrial Tribunal to execute its award by decree. The State of Andhra Pradesh has amended and inserted section 11B as under:
’11.B Power of the labour court or tribunal to execute its award by decree.
The labour court or the tribunal shall have power of the civil court to execute its award or any settlement as a decree of a civil court vide Andhra Pradesh Act 32 of 1987.’
Similarly, in the Statute of West Bengal also, section 11B has been inserted after section 11A of the Principal Act which reads as under:
’11.B Power of the labour court or the tribunal to execute its award by decree.
The labour court or the tribunal shall have the power of the civil court to execute its own award as a decree of civil court and also to execute any settlement as defined in section 2P as a decree. West Bengal Act LV II of 1980. Section 5.’
Therefore, I have considered these two amendments carried out by the State of Andhra Pradesh and the another by the State of West Bengal. In the State of Gujarat, there is no such amendment in the Principal Act. Under section 38 of the Industrial Disputes Act, 1947, the appropriate Government has power to frame rules and the appropriate Government may subject to condition of prior publication make rules for the purpose of giving effect to the provisions of this Act. Clause (2) in particular and without prejudice to the generality f the foregoing power such rules may be provided for all or any of the matteRs. Therefore, considering this question, when there is no effective machinery provided under the Act for implementation of the award or any orders passed by the labour court or the tribunal, now, there is need to have some more provisions in the Industrial Disputes Act, 1947. In view of these facts, it is the duty of the State authority or the appropriate Government to consider this aspect and to frame some rules or carry out some amendment so as to provide effective machinery for implementation of the award or any orders passed by the labour court or the tribunal under the provisions of the Industrial Disputes Act, 1947. ”
12. It may be reminded that on earlier occasion, the attention of State Government was drawn by this Court on the above issued as referred above but till date no effective steps have been taken by the State Government. It is also pertinent to note that the facts of this case is really not tolerable from any angle and the same is very heart burning. The workman who has been terminated by the employer on date 2nd June, 1988 and inspite of three orders passed by the competent court in favour of the workman, and when none of the orders has been challenged before the higher forum well in time and that orders came to be challenged by applications after long span of four to five years but fact remains that the workman, till date, is not able to get reinstatement and / or even a single pie from the employer. It is also necessary to note that one misc. application is filed by the present applications being Application No. 73/ 2001 against the award passed by the labor court in Reference No. 332 / 1988 which was not exparte even such application is filed with a view to avoid implementation merely under the guise of pendency of such application. This is nothing but clear malafide approach on the part of the employer and the Court should not interfere and encourage the tactics adopted by the employer at this belated stage while entertaining such frivolous application before this Court.
13. In view of above discussion, there is no substance in the present application and therefore, this application is not entertained and the same is rejected accordingly. However, in my opinion, such application is required to be rejected with cost which is quantified at Rs. 5,000/to be paid by the present applicants by way of A/c Payee Cheque drawn in the name of the workman, to the respondent workman within 15 days from the date of receiving the copy of this order and the said cheque to be handed over to the learned advocate Mr. D.J. Bhatt for respondent workman.
14. The Office is directed to immediately send a copy of this order as well as interim order dated 10.4.2000 passed by this Court in Special Civil Application No. 2765 of 2000 to the State Government through the Secretary, Labour and Employment Department and the Secretary, Legal Department with remarks to take effective steps in the matter of amendment of the Industrial Disputes [ Gujarat] Rules, 1966 while making such provisions of giving powers to the labour court to entertain the execution proceedings against the employer in case of non implementation of the award / order passed by the labour court.
Direct Service permitted to respondent workman.
