Baratang Forest Worker'S Union And ANR. v. Union Of India And 05 ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRITJURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT:THE HON'BLE JUSTICE AMRITA SINHA WPA/133/2020 BARATANG FOREST WORKER'S UNION AND ANOTHER ... PETITIONERS VS.

UNION OF INDIA AND 05 OTHERS ...RESPONDENTS For the petitioners : Mr.Gopala Binnu Kumar For therespondents : Mr.Shatadru Chakraborty, Sr. Adv Mr. Rakesh Kumar Mr.Dibesh Dwivedi Heard on : December 03, 2024 Judgment on : December 10, 2024 AMRITA SINHA, J.

1.

Petitioner No.1 is a registered trade union and the petitioner no. 2 is the President of the said union. The members of the union were engaged as Daily Rated Mazdoors (DRMs) in the year 1990 onwards and are/were discharging their duties and responsibilities similar to regular employees for eight hours a day but were paid lesser salary than the regular employees.

2.

In terms of the judgment passed by the Hon'ble Supreme Court in the matter of Surinder Singh vs. Chief Engineer (CPWD); (1986) 1 SCC 639,the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) vide Office Memorandum dated 7th June 1988 reviewed the policy regarding recruitment of casual workers and persons on daily wages. Certain guidelines were laid down in the said Office Memorandum, one of which mentions that where the nature of work entrusted to the casual workers and the regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of eight hours a day. 3.

As the members of the petitioner union were not paid wages in accordance with the aforesaid memorandum, the union raised an industrial dispute before the Conciliation Officer. On failure of conciliation a reference was made to the Labour Court for adjudication being ID Case No. 03 of 2002 (133 Daily Rated Mazdoors under the Divisional Forest Officer, Baratang represented by the Baratang Forest Worker's Union vs. The Divisional Forest Officer, Baratang). On contested hearing an award was passed by the Industrial Tribunal on 13th July, 2005 by holding that 122 workmen whose names appeared at serial nos. 1 to 20, 22 to 24, 26 to 34, 36 to 51, 54 to 59, 61 to 72, 74 to 80, 82, 83, 85 to 94, 96 to 103, 105 to 107, 109 to 116, 118, 120, 122, 124 to 126, 128, 129 to 139 were entitled to get daily wages at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness

allowance in terms of the Office Memorandum dated 7th June, 1988 from the date of their initial engagement till 31st August, 1993. 4.

Being aggrieved by the award passed by the learned Tribunal, a writ petition being WP No. 176 of 2005 was filed by the Divisional Forest Officer, Baratang which stood rejected by the Hon'ble Single Judge vide judgment dated 13th March, 2006. An appeal being MAT No. 16 of 2006 was filed by the Divisional Forest Officer, Baratang challenging the order passed by the Hon'ble Single Judge. The Hon'ble Appeal Court vide order dated 15th July, 2006 dismissed the said appeal. The Divisional Forest Officer, Baratang thereafter filed a Special Leave Petition before the Hon'ble Supreme Court which was later registered as civil appeal being Civil Appeal No.7177/2009.

5.

During the pendency of the appeal before the Hon'ble Supreme Court, the Conservator of Forests (HQ) passed an order on 31st March, 2010 communicating the order of the Lieutenant Governor for payment of wages to the workers at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance. It was ordered that all the 136 DRMs of Baratang Forest Division, some of whom were presently posted in the Havelock Forest Division, would be paid daily wages at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance with effect from 1st April, 2010 without prejudice to the rights and contention of the Administration in the pending case before the Hon'ble Supreme Court.

6.

The order of the Conservator of Forests specifically records that the representation filed by the worker's union praying for implementation of the award of the Industrial Tribunal was examined by the Hon'ble Lieutenant Governor and the Hon'ble Lieutenant Governor was pleased to order the payment of daily wages on condition that in case the SLP is disposed of in favour of the Administration, the additional financial benefits shall be recovered. The benefit was to be extended only after obtaining an undertaking from the workers that the additional financial benefits given to them will be refunded by them in case the Supreme Court disposed of the pending case in favour of the Administration.

7.

By order dated 19th February, 2016 the Hon'ble Supreme Court disposed of the appeal by observing that in view of the subsequent order of the Government with regard to the entitlement of pay of the workers, no live issue was left for adjudication in the appeal. The said order was passed upon consideration of an application filed by the union mentioning that the appellant i.e the Divisional Forest Officer, Baratang complied with the notification dated 7th June, 1988 and extended the benefit of 1/30th of pay along with dearness allowance to all DRMs working under the appellant in the Baratang Division whose names were included in the award passed by the Industrial Tribunal. 8.

In the said application it was mentioned that due to the pendency of the civil appeal before the Hon'ble Supreme Court, the benefit which accrued to the workers was not being paid. It was also mentioned in the

said application that due to commitment given by the learned counsel for the workmen, the award could not be put to execution. In the application the workmen prayed before the Hon'ble Supreme Court for issuing appropriate direction upon the appellant as the appeal almost became infructuous.

9.

After disposal of the appeal by the Hon'ble Supreme Court on 19th February, 2016, the union again filed representation on 23rd February, 2016 followed by further representations seeking implementation of the direction passed by the learned Industrial Tribunal. 10.

The Conservator of Forests by a communication dated 21st July, 2016 intimated the union that the order of the Hon'ble Supreme Court dated 19th February, 2016, upon recording the subsequent order of the Administration dated 31st March, 2010, implies that the award passed by the Industrial Tribunal stood modified and the workers of the union were rightly paid their due with effect from 01st April, 2010. 11.

The petitioners contend that no order has been passed by any Court of law setting aside/modifying the award passed by the learned Industrial Tribunal and, as such, the workers would be entitled to the wages on and from the date of their initial engagement. It has been submitted that as the order passed by the learned Tribunal stood affirmed by the Hon'ble Single Bench, the Hon'ble Division Bench and lastly the Hon'ble Supreme Court, accordingly, the respondent authority would be duty bound to make necessary payment to the workers on and from their respective date of engagement.

12.

Prayer has been made to direct the authority to act in strict compliance of the award of the learned Tribunal and pay the workers their legitimate legal dues.

13.

The submission and the prayer of the petitioners are opposed by the respondents. It has been submitted that the writ petition is liable to be dismissed on the ground of delay as the petitioners approached this Court long after the order was passed by the Conservator of Forests on 31st March, 2010 and even long after the appeal stood disposed of by the Hon'ble Supreme Court in February, 2016.

14.

The petitioners accepted their payment on and from 1st April, 2010 in terms of the order passed by the Administration and did not raise any issue in the pending appeal before the Hon'ble Supreme Court. The conduct of the workers implies that they were satisfied with their payment with effect from 01st April, 2010. The workers have also been regularized.

15.

It has been argued that the appeal before the Hon'ble Supreme Court was disposed of relying on the application filed by the union admitting that payment was made to them in terms of the Office Memorandum dated 7th June, 1988. Once the union admits that proper payment in terms of the Office Memorandum was made, later the union cannot turn back and submit that the award passed by the Tribunal has not been complied. The union ought not to be permitted to take contrary stand at different points of time.

16.

It has been submitted that the issue in the instant writ petition has been put to rest by the order passed by the Hon'ble Supreme Court where satisfaction with regard to the payment received by the workmen has been taken note of as disclosed in the application filed by the union. The writ petition will be barred by the principle of res judicata. The petitioners ought not to be permitted to re-agitate the issue all over again.

17.

Prayer has been made to dismiss the writ petition. 18.

I have heard and considered the submissions made on behalf of both the parties and have perused the materials on record. 19.

It appears that the workmen, through the union, have pressed their rights to receive payment in accordance with the Office Memorandum of the Central Government regarding payment of wages to the DRMs. The dispute was highly contested before the Industrial Tribunal which ruled in favour of the workers. The Administration preferred appeal challenging the award but failed to get any relief either before the Single Judge or the Division Bench. The Administration failed to obtain any stay order in their favour before the Hon'ble Supreme Court in the appeal preferred by it. A commitment was made by the learned advocate representing the union before the Hon'ble Supreme Court that the order passed by the Tribunal would not be put to execution during the pendency of the appeal before the Hon'ble Supreme Court. As the appeal before the Hon'ble Supreme Court remained pending for a considerable period, and at the same time, the workers

were not being paid their wages as per the order passed by the learned Tribunal, a representation was made by the union before the Administration praying for release of the wages of the workers in accordance with the award of the learned Tribunal. 20.

The prayer of the union was examined by the Hon'ble Lieutenant Governor and order was passed for payment of daily wages at the rate prescribed in the Office Memorandum dated 7th June, 1988 with effect from 1st April, 2010, subject to the order passed by the Hon'ble Supreme Court in the pending appeal.

21.

There is no explanation or reasoning mentioned anywhere in the order of the Lieutenant Governor communicated by the Conservator of Forests as to why the benefit would be paid to the workers on and from 1st April, 2010 even though there is a specific order of the Tribunal that the payment is to be made on and from the initial date of engagement of the workers.

22.

When there is specific direction passed by the learned Tribunal, affirmed by the Hon'ble Single Bench and the Hon'ble Division Bench, the authority was duty bound to act in accordance with the direction passed by the learned Tribunal.

23.

The order of the Lieutenant Governor communicated by the Conservator of Forests for making payment with effect from 1st April, 2010 appears to be an interim measure taken during the pendency of the appeal before the Supreme Court. The Conservator of Forests made it explicitly clear that the payment would be made without prejudice to

the rights and contention of the appellant and if the appeal is disposed of in favour of the appellant, then the excess sum drawn by the workers would be recovered by the Administration.

24.

The respondent authority never raised the issue of entitlement of the workers to receive pay as per the Office Memorandum of the Central Government. The moment the entitlement to receive pay is admitted by the administration, there is no other option but to make payment from the date of their engagement.

25.

The date from which payment is to be made to a worker cannot be as per the choice of the authority. The subject Office Memorandum was in vogue at the time of engagement of the workers and the same stipulates the pay of the DRMs. The authority will be bound by the directive of the said Office Memorandum.

26.

It is settled law that as long as an order of a competent Court remains in force, the same is liable to be complied with strictly in accordance with the directions mentioned therein. The award of the Tribunal, affirmed up to the level of the Hon'ble Supreme Court, could not have been lightly interfered with and/or modified and/or varied unilaterally by the Administration. The same amounts to clear overreaching the order passed by the Court, which the authority cannot do.

27.

It is just not understandable as to how the authority chose and fixed up a date in random to start making payment. There is no justification at all as to why 1st April, 2010 was found to be the

appropriate auspicious date from which payment was be made to the workers. All the workers were not engaged on the same date and hence, fixing up an arbitrary and imaginary date for making payment to all the workers in one sweep appears to be improper, mechanical and total non application of mind.

28.

The submission of the respondent authority that the award of the Tribunal stood modified by way of implication cannot be accepted by the Court. Specific direction of the Court cannot be varied and customized to the advantage or disadvantage of a litigant. Administration being a superior authority, having all powers under its control, simply cannot interpret the order of the Court to the disadvantage of the workers. The administration has unsuccessfully challenged the order passed by the Tribunal to the ultimate level and failed to get the same set aside/modified/varied. At this stage, the authority cannot be heard to submit that the direction passed by the Tribunal has been modified by implication.

29.

In the application filed by the union before the Supreme Court it was mentioned that the workmen were not getting their payment because of the pendency of the appeal. The Hon'ble Supreme Court recorded that the subsequent order of the Administration was passed admitting the entitlement of the workers to receive the payment in terms of the subject Office Memorandum.

30.

The issue before the Supreme Court was the entitlement of the pay and not the date from which such payment would be made. The

Supreme Court never had an occasion to decide upon the date for making payment as the said issue was never raised by either of the parties.

31.

On the contrary, it is amply clear that the Administration accepted the award passed by the Tribunal and released payment to the workers but from a whimsical date, without any basis. The workers never relinquished or waived their right to receive payment in accordance with the award passed by the Tribunal. The authority ought to appreciate that by making payment the authority was not making any charity. The workers are legally entitled to receive payment from the date of their engagement and they are persistently fighting for their rights for more than two decades.

32.

The issue of limitation raised by the respondents also cannot be accepted by the Court. It appears that the workers pursued their claim in a steady manner since 2002. When the order was passed by the Lieutenant Governor in the year 2010, the issue was pending adjudication before the Hon'ble Supreme Court. After disposal of the civil appeal before the Supreme Court in February, 2016 the workers immediately took up the issue for grant of pay in terms of the order passed by the learned Tribunal. There does not appear to be any delay and/or lapses on the part of the workers to proceed with their claim. 33.

On the contrary it appears that, it is the Administration which is trying tooth and nail to frustrate the claim of the workmen. All efforts are taken by the Administration to stand in the way of implementation

of the award of the learned Tribunal. The authority ought not to be granted any further time to implement the order passed by the Tribunal. 34.

The Court cannot miss the fact that an undertaking was obtained from the workers prior to making payment when the issue was pending before the Hon'ble Court to the effect that if the appeal before the Supreme Court is disposed of in favour of the Administration, then the workers would be bound to refund the excess amount received by them. The same suggests that the Administration still had the hope that the appeal may be decided by the Supreme Court in their favour for which they reserved their right to seek refund. The Supreme Court did not interfere with the order under appeal and, as such, it cannot be taken that the appeal stood disposed of in favour of the Administration. Never ever the issue with regard to the date from which the payment will be made was raised before the Supreme Court.

35.

At the time of disposal of the appeal the Court records that there was no live issue to be decided because the only live issue to be adjudicated by the Court was the entitlement of the workers to receive 1/30th of the pay. As the Administration in the meantime paid the workers their due at the rate of 1/30th of the pay, accordingly, there was no further issue before the Court to decide. After disposal of the appeal the authority cannot be permitted to back track from their stand and argue that the order of the Tribunal stood modified. 36.

Before the Supreme Court learned advocate for the workers assured that during pendency of the appeal before the Court, steps

would not be taken for executing the award of the Tribunal. Taking advantage of such assurance, the authority made payment from a later date. As the appeal before the Supreme Court remained pending for long and on the plea of pendency of the appeal the authority was not implementing the award of the Tribunal in its entirety, accordingly, application was made by the workmen seeking disposal of the same as no issue was left to be decided by the Court. 37.

Had the administration intended to make payment from any date, other than the one mentioned in the award of the Tribunal, then a formal prayer ought to have been made before the Court, so that the workers had an opportunity to either oppose or accept such action. It could have been that the workers may have admitted such move on the part of the Administration. Till the award is actually varied or modified by a competent Court, the same remains binding inter se the parties and the parties are bound to comply the same in its true letter and spirit. 38.

In view of the discussions made hereinabove, the writ petition stand allowed. The respondent authority is directed to release the arrear dues of the workers strictly in accordance with the award passed by the Tribunal.

39.

Though, no specific prayer has been made by the petitioners for grant of interest on account of delay in making payment, but the Court is of the considered opinion, that this is a fit case where the authority should be directed to pay interest to the workers on account of inordinate delay in payment of their legitimate dues.

40.

It is hereby ordered that the workers would be entitled to receive their arrear pay along with simple interest @ 6% per annum to be paid on and from 19th February, 2016, the day of disposal of the appeal before the Supreme Court till the date of actual payment. All payment i.e arrear plus interest shall be cleared within forty-five days from date. If the payment is not made within the aforesaid time period, the workers would be entitled to receive additional simple interest @ 2% per annum i.e (6% +2% = 8%) on and from 19th February, 2016 till the date of actual payment.

41.

Writ petition stands disposed of.

42.

Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance of usual formalities. ( Amrita Sinha, J. )