Union Of India And ORS. v. Baratang Forest Workers Union And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/21/2025 (IA NO: CAN/1/2025) Union of India and Others Vs.

Baratang Forest Workers Union and Another Mr. Shatadru Chakraborty, Sr. Adv.

Mr. Rakesh Kumar Mr. Dibesh Dwivedi ... for the petitioners Mr. Gopala Binnu Kumar ... for the respondents March 11, 2025 [SR] Item No.9 1.

The appeal is arising out of an order dated 10th December, 2024 by which the appellants were directed to release all the arrears due to the workers strictly in accordance with the award passed by the Tribunal along with interest. 2.

Mr. Shatadru Chakraborty, learned senior counsel has submitted that the writ petition is barred by res judicata in view of the order passed by the Hon'ble Supreme Court on 19th February, 2016 in connection with the IA No.6/2016 in/and Civil Appeal No(s).7177/ 2009.

3.

In order to appreciate the said submission, we may discuss the background of this matter in brief. 4.

The writ petitioners were the Daily Rated Mazdoors (DRMs) under the Divisional Forest Officer ( Baratang). Dispute arose with regard to their entitlement of 1/30 pay at the minimum of the relevant pay scale plus dearness allowances for work of eight hours a day and regularisation. 5.

The said claim is based on the decision of the Hon'ble Supreme Court in Surinder Singh and another vs. Chief

Engineer, CPWD reported in (1986) 1 SCC 639 . On the basis of the said decision, 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 pension on daily wages. Certain guidelines were laid down in the said Office Memorandum. On the allegations that the said memorandum was not implemented and they were not regularized and reviewed their wages in terms of the said Office Memorandum, an industrial dispute was raised whereupon the appropriate government made reference to the Industrial Tribunal.

6.

The Tribunal passed an award on 13th July, 2005 whereby 122 workers were declared to be entitled to get daily wages @ 1/30 of pay at the minimum of the relevant pay scale plus dearness allowances in terms of the office memorandum dated 7th June, 1988 from the date of their initial engagement till 31st August, 1993.

7.

The award was challenged before the learned Single Judge in writ petition being WPA No.176 of 2005 which was dismissed on 13th March, 2006. In an appeal from the said order filed by the present appellants, the coordinate bench by its order dated 15th July, 2006 dismissed the appeal. A Special Leave Petition was preferred by the present appellant which was later registered as Civil Appeal Being Civil Appeal No. 7177/2009.

8.

During the pendency of the appeal before the Hon'ble Supreme Court, the appellant issued a letter dated 16th August, 2010 to the president of the union wherefrom it would appear

that the appellant concerned has extended the benefit of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowances to the awardees in accordance with the notification of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) being O.M No.

49014/2/86 ESTT(C) dated 07.06.1988.

9.

Subsequent thereto a letter was issued on 15th February, 2011 by the Labour Commissioner, to all the Heads of Departments/Offices, Andaman and Nicobar Administration whereby and whereunder they have been requested to implement the guidelines contained in the aforesaid Office Memorandum.

10.

The Union in the Civil Appeal filed an application being I.A. No. 6 of 2015 in which it is stated that since the appellants have complied with the notification dated 07.06.1988 and extended the benefits of 1/30 of the pay along with the dearness allowance to all Daily Rated Mazdoors working under the appellant in Baratang and the letter dated 11/10.09.2009 issued by the appellant that they would not appoint any outsider without regularizing the services of the Daily Rated Mazdoors working in Baratang and Havelock Division. 11.

The benefits which have accrued in favour of the union under the award could not be implemented due to the pendency of the Civil Appeal and the order dated 16.05.2007. 12.

The order dated 16.05.2007 record an undertaking from the counsel of the union that the award in favour of the union could not be put to execution during the pendency of the Special Leave Petition.

13.

The Hon'ble Supreme Court disposed of the said application by the following order:- "We have perused the present application seeking appropriate directions. In view of the subsequent order of the Government with regard to entitlement of pay of the respondent (s), we do not find any live issue for adjudication in this appeal. The Civil Appeal is, therefore, disposed of as infructuous".

14.

It is in this background, Mr. Chakraborty, learned senior counsel has contended that the writ petitioner have waive their right to receive any benefit under the award prior to 01st April, 2010.

15.

We are, however, unable to accept the said submission. The order of the Hon'ble Supreme Court in no manner interfered with the award. There is a categorical statement in the application at paragraph 13 that by reason of the order of 16.05.2007 the writ petitioners were unable to enjoy the benefit that had accrued in favour of the writ petitioners. The appellant has not contended that they have not released the payment on and from 01st April, 2010.

16.

In the aforesaid backdrop, paragraph 13 has to be read with the order passed by the Hon'ble Supreme Court. The Hon'ble Supreme Court did not decide the civil appeal on merits. In fact the Hon'ble Supreme Court has taken into consideration the implementation of the award insofar as it permitted regularization and daily wages at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowances with effect from 01st April, 2010. 17.

It is elementary that waiver means conscious relinquishment of a known mind. We are unable to read paragraph 13 to mean that the writ petitioners have voluntarily

and knowingly relinquished their rights that have accrued in their favour under the award. The said paragraph clearly says that they are unable to receive the benefits because of the undertaking recorded in the order dated 16.05.2007. 18.

On such consideration, we are not inclined to interfere with the order passed by the learned Single Judge. However, we extend the time to comply of the order to pay the amount due and payable from 19th February, 2016 with simple interest @ rate of 6% per annum till the date of actual payment by eight weeks from date. In default additional simple interest as directed by the learned Single Judge shall revive. 19.

The order under appeal is modified to the aforesaid extent. Appeal and connected application are disposed of. ( Soumen Sen, J. ) (Raja Basu Chowdhury, J. )