- (1.) For the reasons stated in the application, the delay of 13 days in filing the petition is condoned.
(2.) The application u/s.5 of the Limitation Act is allowed. This petition has been filed by M/s. Mineral Exploration Corporation Ltd. for review of the order of this Court dated 26.3.2014 on the ground that the petitioner-management after the order dated 24.2.2011 passed by the division bench of this Court, offered to appoint the respondent as highly skilled casual workman at the rate of Rs.310 per day (consolidated). The respondent, however, insisted for wages on regular pay scale. To avoid further complications, the petitioner issued further appointment order dated 17.11.2011, again offering appointment as highly skilled casual workman on monthly wages of Rs.18,904 at MECL, Khetri (Part-1) Project for the Project Life, "under protest" and without prejudice to the right of the management to get the wages and nature of his appointment determined in the pending writ petition no.1861/2006. The respondent accordingly joined the duties and was being paid the aforesaid wages. It was thereafter that the respondent again filed application u/s.17B of the Industrial Disputes Act and prayed for regular salary of loco driver by concealing certain facts. In fact, already earlier the order on application u/s.17B filed by the respondent was passed on 26.5.2009 directing the management to pay to respondent the full wages last drawn by him at the time of reinstatement including any allowance admissible, which order was challenged before the division bench and pursuant to the order of the division bench, fresh appointment as highly skilled casual workman on monthly wages of Rs.18,904 was given to the respondent. The respondent wrongly pleaded that the other employee namely; Shri Ram was being paid regular pay scale, whereas no such person named Shri Ram was employed in the petitioner-Corporation and his statement of salary annexed by the respondent no.2 with his application show that he was employee of another company i.e. M/s. Hindustan Copper Ltd. Shri B.S. Chhaba, learned counsel for the petitioner argued that since the respondent has been reinstated, order that has been passed on 26.3.2014 could not have been passed in the scope of Section 17B of the I.D. Act as that provision would not apply. Besides, the respondent could not be paid regular salary as he was appointed on casual basis for project life only. It is prayed that for the aforesaid reasons, the order passed by this Court dated 26.3.2014 deserves to be reviewed and recalled. Shri M.C. Taylor, learned counsel for the respondents opposed the review petition and submits that the argument, which the petitioner is making again in review petition was, in fact, raised before the division bench and was rejected. Learned counsel for the respondents submits that respondent-workman has now again been offered a fresh appointment as highly skilled casual workman on monthly wages by order dated 17.11.2011, rather than being reinstated in compliance of the award, which they were obliged to do.
(3.) Perusal of the division bench judgement dated 24.2.2011 indicates that after the award directing reinstatement of the respondent was passed, the validity thereof was assailed by the management in the writ petition. The management rather than reinstating the respondent took him in contractual employment for fixed term on 21.12.2005 for three months, which was extended to further period of three months. Finally that contractual employment came to an end on 15.12.2008. The respondent on those facts filed application u/s.17B, which was allowed by the Single Bench vide order dated 26.5.2009 directing the management to pay full wages last drawn by him at the time of retrenchment inclusive of admissible maintenance allowance. The review petition even of that order was filed, which was also dismissed on 27.10.2010. It was thereafter that the management filed appeal before the division bench. The division bench categorically held that offering to appoint the respondent on contractual basis for fixed term does not satisfy the requirement of Section 17B because in the present case, the reinstatement was made not conditionally but by way of fresh contractual appointment. The argument that Section 17B would not be attracted, was rejected by the division bench. The division bench categorically held that to offer contractual appointment of three months appears to have been passed to frustrate the award and order passed by the Single Bench under Section 17B and intention was not to reinstate but to get rid off the order u/s.17B. The order passed by the Single Bench was not interfered with. Now again similar argument is being raised by the petitioner. This Court by deciding application u/s.17B has taken note of the argument of management that reinstatement of the respondent-workman was made pursuant to the award and, therefore, in terms of Section 17B, the wages would be last drawn and not full wages, but did not accept and directed that on reinstatement, the management is under an obligation to pay the emoluments, which are normally payable to any other similarly situated employee and not the salary last drawn by him.;