- (1.) Heard the learned Counsel for Management of Mahalakshmi Fibres & Industries Ltd., Ranchi and also on behalf of the Respondent-workman-Deolal Hazam. Learned Counsel for the Petitioner through this writ application has challenged the order passed by the Labour Court as contained in annexure-6 vide order dated March 29, 2006 passed in M.J. Case No. 7/2004 by which order learned Labour Court has allowed the workman benefit under Section 32(C)(2) of back wages @ Rs. 9,900 per annum from January, 1992 to May, 2004 for 12 years 5 months amounting to Rs. 1,22,925 and leave encashment of Rs. 1,140 per annum amounting to Rs. 14,155/- and bonus @ 8.33% of 9900 = Rs. 824.65 amounting to Rs. 10,239.40 and thus directed to pay the Petitioner-company Rs. 1,47,319.40 within 60 days, failing which they will be liable to pay @ 8%.
(2.) Learned Counsel for Petitioner submits that the Respondent-workman was working in the factory of the Petitioner's company on June 9, 1990. He along with some other persons created disturbance and looted office property. Accordingly, he was charge sheeted on June 11, 1990 which is annexure-1 of the writ application. Thereafter, on his denial domestic inquiry was held and on the basis of the inquiry report submitted by the inquiry officer, who found the workman guilty, of misconduct, management dismissed him for service on January 18, 1992. Subsequently, Petitioner-management filed an application under Section 33(2)(b) of the Industrial Dispute Act and sent for approval of the dismissal order by the Labour Court, Ranchi. The Labour Court refused to grant approval of the said dismissal. Thereafter, Petitioner preferred a writ before the Hon'ble High Court and the said writ application was also dismissed. Thereafter, a review petition was filed by the Petitioner which was also dismissed. Thereafter, after a gap of long 12 years in the year 2004 Respondent-workman filed this application under Section 33(C)(1) for wages and other benefits from 1992 onwards. The management appeared and contested the claim on the ground that the claim being belated in stage, the same cannot be allowed. Moreover, the Respondent was gainfully employed elsewhere in the aforesaid period and in that view of the matter, since he had not rendered actual service in that period, he is not entitled to get wages and other benefits. It is submitted by the learned Counsel for Petitioner that against the mandate of the Hon'ble Supreme Court as enunciated in the case of North East Karnataka Road Transport Corporation v. M. Nagangounda, 2007 10 SCC 765 where it has been held that the Court must come to an independent finding as to whether the workman was gainfully employed during the period he was not in service or not, before grant of back wages which has also been relied in other judgment of the Supreme Court and in the instant case although, Petitioner submits that during the period after dismissal from service from 1992 Respondent was gainfully employed and O.P.W.1 submits in para 3 of his evidence that workman was running a salon at B.I.T. More. The same was rejected by the Labour Court relying on the judgment reported in "1986(69) FLR 310 SC in the case of S.D. Chemicals and employees Union", and the law has now developed that if the workman is gainfully employed during the period he was not in service, he cannot be allowed full back wages with other benefits. In that view of the matter, the impugned award by which full back wages has been allowed to the workman since, January 1992 till the date of order is bad in law and only fit to be quashed.
(3.) Learned Counsel appearing for the Petitioner has further submitted that he has filed a supplementary affidavit on August 18, 2010 stating therein that although, the Petitioner-company filed this writ application on November 29, 2006 before this Hon'ble Court, but since no stay was granted and the matter remained pending for a long time due to non-availability of the Court, the case was listed for the first time on August 3, 2010 and forced by the workman for filing certificate case against him and since warrant were being issued against him. The company has made full payment of the said amount of Rs. 1,47,320 to the workman vide annexure-7 and the particulars of challan with date has been filed vide annexure-7 which is not disputed by the learned Counsel appearing for the workman, who admitted that money has been paid, but no interest has been given as per the order.;