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2019 Supreme(All) 219
ALLAHABAD HIGH COURT
B. AMIT STHALEKAR, J.
Duncans Industries Limited Indian Explosives Ltd. Kanpur - Appellant
Versus
Presiding Officer Labour Court-Iii Kanpur and Another - Respondent
Writ C No. 11353 of 1999
Decided On : 14-02-2019
S. Chatterjee, Adv., P.K. Mukerjee, Adv., V.R. Agrawal, Adv., Akhilesh Misra, Adv.
Headnote:
Industrial Disputes Act, 1947 – Section 6(6) – Seeking correction in award – Reinstated in service on his original post with full benefits and also salary for entire period for which he has remained out of service – Challenged – Held, In order to show if at all there was intermittent break, Labour Court was required to show that there was work available and that fellow workmen appointed with respondent no. 2 were working and only respondent no. 2 was denied work – In absence of any such finding breaks of several months or one year and 10 months will not constitute unfair labour practice – Petitioner states that respondent no. 2-workman has already been paid arrears of back wages, which is not disputed for workman – Awards are wholly illegal and arbitrary and without jurisdiction and cannot survive and are accordingly set aside – Petition allowed. (Para 20, 21 and 22)
Facts of the case:
Petitioner in writ petition is seeking quashing of amended award published on 5.11.1998 as well as original award passed in Adjudication.
Findings of the case:
In order to show if at all there was intermittent break, Labour Court was required to show that there was work available and that fellow workmen appointed with respondent no. 2 were working and only respondent no. 2 was denied work – In absence of any such finding breaks of several months or one year and 10 months will not constitute unfair labour practice – Petitioner states that respondent no. 2-workman has already been paid arrears of back wages, which is not disputed for workman – Awards are wholly illegal and arbitrary and without jurisdiction and cannot survive and are accordingly set aside
Result: Petition allowed
B. AMIT STHALEKAR, J.
1. Supplementary affidavit filed today by the petitioner is taken on record.
2. Civil Misc. Application No. 201102 of 2012 dated 15.7.2012 is taken up.
3. The prayer in the application is to permit the petitioner to change the name of the petitioner in the array of parties from M/s Duncans Industries Limited to M/s Kanpur Fertilizers and Cement Limited.
4. Learned standing counsel has no objection if the application is allowed.
5. Accordingly the application is allowed. Let necessary amendment be carried out during the course of the day.
6. The petitioner in the writ petition is seeking quashing of the amended award dated 30.4.1997 published on 5.11.1998 as well as the original award dated 2.4.1991 published on 10.4.1992 passed in Adjudication Case No. 182 of 1984.
7. Briefly stated the facts of the case are that the respondent no. 2 claimed to be working under the petitioner and initiated proceedings before the Labour Court on the contention that his services have been dispensed with w.e.f. 5.1.1984. A reference was made to the Labour Court on which the case was registered as Adjudication Case No. 182 of 1984. The parties led evidence and thereafter an award was given by the Labour Court on 2.4.1991 holding that the services of the respondent no. 2 had been illegally dispensed with w.e.f. 5.1.1984 and thereafter the workman remained out of service and could not get any job anywhere, therefore, the Labour Court directed that for this period he would be entitled to full salary. Subsequently an application was filed under section 6(6) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, 1947) seeking correction in the award and the Labour Court allowed the application and thereafter passed an amended award on 30.4.1997 amending the previous award and directed that the respondent no. 2 workman shall be reinstated in service on his original post with full benefits and also salary for the entire period for which he has remained out of service.
8. I have heard Shri Naveen Sinha, learned senior counsel assisted by Shri S.Chatterji for the petitioner and Shri Akhilesh Mishra, learned counsel appearing for the respondent no. 2 workman.
9. The first submission made by Shri Naveen Sinha, learned senior counsel is that the application under section 6(6) of the Act, 1947 was itself not maintainable as there was no clerical or arithmetical error in the award nor was any error arising from any accidental slip or omission and it is only on anyone of these conditions being satisfied the Labour Court on the application of any party to the dispute could have corrected the previous award. His submission further is that the first award was given on 2.4.1991 and was published in the gazette on 10.4.1992. Referring to the provisions of Section 6-A of the Act, 1947, he submitted that the award would become enforceable on the expiry of 30 days on the date of its publication under section 6 of the Act, 1947. He further referred to the provisions of Section 6-D of the Act, 1947 and submitted that the proceedings before the Labour Court or Tribunal shall be deemed to have commenced on the date of reference of a dispute and such proceedings shall be deemed to have concluded on the date on which the award become enforceable under section 6-A of the Act, 1947. Section 6(6), 6-A and 6-D of the Act, 1947 read as under:
"6 (6) A Labour Court, Tribunal or Arbitrator may either of its own motion or on the application of any party to the dispute, correct any clerical or arithmetical mistakes in the award, or errors arising therein from any accidental slip or omission; whenever any correction is made as aforesaid, a copy of the order shall be sent to the State Government and the provision of this Act; relating to the publication of an award mutatis mutandis apply thereto.
6-A Commencement of the award. - (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its
