M/S UNITED NEWS OF INDIA v. GOVT OF NCT OF DELHI AND ANR.

1. This writ petition impugns the order No.S&E/NDD/34/2015/1206 dated 12.05.2017 passed by Shri U.K.Sinha, Authority under the Delhi Shops & Establishments Act, 1954 (in short ‘Delhi Shops Act’)/Deputy Labour Commissioner, New Delhi District, awarding a sum of Rs.10,23,328/- on account of unpaid earned wages plus allowances for the period from October, 2012 to May, 2015 with compensation/penalty/additional relief @20%, total 2018:DHC:3252 amount Rs.12,27,994/- to respondent No.2 against the petitioner.

2. The relevant facts leading to filing of the present writ petition are that the respondent No.2 filed an application on 28.08.2015 before the Authority under the Delhi Shops Act against the petitioner to the effect that he joined the petitioner in the year 1982 as Junior Operator. He claimed that all of a sudden his salary was stopped from October 2012 by the petitioner without assigning any reason. He alleged that with effect from 23.06.2015, the petitioner forcibly did not permit him to enter the office premises. He lodged a complaint with the Deputy Labour Commissioner, New Delhi District (in brief DLC), on 25.03.2015 about non-payment of salary and non-professional behavior of the petitioner. He claimed that the DLC has submitted failure report about the conciliation. The respondent No.2 claimed salary for 32 months @Rs.31,979/- per month, total Rs.10,23,328/-.

3. The petitioner/Management filed its reply on 06.10.2015 pleading therein that the claimant/respondent No.2 was on leave from 07.01.2013 to 11.01.2013 and with effect from 12.01.2013, did not report for duty. The petitioner issued a memo dated 02.03.2013 and reminder dated 28.06.2013. On 21.08.2013 the services of the respondent were discontinued for his unauthorized absence as per certified standing orders considering that he has voluntarily left the employment and his name was removed from the muster roll of the company. The petitioner pleaded that the respondent No.2 is not entitled for wages for the year 2012-13, 2013-14 and 2014-15 as he himself has stopped attending his duties. However, the petitioner has admitted that a sum of Rs.1,53,890/- is payable to respondent No.2 for the period during which he had worked with them.

4. Admittedly, on 12.05.2016, on receiving the report of the failure of the conciliation proceedings, Shri U.K.Sinha, DLC, made a reference of the industrial dispute, being Reference No.F- 24(63)DLC/NDD/16/702, on behalf of Government of NCT of Delhi under Section 10(1)(d) and 12(5) of the Industrial Disputes Act, 1947 (in short ID Act) to the Industrial Tribunal for adjudication which included the claim of respondent no.2 for salary and allowances for the period from the year 2012 to 26.04.2015.

5. Admittedly, the Industrial Tribunal on receiving the above said reference dated 12.05.2016 issued notice to the parties and the petitioner moved an application dated 16.06.2016 before the Authority under the Delhi Shops Act to drop the proceedings as the petitioner had received a notice from the Industrial Tribunal, Karkardooma, New Delhi for 26.08.2016 claiming the same relief.

6. The said application was dismissed by the Authority on 02.11.2016. Thereafter, the Authority under the Delhi Shops Act passed the impugned order dated 12.05.2017.

7. On 07.05.2018, learned counsel for respondent No.2 sought time to take instructions. Today with the consent of the learned counsel for the parties arguments have been heard.

8. Learned counsel for the petitioner submits that by the impugned order, the Authority has granted the arrears of wages to the respondent No.2 for the period from October, 2012 to May,

2015. He urged that the reference dated 12.05.2016 issued by the same officer Shri U.K.Sinha, DLC on behalf of NCT of Delhi to the Industrial Adjudicator under Section 10(1)(d) and 12(5) of the ID Act covers the dispute with regard to arrears of salary for the period from year 2012 to 26.04.2015. He argued that Shri U.K.Sinha, DLC, who himself has referred the matter for adjudication to the Industrial Tribunal, has considered and decided the subject matter by impugned order instead of raising his hands. He submits that the impugned order has been passed without jurisdiction. However, he submits that the petitioner is ready to make the payment of Rs.1,53,890/- to the respondent No.2 for the period when he had worked with them.

9. Per contra, it is submitted by learned counsel for the respondent No.2 that the Authority under the Delhi Shops Act has passed the order after considering the pleadings and evidence of the parties. He submits that the order dated 02.11.2016 of the Authority dismissing the application of the petitioner for dropping the proceedings was not challenged immediately and cannot be assailed now.

10. I have heard learned counsel for the parties

11. The respondent No.2, who was allegedly not allowed to enter the premises by the petitioner on 23.06.2015, had raised the industrial dispute before the DLC for salary and nonprofessional behavior of the respondent. The DLC has submitted its failure report of the conciliation proceedings between the parties. Admittedly, this has resulted into the Reference of the industrial dispute to the Industrial Tribunal by Shri U.K.Sinha, on behalf of Government of NCT of Delhi on 12.05.2016. The terms of said reference read as under:-

12. The terms of the reference are crystal clear to show that the dispute with regard to the payment of the salary for the period from year 2012 to 26.04.2015 is pending disposal before the Industrial Tribunal which has the jurisdiction to decide being covered by the III schedule of the ID Act. The respondent No.2 has simultaneously, before reference of the dispute, also filed an application under Section 21 before the Authority under the Delhi Shops Act. The petitioner has brought this fact to the notice of the Authority under the Delhi Shops Act by application dated 16.06.2016. Despite the petitioner bringing the factum of the subject matter of the dispute pending before the Industrial Tribunal on a reference being made, the Authority under the Delhi Shops Act has proceeded to decide the matter by impugned order dated 12.05.2017 and granted the arrears of wages to respondent No.2 against the petitioner for the period from October 2012 to May 2015. It is noticed that reference under Section 10(1) (d) and 12(5) of the ID Act pending before the Industrial Tribunal is for the period from the year 2012 to 26.04.2015 and the impugned order granted the unpaid wages to the respondent No.2 for the period from October, 2012 to May,

2015. When the Industrial Tribunal, a Judicial Authority, is already seized of the matter in respect of wages for the period in question in respect of claim of the respondent No.2 from the year 2012 to 26.04.2015, the Authority could not have under the Delhi Shops Act considered the claim of respondent No.2.