Thread Started by #sridharan venkataraman

An employee was dismissed from service in 1996. He challenged his dismissal . During the pendency of the ID before Labour Court, the workman attained the age of retirement in 2012. An award was passed by the Labour Court in August 2014 granting relief of 25% back wages with the direction to the Management to count the number of years the workman was out of employment from the date of dismissal for the purpose of calculating the terminal benefits. Management has sent its intention (in Feb. 2015) to the workman to settle the issue as per the verdict of the Labour Court in event of the workman who also accepts the Labour Court verdict, as it is. The workman received such communication of the Management. But the workman died in March 2015. After a gap of 4.5 years, the wife of the deceased workman filed a writ petition challenging the award of the Labour Court praying for back wages, continuity of service and other consequential benefits. In this scenario, my queries are :
1. Whether the wife of the deceased workman (Who is not party to the Labour Court proceedings) has the Locus standi to challenge the Award of the Labour Court on behalf of her deceased Husband Now?
2. Whether there is any limitation period prescribed in the ID Act to challenge the Award of the Labour Court.
I request expert views on the above points with suitable court ruling reference, if any, for which I shall be thankful.
Regards,
26th February 2019 From India, Mumbai
Presuming that the 25% backwages awarded by the Labour Court has been paid and the employee has accepted it without any demur, it can be said that the effort of spouse of the employee to agitate by way of writ petition is hit by delay and latches. The legal principle is very much that 'you cannot blow hot and cold at the same time. ' On the one hand the backwages was accepted with satisfaction and later the descendent cannot challenge that award.
The writ petition is not under the ID Act, but it is an extra ordinary remedy provided by the constitution. There is no period of limitation for filing a writ petition but delay and latches could be fatal to such efforts. Do you have any communication to indicate thaty the workman had accepted youir proposal to settle the matter at 25% backwages. If so it could be very decisive.
26th February 2019 From India, Mumbai
Dear Sridhar,
The following facts are discernible from your post:
1) The dispute raised by the workman against his dismissal in 1996 was finally disposed of by the Labor Court in August,2014.
2) While the dispute was still pending at the Labor Court, the disputant workman attained the age of superannuation in 2012.
3) Hence the Labor Court awarded a relief of 25% back wages for the entire period of his non employment in lieu of reinstatement. However, the Court directed the management to count the period of service from the date of his dismissal till the date of his attaining the age of superannuation also for the purpose of his terminal benefits.
4) Thus the benefits arising out of the award are (1) the workman is entitled to 25% of wages for the period of his non employment from the date of his dismissal in 1996 to the date of his attaining the age of superannuation in 2012 and (2)For the purpose of computation of his terminal benefits, the management should take into account the entire period of his service from the date of appointment to the date of his notional retirement on superannuation in 2012.
5) Though the award was passed in August,2014, no appeal against the award was preferred either by the management or the workman till his death in March,2015.
6) Now, after a gap of 4.5 years, the wife of the deceased workman preferred an appeal against the award of the Labor Court passed in 2014 by means of a writ petition.
Coming to your queries on this issue, my personal views are as follows:
1) It is well-settled that a legal heir of a deceased workman can pursue the pending industrial dispute already raised by him when he was alive.
2) No statutory remedies against any award of a Labor Court or an Industrial Tribunal has been prescribed under the Industrial Disputes Act,1947. Therefore only non statutory or constitutional judicial remedies can be taken by any aggrieved party to the dispute is filing a Writ under Article 32 or 226 before the Supreme Court or the High Court respectively when some substantial questions of Law is involved.
In the present case, like I said earlier, no writ petition was filed either by the workman or by the management against the award passed in August,2014 till March,2015 the date of demise of the workman. If I were correct, a writ against the award should be filed within 60 days from the effective date of operation of the award. Though the workman was alive for about almost six months, he did not file any writ. Therefore, the award became the final resolution of the industrial dispute between the management and the deceased workman. This factual position compels me to be doubtful about the very maintainability of the belated writ filed by his wife now.
At the same time, to avoid unnecessary litigation further, I also would like to suggest to the management to initiate some dialogue with the deceased workman's wife to settle the matter by offering some higher compensation.
26th February 2019 From India, Salem
Dear Sri KK!HR:
Thanks for your views. The workman was not in agreement with our proposal during his life time. My doubt is whether the wife of the deceased workman has the locus-standi to challenge the Award of Labour Court that too Now after a gap of nearly 5 years from the date of the Labour Court Award, as she is not party to the ID disposed of by the Labour Court. Regards,
26th February 2019 From India, Mumbai
Dear Sri Umakanthan Sir: Thanks for your elaborate views on my query. It will definitely help me to apprise the Management to take it forward further in this matter. Regards, V Sridhar
26th February 2019 From India, Mumbai
You are advised to discuss the matter with your lawyer.
In recent past I came accorss one order by the Supreme Court that three years is the limit but not rembering the exact case to cite you.
However, with my little understanding of the fact this case does not have merrit for three reasons;
1. The employee received the benfit as per pronouncement of the labour court and did not mind to challenge the order passed by the labour Court.
2. To file a writ before the HC is 60-90 days aginst any order passed or review petition.
3. The wife of deceased can not be party to the case in instant case.
27th February 2019 From India, Mumbai
Dear Prabhat,
So far the orders/award of the Labor Court pronounced in August 2014 still stands unimplemented. If the management accepted the award in toto, it could have deposited the amount of 25% back wages with the Court and the terminal benefit of gratuity,if any for the entire service with the Controlling Authority under the PG Act,1972 as the award is of monetary compensation only. Rather, the management seems to have been indecisive about the award and made up their mind to accept it and then sent a letter to the workman only in February 2015 asking his willingness. Unfortunately the workman died subsequently. Therefore, the indisputable fact that no amount was received by the workman under the award only gives rise now to the move of his wife to file a writ of appeal against the award. The maintainability of the writ itself is doubtful in view of the finality of the resolution of the industrial dispute between the parties by means of the unagitated award by both till the death of the workman, of the doubtful locus standi of the deceased's wife to agitate the award and of the inordinate delay.
27th February 2019 From India, Salem
Thanks Umakanthanji for sheding light upon the case and correcting me in line of case and its merrits & demerrits.
While I was wandering inside the cases, come to know about a case which was admitted by the High Court after 19 years[Ajay Kumar vs State Of Uttarakhand And Others on 4 July, 2018] the case filed by the son of deceased person in claim of his service in compassionate ground as he was a minor at the time of his fateher's death.
28th February 2019 From India, Mumbai
Yes, Mr. Prabat, your citation is a valid one as the claim relates to compassionate ground appointment of the son of a deceasd Govt. Servant dieing in harness. There the delay was condonable as the claimant was a minor at the relevant time.
Here in the case on hand, because of the impossibility of reinstatement as the workman already attained the age of superannuation, probably the Labor Court in exercise of its discretionary powers vested in sec. 11A of the ID Act, considered that the ends of justice would have been met if continiuty of service with 25% back wages was ordered. Neither the concerned workman nor the management preferred any appeal and simply both were idle till his death. Now, after the lapse of 4.5 years, the wife would have no ground for appeal under Art. 226 other than enhanced compensation or interest on the amount of compensation computed under the award for the period of default, if only she is able to explain the delay to the satisfaction of the Court. That's why suggested that the management may initiate dialogue for an amicable settlement.
28th February 2019 From India, Salem
Thank You Umakanthanji. It alway gives pleasure when this type of case is placed before the community and the senior & experienced faculties discussed the matter from different angles, really gives better learning.
Regards
28th February 2019 From India, Mumbai
Dear Sri Umakanthan Sir:
In this Case, the Award was passed on 23.08.2014. No copy of the Award was received at the hands of Management till 1st week of December 2014Hence, Management has initiated to get the certified copy of the Award from the Labour Court and the same was issued by the Labour Court on 09.12.2014. Since the Labour Court directed the Management to pay the relief of 25% of wages within 3 months from the date of receipt of Award copy by the Management, the Management has taken the decision to shoot out a communication to the workman in order to reveal its intention to goby the Award of the Labour Court as it is in case he also accepts the award as it is. This was done for the reason of complying the Award in time and more over considering the workman who has attained the age of superannuation during pending disposal of the ID by the Labour Court. Hence, the Management is ready to go in either way. In fact, the Management has approached the wife of the deceased workman in multiple occasions to settle the issue, but she is firm in challenging the award.
Sir I once again express my sincere thanks to all the experts who have made valuable dialogues in the issue posted by me.
Regards, V Sridhar
28th February 2019 From India, Mumbai
The original posting does not throw light on one important aspect - what is the decision of the Labour Court as to the dismissal of the workman? From the facts posted suggest that the punishment of dismissal has been set aside and the he had been directed to be reinstated (notionally) in service; it is only that back wages had been restricted to 25%. Thus the question that arises is whether there is an illegality or irregularity in not awarding the back wages in full. It could be that the wife of the deceased employee had moved the WP on this aspect under Article 227. Please verify. If so, the delay may not be of much consequence unless it amounts to laches.
28th February 2019 From India, Kochi
The Labour Court has come to the conclusion that the punishment imposed on the workman is not justified but considering entire facts and circumstances and the nature of charges levelled against the workman are proved, the court is of the view by exercising its discretionary power under section 11A of the Act, that denial of 75% of back wages would meet the end of justice. As such, the Labour court awarded 25 % of wages as compensation for the non-employment period of workman from the date of dismissal. In the Award, the court no where has comes to the conclusion that the dismissal is set aside. Regards,
28th February 2019 From India, Mumbai
Good inputs from seniors. Here the award of the Labour Court was challenged by the wife of the deceased workman under Art.226 of the Constitution by invoking writ jurisdiction of the hon'ble High Court.
The first issue is whether the legal heirs can file a writ challenging an ward that was delivered when the workman was alive. Normally, as I understand, a legal heir is allowed to be impleaded as a party to a suit/ petition during pendency of which the petitioner dies. In this case, the workman died before filing the writ.However, the writ jurisdiction under Art.226 of the Constitution is an extra-ordinary and discretionary remedy and can be filed by any one whose fundamental rights are violated or who has legal rights in the matter to the dispute. So as I understand, a legal heir can possibly invoke writ jurisdiction in this case both as parties, having legal rights in the dispute and also likely on the ground of violation of their fundamental rights under Art.19 and 20.(right to life and livelihood)
The second issue is the legal heirs can file a writ after 4.5 years after the delivery of the award in 2014. The law prescribes time limit for appeals and civil suits and so far as I gather,there is no time limit prescribed under Art.226 for filing a writ, it being an extraordinary remedy. However law discourages delay as it renders issues stale by passage of time and change of circumstances but does not outrightly reject a petition on this ground if it results in serious miscarriage of justice or if the delay is due to justifiable reasons.
So you need to consult a lawyer in service and labour matters and prepare your grounds to rebut the opposite party's contentions
These are only views and others are welcome to correct them.
B.Saikumar
HR & Labour Relations Consultant.
1st March 2019 From India, Mumbai
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