The Central Bank of India Ltd. V. P.S.
Rajagopalan  INSC 109 (19 April 1963)
19/04/1963 GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 743 1964 SCR (3) 140
RF 1964 SC 752 (7) R 1964 SC1522 (3) R 1968
SC 205 (3) F 1968 SC 218 (3) RF 1969 SC 590 (6) R 1970 SC 237 (13,15,20) R 1971
SC1902 (13) R 1972 SC 451 (16) D 1972 SC1579 (3) R 1974 SC1604 (21) F 1975
SC1745 (4) R 1978 SC 275 (5) E&R 1978 SC 995 (4) R 1988 SC1618 (4)
Industrial Disputes--Application claiming
special allowance for operating the adding machine--Power of Labour Court
-Limitation-Sastry Award--Industrial Dispute Act, 1947 (14 of 1947), s. 33C(2).
Applications were made by four respondent
under s.33C(2) of the Industrial Disputes Act, 1947, contending that besides
attending to their routine duty as clerks, they had been operating the adding
machine provided for use in the clearing department of the appellant Bank
during the period mentioned in the list annexed to the petitions and hence each
of them was entitled to the payment of Rs. 10/- p m, as special allowance for
operating the adding machine as provided for in para 164(b)(1) of the Sastry
Award. The appellant Bank raised certain objections but these were rejected by
the Labour Court which held that the respondents were entitled to the amounts
claimed 141 by them, and the same were ordered to be paid. The appellants came
to this Court by special leave.
The contentions raised in this court were
that s. 33C(2) did not apply in the present case and the Labour Court had
exceeded its jurisdiction in entertaining the applications made by respondents
as claims made by them were outside the scope of s, 33(3(2) which postulated
the existence of an admitted right in a workman and did not cover cases where
the said right was disputed. Moreover, special allowance could be claimed only
by comptists and as the respondents had not even claimed that they were
comptists, their applications should have been rejected.
Held that s. 33C(2) takes within its purview
cases of workmen who claim that the benefit to which they are entitled should
be computed in term of money, even though the right to the benefit on which
their claim is based is disputed by their employers. For the purpose of making
the necessary determination under s. 33C(2), it is open to the Labour Court to
interpret the award or settlement on which the workman's right rests.
There is a distinction between s. 33C(2) and
Whereas s. 33C(2)'deals with cases of
implementation of individual rights of workmen falling under its provisions, s.
36A deals merely with a question of interpretation of the award where a dispute
arises in that behalf between the workmen and the employer and the appropriate
Government is satisfied that the dispute deserves to be resolved by reference
under s. 36A.
The scope of s. 33G(2) is wider than that of
Claims made under s. 33C(1) can be only those
claims which are referrable to settlement, award or the relevant provisions of
Chapter V-A, but those limitations are not to be found in s. 33C(2). Three
categories of claims mentioned in s. 33C(1) fall. under s. 33C(2)and in that
sense s. 33C(2) can itself be deemed to be a kind of execution proceeding, but
it is possible that claims not based on settlements, awards or made under the
provisions of Chapter V-A may also be competent under s. 33C (2).
Held that respondents' claim for special
allowance as camptists solely on the ground that they could be described as
adding machine operators could not be sustained.
No period of limitation is provided for an
application under s. 33C(2).
142 Punjab National Bank Ltd. v.K.L. Kharbanda,
(1962) 1 L.L.J.
234, M/s. Kasturi and Sons (P) Led. v. Shri
N. Saliva- teeswaranb  S.C.R. 1, Shri Ambica Mills Co. Ltd.
v. Shri S B. Bhatt,  3 S.C.R. 220 and
Sawatrum Ramprasad Mills Co. Ltd, Akola v.
Baliram, (1962) 65 Born.L.R. 91, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos, 823--826 of 1962.
Appeals by special leave from the order dated
March 7, 1962, of the Central Government Labour Court at Delhi in L.C.A. Nos.
246 to 249 of 1962.
M.C. Setalvad, N.V. Phadke, J.P. Thacker,
O.C. Mathur, Ravinder Narain and J.B. Dadachanji, for the appellants.
A.V. Viswanatha Sastri, M.K. Ramamurthi, R.K.
Garg, D.P. Singh and S.C. Agarwal, for the respondents.
1963. April 19. The Judgment of the Court was
delivered by GAJENDRAGADKAR J.--This group of several' appeals has been placed
together for final disposal, because the appeals included m the group raise a
common question of law m regard to the construction of s. 33C(2) of the In. Industrial
Disputes Act, 1947 (No. 14 of 1947) (hereinafter called the Act). We propose to
deal with this. point m Civil Appeals Nos. 823 to 826 of 1962 which have been
preferred by the appellant, the Central Bank of India Ltd, against the
respondents, its employees and in accordance with our decision on the said
point the other appeals, included in this group would be dealt with on the
Civil Appeals 823 to 826 of 1962 arise out of
applications made by four respondents under 143 s. 33C(2) of the Act. The case
for each one of the respondents was that besides attending to his routine
duties as clerk, he had been operating the adding machine provided for use in
the clearing department of the Branch during the period mentioned in the list
annexed to the petition and it was alleged that as such, he was entitled to the
payment of Rs. 10/-per 'month as special allowance for operating the adding
machine as provided for under paragraph 164(b)(1) of the Sastry Award. On this
basis, each one of the respondents made his respective claim for the amount
covered by the said allowance payable to him during the period specified in the
'The appellant disputed the respondent's
claims. It urged three preliminary objections against the competence of the
applications. According to it, the respondents could claim only non-monetary
benefits under the Award that were capable of computation and so, s. 33G(2)was
inapplicable to their claim. It was also contended that without a reference
made by the Central Government, the applications were not maintainable, and it
was pleased that since the applications involved a question of the
interpretation of the Sastry Award, they were outside the purview of s. 33C(2).
On the merits, the appellant's case was that the special allowance claimed by
the respondents was payable only to the Comptists and could not be claimed by
the respondents on the ground that they were operating adding machines. In
support of this contention, the appellant alleged that a certain amount of
manipulative skill is required for the handling of a Comptometer since the
operater has to execute a series of somewhat complex operations in quick
succession before he can arrive at a result. 'the art of operating a
comptometer has to be learnt over several months, but the work of operating the
adding machine needs no special training and does not require even the skill
which a typist has to show.
That= is why, according to the appellant, 144
no special allowance could be claimed by the respondents under paragraph
164(b)(1) of the Sastry Award.
The Central Government Labour Court before
which these applications were made by the respondents over-ruled the preliminary
objections raised by the appellant and on the merits, found that the
respondents were entitled to claim the special allowance under the relevent
clause of the Sastry Award. That is how the applications made by the
respondents were allowed and the respective amounts claimed by them were
ordered to be paid by the appellant. It is against this order that the
appellant has come to this Court by special leave.
The principal contention which has been urged
before us by the appellant is one of jurisdiction. It is argued t.hat the
Labour Court has exceeded its jurisdiction m entertaining the applications made
by the respondents because the claims made by respondents in their respective
applications are outside the scope of s. 33C(2) of the Act.
In dealing with this point, it is necessary
to read section 33C:
"(1) Where any money is due to a workman
from an employer under a settlement or an award or under- the provisions of
Chapter VA, the workman may without prejudice to any other mode of recovery,
make an application to the appropriate Government for the recovery' of the
money due to him, and if the appropriate Government is satisfied that any money
is so due, it shall issue a certificate for that amount to the Collector who
shall proceed to recover the same' in the same manner as an arrear of land
(2) Where any workman is entitled to receive
from the employer any benefit which is 145 capable of being computed in terms
of ,money., the amount at which such benefit should be computed may, subject to
any rules that may be made under this Act, be determined by such Labour Court
as may be specified in this behalf by the appropriate Government, and the
amount so determined may be recovered as provided for in sub-section (1).
(3) For the purposes of computing the money
value of a benefit, the Labour Court may, if it so thinks fit, appoint a
commissioner who shall, after taking such evidence as may be necessary, submit
a report to the Labour Court and the Labour Court shall determine the amount
after considering the report of the Commissioner and other circumstances of the
case." It is common ground that s. 33C(1) provides for a kind of execution
proceedings and it contemplates that if money is due to a workman under a
settlement or an award, or under the provisions of Chapter VA, the workman is
not compelled to take resort to the ordinary course of execution in the Civil
Court, but may adopt a summary procedure prescribed by this sub-section.I This
sub-section postulates that a specific amount is due to the workman and the
same has not been paid to him. If the appropriate Government is satisfied that
the money is so due, then it is required to issue a certificate for the said
amount to the Collector and that leads to the recovery of the said amount in
the same manner as an arrear of land revenue. The scope and effect of s.33C(1)
are ,not in dispute before us.
There is also no dispute that the word
"benefit" used in s. 33C(2) is not confined merely to monetary
benefit which could be converted in terms of 146 money, but that it takes in
all kinds of benefits which may be monetary as well as non-monetary if the
workman is entitled to them, and in sUCh a case, the workman is given the
remedy of moving the appropriate Labour Court with a request that the said
benefits be computed or calculated in terms of money. Once such computation or
'calculation is made under s. 33C(2)the amount so determined has to be
recovered as provided for in sub-s.(1). In other words, having provided for the
determination of the amount due to the workman in cases falling under subs.
(2), the legislature has clearly prescribed that for-recovering the said
amount, the workman has to revert to his remedy under sub-s. (1).
Sub-section (3) empowers the Labour Court to
appoint a Commissioner for the purposes of computing the money value of the
benefit, and it lays down that if so appointed, the Commissioner shall take
such evidence as may be necessary and submit report i to the Labour Court. The
Labour Court is then required to proceed to determine the amount in the light
of the. report, submitted by the Commissioner and other circumstances of the
case. This means that proceedings taken under sub-s. (2) may be determined by
the Labour Court itself or,in a suitable case, may be determined by it after receiving
a report submitted by the Commissioner appointed in that behalf. It is clear
that if for computing in terms of money the value of the benefit claimed by the
workman, an enquiry is required to be held and evidence has to be taken, the
Labour Court may do that itself or may delegate that work to a COmmissioner
appointed by it. This position must be taken to be well settled after the
decision of this Court in the Punjab National Bank Ltd. V.K.L. Kharbanda (1).
The question which arises for our decision
is, however, slightly different. It is urged by the appellant that sub-s..
(2)can be invoked by a workman Who (1) 1962 (1) L.L.J.284 147 is entitled to
receive from the employer the benefit there specified, but the right of the
workman to receive the benefit has to be admitted and could not be a matter of
dispute between the parties in cases which fall under sub-s.
(2). The argument is, if there is a dispute
about the workman's right to claim the benefit, that has to be adjudicated upon
not under sub-s. (2), but by other appropriate proceedings permissible under
the Act, and since in the present appeals, the appellant disputed the
respondent's right to 'claim the special allowance, the Labour Court had no
jurisdiction to deal with their claim.
In other words, the contention is that the
opening words of sub-s. (2) postulate the existence of and admitted right
vesting in a workman and do not cover cases where the said right is disputed.
On the other hand, the respondents contend
that sub-s. (2) is broad enough:I to take in all cases where a workman claims
some benefit and wants the said benefit to be computed in terms of money. If in
resisting the said claim, the employer ,makes several defences, all those
defences will have to be tried by the Labour Court under sub-s. (2).
On this argument all questions arising
between the workmen and their employers in respect of the benefit which they
claim t6 be computed in terms of money would fall within the scope of sub-s.
Before dealing with the question of construction
thus raised by the parties in the present proceedings it would be material. to
refer briefly to the legislative history of this provision. The Act, as it was
originally passed, made relevant provisions on the broad basis that industrial
disputes should be adjudicated upon between trade Unions or representatives of
labour on the one hand and the workmen's employers on the other. That is why
section 10 (1) which deals with the reference of disputes to Boards Courts or
Tribunals, has been interpreted by this 148 Court to mean the disputes which
are referable under s. 10(1) should be disputes which are raised by 'the trade
Unions to which the workmen belong or by the representatives of workmen acting
in such a representative character. It was, however, realised that in denying
to the individual employees a speedy remedy to enforce their existing rights,
the Act had failed to 'give due protection to them. If an individual employee
does not seek to raise an industrial dispute in the sense that he does not want
any change in the .terms and conditions of service, but wants only to
:implement or enforce his existing rights, it should not be necessary for him
to have to take recourse to the remedy prescribed by s. 10(1) of the Act; that
was the criticism made against the omission of the Act to provide for speedy
enforcement of individual workman's existing rights. In order to meet this
criticism, an amendment was made by the Legislature in 1059 by section 20 of
the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. 48 of 1950).
Section 20 of this Act provided for recovery of money due from an employer
under an award or decision. This provision filled up the lacuna which was
discovered, because even after an award was made individual workmen were not given
a speedy remedy to implement or execute the said award, and so s.20 purported
to supply that remedy. Section 20( 1 ) provided that if money was due under an
award or decision of an industrial tribunal, it may be recovered as arrears of
land revenue or as a public demand by the appropriate Government on an
application made to it by the person entitled to the said money. Section 20(2)
then dealt with the cages where any workman was entitled to receive from the,
employer any benefit under an award or decision of an industrial tribunal which
is capable of being computed in terms of money and it provided that the amount
at which the said benefit could be computed may be determined. Subject to the
rules framed in that behalf, by that industrial tribunal and the amount so
determined may be recovered 149 as provided for in sub-s. (1). In other words,
the provisions of s.20 (2) roughly correspond to the provisions of s.33C(2) of
the Act. There are, however, two points of distinction. Section 20(2) was
confined to the benefits claimable by workmen under an award or decision of an
Industrial tribunal; and the application to be made in that behalf had to be
filed before the industrial tribunal which made the said award or decision.
These two limitations have not been introduced in s. 33C(2). Section 20(3)
corresponds to s.33C:(3). It would thus be noticed that s.. 20 of this Act
provides a speedy remedy to individual workmen to execute their rights under
awards or decisions of industrial tribunals. Incidentally, we may add that
section 34 of this Act made a special provision for adjudication as to whether
conditions of service had been changed during the pendency of industrial
proceedings at the instance of an individual workman and for that purpose
inserted in the Act s.33A. Act 48 of 1950 by which s.20 was enacted came into
force on May 20, 1950.
In 1953, the Legislature took a further step
b? providing for additional rights to the workmen by adding Chapter VA to the
Act, and passed an Amending Act No. 43 of 1953. Chapter VA deals with the
workmen's claims in cases of lay-off and retrenchment. Section 25(1) which was
enacted in this Chapter provided for the machinery to recover moneys due from
the employers under this Chapter. It laid down, inter aria, that any: money due
from an employer.
under the provisions of Chapter VA may be
recovered in the same manner as an arrear of land revenue or as a public demand
by the appropriate: Government on an application made to it by the workman
entitled to the said money. This was of course, without prejudice to the
workman's right to adopt:any other mode of recovery. This provision shows, that
having created additional rights in the workmen in respect of lay-off and
retrenchment the 150 legislature took the precaution of prescribing a speedy
remedy for recovering the. said amounts from their.
employers.. This Amending Act came into force
on December 23, 1953.
About three years later, the legislature
passed the Industrial Disputes (Amendment and Miscellaneous Provisions) Act,
1956 (No. 36 of 1956). This Act repealed-the Industrial Disputes (Appellate
Tribunal) Act No. 48 of 1950, s. 25.I in Chapter VA and inserted s. 33C(1), (9)
and (3) and s. 36A in the Act. The result of these modifications is that the
recovery provisions are now contained in section 33C and an additional
provision is made by s. 36A which deals with cases where doubt or difficulty
may arise in the interpretation of any provision of an award or settlement.
This Act came into force on August 28, 1956.
In order to make the narration of the
legislative background of s. 33C complete, we may refer to the fact that by the
Amendment Act No. 18 of 1957, two more provisions were added to Chapter VA
which are numbered as s. 25FF and s. 25FFF. This Act came into force on June 6,
The legislative history to which we have just
referred clearly indicates that having provided broadly for the investigation
and settlement of industrial disputes on the basis of collective bargaining,
the legislature recognised that individual workmen should be given a speedy
remedy to enforce their existing individual rights, and so, inserted s. 33-A in
the Act in 1950 and added s. 33-C in 1956. These two provisions illustrate the
cases in which individual workmen can enforce their rights without having to
take recourse to s. 10(1) of the Act, or without having to depend upon their
Union to espouse their cause. Therefore, in construing s. 33-C we have to bear
in mind two relevant considerations. The construction 151 should not be so
broad as to bring within the scope of s. 33-C cases which would fall under s.
10(1). Where industrial disputes arise between employees acting collectively
and their employers, they must be adjudicated upon in the manner prescribed by
the Act, as for instance, by reference under s, 10(1). These disputes cannot be
brought within the purview of s. 33C. Similarly, having regard to the fact that
the policy of the Legislature in enacting s. 33C is to provide a speedy remedy
to the individual workmen to enforce or execute their existing rights, it would
not be reasonable to exclude from the scope of this section cases of existing
rights which are sought to be implemented by individual workmen. In other
words, though in determining the scope of s. 33C we must take care not to exclude
cases which legitimately fall within its purview, we must also bear in mind
that cases which, fall under s. 10(1) of the Act for instance cannot be brought
within the scope of s. 34C.
Let us then revert to the words used in s.
33C(2) in order to decide what would be its true scope and effect on a fair and
reasonable construction. When sub-s. (2) refers to any workman entitled to
receive from the employer any benefit there specified, does it mean that he
must be a workman whose right to receive the said benefit is not disputed by
the employer? According to the appellant, the scope of subs. (2) is similar to
that of sub-s. (1) and it is pointed out that just as under sub-s. (1) any
disputed question about the workmen's right to receive the money due under an
award cannot be adjudicated upon by the appropriate Government, so under
sub-s.(2) if a dispute is raised about the workmen's right to receive the
benefit in question, that cannot be determined by the Labour Court. The only
point which the Labour Court can determine is one in relation to the
computation of the benefit in terms of money. We are not impressed by this
argument. In our opinion, on a fair and reasonable construction 152 of sub-s.
(2)it is clear that if a workman's right' to receive the benefit is disputed.
that may have to be determined by the Labour Court. Before proceeding to
compute the benefit in terms of money the Labour Court inevitably has to deal
with the question as to whether the workman has a right to receive that
benefit. If the said right is not disputed, nothing more needs to be done and
the Labour Court can proceed to compute the value of the benefit in terms of
money; but if the said right is disputed, the Labour Court must deal with that
question and decide whether the workman has the right to receive the benefit as
alleged by him and it is only if the Labour Court answers this point in favour
of the workman that the next question of making necessary computation can
arise. It seems to us that the opening clause of subs. (2)does not admit of the
construction for which the appellant contends unless we add some words in that
clause. The Clause "Where any workman is entitled to receive from the
employer any benefit" does' not mean "where such workman is admittedly,
or admitted to be, entitled to receive such benefit." The appellant's
construction would necessarily introduce the addition of' the words
"admittedly, or admitted to be" in that clause, and that clearly is
not permissible. Besides, it seems to us that if the appellants construction is
accepted, it would necessarily mean that it would be at the option of the
employer to allow the workman to avail himself of the remedy provided by sub-s.
(2), because he has merely to raise an objection on 'the ground that the right
claimed by the workman is not admitted to oust the jurisdiction of the Labour
Court to entertain the workman's application. The claim under s. 33 C (9,)
clearly postulates that the determination of the question about computing the
benefit in terms of money may, in some cases. Have to be preceded by an enquiry
into the existence of the right and such an enquiry must be held to be
incidental to the main determination 153 which has been assigned to the Labour
Court by sub-s. (2).
As Maxwell has observed "where an Act
confers a jurisdiction, it impliedly also grants the power of doing all such
acts, or employing such means, as are essentially necessary to its
execution(1).,, We must accordingly hold that s. 33C (2) takes within its
purview cases of workmen who claimed that the benefit to which they are
entitled should be computed in terms of money, even though the right to the
benefit on which their claim is based is disputed by their employers
incidentally, it may be relevant to add that it would be somewhat odd that
under sub-s. (3), the Labour Court should have been authorised to delegate the
work of computing the money value of the benefit to the Commissioner if the
determination of the said question was the only task assigned to the Labour
Court under sub-s. (2).
On the other hand, sub-s. 3 becomes
intelligible if it is held that what can be assigned to the Commissioner
includes only a part of the assignment of the Labour Court under sub- s. (2).
It is, however, urged that in dealing with
the question about the existence of a right set up by the workman, the Labour
Court would necessarily have to interpret the award or settlement on which the
right is based, and that cannot be within its jurisdiction under s. 33C (2),
because interpretation of awards or settlements has been specifically and
expressly provided for by s. 36A. We have already noticed that s. 36A has also
been added by the Amending Act No. 36 of 1956 along with section 33C, and the
appellant's argument is that the legislature introduced the two sections
together and thereby indicated that questions of interpretation fall within s.
36A and therefore, outside s. 33C (2). There is no force in.
this contention. Section 36A. merely provides
for the interpretation of any provision of an award or settlement where any
difficulty or doubt arises as (1) Maxwell on Interpretation of Statutes p.350.
154 to the said interpretation. Generally,
this power is invoked when the employer and his employees are not agreed as to
the interpretation of any award or settlement, and the appropriate Government
is satisfied that a defect or doubt has arisen in regard to any provision in
the award or settlement. Sometimes, cases may arise where the awards or
settlements are obscure, ambiguous or otherwise present difficulty in construction.
It is in such cases that s. 3CA can be invoked by the parties by moving the
appropriate Government to make the necessary reference under it.
Experience showed that where awards or
settlements were defective in the manner just indicated, there was no remedy
available to the parties to have their doubts or difficulties resolved and that
remedy is now provided by s. 36A. But the scope-of s. 36A .is different from
the scope of s. 33C (2), because s. 36A is not concerned with the implementation
or execution of the award at all, whereas that is the sole purpose of s. 33C
(2). Whereas s. 33C(2) deals with cases of implementation of individual rights
of workmen falling under its provisions, s. 36A deals merely with a question of
interpretation of the award where a .dispute arises in that behalf between the
workmen and the employer and the appropriate Government is satisfied that the
dispute deserves to be resolved by reference under s. 36A.
Besides, there can be no doubt that when the
Labour Court is given the power to allow an individual workman to execute or
implement his` existing individual rights, it is virtually exercising execution
powers in some cases, and it is well settled that it is open to the Executing
Court to interpret the decree for the purpose of execution. It is, of course,
true that the executing Court cannot go behind the decree, nor can it add to or
subtract from the provision of the decree. These limitations apply also to the
Labour Court; but like the executing Court, the 155 Labour Court would also be
competent to interpret the award or settlement on which a workman bases his
claim under s. 33C (2). Therefore, we feel no difficulty in holding that for
the purpose of making the necessary determination under s. 33C (2),it would, in
appropriate cases, be open to the Labour Court to interpret the award or
settlement on which the workman's right rests.
We have already noticed that in enacting s.
33C the legislature has deliberately omitted some words which occurred in s. 20
(94 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable
that similar words of limitation have been used in s. 33C (1) because s. 33 C
(1) deals with cases where any money is due under a settlement or an award or
under the provisions of Chapter VA. It is thus .clear that claims made under s.
33C (1), by itself can be only claims referable to the settlement, award, or
the relevant provisions of Chapter VA. These words of limitations are not to be
found in s. 33C (2) and to that extent, the scope of s. 33C (9.) is undoubtedly
wider than that of s. 33C (1). It is true that even in respect of the larger
class. of cases which fail under s. 33C (2), after the determination is made by
the Labour Court the execution goes back again to s. 33C (1). That is why s.
33C (2) expressely provides that the amount so determined may be recovered as
provided for in sub-section (1). It is .unnecessary in the present appeals
either to state exhaustively or even to indicate broadly what other categories
of claims can fall under s. 33C (2). There is no doubt that the three
categories of claims mentioned in s. 33C (1) fall under s. 33C (2) and in that
sense, s. 33C (2) can itself be deemed to be a kind of. execution proceeding;
.but it is possible that Claims not based on settlements, awards or made under
the provisions of Chapter V A, may also be competent under s. 33C (2) and that
may illustrate its wider scope. We would, however, like to indicate 156 some of
the claims which would not fall under s. 33C (2), because they formed the
subject matter of the appeals which have been grouped together for our decision
along with the appeals with which we are dealing at present. If an employee is
dismissed or demoted and it is his case that the dismissal or demotion is
wrongful, it would not be open to him to make a claim for the recovery of his
salary or wages under s. 33G (2). His demotion or dismissal may give rise to an
industrial dispute which may be appropriately tried, but once it is shown that
the employer has dismissed or demoted him, a claim that the dismissal Or
demotion is unlawful and. therefore, the employee continues to be the workman
of the employer and is entitled to the benefits due to him under a preexisting
contract, cannot be made under s. 33 C (2). If a settlement has been, duly
reached between the employer and his employees and it fails under s. 18 (9.) or
C3) of the Act and is governed by s.(19) 2 it would not be open to an employee,
notwithstanding the said settlement, to claim the benefit as though the said settlement
had come to an end. If the settlement exists and continues to be operative no
claim can be made under s. 33C(2) inconsistent with the said settlement. If the
settlement is intended to be terminated, proper steps may have to be taken in
that behalf and a dispute that may be arise thereafter may to be dealt with
according. to the, other procedure prescribed by the Act. Thus, our conclusion
is that the scope of s. 33G (2)is wider than s. 33G (1) and cannot be wholly
assimilated with it, though for obvious reasons, we do not propose to decide or
indicate what additional cases would fall under s. 33G (2) which may not fall
under s. 33G (1). In this connection, we may incidentally state that the
observations made by this Court in the case of Punjab National Bank Ltd (1),
that s. 33C is a provision in the nature of execution should not be interpreted
to mean that the scope of s. 33G (2) is exactly the same as s. 33G (1) (page
(1) 1962 (1) L.L.J.234.
157 It now remains to refer to some decisions
which are relevant. In M/s. Kasturi and Sons (Private)Lid v. Shri N. Salivateeswaran
(1), where this Court was considering the question about the scope and effect
of s. 17 of the Working Journalists (Condition of Service) and Miscellaneous
Provisions Act, 1955,(No. 45 of 1955), reference was made to the fact that the,
procedure prescribed by the said s. 17 was different from the procedure
prescribed by s. 33C (2), and it was observed that under the latter provision
where an employee makes a claim for some money, an enquiry into the claim is
contemplated by the Labour Court, and it is only after the Labour Court has
decided the matter that the decision becomes enforceable under s. 33C (1) by
summary procedure. No such enquiry was contemplated by the said s. 17.
In Shri Ambica Mills Co. Ltd. v. Shri S.B.
Bhatt (2), section 15 of the Payment of Wages Act, 1936 (No. 4 of 1936) fell to
be construed, and it was held that under the said section, when the authority
exercises its jurisdiction which is made exclusive by s. 22, it has necessarily
to consider various questions incidental to the claims falling there under, and
it was added that although it would be inexpedient to lay down any hard and
fast rule for determining the scope of such questions, care should be taken not
to unduly extend or curtail its jurisdiction- As we have already indicated. we
have adopted the same approach in interpreting s. 33C (2).
The respondents relied on the decision of the
Bombay High Court in M/s. Sawa tram Ramprasad Mills Co. Ltd., Akola v. Baliram
(3). In support of the very broad construction which they seek to place on the
provisions of s. 33C (2). In that case, the High Court was dealing with a claim
made under Chapter VA of the Act, (1)  S.C.R. 1. (2)  3 S.C.R. 220.
(3) (1962) 65 Bom. L.R. 91.
158 and there can be. no doubt that such a
claim together with .all a question incidental 'to its decision can be properly
determined under s. 33C (2). In reaching its conclusion, the High Court has no
doubt made certain broad and general observations in regard to the scope of the
jurisdiction conferred on the Labour Court under s. 33G (2). Those observations
are in the nature of obiter dicta and in so far as they may be inconsistent
with our present decision, they should be held to be not justified by the terms
of s. 33C (2). In the result, the preliminary point raised by the appellant
that the Labour Court had no jurisdiction to entertain the respondents' applications
fails and must be rejected.
That takes us to the merits of the
We have already seen that the main basis on
which the respondents have claimed the special allowance under paragraph 164
(b) (1) of the Sastry Award is that they have been operating upon the adding
machines provided by the appellant for use in its clearing department. The
appellant, however has contended that the special allowance can be claimed only
by Comptists, and since the respondents had not even claimed that they are
Comptists, their applications should be rejected. For deciding this dispute.
it is necessary to refer to the relevant
provisions of the Sastry Award as they were modified by the decision of the
Labour Appellate Tribunal. Chapter X of the Sastry Award deals with the problem
of special allowances. In paragraph 161 of this Chapter, the Sastry Tribunal
observed that there were certain posts even in the clerical and subordinate
grades for which an incumbent requires special qualifications or skill for the
efficient discharge of his duties, and so, it thought that an extra payment in
such cases is necessary by way of recognition of and compensation for this
special skill or responsibility. In paragraph 162, the Tribunal examined three
alternatives suggested for 159 its acceptance for making a provision for some
special payment, and .it ultimately decided that a special allowance should be
paid to those categories of employees who, by their special qualifications or
skill, deserve recognition'. In paragraph 163, the Tribunal observed that the
special allowance which it was about to prescribe was the minimum and i.t was
open to the banks to pay higher allowance if they thought necessary to do so.
Then followed paragraph 164 in which it specified 10 categories fit for special
allowances. The first of these categories was Graduates and the claim of this
category of employees was dealt with by the Tribunal in paragraph 164(a).
Paragraph 164(b) deals with the remaining 9 categories and the Comptists are
the first in these 9 categories. The Tribunal provided that the Comptists
should receive Rs. 10/- p.m. as special allowance in cases of all the four
classes of banks A,B,C and D. It is on this provision that the respondents rely
in support of their claim.
When the Sastry Award went before the Labour
Appellate Tribunal, the Labour Appellate Tribunal dealt with this question in
paragraph 140 of its decision. The Tribunal observed that during the course of
the hearing it became clear that the nomenclature by which. particular
categories of employees are described differed from bank to bank, and so, in
order to avoid disputes between banks and their employees as to whether a
particular category of employees is entitled to a special allowance under the'
Award or not the, Tribunal asked the banks to supply it with statements of
different names given to the categories of employees for whom special
allowances have been 'provided by the Sastry Award. Accordingly, some of the
banks supplied the necessary information. The Tribunal then set out eight of
the categories the equivalents of which had been supplied in the statements of
the banks. As against 160 the Comptists, Statement No. B-247 which had been
supplied by the Imperial Bank of India, showed that the nomenclature adopted by
the said Bank in respect of the said category was adding machine operators,
Address ographers. Having set out these equivalents,1. the Tribunal took the
precaution of adding that the equivalents set out by it were helpful, but did
not exhaust the subject, and so, in the absence of data, it had to be left to
the banks to pay the appropriate allowances having regard to the duties and
responsibilities of a post. That is how the matter ended.
In the present proceedings, the respondents
seem to base their case on the sole basis that they are .operating the adding
machines and can, therefore, be treated as adding machine operators, and they
argued that since adding machine operators were equated in the statement of the
Imperial Bank of India with Comptists, they must be held to be Comptists for
the purpose of paragraph 164 (b) (1) of the Sastry Award and thus entitled to
the special allowance of Rs. 10/-. In fact, in allowing the respondents' claim
the Tribunal seems to have accepted this contention, for it has observed that
according to the decision of the Labour appellate Tribunal, the adding machine
operators must be held to be in the same category as Comptists. In other words,
the Tribunal appears to have taken the view that since the Imperial Bank of India
described the employees who did the work of Comptists as adding machine
operators, it followed that whenever any bank employee was operating on the
adding machine for howsoever small a period it may be, he must be held to be a
Comptists and as such entitled to the special allowance. -In. our opinion, this
is clearly erroneous.It is true that the Imperial Bank of India adopted the
nomenclature of adding machine operators for its Comptists and that may
presumably be for the reason. that at the relevant time, its Comptists were 161
doing the work of adding machine operators and Ad- dressographers; so that it
made no difference whether the bank called them Comptists or adding machine
operators or Address ographers, all the three types of work being entrusted to one
category of employees; but however that may be, the nomenclature adopted by the
Imperial Bank of India cannot be said to be binding on the other banks which
did not adopt it, and so, it is obviously erroneous to hold that the equivalent
adopted by the Imperial Bank of India must be taken to have been adopted by all
the other banks. Indeed, the Award recently made by Mr. Justice Desai who was
appointed the National Industrial Tribunal in the Bank Disputes clearly brings
out the distinction between Comptists on the one hand, and adding machine
operators, addressographers and photostat machine operators on the other in
paragraphs 5. 242 and 5. 265.
In the present appeals, no evidence was led
on behalf of the respondents. The appellant, however, examined its officer Mr.
Shivodkar. This witness stated that an adding machine can be operated by a
clerk with half an hour's practice. It only does additions mechanically.
Operating a comptometer, however, involves complicated calculations and in
order to handle it efficiently, the employee has to take three months training
and practising. He added that about two hours' work is put on the adding
machine by the several respondents, but it is included in their normal working
hours. There has been some discussion at the Bar in the present appeals as to
the nature of the work which is done on the comptometer and on the adding
machine, but there can be no doubt that compared to the comptometer, the adding
machine is a simple mechanism and for operating on it, not much experience or
technical training is required; in fact, it may not even require that amount of
skill and efficiency which is expected of a typist and it is significant that a
claim made 162 by the typists for special allowance was rejected by the Sastry
Tribunal. That shows how the respondents' claim for special allowance as
Comptists solely on the ground that they can be described as adding machine
operators, cannot be sustained. Therefore, -the sole basis on which the
respondents' claim has been allowed by the Labour Court is unsound, and so the
order passed by it cannot be affirmed.
It has, however, been urged before us by the
respondents that they should be given an opportunity to substantiate their
claims on the merits. It is argued that they were advised that the equivalent
supplied by the Imperial Bank of India by itself furnished a firm basis for
their claims, and so, no other allegations were made by them in the present
proceedings and no evidence was led by them to prove the nature of the work
done by them and the e for which they do the special kind of work to justify
the claim for special allowance. On the other hand, the appellant has
strenuously contended that the delay made by the respondents in making the
present applications speaks for itself, and so, no indulgence should be shown
to the respondents for remanding the present cases to the Labour Court once it
is found that the basis on which the claim has been allowed is not justified in
law. It is true that though the Sastry ward was passed in 1953 and the Labour
Appellate Tribunal's decision was pronounced in 1954 and it became final on October 21, 1955, the respondents did not make their claims until 1962. We have had
occasion in the past to emphasise the fact that industrial adjudication should
not encourage unduly belated claims; but on the other hand, no limitation is
prescribed for an application under s. 33C(2) and it would, on the whole, not
be right for us to refuse an opportunity to the respondents to prove their case
only on the ground that they moved the Labour Court after considerable delay.
We would, therefore, 163 set aside the order passed by the Labour Court and
remand the proceedings to that Court with a direction that it should allow the
parties to amend their pleadings if they so desire and to lead evidence in
support of their respective cases. It may be open to the respondents to prove
that they are doing the work which may be properly described as the work of
Comptists. In that connection, it may also be open to them incidentally to show
that the work which was being done in the Imperial Bank of India by the adding
machine operators who were shown as equivalents of the Comptists at the
relevant time is being done by them in the appellant's branches. If the Labour
Court is satisfied that the work done by the respondents can be reasonably
treated as the work of Comptists as properly understood in the banking
industry, then it should proceed to determine the respondents' claim on that
basis. We have already referred to the fact that the Labour Appellate Tribunal
made it perfectly clear that the particular nomenclature was not decisive and
that what mattered in these cases was the nature of the duties and
responsibilities of a post.
If the nature of the duties and
responsibilities of the posts held by the respondents legitimately Justify the
conclusion that they are comptists, then the special allowance can be claimed
by them. It is in the light of these observations that the Labour Court should
proceed to deal with these cases after remand. If the parties want to amend
their pleadings, they should move the Labour Court in that behalf within a
fortnight after the receipt of the record in that Court. Then the Labour Court
should fix an early date for taking evidence and should deal with these matters
as expeditiously as possible.
The result is, the appeals are allowed, the
orders passed by the Labour Court are set aside and the matters sent back to
that Court for disposal in 164 accordance with law. There would be no order as