State
of Uttar Pradesh & Anr Vs. Brijpal Singh [2005] Insc
510 (27 September 2005)
Ruma
Pal, Dr. Ar. Lakshmanan & R.V. Raveendran
(Arising
out of S.L.P. (Civil) No. 182 OF 2003) Dr. AR. Lakshmanan, J.
Leave
granted.
This
appeal is filed against the final judgment and order dated 9.1.2002 passed by
the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 36406 of 1995 where the High Court
dismissed the writ petition filed by the appellants- The State of U.P. &
The Regional Food Controller, Meerut Region, Meerut. The respondent was appointed as Seasonal Clerk on
temporary and ad hoc basis in the office of the Senior Marketing Inspector on
stop gap arrangement. The appointment order dated 22.4.1987 reads thus:
"Dated:22.4.1987
O R D E R Following persons are appointed in this district on the post of S.A.
Clerk at the place mentioned in front of their name vide order No. 97/68/S.V.A.
1.2.87 dated 20.4.1987. Food Controller of the Department and direction is
given that they should immediately report their joining at the place of their
posting. The appointment of these employees have been made under wheat purchase
Project of 1987- 88 on temporary/ad hoc basis in the pay scale of 430-685. The
services shall be automatically stand terminated from the afternoon of
31.7.1987. No separate order shall be issued for it." The services of the
respondent were terminated on 3.7.1987. Feeling aggrieved by the termination
order, the respondent filed Writ Petition No. 15172 of 1987 on the file of the High
Court. Vide order dated 28.10.1987, the High Court passed the following order:-
"Issue notice.
Till
further orders of the Court, the operation of orders dated 22.4.87 and 3.7.87
shall remain stayed." The appellants herein filed its counter affidavit in
the writ petition stating that the respondent never attended the office as per
orders of the High Court and that he did not care to join the duties,
therefore, he is not entitled to any pay. The respondent, after a gap of six
years, filed Misc. Case No.11 of 1993 before the Labour Court, Meerut, for payment of salary from 4th July, 1987 till July, 1993 and bonus for the
years 1987 to 1992. The total amount of salary and bonus was worked out to be
Rs.1,55,821/-. The respondent for filing the above petition under Section 33C(2)
of the Industrial Disputes Act, 1947 (hereinafter referred to as "the I.D.
Act"), has solely relied on the interim order dated 28.10.1987 passed by
the High Court in the writ petition. A counter affidavit was filed by the
appellants herein before the Labour Court
stating that Writ Petition No.15172 of 1987 is pending for consideration before
the High Court, therefore, in such circumstances, the Labour Court does not have the jurisdiction to
hear and decide the dispute.
The Labour
Court, vide its order dated 23.8.1995, directed the appellants to make the
payment of salary and bonus of Rs.1,55,821/- for the period from 1987 to 1992
within one month from the date of the said order. Aggrieved by the order of the
Labour Court, the appellants filed Civil Misc. Writ Petition No. 36406 of 1995
before the High Court contending that the Labour Court has no jurisdiction to
try and decide the present controversy and that the order passed by the Labour
Court suffers from manifest error of law apparent on the record and hence is
liable to be set aside. The appellants, therefore, prayed for quashing the
order dated 23.8.1995 passed by the Labour Court, Meerut. Counter affidavit was filed by the
respondent herein to the writ petition stating that after the stay order passed
by the High Court, he was not allowed to join the duty in spite of several
requests made to the appellants to permit him to join the duty. The respondent
was left with no other remedy but only to file the application under Section 33C(2)
of the I.D. Act. It was, therefore, stated that the Labour Court has rightly passed the order in favour
of the respondent directing the appellants to make the payment of salary and
bonus. The High Court, by order dated 9.1.2002 dismissed Civil Misc. Writ Petition
No. 36406 of 1995 holding that the respondent-Workman is entitled for the
salary and other allowances which admittedly has not been paid to the
respondent; that so long as Civil Misc. Writ Petition No.15172 of 1984 is not
finally disposed of, the liability to pay, if any to the concerned workman
under Section 33C(2) of the I.D. Act cannot be taken by the appellants and,
therefore, the petition filed by the respondent under Section 33C(2) of the
I.D. Act is competent and maintainable.
Aggrieved
by the judgment and order dated 9.1.2002, the appellants preferred this appeal
by way of special leave.
We
have carefully perused the pleadings, annexures and orders passed by the Labour Court and of the High Court.
We
heard the arguments of Mr. Dileep Tandon, learned counsel appearing for the
appellants and Mrs. Shymala Pappu, learned senior counsel appearing for the
respondent.
In the
background facts of this case, the following questions of law arise for
consideration by this Court:
(1)
Whether the High Court erred in allowing the order passed by the Labour Court filed by the respondent under
Section 33C(2) of the Industrial Disputes Act?
(2)
Whether the pendency of the Writ Petition No. 15172 of 1987 filed by the
respondent herein , same being not finally disposed of, the liability to pay,
if any to the concerned workman under Section 33C(2) of the I.D. Act, does
arise or not?
(3)
Whether the High Court gravely erred in allowing the salary and bonus to the
respondent, although he has not attended the office of the appellant after the
stay order passed by the High Court dated 28.10.1987?
(4)
Whether the Labour
Court has
jurisdiction to entertain and decide the undetermined claim? Section 33C of the
Industrial Disputes Act reads thus:
"[33C.
Recovery of Money Due from an Employer –
(1)
Where any money is due to a workman from an employer under a settlement or an
award or under the provisions of chapter 5A or chapter 5B, the workman himself
or any other person authorised by him in writing in this behalf, or, in the
case, of the death of the workman, his assignee or heirs may, without prejudice
to any other mode of recovery, make an application to the appropriate
Government for the recovery of 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 revenue:
Provided
that every such application shall be made within one year from the date on
which money became due to the workman from the employer;
Provided
further that any such application may be entertained after the expiry of the
said period of one year, if the appropriate Government is satisfied that the
application had sufficient cause for not making the application within the said
period.
(2)
Where any workman is entitled to receive from the employer any money or any
benefit which is capable of being computed in terms of money and if any
question arises as to the amount of money due or as to the amount at which such
benefit should be computed, then the question may, subject to any rules that
may be made under this Act, be decided by such Labour Court as may be specified
in this behalf by the appropriate Government within a period not exceeding
three months.
Provided
that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for
reasons to be recorded in writing, extend such period by such further period as
he may think fit." It is well settled that the workman can proceed under
Section 33C(2) only after the Tribunal has adjudicated on a complaint under
Section 33A or on a reference under Section 10 that the order of discharge or
dismissal was not justified and has set aside that order and reinstated the
workman. This Court in the case of Punjab Beverages 33C(2) is a proceeding in
the nature of execution proceeding in which the Labour Court calculates the
amount of money due to a workman from the employer, or, if the workman is
entitled to any benefit which is capable of being computed in terms of money,
proceeds to compute the benefit in terms of money. Proceeding further, this
Court held that the right to the money which is sought to be calculated or to
the benefit which is sought to be computed must be an existing one, that is to
say, already adjudicated upon or provided for and must arise in the course of
and in relation to the relationship between the industrial workman, and his
employer. This Court further held as follows:
"It
is not competent to the Labour Court exercising jurisdiction under Section
33C(2) to arrogate to itself the functions of an industrial tribunal and
entertain a claim which is not based on an existing right but which may
appropriately be made the subject matter of an industrial dispute in a
reference under Section 10 of the Act." In the case of Municipal
Corporation of Delhi vs. Ganesh Razek & Anr. ,
(1995) 1 SCC 235. this Court held as under:
"12.
The High Court has referred to some of these decisions but missed the true
import thereof. The ratio of these decisions clearly indicates that where the
very basis of the claim or the entitlement of the workmen to a certain benefit
is disputed, there being no earlier adjudication or recognition thereof by the
employer, the dispute relating to entitlement is not incidental to the benefit
claimed and is, therefore, clearly outside the scope of a proceeding under
Section 33- C(2) of the Act. The Labour Court has no jurisdiction to first
decide the workmen's entitlement and then proceed to compare the benefit so
adjudicated on that basis in exercise of its power under Section 33- C(2) of
the Act. It is only when the entitlement has been earlier adjudicated or recognised
by the employer and thereafter for the purpose of implementation or enforcement
thereof some ambiguity required interpretation that the interpretation is
treated as incidental to the Labour Court's power under Section 33-C(2) like
that of the Executing Court's power to interpret the decree for the purpose of
its execution.
13. In
these matters, the claim of the respondent-workmen who were all
daily-rated/casual workers, to be paid wages at the same rate as the regular
workers, had not been earlier settled by adjudication or recognition by the
employer without which the stage for computation of that benefit could not
reach. The workmen's claim of doing the same kind of work and their entitlement
to be paid wages at the same rate as the regular workmen on the principle of
"equal pay for equal work" being disputed, without an adjudication of
their dispute resulting in acceptance of their claim to this effect, there
could be no occasion for computation of the benefit on that basis to attract
Section 33-C(2).
The
mere fact that some other workmen are alleged to have made a similar claim by
filing writ petitions under Article 32 of the Constitution is indicative of the
need for adjudication of the claim of entitlement to the benefit before
computation of such a benefit could be sought.
Respondents'
claim is not based on a prior adjudication made in the writ petition filed by
some other workmen upholding a similar claim which could be relied on as an
adjudication enuring to the benefit of these respondents as well. The writ
petitions by some other workmen to which some reference was casually made,
particulars of which are not available in these matters, have, therefore, no
relevance for the present purpose. It must, therefore, be held that the Labour
Court as well as the High Court were in error in treating as maintainable the
applications made under Section 33-C(2) of the Act by these respondents." In
the case of State Bank of India vs. Ram
Chandra Dubey & Ors. , (2001) 1 SCC 73, this Court held as under:
"7.
When a reference is made to an Industrial Tribunal to adjudicate the question
not only as to whether the termination of a workman is justified or not but to
grant appropriate relief, it would consist of examination of the question
whether the reinstatement should be with full or partial back wages or none.
Such a question is one of fact depending upon the evidence to be produced
before the Tribunal. If after the termination of the employment, the workman is
gainfully employed elsewhere it is one of the factors to be considered in
determining whether or not reinstatement should be with full back wages or with
continuity of employment. Such questions can be appropriately examined only in
a reference. When a reference is made under Section 10 of the Act, all
incidental questions arising thereto can be determined by the Tribunal and in
this particular case, a specific question has been referred to the Tribunal as
to the nature of relief to be granted to the workmen.
8. The
principles enunciated in the decisions referred by either side can be summed up
as follows:
Whenever
a workman is entitled to receive from his employer any money or any benefit
which is capable of being computed in terms of money and which he is entitled
to receive from his employer and is denied of such benefit can approach Labour
Court under Section 33- C(2) of the Act. The benefit sought to be enforced
under Section 33- C(2) of the Act is necessarily a pre-existing benefit or one
flowing from a pre-existing right. The difference between a pre-existing right
or benefit on one hand and the right or benefit, which is considered just and
fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2)
of the Act while the latter does not. It cannot be spelt out from the award in
the present case that such a right or benefit has accrued to the workman as the
specific question of the relief granted is confined only to the reinstatement
without stating anything more as to the back wages.
Hence
that relief must be deemed to have been denied, for what is claimed but not
granted necessarily gets denied in judicial or quasi- judicial proceeding.
Further when a question arises as to the adjudication of a claim for back wages
all relevant circumstances which will have to be gone into, are to be
considered in a judicious manner. Therefore, the appropriate forum wherein such
question of back wages could be decided is only in a proceeding to whom a
reference under Section 10 of the Act is made. To state that merely upon
reinstatement, a workman would be entitled, under the terms of award, to all
his arrears of pay and allowances would be incorrect because several factors
will have to be considered, as stated earlier, to find out whether the workman
is entitled to back wages at all and to what extent. Therefore, we are of the
view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied
in the relief of reinstatement or that the award of reinstatement itself
conferred right for claim of back wages"
Thus
it is clear from the principle enunciated in the above decisions that the
appropriate forum where question of back wages could be decided is only in a
proceeding to whom a reference under Section 10 of the Act is made. Thereafter,
the Labour Court, in the instant case, cannot arrogate to itself the functions
of an Industrial Tribunal and entertain the claim made by the respondent herein
which is not based on an existing right but which may appropriately be made the
subject matter of an industrial dispute in a reference under Section 10 of the
I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the
claim made by the respondent herein under Section 33C(2) of the I.D. Act in an
undetermined claim and until such adjudication is made by the appropriate
forum, the respondent-workman cannot ask the Labour Court in an application
under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful and
on that basis to compute his wages. It is, therefore, impossible for us to
accept the arguments of Mrs. Shymala Pappu that the respondent-workman can file
application under Section 33C(2) for determination and payment of wages on the
basis that he continues to be in service pursuant to the said order passed by
the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. The
argument by the learned counsel for the workman has no force and is
unacceptable. The Labour Court, in our opinion, has erred in allowing the
application filed under Section 33C(2) of the I.D. Act and ordering payment of
not only the salary but also bonus to the workman although he has not attended
the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of
law in passing the order in question which was rightly impugned before the High
Court and erroneously dismissed by the High Court.
The
High Court has also equally committed a manifest error in not considering the
scope of Section 33C(2) of the I.D. Act. We, therefore, have no hesitation in
setting aside the order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23.8.1995 and the order
dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995 as
illegal and uncalled for. We do so accordingly.
At the
same time, the respondent-workman should not be left without any other remedy.
According to the respondent-workman, he was first appointed on the seasonal
post of Clerk in the office of the Senior Marketing Inspector on 24.4.1973 and
thereafter he was appointed in the years 1981,1982,1983,1984,1985,1986 and 1987
and, therefore, the respondent would be entitled to be regularised and salary
and other emoluments. Admittedly, Writ Petition No. 15172 of 1987 is still
pending on the file of the High Court. Both parties submit that the pleadings
are complete and the pending writ petition can be disposed of at any time. We,
therefore, request the High Court to dispose of the writ petition preferably
within three months from the date of the receipt of this order. We make it
clear that we are not expressing any opinion on the merits of the rival claims.
The
civil appeal is, accordingly, allowed and the orders passed by the Labour Court and the High Court in C.M.W.P.No.
36406 of 1995 are set aside. However, there shall be no order as to costs.
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