Union of India & Anr Vs. Kankuben
& Ors Etc. Etc  Insc 131 (20 March 2006)
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
in these appeals is to the common judgment rendered by a Division Bench of the
Gujarat High Court holding that the applications of the respondents before the Labour
Court (Central) Ahmedabad, in terms of Section 33-C (2) of the Industrial
Disputes Act, 1947 (in short 'the Act') were maintainable.
facts in a nutshell are as follows:
common judgment and order dated 4.5.2000 the Labour Court allowed the claims
made by the respondents- workmen in the recovery applications filed under
Section 33-C (2) of the Act in respect of certain claims of overtime allowance
which according to them was payable in view of what is called as 'on and off
duty' for taking out and bringing in locomotives from the shed as was required
to be done for the purpose of operating them at and from different stations.
Apart from questioning the legality of the claims preliminary objection to the
maintainability of the applications under Section 33-C (2) of the Act was
raised. The Labour
Court, however, did
not accept the same and held that the applications were maintainable, relying
on certain earlier adjudications by the Labour Court and the High Court. Writ petitions were filed under
Articles 226 and 227 of the Constitution of India, 1950 (in short 'the
Constitution') by the appellants questioning correctness of the Labour Court's award. Learned Single Judge held
that on the basis of materials on record the entitlements were rightly worked
out and, therefore, the recovery applications were maintainable. Letters Patent
Appeals were filed before the High Court which by the impugned judgment
dismissed them. It was held that instructions issued under Section 71-A to 71-H
of the Indian Railways Act, 1890 (in short 'the Railways Act') and the Railway
Servants (Hours of Employment) Rules, 1961 (in short 'the Employees Rules') did
not in any way help the case of the appellants and in any event the
applications under Section 33- C (2) of the Act were maintainable, as held by
the High Court earlier.
support of the appeals, learned counsel for the appellants submitted that the
true scope and ambit of Section 33-C (2) of the Act has not been kept in view.
Learned counsel for the respondents on the other hand submitted that in similar
cases reliefs have been granted and the challenge thereto had been repelled by
the High Court. The respondents were similarly situated and, therefore, the
appeals deserve to be dismissed. Reliance is placed on a decision of this Court
in Director General (Works), C.P.W.D. v. Ashok Kumar and Ors. 1999 (9) SCC 167)
in support of the stand.
case of State Bank of India vs. Ram Chandra Dubey & Ors.,
(2001) 1 SCC 73), this Court held as under:
". 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
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.
principles enunciated in the decisions referred by either side can be summed up
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.
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"
The position was recently reiterated by three-judge Bench of this Court in
State of U.P. and Another v. Brijpal Singh (2005 (8) SCC 58). (Also see A.P.
SRTC v. B.S. David Paul (2006 (2) SCC 282).
General (Works), C.P.W.D. (supra) is clearly distinguishable on facts, as in
that case the employer had accepted its liability and that is why this Court
did not interfere. The factual scenario is entirely different in the cases at
hand. Right from the beginning the appellants have been questioning the
maintainability of the petitions under Section 33-C (2) of the Act. In view of
the settled position in law as delineated above, the appeals deserve to be
allowed which we direct. In the peculiar circumstances of the case, if any
amount has been paid to any of the respondents in compliance of the order of
the Labour Court and/or the High Court the same
shall not be recovered. Costs made easy.