Kumar and Ors Vs. Whirlpool of India Ltd. and Ors  Insc 1168 (22 November 2007)
Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.
Challenge in this appeal is to the judgment of the Division Bench of the Punjab and Haryana High Court dismissing
the Letters Patent Appeal filed by the appellants questioning the legality of
the judgment rendered by a learned Single Judge dismissing the writ petition.
controversy lies within a very narrow compass. The appellants were employees of
respondent No.1 (hereinafter referred to as the employer). A
voluntary retirement scheme was floated by the employer on 26.5.1995.
Undisputedly, appellants and 125 others opted to be covered by the scheme.
were paid the amounts required to be paid under the scheme. Subsequently, a
settlement was arrived at between the management and the workmen through the
registered Union on 13.10.1995. The settlement was
in terms of Section 12(3) of the Industrial Disputes Act, 1947 (in short the
persons including the present appellants raised a dispute on two issues; one
relating to the age of retirement and the other relating to monetary benefits.
According to them, the settlement arrived at on 13.10.1995 also covered their
cases and they were entitled to higher amounts. The claim was made by an
application under Section 33-C(2) of the Act. The Presiding Officer, Industrial
Tribunal-cum-Labour Court-I, Faridabad (hereinafter referred to as the
Tribunal) held that the claimants were entitled to the benefits
flowing from the settlement and that the claimants were entitled to be
continued in service by treating age of retirement to be 58 years. The employer
filed a writ petition before the High Court. Learned Single Judge held that the
view of the Tribunal is unsustainable. It was held that Section 33-C(2) of the
Act does not apply to the facts of the case and no benefit was available under
the settlement. The essential conclusions of the learned Single Judge are as
is the position herein? A settlement was arrived at. At best, the Labour Court could interpret the said settlement
and if there was anything more due, the benefit could be given to the workmen
but the Labour Court could not interpret or go into the
controversy of fraud, if any, because on basis of fraud in execution the decree
cannot be modified.
when there was a basic controversy about the age of retirement, it was not
pertaining to a pre-existing right. The award of the Labour Court in this regard, therefore, cannot
Eighteen persons i.e. the present appellants filed Letters Patent Appeal which
was dismissed as noted above.
support of the appeal, learned counsel for the appellants submitted that stress
in the settlement was on permanent workmen on the rolls of specified
divisions on 30.6.1995. According to the appellants all of them continued
to be on rolls beyond 30.6.1995 and, therefore, they are entitled to be
response, learned counsel for the respondent No.1- employer submitted that at
the point of time the settlement was arrived at, the appellants were not
existing workmen. In addition, the benefits are relatable to future production
targets and the instalments of financial benefits are given only on attainment
of specified production target. The stand of the appellants of continuance
beyond 30.6.1995 is also disputed on the ground that learned Single Judge has
referred to various documents to conclude that none of the appellants were in
fact on the rolls of the employer as on 30.6.1995. The illustrative case of one
Jeet Singh as noted by the High Court was referred to. It was also submitted
that in order to get over the factual position the basic case before the
Tribunal was alleged fraud purported to have been practiced by the employer.
The High Court has categorically found that there was no element of fraud.
Reference is made to para 7 of the application filed under Section 33-C(2) of
Learned counsel for the appellants submitted that the plea relating to age and
the alleged fraud are not pressed. The only plea is relatable to the claim
flowing from the settlement.
portions of the settlement which throw considerable light on the controversy
need to be noted:
Coverage All paras of this Settlement shall cover all permanent workmen, except
casuals, of Kelvinator of India Ltd., Faridabad and Ballabgarh on the rolls of
(its various specified divisions) as on 30.6.1995, (hereinafter called eligible
Financial Benefits The parties decided to grant the undernoted financial
benefits to the workmen:
in Basic Wage Period Amount 1.7.95 Rs.800/- 1.7.96 Rs.400/- 1.7.97 Rs.300/-.
amount of financial benefit shall be added to the concerned workmans basic
wage as on 30th June,
1995 and the total
thereof would be the revised basic wage of that workman. The second and third instalments
of the financial benefits shall be given only on attainment the specified
production target and the current 15 per cent special worker allowance shall be
added to the workmens basic wage from 1.10.1995.
bare reading of the above quoted portion clearly shows that the settlement
covered only cases of existing employees.
question of any erstwhile workman attaining specified production target does
this juncture, it would also be appropriate to take note of what has been
stated by this Court in some cases.
A.K. Bindal v. Union of India (2003 (5) SCC 163) it has been stated as under:
This shows that a considerable amount is to be paid to an employee ex gratia
besides the terminal benefits in case he opts for voluntary retirement under
the scheme and the option is accepted. The amount is paid not for doing any
work or rendering any service. It is paid in lieu of the employee himself
leaving the services of the company or the industrial establishment and
foregoing all his claims or rights in the same. It is a package deal of give
and take. That is why in the business world it is known as golden
handshake. The main purpose of paying this amount is to bring about a
complete cessation of the jural relationship between the employer and the
employee. After the amount is paid and the employee ceases to be under the
employment of the company or the undertaking, he leaves with all his rights and
there is no question of his again agitating for any kind of his past rights
with his erstwhile employer including making any claim with regard to
enhancement of pay scale for an earlier period. If the employee is still
permitted to raise a grievance regarding enhancement of pay scale from a
retrospective date, even after he has opted for Voluntary Retirement Scheme and
has accepted the amount paid to him, the whole purpose of introducing the
scheme would be totally frustrated. 11. In CEAT Ltd. V. Anand Abasaheb Hawaldar
and Ors. (2006 (3) SCC 56) it has been held as under:
According to learned counsel for the appellant, a complaint of unfair labour
practice can be made only by the existing employees. Under clause (5) of
Section 3 of the Act the expression employee only covers those who
are workmen under clause (s) of Section 2 of the Industrial Disputes Act, 1947
(in short the ID Act). The expression workman as defined in
clause (s) of Section 2 of the ID Act relates to those who are existing
employees. The only addition to existing employees, statutorily provided under
Section 2(s) refers to dismissed, discharged and retrenched employees and their
grievances can be looked into by the forums created under the Act. In the
instant case, the complainants had resigned from service by voluntary
retirement and, therefore, their cases are not covered by the expression
workman. On the factual scenario, it is submitted that after the 337
employees had accepted VRS-I, others had raised disputes and had gone to Court.
Order was passed for paying them the existing salary and other emoluments. This
went on nearly two years and, therefore, with a view to curtail litigation a
Memorandum of Understanding was arrived at in 1994. This basic difference in
the factual background was not noticed by either the Industrial Court or the High Court.
U.P. State Road Transport Corporation v. Birendra Bhandari (2006 (10) SCC 211)
it has been stated as under:
The benefit which can be enforced under Section 33-C(2) is a pre-existing
benefit or one flowing from a pre-existing right.
the case of State Bank of India v. 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
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.
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. 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
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."
at from any angle, this appeal is without merit, deserves dismissal which we
direct. Costs made easy.