HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 28 Case :- WRIT - C No. - 11653 of 2004 Petitioner :- State Of U.P. Thru. Superintending Engineer & Another Respondent :- Ram Sahai & Another Petitioner Counsel :- S.C. Respondent Counsel :- Mahipal Singh Hon'ble Sudhir Agarwal,J.
1. Heard learned Standing Counsel for the petitioners, Sri Mahipal Singh, Advocate for respondent no. 1 and perused the record.
2. The writ petition is directed against the order dated 18.09.1998 passed by Labour Court, U.P., Meerut in Misc. Case No. 138 of 1998.
3. It appears that respondent no. 1, Ram Sahai filed application under Section 33-C (2) of Industrial Disputes Act, 1947 (hereinafter referred to as the "Act") before the Labour Court claiming recovery of Rs. 2,40,676.76 from employer-petitioners on the ground that he was regularised by order dated 19.06.1995 w.e.f. 01.02.1985 and, therefore, was entitled for all the benefit of regularisation from the date of regularisation. The Labour court by ex parte order dated 18.09.1998 has passed impugned order.
4. Learned Standing Counsel contended that application was not maintainable under Section 33-C and in any case the Labour Court has not at all applied its mind, as to whether any amount was actually due to petitioner and if so under, what provision.
5. Sri Mahipal Singh, learned counsel appearing for respondent no. 1 on the contrary submitted that since respondent no. 1 was regularised w.e.f. 01.02.1985, i.e., the date of his appointment in work-charge establishment, he was entitled for payment of salary and other dues from the said date and, therefore, he claims difference of salary for the said date.
6. I have heard learned counsel for the parties and perused the record.
7. In the order of regularisation though respondent no. 1 has been regularised w.e.f. 01.02.1985 but the order nowhere shows that any other benefit in monetary terms shall also be paid to respondent no. 1 retrospectively other than what has actually been given to him. The regularisation is a kind of confirmant of status with respect to the nature of engagement affecting his right to hold the post, tenure on the post and other attending rights. In a case where such a status is conferred retrospectively unless the order issued by authorities concerned expressly provides something more than than, for actual grant of monetary benefits it has to be presumed to apply prospectively. In any case, if there is no dispute between parties that even monetary benefit has to be given retrospectively there would be no difficulty in invoking summery proceedings under Section 33-C of the Act by asking the Labour Court to compute monetary benefit and to direct the employer for payment. But where the right of workman to claim monetary benefits retrospectively is disputed by employer, then the intention of employer in confirmant of status retrospectively, what are the terms and conditions on which such confirmant was made etc., can be considered only in regular proceedings, i.e., by raising an industrial dispute and getting it adjudicated by adducing evidence before the Labour Court and not under Section 33-C of the Act.
8. The scope of Section 33-C has come up for consideration time and again before the Courts and some of principles enunciated therein may be reminded hereat for analysing whether the order impugned in the writ petition is valid or not.
9. Section 33 commences with the words "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" the first condition which has to be shown to exist in order to attract Section 33-C(2) is the entitlement of workman to receive any money or benefit capable of computation in terms of money. The factum of its entitlement has to be an admitted fact but where the very entitlement is in dispute, Section 33-C(2), in my view, would not be attracted for the reason that further question that workman was entitled to receive the said amount but was denied would not arise.
10. In Union of India Vs. Kankuben, AIR 2006 SC 1784 the Apex Court referring to earlier decisions observed that the benefit sought to be enforced under Section 33-C(2) is necessarily "a pre-existing benefit or one flowing from a pre existing-right". The difference between a pre-existing right and benefit on the one hand and right and benefit which is considered just and fair on the other hand is vital. The former comes within the ambit of Section 33-C(2) while latter does not.
11. In a case of termination having declared unlawful by the Labour Court the question arose whether back wages could have been claimed by filing an application under Section 33-C(2). The Apex Court said that the question as to the adjudication of a claim for back wages will have to be gone into and considered in judicious manner in the light of relevant circumstances and, therefore, the appropriate forum is by making a reference under Section 10 of the Act to get it adjudicated in regular manner and not in the summery proceedings. Considering pari materia provision in Section 6-H of U.P. Industrial Disputes Act, in Hamdard Laboratories Vs. Deputy Labour Commissioner, AIR 2008 SC 968, the Court said that Section 6-H(1) of the Act is in the nature of an execution proceedings. It can be invoked inter alia in the event any money is due to workman under an award but cannot be invoked in a case where ordinarily an industrial dispute can be raised and can be referred to any adjudication by the appropriate Government to an industrial Court. The authorities under Section 6-H cannot determine any complicated question of law and also cannot determined in regard to existence of legal right. The Court went to observe that it cannot usurp the jurisdiction of the State Government under Section 11-B of the Act. The Court said in paras 38 and 39 that the jurisdiction of Labour Court under Section 33-C(2) is limited and if existence of right itself is disputed the provisions may not be held to have any application.
12. In another decision in D. Krishnan and another Vs. Special Officer, Vellore Coop. S.M. and another, 2008(7) SCC 22 with reference to Section 33-C (2) the Court said that the proceedings therein are in the nature of execution and pre-supposses some adjudication leading to determination of a right which has to be enforced. By simply referring to certain documents a disputed claim cannot be allowed to be executed without any adjudication thereof. The Court referred to its earlier decision in State of U.P. and another Vs. Brijpal Singh, 2005(8) SCC 58 wherein it had held as under:
"It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A 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 (P) Ltd. vs. Suresh Chand held that a proceeding under Section 33-C(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."
13. Considering in the light of above principles laid down by the Apex Court this Court finds that the alleged entitlement of respondent no. 1 of salary in regular pay scale from a back date, i.e., 01.02.1985 was not admitted by the employer and also was never adjudicated by any competent forum. The employer claim that only a status of regular employee was conferred upon the workman retrospectively but monetary benefit were provided prospectively. There is no principle of law which provides that on confirmant of certain status retrospectively in a peculiar manner no other benefits not specifically stated by employer would be deemed to have given. Therefore, also I am clearly of the view that the kind of application filed by respondent no. 1 under Section 33-C(2) of the Act before Labour Court was not maintainable and wholly without jurisdiction. In the result, the impugned order cannot be sustained being without jurisdiction.
14. The writ petition is allowed. The impugned orders dated 18.09.1988, 09.12.1999 and 29.11.2002 are hereby quashed. However, this shall not preclude the respondent no. 1 from taking recourse to sch other remedy for enforcement of his rights, if any, in accordance with law.
15. No costs.
Order Date :- 25.5.2011 AK