* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) 654 of 1999
Reserved on : August 20, 2008
Date of Decision : October 24, 2008
# TILAK RAJ SACHDEVA ..... Petitioner
Through : Mr.D.R.Roy, Advocate.
versus
$ PO, CGIT CUM LABOUR COURT & ORS. ... Respondents
^ Through : Mr.B.S.Rajesh Agrajit, Advocate.
With
+ WRIT PETITION (CIVIL) 655 of 1999
# BALMUKAND MEHRA ..... Petitioner
Through : Mr.D.R.Roy, Advocate.
versus
$ PO, CGIT CUM LABOUR COURT & ORS. ... Respondents
^ Through : Mr.B.S.Rajesh Agrajit, Advocate.
With
+ WRIT PETITION (CIVIL) 656 of 1999
# BINOY KUMAR ..... Petitioner
Through : Mr.D.R.Roy, Advocate.
versus
$ PO, CGIT CUM LABOUR COURT & ORS. ... Respondents
^ Through : Mr.B.S.Rajesh Agrajit, Advocate.
With
WP(C) 654 of 1999 Page 1 of 12
+ WRIT PETITION (CIVIL) 657 of 1999
# CHARANJEET SINGH BEDI ..... Petitioner
Through : Mr.D.R.Roy, Advocate.
versus
$ PO, CGIT CUM LABOUR COURT & ORS. ... Respondents
^ Through : Mr.B.S.Rajesh Agrajit, Advocate.
% CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be allowed to see the
judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in the Digest? YES
JUDGMENT
SIDDHARTH MRIDUL, J :
1. These four petitions raise a common question of law which shall stand disposed of by this common order.
2. The short question that arises for consideration requires the narration of brief facts which are encapsulated as follows:-
i. The common question for decision in these matters is the maintainability of the claim of petitioners in proceedings under Section 33 C (2) of the Industrial Disputes Act 1947 (ID Act).
ii. The petitioners in all the petitions alleged in their statements of claim that, they were employed as WP(C) 654 of 1999 Page 2 of 12 Electrical Signal Maintainers responsible for the maintenance of Signal and Telecommunication Department of Northern Railway. The petitioners each alleged that the Railway Board had taken a decision dated 9th November, 1971 in relation to scales of pay of Electrical and Mechanical Signal Maintainers of Railways to the effect that the Electrical Signal Maintainers in-charge of maintenance of sophisticated signal equipment, namely, route relay interlinking and token-less block instruments, not already in scale of Rs.175/240 (AS) should now be allotted that scale, with effect from the date of issue of the said letter dated 9th November, 1971.
iii. The petitioners claim that they were posted at stations where such sophisticated signal equipment was to be maintained and despite representations, the respondents did not care to implement the said letter dated 9th November, 1971 and did not pay to the petitioners on account of the grant of scale equated to Rs.130 - 240 (RPS) with effect from 1st January, 1986, on implementation of the Fourth Pay Commission Report.
WP(C) 654 of 1999 Page 3 of 12 iv. The petitioners contended that similarly placed persons had filed applications under Section 33C (2) of the ID Act which came to be dismissed by the Central Government Labour Court No.2, Mumbai on the ground that the claimant therein was outside the scope of Section 33C (2) of the ID Act. According to the petitioner the said judgment of the Central Government Labour Court No.2, Bombay was challenged by way of writ petition bearing No.389 of 1985 before the High Court of Bombay and the High Court of Bombay was pleased to set aside the dismissal of the application under Section 33 (C) of the ID Act and remand the case back to the Central Government Labour Court. The Bombay High Court further held that said letter dated 9thNovember, 1971, was applicable to the applicants therein, who were, therefore, entitled to necessary/mandatory benefits thereunder.
v. The present petitioners alleged that they were similarly placed persons who were entitled to the benefits of the said letter dated 9th November, 1971 and that, therefore, the amounts due thereunder ought to be computed and paid along with interest thereon to the petitioners.
WP(C) 654 of 1999 Page 4 of 12 vi. Therefore, the petitioners filed separate applications seeking the aforementioned relief before the Industrial Adjudicator.
vii. On behalf of the respondents (Management) it was inter alia contended that the application under Section 33C (2) of the ID Act filed on behalf of the petitioners was not maintainable in view of the judgment of the Supreme court in Municipal Corporation of Delhi Vs. Ganesh Razak & Anr. reported as 1994(4) SCALE 187.
viii. It was otherwise contended on behalf of the Management that there was an unexplained delay of about 23 years in filing the applications, inasmuch as, the Railway Board's letter dated 9th November, 1971, was being sought to be enforced only in the year 1994.
ix. On the merits it was submitted by the Management
that even if an employee was working at a
sophisticated installation, the Management could not straightaway and automatically promote that employee on that very ground ignoring all the Rules/Regulations/extant policy governing seniority/promotions of such employees. The claim of the petitioners was also stated to be without any WP(C) 654 of 1999 Page 5 of 12 merit since the petitioners were not required to work independently but under the supervision of Signal Inspector working round the clock and that, therefore, the letter dated 9th November, 1971, of the Railway Board did not apply to the petitioners since the petitioners were not in-charge of maintenance but worked under the supervision of the Signal Inspector who was actually in-charge of maintenance. x. The Industrial adjudicator after deliberating all the pleadings and materials filed on behalf of the parties came to a conclusion that in terms of the judgment of the Supreme Court in MCD Vs. Ganesh Razak, (supra) the scope of proceedings under Section 33(C) 2 of the ID Act was limited like execution proceedings and that, therefore, in these proceedings the Court could not grant or change grade of the officer who has been appointed in a pay scale at the time of his appointment and further that any change in the scale in these proceedings would amount to changing the service conditions of the petitioners which were beyond the scope of the proceedings.
3. Therefore, the Industrial Adjudicator came to the considered opinion that the application filed by the petitioners was not maintainable and that there could be no computation of the amounts WP(C) 654 of 1999 Page 6 of 12 claimed by the petitioners in the proceedings before the Industrial Adjudicator. The Industrial Adjudicator, however, granted the petitioners liberty to go for a reference under Section 10(1) of the ID Act. The petitioners assail the correctness of the impugned Awards each dated 20th April, 1998, in the present petitions, respectively.
4. On behalf of the petitioners learned counsel Mr.D.R.Roy submitted that the impugned Award suffered from the vice of non- application of mind, inasmuch as, it failed to consider that the petitioners were not seeking enhancement or change of grade but only payment to be considered and made to the petitioners for officiating and shouldering the responsibility of a higher grade whilst still being in the lower grade. In other words, it was the contention on behalf of the petitioners that they were entitled to the payment of wages of the higher grade when they were performing the work of that higher grade and that there was, therefore, no question of their seeking enhancement of grade as erroneously held by the impugned Awards.
5. Counsel for the petitioners further urged that the Bombay Zone of the respondents had already implemented the letter dated 9th November, 1971, in relation to persons similarly situated and that, therefore, the petitioners were also entitled to the benefit of the judgment of the Bombay High Court in Writ Petition No.389/1985.
6. Per contra on behalf of the respondents learned Counsel, Mr. B.S.Rajesh Agrajit, urged that the petitioners were not in-charge, WP(C) 654 of 1999 Page 7 of 12 in terms of the letter dated 9th November, 1971, and were, therefore, not entitled to any benefit therein. It was also urged on behalf of the respondents that there was an unexplained delay of more than 20 years on the part of the petitioners in raising a claim in this behalf and that the petitioners were not entitled to any relief on this ground alone.
7. Finally, it was urged on behalf of the respondents that in view of the judgment of the Supreme Court in MCD vs. Ganesh Razak (supra), the Industrial Adjudicator rightly came to the conclusion that the claim of the petitioners was not maintainable under the provisions of Section 33C (2) of the ID Act.
8. In proceeding further to consider the respective submissions made on behalf of the counsel for the parties, it is necessary to extract the relevant provisions of Section 33C (2) of the ID Act as well as the relevant portion of judgment of the Supreme Court in MCD vs. Ganesh Razak (supra), which are as follows:-
The relevant Section reads as under:-
33C. Recovery of money due from an
employer
.... (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 WP(C) 654 of 1999 Page 8 of 12 Government [within a period not exceeding three months].
The relevant extract of the decision of the Supreme Court in MCD vs. Ganesh Razak (supra) reads as follows:-
...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 for 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 33C(2) of the Act, The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.
9. From a conjoint reading of the decision in MCD vs. Ganesh Razak (supra) and the provision of Section 33C (2) of the ID Act the following legal position emerges:-
That the power under Section 33C (2) of the ID Act is like that of an Executing Court to interpret the decree for the purpose of execution, where the basis of the claim is referable to the Award or settlement, but it does not extend to the determination of the dispute of entitlement or the WP(C) 654 of 1999 Page 9 of 12 basis of the claim, if there is no prior adjudication or recognition of the same by the employer. In other words, if the dispute relating to entitlement is not incidental to the benefit claimed it is, therefore, clearly outside the scope of a proceeding under Section 33C (2) of the Act. The Industrial Adjudicator has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33 C (2) of the ID Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation, that the interpretation is treated as incidental to the Industrial Adjudicator's power under Section 33 C (2) of the ID Act, like that of the Executing Court's power to interpret the decree for the purpose of its execution.
10. In the present case, it is seen that the entitlement or claim of the petitioners to receive from the Management any money or benefit on the basis of the said letter dated 9th November, 1971 was disputed. It is further seen that the claim of the workmen had not been earlier settled by adjudication or recognition by the Management and that without this settlement the stage for computation of that benefit had not been reached. It is also observed that there was no Award under WP(C) 654 of 1999 Page 10 of 12 Section 10 of the ID Act after adjudication. The workmen had approached the Industrial Adjudicator with respect to change of grades in which they were appointed, which claim was tantamount to changing service conditions of the workmen which was determined to be beyond the scope of the proceedings under Section 33C (2) of the ID Act.
11. It is also noted, in the present case, that the Management had disputed the claim of the workmen on the ground that during their period of employment at the RRI Stations, the workmen were not required to work independently, but were in fact working under the supervision of Signal Inspectors, working round the clock. The Management had categorically urged that from the letter dated 9th November, 1971 itself, which was issued prior to the appointment of the workmen to the pay scale of Rs.330 - 480, and which scale was admittedly higher than the scale allotted vide said letter dated 9th November, 1971, it was obvious that the workmen were not entitled to the grade which they were now claiming.
12. Further, it was submitted on behalf of the Management that the said letter dated 9th November, 1971 did not apply to the workmen, inasmuch as, the said letter clearly mentioned that the Electrical Signal Maintainers in-charge of maintenance should be of a higher grade but that was not the case with regard to the workmen as they were not in-charge of maintenance but worked under Signal Inspector who was in-charge of maintenance.
WP(C) 654 of 1999 Page 11 of 12
13. Coming to the submission on behalf of the petitioners that the workmen were entitled to the benefit of the judgment of the Bombay High Court in Writ Petition 389/1985, it is seen that the conclusions drawn therein were reached at a time before the decision of the Supreme Court in the case of MCD vs.Ganesh Razak (supra) which came to be decided only in 1994. The said decision, it is seen, limited the scope of the proceedings and categorically held that in proceedings under Section 33C (2) of the ID Act, the scale of the workmen to which they were appointed could not be changed by the Industrial Adjudicator.
14. For the foregoing reasons, I am in agreement with the considered opinion as expressed in the impugned Awards by the Industrial Adjudicator, that the applications under the provisions of Section 33C (2) of the ID Act were not maintainable on the grounds urged and there could be no computation of the amounts as claimed by the petitioner in the subject proceedings. There is no gainsaying the fact that the petitioners were at liberty to seek a reference under Section 10 (1) of the ID Act, for the determination of their claims.
15. In the circumstances, I find no merit in the writ petitions, which accordingly must fail and are hereby dismissed. But, there shall be no orders as to costs.
SIDDHARTH MRIDUL [JUDGE] October 24, 2008 bp WP(C) 654 of 1999 Page 12 of 12