M/S Etawah Dugdh Utpadak Sahkari ... vs Labour, Court, Kanpur Nagar, ...
2011 Latest Caselaw 4381 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 
Case :- WRIT - C No. - 9140 of 2006
 

 
Petitioner :- M/S Etawah Dugdh Utpadak Sahkari Sangh Ltd. Thru' Manager
 
Respondent :- Labour, Court, Kanpur Nagar, Kanpur And Another
 
Petitioner Counsel :- R.K. Porwal
 
Respondent Counsel :- C.S.C.,R.P. Tiwari
 

 
Hon'ble Sudhir Agarwal,J.

1. The writ petition has been restored to its original number vide order of date passed on restoration application. As requested by learned counsel for the parties, the writ petition is taken up for hearing and is being disposed of finally at this stage.

2. The writ petition is directed against the order dated 14th November, 2003 passed by Labour Court in purported exercise of power under Section 33-C (2) of Industrial Disputes Act, 1947 (hereinafter referred to as the " Act") directing the petitioner to pay a sum of Rs.22,836/- to the respondent No.2.

3. It is not in dispute that respondent No.2 was appointed as Office Assistant Grade II in 1977 in the pay scale of Rs.1400-2600. In order to provide stagnation scale, State Government issued Government Order from time to time for grant of an additional increment or higher scale after an employee has rendered service for a particular length of time i.e. 10, 14, 16 years etc. The P.C.D.A. also implementing the said decision issued order dated 17th March, 1974 providing that on completion of 10 years of satisfactory service, one additional increment shall be given and on completion of 16 years of service, the incumbent shall be placed on higher pay scale. The respondent No.2-workman, who completed 10 years of service in 1987 and 16 years of service in 1993 therefore was entitled for special increment in 1987 and higher pay scale with effect from 1993 but the same was not granted by the employer without any reason.

4. Labour Court having considered the matter and without finding any justification on the part of the petitioner for denial of the said benefit to respondent No.2 allowed the claim of workman-respondent No.2 and petitioner-employer was directed to pay the amount accordingly. Labour Court, however, has observed that workman shall be paid special increment w.e.f. January, 1988 on completion of 10 years of service and higher scale on completion of 16 years of service.

5. The employer contended before the Labour Court that character roll of the workman-respondent No.2 was not satisfactory and departmental enquiry was also conducted against him but after perusing the record, Labour Court recorded a finding of fact that no departmental enquiry was ever conducted against the workman and he was not issued any charge sheet. Having considered the relevant service rules as also the Government Order it found the claim of the workman-respondent No.2 correct and therefore directed for payment of Rs.22,836/- which included arrears of special increment to the extent of Rs.5,226/- and arrears of higher pay scale i.e. Rs.17,610/-.

6. Learned counsel for the petitioner submitted that since the employer had not taken any decision therefore application did not lie under Section 33-C (2) of the Act as it cannot be said that there is any existing right of the workman concerned which he has sought for computation by moving an application under Section 33-C(2) of the Act before the Labour Court. He placed reliance of a decision of Delhi High Court in Jeet Lal Sharma Vs. Presiding Officer, Labour Court, IVth & Anr., 2000(85) FLR 268.

7. The only question up for consideration is whether the order impugned is within the ambit of Section 33C(2) of 1947 Act or not.

8. The scope of Section 33-C of the Act 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 33C of the Act 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) of the Act 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) of the Act, 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) of the Act 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) of the Act 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) of the Act. 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 of the Act 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) of the Act 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) of the Act 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. From the above discussion it is evident that if right to money already exist in the course of and in relation to the relationship between the workman and his employer the factum that it has not been quantified would make no difference since it would be covered by Section 33C(2) of the Act. Here the pay scale of the employee was not in dispute. His higher scale which was applicable to him was also assigned and everything was there except that he was not granted the same by non action/inaction of the employer. The workman therefore rightly approached the Labour Court for quantification of the amount and recovery thereof. The decision of the Delhi High Court in Jeet Lal Sharma (supra) relied by the petitioner in fact supports the order impugned in this writ petition instead of helping the petitioner. In paras 13 and 16 of the judgment, the Delhi High Court has said:

"13. When the claim is based on adjudication or settlement it posses no difficulty. However there may be cases where the workman would be held entitled to receive the money as pre-existing right on the basis of the agreement between the employer and employee or as per established service conditions which have culminated into right in favor of the workman. Take for example, when a workman is not paid his wages for a particular period, he shall be entitled to file application u/s. 33-C(2) of the Act claiming wages for that period as he is entitled to receive the same at the rate agreed upon and at which the employer has been paying to him in the past. There is no adjudication or settlement but he is entitled to receive the wages of the period in dispute. This is as per the terms of the employment. Likewise, in a case where the workman is getting the wages in a graded pay scale, he has a right to receive increment every year. But if for a particular year increment is not released by the employer, workman shall be entitled to file application u/s. 33-C(2) claiming the said increment as he has pre-existing right and he is entitled to receive such increment which can be stopped only by way of punishment as a result of departmental enquiry or when the workman is not allowed to cross the Efficiency Bar. Same may be the position in respect of the payment of minimum bonus. Or, where the workman claims overtime wages and the employer does not deny the right to it but only denies the claim on the ground that workman had not worked overtime. In such cases the Labour Court will have the jurisdiction to decide the claim (Chandra Extrusion Products, Lucknow Vs. Kamal Kishore Tripathy reported in 1986 (52) FLR 483).

16. What is the meaning of the expression "entitlement to receive". No doubt it is referable to pre-existing right. However where the workman claims a benefit flowing from a pre-existing right and approaches the Labour Court u/s. 33-C(2) for computation of the right in term of money and the employer disputes the existences of the right, the Labour Court will have the jurisdiction to determine the question, whether the right exists and if the existence of right is established than to proceed to compute the benefit flowing there from in terms of money or on its decisions recovery proceedings can start (New Taj Mahal Cafe Private Limited versus Labour Court reported in 1970 (21) FLR 199 (SC), and East India Coal Company Limited (supra). In deciding the maintainability of the application u/s. 33-C(2) what is to be looked at is the claims set up in the application and not what the other side contends in its reply. The fact that the employer by his plea raises some dispute, does not mean that jurisdiction of Labour Court to deal with the question is taken away."

14. In this case the workman was seeking payment of money pursuant to his pre existing right based on the Government Order providing for time bound benefit of increment/higher scale and therefore what has been discussed above made it clear that the application in question filed by the workman before the Labour Court was well within its right and jurisdiction. No other point was raised.

15. In view of the above discussion, I do not find any reason warranting interference in the impugned order passed by the Labour Court. The writ petition lacks merit.

16. Dismissed.

Order Date :- 6.9.2011

KA