Distt. Cooperative Bank Ltd ... vs The Labur Court, At Varanasi And ...
2012 Latest Caselaw 3816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 26
 

 
Case :- WRIT - C No. - 18865 of 1997
 

 
Petitioner :- Distt. Cooperative Bank Ltd Junpur
 
Respondent :- The Labur Court, At Varanasi And Anor
 
Petitioner Counsel :- Devendra Pratap Singh
 
Respondent Counsel :- C.S.C.,K P Agarwal,S.N. Dubey,Suman Sirohi,V.K. Singh
 

 
Hon'ble B. Amit Sthalekar,J.

By this petition, the petitioner is challenging the award dated 10.03.1997 passed by the Labour Court, Varanasi in Misc. Case No.85 of 1995 and 60 of 1996.

The claim of the respondent no.2 is that he was employed in the petitioner-District Cooperative Bank, Jaunpur on the post of Clerk in the year 1963-1964. He was placed under suspension by order dated 23.04.1967 and thereafter neither any charge sheet was given to him nor any inquiry was held but he was never reinstated in service. He also submitted an application claiming a sum of Rs.6,68,576/- as arrears of wages for the period from 23.04.1967 upto 30.06.1995. The respondent no.2 further submitted that several representations were made by him all of which went unheeded.

On behalf of the petitioner-Bank, it is submitted that the respondent no.2 studied L.L.B. course and thereafter he was registered with the U.P. Bar Council and his registration number is 26/1971 and with effect from January, 1971 the respondent no.2 has been practicing as a lawyer. The submission of the management is that if the petitioner had completed his legal studies and did his three years L.L.B. course and thereafter was also registered with the U.P. Bar Council and was a practicing Advocate from January, 1971, the question of his being a workman under the management upto 30.06.1995 does not arise, therefore, the very case set up by the respondent no.2 was false and fictitious.

I have heard Sri D.P. Singh, learned counsel for the petitioner, Ms. Sumati Rani Gupta, learned counsel for the respondent no.2 and learned Standing Counsel for the respondent no.1.

The contention of the learned counsel for the respondent no.2 throughout is that with effect from 23.04.1967 the respondent no.2 was placed under suspension and thereafter he has not worked under the petitioner-bank. On the other hand, the submission of the learned counsel for the petitioner is that the petitioner was never interested in working in the bank and instead during this period he completed his three years L.L.B. course and he was registered with the U.P. Bar Council and his registration number is 26/1971 and that he started practice with effect from January, 1971.

These facts are not disputed and also find mention in the award of the Labour Court and have not been dislodged by the respondent no.2 before the Labour Court. The question, therefore, is manifestly settled that if the respondent no.2 had done his L.L.B. course which ordinarily would have taken at least three years to complete and he starting practice in January, 1971 and was also registered with the U.P. Bar Council this only further buttresses the contention of the petitioner is that the respondent no.2 was never interested in service and he never worked with effect from 23.04.1971.

The question with regards to the dispensation of service of respondent no.2 with effect from 1967 has not been adjudicated by any court of competent jurisdiction and unless it is held by a court of competent jurisdiction that the dispensation of services of respondent no.2 with effect from 23.04.1967 was in fact bad in law, it cannot be presumed that the respondent no.2 was in the services of the management particularly in the light of the fact that the respondent no.2 during this period also completed his three years L.L.B. course and started legal practice in January, 1971, therefore, by no stretch of imagination it shows that the respondent no.2 continued working under the management with effect from 23.04.1967 to 30.06.1995.

Unless and until the services of the respondent no.2 are held to have been terminated or dispensed with validly by any court of competent jurisdiction, no claim for wages could be made under the provisions of Section 33-C (2) of the Industrial Disputes Act.

The proceedings under Section 33-C (2) of the Industrial Disputes Act have been held to be in the nature of execution proceedings, as such, the proceedings can only be resorted to if the rights of aggrieved parties are adjudicated by a court of competent jurisdiction through a decree, order or award.

The Supreme Court in the case of M/s Punjab Beverages Pvt. Ltd. Vs. Suresh Chand and another reported in (1978) 2 SCC in Para No.4 held as follows:-

"4. ?.............It is now well settled, as a result of several decisions of this Court, that a proceeding under section 33C(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 his 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. But 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. (Vide Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar)  It is not competent to the Labour Court exercising jurisdiction under section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under section 10 of the Act."

The Supreme Court in the case of Municipal Corporation of Delhi Vs. Genesh Razak &  and another reported in (1995) 1 SCJ 177 in Para No.12 held as follows:-

"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 of 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 33-C(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 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised 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 33- C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."

The Supreme Court in the case of State Bank of India Vs. Ram Chandra Dubey and others reported in (2001) 1 SCC 73 in Para No.8 held as follows:-

"The principles enunciated in the decisions referred by either side can be summed up as follows:

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 and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(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 33C(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 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."

The principle of law enunciated by the Supreme Court in the case of Genesh Razak (Supra) and in the case of Ram Chandra Dubey (Supra) have been reiterated in Para Nos.11 and 12 by the Supreme Court in the case reported in (2005) 8 SCC State of U.P. Vs. Brij Pal Singh.

There being no such determination by a court of competent jurisdiction with regard to termination or dispensation of services of the respondent no.2, the provisions of Section 33-C (2) of the Industrial Disputes Act were not applicable and therefore, the award dated 10.03.1997 suffers from the vice of excessive jurisdiction and is accordingly, set aside. The writ petition is allowed.

No order as to costs.

Order Date :- 29.8.2012/AKShukla/-