Vishnu Kumar vs Presiding Officer
2012 Latest Caselaw 3844 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved/AFR
 

 
		Writ Petition No. 1567 of 1997 (S/S)
 

 
Vishnu Kumar 					.....Petitioner                                                                                               
 
                                             Vs.
 

 
Presiding Officer, 
 
Labour Court Faizabad and another               ...Opp. Parties                       
 

 
***
 
Hon'ble Shri Narayan Shukla,J.

Heard Mr Radhey Shyam Mishra , learned counsel for the petitioner and Mr P.K. Sinha, learned counsel for the respondents.

Petitioner has challenged the order dated 26.10.1996, passed by the Labour Court Faizabad in Case No. 22 of 1994 under Section 33 -C of the Industrial Disputes Act, 1947 with the prayer to compute his wages in terms of notification dated 31.1. 1991 whereby wage structures of the different kind of employees in the Vaccum Pan Sugar Factories have been revised.

The petitioner claims his status as a Seasonal Guard in the factory of opposite party no. 2. It is stated that he worked during the crushing season 1982-83 to 1992-93, but he was not paid the wages as was admissible to the Seasonal Guards of the factory. He claimed difference of salary amounting to Rs.41723. 25. The claim was referred for its adjudication under Section 33-C (2) of the Industrial Disputes Act, 1947 and was registered as Case No. 22/1994.

The respondents contested the matter and contended that the petitioner was purely a Daily Wages employee. He was never engaged as a Seasonal Guard in the mill, therefore, he was not entitled for the revised pay applicable to the seasonal guard. It was also stated that the recommendation of the Wage Board is not applicable to the daily wager employees. Their matter is covered under the payment of Minimum Wages Act. It is further stated that so far as payment of minimum wages is concerned, same has been paid to the petitioner. The respondent also raised objection against the maintainability of the case. After hearing both the

parties the Labour Court framed preliminary question as follows;

" Whether the instant case is legally maintainable under Section 33-C(2) of the Industrial Disputes Act?"

Petitioner's case before the Labour Court was that at the time of engagement he was paid Rs.200/- per month. Subsequently the same was increased to Rs.600/- per month. He also claimed that he worked as a Guard alike to seasonal permanent employee. He also admitted that till that time he was not declared as seasonal permanent employee. Moreover, he also produced two witnesses ,namely, Madhav Raj Awasthi and Shri Ram in his support, who also admitted that the petitioner was not declared by any court as seasonal permanent guard.

In defence the employer produced a document brought on record in the case of C.B. Case No. 23 of 1993 which reveals that before Concillation Officer the petitioner prayed to declare him as a Seasonal Guard and pay the wages in accordance with the recommendation of Third Wage Board.

The Labour Court adjudicated upon the matter and on the basis of averments of the employer as well as employee it held that the petitioner was not a seasonal permanent employee. Therefore, he is not entitled for the payment under the pay structure fixed by the said notification on the recommendation of the wage board. That being so the petitioner has no right to claim the determination of wages under Section 33-C of the Industrial Disputes Act. Before this Court also, the learned counsel for the petitioner Mr Radhey Shyam Mishra took the same stand as was taken earlier.In support of his submission he also cited following decisions;

(i)Ajaib Singh Vs. Sirhind Co-operative marketing -cum-Processing Service Society 1999 (82) FLR 137,

(ii)(ii)Awadhesh Singh Vs. The Kisan Sahkri Chini Mills U.P. Ltd. and others( Allahabad High Court) C.M. W.P.No.6878 of 1992,

(iii)(iii)Purshottam and others Vs. Managing Director U.P. State Sugar Corporation Ltd. 2009(123) FLR 773,

(iv) The Central Bank of India Vs. P.S. Rajgopalan AIR 1964 Supreme Court 743,

(v)National Council for Cement and Building Materials Vs. State of Haryana and others 1996(2) Supreme Court 562

(vi)Dwarikesh Sugar Industries Ltd. Vs. Presiding officer, Labour Court Rampur 2010 (125) FLR523,

(vii)D.P. Maheshwari Vs. Delhi Administration and others 1983 Supreme Court Cases (L&S) 527 (1983) 4 SCC 293.

In the cases of D.P. Maheshwari and Dwarikesh Sugar Industries ( supra) should make an effort to adjudicate upon the issue finally instead of taking preliminary issue . In the case of Ajaib Singh ( supra) Hon'ble Supreme Court held that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay.

In the case of the Central Bank of India Ltd.(supra), Hon'ble the Supreme Court has held that policy of the Legislature in enacting Section 33 C is to provide a speedy remedy to the individual workman to enforce or execute their existing rights. It was further held that the claim under Section 33-C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may in some cases have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2). The Court further held that Section 33 C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers.

In the case of Purshottam and others ( supra) this Court considered the definition of " seasonal workmen" as defined in para B 1(II) of the Standing Order, 1972 applicable in the sugar factories. The definition of ''Seasonal Workman' is quoted hereunder:-

"(II) '' A Seasonal Workman' is one who is engaged only for the crushing

season provided that if he is a retainer, he shall be liable to be called on duty at any time in the off-season and if he refuses to join or does not join, he shall lose his lien as well as his retaining allowance. However, if he submits a satisfactory explanation of his not joining duty, he shall only lose his retaining allowance for the period of his absence."

In light of the aforesaid provisions this Court observed that there is no category like " casual" employees rather there is classification of workmen under para B of the said order ,namely, permanent, seasonal, temporary, probationers, apprentices and substitutes and considering the fact that it is not a case of the respondent that the petitioners were not engaged in a season, this court declared the petitioners as seasonal workmen and further held that the word" casual" mentioned in the impugned order means seasonal employees.

In the case of Awadhesh Singh( supra) this Court further dealt with the standing order 1988 and held that it is not possible to accept the respondent's case that the petitioner was engaged to meet any casual requirement of the mill. The word" casual" in the context of employment normally means irregular or a happening by chance. Having allowed the petitioner to work as sheet writer/ weighment clerk successively during the major part of three crushing seasons, the respondents cannot be permitted in absence of any material to say that the appointment of the petitioner was made to meet any casual requirement occurring by chance. The petitioner has to be treated as a seasonal workman entitled to the reliefs claimed in the writ petition .

In order to discuss the scope of Section 33 C(2) of the Industrial Disputes Act (in short ''the Act'), Mr P.K. Sinha, learned counsel for the respondents drew the attention of his Court towards the provisions of Section 33-C (2) of the Act which is reproduced hereunder;

"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 questions 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 Government( within a period not exceeding three months).

He further drew the attention of this Court towards the Full Bench decision in the case of the Bombay Gas Co. Ltd. Vs. Gopal Bhiva and others reported in AIR 1964 Supreme Court 752. Hon'ble Suprme Court discussed the scope and effect of the provisions of Section 33-C (2) of the Act and the extent of the jurisdiction conferred on the Labour Court by it in light of the decision given in the case of Central Bank of India (supra).

On the point of limitation Hon'ble the Supreme Court held that the words" Section 33-C(2) are plain and unambiguous and it will be duty of the Labour Court to give effect to the said provisions without any consideration of limitation. On the question of right of the employee for entitlement of claim the Hon'ble Suprme Court expressed the opinion as under;

"It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33 C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provisions. In such a case, it would, no doubt be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf, But these considerations would be irrelevant when claims are made under S.33 C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellant's contention that since the present claim was belated, it should not be awarded."

In the case of Municipal Corporation of Delhi Vs. Ganesh Razak and another, reported in (1995) 1 Supreme Court Cases 235 Hon'ble the Supreme Court discussed the nature of proceeding under Section 33-C(2) of the Act and after considering its constitution Bench decision given in the case of Central Bank of India (supra) Hon'ble Supreme Court held that the power of the Labour Court under Section 33 -C(2) extends to interpretation of the award or settlement on which the workman's right rests, like the Executing Court's power 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 determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. The Hon'ble Supreme Court further referred to another decision of Bombay Gas Co. Ltd Vs. Gopal Bhiv ( supra) and held that the proceedings contemplated by Section 33-C(2) are analogous to execution proceedings and the Labour Court, like the Executing Court in the execution proceedings governed by by the Code of Civil Procedure , would be competent to interpret the award on which the claim is based. It is obvious that the power of the Executing Court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in the form of the decree. It also refers the decision of Chief Mining Engineer, East India Coal Co. Ltd. Vs Rameshwar AIR 1968 SC 218 in the following manner;

"It was held that the right to the benefit which is sought to be computed under Section 33-C(2) must be " an existing one, that is to say, already adjudicated upon or provided for". The propositions on the question as to the scope of Section 33 C (2) deducible from the earlier decisions of this Court were summarized and they including the following namely (SCR pp.142-144).

(1)The legislative history indicates that the legislature, after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognized the need of individual workmen of a speedy remedy to enforce their existing individual rights and therefore inserted Section 33-A in 1950 and Section 33-C in 1956. These two sections illustrate cases in which individual workman can enforce their rights without having to take recourse to section 10 (1) and without having to depend on their union to espouse their case.

(3) Section 33-C which is in terms similar to those in Section 20 of the Industrial Disputes( Appellate Tribunal) Act, 1950 is a provision in the nature of an executing provision.

(5) Section 33-C (2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employees. It is open to the labour Court to interpret the award or settlement on which the workman's right rests.

(7) Though the court did not indicate which cases other than those under sub-section (1) would fall under sub-section (2), it pointed out illustrative cases which would not fall under sub-section (2) viz, cases which would appropriately be adjudicated under Section 10(1) or claims which have already been the subject matter of settlement to which Sections 18 and 19 would apply.

(8)Since proceedings under Section 33-C(2) are analogous to execution proceedings and the labour court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an Executing Court, the Labour Court like the Executing Court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33-C (2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction."

Ultimately Hon'ble the Supreme Court held that when a claim is made before the Labour Court under Section 33-C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions - say of an Industrial Tribunal which alone is entitled to make adjudication in the nature of determinations (1) plaintiff's right to relief(ii) corresponding liability of the defendant including whether the defendant is, at all, liable or not or proceed to compute the benefit by dubbing the former as '' Incidental' to its main business or computation. Hon'b;e Supreme Court further held that Labour court has no jurisdiction to first decide to workmen's entitlement and then to 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 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 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.

The respondent has also filed a supplementary counter affidavit stating therein that the petitioner filed C.B. Case before the Concillation Officer, Faizabad through Shramik Kalyan Union, Chini Mill Nawabganj, Gonda for declaring him as a seasonal chaukidar in 1993 which was registered as C.B. Case No. 23 of 1993. The Concillation Officer on 2.9.1994 issued directions to keep the petitioner in engagement in the forthcoming crushing season and ensure the payment of wages. The respondent challenged the said order before this Court through writ petition being W.P.no. 5616(S/S) of 1994. This Court by means of order dated 5th April, 2012 quashed the directions issued by the Concillation Officer and directed the Concillation officer to proceed further with concillation proceedings which is pending consideration.

In light of the aforesaid fact, learned counsel for the respondent submitted that thus petitioner's claim to declare his status as a Seasonal Chaukidar is yet to be adjudicated upon. Therefore, at this stage , until and unless his status is finally determined, he cannot claim any benefit arising out of the status as claimed under the proceedings initiated under Section 33-C(2) of the Industrial Disputes Act.

In the light of the observations made above without disputing the definition of seasonal workman as given under the Standing Order, I find that the petitioner's status of Seasonal Chaukidar is yet to be determined by the Labour Court. Therefore, I am of the view that until and unless same is determined finally, the petitioner has no right to claim any benefit arising out of the said status under Section 33 C(2) of the Industrial Disputes Act. Therefore, I do not find error in the award dated 26.10.1996, passed by the Presiding Officer, Labour Court, Faizabad.

Accordingly the writ petition stands dismissed.

Order Dated:30.8.2012

Tripathi