Kanpur Electricity Supply ... vs Shankar Lal Gaur & Others
2013 Latest Caselaw 6075 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 24
 

 
Case :- WRIT - C No. - 23412 of 2003
 
Petitioner :- Kanpur Electricity Supply Company Ltd.
 
Respondent :- Shankar Lal Gaur & Others
 
Counsel for Petitioner :- Arvind Kumar
 
Counsel for Respondent :- C.S.C.,R.B. Chaudhary,S.N. Dubey
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. This petition has been preferred under Article 226 of the Constitution to seek issuance of writ of certiorari for quashing of the order dated 13.02.2003 passed by the Presiding Officer, Labour Court (I), U.P., Kanpur.

2. The essential facts are, the petitioner, Kanpur Electricity Supply Company Limited is a Company incorporated under the Companies Act, 1956. It is a successor to Kanpur Electricity Supply Administration, which was a Unit of U.P. State Electricity Board. The U.P. State Electricity Board ceased to exist after the U.P. State Electricity Reforms Transfer Scheme was notified on 15.01.2000.

3. The State Electricity Board was constituted under Section 5 of the Electricity (Supply) Act, 1948. The Board exercising its power under Section 79-C had framed the Regulations which govern the employees of the Board. The Regulation thus framed are applicable to the petitioner's employees also. The respondent Nos. 1 to 4 are working as draftsmen in its establishment. The present dispute arose when the respondent Nos. 1 to 4 moved an application purported to be under Section 33C (2) of the Industrial Disputes Act, 1947 (in short, the 'Act'). In the said application they averred that they are working as draftsmen in Drawing office of the petitioner. Initially they were appointed as Tracer and and they earned their promotion on the post of Draftsman. They claimed that they used their private scooter-motorcycle for the purposes of their employer. They are entitled for the scooter-motorcycle allowance. It was stated in their application that two draftsmen were sanctioned the scooter-motorcycle allowance in compliance of award of the Labour Court in their case. Thus the respondents made a claim for payment of Rs. 1,89,600/- from 05.08.1988 to 30.09.2001, the date of filing of the said application. The petitioner filed its written statement and denied the fact that the respondent workmen were using their scooters-motorcycles in connection of the petitioner' work. It was stated that the petitioner has its own vehicles and whenever any employee makes inspection they are provided the official vehicle. It was also stated that the respondents were never allowed by the petitioner to use their private vehicles. The petitioner in the written statement also raised the issue about the maintainability of the application under Section 33C (2) of the Act. A copy of the written statement of the petitioner is annexure no. 2 to the writ petition. On 17.04.2002 the petitioner moved an application also to produce the order of the award in Case No. 8 of 1987, on which the respondent workmen were placing reliance.

4. The Labour Court vide its impugned order dated 13.02.2003 had directed the petitioner Company to pay Rs. 1,89,600/- to the respondent workmen as scooter / motor cycle allowance for the period 05.08.1988 to 30.09.2001.

5. The respondent nos. 1 to 4 filed their counter affidavit. The stand taken in the counter affidavit, is that the respondents are entitled for the scooter-motorcycle allowance on the ground that one employee P.R. Bhagat is getting the scooter allowance and the respondents are performing the similar duties and as such they are entitled for the scooter-motorcycle allowance. In the counter affidavit the respondents have referred only P.R. Bhagat's name, who is, allegedly, receiving the scooter-motorcycle allowance. In the rejoinder affidavit the petitioner has reiterated its stand that the respondent workmen are not using their scooter or motorcycle for official purpose and whenever they go for official work, the conveyance is always provided to them. The petitioner has also denied the fact that the respondent workmen are similarly placed with Sri P.R. Bhagat. It is further stated that on the ground of the parity the respondent workmen are not entitled for the said allowance as in the case of P.R. Bhagat there was adjudication under Section 4K of the Act, 1947 and in compliance of the award in the case case of P.R. Bhagat he was granted scooter allowance, but respondent workmen are not allowed to use their private scooter or motorcycle, therefore, without adjudication of this fact they are not entitled for the scooter-motorcycle allowance.

6. I have heard Sri Arvind Kumar, learned Counsel for the petitioner and Sri S.N. Dubey, learned Counsel for the respondent workmen.

7. Learned Counsel for the petitioner Sri Arvind Kumar submits that the application moved by the respondent workmen under Section 33C (2) of the Act was not maintainable as under the said Section only for existing right application can be entertained. In the present case there was no adjudication of the right of the respondent workmen and as such they are not entitled for the allowance, they claimed. He has placed reliance on judgment of the Supreme Court in the case of Municipal Corporation of Delhi v. Ganesh Razak (1995) 1 SCC 235.

8. Learned Counsel for the respondent workmen Sri S.N. Dubey submits that the respondent workmen are entitled for the allowance on the ground of parity as one of the workman Sri P.R. Bhagat is being paid scooter allowance.

9. I have considered the submissions of learned Counsel for the respective parties and perused the record.

10. I find it useful to extract Section 33C (1) and 33C (2) of the Industrial Disputes Act, 1947, which read as under;

"33C. Recovery of money due from an employer.-(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter VA or Chapter VB] the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

(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 Government."

11. The scope of Section 33C (1) and 33C (2) of the Act have been examined by the Supreme Court in a long line of decisions.

12. The scope of Section 33C was considered by the Supreme Court in the case of Punjab National Bank v. K.L. Kharbanda, AIR 1963 SC 487. The Court found that there was no difficulty in interpreting Section 33C (1) as it was clear that if a money is due under the settlement or award or under the provisions of (Chapter VA or Chapter VB) the workman can move an application for the recovery of the amount mentioned in the award or settlement but the difficulty arose in interpreting Section 33C (2), wherein the word "any benefit which is capable of being computed in terms of money" fell for consideration of the Court. A submission was raised before the Supreme Court by the employer that only a monetary benefit "which is capable of being computed in terms of money" can be computed. Thus it excludes the non-monetary benefits. The Court found that the a sense of the word "convert" itself indicates that it can be non-monetary benefit also as the word "computed" has been used. It is enough to extract the relevant part of the judgment of the Supreme Court;

"Therefore, where the benefit to which a workman may be entitled has not already been calculated, for example, in an award which confers on him the benefit, it stands to reason that sub-section 2 would apply for computation of such benefit if there is dispute about it. Further, if we compare sub-section (1) with sub-section (2) of this section, it will appear that sub-section (1) applies to cases where any money is due to a workman from a employer under a settlement or an award or under the provisions of Chapter V-A and that contemplates that the amount is already computed or calculated or at any rate there can be no dispute about the computation or calculation while sub-section (2) applies to cases where though the monetary benefit has been conferred on a workman under an award, it has not been calculated or compute in the award itself, and there is dispute as to its calculation or computation. It cannot therefore be said looking to the words used in sub-section (2) that it only applies to cases of non-monetary benefit which has to be converted in terms of money. It appears to us that it can also apply to monetary benefits to which a workman may be entitled which have not been calculated or computed say, for example, in an award and about their calculation or computation there is dispute between the workman and the employer. It may be added that Section 33-C was put in the Act for the purposes of execution in 1956 after the Industrial Disputes (Appellate Tribunal) Act, (48 of 1950) was repealed in that year. The Appellate Tribunal Act contained Section 20 which provided for execution of awards and was in terms almost similar to Section 33-C. When the Appellate Tribunal Act was repealed in 1956 a provision similar to that contained in Section 20 was brought into the Act at the same time. It is clear therefore that Section 33-C is a provision in the nature of execution and where the amount to be executed is worked out (for example in an award) or where it may be worked out without any dispute, Section 33-C(1) will apply. But where the amount due to a workman is not stated in the award itself and there is a dispute as to its calculation, sub-section (2) will apply and the workman would be entitled to apply thereunder to have the amount computed provided he is entitled to a benefit, whether monetary or non-monetary, which is capable of being computed in terms of money."

13. In the case of Punjab National Bank (supra) a clerk of the Bank moved an application to the Central Labour Court, Delhi under Section 33C (2) of the Industrial Disputes Act, 1947 that he was entitled to certain benefits capable of being computed in terms of money under the Shastri Award. He was agreed by the Bank's action in fixing his basic salary. His prayer was that he was entitled for fixation of his basic salary correctly. It should be computed in terms of money and if his basic salary was rightly fixed under the Shastri Award he would be entitled to a sum of Rs. 6428.28 NP as arrear upto the date of his application. The Bank opposed the application of the employee on the ground that his application was not maintainable under Section 33C (2) of the Act, and the Labour Court had no jurisdiction to decide it. The Supreme Court examined in detail the Shastri Award, which was published in the year 1953 and it was binding on all the Banks. In view of the said fact the Supreme Court found that the employee was extended for fixation of his basic salary in terms of the Shastri Award.

14. The Constitution Bench in the case of The Central Bank of India v. P.S. Rajagopalan etc., AIR 1964 SC 743, considered the scope of both the Sections. The Court has also examined the legislative history of the said Sections. An amendment in the Industrial Disputes (Amendment and Miscellaneous Provisions Act), 1956 (36 of 1956), the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950 was repealed and Section 25-1 in Chapter V-A and Section 33C (1), (2) and (3) and Section 36-A of the Act were inserted. The said Act came into force on 28.08.1956. By insertion of Section 33C (1) the intendment of the legislature was clear that it wanted that individual workman was also be given a right to enforce his existing individual right without taking recourse to Section 10(1) of the Act. This also help the individual workmen to ventilate their grievance independently and they were no more dependent on their Unions to espouse their cause. These provisions were for speedy execution in nature.

15. By the amendment Labour Courts were given power to execute or implement the existing individual right of the workman without any adjudication. Section 33C (1) of the Act deals with those cases where any money is due under the award or settlement of Chapter VA, thus the scope of Section 33C (1) of the Act is confined to only those cases where adjudication was already made or under the provisions of Chapter VA, which provides lay-off and retrenchment compensation. However, Section 33C (2) of the Act has much scope as the word 'any money or any benefit' is used. The Court has given some examples where the application under Section 33C (2) of the Act can be maintainable.

16. The Court held that three categories of the claim mentioned in Section 33C (1) fall under Section 33C(2) of the Act also, thus it is like execution proceeding but in addition to those claim some of the claims which are not based on the settlement, awards may also be entertained under Section 33C (2) of the Act of the existing rights, however Court held that in following cases, claim cannot be made under Section 33C (2) of the Act.

(a) if an employee is dismissed or demoted and if it is challenged by the employee as illegal it would not be open to him to claim for the recovery of his salary or wages under Section 33C (2) of the Act as it can be adjudicated only in a reference if a settlement exists and continues to be operated.

(b) No claim can be made under Section 33C(2) of the Act. In such cases the disputes can be adjudicated under the procedure prescribed by the Act.

17. The Supreme Court in the case of U.P. SRTC v. Virendra Bhandari, (2006) 10 SCC 211 held that the benefit which can be enforced under Section 33C(2) of the Act is a pre-existing benefit. The Court quoted its judgment in the case of State Bank of India v. Ram Chandra Dubey1 with approval. Para-8 of the judgment reads as under;

"8. 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 33 -C(2) of the Act. 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 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 33-C(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. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages."

18. The scope of Section 33C(2) of the Act came to be considered again by the Supreme Court in D. Krishnan and another v. Special Officer, Vellore Cooperative Sugar Mill and another2. A workman was put in charge of the employees canteen in 1991 and the another workman was given the charge in February 1996. They moved an application under Section 33C (2) of the Act for their overtime wages for the period they had discharged their duties as canteen incharge. Their application under Section 33C(2) of the Act was allowed by the Labour Court. Feeling aggrieved by the order of Labour Court, Management filed a writ petition before the Madras High Court, which came to be dismissed and award of the Labour Court was affirmed. The appeal of the management was allowed by the Division Bench. It was held that the management had taken specific stand that the workman had never been authorized by anybody to work overtime and for this additional reason the claim was rejected. The Court also found that proceeding under Section 33C (2) of the Act could only be affected in the case of pre-existing right and such claim of the respondent workman was disputed, their application was not maintainable under the provisions of Section 33C (2) of the Act. The workman challenged the decision of the writ appeal in the Special Leave Petition. Before the Supreme Court it was also urged that one worker namely Jayavelu was identically placed and the benefit of overtime wages was granted by the Labour Court in his case, therefore, the respondent workman was also entitled to the same relief. The Supreme Court has rejected the said plea on the ground that there was a lack of particulars with respect to the workman with whom parity was claimed. It is enough to extract the relevant paragraph of the Supreme Court, which reads as under;

"18. Mr. Gonsalves has finally submitted that in the light of the judgment of this Court in Damodar Valley Corpn. v. Workmen and State of Karnataka & Ors. v. C.Lalitha, an order made by a Court was required to be made applicable to all those similarly circumstanced and as Jayavelu, who was identically placed, had been granted the benefit of overtime wages by the Labour Court, the appellants too were entitled to the same relief. This submission is however not acceptable on account of the lack of particulars with respect to Jayavelu's matter. It is, thus, not possible to evaluate the matter as being identical on facts. We, thus, find no merit in the appeal. It is accordingly dismissed, with no order as to costs."

19. In the present case also the petitioner had denied the fact that respondent workmen were allowed to use their scooter motorcycle. No detail fact has been pleaded and established by the respondent workmen that their case was identical with P.R. Bhagat, therefore, the claim of that parity with P.R. Bhagat is not acceptable. The Labour Court has erred in relying the award in the case of P.R. Bhagat. The facts of present case are squarely covered by the judgment of Supreme Court in D.Krishnana's case (supra). In the said case parity was denied for lack of particulars. In the case in hand also no detailed particulars regarding nature of duties of P.R. Bhagat, are given. Moreover employer has denied the basic fact that they had ever allowed or asked respondents to use them private vehicles for petitioner's work. No such material was filed before the Labour Court or even before this Court. Therefore, there is no material to reject the submission of the petitioner.

20. In view of the aforesaid facts, for the aforestated reasons the order dated 13.02.2003 (annexure-6 to the writ petition) passed by the Presiding Officer, Labour Court (1), U.P., Kanpur is unsustainable and is liable to be set aside. It is accordingly set aside. It will be open to the respondent workmen to establish their right independently in accordance with law.

21. Thus, writ petition is allowed.

22. No order as to costs.

Order Date :- 26.9.2013

DS

Case :- WRIT - C No. - 23412 of 2003

Petitioner :- Kanpur Electricity Supply Company Ltd.

Respondent :- Shankar Lal Gaur & Others

Counsel for Petitioner :- Arvind Kumar

Counsel for Respondent :- C.S.C.,R.B. Chaudhary,S.N. Dubey

Hon'ble Pradeep Kumar Singh Baghel,J.

Writ petition is allowed.

For order, see my order of the date passed on the separate sheets (nine pages).

Order Date :- 26.9.2013

DS