Union Of India vs O.P. Singh And Others
1989 Latest Caselaw 413 Del

JUDGMENT

1. This petition under Article 226 of the Constitution of India by the Union of India is directed against the order dated 11th June, 1984, passed by the Presiding Officer, Central Government Labour Court, New Delhi, whereby the Labour Court allowed the application of the respondents under Section 33C(2) and awarded particular amounts to the alleged workmen.

2. The respondents are employees of the Union of India and are working with the Garrison Engineer North, Air Force, Palam, Delhi, under the Ministry of defense. The said Department owns a number of buildings for providing residential accommodation to the defense personnel. Some of the buildings are owned by the Government while the others are taken on lease by the Government. Whenever some of these building fall vacant on transfer or retirement of the officers, an employee is posted in that building. The respondents are in that category and have been posted in building to take care. They field a claim with the Labour Court that they were on duty for 24 hours a day and as such were entitled to overtime wages for the entire 24 hours minus the eight hours duty which can be taken under law from them.

3. The claim was resisted by the Union of India. It was pleaded that the Union of India or the Department concerned cannot be said to be an industry, the employees were not workmen and in any case the application under Section 33C(2) of the Industrial Disputes Act was not competent. The Labour Court without going into these questions, relying on a decision on an earlier application under Section 33C(2), decided all these questions against the petitioner Union of India. However, while deciding the quantum, the Labour Court same to the conclusion that the employees were admittedly sleeping for six to seven hours a day and as such they would not be entitled to overtime wages for those hours and for the remaining hours he allowed their claim.

4. In this petition various question have been raised including a statement which has been filed indicating the number of working days of the employees and the number of working hours of the employees. According to the statement, on the average, 50% of the days were given as off days to these employees. This is in addition to the usual leave availed of by the employees. This assertion in fact has not been categorically denied by the respondents. In any case this question has not been gone into by the Labour Court since this material was not available with the Labour court

5. In have mainly heard the arguments on the scope of Section 33C(2) of the Industrial Disputes Act. Learned counsel for the petitioner has placed reliance on various decisions of the Supreme Court and in my opinion it is not necessary to discuss all the decisions and it would be sufficient to refer to the two latest decisions. In Central Inland Water Transport Corporation Ltd. v. Their Workmen, (1974) 46 Fjr 1 (SC), it has been held that the proceedings under Section 33C(2) are in the nature of an execution proceeding and while further examining the said question, their Lordships have observed (at page 7) :

"It is now well-settled that a proceeding under Section 33C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or otherwise duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar, (1967) 33 Fjr 90 (SC), it was reiterated that proceedings under Section 33C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the position of an executing court. It was also reiterated that the right 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 an industrial workman and his employer.

In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determination under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33C(2), as in an execution proceedings, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last state in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33C(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 adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'incidental' to its main business of computation. In such cases determinations (i) and (ii) are not 'incidental" to the computation. The computation itself is consequential upon and subsidiary to determinations(i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal, (1968-I-LLJ 589), that a workman cannot put forward a claim in an application under Section 33C(2) in respect of a matter which can be appropriately the subject-matter of an industrial dispute which requires a reference under Section 10 of the Act."

6. The latest decision being in P. K. Singh v. Presiding Officer, (1988-II-LLJ-363), wherein it has been repeated that a workman cannot put forward a claim in an application filed under Section 33C(2) of the Act in respect of a relief which was not based on an existing right and which could be appropriately the subject-matter of an industrial dispute requiring a reference under Section 10 of the Act.

7. Applying the aforesaid decisions to the facts of the present case it has to be seen that there is no award, no settlement and no statute which supports the case of the respondents except some provision of the Minimum Wages Act; even that Act does not say that the employees of this category are entitled to the overtime wages. It has to be determined by a regular reference under Section 10(1) as to whether the Department can be said to be an industry, the employees in question can be said to be its workmen and as to whether they are entitled to the overtime wages; if so, how much and on what basis. It is only thereafter that that award, in favor of the respondents, can be implemented in an application under Section 33C(2) of the Act.

8. For the reasons recorded above, the rule is made absolute and the impugned order passed by the Labour Court is hereby quashed. It will be open to the respondents to raise the industrial dispute, if they so choose. No order as to costs.