Rajinder Singh vs Union Of India (Uoi) And Anr.
2005 Latest Caselaw 55 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition involves the oft repeated questions of the remedy for enforcement to be adopted when an amount computable and available under an Award is sought to be recovered by the workman from the employer. It is not in dispute that an Award in favor of the petitioner was notified on 7th July, 2000. The following is the operative portion of the award:-

" 16. In view of the matter I find that the termination order dated 8.3.96 is neither just and proper and is liable to be set aside. It is also found that the workman is entitled for his reinstatement in the service with continuity of service and its all other benefits from the date of the termination. He is entitled to get full back wages equal to the wages paid to his counterpart regular employee from the date of his initial appointment. The term of reference is decided in the like manner and the Award is given accordingly. The order is passed as to cost."

Since the said award has become final not having been challenged by the respondent, the petitioner herein moved an application based on the plea that as per the award he was required to be paid an ascertained sum of money under Section 33C(1) of the Industrial Disputes Act, 1947(in short the `ID Act') based on the above operative portion extracted hereinabove of the said award.

2. The impugned order dated 4th December, 2000 is refreshingly brief and reads as follows:-

"GOVERNMENT OF INDIA

MINISTRY OF LABOUR

OFFICE OF THE REGIONAL LABOUR

COMMISSIONER (CENTRAL)

BLOCK-B-2E-3, CURZON ROAD BARRACKS,

K.G. MARG, NEW DELHI

No. ND/95/Misc/2000-B.H.

Dated: 4.12.00

To

Shri C.P. Agarwal,

President,

Delhi Labour Union,

Aggarwal Bhawan,

G.T. Road, Tis Hazari,

Delhi-54.

Sub: Application under Sub-Section (1) of Section 33C of the I.D. Act in respect of Rajinder Singh

Sir,

With reference to your application dated 29.8.2000, you are requested to get the amount computed under Section 33C(2) of the Act from the CGIT.

Yours faithfully

Sd/-

29.11.2000

Regional Labour Commissioner (C),

New Delhi."

3. Since a relief under 33-C(1) of the ID Act was denied and the petitioner was asked to adopt the route through the Labour Court under Section 33C(1), the present writ petition was filed for setting aside the above order dated 4th December, 2000. For ready reference Section 33C(1) & 33C(2) of the ID Act reads as follows:-

"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 of 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 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.]

Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]

A bare perusal of the two provisions straightway indicates that there is a clear difference in terminology in Section 33C(1) and Section 33C(2). Proceedings under Section 33 of the ID Act are based on the computation of money on the basis of a settlement or an award and it is not in dispute that in the present case, the petitioner's claim is founded on an award which has become final. In contrast Section 33C(2) only refers to money or benefits capable of being computed in terms of money which computation requires determination by Labour Court.

4. Thus it is very clear that while Section 33C(1) proceedings are based on an amount computable on the basis of an award, Section 33C(2) proceedings are based on a money or any benefit being capable of being computed in terms of money which does not arose from an award or settlement. Thus Section 33C(2) proceedings under the ID Act could be for enforcement of payment of wages or payment of minimum wages and the Labour Court under Section 33C(2) of the ID Act is required to compute the amount due under such entitlement. Section 33C(2) shows that it would be applicable when the incident of payment is not in doubt but the amount which is payable as per the benefit available to the workman is in dispute and under Section 33C(2) the Labour Court is then required to compute the amount due.

5. The issue involved in the present writ petition has also received the attention of the Hon'ble Supreme Court where in a judgment reported in Fabril Gasosa Versus Labour Commissioner & Others , the following position of law has been laid down:-

"19. Section 33C is in the nature of execution proceedings designed to recover the dues to the workmen. Vide Sections 33C(1) and (2), the legislature has provided a speedy remedy to the workmen to have the benefits of a settlement or award which are due to them and are capable of being computed in terms of money, be recovered through the proceedings under those sub-sections. The distinction between sub-section (1) and sub-section (2) of Section 33C lies mainly in the procedural aspect and not with any substantive rights of workmen as conferred by these two sub-sections. Sub-section (1) comes into play when on the application of a workman himself or any other person assigned by him in writing in this behalf or his assignee or heirs in case of his death, the appropriate Government is satisfied that the amounts so claimed are due and payable to that workman On that satisfaction being arrived at, the Government can initiate action under this sub-section for recovery of the amount provided the amount is a determined one and requires no "adjudication". The appropriate Government does not have the power to determine the amount due to any workman under sub-section (1) and that determination can only be done by the labour court under sub-section (2) or in a reference under Section 10(1) of the Act. Even after the determination is made by the labour court under sub-section (2) the amount so determined by the labour court, can be recovered through the summary and speedy procedure provided by sub-section (1). Sub-section (1) does not control or affect the ambit and operation of sub-section (2) which is wider in scope than sub-section (1). Besides the rights conferred under Section 33C(2) exist in addition to any other mode of recovery which the workman has under the law. An analysis of the scheme of Sections 33C(1) and 33C(2) shows that the difference between the two sub-sections is quite obvious. While the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or V-B, sub-section (2) deals with cases where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. Thus, where the amount due to the workmen, flowing from the obligations under a settlement, is predetermined and ascertained or can be arrived at by any arithmetical calculation or simpliciter verification and the only inquiry that is required to be made is whether it is due to the workmen or not, recourse to the summary proceedings under Section 33 of the Act is not only appropriate but also desirable to prevent harassment to the workmen. Sub-section (1) of Section 33C entitles the workmen to apply to the appropriate Government for issuance of a certificate of recovery for any money due to them under an award or a settlement or under the provisions of Chapter V-A and the Government, if satisfied, that a specific sum is due to the workmen, is obliged to issue a certificate for the recovery of the amount due. After the requisite certificate is issued by the Government to the Collector, the Collector is under a statutory duty to recovery the amounts due under the certificate issued to him. The procedure is aimed at providing a speedy, cheap and summary manner of recovery of the amount due, which the employer has wrongfully withheld. It, therefore, follows that where money due is on the basis of some amount predetermined like the VDA, the rate of which stands determined in terms of the settlement, an award or under Chapter V-A or V-B, and the period for which the arrears are claimed is also known, the case would be covered by sub-section (1) as only a calculation of the amount is required to be made."

(underlining supplied)

6. A similar position of law also arose before a learned Single Judge in Pratap Singh v. Union of India and Anr. reported as 2004 VI AD (DELHI) 381 where the learned Single Judge of this Court, Madan B. Lokur, J., has held as follows while construing Section 33C(1):-

"5. Admittedly, there was an Award in the present case in favor of the workman for payment of back wages to him. As such, there was some money due to the Petitioner. All that the appropriate Government had to do was to satisfy itself that some amount was due to the Petitioner. Thereafter, the appropriate Government was required to see whether the amount claimed is as per the Award and a certain whether the workman has claimed any amount other than back wages awarded by the learned Tribunal. This is purely an arithmetical exercise.

6. It is clear that Section 33C(2) of the Act does not apply in cases where there is an Award or a settlement unlike Section 33C(1) of the Act. Sub-section (2) would come into play if the workman claims an amount over and above what is determined by the appropriate Government under Section 33C(1) of the Act. In other words, applying this interpretation to the present case, the appropriate Government has first to exercise its powers under Section 33C(1) of the Act and if any dispute remains thereafter, the workman will have to resort to Section 33C(2) of the Act to recover any balance which, according to the workman, is due to him over and above what is determined under Section 33C(1) of the Act.

7. In the present case, the appropriate Government completely abdicated its function under Section 33C(1) of the Act and straightway directed the Petitioner to move an application under Section 33C(2) of the Act. No reason has been given for this arbitrary exercise of power."

7. I am fully bound by the law laid down by the Hon'ble Supreme Court and in respectful agreement with the view taken by the learned Single Judge of this Court in Pratap Singh's case (supra). Distinction between Section 33C(1) and 33C(2) wherein the proceedings are based on the computation of money on the basis of a settlement or an award or otherwise is also to be kept in mind. The impugned order dated 4th December, 2000 seem to have adopted the path of the easy way out by diverting the issue of enforcement of the award in terms of money by relegating the petitioner to the proceedings under Section 33C(2) of the ID Act by a Labour Court which on a bare perusal of Section 33C(1) & 33C(2) and the position of law laid down by the Hon'ble Supreme Court in Fabril Gasosa's case(supra) and the learned Single Judge in Pratap Singh's case (supra) is not applicable.

8. It is thus clear that wherever computation is merely arithmetical or based upon simplicitor verification and the period for which the amount claimed is known, based upon an award or settlement, proceedings would only lie under Section 33C(1) and not under Section 33C(2) of the ID Act. In this view of the matter the impugned Order dated 4th December, 2000 cannot be sustained and is accordingly set aside. The award has not been enforced since July, 2000.

9. The petitioner's counsel also submits that he has not been reinstated up to date. The calculations made by the petitioner were made in an application under Section 33C(1) up to 2000. The reply of the respondent No. 2 did not specifically deal with the calculations made by the petitioner in the said application. The respondent No. 2 is directed to file an affidavit within three weeks from today dealing with the calculations and averments made by the petitioner in his application under Section 33C(1) and the respondent No. 2's counsel will also obtain instructions as to whether the petitioner is reinstated as per the award. In case reinstatement has not been granted in respect of an award which has become final, then appropriate directions under Article 226 may be issued by this Court on the next date of hearing.

10. List the matter on 9th February, 2005.