Delhi High Court
Ashok Kumar Rana vs Delhi Public School & Anr. on 21 July, 2008
Author: Ajit Prakash Shah
* HIGH COURT OF DELHI AT NEW DELHI
+ LPA No.107/2008
ASHOK KUMAR RANA ..... Appellant
Through Mr.Ajit Kumar with Ms.Nikita
Sharma, Advocates
versus
DELHI PUBLIC SCHOOL & ANR. ..... Respondents
Through Mr.Punit Mittal with Mr.Rahul
Malik, Advocates for R-1&2
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR
1. Whether reporters of the local papers be allowed to see
the judgment ?n
2. To be referred to the Reporter or not ?n
3. Whether the judgment should be reported in the Digest ?n
JUDGMENT
21.07.2008
1. The appellant is working as a Computer Assistant in the
respondent No.1 school. He made an application under Section
33(C)(2) of the Industrial Disputes Act, 1947 which came to be
dismissed by the learned Labour Court as not maintainable. The
writ petition filed by the appellant is also dismissed by the
learned single Judge concurring with the view taken by the
learned Labour Court that the claim of the appellant is not based
on any pre-existing right and the claim is disputed by the
employer.
2. The appellant has been employed as a Computer Assistant
with the first respondent since 1st July, 1984 on the initial salary
of Rs.1,180/- per month. In 1999 the management implemented
the Fifth Central Pay Commission with effect from 1st January,
1996 with some modifications and accordingly the pay of the
cadre of administrative staff was fixed in the basic pay of
Rs.5,000/-. Grievance of the appellant is that the respondent with
ulterior motive fixed his pay in the basic pay of Rs.4,200/- per
month instead of Rs.5,000/- and the arrears have been paid
according to the basic pay of Rs.4,200/-. The stand of the
management is that the appellant is in the category of
administrative staff and was given the right pay scale of
Rs.4,200/-. The respondent denied that on the basis of parity the
appellant is entitled to the basic pay of Rs.5,000/-
3. The scope and ambit of Section 33(C)(2) has been
considered by the Supreme Court in a series of judgments. In
Punjab National Bank v. K.L.Kharbanda 1962 (1) LLJ 234,
Central Bank of India v. P.S.Rajagopalan 1963 (2) LLJ 89,
Bombay Gas Company Limited v. Gopal Bhiva 1963(2) LLJ
608, East India Coal Company Limited v. Rameshwar 1968
(1) Lab I.C. 6. Some of these decisions have been again
reviewed by a three judge Bench of the Supreme Court in
Municipal Corporation of Delhi v. Ganesh Razak 1995 (1)
SCC 335 wherein the Court held thus:
"The ratio of these decisions clearly indicates that
were the very basis of the claim on the entitlement of
the workman to a certain benefit is disputed, there
being no earlier adjudication or recognition thereof
by the employer, the dispute relating to the
entitlement is not incidental to the benefit claim and
is, therefore, clearly outside the scope of a
proceeding under S.33c(2) of the Act. The Labour
Court has no jurisdiction to first decide the
workman's entitlement and then proceed to compute
the benefit so adjudicated on that basis in exercise of
its power under Section 33C(2) of the Act. It is only
when the 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 S.33C(2) like that of the
executing Court's power to interpret the decree for
the purpose of its execution....."
4. In the present case, the appellant has claimed re-fixation of
his basic pay. The very basis of the claim has been disputed by
the respondent as there is no earlier adjudication or recognition
of the claim. The Court has no jurisdiction first to decide the
workman's entitlement and then proceed to compute the benefit
so adjudicated in exercise of power under Section 33(C)(2). The
learned Labour Court is thus right in holding that the claim of the
appellant is not maintainable under Section 33(C)(2) of the Act.
Learned counsel appearing for the appellant has placed reliance
on the decision of A.K.Sikri, J in the case of Jeet Lal Sharma v.
Presiding Officer Labour Court-IV reported in 200 (53) DRJ
735 wherein the petitioner has claimed encashment of leave of
188 days on his retirement. It was one of the service conditions
that the workman on his retirement would be entitled to encash
the leave lying to his credit. The case of the management was
that the leave of 188 days was not due to the workman and there
was only four days leave to his credit. It was held that this being
one of the service conditions and this service condition being a
pre-existing right, it would entitle the workman to get his claim. If
the entitlement is based on service conditions one does not have
to take recourse to reference under Section 10 of the Industrial
Disputes Act for adjudication of the matter. That situation would
have become necessary only if there was a dispute about the
entitlement to get the leave encashed. The dispute was not
about the entitlement to get the leave encashed but about the
number of days to which the petitioner was entitled. Such a
question could have been decided by the Labour Court in a
proceeding under Section 33(C)(2). We fail to see how this
decision is applicable to the facts of the present case. In the
instant case the very claim of the workman that fixation of his
salary after the Fifth Central Pay Commission was erroneous is
disputed by the management. In the circumstance, it was not
permissible for the Labour Court to entertain a proceeding under
Section 33(C)(2) of the Act. The remedy lies in raising an
industrial dispute under Section 10 of the Act. We thus find no
infirmity in the impugned order of the learned single Judge. The
appeal has no merit and is dismissed.
CHIEF JUSTICE
S.MURALIDHAR
JULY 21, 2008 (JUDGE)
"v"
