Tilak Raj Sachdeva vs Po, Cgit Cum Labour Court & Ors.
2008 Latest Caselaw 1902 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ WRIT PETITION (CIVIL) 654 of 1999

                                         Reserved on   : August 20, 2008
                                    Date of Decision : October 24, 2008

 #      TILAK RAJ SACHDEVA                        ..... Petitioner
                             Through : Mr.D.R.Roy, Advocate.

                    versus

 $      PO, CGIT CUM LABOUR COURT & ORS.    ... Respondents
         ^                Through : Mr.B.S.Rajesh Agrajit, Advocate.


                                  With

+ WRIT PETITION (CIVIL) 655 of 1999

 #      BALMUKAND MEHRA                           ..... Petitioner
                             Through : Mr.D.R.Roy, Advocate.

                    versus

 $      PO, CGIT CUM LABOUR COURT & ORS.    ... Respondents
         ^                Through : Mr.B.S.Rajesh Agrajit, Advocate.


                                  With

+ WRIT PETITION (CIVIL) 656 of 1999

#       BINOY KUMAR                               ..... Petitioner
                             Through : Mr.D.R.Roy, Advocate.

                    versus

 $      PO, CGIT CUM LABOUR COURT & ORS.    ... Respondents
         ^                Through : Mr.B.S.Rajesh Agrajit, Advocate.

                                  With




WP(C) 654 of 1999                                                    Page 1 of 12
 + WRIT PETITION (CIVIL) 657 of 1999

#       CHARANJEET SINGH BEDI             ..... Petitioner
                          Through : Mr.D.R.Roy, Advocate.

                     versus

 $      PO, CGIT CUM LABOUR COURT & ORS.    ... Respondents
         ^                Through : Mr.B.S.Rajesh Agrajit, Advocate.



  % CORAM:
    HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


1.     Whether reporters of local papers may be allowed to see the
       judgment?                                                   YES
2.     To be referred to the Reporter or not?                      YES
3.     Whether the judgment should be reported in the Digest?      YES


                              JUDGMENT

SIDDHARTH MRIDUL, J :

1. These four petitions raise a common question of law which shall

stand disposed of by this common order.

2. The short question that arises for consideration requires the

narration of brief facts which are encapsulated as follows:-

i. The common question for decision in these matters is

the maintainability of the claim of petitioners in

proceedings under Section 33 C (2) of the Industrial

Disputes Act 1947 (ID Act).

ii. The petitioners in all the petitions alleged in their

statements of claim that, they were employed as

Electrical Signal Maintainers responsible for the

maintenance of Signal and Telecommunication

Department of Northern Railway. The petitioners

each alleged that the Railway Board had taken a

decision dated 9th November, 1971 in relation to

scales of pay of Electrical and Mechanical Signal

Maintainers of Railways to the effect that the

Electrical Signal Maintainers in-charge of

maintenance of sophisticated signal equipment,

namely, route relay interlinking and token-less block

instruments, not already in scale of Rs.175/240 (AS)

should now be allotted that scale, with effect from the

date of issue of the said letter dated

9th November, 1971.

iii. The petitioners claim that they were posted at

stations where such sophisticated signal equipment

was to be maintained and despite representations, the

respondents did not care to implement the said letter

dated 9th November, 1971 and did not pay to the

petitioners on account of the grant of scale equated to

Rs.130 - 240 (RPS) with effect from 1st January, 1986,

on implementation of the Fourth Pay Commission

Report.

iv. The petitioners contended that similarly placed

persons had filed applications under Section 33C (2)

of the ID Act which came to be dismissed by the

Central Government Labour Court No.2, Mumbai on

the ground that the claimant therein was outside the

scope of Section 33C (2) of the ID Act. According to

the petitioner the said judgment of the Central

Government Labour Court No.2, Bombay was

challenged by way of writ petition bearing No.389 of

1985 before the High Court of Bombay and the High

Court of Bombay was pleased to set aside the

dismissal of the application under Section 33 (C) of

the ID Act and remand the case back to the Central

Government Labour Court. The Bombay High Court

further held that said letter dated 9thNovember, 1971,

was applicable to the applicants therein, who were,

therefore, entitled to necessary/mandatory benefits

thereunder.

v. The present petitioners alleged that they were

similarly placed persons who were entitled to the

benefits of the said letter dated 9th November, 1971

and that, therefore, the amounts due thereunder

ought to be computed and paid along with interest

thereon to the petitioners.

vi. Therefore, the petitioners filed separate applications

seeking the aforementioned relief before the

Industrial Adjudicator.

vii. On behalf of the respondents (Management) it was

inter alia contended that the application under

Section 33C (2) of the ID Act filed on behalf of the

petitioners was not maintainable in view of the

judgment of the Supreme court in Municipal

Corporation of Delhi Vs. Ganesh Razak & Anr.

reported as 1994(4) SCALE 187.

viii. It was otherwise contended on behalf of the

Management that there was an unexplained delay of

about 23 years in filing the applications, inasmuch as,

the Railway Board's letter dated 9th November, 1971,

was being sought to be enforced only in the year

1994.

        ix.     On the merits it was submitted by the Management

                that    even    if   an    employee    was     working        at    a

sophisticated installation, the Management could not

straightaway and automatically promote that

employee on that very ground ignoring all the

Rules/Regulations/extant policy governing

seniority/promotions of such employees. The claim of

the petitioners was also stated to be without any

merit since the petitioners were not required to work

independently but under the supervision of Signal

Inspector working round the clock and that,

therefore, the letter dated 9th November, 1971, of the

Railway Board did not apply to the petitioners since

the petitioners were not in-charge of maintenance but

worked under the supervision of the Signal Inspector

who was actually in-charge of maintenance.

x. The Industrial adjudicator after deliberating all the

pleadings and materials filed on behalf of the parties

came to a conclusion that in terms of the judgment of

the Supreme Court in MCD Vs. Ganesh Razak,

(supra) the scope of proceedings under Section

33(C) 2 of the ID Act was limited like execution

proceedings and that, therefore, in these proceedings

the Court could not grant or change grade of the

officer who has been appointed in a pay scale at the

time of his appointment and further that any change

in the scale in these proceedings would amount to

changing the service conditions of the petitioners

which were beyond the scope of the proceedings.

3. Therefore, the Industrial Adjudicator came to the considered

opinion that the application filed by the petitioners was not

maintainable and that there could be no computation of the amounts

claimed by the petitioners in the proceedings before the Industrial

Adjudicator. The Industrial Adjudicator, however, granted the

petitioners liberty to go for a reference under Section 10(1) of the ID

Act. The petitioners assail the correctness of the impugned Awards

each dated 20th April, 1998, in the present petitions, respectively.

4. On behalf of the petitioners learned counsel Mr.D.R.Roy

submitted that the impugned Award suffered from the vice of non-

application of mind, inasmuch as, it failed to consider that the

petitioners were not seeking enhancement or change of grade but

only payment to be considered and made to the petitioners for

officiating and shouldering the responsibility of a higher grade whilst

still being in the lower grade. In other words, it was the contention

on behalf of the petitioners that they were entitled to the payment of

wages of the higher grade when they were performing the work of

that higher grade and that there was, therefore, no question of their

seeking enhancement of grade as erroneously held by the impugned

Awards.

5. Counsel for the petitioners further urged that the Bombay Zone

of the respondents had already implemented the letter dated

9th November, 1971, in relation to persons similarly situated and that,

therefore, the petitioners were also entitled to the benefit of the

judgment of the Bombay High Court in Writ Petition No.389/1985.

6. Per contra on behalf of the respondents learned Counsel,

Mr. B.S.Rajesh Agrajit, urged that the petitioners were not in-charge,

in terms of the letter dated 9th November, 1971, and were, therefore,

not entitled to any benefit therein. It was also urged on behalf of the

respondents that there was an unexplained delay of more than 20

years on the part of the petitioners in raising a claim in this behalf

and that the petitioners were not entitled to any relief on this ground

alone.

7. Finally, it was urged on behalf of the respondents that in view of

the judgment of the Supreme Court in MCD vs. Ganesh Razak

(supra), the Industrial Adjudicator rightly came to the conclusion that

the claim of the petitioners was not maintainable under the provisions

of Section 33C (2) of the ID Act.

8. In proceeding further to consider the respective submissions

made on behalf of the counsel for the parties, it is necessary to extract

the relevant provisions of Section 33C (2) of the ID Act as well as the

relevant portion of judgment of the Supreme Court in MCD vs.

Ganesh Razak (supra), which are as follows:-

The relevant Section reads as under:-

                    33C. Recovery      of   money   due   from    an
                    employer

.... (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 [within a period not exceeding three months].

The relevant extract of the decision of the Supreme Court

in MCD vs. Ganesh Razak (supra) reads as follows:-

...12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement for the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C(2) of the Act, The Labour Court has no jurisdiction to first decide the workmen'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 Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.

9. From a conjoint reading of the decision in MCD vs. Ganesh

Razak (supra) and the provision of Section 33C (2) of the ID Act the

following legal position emerges:-

That the power under Section 33C (2) of the ID Act is

like that of an Executing Court 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 the determination of the dispute of entitlement or the

basis of the claim, if there is no prior adjudication or

recognition of the same by the employer. In other words, if

the dispute relating to entitlement is not incidental to the

benefit claimed it is, therefore, clearly outside the scope of

a proceeding under Section 33C (2) of the Act. The

Industrial Adjudicator has no jurisdiction to first decide the

workmen's entitlement and then proceed to compute the

benefit so adjudicated on that basis in exercise of its power

under Section 33 C (2) of the ID 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 Industrial Adjudicator's power under

Section 33 C (2) of the ID Act, like that of the Executing

Court's power to interpret the decree for the purpose of its

execution.

10. In the present case, it is seen that the entitlement or claim of the

petitioners to receive from the Management any money or benefit on

the basis of the said letter dated 9th November, 1971 was disputed. It

is further seen that the claim of the workmen had not been earlier

settled by adjudication or recognition by the Management and that

without this settlement the stage for computation of that benefit had

not been reached. It is also observed that there was no Award under

Section 10 of the ID Act after adjudication. The workmen had

approached the Industrial Adjudicator with respect to change of

grades in which they were appointed, which claim was tantamount to

changing service conditions of the workmen which was determined to

be beyond the scope of the proceedings under Section 33C (2) of the

ID Act.

11. It is also noted, in the present case, that the Management had

disputed the claim of the workmen on the ground that during their

period of employment at the RRI Stations, the workmen were not

required to work independently, but were in fact working under the

supervision of Signal Inspectors, working round the clock. The

Management had categorically urged that from the letter dated

9th November, 1971 itself, which was issued prior to the appointment

of the workmen to the pay scale of Rs.330 - 480, and which scale was

admittedly higher than the scale allotted vide said letter dated

9th November, 1971, it was obvious that the workmen were not

entitled to the grade which they were now claiming.

12. Further, it was submitted on behalf of the Management that the

said letter dated 9th November, 1971 did not apply to the workmen,

inasmuch as, the said letter clearly mentioned that the Electrical

Signal Maintainers in-charge of maintenance should be of a higher

grade but that was not the case with regard to the workmen as they

were not in-charge of maintenance but worked under Signal Inspector

who was in-charge of maintenance.

13. Coming to the submission on behalf of the petitioners that the

workmen were entitled to the benefit of the judgment of the Bombay

High Court in Writ Petition 389/1985, it is seen that the conclusions

drawn therein were reached at a time before the decision of the

Supreme Court in the case of MCD vs.Ganesh Razak (supra) which

came to be decided only in 1994. The said decision, it is seen, limited

the scope of the proceedings and categorically held that in

proceedings under Section 33C (2) of the ID Act, the scale of the

workmen to which they were appointed could not be changed by the

Industrial Adjudicator.

14. For the foregoing reasons, I am in agreement with the

considered opinion as expressed in the impugned Awards by the

Industrial Adjudicator, that the applications under the provisions of

Section 33C (2) of the ID Act were not maintainable on the grounds

urged and there could be no computation of the amounts as claimed

by the petitioner in the subject proceedings. There is no gainsaying

the fact that the petitioners were at liberty to seek a reference under

Section 10 (1) of the ID Act, for the determination of their claims.

15. In the circumstances, I find no merit in the writ petitions, which

accordingly must fail and are hereby dismissed. But, there shall be no

orders as to costs.

SIDDHARTH MRIDUL [JUDGE] October 24, 2008 bp