Workmen Of Mcd vs M.C.D.
2009 Latest Caselaw 2834 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WPC No. 2505/2007


                                  Judgment reserved on: 12, May, 2009
                                Judgment delivered on: 27.07.2009

%

Workmen of MCD                           ...... Petitioner


                                Through: Mr. Varun Prasad, Advocate

                       versus

MCD                                      ..... Respondent
                                Through: Mr. Amit Paul, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may           Yes
         be allowed to see the judgment?

2.       To be referred to Reporter or not?                  Yes

3.       Whether the judgment should be reported             Yes
         in the Digest?

KAILASH GAMBHIR, J.

*

1. This common order shall dispose of all the 18 matters bearing

WPC Nos. 2505/2007, 2506/2007, 2507/2007, 2508/2007, 2509/2007,

2517/2007, 2518/2007, 2536/2007, 2609/2007, 4968/2007,

4969/2007, 4970/2007, 4971/2007, 4972/2007, 4973/2007,

4974/2007, 4975/2007, 5008/2007.

2. The brief conspectus of the facts as set out in these petitions are

as under:

That the petitioners/workmen are working in the category of

Group 'C' & 'D' like Choudhury, Mali, Chowkidar, Sweeper, Machine

man, Hedgman, Pump Operator, Blacksmith, Bhisti, Bullackman,Asstt.

Pump Driver, Painter, Beldar, Driver, fitter, tech. supervisor etc. As per

the petitioners they are entitled to the cost including stitching charges

and quantum of liveries as per orders issued by the Deptt. of Personnel

and Training, Government of India and adopted by the management of

MCD from time to time to compensate the workers for liveries and

stitching charges used for the work of MCD. The allowances are

granted to the employees in addition to their pay for the purpose of

meeting some specific requirement connected with the service

rendered. The petitioners/workmen being low paid employees of MCD

were granted the benefits of supply of liveries and also washing

allowance to wash those liveries provided by the management of MCD.

Petitioners/workmen have purchased the liveries themselves as the

management did not supply these liveries and only paid the washing

allowance to wash those liveries procured by the petitioners workmen

themselves. The petitioners filed separate applications before the

Labour Court to claim the benefit of liveries (Uniform and stitching

charges). MCD in their written statement had taken a preliminary

objection to contend that No. 1 that 33C(2) application was not

maintainable. The learned Labour Court vide order dated 6.3.2007

disposed of these petitions by observing that the same are not

maintainable under Section 33-C(2) of I.D. Act, 1947. Aggrieved with

the said order the petitioner preferred these petitions under Articles

226 & 227 of the Constitution of India, seeking issue of an appropriate

writ, order or direction to quash award dated 06/3/2007 and direct the

Ld. Labour Court to decide all issues together after adjudicating the

main dispute on its merits.

3. The short question arising in this batch of writ petitions filed by

the different category of employees working with the MCD in the C & D

groups is as to whether the applications filed by the petitioners under

Section 33-C (2) of the Industrial Disputes Act could be rejected after

framing a preliminary issue on the maintainability, without deciding

the entire claim on its merits.

4. Mr. Varun Prasad counsel for the petitioners strongly contended

that the pre-existing rights of the petitioners flows from their own

policy of the MCD announced from time to time through various

circulars to provide liveries, stitching expenses and washing allowance

etc. The contention of the counsel for the petitioner was that such a

policy of the respondent MCD forms part of the service conditions of

the petitioners and therefore, the same creates a pre-existing right in

the petitioners to claim various amounts spent by these employees

towards the purchase of liveries and towards the cost of stitching.

Counsel for the petitioners further contended that the tribunal fell in

grave error by framing a preliminary issue with regard to the

maintainability of the claims filed by all these petitioners without

following the proper procedure to decide the claim of the petitioners on

its own merits after proper adjudication. Counsel thus submitted that

piecemeal adjudication of the reference without going into the merits

of the claim is a noval method adopted by the Court. The counsel

urged that the tribunal erred in not appreciating that the grant of

uniform and stitching charges are part of service conditions of the

workmen and Labour Court has jurisdiction to compute such benefits in

terms of money under S. 33-C (2) ID Act. The counsel also averred that

the Ld. Labour Court erred in interpreting the decision of this court in

Jeet Lal Sharma vs. P.O. in favour of the management. The counsel

maintained that in view of the law laid down in Jeet Lal Sharma's

case (supra) the right as claimed for by the petitioners in the instant

petitions is an existing right provided for and recognized by the

employer and therefore, the Labour Court has jurisdiction to grant

relief under S. 33-C (2) of the ID Act. Counsel further argued that

according to Pay Commission's recommendations, rate of stitching

charges are fixed by Deptt. Of Personnel, Govt. of India and the same

have been adopted by the MCD being the existing right, therefore, the

labour court has jurisdiction to determine the benefits in terms of

money which could be computed in the proceedings under S. 33-C (2)

of the ID Act for the rates of liveries/uniform and stitching charges etc,

contended counsel for the petitioners. The counsel also urged that the

decisions in MCD vs. Ganesh Razak & Ors. and Tara & Ors. Vs.

Director, Social Welfare and Ors. are not applicable to these cases

since therein, the rights claimed by the parties were in itself disputed

but herein, the petitioners have a pre-existing right. The counsel has

relied on following judgments in support of his contentions:

(a) D.P. Maheshwari vs. Delhi Administration- (1983) 4

SCC 293;

(b) Jeet Lal Sharma vs. P.O.L.C.- 2000 (I) LJ 1472;

(c) AIIMS vs. AIIMS Employees Union in WPC No.

3950/2006 dated 25/8/2006 of this Court;

(d) Punjab National Bank Ltd. vs. K.L. Kharbanda - 1962

(2) CR 977 (SC);

(e) Central Bank of India Ltd. vs. P.S. Rajagopalan etc. -

(1964) 3 SCR 140 (SC);

(f) M/s. Kasturi & Sons Pvt. Ltd. vs. Sh. N.

Salivateeswaran & Anr. - 1959 SCR 1 (SC)

(g) M/s. Fabril Gasosa vs. Labour Commissioner & Ors. -

1997 LAB. I.C. 912 (SC); and

(h) Kays Construction Co. Pvt. Ltd. vs. State of Uttar

Pradesh & Ors. - 1965 SCR 276 (SC).

5. Per contra counsel for the respondent submitted that the

workmen are entitled to get the benefits of liveries/uniforms and

washing allowance to wash only those liveries which are supplied by

the management of the MCD and the benefit of washing allowance for

the liveries already supplied by the management alone can create a

pre-existing right. The counsel maintained that the amount claimed by

the workmen are not on account of aforesaid pre-existing rights but on

account of the fact that liveries were not supplied by the MCD for some

period of time, forcing them to purchase the same and got them

stitched on their own account from the open market. The counsel

urged that even as per their own case, the amount claimed by the

workmen is not against the pre-existing right as mentioned in paras 3

& 6 of the order assailed by the petitioners. The counsel averred that

the Labour Court under S. 33-C (2), ID Act cannot first decide the right

to entitlement and then compute the amount due under the said

entitlement. The counsel maintained that had the case of the

petitioner been that they were given uniforms but were not provided

stitching charges for a certain period then the claim could have been

maintainable under S. 33-C (2) ID Act, but an assumption and inference

of a new right derived from a pre-existing right is correct or not can

only be tested in proceedings under S. 10 of the ID Act and not under

S. 33-C (2) ID Act. The counsel also contended that many disputed

questions of facts arise in the present case viz-a-viz whether the MCD

failed to provide uniforms to the workers in the first place ; whether

failure to provide uniforms, would give right to the workers to

purchase the same from the open market without intimating or seeking

permission from the Department; whether purchase from the open

market would entitle them to a right to receive money on account of

stitching charges; whether monetary claim made after 6-7 years of the

alleged purchase is genuine or not. Counsel urged that these disputed

questions of facts can be decided only in proceedings under S. 10 ID

Act and not under S. 33-C (2) ID Act. The counsel urged that the

proceedings under Section 33-C (2) are, primarily, in the nature of

execution proceeding wherein the Labour Court can direct payment of that

money which is legally due to a workman from his employer, or if the

workman is entitled to any benefit which is capable of being computed in

terms of money. The counsel submitted that proceedings under S. 33-C (2)

cannot be used first to establish and demonstrate the existence of a right

and then seek computation of the amount due thereunder. The counsel

contended that the petitioner's interpretation of Jeet Lal Sharma's case,

in his favour is totally misconceived. The counsel also relied on decision

dated 27/2/2008 of this court in review petition filed in CWP No.

2187/2007 in support of his submissions. The counsel also submitted that

while exercising power under Art. 226 of the constitution of India, this court

exercises supervisory jurisdiction and not appellate jurisdiction and in the

absence of any jurisdictional error this court may not interfere with the

orders passed by the Labour Court. The counsel also submitted that the

decisions relied upon by the counsel for the petitioners have been wrongly

interpreted by him in his favour. The counsel placed reliance on the following

decisions in support of his arguments:

(a) UOI vs. Kankuben- 2006 SCC (L&S) 1700;

(b) MCD vs. Ganesh Razak & Anr. - (1995) 1 SCC 235; and

(c) Director General (Works), C.P.W.D. vs. Ashok Kumar &

Ors. - 2000 I LLJ 582.

6. I have heard learned counsel for the parties at considerable

length.

7. It is no more res integra that the proceedings contemplated by

Section 33C(2) are analogous to execution proceedings and the Labour

Court, like the Executing Court in the execution proceedings governed

by the CPC, would be competent to interpret the award on which the

claim is based. It is obvious that the power of the Executing Court is

only to implement the adjudication already made by a decree and not

to adjudicate a disputed claim which requires adjudication for its

enforcement in the form of decree. The Executing Court, after the

decree has been passed, is however competent to interpret the decree

for the limited purpose of its implementation.

8. It is well settled that where the very basis of the claim or 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 entitlement cannot be treated as incidental to

the benefit claimed and therefore the same would be clearly outside

the purview of Section 33-C (2) of the Act. The Labour Court in exercise

of its powers under Section 33-C (2) of the Act, does not have the

jurisdiction to decide the entitlement of the workman first and then

proceed to compute the benefits so adjudicated on that basis.

Reference in this context may be made to the judgment of the

Supreme Court in the case of State of U.P. and Anr. v. Brijpal

Singh reported as 2005 VIII AD (SC) 250 and of this Court in the

case of Jeet Lal Sharma v. Presiding Officer, Labour Court IVth

and Anr. reported as 2005 (85) FLR 268.

9. It is well-known that, wherever the legislature intended to confer

power to any specified authority with the powers to conduct an

enquiry, specific provision can be found in the statute made in that

behalf. If the legislature had intended that the enquiry authorized

under S. 33-C should include within its compass the examination of the

merits of the employee's claim against his employer and a decision on

it, undoubtedly, the legislature would have enacted an appropriate

provision conferring on the Labour Court the relevant powers for

holding such an enquiry.

10. The decision in N. Salivateeswaran's case (Supra) is of no

assistance to the petitioners, rather it goes against the petitioners as in

the said case, the Hon'ble Apex Court while drawing similarity

between S. 17 of the Working Journalists (Conditions of Service) and

Miscellaneous Provisions Act, 1955 and Section 33-C (2) held that a

summary enquiry as contemplated under Section 33-C is of a very

limited nature and its scope is confined to the investigation of the

narrow point as to what amount is actually due to be paid to the

employee under the decree, award, or other valid order obtained by

the employee after establishing his claim in that behalf.

11. Also, the decisions in K.L. Kharbanda's case (Supra) and Kays

Construction Co. Pvt. Ltd. case (Supra) pertains to the issue of

interpreting the expression 'benefit' as mentioned in Section 33-C (2)

of the Act, which are of no assistance to the petitioner's in the facts of

the present case.

12. The issue with regard to the scope of Section 33-C (2) of the Act

has been crystallized by the Supreme Court in the case of Ganesh

Razak (supra). While addressing the question as to whether without

prior adjudication or recognition of the disputed claims of the workmen

therein, the proceedings for computation of the arrears of wages

claimed by them on the basis of equal pay for equal work were

maintainable under Section 33C(2) of the Act, the Supreme Court

referred to decisions rendered earlier on the said issue, including those

in the case of Central Bank of India v. P.S. Rajagopalan reported as AIR

1964 SC 743, Bombay Gas Co. Ltd. v. Gopal Bhiva reported as

MANU/SC/0160/1963, Chief Mining Engineer, East India Coal Co. Ltd. v.

Rameswar reported as AIR 1968 SC 218 and Central Inland Water

Transport Corporation Ltd. v. Workmen reported as (1974) 4 SCC 696

and held as under:-

"Para 8. Reference may be made first to the Constitution Bench decision in The Central Bank of India Ltd. v. P.S. Rajagopalan etc. MANU/SC/0149/1963 on which Shri Rao placed heavy reliance. That was a case in which the question of maintainability of proceedings under Section 33C(2) of the Act was considered in a claim made by the workmen on the basis of the Sastry Award. The employer disputed the claim of the workmen on several grounds including the applicability of Section 33C(2) of the Act. It was urged that since the applications involved a question for interpretation of the Sastry Award, they were outside the purview of Section 33C(2) because interpretation of awards or settlements has been expressly provided for by Section 36A. This objection was rejected. This Court pointed out the difference in the scope of Section 36A and Section 33C(2) indicating that the distinction lies in the fact that Section 36A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33C(2) and whereas Section 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under Section 36A. In this context, this Court also indicated that the power of the Labour Court in a proceeding under Section 33C(2) being akin to that of the Executing Court, the Labour Court is competent to interpret the award or settlement on which a workman bases his claim under Section 33C(2), like the power of the Executing Court to interpret the decree for the purpose of execution. Relevant extract from that decision is as under-

Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under Section 33C(2). thereforee, we feel no difficulty in holding that for the purpose of making the

necessary determination under Section 33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests.

This decision itself indicates that the power of the Labour Court under Section 33C(2) extends to interpretation of the award or settlement on which the workman's right rests, like the Executing Court's power 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 determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned Counsel for the respondents."

13. Therefore, as discussed above, the decision in the P.S.

Rajagopalan's case (Supra), is of no assistance in the facts of the

present case to the petitioners as in the said judgment also, the Apex

Court held that the Labour Court exercises power like Executing

Court's power U/S 33 C (2) I.D. Act and has no power to determine a

dispute of entitlement if there is no adjudication or recognition of same

by the employer.

14. The decision, in CWP No. 2187/2007 dated 21/3/2007, is also of

no assistance to the petitioners since in the review application filed in that

case, this court had observed vide order dated 27/2/2008 that the order

passed on 21/3/2007 will not be taken as a precedent.

15. The decisions in D.P. Maheshwari's case (Supra) and

AIIMS's case (Supra) relied upon by the counsel for the petitioners

are also of no help in the facts of the present case since the same do

not pertain to the issue of scope of S. 33-C (2) ID Act, which is the sole

question herein. Furthermore, the aforesaid decisions pertain to S.10

ID Act and according to the said judgments under S.10, ID Act, there

can be no piecemeal adjudication and same principle cannot be said to

apply to S.33-C (2) I.D Act.

16. The courts and tribunals of limited jurisdiction while exercising

their powers under any enactment or statute cannot assume any

power by implication just because they feel that in the absence of such

implied power, his jurisdiction under S. 33C(2) could be better

exercised. If the legislature did not confer adequate powers on the

specified authority under S. 33C(2), a more reasonable inference would

be that the nature and scope of the powers under S. 33C(2) is very

limited and the legislature was conscious of the fact that, for holding

such a limited and narrow enquiry, it was unnecessary to confer

powers invariably associated with formal and complicated enquiries of

a judicial or quasi-judicial character.

17. In Union of India v. Kankuben,(2006) 9 SCC 292, the Apex

Court explained that 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.

18. Furthermore, the contention of the counsel for the petitioner that

the rates claimed by the petitioners were admitted rates on which

payment was earlier made, is required to be considered along with

other concomitant facts, which being disputed question of facts require

adjudication under S.10, I.D. Act.

19. Thus, in view of the above discussion, it is manifest that the

nature of power or the scope of enquiry under S. 33-C is limited and

pertains to a pre-existing benefit or one flowing from a pre-existing right.

20. In the present petitions, I do not feel that the tribunal committed

any error in dismissing the applications filed by the petitioners under S.

33-C (2). First of all the MCD raised the dispute to the entitlement of

the petitioner's to liveries etc. But even if it be taken that the

petitioner's had right to liveries and stitching and washing allowance

as per the rules of the MCD, but still certain question of facts as to

whether they were entitled to purchase them from open market and

what cost should be allowed for such purchase, why did they raise this

question of reimbursement after a lapse of 6-7 yrs. etc. and certainly

are such questions cannot be answered by a court exercising

execution jurisdiction. The said issues require adjudication on merits

after formal enquiry, which can be gone into only under S. 10 of the ID

Act.

21. The Labour Court in exercise of its powers under Section 33C(2)

of the Act cannot enlarge the scope of the said provision by arrogating

to itself the function of adjudicating the dispute relating to the claim of

the nature made by the workmen, herein. The limitations placed on the

Labour Court under Section 33C(2) of the Act are of such a nature

which do not permit it to entertain a claim put forward by a workman

in respect of a matter which is not based on an pre-existing right and

which can be adjudicated upon in an industrial dispute under Section

10 of the Act.

22. In view of the above discussion, the present petitions are

dismissed with the liberty being granted to the petitioners to seek their

remedy by raising an Industrial Dispute under Section 10 of I.D. Act.

23. With the above directions, the writ petitions are dismissed.

July 27, ,2009                                KAILASH GAMBHIR, J.