Standard Chartered Bank Ltd. vs Kewal Krishan Mutneja & Anr.
2013 Latest Caselaw 4169 Del

$~R-67

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 1526/2000

                                       Decided on 16th September, 2013

       STANDARD CHARTERED BANK LTD.                        ..... Petitioner

                          Through:     Mr. Sumit Bansal, Mr. Ateev K.
                                       Mathur, Ms. Sumi Anand and Mr.
                                       Devmani Bansal, Advs.

                          versus

       KEWAL KRISHAN MUTNEJA & ANR.                        ..... Respondents

                          Through:     None.



CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. By the order dated 15th February, 2000 Central Government Industrial

Tribunal, New Delhi (CGIT) has decided the application under Section

33C(2) of the Industrial Disputes Act, 1947 (for short, hereinafter referred to

as "the Act") of respondent whereby petitioner has been directed to make

payment of early retirement benefit to the respondent. As regards claim of

respondent in respect of payment of subsistence allowance during the

suspension period the same has been rejected.

2. Factual matrix as unfolded is that respondent was working with the

petitioner as Special Assistant. He was placed under suspension on 25 th

August, 1990. A departmental enquiry was held against him and he was

found guilty of misconduct. He was awarded punishment of "warning" on

7th December, 1990. Thereafter, respondent vide letter dated 9th December,

1991 requested the petitioner to grant him pre-mature retirement from the

service. This request was accepted by the petitioner vide letter dated 11 th

December, 1991. All the retiral dues were paid to respondent. However,

respondent remained unsatisfied. He alleged that retirement dues in toto

were not paid to him. He approached Assistant Labour Commissioner

(Central), New Delhi, who advised the petitioner to examine all the

grievances of respondent as enumerated in order dated 27th April, 1994.

3. In the month of February, 1996 respondent filed an application under

Section 33C(2) of the Act before the CGIT alleging therein that he was not

paid „subsistence allowance‟ during the suspension period as well as „early

retirement benefit‟ of remaining 9 years of services to which he was entitled

to. Early retirement benefit was given by the petitioner to some other

workmen, thus, he was discriminated on this count viz-a-viz other workmen.

He claimed `66,425/- towards the wages during the suspension period from

28th August, 1990 to 10th December, 1991 and Rs.8,20,800/- towards his

remaining 9 years of service.

4. In written statement, petitioner disputed the entitlement of the

respondent to the aforesaid amounts. It was alleged that petitioner had

already paid all the legitimate claims of the respondent to which he was

entitled to in terms of the Bank‟s rules, regulations and policies.

Respondent was not entitled to „subsistence allowance‟ in terms of Bipartite

Settlement. It was further alleged that respondent was not entitled to „early

retirement benefits‟ as claimed by him as there was no such policy in vogue.

Respondent had raked up the claims on the above counts as an afterthought,

inasmuch as, had raised a boggy of discrimination just to gain undue

advantage. It was further alleged that above issues were not raised during

the conciliation proceedings before the Assistant Labour Commissioner.

Respondent had resigned from service because of his ill-health and family

circumstances and had opted for pre-mature retirement benefits with

immediate effect, thus, was not entitled to salary of his remaining service.

Even in his letter of resignation he had not indicated about the benefits of

remaining nine years of service which was now raised by him.

5. In rejoinder, respondent reiterated the averments made in his

application and detailed the names of co-workers who were allegedly

granted „early retirement benefit‟.

6. From the facts narrated hereinafter it is clear that disputed question of

facts were raised. Petitioner had disputed the entitlement of the respondent

regarding „subsistence allowance‟ during the suspension period as also

alleged „early retirement benefit‟. There is no gainsaying that power under

Section 33C(2) of the Act is simply of computation of the amount to which a

workman is entitled to pursuant to an award or settlement or for that matter

admitted entitlement to which a workman is entitled to. The power under

Section 33(c)(2) of the 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.

7. In Tilak Raj Sachdeva vs. PO, CGIT cum Labour Court & Ors.,

decided on 24th October ,2008, a Single Judge of this Court has held thus:

"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."

8. In Municipal Corporation of Delhi vs. Ganesh Razak & Anr. (1995) 1

SCC 235, Supreme Court held thus "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. Similar is the view expressed by a Single Judge of this Court in the

order dated 1st February, 2013 passed in W.P. (C) 5832/2012 titled The

Hong Kong & Shanghai Banking Corporation Ltd. vs. Anju Bala Gupta.

Supreme Court in State Bank of Bikaner and Jaipur vs. R. L. Khandelwal

1968 (1) LLJ, held "that a workman cannot put forward a claim in an

application under Section 33C(2) in respect of a matter which is not based

on existing right and which can be appropriately the subject matter of

Industrial Dispute Act which requires a reference under Section 10 of the

Act. In Central Inland Water Transport Corporation Limited vs. The

Workmen and Another (1974) 4 SCC 696, Supreme Court held thus

"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."

10. Reverting back to the facts of this case, entitlement of the respondent

to the „subsistence allowance‟ as well as „early retirement benefit‟ were

disputed by the petitioner before the Industrial Adjudicator. Since the

entitlement was disputed, it required adjudication and the same could have

been done under Section 10 of the Act alone and not under Section 33C(2)

of the Act. Thus, impugned order is liable to be set aside since the reliefs

claimed were beyond the scope of 33C(2) of the Act.

11. In view of above discussions, writ petition is allowed and impugned

award is set aside.

A.K. PATHAK, J.

SEPTEMBER 16, 2013/ga