Delhi High Court
Atul Kanti Tripathi vs M/S Kuber Media Ltd. on 25 November, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.11.2016
+ W.P.(C) 6008/2014
ATUL KANTI TRIPATHI ..... Petitioner
Through:
Mr. Pankaj Vivek and Mr. Atul Tripathi,
Advocates.
Versus
M/S KUBER MEDIA LTD. ..... Respondent
Through: Mr. Asim Naeem, Asad Siddiqui,
and Mohd. Haris, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 25.11.2016
1. The petitioner (workman) impugns the order dated 07.06.2014 passed
in Ex. Petition No. 50/2013 and a subsequent order filed on an application
for implementation of the Award passed in LIR No. 346/2008 dated
10.03.2010. The Award dated 10.03.2010 directed the respondent
(management) to (i) grant reinstatement to the workman in service along
with back wages; (ii) continuity of service and consequential benefits within
30 days from the date of publication of the Award, (iii) failing which, the
management will have to pay interest at the rate of 12% per annum till the
date of actual payment. The Award was published on 17.08.2010. It
became enforceable from 16.09.2010. An Execution petition was moved by
the petitioner under Section 33C of the Industrial Disputes Act, 1947
(hereinafter to be referred as 'the Act') on 07.11.2013. The workman's
application for condonation of delay was opposed by the management on the
ground that it was barred by limitation and that the application for
implementation of the Award could have been moved only within the period
of one year after it was published and not after three years. It is not in
dispute that the application was filed after three years. The Labour Court
held inter alia as follows;
"7. It is clear from the facts enumerated above that the
present execution has been preferred by the workman against the
award dated 10.03.2010 which is clear and unambiguous as the
last drawn wages have been given, date of termination of service
of the workman has been given and the rate of interest has also
been provided and therefore, there should have been no difficulty
in computing the liquidated amount which has even been
calculated by the workman and has been mentioned in the
petition to be Rs.70,48,146/. If that is so, there is no question of
any disputed amount which requires to be calculated or
adjudicated upon by the court and in such circumstances, the
present petition has to be treated to be under Section 33C(1) of
the ID Act.
8. Even in the case law relied upon by the AR for workman
in East India Coal Co. Ltd. Vs Rameshwar (1968) I LLJ 6 (SC) it
was held that "Section 33C(1) of the ID Act applies to cases
where money is due to a workman under an award or settlement
or under chapter 5A of the Act, already calculated and
ascertained and therefore, there is no dispute about its
computation. But sub-section (2) applies both to non-monetary,
as well as to monetary benefits. In the case of monetary benefits
it applies where such a benefit, though due, is not calculated and
there is a dispute about its calculation".
9. Furthermore, in Punjab National Bank Ltd. Vs.
Kharbanda KL 1962 (1) LLJ 234 SC it was held that "it is clear
therefore that Section 33C is a provision in the nature of
execution and where the amount to be executed is worked out or
where it may be worked out without any dispute, Section 33C(1)
will apply. But where the amount due to a workman is not stated
in the award itself and there is a dispute as to its calculation,
sub-section (2) will apply and the workman would be entitled to
apply thereunder to have the amount computed provided he is
entitled to a benefit, whether monetary or non-monetary, which is
capable of being computed in terms of money."
10. It is clear from the aforesaid that in any circumstances, the
present petition has to be treated u/s 33C(1) of the Act.
11. It has been provided under Section 33C(1) of the Act that
the "workman himself or any other person authorized by him in
writing in this behalf, or, in case of the death of the workman, his
assignee or heirs may, without prejudice to any other mode or
recovery, make an application to the appropriate government for
the recovery of money due to him...;
Provided that every such application shall be made within one
year from the date on which the money become due to the
workman from the employer;
Provided further that such an 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."
12. It is clear from a plain reading of the sub-section that an
application u/s 33C(1) of the Act has invariably to be moved by
the workman before the appropriate government within one year
from the date of the publication of award or at the most,
publication of the Award and the delay if any, in moving the said
application can only be condoned by the appropriate
government. Admittedly, the present application was never filed
before the appropriate government nor the application for
condonation of delay was moved before the appropriate
government. It is also an admitted fact on record that this
application has been filed beyond a period of one year and is
thus, beyond limitation.
13. As mentioned above, Section 33C(1) of the Act says that a
workman can also file the application before the appropriate
government but without prejudice to any other mode or recovery.
It may thus, include filing of an execution before this court. But
again, Section 19 of the ID Act puts a rider. Sub-section 3 of
Section 19 states that an award shall, subject to the provisions of
this section, remain in operation for a period of one year from
the date on which the award becomes enforceable u/s17A of the
Act. The first proviso to this sub-section provides that "the
appropriate government may reduce the said period and fix such
period as it thinks fit". The second proviso states that "the
appropriate government may before the expiry of the said period
extend the period of operation by any period not exceeding one
year at a time as it thinks fit so, however, that the total period of
operation of any award does not exceed three years from the date
on which it came into operation".
14. A cumulative reading of the above provisions shows that
an award can be implemented by the appropriate government
within one year from the date when it becomes enforceable under
section 17A which period can be extended by appropriate
government from only one year to the maximum of three years.
Hence, this court has no power to extend the period of limitation
for the execution of the award. As pointed out above, the award
was passed on 10.03.2010, was published on 17.08.2010 and
became enforceable on 16.09.2010. The present
application/execution has been filed on 07.11.2013 that is to say,
beyond the prescribed period of three years as per second
proviso to Section 19(3) of the ID Act, during which only the
appropriate government could have extended the limitation for
implementation of the award.
15. Ld. AR for management relied upon judgment in Jagatjit
Industries Ltd. v. Labour Officer & Anr. (2012) III LLJ 448 Delhi
wherein it was held that "no prosecution u/s 29 of the Act could
be initiated against the management if the injury is not
continuing each day after one year of the publication of the
award, if it is not implemented". Another judgment was relied
upon delivered in Ajaib Singh vs. Sirhind Cooperative Marketing
cum Processing Service Society Ltd. 1999 (1) LLJ 1260 SC
wherein it was held that "the delay was not agitated by the
management at the first inception, the relief could be moulded
in favour of the workman". However, in the instant case, the
delay factor had already been agitated by the management at the
first instance.
16. It is clear from the above discussion that the present
execution has been filed beyond a period of limitation and
therefore, is not maintainable. The preliminary issue is
accordingly decided in favour of the management and against the
workman. Resultantly, the execution stands dismissed."
2. The learned counsel for the petitioner submits that the application
before the Labour Court was only for a computation of the amounts which
ought to have been paid to the petitioner in terms of the Award. It is only
after such computation was adjudicated by the Labour Court that the
application in execution proceedings for enforcement could be moved before
the appropriate authority. He submits that in the first instance, the said
amount ought to have been calculated and only thereafter recovery
proceedings would have been pursued. This Court would note that the
petitioner's application under Section 33C of the Industrial Disputes Act
sought the following relief:
"It is therefore, most respectfully prayer that the amount of
Rs.70,48,146/- may be recovered from the employer alongwith
the pendentelite interest and future interest till recovery of the
amount."
3. The aforesaid amount was sought by the petitioner on the basis of a
calculation as under;
6. That the Petitioner/workman had lastly drawn a salary of
Rs.7,000/- pm. As per law applicable to the working journalists
in increment of 10% over and above the last drawn salary is
payable.
7. That the amount payable to the workman/petitioner as per the
Award dated 10.03.2010 amounts to Rs.70,48,146/-."
4. The petitioner has done the calculation for the first time after expiry
of three years. This could have been done by him at earlier point in time.
Section 19 (3) of the Act reads as under:
"19. Period of operation of settlements and awards.--
"[3] An award shall, subject to the provisions of this section,
remain in operation for a period of one year4[from the date on
which the award becomes enforceable under section 17A:
Provided that the appropriate Government may reduce the said
period and fix such period as it thinks fit:
Provided further that the appropriate Government may, before
the expiry of the said period, extend the period of operation by
any period not exceeding one year at a time as it thinks fit so,
however, that the total period of operation of any award does not
exceed three years from the date on which it came into
operation."
5. The learned counsel for the petitioner relies on the decision of this
Court in King Airways v. Captain Manjit Singh, (2013) 198 DLT 749;
"6. The pilots in these petitions based their claim before the
learned Tribunal on the office memo issued on 19th February,
1996 by the management offering incentives for additional flying
hours to all the commanders, Circular dated 29th February,
1996 issued by the management providing for welfare expenses
to all the commanders. According to the Pilots herein, from June
1995 to July 1997 the management withheld their part salaries
and when they demanded their full salary and perks which were
being withheld, their services were terminated. They sent letters
to the management stating that the termination was illegal and
their all dues be cleared. Since the management failed to clear
the dues, they filed applications under Section 33-C(2) 10 Act for
computation of the dues. The industrial Tribunal awarded a total
sum of Rs. 17,31,347/- each to Pritam Singh and Capt. Manjit
Singh and a sum of Rs. 22,99,085/ - to Capt. N.D Kathuria. The
grievance of the Pilots herein is that the learned Tribunal did not
grant any interest on the awarded amount despite a prayer being
made in this regard and the case of the management is that the
petitions filed before the learned Tribunal were not maintainable.
It may be noted here that in his claim petition, Capt. Manjit
Singh himself made a claim for a sum of Rs. 8,71,217/-, however
the learned Tribunal awarded a sum of Rs. 17,31,347/-, which
according to Capt. Manjit Singh also, is a typographical error
and can be corrected by this Court."
6. He then relies upon the judgment of the Supreme Court in Bombay
Gas Co. Ltd. V Gopal Bhiva & Ors., AIR 1964 SC 752 to contend that the
execution of the Award can be made within 12 years. He relies upon the
following paragraphs;
" .... The failure of the legislature to make any provision for
limitation cannot, in our opinion, be deemed to be an accidental
omission. In the circumstances, it would be legitimate to infer
that legislature deliberately did not provide for any limitation
under s. 33C(2). It may have been thought that the employees
who are entitled to take the benefit of s. 33C(2) may not always
be conscious of their rights and it would not be right to put the
restriction of limitation in respect of claims which they may have
to make under the said provision. Besides, even if the analogy of
execution proceedings is treated as relevant, it is well known that
a decree passed under the Code of' Civil Procedure is capable of
execution within 12 years, provided, of course, it is kept alive by
taking steps in aid of execution from time to time as required by
art. 182 of the Limitation Act, so that the test of one year or six
months' limitation prescribed by the Payment of Wages Act
cannot be treated as a uniform and universal test in respect of all
kinds of execution claims."
7. He refers to sub-sections 9 & 10 of Section 11 to contend that the
Award is executable as a civil decree and the same can be done within a
period of 12 years as has been held in Bombay Gas Co. (supra). The said
provisions read as follows:
"Section 11:
........
(9) Every award made, order issued or settlement arrived at by
or before Ld. Labour Court or Tribunal or National Tribunal
shall be executed in accordance with the procedure laid down for
execution of orders and decree of a Civil Court under order 21 of
the Code of Civil Procedure, 1908.
(10) The Ld. Labour Court or Tribunal or National Tribunal, as
the case may be, shall transmit any award, order or settlement to
a Civil Court having jurisdiction and such Civil Court shall
execute the award. order or settlement as if it were a decree
passed by it. "
8. He also relies upon the dicta of this Court in Fincap Financial
Corporation Ltd. Vs. Prem Singh & Anr in WP(C) No. 8344/2010 decided
on 26.04.2011. The learned counsel further submits that operation and
enforcement are two different things, therefore, even if the period of
operation of the Award under Section 19 expires, it is nevertheless
enforceable under Section 11 (9) and (10). He submits that as far as
reinstatement is concerned it is not possible because the company is in
liquidation and the same would not be enforceable, nevertheless the amount
computed would be enforceable. However, he states that it has not been
proven that the management was under liquidation. Hence, the amount as
computed and sought to be enforced by the workman in terms of the Award
would be payable because it is specified and Section 446 of the Companies
Act would be of no assistance to the management. He submits that the
learned Labour Court erred in not granting the relief which was sought.
9. He further submits that the liquidation proceedings ended before the
Company Court on 11.05.2012, therefore, it was prudent to make an
application for implementation of the Award only thereafter. Furthermore,
the impugned order did not deal with the application for condonation of
delay. Hence, it had to be set aside. It is stated that the workman has
admittedly been enrolled as a lawyer since 2009 and therefore would not be
employable thereafter; his application was filed under Section 33 C(1) of the
Act, however, it should have been treated as an application for computation
of monies as may be payable to the applicant under Section 33C (2) of the
Act. Instead of doing so, the impugned order treated the application under
Section 33C (1) of the Act and dismissed it on account of limitation as
prescribed under the said sub-section.
10. The learned counsel for the petitioner contends that since only
computation of the amounts under Section 33C (2) of the Act has to be
made; the limitation period for that is 12 years, as the Award is a decree
whose enforcement can be sought in a period of 12 years under Section 11
(10) of the Act, whereunder the Labour Court/Tribunal is required to
transmit any award, order or settlement to a Civil Court having jurisdiction
and such Civil Court is to execute the Award, order or settlement as if it
were a decree passed by it. The learned counsel submits that insofar as the
Award was not duly transmitted to the Court concerned, therefore, the
petitioner cannot be put to a disadvantage; in any case, the petitioner has a
right for enforcement of the same as if it were a decree.
11. Refuting the aforesaid contentions, the learned counsel for the
respondent submits that there is a specific scheme for enforcement of the
wages in the terms specified in the statute which has been laid down in the
Section. The said provisions make an Award enforceable after 30 days of
publication but within the period of one year, the same can be extended to
three years under section 19 (3), but not any further. He further submits
that the averments made in the application itself are clear as it does not seek
computation of the amount but instead it seeks payment of the amount
because the applicant has already mentioned the amount which was sought
to be recovered i.e. Rs.70,48,146/-. The petitioner claims that he could not
file the petition under Section 33C of the Act because the employer was
under the process of provisional liquidation. However, he had received
intimation prior to the filing of the application that the Company had been
revived hence the application had been filed. The Court would note that
evidently, the application was filed three years after the publication of the
Award. The limitation prescribed under Section 33C (1) of the Act is one
year. Consequently, there is no possibility of recovery of monies or
reinstatement.
12. The learned counsel relies upon the judgment of this Court in the case
of Jagatjit Industries Ltd. Vs. Labour Officer & Anr. [2012 (132) FLR
124], which held that:-
"5. Now, it was not disputed that by virtue of Sub-Section 3 of
Section 19 of the ID Act 1947, subject to the provisions of Section
19, an award remains in operation for a period of 1 year from
the date on which the award becomes enforceable under Section
17(A) of the ID Act 1947 unless the period is reduced or
extended by the appropriate Government in exercise of its power
under either of the two provisos to Sub-Section 3 of Section 19 of
the Act, a power which was never exercised. It was also not
disputed by learned counsel for the parties that by virtue of Sub-
Section 5 of Section 19 of the ID Act 1947, Sub-Section 3 of
Section 19 did not apply to awards which imposed continuing
obligation on the parties bound by the award. Further, learned
counsel were not at variance that by virtue of Sub- Section 6 of
Section 19, notwithstanding the period of 1 year contemplated by
Sub-Section 3 of Section 19 during which an award remains
operative, the said period could be curtailed by giving a notice
by either party to the other intimating its intention to terminate
the award. Learned counsel also did not dispute that under
Section 17(A) of the ID Act 1947 an award becomes enforceable
on the expiry of 30 days from the publication of the award under
Sub- Section 1 of Section 17 of the ID Act 1947 and further
agreed that by virtue of the proviso to Sub-Section 1 of Section
17(A) of the ID Act the appropriate Government may declare an
award not enforceable on the expiry of 30 days from the date of
its publication under Sub-Section 1 of Section 17 of the ID Act
1947."
13. He further submits that under the scheme of the Act, the Award has to
be published after it is received by the Government and becomes effective
within 30 days thereafter. The Award was published on 17.08.2010 and
became operative from 16.09.2010. The Court would note that no
application has been filed by the workman within one year of the Award.
Indeed, it was not filed even within three years thereafter. The affidavit
supporting the petition under Section 33C of the Act is of 07.11.2013 i.e.
even beyond the three year period, which is the maximum permissible time
under the second proviso to Section 19(3) of the Act. No such application
was made to the Government for extension of time beyond the first year or
till the third year. The application itself seeks payment of the money and not
for computation of amount because the applicant had himself mentioned the
amount which could be payable and sought enforcement of the same beyond
the period of one year on the ground that the Company had allegedly
resumed its operations and therefore, there was liquidity and there was some
amounts of recoveries of the monies.
14. The learned counsel for the respondent also submits that provisions of
the Limitation Act are not applicable to the present proceedings because the
same are under the Industrial Disputes Act, which is a benevolent legislation
and a complete code in itself.
15. He submits that the validity of the Award itself is in question because
the respondent management was under provisional liquidation and upon
being intimated of the petitioner's claim before the Industrial Tribunal it had
duly filed the application apprising the court that the Company was under
provisional liquidation. However, the issue of validity of the Award is not
in question today. Hence, discussion in that regard would be digression
from the issue at hand.
16. The Court is of the view that the application itself stated that a
determined and stated amount was payable to the petitioner in terms of the
Award and sought implementation/payment of the same. Therefore, it is
clear that the petitioner/applicant sought a specific declaration to that effect
under section 33C (1) of the Act and not under Section 33C (2) of the Act.
The application sought recovery of Rs.70,48,146/- from the employer
alongwith the pendent lite interest and future interest till recovery of the
amount. The petitioner's argument is untenable in view of the interpretation
of section 33C by the Supreme Court in Punjab National Bank Ltd. v. K.L.
Kharbanda A.I.R. 1963 S.C. 487; The Central Bank of India Ltd. v. P.S.
Rajagopalan A.I.R. 1964 S.C. 743; Kays Construction Co. Pvt. Ltd. v. The
State of Uttar Pradesh and Ors. A.I.R. 1965 S.C. 1488; and East India Coal
Company (by Chief Mining Engineer), Bararee Colliery, Dhanbad and
Rameshwar and Ors. (1968) I L.L.J. 6. A Division Bench of the Calcutta
High Court in the case of Jessop and Co.Vs. M. Mukherjee (1975) ILR 1 Cal
704 summarized the principles pertaining to Section 33C as under:
"1) Where any money is due under a settlement or an award or
under the provisions of chap. V-A, Section 33C(1) will be
attracted.
(2) The money due under Section 33C(1) may be a specified
amount or may have to be arrived at by arithmetical calculation
or verification simpliciter. In other words, in cases where there is
no dispute as to the amount or as to its computation, Section
33C(1) would apply.
(3) Section 33C(2) is more comprehensive than Section 33C(1).
Ii applies not only to cases of a settlement or award or to cases
under chap. V-A of the Act but to other cases as well.
(4) When money due is not specified or the benefit capable of
being computed in terms of money has not been determined,
Section 33C(2) would be attracted inasmuch as the Labour
Court, by a process of computation to be found out and applied
by it, has to determine the amount of money due. In other words,
in cases of disputes as to calculation or computation of money
due or benefit capable of being computed in terms of money,
Section 33C(2) has to be invoked.
(5) Section 33C(2) also enables a labour Court to enquire into
and decide upon the right to receive the money to be computed
provided that the determination of that right is incidental or
ancillary to computation."
17. It is clear from the execution petition that the Award dated 10.03.2010
included payment of the last drawn wages from the date of termination of
service of the workman; it had also provided the rate of interest. There was
no occasion for the Trial Court to adjudicate upon or compute the amount or
treat the petition under Section 33C(2) of the Act. The Court would also
note that the application acknowledges that the Award was duly published in
accordance with law by the Government of NCT of Delhi on 17.08.2010,
which acknowledged the last drawn monthly salary of the
applicant/petitioner as Rs.7,000/- with an increment of 10% over and above
the last drawn salary payable. The amount calculated to be payable to the
petitioner as per the aforesaid Award was claimed to be Rs.70,48,146/-. The
application avers that the employer has neither reinstated the workman nor
paid the last dues as awarded on 10.03.2010. In substance the application
itself did not specify whether it was filed under Section 33 C(1) or 33C(2) of
the Act. The Trial Court treated it under Section 33C(1) of the Act because
of the relief sought in the application and accordingly rejected it because it
was beyond the period permissible for enforcement of the Award for
recoveries of the monies due from an employee within the period of one
year specified therein. This Court finds no reason to differ with the said
reasoning or conclusion.
18. Reliance by the petitioner upon the Bombay Gas (supra) is misplaced
because as discussed in the said judgment, in that case the claimant had
taken positive steps to keep alive the decree. Similarly, if the workman
wanted to have kept alive the decree, he could have been done so by taking
appropriate steps. But he did not take any steps from the date of the
publication of the Award on 17.08.2010 till 07.11.2013 i.e. for more than
three years. Although no limitation period has been prescribed under
section 33C, nevertheless, unless sufficient cause for the inordinate delay in
filing the application is explained by the party, the application would
inexorably be rejected. Belated applications without explaining the delay in
filing the petition are not maintainable under Section 33C of the Act.
19. For the aforesaid reasons, the Court does not find any reason to
interfere with the impugned order. Accordingly, the writ petition is
dismissed.
NAJMI WAZIRI, J.
NOVEMBER 25, 2016/dr/sb
