Bashir Mohmmed G. Shaikh vs Chief Officer
2021 Latest Caselaw 17955 Guj

     C/SCA/15346/2018                                   ORDER DATED: 01/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15346 of 2018
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                        BASHIR MOHMMED G. SHAIKH
                                  Versus
                              CHIEF OFFICER
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Appearance:
MS SIDDHI VADODARIYA FOR THAKKAR AND PAHWA
ADVOCATES(1357) for the Petitioner(s) No. 1
MR Y J PATEL(3985) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 01/12/2021
                               ORAL ORDER

1. Rule. Learned advocate Mr.Y.J.Patel waives service of notice of rule for and on behalf of the respondent.

2. In the present writ petition, the petitioner has prayed for quashing and setting aside the order dated 15.02.2018 passed by the Labour Court, Surendranagar in Recovery Application (C-

2) No.105 of 2011.

3. It is the case of the petitioner that he is entitled to the amount of leave encashment and accordingly, he filed an application under Section 33C(2) of the Industrial Disputes Act, 1947 (I.D. Act) for recovery of the amount of Rs.2,83,611/- from the respondent along with 20% interest..

4. Learned advocate for the petitioner has submitted that the impugned order passed by the Labour Court is required to be quashed and set

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aside since the Labour Court has illegally decided the claim of the petitioner by observing that the applicant i.e. the present petitioner was under suspension from 1995 to 2006 and was paid the amount of Rs.77,898/- and the amount of Rs.39,894/- was paid as leave encashment on his retirement date i.e. 30.06.2009. It is further submitted that in fact the petitioner is entitled to the amount of Rs.2,83,611/- towards leave encashment along with 20% interest as per the calculation since the petitioner had worked from 1976 to 2009. It is submitted that the salary of the petitioner was fixed at Rs.16,605/- per month as per the 5th Pay Commission and the average salary comes to Rs.553/- per day and hence, the petitioner is entitled to Rs.3,23,505/- towards leave encashment. She has submitted that only amount of Rs.39,894/- was paid towards the leave encashment and rest of the amount of Rs.2,83,611/- was not paid. Thus, she has submitted that the impugned order may be set aside.

5. Per contra, learned advocate Mr.Patel has submitted that the petitioner would not be entitled to the aforesaid amount. It is submitted that the petitioner has to raise the industrial dispute and file a reference under Section 10 of the I.D. Act and direct application under Section 33C(2) of the I.D. Act is not maintainable for claiming such amount.

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6. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

7. The facts as narrated hereinabove are not disputed. The petitioner has filed the application under the provision of Section 33C(2) of the I.D. Act claiming the amount of leave encashment of Rs.2,83,611/-. The Labour Court has rejected the aforesaid application as being not maintainable. The Labour Court has also observed with regard to entitlement of the leave encashment of the petitioner and has also calculated the amount and has arrived at the conclusion that the petitioner is not entitled for the amount of leave encashment.

8. At this stage, it would be apposite to refer to the provisions of Section 33C(2) of the I.D. Act, which reads as under:

"[33C. Recovery of Money Due from an Employer-

(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of chapter 5A or chapter 5B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case, of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

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Provided that every such application shall be made within one year from the date on which money became due to the workman from the employer;

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the application had sufficient cause for not making the application within the said period.

(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.

Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."

9. It would be apposite to refer to the decision of the Supreme Court in the case of State of U.P. and Another Vs. Brijpal Singh, 2005 8 SCC 58 the Supreme Court after survey of various decisions on the interpretation of the provisions of section 33C has held thus:-

"10. It is well settled that the workman can proceed u/s. 33C(2) only after the Tribunal has adjudicated on a complaint u/s. 33A or on a reference u/s. 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Put. Ltd. V/s. Suresh Chand, 1978 2 SCC 144 held that a proceeding u/s.

33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the

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employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. This Court further held as follows:

"It is not competent to the Labour Court exercising jurisdiction u/s. 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference u/s. 10 of the Act."

11. In the case of Municipal Corporation of Delhi V/s. Ganesh Razek & Anr., 1995 1 SCC 235, this Court held as under:-

"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 of 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 u/s. 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compare the benefit so adjudicated on that basis in exercise of its power u/s. 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity required interpretation that the interpretation is treated as incidental to the Labour Court's power u/s. 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.

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13. In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Sec. 33- C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Art. 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents claim is not based on a prior adjudication made in the writ petition filed by some other workmen upholding a similar claim which could be relied on as an adjudication enduring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made u/s. 33-C(2) of the Act by these respondents."

12. In the case of State Bank of India V/s. Ram Chandra Dubey & Ors., 2001 1 SCC 73, this Court held as under :-

"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the

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evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made u/s. 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.

(8) The principles enunciated in the decisions referred by either side can be summed up as follows:

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 u/s. 33-C(2) of the Act. The benefit sought to be enforced u/s. 33-C(2) of the Act is necessarily a per-existing benefit or one flowing from a pre-existing right. The difference between a preexisting 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 u/s. 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi- judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a

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proceeding to whom a reference u/s. 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages".

13. Thus it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shymala Pappu that the respondent-workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33C(2) of the I.D. Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court.

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The High Court has also equally committed a manifest error in not considering the scope of Section 33C(2) of the I.D. Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23.8.1995 and the order dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995 as illegal and uncalled for. We do so accordingly."

10. The Supreme Court in the case of U.P. State Road Transport Corporation Vs. Birendra A Bhandari, 2006 (10) SSC 211, while examining claim for payment of arrears relating to differentiation of salary, D.A. arising out of recommendation of 5th Pay Commission, had held thus:-

"7. The benefit which can be enforced under Section 33 C(2) is a pre-existing benefit or one flowing from a preexisting right.

8. In the case of State Bank of India v. Ram Chandra Dubey & Ors., [2001] 1 SCC 73, this Court held as under:

"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.

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8. The principles enunciated in the decisions referred by either side can be summed up as follows:

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. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi- judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom, a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages."

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9. The position was re-iterated by a three-Judge Bench of this Court in State of U.P. and Anr. v. Brijpal Singh, [2005] 8 SCC 58.

10. Judged in the background of principles set out above, the orders passed by the Labour Court and the High Court are indefensible and are accordingly set aside."

11. The Supreme Court in the aforenoted judgments has held that the benefits under the provision of Section 33C(2) of the I.D.Act can be enforced, on a pre-existing right. It is also held that the Labour Court has no jurisdiction to adjudicate the claim made under Section 33C(2) of the I.D.Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. It is held that the workman can proceed under Section 33C(2) of the I.D. Act only after the Tribunal has adjudicated on a complaint under section 33A or on a reference under section 10. The Supreme Court in the case of Punjab Beverage (P) Limited vs. Sureshchand, 1978 (2) S.C.C. 144, has held that a proceeding under section 33C(2) of the I.D. Act is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money and such right to the money which is sought to be

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calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. Thus, the claim of the petitioner with regard to the payment of amount of leave encashment cannot be directly approved in an application filed under the provision of Section 33C(2) of the I.D.Act as such claim is disputed by the respondent-Corporation by contesting that an employee is entitled to leave encashment only.

12. Thus, the claim of the petitioner with regard to payment of leave encashment cannot be directly pressed in the application under the provision of Section 33C(2) of the I.D. Act.

13. So far as the observations made by the Labour Court with regard to non-maintainability of the application under Section 33C(2) of the I.D. Act can be said to be appropriate and legal however, it was not open for the Labour Court to express anything with regard to entitlement or dis- entitlement of the amount of leave encashment of the petitioner, since the same would have direct bearing on industrial dispute or reference under Section 10 of the I.D. Act.

14. Hence, the observations made by the Labour Court with regard to the opinion expressed for

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the leave encashment of the petitioner are hereby quashed. It is clarified that it will be open for the petitioner to file appropriate proceedings for claiming the amount of leave encashment.

15. The writ petition is allowed partly. Rule made absolute to the aforesaid extent. It is clarified that if any industrial dispute is referred, which culminates into reference, the time consumed before this Court in the present proceedings may not be construed adverse to the present petitioner.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA