Respondent No.1/ vs M/S Central Coalfields Limited
2021 Latest Caselaw 3937 Jhar

                               [1]


      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         L.P.A. No.94 of 2019
                                With
                         I.A. No.165 of 2021
  Muni Rana aged about 49 wife of Late Ram Sharan Rana, resident of
  714 Okni Pagmil Road, P.O., P.S. and District Hazaribagh.

                                          ... ... Respondent No.1/Appellant
                                     Versus
1. M/s Central Coalfields Limited, having its registered office at
  Darbhanga House, Ranchi, P.O. Ranchi, District Ranchi through Sri
  Anand Kumar Roy Son of Late Jugal Roy, Project Officer, Rajrappa
  Washary Project, resident of Rajrappa, P.O. & P.S. Rajrappa, District
  Ramgarh.
                                              ... ... Petitioner/Respondent

2. Raju Rana, S/o Late Ram Sharan Rana.

3. Alka Rana, S/o Late Ram Sharan Rana.
4. Bhushan Rana, S/o Late Ram Sharan Rana.

5. Baby Rana, S/o Late Ram Sharan Rana.
6. Shipra Rana, S/o Late Ram Sharan Rana.

7. Palavi Rana, S/o Late Ram Sharan Rana.

8. Sapna Rana, S/o Late Ram Sharan Rana.

  No.2 to 8 are resident of 714 Okni Pagmil Road, P.O., P.S. and District
  Hazaribagh.

                               ... ... Respondents/Performa Respondents
                                   -------
  CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                 HON'BLE MR. JUSTICE AMBUJ NATH
                                   -------
  For the Appellants   : Mr. Bhaiya Vishwajeet Kumar, Advocate
  For the Resp.-CCL    : Mr. A.K. Mehta, Advocate
                     ----------------------------

  CAV on 18.10.2021                   Pronounced/Delivered on 21/10/2021

  Per Sujit Narayan Prasad, J.

[2]

I.A. No.165 of 2021:

1. This interlocutory application has been filed for condoning the delay of

702 days, which has occurred in preferring this appeal.

2. Heard learned counsel for the appellant.

3. Having regard to the averments made in this application, we are of the

view that the appellant was prevented by sufficient cause from

preferring the appeal within the period of limitation.

4. Accordingly, I.A. No.165 of 2021 is allowed and the delay of 702 days

in preferring the appeal is condoned.

L.P.A. No.94 of 2019:

5. The instant appeal is under Clause 10 of the Letters Patent directed

against the order/judgment dated 02.02.2017 passed by the learned

Single Judge of this Court in W.P.(L) No.1025 of 2008 whereby and

whereunder the order dated 27.01.2005 passed by the Labour Court,

Hazaribagh in M.J. Case No.5/02, filed under Section 33-C (2) of the

Industrial Disputes Act, 1947 (hereinafter referred to as the Act, 1947),

has been quashed and set aside.

6. The brief facts of the lis which is required to be enumerated read as

hereunder:

The workman was appointed on the post of Helper Category-II

on 18.01.1959 as daily rated worker. He was promoted as Operator

Grade-I w.e.f. 19.12.1959 and thereafter to the post of Charge-man in

the Wage Board Scale of Rs.245-440 w.e.f. 01.03.1973 by the office

order dated 20.03.1973.

[3]

The workman has filed application under Section 33-C (2) of

the Act, 1947 claiming therein leave encashment of 180 days. The

Labour Court allowed the application and directed the management to

release the leave encashment of 180 days treating him to have been

appointed or to have come within the monthly cadre between

01.10.1956 to 14.08.10967.

The aforesaid order passed by the Labour Court under Section

33-C (2) of the Act, 1947 has been questioned by the management-CCL

by filing a writ petition being W.P.(L) No.1025 of 2008 under Article

226 of the Constitution of India wherein the order dated 27.01.2005

passed by the Labour Court, Hazaribagh in M.J. Case No.5/02 has been

quashed and set aside, which is the subject matter of the present intra-

court appeal.

7. Mr. Bhaiya Vishwajeet Kumar, learned counsel for the appellant has

submitted that there is no dispute in the claim of the workman in view

of the fact that his appointment was made on the post of Helper

Category-II on 18.01.1959 as daily rated worker but was promoted as

Operator Grade-I w.e.f. 19.12.1959, which suggests and clarifies that

the workman was promoted as Grade-I w.e.f. 19.12.1959, therefore, he

has to be treated under the regular establishment of the erstwhile

company and in view thereof, he became entitled for leave encashment

and after considering the aforesaid aspect of the matter the Labour

Court has passed an order directing the claim to be undisputed, as such,

direction upon the respondent management to disburse the amount of

leave encashment of 180 days has been passed but the learned Single

Judge has not considered the fact about the promotion of the workman [4]

as Operator Grade-I w.e.f. 19.12.1959 rather the learned Single Judge

has considered the fact about the claim of the writ petitioner of leave

encashment admissible from the date when he has been brought under

the Wage Board Scale of Rs.245-440 w.e.f. 01.03.1973 by office order

dated 20.03.1973, therefore, serious illegality has been committed and

hence, the order passed by the learned Single Judge is not sustainable in

the eye of law.

8. Per contra, Mr. A. K. Mehta, learned counsel for the respondent-

management has submitted by defending the order passed by the

learned Single Judge that there is no error since the learned Single

Judge has considered the scope of the provision of Section 33-C (2) of

the Act, 1947, scope of which is to compute the claim in terms of

money if the claim has already been adjudicated but herein the claim of

leave encashment is seriously in dispute in view of the fact that the

workman was appointed on 18.01.1959 under daily rated capacity and

so far as the claim that he has been promoted as Operator Grade-I w.e.f.

19.12.1959 is concerned, no such document has ever been produced

before the Labour Court substantiating the fact that the workman was

actually promoted on substantive capacity which will further be

doubted because the workman when was brought under the Wage

Board vide order dated 20.03.1973 he was shown to have been

promoted on temporary basis, therefore, the question would be that

once the workman has been promoted on substantive capacity as

Operator Grade-I w.e.f. 19.12.1959 which is under the same employer

how his subsequent promotion will be on temporary basis, therefore,

the fact is in dispute which requires adjudication and as such, it is [5]

outside the purview of Section 33-C (2) of the Act, 1947. The learned

Single Judge after taking into consideration these aspects of the matter

is correct in reversing the fact finding on the basis of the factual aspect

involved in this case.

9. Mr. Bhaiya Vishwajeet Kumar, learned counsel for the appellant in

response to such argument has relied upon the document Exhibit-C and

Exhibit-1/A which according to him is the substantive piece of

evidence to show that the claim of the workman of the leave

encashment for 180 days is not in dispute and taking into consideration

such documents along with other documents, the Labour Court has

passed an order considering the claim to be simple calculation of the

claim in terms of money which is the scope of the provision of Section

33-C (2) of the Act, 1947 and therefore, the interference shown by the

learned Single Judge in the order passed by the Labour Court cannot be

said to be justified decision.

10. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the

learned Single Judge. This Court, before entering into the legality and

propriety of the impugned order, deems it fit and proper to refer the

statutory provision as contained under Section 33-C (2) of the Act,

1947 because under the said provision the claim has been filed by the

workman for grant of leave encashment for the period of 180 days.

Section 33-C (2) of the Act, 1947 is being quoted hereinbelow:

"33-C (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 [6]

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."

It is thus evident from the provision of Section 33-C (2) of the

Act, 1947 that 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. The Constitution Bench of

the Hon'ble Apex Court while dealing with the said provision in

Central Bank of India Ltd. vs. P.S. Rajagopalan Etc., (1964) 3 SCR

140 has laid down as under paragraph-16 which reads as hereunder:

"16. Let us then revert to the words used in Section 33-C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-section (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? According to the appellant, the scope of sub- section (2) is similar to that of sub-section (1) and it is pointed out that just as under sub-section (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-section (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-section (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in term of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value [7]

of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub-section (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit". The appellant's construction would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33-C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution [Maxwell on Interpretation of Statutes p. 350] ". We must accordingly hold that Section 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub- section (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-section (2). On the other hand, sub-section 3 becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-section (2)."

It is thus evident from going through the proposition laid down

under paragraph-16 of the said judgment that in order to decide what [8]

would be its true scope and effect on a fair and reasonable construction

by going through the words used in Section 33-C (2) of the Act, 1947.

When sub-section (2) refers to any workman entitled to receive from

the employer any benefit there specified, specifically mean that he must

be a workman whose right to receive the said benefit is not disputed by

the employer. It is further evident that if the claim of the workman is

not in dispute certainly the claim will be computed in terms of money

in exercise of power conferred under Section 33-C (2) of the Act, 1947

by the appropriate forum but if the claim is disputed then it requires

adjudication and as such, it will go outside the purview of the provision

of Section 33-C (2) of the Act, 1947. Thus, the Hon'ble Apex Court

while laying down the proposition in the aforesaid judgment has laid

down that even if there is no adjudication of the dispute but the claim is

being admitted, the appropriate direction can well be passed in exercise

of power conferred under Section 33-C (2) of the Act, 1947.

11. We have proceeded to examine the order passed by the Labour Court as

to whether the Labour Court has transgressed its jurisdiction in

exercising the power conferred under Section 33-C (2) or not?

The order of the Labour Court will be treated to be

transgressing the jurisdiction if in the given facts of the case the claim

of the workman about the leave encashment for the period of 180 days

is not in dispute but if the claim is in dispute then certainly it will be

said that the Labour Court has exceeded its jurisdiction in exercising

the power conferred under Section 33-C (2) of the Act, 1947.

12. The admitted fact in the given case is that the husband of the appellant

claims to have been appointed on daily rated worker on 18.01.1959 and [9]

promoted as Operator Grade-I w.e.f. 19.12.1959. Thus, the workman

claims entitlement on the basis of the promotion which has been

granted in his favour as Operator Grade-I w.e.f. 19.12.1959 while on

the other hand the management has disputed the aforesaid promotion

said to have granted as Operator Grade-I w.e.f. 19.12.1959 rather the

case of the management is that the workman, for the first time, has been

brought under the Wage Board Scale vide order dated 20.03.1973,

therefore, Exhibit-C or Exhibit-1/A will not be applicable in the facts of

the case basis upon which the Labour Court has passed the order

allowing the application filed under Section 33-C (2) of the Act, 1947

and directing the management to disburse the said amount within the

stipulated period.

13. This Court, has called for the original records as would be evident from

the order dated 03.09.2021. We have perused the original records, more

particularly, relevant documents upon which reliance has been placed,

i.e., Exhibit A, which is dated 19.10.2001 pertaining to earned leave

encashment, gratuity and other dues of Sri R. S. Rana.

It is evident therefrom that the husband of the appellant is

shown to have been appointed on 18.01.1959 as Helper Category-II

subsequently promoted as Operator Grade-I on 19.12.1959. It further

appears that he was temporarily promoted to the post of Charge-man in

Wage Board Scale of Rs.245-440.

14. Learned counsel for the appellant has heavily relied upon Exhibit-A,

more particularly, contents thereof, to the effect that the workman was

promoted to the post of Operator Grade-I w.e.f. 19.12.1959 but the said

promotion was under the regular establishment or not, the said exhibit [10]

does not stipulate rather the admitted fact which can be gathered from

the said document is that, the workman, for the first time was brought

under the Wage Board Scale of Rs.245-440 vide order dated

20.03.1973 which was given w.e.f. 01.03.1973, i.e., before the

nationalization of the coal companies, and therefore, the workman

cannot derive any benefit from Exhibit-A because the provision of

Section 33-C (2) can well be applied in a clear cut case, i.e., having no

dispute to the claim but herein the fact about the promotion to the post

of Operator Grade-I w.e.f. 19.12.1959 was under the regular

establishment of the erstwhile company or not, is lacking rather the fact

which is very much clear is that he was brought under the Wage Board

Scale of Rs.245-440 vide order dated 20.03.1973 and therefore, there is

dispute which requires adjudication/determination.

15. The other document, i.e., Implementation Instruction No.23 dated

13.08.1990 pertains to encashment of leave at the time of

superannuation or retirement of Ex. NCDC employees who are

governed by the Corporation Rules and who opted for Wage Board

scales of pay and are continuing in NCWA scales. It requires to refer

that the workman was in the services of Ex. NCDC and on

nationalization of the coal companies, the services have been taken over

by the Central Coalfields Limited.

It further appears from the Implementation Instruction No.23

that the decision has been taken with respect to the workmen who were

appointed or came over to monthly cadre between 01.10.1956 and

14.08.1967. The word "cadre" denotes that the employees who have

come under a specific cadre and having specific pay-scale in the Wage [11]

Board. Herein, although the workman is claiming to be promoted as

Operator Grade-I on 19.12.1959, he will be treated to come under the

monthly cadre between 01.10.1956 and 14.08.1967 and therefore, the

claim of leave encashment for the period of 180 days cannot be

disputed but we are not in agreement with such submission because the

said case would have been admitted if the workman would have got the

Wage Board in between 01.10.1956 and 14.08.1967. So far as the claim

of the workman that his promotion granted as Operator Grade-I as on

19.12.1959 will be treated under the monthly cadre but it cannot be

treated like that unless adjudicated by the appropriate forum since the

appellant has failed to bring any document substantiating the claim that

the order of promotion dated 19.12.1959 as Operator Grade-I is under

the Wage Board or in the monthly cadre, therefore, in anticipation of

presumption there cannot be any direction in exercise of power

conferred under Section 33-C (2) of the Act, 1947 as per its scope dealt

with by the Constitution Bench of the Hon'ble Apex Court in Central

Bank of India Ltd. vs. P.S. Rajagopalan Etc. (supra).

Exhibit-C and 1/A are also not in support of the claim of the

workman since the said document has been issued for some other

purposes, therefore, according to our considered view, the claim of the

workman about the disbursement of leave encashment for the period of

180 days cannot be treated to be without any dispute requiring the

Labour Court to exercise power conferred under Section 33-C (2) of the

Act, 1947.

16. We, after having discussed the legal position as also the factual aspect,

have gone across the order passed by the learned Single Judge and has [12]

found therefrom that the learned Single Judge has come to the finding

about the claim being in dispute and therefore, reversed the order

passed by the Labour Court.

17. We, on the basis of the discussion made hereinabove and taking into

consideration the scope of Section 33-C (2) of the Act, 1947, are of the

view that the order passed by the learned Single Judge requires no

interference for the reason that the learned Single Judge has reached to

such conclusion that without any adjudication of the right of the

workman concerned about allowing the claim of leave encashment for

the period of 180 days treating him to have been appointed or to have

come under the monthly cadre between 01.10.1956 and 14.08.1967 has

been held to be transgressing the jurisdiction conferred under Section

33-C (2) of the Act, 1947, has rightly held so in view of the discussion

made herein and the proposition laid down by the Constitution Bench

of the Hon'ble Apex Court in Central Bank of India Ltd. vs. P.S.

Rajagopalan Etc. (supra) and subsequent judgment rendered in State of

U.P. and another vs. Brijpal Singh, (2005) 8 SCC 58. Accordingly, the

instant appeal fails and stands dismissed.

(Sujit Narayan Prasad, J.)

(Ambuj Nath, J.)

Saurabh /A.F.R.