Karnataka High Court

The Management Of vs Sri K Shivaram on 4 April, 2022

Bench: K.S.Mudagal

                                    W.P.No.17583/2017

                          1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF APRIL 2022

                       BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                                                      R
       WRIT PETITION NO.17583/2017 (L-KSRTC)
BETWEEN:
THE MANAGEMENT OF
KSRTC, 2ND DEPOT
MANGALURU DIVISION
BEJAJI, MANGALURU-575 004
(REPRESENTED BY ITS DIVISIONAL CONTROLLER)
NOW REP. BY ITS CHIEF LAW OFFICER
K.S.R.T.C SHANTHINAGAR
BANGALORE - 560 027.                   ... PETITIONER

(BY SMT. SHWETHA ANAND, ADVOCATE)

AND:

SRI K.SHIVARAM
S/O PARAMESHWARA
AGED ABOUT 59 YEARS
R/AT ONTHANADKA HOUSE
KADABA VILLAGE
PUTTUR TALUK
DAKSHIN KANNADA - 574 201.            ... RESPONDENT
(BY SRI V.S.NAIK, ADVOCATE)

      THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED AWARD DATED 13.04.2016 PASSED BY THE
PRESIDING OFFICER, LABOUR COURT. C/C.IV-ADDL.
DISTRICT AND SESSIONS JUDGE, MANGALORE (D.K) IN
APPLICATION NO.1/2012 AT ANNEX-C.

      THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT, MADE THE FOLLOWING:
                                          W.P.No.17583/2017

                              2



                        ORDER

Heard.

2. Aggrieved by the direction of the Labour

Court to pay compensation of Rs.2,97,120/- with

interest at 6% per annum to the respondent, the

employer has preferred the above petition.

3. The respondent was working as a driver in

the petitioner's organization. On 03.03.2004, during the

course of his duty, the bus driven by him met with an

accident on Bengaluru-Mangaluru route and he suffered

injuries. The medical board issued certificate dated

10.01.2006 stating that due to the said injuries, the

respondent cannot discharge his duty as driver.

4. Admittedly, based on such certificate the

petitioner assigned the respondent alternate light work.

The petitioner treated the respondent's period of

absence from March 2004 to October 2005 as on duty

and paid full salary. Admittedly, the respondent filed

MVC.No.1067/2004 claiming compensation. In that

petition he was awarded compensation of Rs.48,728/-

with interest. The petitioner satisfied the said award.

W.P.No.17583/2017

5. The respondent got issued notice Ex.A-7 to

the petitioner claiming compensation of Rs.5,50,000/-

with interest at 12% per annum under the Employee's

Compensation Act, 1923 (for short 'Act, 1923') on the

ground that he suffered disability during the course of

employment. Then he preferred claim petition before

the Labour Court Mangaluru under Section 33C(2) of

the Industrial Dispute Act, 1947 (for short 'the I.D.Act')

claiming compensation of Rs.5,50,000/- along with

interest at 18% per annum and Silver Medal Allowance

50% per month from 01.04.2004 onwards along with

18% interest.

6. The petitioner contested the said claim on

the ground that since respondent already received

compensation under the Motor Vehicle Act, he is not

entitled to make further claim. It was further contended

that since respondent did not perform the duty of

driver, as per the Circular No.722/1997 he was not

entitled to silver medal allowance. The petitioner also

contested the application on the ground of

maintainability without raising any industrial dispute.

W.P.No.17583/2017

7. The Labour Court by the impugned award

Annexure-C dated 13.04.2016 allowed the claim petition

and awarded Rs.2,97,120/- with interest as aforesaid on

the ground that the respondent can exercise his option

to claim the compensation both under the Motor Vehicle

Act and Workmen Compensation Act. The Labour Court

awarded the silver medal allowance also with effect

from 01.04.2004. The Labour Court did not consider the

question of maintainability of the petition under Section

33C(2) of the I.D. Act.

Submissions of Smt.Shwetha Anand, learned Counsel for the petitioner:

8. Section 33C (1) and (2) of the I.D.Act shall

be read in an integrated and holistic manner. Section

33C (2) of the Act can be invoked only in relation to an

award or the settlement contemplated under Section

33C(1) of the I.D. Act. As the respondent did not

perform the duty of driver, after the accident he was not

entitled to silver medal allowance.

9. In support of her submissions, she relies on

the following judgments:

W.P.No.17583/2017

i) National Building Construction Corporation V.s Pritam Singh Gill and Others1

ii) Municipal Corporation of Delhi V.s Ganesh Razak and Another2

iii) State Bank of India V.s Ram Chandra Dubey and Others3

iv) Kanhaiyalal Vishindas Gidwani V.s Arun Dattatray Mehta and Others4

v) State of U.P and Another V.s Brijpal Singh5

vi) Pentakota Satyanarayana and Others V.s Pentakota Seetharatnam and Others6

vii) National Insurance Co.Ltd V.s Mastan and Another7

viii) A.P.SRTC and Another V.s B.S.David Paul8

ix) K.C.Skaria V.s Govt. of State of Kerala and Another9

x) U.P.State Road Transport Corporation V.s Birendra Bhandari10

xi) D.Krishnan and Another V.s Special Officer, Vellore Cooperative Sugar Mill and Another11

Submissions of Sri V.S.Naik, learned Counsel for the respondent:

10. Section 33C(2) of the I.D. Act is an

independent provision and need not be preceded by an

award. Irrespective of workmen getting compensation

(1972) 2 SCC 1

(1995) 1 SCC 235

(2001) 1 SCC 73

(2001) 1 SCC 78

(2005) 8 SCC 58

(2005) 8 SCC 67

(2006) 2 SCC 641

(2006)2 SCC 282

(2006)2 SCC 285

(2006) 10 SCC 211

(2008) 7 SCC 22 W.P.No.17583/2017

under the Motor Vehicle Act, he is entitled to claim

under the Act, 1923.

11. In support of his submissions, he relies on

the following judgments:

           i)      Punjab    National       Bank      Ltd   V.s

                   K.L.Kharbanda .

           ii)     Lenox     Photo   Mount       Manufacturing
                   Company     Madurai V.s      Labour   Court

                   Madurai
           12.     Above      submissions          show     that

maintainability of the claim petition under Section

33C(2) of the I.D. Act is the main question. The

question of considering whether the workman can claim

remedies under the Motor Vehicle Act as well as the

Employee's Compensation Act, 1923 arises only if the

question of maintainability is held in his favour.

13. It is contended that Section 33C (2) of the

I.D Act can be invoked only when there is award and by

way of execution of such award.

14. Section 33C (1) and (2) of the I.D Act which

are relevant for the purpose of this case read as follows:

AIR1963 SC 487

1965 (2) LLJ page 423 W.P.No.17583/2017

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 VA or Chapter VB, 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 the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which the 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 applicant 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."

W.P.No.17583/2017

15. Section 33C(2) of the I.D. Act refers to any

amount due to workman. Section 33C(1) of the I.D. Act

speaks of any amount due to workman under the

settlement or award under the provision of Chapter 5-A

or 5-B of the I.D. Act.

16. The respondent claimed that he was entitled

to claim the amount due to the injuries suffered by him

during the course of employment. Therefore his claim

was under the Act, 1923. In such event the claim lies

before the Employee's Compensation Commissioner and

not before the Labour Court.

17. The larger bench of Hon'ble Supreme Court

in para 12 of the judgment in Municipal Corporation of

Delhi's case referred to supra in this regard held as

follows:

"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 under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then W.P.No.17583/2017

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 recognised 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.

(Emphasis supplied)

18. Similarly in para No.8 of the judgment in

State of U.P. and Another Vs Brijpal Singh's case raised

the point whether the Labour Court had jurisdiction to

entertain and decide the claim under Section 33C(2) of

the I.D Act which is not preceded by an award or

settlement and considered the same. In para No.10 of

the judgment it was held as follows:

10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 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 Pvt. Ltd. Vs. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 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 employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to W.P.No.17583/2017

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 under Section 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 under Section 10 of the Act."

(Emphasis supplied)

19. In para-13 of the judgment it was held that

the Labour Court had no jurisdiction to adjudicate the

claim made by the Workman under Section 33C (2) of

the I.D Act in an undetermined claim and until such

adjudication is made by the appropriate forum. The

same view is reiterated in other judgments.

20. Reading of the judgment in Punjab National

Bank Ltd's case relied by the learned Counsel for the

respondent shows that the application in the said case

was preceded by an award. Therefore the said judgment

cannot be justifiably applied to the facts of the present

case.

W.P.No.17583/2017

21. In view of the specific forum provided under

the Act, 1923, the Labour Court had no jurisdiction to

entertain the claim petition. Though the Workman

suffered certain disability, the question was due to such

disability, whether there was loss of earning. Admittedly