The Chief Security & Vigilance ... vs Sri M Venkataswamy
2023 Latest Caselaw 4424 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 14TH DAY OF JULY, 2023

                         BEFORE

        THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

        WRIT PETITION No.4344/2018 (L-KSRTC)

BETWEEN:

THE CHIEF SECURITY & VIGILANCE OFFICER,
BMTC, CENTRAL DIVISION,
K.H. ROAD, SHANTHINAGARA,
BANGALORE - 560 027.
HEREIN REPRESENTED BY
THE CHIEF LAW OFFICER, B.M.T.C.,
CENTRAL OFFICES, K.H. ROAD,
SHANTHI NAGAR,
BENGALURU - 560 027.                         ... PETITIONER

(BY SRI B.L. SANJEEV, ADVOCATE)

AND:

SRI M. VENKATASWAMY REDDY
S/O. MUNISWAMY REDDY,
AGED ABOUT 53 YEARS,
R/O. NO.332/4, HALASAHALLI ROAD,
NEAR VAGDEVI SCHOOL,
VARTHUR,
BENGALURU - 560 087.                       ... RESPONDENT

(BY SRI L. SHEKAR, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS OF THE PROCEEDINGS OF THE III ADDL. LABOUR
COURT,    BANGALORE    PERTAINING   TO   IN  APPLICATION
NO.30/2015, WHICH HAS CULMINATED IN ITS ORDER DATED
08.09.2017 VIDE ANNEXURE-C; QUASH THE ORDER DATED
08.09.2017 PASSED BY THE III ADDL. LABOUR COURT,
BANGALORE IN APPLICATION NO.30/2015 VIDE ANNEXURE-C.
                               -2-

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 12/06/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                          ORDER

The petitioner - Corporation is assailing the order

in Application No.30/2015 dated 08.09.2017 on the file

of III Addl. Labour Court, Bangalore.

2. The petitioner herein is termed as the

Corporation and the respondent as the workman.

3. The brief facts of the case are that, the

workman was working as a driver under the

Corporation and for his unauthorized absence for duties

was issued article of charges and conducted an enquiry

in accordance with C & D Regulations of the

Corporation, wherein the workman was found guilty of

the charges leveled against him and the Disciplinary

Authority by the impugned order dismissed the

workman from service. After lapse of six years from

the date of the dismissal order, the respondent -

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

the Industrial Disputes Act, 1947 ("the ID Act" for

short) seeking a direction to the respondent

Corporation to pay an amount of Rs.9,45,624/- with

interest at the rate of 24% from the date of dismissal

i.e., 29.08.2008 to 01.06.2015 on the basis of his last

drawn salary. The Labour Court by the impugned

order, allowed the application and directed the

Corporation to calculate and pay the salary to the

respondent-workman from 29.08.2008 to 01.06.2015.

Aggrieved by which, the present petition by the

Corporation.

4. Heard Sri B.L.Sanjeev, learned counsel for

the petitioner - Corporation and Sri L.Shekar, learned

counsel for the respondent - workman.

5. Learned counsel for the Corporation would

contend that the application under Section 33-C (2) of

the ID Act claiming wages from the date of dismissal

with interest at 24% is not maintainable as the

proceedings under Section 33-C(2) of the ID Act are in

the nature of execution proceedings, which envisage a

prior adjudication or recognition of the claim of the

workman, by the employer and the wages has to be

paid at the rate, which they claim computation and

when the basis of their claim is disputed, the remedy

under Section 33-C(2) of the ID Act is not available to

the workman. It is further stated that, if there is any

violation of Section 33(2)(b) of the ID Act, the

workman is at liberty to file necessary application under

Section 33-A of the ID Act and the claim petition filed

by the workman under Section 33-C(2) of the ID Act is

not maintainable as the order of dismissal existed as on

the date of filing an application under Section 33-C(2)

of the ID Act. It is further contended that Section 33-

C(2) of the ID Act is applicable only where an amount

has already been determined by a competent court or

any other authority, whereas in the present case, the

amount sought by the workman has not been

determined by any Court of law. In support of his

contention, learned counsel has relied upon the

following judgments:

(i) Prabhakar vs. Joint Director, Sericulture

Department and another [(2015)15 SCC 1] (Special

Leave Petition (C) No.27080/2015) (Prabhakar);

(ii) Karnataka State Road Transport Corporation vs.

C.V.Venkataravana [W.P.No.24649/2016 disposed of

on 16/04/2021] (Karnataka State Road Transport

Corporation vs. C.V.Venkataravana);

(iii) C.V.Venkataramana vs. K.S.R.T.C. [W.A.

No.541/2021] (C.V.Venkataravana).

6. Per contra, learned counsel for the

Corporation would justify the order passed by the

Labour Court and would contend that the order of

dismissal from the service is nonest as on the date of

passing of the order in ID.No.148/2005, which was

pending and the petitioner had not taken any approval

of the order of dismissal under Section 33(2)(b) of the

ID Act and as such, an application under Section 33-

C(2) of the ID Act is maintainable. Learned counsel

would further contend that the workman has filed an

application seeking for wages from the date of his

dismissal on the ground that since the order of

dismissal from service is nonest for the violation of

Section 33(2)(b) of the ID Act as there is no order of

dismissal against the workman and is deemed to be in

service and as such, he is entitled for wages from the

date of dismissal and the application has been rightly

entertained by the Labour Court and the same does not

call for any interference. In support of his contention,

learned counsel has relied upon the following

judgments:

(i) Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs.

Ram Gopal Sharma & others [(2002)2 SCC 244] (Jaipur

Zila Sahakari Bhoomi);

(ii) Duncan Engineering Ltd. & others vs. Ajay C.

Shelke & others [2021-III-LLJ-295 (Bom) (Duncan

Engineering Ltd).

7. Having heard learned counsel for the

petitioner - Corporation and the learned counsel for the

respondent - workman, the point that arises for

consideration is,

"Whether the respondent - workman can file an application under Section 33-C(2) of the ID Act in the absence of any challenge of the order of dismissal or in the absence of an application filed by the Corporation to seek for approval of the order of dismissal under Section 33(2)(b) of the ID Act?"

8. The undisputed facts are that the respondent

- workman has remained unauthorisedly absent from

duties and the Disciplinary Authority after conducting

enquiry found the workman guilty of the charges

leveled against him and the Disciplinary Authority had

dismissed him from service on 29.08.2008. The

contention of the respondent - workman is that the

order of dismissal dated 29.08.2008 was not approved

in terms of Section 33(2)(b) of the ID Act. Therefore,

the order of dismissal is non est in the eye of law and

consequently, the respondent - workman has filed an

application under Section 33-C(2) of the ID Act to

compute that the workman is entitled to receive a sum

of Rs.9,45,624/- from 29.08.2008 to 01.06.2015 as

arrears of wages. At this stage, it is necessary to

examine Section 33-C(2) of the ID Act in deciding

whether the workman's application is maintainable or

not? As on the date of filing of the application under

Section 33-C(2) of the ID Act, there was no relationship

of employer and the employee between the parties and

Section 33-C(2) of the ID Act reads as under:

"33C. Recovery of money due from an employer.--(1) x x x

(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."

The perusal of Section 33-C(2) of the ID Act

makes it evident that there should be a relationship of

employee and employer and in the absence of

challenge of the order of dismissal dated 29.08.2008

before the appropriate forum, the application filed

under Section 33-C(2) of the ID Act would not be

maintainable. The ingredients of Section 33-C(2) of the

ID Act clearly envisages that, it is in the nature of

execution proceeding, and the same envisages a prior

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adjudication or recognition by an employer of the claim

of the workman to be paid wages at the rate which they

claim. The Co-ordinate Bench of this Court in

Karnataka State Road Transport Corporation vs.

C.V.Venkataravana and the same was confirmed by

the Division Bench of this Court in the case of

C.V.Venkataravana, this Court has held that the

Labour Court was not justified in entertaining the

application filed by the workman under Section 33-C(2)

of the ID Act on the ground that the management had

not filed application seeking for approval under Section

33(2)(b) of the ID Act, since the workman was

dismissed from service and the same was not

challenged by the workman in accordance with law.

9. The Apex Court in the case of Central

Inland Water Transport Corporation Ltd. vs. The

Workmen & another [1974 (4) SCC 696] (Central

Inland Water Transport Corporation) at para Nos.11 to

16 has held as under:

- 11 -

"11. The only question which arises for determination in this Court is whether the Labour Court has jurisdiction to adjudicate on the issues referred to it under Section 33C (2) of the Industrial Disputes Act. Sub-section(2), which is part of section 33C dealing with "the recovery of money due from an employer" reads as follows:

"(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."

      12.     It     is    now   well-settled           that   a
proceeding         under    section         33C   (2)     is   a

proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of

- 12 -

being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer East India Coal Co. Ltd. v. Rameshwar, (1968) 1 SCR 140 = (AIR 1968 SC 218) it was reiterated that proceedings under Section 33C (2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the position of an executing court. It was also reiterated that the right 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 an industrial workman and his employer.

13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's

- 13 -

liability, if any. The working out of such liability with a view to give relief is generally regarded as the function or an execution proceeding. Determination no. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under section 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and (ii) 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and

(ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is

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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. It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L. Khandelwal, (1968) 2 Lab LJ 589 (SC), 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 an existing right and which can be appropriately the subject matter of an Industrial Dispute which requires a reference under Section 10 of the Act.

14. The scope of Section 33C (2) was illustrated by this court in Central Bank of India Ltd. v. P.S. Rajagapalan, (1964) 3 SCR 140 = (AIR 1964 SC 743). Under the Shastri Award,

- 15 -

Bank clerks operating the adding machine were declared to be entitled to a special allowance of Rs.10/- per month. Four clerks made a claim for computation before the Labour Court. The Bank denied the claim that the clerks came within the category referred to in the award and further contended that the Labour Court under Section 33C (2) had no jurisdiction to determine whether the clerks came within that category or not. Rejecting the contention, this Court held that the enquiry as to whether the 4 clerks came within that category was purely 'incidental' and necessary to enable the Labour Court to give the relief asked for and, therefore, the court had jurisdiction to enquire whether the clerks answered the description of the category mentioned in the Shastri Award, which not only declared the right but also the corresponding liability of the Employer bank. This was purely a case of establishing the identity of the claimants as coming within a distinct category of clerks in default of which it would have been impossible to give relief to anybody falling in the category. When the Award mentioned the category it, as good as, named every one who was covered by the category and hence the enquiry, which was necessary, became limited only to the clerks'

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identity and did not extend either to a new investigation as to their rights or the Bank's liability to them. Both the latter had been declared and provided for in the Award and the Labour Court did not have to investigate the same. Essentially, therefore, the assay of the Labour Court was in the nature of a function of a court in execution proceedings and hence it was held that the Labour Court had jurisdiction to determine, by an incidental enquiry, whether the 4 clerks came in the category which was entitled to the special allowance.

15. It is, however, interesting to note that in the same case the court at page 156 gave illustrations as to what kinds of claim of a workman would fail outside the scope of section 33C (2). It was pointed out that a workman who is dismissed by his employer would not be entitled to seek relief under section 32C (2) by merely alleging that, his dismissal being wrongful, benefit should be computed on the basis that he had continued in service. It was observed:

"His..........dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has

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dismissed..........him, a claim that the dismissal..........is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under S. 33C (2)."

By merely making a claim in a loaded form the workmen cannot give the Labour Court jurisdiction under Section 33C (2). The workman who has been dismissed would no longer be in the employment of the employer. It may be that an industrial tribunal may find on an investigation into the circumstances of the dismissal that the dismissal was unjustified. But when he comes before the Labour Court with his claim for computation of his wages under Section 33C (2) he cannot ask the Labour Court to disregard his dismissal as wrongful and on that basis compute his wages.

16. In such cases, a determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and computation of wages just consequential upon such adjudication. It would be wrong to consider the principal adjudication as 'incidental' to the computation. Moreover, if we assume that the

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Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have no jurisdiction to direct reinstatement under Section 33C (2). And yet if the jurisdiction to compute the benefit is conceded it will be like conceding it authority to pass orders awarding wages as many time comes before it without being reinstated. Therefore, the Labour Court exercising jurisdiction under Section 33C (2) has got to be circumspect before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, incidental to its computation of a benefit under an existing right, which is its principal concern."

(emphasis supplied)

10. In another judgment of the Apex Court in

the case of Municipal Corporation of Delhi vs.

Ganesh Razak and another [(1995) 1 SCC 235]

(Ganesh Razak) at para Nos.8, 12 and 13 has held as

under:

"8. Reference may be made first to the Constitution Bench decision in Central Bank of

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India Ltd. v. P.S. Rajagopalan on which Shri Rao placed heavy reliance. That was a case in which the question of maintainability of proceedings under Section 33-C(2) of the Act was considered in a claim made by the workmen on the basis of the Sastry Award. The employer disputed the claim of the workmen on several grounds including the applicability of Section 33-C(2) of the Act. It was urged that since the applications involved a question of interpretation of the Sastry Award, they were outside the purview of Section 33-C(2) because interpretation of awards or settlements has been expressly provided for by Section 36-A. This objection was rejected. This Court pointed Out the difference in the scope of Section 36-A and Section 33- C(2) indicating that the distinction lies in the fact that Section 36-A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33- C(2); and whereas Section 33-C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36-A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and tile employer and the appropriate Government is

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satisfied that the dispute deserves to be resolved by reference under Section 36-A. In this context, this Court also indicated that the power of the Labour Court in a proceeding under Section 33-C(2) being akin to that of the Executing Court, the Labour Court is competent to interpret the award or settlement on which a workman bases his claim under Section 33-C(2), like the power of the Executing Court to interpret the decree for the purpose of execution. Relevant extract from that decision is as under: (SCR pp. 154-155)

"Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the Executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the Executing Court, the Labour Court would also be competent to interpret the award or settlement on

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which a workman bases his claim under Section 33-C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under Section 33-C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests."

This decision itself indicates that the power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the workman's right rests, like the Executing Court's power 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 determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents.

x x x

12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly

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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 33-C(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 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by tile 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 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.

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

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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 Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 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 petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring 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

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as the High Court were in error in treating as maintainable the applications made Linder Section 33-C(2) of the Act by these respondents."

11. The Apex Court in the cases of Central

Inland Water Transport Corporation and Ganesh

Razak stated supra has laid down the proposition that

where the very basis of the claim or entitlement of the

workman to a certain benefit is disputed, there being

no earlier adjudication or recognition by the employer,

the dispute relating to entitlement is not identical to the

benefit claim and is therefore outside the scope of

proceedings under Section 33-C(2) of the ID Act and

the Labour Court has no jurisdiction to first decide the

workman's entitlement and then proceed to compute

the benefit so adjudicated on the basis of the exercise

of its power under Section 33-C(2) of the ID Act.

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12. Thus, in the present case, the Labour Court

has no jurisdiction to first decide the workman's

entitlement and then proceed to compute the benefit so

adjudicated in exercise of its power under Section 33-

C(2) of the ID Act. In light of the judgments stated

supra, the application filed under Section 33-C(2) of the

ID Act is not maintainable as there is no adjudication of

right of the petitioner's claim and the mere non-

approval in terms of Section 33(2)(b) of the ID Act

does not give right to the workman to file an

application under Section 33-C(2) of the ID Act. It is

well settled that the workman can proceed under

Section 33-C(2) only after the Tribunal has adjudicated

on a complaint under Section 33-A or on a reference

under Section 10 that the order of discharge or

dismissal was not justified and has set aside the order

and reinstated the workman, as held by the Apex Court

in Ganesh Razak's case stated supra and the

proceedings under Section 33-C(2) is a proceedings in

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the nature of executing proceeding. The judgments

relied by the respondent's counsel in the cases of

Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. and

Duncan Engineering Ltd. are not applicable to the

present case on hand since, the judgments referred do

not relate to filing of application under Sub-Section C

(2) of Section 33 of the ID Act. Accordingly, the

application filed under Section 33-C(2) of the ID Act is

not maintainable before the Labour Court and hence,

the point framed for consideration is answered

accordingly and this Court pass the following:

ORDER

(i) Writ petition is allowed.

(ii) The impugned order passed in Application

No.30/2015 dated 08.09.2017 on the file of III

Addl. Labour Court is hereby set aside.

SD/-

JUDGE

S*