Madras High Court
Bharath Petroleum Corporation vs The Presiding Officer on 10 January, 2022
W.P.(MD)No.9571 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.01.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.9571 of 2012
and
M.P.(MD)Nos.1 of 2012 and 1 of 2014
Bharath Petroleum Corporation
Limited,
Through its Manager Ganapathy,
23D, S.N.High Road,
Tirunelveli. ... Petitioner
vs.
1.The Presiding Officer,
Labour Court,
Tirunelveli.
2.A.Uchimakalli ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records relating to the proceedings of
the first respondent in Claim Petition No.52 of 2008, dated 20.02.2012 and to
quash the same.
For Petitioner : Mr.P.Balamurugan
for Jeyapaul Associates
For R1 : Labour Court
For R2 : Mr.S.M.Mohan Gandhi
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.9571 of 2012
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorari, to call for
the records relating to the proceedings of the first respondent in Claim Petition
No.52 of 2008, dated 20.02.2012 and to quash the same.
2.The second respondent was working as Pump Operator under the
petitioner Corporation. The second respondent voluntarily absented from duty
from 07.04.2007 without any intimation. Thereafter, the second respondent filed
a Claim Petition under Section 33C(2) of the Industrial Disputes Act, 1947,
claiming Rs.64,584/- (Rupees Sixty Four Thousand Five Hundred and Eighty
Four only) payable as overtime wages for the period between April 2004 to
March 2007. The case of the second respondent is that since he was working as a
Pump Operator for a monthly salary of Rs.2,596/- (Rupees Two Thousand Five
Hundred and Ninety Six only) for the past ten years and the petitioner Company
is covered under the Minimum Wages Act, the Company is liable to pay overtime
wages for three years between April 2004 to March 2007. Since the petitioner
Corporation refused to pay the same and dismissed the second respondent with
effect from 07.04.2007, the second respondent filed a Claim Petition before the
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W.P.(MD)No.9571 of 2012
Labour Court.
3.The learned Counsel appearing for the petitioner Corporation
submitted that the appropriate Government is Central Government and the second
ground that was canvassed was that no petition was filed to quantify the amount
as stated in Section 33C(2). However, rejecting this contention, the Labour Court
has passed an award. Aggrieved over the same, the petitioner Corporation has
filed this Writ Petition.
4.The second respondent had filed a petition seeking to withdraw the
50% of the award amount and the petition is still pending. The second
respondent reiterated the contention stated before the Labour Court.
5.Heard MrP.Balamurugan, learned Counsel appearing for the petitioner
and Mr.S.M.Mohan Gandhi, learned Counsel appearing for the second
respondent.
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W.P.(MD)No.9571 of 2012
6.The first contention of the petitioner Corporation is that the petitioner
Corporation is Central Government and therefore, the second respondent cannot
invoke the jurisdiction of Labour Court. However, the said contention is rejected,
since the petitioner Corporation is Bharath Petroleum Corporation Limited, which
is only an undertaking of Central Government and the Corporation cannot be
considered as Central Government. The second contention raised by the
petitioner is that a petition ought to be filed to establish his right and thereafter
quantify. Then only, the Claim Petition can be filed under Section 33C for
recovering the amount from the employer. Under 33 C Subclause 2, the provision
states:
"33-C: (2) Where any workman is entitled to receive from the
employer any money or benefit which is capable to 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
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W.P.(MD)No.9571 of 2012
further period as he may think fit.
(3) For the purposes of computing the money value of a
benefit, the Labour Court may, if it so thinks fit, appoint a
Commissioner who shall, after taking such evidence as may be
necessary, submit a report to the Labour Court and the Labour
Court shall determine the amount after considering the report of the
Commissioner and other circumstances of the case."
7. It has been specifically stated under sub clause 3 that for the purpose
of computing the money value, the Labour Court shall appoint a Commissioner
and the Commissioner by taking evidence if necessary, then ought to submit the
report before the Labour Court. Thereafter, the Labour Court shall determine the
amount.
8. The Learned Counsel appearing for the 2nd respondent has relied on a
judgment rendered by the Andhra Pradesh High Court in Rajendranagar
Municipality Vs. B.V. Perraju and Others dated 14.07.1995 reported in 1995 (2)
ALT 320 wherein it is stated in the said judgment that in effect, a benefit
conferred on a workman in a statute even if denied, could be an existing right
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W.P.(MD)No.9571 of 2012
which could be entertained and determined under section 33 (C) (2) of the
Industrial Disputes Act. The equation and analogy similarly applies to the claim
of a workman for overtime wages under the provision. However, in the same
judgment it has been stated that,
“the enquiry under section 33 (C) (2) in such cases would have to
be preceded by an enquiry into the existence of the right and such
an enquiry is incidental to the main determination which has been
assigned to the Labour Court by sub section (2)”.
9.The “preceded by an enquiry into the existence of the right” is covered
under 33 (C) (3), wherein it has been clearly stated that for computing the money
value of a benefit the Labour Court ought to appoint a Commissioner who shall,
after taking such evidence as may be necessary, submit a report to the Labour
Court and the Labour Court shall determine the amount after considering the
report of the Commissioner and other circumstances of the case.
10. Therefore the determination under 33 (C) (3) is sine qua non to allow
the claim petition filed under 33 (C) (2). Since this has not been followed by the
Labour Court in the present case, this Court deems it fit to remit the matter back
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W.P.(MD)No.9571 of 2012
to the Labour Court. The second respondent is at liberty either to file a fresh
petition or to file any interlocutory petition. The Labour Court is directed to
determine the entire issue under 33 (C) (3) first and then determine the claim
petition under 33 (C) (2). Since the Claim Petition is in the year 2007, the Labour
Court is directed to complete the said exercise within a period of twelve weeks
from the date of receipt of a copy of this order.
11.Accordingly, the Writ Petition is disposed of with the above direction.
No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 10.01.2022
Internet : Yes
Tmg
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the Advocate/litigant
concerned.
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W.P.(MD)No.9571 of 2012
S.SRIMATHY, J
Tmg
To
The Presiding Officer,
Labour Court,
Tirunelveli.
Order made in
W.P.(MD)No.9571 of 2012
10.01.2022
https://www.mhc.tn.gov.in/judis
