Orissa High Court
Executive Engineer vs Presiding Officer on 8 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.1525 of 2011
Executive engineer, Telingiri .... Petitioners
Head Works Division, Jeypore,
Koraput and others
Mr. D. Nayak, AGA
-versus-
Presiding Officer, Labour Court .... Opposite Parties
Jeypore and others
Mr. Achyutananda Routray, Advocate for Opposite Parties 2
to 5, 7, 8, 10 and 11
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K.PATTANAIK
Order No. ORDER
08.08.2022
11. 1. The Executive Engineer, Telingiri Head Works Division,
Jeypore, Koraput has in this petition challenged an order dated 7th
April 2010 passed by the Labour Court, Jeypore, Koraput in I.D.
Misc. Case No.38 of 2008 under Section 33-C (2) of the
Industrial Disputes Act, 1947 (ID Act) whereby the Labour Court
has directed to pay Rs.19,04,422/- to the Petitioners, who were
ten in number as per the calculation sheet filed by the Opposite
Parties herein, who were Non Muster Role (NMRs) workers
from 1977 onwards.
2. While directing notice to issue in the present petition on 17th
February 2011, this Court stayed the operation of the impugned
order.
3. Subsequently, by an order dated 28th February 2011, as agreed
to by the parties, so far as Opposite Parties 1 to 5, 7, 8, 10 to 13,
the present writ petition was in fact allowed and the impugned
order of the Labour Court was set aside. The petition was
continued only as far as the legal representatives (LRs) of the
deceased Opposite Parties 6 and 9.
4. The Court has heard the submissions of learned counsel for the
parties.
5. It is pointed out by Mr. D. Nayak, learned Additional
Government Advocate for the Petitioners states that as regards
the Telingiri Head Works Project, the present Opposite Parties
had field OJC No.871 of 1991. While disposing of the said writ
petition by the judgment dated 6th March 1992, this Court issued
certain directions for their absorption in other projects.
Interestingly, in the aforementioned judgment of the Court, it was
specifically stated that the said petition did not involve the
question of either regularization of the NMRs or the issue of
equal pay for equal work performed by their contemporary
regular workers.
6. Aggrieved by the above judgment dated 6th March 1992, the
State filed Civil Appeal No.7342 of 1993 and other connected
appeals in the Supreme Court of India, which came to be allowed
by judgment dated 29th October, 2002 holding that the NMRs
would not be entitled to pay equal to that of regular employed
staff till they were regularized and taken as permanent members
of the establishment. However, it was held that "they would be
entitled to be paid only at the rate of the minimum wages
prescribed or notified."
7. Meanwhile the writ petitions filed in this Court by some other
NMR workers were transferred to the Odisha Administrative
Tribunal (OAT) and numbered as TA No.47 of 1993 and TA
No.54 of 1993. These TAs were disposed of by separate orders
by the OAT allowing the prayers of the applicants. The present
Opposite Parties were not Petitioners in either of those
applications. After the judgment of the Supreme Court, the
present Opposite Parties filed a representation dated 22nd March
2007 seeking the same reliefs as granted to the applicants in TA
Nos. 47 and 54 of 1993. According to Mr. Nayak, their
representations were rejected only because they were not parties
to either TA No.47 of 1993 or TA No.54 of 1993.
8. It is seen that the present Opposite Parties straightway
approached the Labour Court thereafter with an application under
Section 33-C (2) of the ID Act notwithstanding the rejection of
their representation. They computed certain amounts due to them.
The solitary witness examined by them was not cross-examined
by the present Petitioners. On that sole ground in the impugned
order, the Labour Court allowed the application and issued the
directions as noticed hereinbefore.
9. Learned counsel for the Petitioners is right in his contention
that without there being actually a determination of claim by the
Tribunal, the Labour Court could not have straightway
entertained an application under Section 33-C(2) of the ID Act.
The law in this regard is well settled. In M/s. Bombay Chemical
Industries v. Deputy Labour Commissioner [decision dated 4th
February 2022 of the Supreme Court of India in C.A. No. 813 of
2022] it was held as under:
"As per the settled preposition of law without prior
adjudication or recognition of the disputed claim of the
workmen, proceedings for computation of the arrears of
wages and/or difference of wages claimed by the
workmen shall not be maintainable under Section
33(C)(2) of the Industrial Disputes Act. (See Municipal
Corporation of Delhi Vs. Ganesh Razak and Anr. (1995)
1 SCC 235)"
10. Consequently, this Court has no hesitation in setting aside the
impugned order in so far as it directs payment of the determined
wages in terms of the calculation filed by Opposite Parties 6 and
9. Nevertheless, the claim of minimum wages as directed by the
Supreme Court in the judgment noted hereinbefore will still have
to be considered on its merits by the present Petitioners
notwithstanding that they may not have joined the applicants in
TA Nos.47 or 54 of 1993.
11. If the LRs of Opposite Parties 6 and 9 make such
representation for payment of minimum wages for the work
actually performed not later than 5th September 2022, it shall be
considered on its merits by the present Petitioners
notwithstanding that Opposite Parties 6 and 9may not have been
parties to TA Nos.47 or 54 of 1993, or the rejection of earlier
representation and communicate the decision to the LRs of
Opposite Parties 6 and 9 within a period of three months
thereafter.
12. The writ petition is disposed of in the above terms.
(Dr. S. Muralidhar)
Chief Justice
(R.K.Pattanaik)
Judge
M. Panda
