Uttarakhand High Court
M/S Uttam Sugar Mills Ltd vs Manoj Kumar on 15 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.1631 of 2019 (M/S)
M/s Uttam Sugar Mills Ltd. ...Petitioner
Vs.
Manoj Kumar ....Respondent
With
Writ Petition No.1695 of 2019 (M/S)
M/s Uttam Sugar Mills Ltd. ...Petitioner
Vs.
Manoj Kumar ....Respondent
With
Writ Petition No.1696 of 2019 (M/S)
M/s Uttam Sugar Mills Ltd. ...Petitioner
Vs.
Manoj Kumar ....Respondent
With
Writ Petition No.1760 of 2019 (M/S)
M/s Uttam Sugar Mills Ltd. ...Petitioner
Vs.
Bharatveer Singh ....Respondent
With
Writ Petition No.1762 of 2019 (M/S)
M/s Uttam Sugar Mills Ltd. ...Petitioner
Vs.
Bharatveer Singh ....Respondent
2
With
Writ Petition No.1766 of 2019 (M/S)
M/s Uttam Sugar Mills Ltd. ...Petitioner
Vs.
Bharatveer Singh ....Respondent
Advocate : Mr. Siddhant Manral, Advocate for the petitioner.
Mr. Ashutosh Thakral, Advocate for the respondent.
Hon'ble Sharad Kumar Sharma, J.
These are the bunch of six writ petitions, which entails a
consideration of common question of fact and law, hence, they are being
decided together. To be precise, the particulars involved in each of the writ
petitions are being given in the form of a schedule of chart herein below:-
Sr.No. Writ Misc. Case Post Period 33 C(2) Filed Amount
Petition Claimed
1. 1631 of 20 of 2018 Fitter 2 02.11.2016 33 C(2) filed on Rs.87,387/-
2019 to 22.03.2018
23.04.2017
2. 1695 of 19 of 2018 Fitter 2 29.11.2015 33 C(2) Rs.66,006/-
2019 to
17.04.2016
3. 1696 of 36 of 2015 Secondary 09.12.2014 Rs.63,175/-
2019 Fitter to
(Weighing) 11.04.2015
4. 1760 of 35 of 2015 Held 09.12.2014 33C(2)15.10.2015 Rs.
2019 Weighment to 62,321/-
Clerk 11.04.2015
5. 1762 of 22 of 2018 Weighment 29.11.2015 33 C(2) Rs.66,006/-
2019 Clerk to
17.04.2016
6. 1766 of 21 of 2018 Weighment 02.11.2016 27.03.2018 Rs.83,387/-
2019 Clerk till
23.04.2017
2. Before venturing to answer the argument which had been
extended by the learned counsel for the petitioner, this Court feels it to be
apt to observe that the petitioners being aggrieved against the judgment of
learned Single Judge, which was, rendered on 17.05.2019, as passed in
Writ Petition No.134 of 2013, Writ Petition No.145 of 2013, Writ Petition
No.155 of 2013 and Writ Petition No.189 of 2013, as having rendered
infructuous and simultaneously by disposing of the Writ Petition No.362 of
2017, the appellant/petitioners had preferred the Special Appeal Nos.662
of 2019 and 660 of 2019. The aspect pertaining to dismissing the aforesaid
four writ petitions by the aforesaid judgment of Single Judge dated
17.05.2019, as having rendered infructuous, was in the light of the
observations, which was made by the learned Single Judge in terms of para
3 and 4 of the judgment, which is extracted hereunder:-
"3. In the writ petitions pertaining to the year 2013 i.e.
Writ Petition (M/S) No.134 of 2013, Writ Petition (M/S) No.145 of
2013, Writ Petition (M/S) No.155 of 2013 and Writ Petition (M/S)
No.189 of 2013, the order dated 08.09.2012 passed by the State
Government under Section 3(b) of the U.P. Industrial Disputes Act,
1947 increasing the wages of the workers of the sugar factory has
been challenged. No order is being passed in these writ petitions.
For all practical purposes these writ petitions have become
infructuous. The reason being that during the pendency of these
writ petitions, another order dated 29.12.2016 has been passed
by the State Government under Section 3(b) of the U.P.
Industrial Disputes Act, 1947, which is also under challenge.
4. Consequently, Writ Petition (M/S) No.134 of 2013,
Writ Petition (M/S) No.145 of 2013, Writ Petition (M/S) No.155 of
2013 and Writ Petition (M/S) No.189 of 2013 are dismissed as
having been rendered infructuous."
3. Ultimately, on the basis of the finding, which was recorded by
the learned Single Judge, the Special Appeal was preferred by the
petitioner being Special Appeal No.662 of 2019, which was also dismissed
by the Division Bench, by the judgment of 04.01.2021. Hence, as far as the
challenge given therein to the decision taken by the Wage Board for
revision of the wages payable to the workman to the Order of 08.09.2012
by State U/s 3(a) of U.P. Industrial Disputes Act, has been laid to rest qua
the petitioners, who were the appellants in the Special Appeals referred
above.
4. The brief facts, which now engages consideration in each of
the writ petition, are that the petitioner admittedly, is an Industry as
defined under Section 2(K) of the U.P. Industrial Disputes Act, 1947 and
the claim raised therein by the respective workman by registration of their
respective Misc. Cases, as detailed above was by invoking the provisions
contained under Section 33-C(2) of the Industrial Disputes Act, 1947
(Central) for the purposes of grant of the benefit of the revised pay scale as
was notified to be made applicable, on the manufacturers of "Crystal
Refined Sugar", which was being manufactured by the petitioners' plant,
which is situated at Bareilly, Roorkee, District Haridwar. The revision of
the wages as was made payable to the workman was enforced by virtue of
the notification which was issued by the State, being Notification
No.1110/VIII-12-55 dated 21.08.2012, which was published under Section
3(b) of the U.P. Industrial Disputes Act, 1947, entitling the workmen's
working therein for the increased revised wages and since the period
during which the said notification was being enforced, the increased wages
for the respective periods, as had been detailed above, in the schedule since
was not paid, the petitioners have agitated their respective claim by
invoking the provisions contained under Section 33-C(2) of the Industrial
Disputes Act of 1947.
5. On reference of the Industrial dispute under Section 33-C(2),
for the purposes of deriving the benefit of the notification of enforcing the
recommendation of Wage Board, by revising the wages payable to the
workman, the matter was considered by the learned Labour Court in detail
and the same has been decided by the impugned awards, which are under
challenge, in the respective writ petitions. When the notices were issued to
the workmen on the initiation of proceedings under Section 33-C(2), the
workman, as well as, the employer/petitioner had filed their respective
written statements and the solitary preliminary objection, which was
enforced by the petitioner during the course of the argument before the
learned Labour Court, was to the effect that since the workman falls to be a
workman falling within the definition of workman provided under Section
2(Z) of U.P. Industrial Disputes Act and hence the enforceability of the
provisions of the Wage Board, as recommended by the Notification of
21.08.2012, could have only be enforced by the workman by raising a
claim by initiating the proceedings under Section 6(H)(2) of the U.P.
Industrial Disputes Act; instead of invoking the provisions contained under
Section 33-C(2) of Industrial Disputes Act, which was a provision
provided under the Central legislation and as per the contentions, which
were raised by the petitioners in the written statement, which was
submitted by them before the learned Labour Court on 18.05.2018, they
denied the applicability of the provisions of Section 33(C)(2); for the
purposes of enforcement of revised pay scale made applicable by the
Notification of 21.08.2012. Apart from that and particularly during the
course of argument on these writ petitions, for the first time, the counsel
for the petitioners Mr. Siddhant Manral, had submitted that the right of the
workman or even his or her entitlement, to get the wages on the basis of
the recommendation of the Sugar Wage Board by the Notification of
21.08.2012 were disputed before the Labour Court and since the
applicants therein were not having any existing right, they were not
entitled for the benefit of Notification of 21.08.2012. Ultimately, on
exchange of pleadings, the learned Labour Court, while dealing with the
respective stand, which was taken in the written statement, particularly, the
petitioners/employer, wherein they have admitted that since they being
engaged in manufacturing the sugar under the vacuum pan process, they
would fall to be an Industry under Section 2 (K) of the U.P. Industrial
Disputes Act and would be an 'employer', falling within the ambit of
Section 2(g) of the said Act.
6. But, before the Labour Court, the only ground, which was
agitated by the petitioners before the court below was that the claim raised
by the workman under the provisions of Section 33-C(2), would not apply,
because since it being a part of the Central Legislature and if at all the
workmen had any claim for the grant of revision of increased wages as
enforced by the Wage Board recommendation, it could have been done by
them only by invoking the provisions contained under Section 6(H)(2) of
the U.P. Industrial Disputes Act, which was a pleading raised, had been
discussed in para 3 of the impugned award, which is a subject matter of
challenge before this Court. As far as the aspect of the enforceability of
revised wages on the workman, in the Industry of the petitioners is
concerned, was not a bone of contention, which was ever raised or pressed
by the petitioners before the Labour Court, but it was rather only confined
to the aspect of sustainability of the proceedings under Section 33-C(2),
and that was rightly so because as far as the challenge given by the
petitioners themselves to the Notification of 21.08.2012, has already been
laid to rest as against them, in pursuance to the decision of Division Bench
which was rendered in relation to the two writ petitions being Writ Petition
No.134 of 2013 and Writ Petition No.362 of 2017, where the implications
of the Notification dated 21.08.2012, was a subject matter of consideration
and that was laid to rest, on the ground that by yet another Government
Order issued under Section 3(b) of the U.P. Industrial Disputes Act, there
was yet again a revision made by issuance of a fresh Notification of
29.12.2016 under the Act, by the State Government.
7. The issue raised by the petitioner/employer before the Labour
Court, as has been dealt with in para 3 of the judgment; was answered by
the learned Labour Court, while recording its finding in para 10 of the
judgment/award, which was rather based upon the judicial precedence
referred to in para 9, wherein the aspect of the applicability of the
provisions contained under Section 33-C(2), was considered and the labour
court has observed and assigned reasons for it. In para 12 of the judgment
wherein it has been observed that the parameteria provisions contained
under Section 33-C(2), entitling the workman to receive the enhanced
revised wages or the monetary benefits, which is capable of being
determined, on the basis of the enforcement of the recommendation of
Wage Board, as was notified on 28.01.2012; would fall to be within the
ambit of the parameteria provisions contained under Section 6H(2) of the
U.P. Industrial Disputes Act and for the said purpose, the learned Labour
Court has made reference to a judgment, which had been rendered by
Allahabad High Court; in Writ Petition No.13189 of 2014, Institute of
Management Technology vs. Presiding Officer Labour Court and another;
where an identical issue was raised and dealt with pertaining to as to
whether the claim ought to have been raised under Section 6H(2) or the
enforceability of revised enhanced scale will fall to be within Section 33-
C(2) in relation to those employees, who are falling within the definition of
the workman as defined in U.P. Industrial Disputes Act. The Allahabad
High Court laid down the following preposition:-
^^that Section 33C(2) of the U.P. Industrial Disputes Act, 1947
is parameteria with Section 6H(2) of the U.P. Industrial
Disputes Act, 1947 blfy, bl U;k;ky; dk er gS] fd dksbZ Jfed nksuksa
gh dkuwuh izko/ku ,d gh fo"k; ls lEcfU/kr gS] blfy, nksuksa izko/kkuksa esa ls
fdlh fof/kd izko/kku dk mYys[k fd;s fcuk Hkh deZdkj] lsok;kstd ls iwoZ
fo|eku /kuh; ykHk izkIr djus ds fy, fdlh ,d fodYi dk iz;ksx dj
vuqrks"k izkIr dj ldrk gSA ;g deZdkj ds fodYi ,oa U;k;ky; ds
{ks=kf/kdkj ij fuHkZj djsxkA^^
8. The view taken therein that the claim for enforcement of
revised wages as per the wage board recommendations notified by State,
reference of provision would be of not much relevance, as the claim could
be raised even without referring to the provision, but only perception
which has been envisaged is that the Labour Court, exercising the
adjudicatory rights must have a territorial jurisdiction. I too endorse the
view of the Allahabad High Court, because the question of lack of
territorial jurisdiction has never been in debate in the present case.
9. The argument of the learned counsel for the petitioner
contending thereof that the application under Section 33-C(2) was not
maintainable is not accepted by this Court for the reason being that if the
provisions of Section 33-C(2) of the Industrial Disputes Act, 1947
(Central), which is extracted hereunder:-
"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 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]:
is read in consonance with the provisions contained under
Section 6H(2) of the U.P. Industrial Disputes Act, 1947, which is referred
to hereunder:-
"6-H(2) Where any workman is entitled to receive from the
employer any benefit which is capable of being computed in
terms of money, the amount at which such benefit should be
computed may, subject to any rules that may be made under
this Act, be determined by such Labour Court as may be
specified in this behalf by the State Government, and the
amount so determined may be recovered as provided for in
sub-section (1)."
10. They have parameteria provisions, which hold an employee to
be entitled to receive an undisputed amount of service benefits, which can
be determined by way of a monetary benefit and where no adjudication, as
such is required. Hence, I am of the view that the basic spirit and purpose
of the either of the provisions contained under the Industrial Disputes Act
or that of the U.P. Industrial Disputes Act, as quoted above do not
differently intent to deal with any controversy except for an exception that
the Labour Court, which is dealing with the matter, falling under the ambit
of Section 33-C(2) of the Central Act or under Section 6-H(2) of the U.P.
Industrial Disputes Act should have a territorial jurisdiction to decide the
claim for the grant of benefit and particularly when it happens to be as a
consequence of the enforcement of the recommendations made under the
Wage Board recommendation under Section 3(b) of the Industrial Disputes
Act.
11. This philosophy of a comparative scrutiny of the provisions
contained under Section 33-C(2) of the Central Act in harmony with the
provisions contained under Section 6-H(2) of the U.P. Industrial Disputes
Act, in fact, for the enforcement of a right created by a statutory
notification of revising the pay scale payable to the workman. Since the
Act or Notification does not contemplate that the proceedings are to be
drawn under a specific provisions of an Act itself, hence the implications
of either of the provisions legislatively it intends to provide a functional
benefit to a workman, who otherwise under the statue is entitled to receive
the same and hence, the argument extended by the counsel for the
petitioner to draw a distinction pertaining to the maintainability of the
application itself will not be sustainable and hence, it is not accepted by
this Court.
12. The Court has observed that since the provisions contained
under the aforesaid two provisions being parameteria the same and on the
basis of the ratio which has been laid down by the Hon'ble Apex Court in
Balvinder vs. Ratan Singh case as reported in 2008(11) SCLALI-198 and
Ram Sunder vs. Union of India reported in (2007)9 SCALI 197. The
Hon'ble Apex Court has propounded the identical principles, that the
principles of Section 33-C(2) would be the parameteria provisions as has
been enshrined under Section 6H(2) of the State Act, and hence, the benefit
as claimed by the workman for the grant of enhanced wages as per
recommendation of Wage Board of 21.08.2012 and its subsequent revision
made by yet another Notification of 29.12.2016, issued by the State, would
be applicable to the workman. Accordingly, the learned Labour Court had
observed that the workman working in an Industry, who are falling within
the ambit of Act, can always file an application under Section 33-C(2,)
only under those circumstances where they are otherwise legally entitled to
receive the wages or the money claimed is a claim of money, which was
enforced by the State by a Statute. Since the wages as defined under the
either Act, which would be inclusive of the revised increased wages, would
fall to be within the ambit of Schedule II and would also be covered by the
directives issued by the Sugar Standing Orders made applicable from time
to time it is not in dispute that the revision of scale of the workman, had
been made applicable in the case of the petitioners industry and workers
working with them also in the light of the principles enunciated by the
judgment rendered by the Labour Court on 30.03.2019 and other identical
judgments, which has been rendered in the connected writ petitions
detailed above.
13. The arguments of learned counsel for the petitioner is that the
petitioner would not be entitled for the grant of revised wages in the light
of the judgment, which has been laid down by the Hon'ble Apex Court
reported in 2008 (4) Supreme Court Cases, 241 H.P. State Electricity
Board and another vs. Ranjeet Singh and others and particularly the
counsel for the petitioner had made reference to para 16 of the said
judgment, which is quoted hereunder:-
"16. Further, the High Court seems to have lost sight of the fact that
the Labour Court under the Act can decide only the matters
specified in Second Schedule."Bonus" is not covered by the
Second Schedule. Item 6 of Second Schedule says that it deals
with all matters except those covered by the Third Schedule.
"Bonus" appears as Item 5 in the Third Schedule. Therefore, the
question of entitlement to bonus could not have been decided by
the Labour Court. In case of pre existing rights there must be
agreements by both sides about existence of such rights. If there is
dis-agreement this has to be decided by the competent authority.
The stand that the expression 'bonus payable' relates to the quantum
and not payability is also not correct."
14. In fact, if the principles, which has been laid down for denying
the benefit therein in the aforesaid case to the workman and allowing of the
appeal of the employer, was on the pretext and reasoning that in the said
case the Hon'ble Apex Court was dealing with an issue of the payment of
the revised bonus and as it finds reference in para 2 of the said judgment,
which is quoted hereunder:-
"2. The Himachal Pradesh High Court disposed of several writ
petitions by a common judgment dated 30.12.1998. The
primary issue was whether a petition in terms of Section 33-
C(2) of the Industrial Disputes Act, 1947 (in short the Act) is
maintainable and whether daily wager can claim minimum
bonus under the Payment of Bonus Act, 1965 (in short the
'Bonus Act')."
15. The issue therein under consideration was that whether 'bonus'
would fall to be within the ambit of Schedule II of the Act, to bring the
claim under Section 33-C(2) particularly, when the bonus was specifically
dealt with by the provisions of Payment of Bonus Act, 1965 and was part
contained in Schedule III, which was excluded. In those circumstances, the
Court, has held that since the bonus does not fall to be within the ambit of
IIIrd Schedule of the Act, the same would not apply and consequently, the
relief claimed by the workman therein under Section 33-C(2) was denied,
under the back drop that bonus was not included in the second Schedule.
16. I am not in agreement with the principles, which has been
sought to be extracted by the counsel for the petitioner, to be made
applicable in the present case so far as the wages are concerned, because it
is not in dispute that wages falls to be within the part of Schedule II of the
Act, and since it is an admissibility of a monetary benefit to the workmen,
which is being granted by the Notification of 21.08.2012 and later on by
the revised notification of 29.12.2016; as it falls to be under Section 3(b) of
the Act, it will be a claim which will be included under Schedule II, unlike
the claim of bonus, as was the subject matter before the Hon'ble the Apex
Court and hence I am of the view that since wages would be inclusive of
the revision of wages also, which are made by the State; from time to time,
it would be falling to be a part of Schedule II and would be enforceable by
the provisions contained under Section 33-C(2), as it has already been
observed above that it is a parameteria provisions and legislative intent of
both the provisions under Section 33-C(2) of the Industrial Disputes Act
and for that purposes under Section 6H(2) of the U.P. Industrial Disputes
Act since it has got common legislative intent of enforcement of an
admissible due or a revised claim enforced by the State, the claim as
determined by the learned Labour Court, would fall to be within the ambit
of Section 33-C(2) and there is no apparent error committed by the Labour
Court, as such by rendering the impugned award in favour of workman
extending the benefit of revised wages as per Notification under Section
3(b) of the Act.
17. This Court is of the view that as far as the defence, which was
taken now by the counsel for the petitioner, pertaining to the applicability
and entitlement of the benefit with the revised wages, would not apply in
the case of respondents/workman, this Court is not in agreement with it.
There are two logic and reasons for it:-
i. That the aspect of enforceability of the notification dated
21.08.2012 or the notification of 29.12.2016, has been judicially
determined against the petitioner, and had been made enforceable,
as far as the workman are concerned working in the establishment
of the petitioner with the dismissal of the Special Appeal of the
petitioners against the applicability of Notification of revised pay
scale dated 21.08.2012, that has attained finality.
ii. Apart from the fact that the question raised by the petitioner
himself before the learned Labour Court, was limited by them
only with regards to the maintainability of an application under
Section 33-C(2), which was decided against the petitioner
himself. The issue of entitlement and enforceability of notification
under Section 3(b) or may be the notification of 21.08.2012 or
29.12.2016, was never disputed by the petitioner and there was no
other question agitated, as would be apparent from the finding,
which has been recorded by the impugned award, which is under
challenge before this Court, I am of the view that the Labour
Court has not committed any apparent legal or jurisdictional error
which calls for any interference, in the exercise of my supervisory
jurisdiction under Article 227 of the Constitution of India.
18. Consequently, the writ petitions are dismissed. However, it is
made clear the money deposited by the petitioner in compliance of the
interim order would be refunded back to the respective workman of the
writ petitions, and the balance different amount, after deducting the amount
plus interest already deposited, would be remitted to the workman
specifically in consonance to the notification of Notification No.110/VIII-
12-55 dated 21.08.2012, for the period for which the benefit of the revised
wages, was claimed by the workman before the learned Labour Court.
Accordingly, this Court does not find any merit in these writ petitions.
Hence, the writ petitions are dismissed.
(Sharad Kumar Sharma, J.)
15.03.2021
Arti/
