Rajasthan High Court - Jaipur
Municipal Board vs Industrial Tribunal And Labour Court ... on 21 November, 1985
Equivalent citations: 1985WLN(UC)388
JUDGMENT Ashok Kumar Mathur, J.
1. In both these writ petitions identical questions of fact and law are involved, therefore they are disposed of by this common order.
2. In both these writ petitions the award given by the Industrial Tribunal dated 20th August, 1983 has been challenged.
3. That the non-petitioners Nos. 2 to 18 in writ petition No. 2579 of 1983 and non-petitioner No. 2 in the writ petition 2668 of 1983 are employees of the Municipal Board, Bilara, petitioner here in. They moved an application Under Section 33C(2) of the Industrial Disputes Act, 1947 (here in after referred to as the Act of 1947) before the Labour Court claiming the wages for overtime from 1-12-74 to 5-2-1978. The total amount claimed on account of over time came to Rs. 1,75,296.33/-.The non-petitioners were employed by the Municipal Board Bilara in connection with collecting Octroi which is the tax levied under the Rajasthan Municipalities Act. A claim petition was registered before the Labour Court and the Labour Court issued a notice thereof. A reply was filed and the claim was congested. Various objections were raised, namely that since the non-petitioners who were working on the post Nakedra and Mohrir working on Octroi check post are discharging the sovereign and inalienable function of collecting tax, therefore they do not fall in the definition of industry and this section of Municipality is not an industry and as such the application is not maintainable. Secondly it was objected that under Section 33C(2) of the Act of 1947 the claim is not entertainable. The Labour Court after hearing both the parties overruled both the objections and held that the Municipality is an industry and that the application under Section 33C(2) is maintainable for overtime wages as such the Labour Court appointed a Commissioner under Section 33C(3) read with Rule 63 of the Rajasthan Industrial Disputes Rules, 1958 to make a proper enquiry and submit his report how much each person is entitled to over time wages. Aggrieved against this order the present writ petitions have been filed by the petitioner, challenging the award of the Labour Court.
4. Mr. Balia, appearing for the petitioner submits that since the collection of Octroi is a sovereign function, therefore this part of section of the Municipality does not fall within the defintion of Section 2(s) of the Act of 1947 and as such the Labour Court has no jurisdiction to entertain the present application. I am afraid this contention is wholly devoid of force in view of the categorical judgment of their Lordships of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. , wherein it has been clearly laid down that the Municipality is an industry under Section 2(j) and dichotomy suggested by Mr. Balia that the collection of octroi should be treated as sovereign function so as to take out from the purview of the definition of industry is unwarranted. Their Lordships have clearly laid down that:
Not with standing the previous clauses, sovereign functions, strictly understood, (alone qualify for exemption not the welfare activities or economic adventures undertaken by government or statutory bodies".
"Even in departments discharging sovereign function, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
5. The present function which has been discharged for collection of octroi cannot be strictly construed to be a sovereign function. After all predominant purpose of Municipality is to engage itself for welfare activities like sanitation and other. Octroi is being paid or recovered for the service rendered to the citizen, therefore such activities do not form under the sovereign function so as to exempt this part of the municipality, namely, the octroi collection is a sovereign function. In this view of the matter the first objection of Mr. Balia is over ruled.
6. Second contention of Mr. Balia, learned counsel for the petitioner that it is not the scope under Section 33C(2) of the Act of 1947 to entertain such applications, I am afraid the contention is not well founded. The scope of Section 33C(2) of the Act of 1947 is to determine the certain sum of money payable to the workman. Since I have already held that the Municipality is an industry including octroi department, the question whether the claim of these non-petitioners fall within Section 33C(2) or not. By filing application under Section 33C(2) the workman can claim the benefit which he is capable of being computed in terms of money from the employer. The scope of Section 33C(2) has been dealt with by their Lordships of the Supreme Court in the case of the Central Bank of India Ltd. v. P.S. Rajagopalan etc. AIR 1962 SC, where in it has been held:
Though in determining the scope of Section 33C Industrial Disputes Act, care must be taken not to exclude cases which legitimately fall within its purview, it must also be borne in mind that cases which fall within Section 10(1) of the Act for instance cannot brought within the scope of Section 33C;
When Sub-section (2) of Section 33C refers to any workman entitled to receive from the employer any benefit there specified it does not mean that he must be workman whose right to receive the said benefit is not disputed by the employer. Section 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even through the right to the benefit on which their claim is based is disputed by their employers. The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2).
7. Thus, simply because the other party disputes the claim, that does not mean that the jurisdiction of the authority under Section 33C(2) is barred. In order to determine whether the overtime wages are payable or not the Tribunal can always make necessary enquiry into the matter. This is an existing right which is being sought to be enforced and which is capable of being computed in terms of money thus the jurisdiction under Section 33C(2) is not barred. The learned counsel for the petitioner has cited the cases of Chief Mining Engineer, East India Coal Co. Ltd., Bararee Colliery Dhanhad v. Rameshwar and Ors. ; Central Inland Water Transport Corporation Limited v. The workmen and Anr. 1974(4) SCC 697; The Jhagrakhan Collieries (P) Ltd. v. Shri G.C. Agrawal Presiding Officer Central Government Industrial Tribunal Cum Labour Court, Jabalpur and Ors. ; Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh and Anr. , and U.P. Electricity Board and Anr. v. Jhagreshwar Prasad and Anr. 1982 LIC 284.
8. As already mentioned above that only limited question that arises in this matter is whether the incumbent has really worked or not. It is not disputed that they are serving in the Municipality, therefore their pay scale is not in dispute and only the limited question arises for determination in this case is as to whether they are entitled to overtime wages or not. The amount of overtime wages is capable of being computed in terms of money. Thus it is open for the Labour Court to make incidental enquiry so as to ascertain the correct sum of money. The cases cited by the learned counsel for the petitioner do not touch this aspect. The case of Central Bank of India Ltd. v. P.S. Rajagopalan etc. (supra) referred to above has been followed all these cases which have been cited by the learned counsel for the petitioner. The proposition of law as summarised in the Central Bank of India Ltd.'s case still holds the field. Therefore, I hold that the Labour Court has jurisdiction to make the incidental enquiry to ascertain the sum of money payable to these workmen as an over time wages. Thus this objection of Mr. Balia, learned counsel for the petitioner is also over ruled.
9. For the reasons mentioned above, I do not find any merit in these writ petitions and they are dismissed. No order as to costs.