Orissa High Court
Divisional Manager vs Umamani Nayak & Others ....... Opp. ... on 1 September, 2020
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
1
IN THE HIGH COURT OF JUDICATURE FOR ORISSA
AT CUTTACK
W.P.(C) NO. 6543 OF 2002
Divisional Manager,
Orissa Forest Development Corporation Ltd.,
Baripada
....... Petitioner
-Versus-
Umamani Nayak & others ....... Opp. Parties
Advocate(s) who appeared in this case through Video
Conferencing mode:-
For Petitioner : Mr.S.K.Pattnaik, Sr. Advocate
M/s. U.C.Mohnaty, M.K.Pati,
S.K.Mohanty & N.Satapathy
For Opp. Parties : M/s Dr.S.Dash & S.Pattnaik
_______________________________________________________________
HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
AND
HONOURABLE MR.JUSTICE K.R. MOHAPATRA
JUDGMENT
01.09.2020 Per: K.R.Mohapatra,J.
The Divisional Manager, Odisha Forest Development Corporation, Baripada (for short, 'the Corporation') has filed this writ petition assailing order dated 16.07.2002 (Annexure-8) passed by the Presiding Officer, 2 Labour Court, Bhubaneswar in ID Misc. Case No.292 of 1994 filed under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short, 'the ID Act'), wherein the petitioner- Corporation is directed to pay a sum of Rs.39,000/- towards wages and Rs.1,000/- towards house rent to one Keshab Chandra Nayak (for short 'the workman') (since dead represented by his legal heirs OP No.1(a) to 1(c).
2. Mr.Pattnaik, learned Senior Advocate for the petitioner submitted that one Keshab Chandra Nayak, the workman, filed an application under Section 33-C(2) of the ID Act before learned Labour Court, Bhubaneswar in ID Misc. Case No.292 of 1994 for computation of his arrear salary, house rent and bonus etc. for the period from 1981 to 1993.
3. It is his submission that the Corporation is a Government of Odisha Undertaking, which along with other activities was undertaking seasonal collection of sal-seeds as and when Government of Odisha allots different areas to it for such collection. The Corporation, for that purpose used to engage its regular employees along with seasonal workers and agents during the collection season, which was almost about two months. Ordinarily the sal-seeds are collected in the month of May and June each year. Said Sri Nayak-workman belonged to Badgaon under Bangiriposi Police Station in the 3 district of Mayurbhanj. He was engaged on commission basis under the erstwhile Similipahar Forest Development Corporation. He worked for the Corporation till 1992 as a commission agent during the collection season, when he expressed his unwillingness to continue further on the ground that the commission so received was insufficient. However, during the year 1993, said Sri Nayak was engaged for collection of sal-seeds from 18.05.1993 to till 16.06.1993 and was paid Rs.450/- and house rent of Rs.25/- for stacking of sal-seeds. The workman being dissatisfied with the same, filed a complaint before the District Labour Officer, Mayurbhanj on 28.04.1994 (Annexure-1) alleging that he was engaged for collection of sal-seeds vide office order dated 12.05.1993 and claimed arrear wages from 18.04.1993 to 28.05.1993. He also claimed house rent and travelling allowance for the said period. Subsequently, the workman abandoned the same and filed a petition under Section 33-C(2) of the ID Act in ID Misc. Case No.292 of 1994 before the Labour Court, Bhubaneswar claiming salary for the year 1993 to the tune of Rs.12,000/- with house rent for the period from 1981 to 1994 @Rs.2,000/- per annum amounting Rs.26,000/- and bonus and cycle allowance etc. to the tune of Rs.26,000/-. In total, he claimed Rs.64,000/- in the claim petition filed under Section 33-C(2) 4 (Annexure-4). The Corporation filed its counter disputing the entire claim stating the aforesaid facts.
4. In course of hearing, both the Workman as well as the Corporation examined one witness each and produced certain documents in support of their respective cases. Although the claim of the Workman was seriously disputed by the Corporation (opposite party before the learned Labour Court), learned Labour Court proceeded with the matter to adjudicate upon the same and passed impugned order under Annexure-8.
5. Mr. Pattnaik, learned Senior Advocate assailing the impugned order submitted that Section 33-C(2) of the ID Act does not empower the industrial adjudicator to adjudicate upon the disputed claim of the parties. He can only compute entitlement of the workman on the basis of the previous adjudication or settlement. In support of his case, Mr.Pattnaik relied upon the decision of the Hon'ble Supreme Court in the case of State of U.P. Vs. Brijpal Singh, reported in (2005) 8 SCC 58. He argued that since there was a serious dispute with regard to the period, manner of engagement of the workman under the Corporation as well as the monetary claim made in the petition, learned Labour Court could not 5 have adjudicated the same in exercise of power under Section 33-C (2) of the ID Act. The workman could have moved the appropriate Government to make a reference under Section 10(1) of the ID Act for adjudication of his claim, if any. In that view of the matter, he prayed for setting aside of the impugned order under Annexure-8.
6. During pendency of the writ petition, the workman- opposite party No.1 expired and his legal heirs were substituted as opposite party No.1(a) to 1(c). Notice issued to them was made sufficient as would reveal from orders dated 05.11.2019 and 16.12.2019 passed in the writ petition. However, none represented them at the time of hearing. Since notice on the legal heirs, namely O.P. 1(a) to 1(c) of the deceased workman is sufficient, this Court proceeded to adjudicate the writ petition.
7. We have heard Mr. Pattnaik, learned Senior Advocate for the Corporation-petitioner and perused the materials on record. On a bare reading of Annexure-8, the impugned order, it appears that although the workman claimed salary, house rent and bonus as stated above, the Corporation (present petitioner) seriously disputed the same by filing written objection. Both the parties have examined witness in support 6 of their respective cases and also produced documents. AW-1, the witness examined on behalf of the workman categorically stated that the workman was working as an agent for collection of sal-seeds under the opposite party (petitioner in the writ petition) during 1981 to 1993. The opposite party (therein) did not pay his house rent and bonus for 13 years and other dues amounting Rs.64,000/-. On cross- examination, he had stated that during 1993 the workman had received house rent for the godown under Ext-A. He had also received house rent for the year 1985-86. On the other hand OPW-1, the witness examined on behalf of Corporation deposed in his evidence that the workman working under it was initially engaged as Commission agent during May and June and was getting commission as per the collection. Accordingly, he received an amount of Rs.450/-. OPW-1 further deposed that the Corporation had its own regular staff engaged for collection and only when service of more persons was required persons like the workman were being engaged. On analysis of the evidence and materials on record, learned Labour Court came to the following findings:-
"6. On a reference to Ext.1 it appears that 186 persons who were employees of Baripada R & B Division were placed under the disposal of different sub-divisions and were relieved on 13.5.93 afternoon. Ext.2 indicates that the name of the 7 present applicant was at Sl.No.39 was deployed to Badagaon purchase centre of Baripada Sub-Division. If at all the applicant was temporary or a casual worker who was engaged when the services of more persons were required there could not have been any reason to deploy the applicant considering him as an employee of Baripada R & B Division. Therefore I find that the opposite party with oblique motive just to debar the applicant from getting his legal dues have taken a wrong stand. I have also perused the exhibits A to M filed by the opposite party which are the vouchers showing payment of certain amount to the applicant."
From the above, it transpires that the learned Labour Court has delved into the merit of the respective cases of the parties and proceeded to adjudicate upon the disputed claim while entertaining the application under Section 33-C(2) of the ID Act. The Hon'ble Supreme Court in the case of Brijpal Singh (supra) held as under:-
"13. Thus it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shymala Pappu that the respondent-workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the 8 High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33C(2) of the I.D. Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court. The High Court has also equally committed a manifest error in not considering the scope of Section 33C(2) of the I.D. Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23.8.1995 and the order dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995 as illegal and uncalled for. We do so accordingly.
Thus, it is clear from the principles enunciated above that the Labour Court/ Industrial Tribunal has no jurisdiction to adjudicate an undetermined claim made by the workman in an application under Section 33C (2) of the I.D. Act until such adjudication is made by the appropriate forum.
8. In view of the settled law we have no hesitation to hold that the learned Labour Court lacks jurisdiction to adjudicate upon the undetermined claim of the workman, under Section 33C(2) of the ID Act, be it for back wages or other dues. It being in the nature of execution proceeding, the Industrial Adjudicator can only compute the same on the basis of previous determination/settlement. As such, the learned Labour Court has exceeded its jurisdiction in adjudicating the claim of the workman. Accordingly, the 9 impugned order under Annexure-8 passed by the learned Labour Court, Bhubaneswar in ID Misc. Case No.292 of 1994 is not sustainable and is accordingly set aside. The writ application is, accordingly, allowed. But, in the circumstances there shall be no order as to cost.
Misc. Cases are also disposed of accordingly.
...............................
MOHAMMAD RAFIQ (CHIEF JUSTICE) ................................
K.R. MOHAPATRA (JUDGE) Orissa High Court, Cuttack.
Dated the Sept., 2020/ss