Allahabad High Court
M/S Mediva M/S Alkem Laboratories ... vs Presiding Officer, Labour Court- 4 , ... on 7 February, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reportable. Reserved on 2.11.2018. Delivered on 7.2.2019. Case :- WRIT - C No. - 29255 of 2018 Petitioner :- M/S Mediva M/S Alkem Laboratories Limited Respondent :- Presiding Officer, Labour Court- 4 , Kanpur And Another Counsel for Petitioner :- Krishna Mohan Misra Counsel for Respondent :- C.S.C.,Ashutosh Sharma Hon'ble Mrs. Sunita Agarwal,J.
Heard Shri K.N. Mishra, learned counsel for the petitioner and Shri Ashutosh Sharma, learned counsel for the respondent no.2.
The present petition is directed against the order dated 2.7.2018 passed by the Presiding Officer, Labour Court-4, U.P., Kanpur in Misc. Case No.61 of 2012 (Prashant Swaroop Rohtagi v. Alkem Laboratories Limited & Ors.), in a proceeding under Section 33-C(2) of the Industrial Disputes Act, 1947 (in short 'the Act, 1947'), instituted by the opposite party for recovery of certain dues under Section 6(2) of the Sales Promotion Employees Act, 1976 (in short 'the Act, 1976').
This order is being challenged on the ground of lack of jurisdiction of the labour court in adjudicating the claim of private respondent no2, in exercise of power under Section 33-C(2) of the Act, 1947. To substantiate his submissions, two objections raised by the petitioner employer before the labour court on its jurisdiction, have been contended by its counsel before this Court:-
(1) The claimant-respondent was holding the post in the factory in managerial capacity and was superintending the work of Area Manager and Marketing Executive and was drawing the salary of Rs.36,000/- and odd. That being the position, he being not covered within the definition of 'workman' as provided under the Act, his claim was not entertainable.
(2) The claimant-respondent was transferred from Kanpur to Chennai as per terms and conditions of his service vide order dated 13.5.2011 w.e.f. 1.6.2011, but he deliberately did not join and, as a result, since 8.2.2012 he was stopped from working. Since February 2012, till the presentation of the claim under Section 33-C(2), the concerned employee did not work at all. There was no question of grant of benefit to him for the said period.
Submission of learned counsel for the petitioner is that in view of the aforesaid controversy brought before the Presiding Officer, Labour Court, regarding claim of the respondent employee to continue and to get salary, it was not open for the labour court to make an enquiry and record a finding as to the nature of disengagement of the employee. Further, no enquiry could have been done with regard to the nature of his employment. The findings returned by the Presiding Officer that no proof of him being in managerial capacity has been filed, therefore, is wholly uncalled for. Since the issues were raised under Section 33-C(2) before the labour court and it was a case of unauthorised absence of the employee the labour court was required to keep its hands off and relegate the claimant to get his claim adjudicated under Section 10 of the Act, 1947.
Learned counsel for the respondent no.2, on the other hand, placing reliance on various judgments of the Apex Court and of this Court submits that the labour court was well within its jurisdiction to make an enquiry so as to ascertain the correctness of the above objections taken by the employer. It has come to the conclusion that both the above objections taken by the employer were not proved. It was not a case of termination of service of the employee rather as per own claim of the employer, the employee was not allowed to work after December 2012. This aspect of the matter could very well be examined by the labour court so as to satisfy itself about the genuineness of the objections taken by the employee. Similarly, objections with regard to the nature of employment of the employee were also examined with the same view i.e. to ascertain as to whether the objections of the employer were worthy merit consideration. In the course of said enquiry, the labour court came to conclusion that the employer had not been able to establish its contentions by leading cogent evidence. Both the objections were, thus, rightly rejected. Placing judgment of the Apex Court in Central Bank of India Ltd. v. P.S. Rajagopalan etc. reported in (1964) AIR (SC) 743, it was submitted that the enquiry made by the labour court was well within its jurisdiction being within the scope of Section 33-C-2.
Both the counsels for the parties placed various judgments to substantiate their rival arguments.
However, they agree that the legal position regarding scope of enquiry i.e. the limits of jurisdiction of the labour court under Section 33-C(2) is fairly well settled. As both the counsels placed the same set of judgments to substantiate their points and to support their submissions, it would be appropriate to refer to all the judgments cited by them and to cull out their ratio so as to find out the legal proposition as laid down therein, as to the construction of Section 33-C(2) of the Act, 1947.
At this stage, before going through the judgments, for ready reference, it would be pertinent to reproduce the relevant provisions of Section 6-H(2) and Section 33-C(2). Section 33C, as it then was after substitution by Act No.36 of 1964 w.e.f. 15.12.1964.
"Section 6-H(2):- Where any workman is entitled to receive from the employer any benefit which is capable of being computed in term or 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).
Section 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 month.
[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 further period as he may think fit.]"
The scope of Section 33-C(2) as it originally was, had been examined by the Constitution Bench of the Apex Court in Central Bank of India Ltd. (supra) decided on 19.4.1963. The language of original Section 33-C-2 as was inserted by Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (Act No.36 of 1956) and interpreted therein reads as under:-
"Section 33-C(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 appropriate Government, and the amount so determined may be recovered as provided for in sub-section (1)"
The Apex Court considering the legislative history of insertion of Section 33-C by Act No.36 of 1956 w.e.f. August 28, 1956, had observed that in construing the scope of Section 33-C(2) following relevant considerations had to be kept in mind. The position as laid down therein is relevant to be reproduced in the words of the Court as under:-
(I) The consideration should not be so broad as to bring within the scope of Section 33-C cases which would fall under Section 10(1) i.e. the industrial disputes arose between employers and employee must be adjudicated upon by reference under Section 10(1) in the manner prescribed by the Act. Those disputes could not be brought within the purview of Section 33-C. (II) Similarly, having regard to the fact that the policy of the legislature in enacting Section 33-C was to provide a speedy remedy to the individual workman to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this Section cases of existing rights which were sought to be implemented by individual workman.
(III) It was observed that in determination of the scope of Section 33-C, the Court must not exclude the cases which fell within its purview. Similarly, it had to determine the cases which fell under Section 10(1) and could not be brought within the scope of Section 33-C. By giving illustrations in Paragraph '16' of the said judgment, the Apex Court had held that on a fair and reasonable construction of sub-section (2) of Section 33-C, it was clear that if a workman's right to receive a benefit was not disputed, nothing more needed to be done and the labour court could proceed to compute the value of the benefit in terms of money. But if the said right was disputed, the labour court must deal with that question and decide whether the workman had right to receive the benefits as alleged by him and it was only after labour court answered this point in favour of the workman then the next question of making the necessary computation would arise.
(IV) It was observed that the opening clause of sub-section (2) as it then was did not admit of the consideration that the workman was entitled to receive from the employer only such benefit(s) which were admitted to him. Introduction or addition of the words "admittedly" or "admitted to be" in that clause was clearly impermissible. It further considered that if such a consideration was accepted, there may have been a case where the employer may have raised an objection denying the original claim of the workman to oust the jurisdiction of the labour court to entertain the workman's application under Section 33-C(2).
(V) The scheme of Section 33-C(2) clearly showed that the determination of the question about computing the benefit in terms of money in some cases may have to be preceded by enquiry into existence of the right and such an enquiry must be held to be "incidental to the main determination" which had been assigned to the labour court by sub-section(2).
(VI) Thus, it was finally held that Section 33-C(2) took within its purview cases of workmen who claimed that the benefit to which they were entitled would be computed in terms of money, even though the right to benefit on which their claim was based was disputed by their employer.
(VII) Further considering the language of Section 33-C(1) and 33-C(2), it was held that Section 33-C(1) by itself could only be referrable to the settlement, award or the relevant provisions of Chapter VA, however, those words of limitations were not found in Section 33-C(2) and to that extent the scope of Section 33-C(2) was undoubtely wider than that of Section 33-C(1).
It was thus finally held that for the three categories of claims mentioned in Section 33-C (1), Section 33-C(2) could itself be deemed to be a kind of execution proceedings but it was possible that the claims not based on settlements, awards and under the provision of Chapter VA may also be competent under Section 33-C(2) and that may illustrate its wider scope. For example, if the employee was dismissed or demoted and it was his case that the dismissal or demotion was wrongful it would not be open for him to make a claim for recovery of salary or wages under Section 33-C(2). This claim may have given rise to an industrial dispute which may have been appropriately tried. Similarly, if settlement existed and continued to be operative, no claim could be made under Section 33-C(2), inconsistent with the said settlement. Thus, it was concluded that the scope of Section 33-C(2) was wider than Section 33-C(1) and could not be wholly assimilated with. Thus, it was lastly held that when the authority exercised its jurisdiction, it had necessarily to consider various questions incidental to the claim falling thereunder and, it was added that although it would be inexpedient to lay down any hard and fast rule for determining the scope of such questions, care should be taken not to unduly extend or curtail its jurisdiction.
The scope of Section 33-C(2) as it stood before 15.12.1964 had been culled out further by the Apex Court in Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar & Ors. reported in (1968) AIR (SC) 218 decided on 8.8.1967 after considering the above stated legal position in Central Bank of India (supra) and the position as had been laid down therein is quoted as under:-
"4.The following propositions on the question as to the scope of Section 33-C(2) are deducible from these three decisions:-
(1) The legislative history indicates that the legislature, after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing, individual rights and therefore inserted Section 33-A in 1950 and Section 33-C(2) in 1956. These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to Section 10(1) and without having to depend on their union to espouse their case.
(2) In view of this history two considerations are relevant while construing the scope of Section 33-C Where industrial disputes arise between workmen acting collectively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for (1) [1962] Supp. 2 S.C.R. 977. (2) [1964] 3 S.C.R. 140. (3) [1964] 3 S.C.R. 709. instance under Section 10(1). But having regard to the legislative policy to provide a speedy remedy to Individual' workmen for enforcing their existing rights, it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen. Therefore though in determining the scope of s. 33C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under s. 10(1), cannot be brought under s. 33C;
(3) Section 33C which is in terms similar to those in s. 20 ofthe Industrial Disputes (Appellate Tribunal) Act,, 1950 is a provision in the nature of an executing provision;
(4) Section 33C(1) applies to cases where money is due to a workman under an award or settlement or under Chapter VA of the Act already calculated and ascertained and therefore there is no dispute about its computation. But sub-section 2 applies both to non-monetary as well as monetary benefits. In the case of monetary benefit it applies where such benefit though due is not calculated and there is a dispute about its calculation;
(5) Section 33C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers. It is open to the Labour Court to interpret the award or settlement on which the workmen's right rests.
(6) The fact that the words of limitation used in s. 20(2) of the Industrial Disputes (Appellate Tribunal Act. 1950 are omitted in s. 33C(2) shows that the scope, of s. 33C(2) is wider than that of s. 33C(1). Therefore, whereas sub-section 1 is confined to claims arising under an award or settlement or Chapter VA. claims which can be entertained under sub-section are not so confined to those under an award, settlement or Chapter VA.
(7) Though the court did not indicate which cases other than those under subsection would fall under sub-section 2. it pointed out illustrative cases which would not fall under sub-section 2, viz., cases which Would ap- propriately be adjudicated under s. 10(1) or claims which have already been the subject- matter of settlement to which ss. 18 and 19 would apply.
(8) Since proceedings under s. 33C(2) are analogous to execution proceeding and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court. the Labour Court like the executing court in execution proceedings governed by the Code of Civil Procedure, is competent under s. 33C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction."
After substitution of Section 33C w.e.f 15.12.1964, the language of Section 33-C(2) has changed and the Section as it stood today has been reproduced hereinbefore.
As to the applicability of Section 33-C(2) in the matters arising within the State of U.P., the Coordinate Bench of this Court in M/s. Uttar Bharat Woolen Mills Pvt. Ltd. v. Shyam Lal Sharma & Ors. reported in 1975 (31) FLR (ALL. H.C. 412) after considering the effect of the amendment of sub-section (2) of Section 33-C by Amendment Act No.36 of 1964 and its application to the matters arising out of the said Act, has laid down that it is open to a workman to either make an application under Section 6-H(2) or Section 33-C(2) as both the Acts are operating simultaneously in the State of U.P. and the application under Section 33-C(2) of the Central Act could not be rejected as not maintainable.
A Division Bench of Punjab High Court in the case of Amar Kaur v. State of Punjab & Ors. reported in (1982) 2 ILR (Punjab) 437, relying upon the Apex Court judgment in Central Bank of India Ltd. (supra) had held that Section 33-C(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 though the right to the benefit on which their claim is based, is disputed by their employers. Where a question arises as to the relationship of the employer and the employee i.e. where the same is denied, the labour court must entertain and decide the same in the proceeding under Section 33-C(2) of the Act.
In Municipal Corporation of Delhi v. Ganesh Razak & Anr. reported in (1995) 1 SCC 235, the Apex Court had considered the Constitution Bench judgment in Central Bank of India (supra) and Chief Mining Engineer East India Coal Co. Ltd (supra) as also the principles of law laid down in Central Inland Water Transport Corpn. Ltd. Workmen reported in (1974) 4 SCC 696, wherein it was held that when a claim is made before the labour court under Section 33-C(2), it must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions of an industrial tribunal which alone is entitled to make adjudication in the nature of determination, i.e. as to (1) the claimant's right to relief;
(2) the liability of the employer/or proceed to confer the benefit by dubbing the said questions as "incidental" to its main business of computation.
The said determinations are not "incidental", inasmuch as, the computation itself is consequential upon and subsidiary to these determination being at the last stage in the process. The workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under Section 10 of the Act. It was, thus, concluded in paragraph '12' in Municipal Corporation of Delhi (supra) as under:-
"12.The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being, no earlier adjudication or recognition 5 (1968) 1 LLJ 589 : 38 Comp Cas 400 (SC) thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33- C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by tile employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33- C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
With the said discussion in the facts of that case, the claim of the workmen who were all declared casual workers for grant of wages at the same rate as that of the regular workers was held to be beyond the scope of enquiry under Section 33-C(2).
In State of U.P. & Anr. v. Brijpal Singh reported in (2005) 8 SCC 58, the above principles relating to scope of enquiry under Section 33-C(2) were followed to hold in the facts of that case that the labour court had no jurisdiction to adjudicate the claim made by the respondent therein under Section 33-C(2) as it was an undetermined claim and the respondent-workman could not ask the labour court in application under Section 33-C-2 to disregard his dismissal as wrongful and on that basis to compute his wages. Until such adjudication was made by the appropriate forum, the labour court could not have entertained the claim under Section 33-C(2).
In D. Krishnan & Anr. v. Special Officer Vellore Cooperative Sugar Mill & Anr. reported in (2008) 7 SCC 22, the settled position of law that the proceedings under Section 33-C(2) of the Act, 1947 could only be effective in case of pre-existing right and in case the claim of respondent-workmen was disputed that was not a matter for decision under the provision, was followed. In the facts of that case, it was found that the dispute was with regard to the status of the person, who filed application under Section 33-C(2). On the documents filed by the claimants, the Court found that their status was prima facie of the Manager and it was, thus, held that the labour court was not having jurisdiction to determine their status in the proceedings under Section 33-C(2) of the Act.
Thus, having discussed the legal position, as placed by both the counsels for the parties, it is clear that whenever an application under Section 33-C(2) is filed, the labour court has to decide its jurisdiction with due care and caution, in case of denial of rights of the workmen. It has to ascertain as to whether the denial is only to oust its jurisdiction and the dispute relating to entitlement is 'incidental' to the benefits claimed. In cases where the very basis of the claim or entitlement of the workman to ascertain benefit is disputed and there being no earlier adjudication or recognition by the employer, the dispute relating to entitlement shall be held to be clearly outside the scope of the proceedings under Section 33-C(2) of the Act, not being incidental to the benefits claimed. The labour court has no jurisdiction to decide the entitlement of the workman and then proceed to compute the benefits so adjudicated. This interpretation is in the light of the powers of the labour court being like the executing Court's power to interpret for the purpose of its execution. The benefit sought to be enforced under Section 33-C(2) of the Act, 1947 is necessarily of pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit which is considered just and fair on the other hand, is vital.
Thus, this much is clear from the principles enunciated in the aforesaid decisions that the question as to the status of the workman, nature of his job being managerial and that whether he would have to be held entitled for wages etc. after 8.2.2012, can appropriately be examined by the Industrial Tribunal in a reference under Section 10 of the Act, 1947. These questions cannot be subject matter of enquiry within the limited scope of the jurisdiction of the labour court under Section 33-C(2) of the Act. In the instant case, the fact that the workman was not allowed to work after February 2012 though is disputed by him but it is also averred by the employer that the workman was transferred from Kanpur to Chennai vide order dated 15.5.2012 and he did not join the place of his posting. The stand of the workman on the other hand is that the transfer order was not served upon him and he was illegally detained from working and was denied benefits payable to him as per his service conditions. These questions, in the opinion of the Court, would require adjudication on the evidence of both the parties.
The determination of the above questions would require an enquiry into the questions of facts and law and to answer as to whether the workman would be entitled to payment of wages for the period of his non-working.
Thus, in the facts of the instant case, in the light of the controversy brought before the labour court, this Court is of the considered view that the labour court had erred in entertaining the application under Section 33-C(2) and determination as to the entitlement of the respondent-workman was beyond the scope of its enquiry. The order dated 2.7.2018 passed by the Presiding Officer, Labour Court (4), U.P. Kanpur in Misc. Case No.61 of 2012, therefore, cannot be sustained. The same is hereby set aside. It is open for the respondent-employee to raise an industrial dispute in accordance with law.
Subject to the above observations and directions, the present petition is allowed.
(Sunita Agarwal, J.) Order Date :- 7.2.2019 Jyotsana