Jharkhand High Court
M/S. Eastern Coalfields Ltd. Through ... vs The Union Of India Through Its Presiding ... on 21 February, 2019
Equivalent citations: 2019 (3) AJR 836, (2019) 3 JCR 701 (JHA) (2020) 164 FACLR 435, (2020) 164 FACLR 435
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 4486 of 2004
M/s. Eastern Coalfields Ltd. through its Chief General Manager (Incharge),
Rajmahal Group of Mines, Godda, namely, Ram Narayan Roy
.... Petitioner
Versus
1. The Union of India through its Presiding Officer, Central Government,
Industrial Tribunal-cum-Labour Court at Asonsol
2. Biswanath Sah, son of Baijnath Sah
... Respondents
With
W.P.(L) No. 4387 of 2004
M/s. Eastern Coalfields Ltd. through its Chief General Manager (Incharge),
Rajmahal Group of Mines, Godda, namely, Ram Narayan Roy
.... Petitioner
Versus
1. The Union of India through its Presiding Officer, Central Government,
Industrial Tribunal-cum-Labour Court at Asonsol
2. Balram Singh, son of Late R B Singh
... Respondents
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Rajesh Lala, Advocate
For the Respondent No. 2 : Mr. Manoj Kumar Sah, Advocate
(In W.P.(L) No. 4486 of 2004)
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C.A.V. On 04.02.2019 Delivered On .02.2019
1. The factual as well as the legal aspects are same and similar and as such both the writ applications are being considered and disposed of by this common order.
2. Heard Mr. Rajesh Lala, learned counsel for the petitioner in both the writ applications and Mr. Manoj Kumar Sah, learned counsel for the respondent No. 2 in W.P.(L) No. 4486 of 2004. No one appears on behalf of respondent No. 2 in W.P.(L) No. 4387 of 2004 in spite of valid service of notice.
3. In W.P.(L) No. 4486 of 2004, the petitioner is aggrieved by the order dated 09.08.2002 passed in LC Application No. 5 of 1999 by the learned Presiding Officer, Central Government, Industrial Tribunal-cum-Labour Court at Asansol, whereby and whereunder, the application u/s 33-C (2) of the Industrial Disputes Act, 1947 filed by the respondent No. 2 has been allowed and the petitioner has been directed by the respondent No. 1 to 2. make payment of Rs. 48,000/- to the respondent No. 2, subject to deduction towards legal contributions.
4. In W.P.(L) No. 4387 of 2004, the petitioner is aggrieved by the order dated 09.08.2002 passed in LC Application No. 6 of 1999 by the learned Presiding Officer, Central Government, Industrial Tribunal-cum-Labour Court at Asansol in which the application u/s 33-C (2) of the Industrial Disputes Act, 1947 filed by the respondent No. 2 has been allowed and the petitioner has been directed by the respondent No. 1 to make payment of Rs. 60,000/- to the respondent No. 2, subject to deduction towards legal contributions.
5. The case of the workmen (respondent No. 2 in both the writ applications) is to the effect that they were employed as Pit Clerk and Foreman (E&M) respectively at Rajmahal Group of Mines who by an office order dated 25/27.05.1998 were transferred to Kalidas Project under Satgram Area. Both had reported for duty at Satgram Area but they were not permitted and subsequently a modified order of transfer was issued vide office order No. ECLCMD/C-6B/AG/1513 dated 05.12.1998 in which they were posted at S.P. Mines. It is the case of the workmen that they had reported for duty at S.P. Mines but there also they were not allowed and ultimately both had approached the G.M. (Personnel), ECL at Sanctoria, consequent to which on 28.01.1999 a revised order was issued keeping the earlier orders of transfer in abeyance till further order and ultimately, the Chief General Manager of Rajmahal Area had requested to allow them to join for duty and ultimately both the workmen had reported for duty at Rajmahal Group of Mines on 01.02.1999. The workmen claim that they had to remain idle from June, 1998 to January, 1999 without there being any fault and no wages were paid to them for the said period. The respondent No. 2 in W.P.(L) No. 4486 of 2004 had claimed wages of Rs. 48,000/-, whereas the respondent No. 2 in W.P.(L) No. 4387 of 2004 has claimed wages to the tune of Rs. 60,000/-. Such claims were made by the workmen concerned by filing separate applications u/s 33-C (2) of the Industrial Disputes Act, 1947.
6. The management on being noticed had submitted its written statement in which it was stated that the workmen were transferred on administrative grounds initially to Kalidaspur Project under Satgram Area 3. and after their release when their joining were not accepted under Satgram Area, their cases were referred to the Headquarter which issued a fresh order for their posting at S.P. Mines but there also the workmen concerned were not allowed to join and ultimately the G.M. (P&IR), Sanctoria issued an order for their reposting at Rajmahal Area and as the transfer was made on administrative ground which was serious in nature their joining was not accepted at Rajmahal Area also. It is the case of the management that the matter was taken up at the level of Director (Personnel) and considering the situation prevailing both the workmen were allowed to join at S.P. Mines. The management further asserts that the claim for idle wages made by the workmen concerned does not have any legal foundation as they did not perform any work during the transitory period and as such the claim for payment of idle wages could not be entertained. The management has also questioned the maintainability of the proceeding u/s 33-C (2) of the Industrial Disputes Act, 1947.
7. The learned Presiding Officer, Central Government, Industrial Tribunal-cum-Labour Court at Asansol vide separate orders passed on 09.08.2002 in LC Application No. 5 of 1999 and LC Application No. 6 of 1999 had allowed the claim of the respective workmen u/s 33-C (2) of the Industrial Disputes Act, 1947 and directed the petitioner to make payment of Rs. 48,000/- and Rs. 60,000/- respectively, subject to deduction towards legal contributions to the workmen concerned. The petitioners being aggrieved by the impugned orders has preferred the present writ applications.
8. It has been stated by Mr. Rajesh Lala, learned counsel for the petitioner that the application preferred u/s 33-C (2) of the Industrial Disputes Act, 1947 is not maintainable in view of the fact that there was no previous determination of the claim made by the workmen concerned and since Section 33-C (2) of the Industrial Disputes Act, 1947 is basically an execution proceeding, the learned Presiding Officer could not have determined the issue without considering the preliminary objection raised by the petitioner regarding the maintainability of such application. It has further been stated that even otherwise the concerned workmen are not entitled to wages for the idle period since the delay in joining was not due 4. to laches on the part of the management but it was solely on account of the fact that the concerned workmen from the very initial stage of transfer were putting obstacles in implementation of the order of transfer as conditions were put forward that only if a quarter is made available they will vacate the quarter situated at Urja Nagar, Rajmahal Project. It has further been submitted that the learned Presiding Officer has totally relied upon the case of the workmen concerned without at all considering the plea of the management. On such parameters, learned counsel for the petitioner prays for setting aside the impugned orders dated 09.08.2002.
9. Mr. Manoj Kumar Sah, learned counsel for the respondent No. 2 in W.P.(L) No. 4486 of 2004 has stated that the sequential events would clearly reveal that the workman had adhered to the dictum of the management but their joining was refused on several occasions and ultimately they had joined at S.P. Mines but the idle period for which the workmen concerned were not paid their wages was solely on account of the fault of the management for which the workmen concerned cannot be deprived of the wages for the idle period.
10. Since the learned counsel for the petitioners has raised preliminary objection with respect to the maintainability of the proceedings initiated on separate applications filed u/s 33-C (2) of the Industrial Disputes Act, 1947, the said issue is being taken at the first instance. In fact before deliberating on the issue of maintainability it must be taken note that the labour Court when such issue had been raised should have determined the same at the very threshold. Whether or not at the time of hearing the maintainability issue was addressed becomes immaterial, once an objection has been raised regarding maintainability of the proceeding u/s 33-C (2) of the Industrial Disputes Act, 1947. The learned Labour Court has come to a finding that the application is maintainable by merely stating that it is a fit case to exercise jurisdiction u/s 33-C (2) of the Industrial Disputes Act, 1947. Since almost 20 years have passed and the claim of the concerned workmen has not attained finality it becomes the bounden duty of this Court to decide the said issue moreso in view of the vehemence of the learned counsel for the petitioner in countering the finding of the learned Tribunal that the application is maintainable.
5.11. Before adverting to the various judicial pronouncements cited by the learned counsel for the petitioner and to address the issue of maintainability it would be apt to refer to Section 33-C (2) of the Industrial Disputes Act, 1947 which reads as follows:-
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 of 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. 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.
12. The applicability of the aforesaid provision and the boundaries to which the said provision can be confined to stand considered time and again by the Hon'ble Supreme Court and reference of a few judgments are noted herein below:
In the case of Central Inland Water Transport Corporation Limited versus The Workmen and Another reported in (1974) 4 SCC 696 it was held as follows:-
12. It is now well-settled that a proceeding under section 33(C)(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Thief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar it was reiterated that proceedings under section 33(C)(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the Position of 6. an executing court. It was also reiterated that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer.
In the case of M/s. Punjab Beverages Pvt. Ltd. versus Suresh Chand and Another reported in (1978) 2 SCC 144 it was held as follows:-
3. The principal question which arises for consideration in these appeals is as to what is the effect of contravention of section 33 (2) (b) on an order of dismissal passed by an employer in breach of it. Does it render the order of dismissal void and inoperative so that the aggrieved workman can say that he continues to be in service and is entitled to receive wages from the employer? It is only if an order of dismissal passed in contravention of section 33 (2) (b) is null and void that the aggrieved workman would be entitled to maintain an application under section 33C(2) for determination and payment of the amount of wages due to him on the basis that he continues in service despite the order of dismissal.
It is now well-settled, as a result of several decisions of this Court, that a proceeding under section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from his employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer (Vide Chief Mining Engineer East India Coal Co. Ltd. v. Rameshwar) It is not competent to the Labour Court exercising jurisdiction under section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim 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 Act. (Vide State Bank of Bikaner and Jaipur v. R. L. Khandelwal. That is why Gajendragadkar, J., pointed out in The Central Bank of India Ltd. v. P. S. Rajagopalan that 7. "if an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under Section 33 C(2) . His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under Section 33 C(2) ".
The workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under Section 10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under Section 33 C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under Section 33 C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of Section 33 (2)(b) a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid.
In the case of Municipal Corporation of Delhi versus Ganesh Rajak and Another reported in (1995) 1 SCC 235, the following determination was made
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 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 8. 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 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.
13.In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work"
being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33 C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33 C(2) of the Act by these respondents.
13. In all the aforesaid pronouncements Section 33 C (2) of the Industrial Disputes Act, 1947 has been considered to be in the nature of an execution proceeding wherein the labour court calculates the money due to 9. a workman from his employer. Such claim of the workman either has to be predetermined and then followed up by an application for its execution and/or the benefit which is sought to be computed must be an existing one. Either the said benefit is adjudicated upon or provided for, which arises in course of the relationship between the employer and the employee. The right therefore which accrues to an employee/ workman is either a predetermined right or a pre-existing right arising out of the employer and employee relationship or a right incidental to the benefit claimed. No doubt it is true that there was no prior adjudication pursuant to the concerned workman filing separate applications u/s 33-C (2) of the Industrial Disputes Act, 1947 but that by itself would not annihilate the right which had accrued to the concerned workman on account of pre-existing right which is the wages which was a right of the workman and for its determination during the idle period the workman concerned had rightly preferred such application as pre-existing right comes within the purview of Section 33-C (2) of the Industrial Disputes Act, 1947.
14. In view of the discussions made herein above therefore the application preferred by the concerned workman u/s 33-C (2) of the Industrial Disputes Act, 1947 is maintainable.
15. Since the issue regarding maintainability as raised by the petitioner management has been answered in the negative so far as the petitioner is concerned, this Court embarks to decide as to whether the claim of the concerned workmen was indeed on account of the laches on the part of the management making the concerned workmen sit idle for a period of 8 months thereby necessitating their filing the applications with which the Tribunal was seized with.
16. In the written statement, the management has taken a stand that the applicants were transferred on administrative grounds and since the grounds were serious in nature the concerned workmen were not accepted by the Rajmahal Area. However such assertion has not been punctuated by any documentary evidence and it appears that the same was a vague attempt made by the management to deprive the workmen concerned from making payment of the wages for the idle period. The sequence of events which has started from the transfer of the concerned 10. workmen from Rajmahal OCP to Kalidas Project under Satgram Area vide office order dated 05.12.1998 does indicate that the concerned workmen had gone to join in their subsequent place of posting but were not allowed and ultimately at the intervention of the Director (Personnel) their joining was permitted in S.P. mines. The petitioner has claimed that the delay had accrued on account of failure in the part of the concerned workmen to join at Kalidas Project under Satgram area, but it appears that the concerned workmen had represented the authorities that they should be allowed to resume duty at Rajmahal Project at which a condition was put forward regarding vacation of quarter at which a response was given that if a quarter is allotted at SP. Mines, Chitra, the existing quarter shall be vacated. Such plea taken by the concerned workmen was reasonable and understandable which should have been compassionately considered by the management. It also appears from the written statement of the management that the concerned workmen were not allowed to join at various places including Satgram area, Rajmahal area and ultimately they were allowed to join at S.P. mines. It therefore appears that the workmen concerned have put forward a reasonable explanation and it cannot be said that the concerned workmen had not worked on account of their laches, but as it appears that it was the management on whose fault the concerned workmen were not allowed to join and resume the duty which led to an idle period of 8 months from June, 1998 to January, 1999 and as such the claim made u/s 33-C (2) of the Industrial Disputes Act, 1947 was a legitimate claim which has been properly appreciated by the learned Tribunal while computing the wages to the tune of Rs. 48,000/- and Rs. 60,000/- in favour of the respondents No. 2 in the respective cases. The orders dated 09.08.2002 passed in LC Application No. 5 of 1999 and LC Application No. 6 of 1999 by the learned Presiding Officer, Central Government, Industrial Tribunal-cum-Labour Court at Asansol does not merit interference and accordingly both these writ applications are hereby dismissed.
MK (RONGON MUKHOPADHYAY, J.)