Madhya Pradesh High Court
K.D. Vaishya vs Central Govt. Industrial Tribunal And ... on 26 November, 1992
Equivalent citations: (1994)IILLJ69MP, 1993(0)MPLJ459
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER Shacheendra Dwivedi, J.
1. In this petition, the petitioner challenges the order passed by the Central Government Industrial Tribunal-cum-Labour Court No. 2, Bombay, whereby it declined to entertain the application filed by the petitioner under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter addressed as 'the Act').
2. The petitioner's claim is for payment of his withheld increments for the period from April 1, 1964 to Janaury 17, 1982. He was superannuated on January 17, 1982 by the respondent-Bank. It is submitted that the petitioner was entitled to the increments under para 85 of the Shastri Award and also under Bipartite Settlement arrived at between the representatives of employees and that of the Banks, including respondent No. 2. It is contended that the petitioner was illegally deprived of his increments. The Shastri Award provided that increments should normally be given and stoppage of increments by Management should only be by way of punishment for the proved misconduct or gross inefficiency.
3. The claim was presented by the petitioner after his retirement in the year 1982. It is further contended that the Management never gave any charge-sheet, letter or memo to the petitioner and the increments could not be stopped without a charge-sheet and a proper enquiry.
4. The Bank resisted the claim on two counts before the respondent Labour Court. Firstly, that the Court had no jurisdiction under Section 33C(2) of the Act to entertain the application and secondly, that the increments were not allowed to the petitioner for the reason of his gross inefficiency at the work due to impaired eyesight.
5. The facts may shortly be stated. The petitioner came in the respondent-Bank's service in the year 1948. From the year 1964, the Bank respondent No. 2 stopped giving increments to the petitioner as the petitioner suffered from gross inefficiency resulting from the impaired eye vision and his continuous ill-health. The fact was also got confirmed by his medical examination and therefore his services were terminated by respondent No. 2 on May 8, 1970. However, due to indulgence of All India Commercial Banks' Employees' Federation, of which the petitioner then was a member, and on purely humanitarian ground, the petitioner was reinstated on October 7, 1970, as a gesture of compassion and good will having reverence to amiable employer-employee relations in Banking Industry.
6. The controversy arose, as the Bank claimed withholding of the increments and the other resultant benefits on the ground of gross inefficiency.
7. Under the Shastri Award, reliance on which is placed by the petitioner, it has been provided that the stoppage of increment by Management could only come by way of punishment on proved misconduct and inefficiency. It is well settled that before any one is punished, there must be an enquiry and the person against whom an action is proposed to be taken must get the proper opportunity to defend himself. In the matter of employment if no domestic enquiry was held, for justifying the action taken against a workman, the employer may still justify his action before the Labour Court on a dispute under Section 10(1) where enquiry is made, providing opportunity to the employer to justify his action and for the employee to controvert and disprove the allegations as held by their Lordships of the Supreme Court in Workmen of Fires-tone Tyre and Rubber Co. of India (P). Ltd. v. The Management (1973-I-LLJ-278). This course is permissible only in a proceeding under Section 10(1) of the Act, as the scope of Section 33C(2) is a limited one. The Court acting under Section 33C(2) of the Act has to act merely as an Executing Court and cannot declare the action of the employer in depriving the employee of his claim as illegal. Once it is established or found that the claim of the employee was valid, which was wrongly denied by the employer, the jurisdiction of the Court under Section 33C(2) of the Act comes into play. On a fair and reasonable construction of Sub-clause (2), it would be clear that where workmen's right to receive the benefits is disputed, its determination by Labour Court would be required. The proceedings contemplated under Section 33C(2) are in nature analogous to execution proceedings and the Labour Court, which is called upon to compute the benefit claimed by an employee of an industry in terms of money is in such cases in the position of an Executing Court, like an Executing Court, dealing the execution proceedings under the Civil Procedure Code. The petitioner did not raise a dispute under Section 10(1) of the Act when an enquiry could be made ana directly invoked the jurisdiction of the Labour Court under Section 33C(2) of the Act. A right would accrue to the petitioner to receive the benefits as alleged by him only when the Labour Court answers the point in his favour. A workman cannot put forward a claim in an application under Section 33C(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, requiring reference under Section 10 of the Act.
8. For the purposes of Section 33C(2) of the Act, a claim should not be dependent upon determination of another matter, giving rise to a dispute falling under Section 10(1) orany other provisions of the Act. Such matter cannot be gone into in an application under Section 33C(2). The employee could not be deprived of an enquiry as he has a right of fullfiedged reference, but permitting a workman to resort to the remedy under Section 33C(2) of the Act would amount to circumventing the provisions of law. The respondent-Bank would get an opportunity to prove the allegations of inefficiency of the employee, on a dispute raised by the employee under Section 10(1) of the Act, for justifying its action of withholding the increments.
9. Employer gets a good and proper opportunity only in enquiry under Section 10(1) of the Act where he may prove the inefficiency of the workman and thereby justify its action of withholding the increments. In the instant case the petitioner did not raise an industrial dispute for withholding his increments by way of punishment for no reason during the period from 1964 to I970or even after his reinstatement in the year 1970 upto his date of superannuation in the year 1982. For the first time, the petitioner approached the Labour Court under Section 33C(2) of the Act only on December 10, 1982 after he hnd retired from service. In the circumstances, the order of respondent No. 1 (Anncxurc-G) dated February 10, 1986 that no relief could be granted to the petitioner in proceedings under Section 33C(2) of the Act, could not be said to be illegal, without jurisdiction, unjustified or perverse calling for the interference by this Court. The petitioner is, therefore, not entitled to any relief from this Court as his remedy lies elsewhere.
10. The petition is without substance and is, therefore, dismissed. There shall be no order as to costs. Security amount if deposited, shall be refunded to the petitioner