Punjab-Haryana High Court
Mohan Nagpal vs The Editor on 5 October, 2011
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.14683 OF 1991 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: October 5, 2011
Mohan Nagpal
.....Petitioner
VERSUS
The Editor, Navbharat Times, New Delhi and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
Whether Reporters of local papers may be allowed to see the judgement?
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Ram Lal Gupta, Advocate,
for the petitioner.
Mr. Harsh Aggarwal, Advocate,
for the respondents.
****
RANJIT SINGH, J.
The issue regarding scope of Section 33(c)(2) of the Industrial Disputes Act, 1947 (for short, "the Act") arises for consideration in this case. The petitioner had moved an application under Section 33(c)(2) of the Act before Labour Court, Bhatinda, claiming recovery of arrears of wages as per Palekar Wage Board Award, bonus, employees provident fund, family pension, interim relief etc. The Labour Court has dismissed the application, being not maintainable by holding that right to benefit sought to be computed under the Section must be an existing one. The petitioner accordingly has impugned this finding through the present writ petition. Counsel CIVIL WRIT PETITION NO.14683 OF 1991 :{ 2 }:
for the parties have accordingly debated about the scope of Section 33(c)(2) of the Act.
The petitioner was employed as Correspondent by Navbharat Times (respondent No.1) on 8.5.1975 and had worked as such. The petitioner claims that respondent No.1 did not pay the arrears of wages to the petitioner despite number of representations. The petitioner accordingly contends that he was forced to approach the Labour Court through application under Section 33(c)(2) of the Act for recovery of arrears of wages.
The petitioner has placed on record his appointment letter dated 8.5.1976. As per the appointment letter, the petitioner was to start sending news on probation. He was not to get any return and his appointment was to be considered on the basis of the quality of the news reports. As per the petitioner, his services were regularized on 1.3.1977. The petitioner was to get remunerations under the rules, which was `1/- per column inch as was provided in letter dated 1.3.1977. The petitioner has also made reference to the letters initiated by respondent No.1 to M/s Nortan Dass and Brothers, News Agents at Bhatinda, apprising the agency about the appointment of the petitioner as a Correspondent and that he be supplied complementary copy of Nav Bharat Times free of costs. These documents and a communication by respondent No.1 to the effect that the petitioner was drawing minimum wages in receipt of retainers prescribed under the Wage Board recommendations for working Journalists were placed on record of the Labour Court. On this basis, the petitioner claims to have been appointed as whole time Correspondent and described himself as a working Journalist as per CIVIL WRIT PETITION NO.14683 OF 1991 :{ 3 }:
the definition given under Section 2(f) of working Journalists and other News Paper Employees (Condition of Service) and Miscellaneous Provision Act, 1955. As per the petitioner, his principal avocation was that of a Journalist. He accordingly claims that he was entitled to be paid as per 3rd Wage Board Award by Justice Palekar, which is popularly known as Palekar Award. It is averred that 3rd Wage Board was constituted under Section 13 of the Working Journalist Act and respondent No.1 would fall in 1-B Class as prescribed under Palekar Award. Reference is made to the definition of part time Correspondent, which means that a Correspondent, who is on the establishment of a newspaper and whose principal avocation is that of journalism. As per Para 19 of the award, part time Correspondent is to be paid not less than 1/3rd of the basic wage (basic pay + D.A.) applicable to full time correspondent at similar level. Payment should be made on column basis and rate is to be settled by mutual negotiation.
Fourth Wage Board was also constituted and is known as Bachawat Award. This award had also adopted the definition given under the Bachawat Award but has increased the salary to be paid by the newspaper establishment to their Correspondents. On this basis, the petitioner claims that he was entitled to the wages under the award as admittedly he was working as a Correspondent. The petitioner, thus, has impugned the order passed by the Labour Court, which has declined to grant relief to the petitioner on the ground that he did not have any existing right, which could be computed. The petitioner accordingly had filed an application before the Labour Court with the following averments:-
CIVIL WRIT PETITION NO.14683 OF 1991 :{ 4 }:
"The respondent appointed the applicant as
Correspondent `Working Journalist' at Bhatinda & the latter used to send news report & other material for publication with good sense of responsibility for past several years but when he raised `demand' for the payment of his wages as per Palekar Wage Board Award for Working Journalist, Bonus, Employees Provident Fund & Family Pension, Interim Relief & other benefits permissible under rules, the respondent turned inimical instead of conceding in utter violation of Labour Laws & adopted unfair Labour Practices;
Further, with the motive to reduce his earnings to zero the respondent did not give space coverage even to a single news report provided by him & it had not issued `bearing Press Telegram Authority' card in his name so that he might not be able to produce news reporting on record and also changed his service conditions during the pendency of proceedings. According to him, he used to get Rs.250/- to Rs.350/- P.M. by way of space covering before his victimization started at the hands of the respondent."
Respondents had filed reply and denied the fact that the petitioner was their Correspondent `working Journalist` and rather would urge that the petitioner was never the employee of the respondents. Subsequently, the respondents filed an amended reply to plead that according to own showing of the petitioner, he was merely a stringer/Liner while the demands, which he had raised, were CIVIL WRIT PETITION NO.14683 OF 1991 :{ 5 }:
applicable only to such working Journalists who were employees of the respondents. As per the respondents, Stringer/Liner is never the employee and, thus, the petitioner has no right to demand benefit under the reference as he was entitled to be paid on the basis of space coverage i.e. `1/- column per inch of such news which used to send and was accepted by the Editor and the same was published in the newspaper. As per the respondents, such an application was not maintainable as the petitioner did not have any existing right in his favour. The Labour Court framed the following issues:-
"I. Whether there is no relationship of employer & employees between the parties?
ii. To what amount, if any, is the workman entitled? iii. Relief."
The petitioner simply tendered his affidavit and the documents, which were the communications addressed by him. The application as well as the affidavit were silent about the amount, which the petitioner wanted to claim. The petitioner subsequently filed an application and prayed that at the end in the last para of the affidavit, he had claimed demand of `1.50 lacs but it got omitted due to over-sight and hence, it be read accordingly. Later, the petitioner raised his claim to `2,44,972/- by moving another application.
The respondents examined Sushil Joshi (MW1) in rebuttal and also relied upon copy of some plaint and thereafter closed their evidence. It is in this context required to be seen if the application under Section 33(c)(2) of the Act would be maintainable or not.
Learned counsel for the petitioner has very vehemently CIVIL WRIT PETITION NO.14683 OF 1991 :{ 6 }:
canvassed his view point to urge that the application filed by the petitioner was clearly maintainable and the Labour Court was misconceived in holding that the application was not maintainable under Section 33(c)(2) of the Act. As per the counsel, the claims, which are to be computed, will fall within the jurisdiction of a Labour Court under Section 33(c)(2) of the Act. In this regard, the counsel has referred to large number of precedents, which can be noticed.
Reference is made to Chief Mining Engineer, M/s East India Coal Co., Ltd., Bararee Colliery Dhanbad Vs. Rameshwar and others, AIR 1968 Supreme Court 218. While considering the scope of Section 33(c)(2) of the Act, the Hon'ble Supreme Court has observed that contention as to jurisdiction of the Labour Court depends on the true construction of Section 33(c)(2) of the Act as it stood in 1962, when application in the said case was filed, which was before the Amendment Act 36 of 1964. On the basis of unamended Act the Supreme Court has recorded that the following proposition on the question as to the scope of Section 33(c)(2) of the Act are deductible from the different decisions that were noticed:-
"(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 33A in 1950 and Section 33-C 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 CIVIL WRIT PETITION NO.14683 OF 1991 :{ 7 }:
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 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 sought to be implemented by individual workman. Therefore though in determining the scope of Section 33-C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under Section 10 (1), cannot be brought under Section 33C.
(3) Section 33-C which is in terms similar to those in Section 20 of the Industrial Disputes (Appellate Tribunal) Act 1950 is a provision in the nature of an executing provision;
(4) Section 33-C (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 33-C(2) takes within its purview cases of CIVIL WRIT PETITION NO.14683 OF 1991 :{ 8 }:
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 Section 20 (2) of the Industrial Disputes (Appellate Tribunal) Act 1950 are omitted in Section 33-C(2) shows that the scope of Section 33-C(2) is wider than that of Section 33-C(1).
Therefore, whereas sub-section (1) is confined to claims arising under an award or settlement or Chapter V-A, claims which can be entertained under sub-Section (2) 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 sub-Section (1) would fall under sub- section (2), it pointed out illustrative cases which would not fall under sub-Section (2), viz., cases which would appropriately be adjudicated under Section 10(1) or claims which have already been the subject-matter of settlement to which Section 18 and 19 would apply. (8) Since 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 a workman is in such cases in the position of an executing court, the Labour Court like the CIVIL WRIT PETITION NO.14683 OF 1991 :{ 9 }:
executing court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33-C (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."
While deducing these principles, the Hon'ble Supreme Court in Chief Mining Engineer's case (supra) took note of the three cases i.e. Punjab National Bank Ltd. Vs. Kharbanda, 1962 Supp (2) SCR 977, Central Bank of India Vs. Rajagopalan, 1964-3 SCR 140: AIR 1964 SC 743 and Bombay Gas Co. Ltd. Vs. Gopal Bhiva, 1964-3 SCR 709.
The Court in Chief Mining Engineer's case (supra) has otherwise held as under:-
"It is clear 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. Since the scope of sub-sec. 2 is wider than that of sub sec. 1 and the sub-section is not confined to cases arising under an award, settlement or under the, provisions of Chapter VA. there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being anything contrary to such statute or s. 33C(2), cannot fall within sub-section 2......"
The counsel has then referred to a decision of this Court CIVIL WRIT PETITION NO.14683 OF 1991 :{ 10 }:
in Harnam Chand and others Vs. the Management, Punjab University Printing Press, Chandigarh and others, 1990 (1) Recent Services Judgements 663, where the Court has expressed that the Labour Court did not have jurisdiction under Section 33(c)(2) of the Act to determine the equation of the status of a claimant with those of junior grade compositions and such disputes would squarely be covered by Section 10 of the Act and can be determined by the Industrial Tribunal. Matter of equation of the post being in dispute was held to be outside the purview of Section 33(c)(2) of the Act.
Reference is then made to Market Committee Vs. Presiding Officer, Labour Court and another, 1981 (2) ILR Punjab and Haryana 313. In this case, the Court has viewed that if money or benefit is claimed by a workman on the basis that the right already exists and the existence of a right is denied, it is competent for the Labour Court in the proceedings under Section 33(c)(2) of the Act to decide whether the right does or does not exist. In this regard only reference is made to the case of Central Bank of India Ltd. Vs. The Central Bank of India Ltd.'s case, (supra) where the Supreme Court has viewed that Section 33(c)(2) of the Act applies even if right to benefit is disputed by the employer and the Labour Court has jurisdiction to determine whether workman has a right to receive benefits. For this purpose, the Labour Court can interpret award or settlement on which the workman's right is based.
The Court in this case has further observed that in determining the scope of under Section 33(c)(2) of the Act, care must be taken not to exclude cases which legitimately falls within its CIVIL WRIT PETITION NO.14683 OF 1991 :{ 11 }:
purview but it must also be borne in mind that the cases which fall under Section 10(1) of the Act can not be brought within the scope of under Section 33(c)(2) of the Act. Though the Hon'ble Supreme Court repelled the argument that Section 33(c)(2) of the Act may not entitle the Labour Court to interpret the award or settlement as interpretation of the award is expressly provided for by Section 36A but gave certain examples in detail to specify the sweep of Section 33(c)(2) of the Act. In this regard, the following observations may need notice:-
"Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his` existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under s. 33C (2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under s. 33C (2),it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests.
We have already noticed that in enacting S. 33C the CIVIL WRIT PETITION NO.14683 OF 1991 :{ 12 }:
legislature has deliberately omitted some words which occurred in S. 20 (2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable that similar words of limitation have been used in s. 33C (1) because S. 33 C (1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter VA. It is thus clear that claims made under s.
33C (1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in s. 33C (2) and to that extent, the scope of S. 33C (2) is undoubtedly wider than that of S. 33C (1). It is true that even in respect of the larger class. of cases which fail under S. 33C (2), after the determination is made by the Labour Court the execution goes back again to S. 33C (1). That is why S. 33C (2) expressly provides that the amount so determined may be recovered as provided for in sub-section (1). It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under S. 33C (2). There is no doubt that the three categories of claims mentioned in S. 33C (1) fall under S. 33C (2) and in that sense, S. 33C (2) can itself be deemed to be a kind of. Execution proceeding; but it is possible that Claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under S. 33C (2) and that may CIVIL WRIT PETITION NO.14683 OF 1991 :{ 13 }:
illustrate its wider scope. We would, however, like to indicate some of the claims which would not fall under S. 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. 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 S. 33C (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 S. 33C (2). If a settlement has been, duly reached between the employer and his employees and it fails under S. 18 (2) or (3) of the Act and is governed by S.(19) 2 it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative no claim can be made under S. 33C(2) inconsistent with the said settlement. If the settlement is intended to be terminated, proper steps may have to be taken in that behalf and a dispute that may be arise CIVIL WRIT PETITION NO.14683 OF 1991 :{ 14 }:
thereafter may to be dealt with according. to the, other procedure prescribed by the Act. Thus, our conclusion is that the scope of s. 33C (2)is wider than s. 33C (1) and cannot be wholly assimilated with it, though for obvious reasons, we do not propose to decide or indicate what additional cases would fall under S. 33C (2) which may not fall under S. 33C (1). In this connection, we may incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd (1962) 1 Lab LJ 234 (AIR 1963 SC 487) that S. 33C is a provision in the nature of execution should not be interpreted to mean that the scope of S. 33C (2) is exactly the same as S. 33C (1) (at p. 238).(of Lab. LJ):(at pp.489-490 of AIR)." In Business Manager, Andhra Printers Ltd. Vs. Industrial Tribunal-cum-Labour Court & Another, 1993 ILLJ 562, Andhra High Court has viewed that where two remedies are available under the special enactments dealing with labour welfare, it is perfectly open to the employees to choose one of the remedies under either of the enactment. This observation was made in the light of objection that Section 17 of the Working Journalists and other Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, 1955 also provides a remedy for payment of claims.
Reference is then made to United News India Vs. The Presiding Officer and another, 2008 (1) SCT 514, where this Court has held that even part time working journalists fall within the definition of workman and the respondent-workman, who was working as part time journalist, was entitled to full back wages. In CIVIL WRIT PETITION NO.14683 OF 1991 :{ 15 }:
Cement Corp. of India Vs. Presiding Officer, Central Govt. Industrial Tribunal Labour Court, 2002(1) SCT 355, this Court has held that if a workman's right to receive benefit is disputed that may be determined by the Labour Court before proceeding to compute the benefit under Section 33-C(2). In this case, the petitioner corporation was denying the relationship of the workman. The court has further observed in this case that the labour Court has a jurisdiction to interfere with the settlement and award while proceeding with the application under Section 33-C(2). In Bhakra Beas Management Board, Chandigarh Vs. Presiding Officer, Central Govt. Labour Court, Chandigarh and others, 2004(3) RSJ 777, Division Bench of this court has viewed that computation of wages on the basis of rule, order or instructions does not amount to adjudication, but fall within the scope of existing right. Finally, the counsel has referred to Prithvi Singh Vs. Presiding Officer, Central Govt., Ind. Tribunal-cum-Labour Court, Chd., 1995(2) PLR 516 to point out that computation of benefit in terms of the money and determination of existence of a claim and holding of an enquiry and incidental enquiry for such determination fall within the scope of Section 33-C(2). It is also observed that jurisdiction is not barred only because the claim is disputed by the Management even if it was a case of lay-off or closure.
The counsel for the respondents, however, has seriously joined issues in this regard with the counsel for the petitioner. He would submit that proceedings under Section 33(c)(2) of the Act are in the nature of execution proceedings and such proceedings pre- supposes some adjudication leading to termination of a right, which CIVIL WRIT PETITION NO.14683 OF 1991 :{ 16 }:
needs to be enforced. In support of this, the counsel has referred to D.Krishnan and another Vs. Special Officer, Vellore Cooperative Sugar Mill and another, (2008) 7 Supreme Court Cases 22. The workman in this case has claimed over-time wages. His status as a workman was disputed. In view of the disputed facts, case for invoking Section 33(c)(2) was held not made out. Reference further is made to State of U.P. And another Vs. Brijpal Singh, (2005) 8 Supreme Court Cases 58, where the Hon'ble Supreme Court has observed that a proceeding under Section 33(c)(2) is a proceeding in the nature of execution proceedings in which Labour Court calculates the amount of money due to workman from the employer or if the workman is entitled to any benefit, which is capable of being computed in terms of money, proceeds to compute the benefits in terms of money. The right to the money, which is sought to be calculated or the benefit, which is sought to be computed, must be an existing one i.e. to say already adjudicated upon or provided for and must arise in the course of and relation to the relationship between industrial workman and his employer. The Court has further observed that it is not competent for the Labour Court exercising jurisdiction under Section 33(c)(2) of the Act to arrogate to itself the function of the industrial tribunal and entertain a claim, which is not based on but which may appropriately be made subject matter of industrial dispute in a reference under Section 10 of the Act. Importantly, it is further observed that Labour Court has no jurisdiction to decide the first workman's entitlement and then proceed to compute the benefits so adjudicated on that basis in exercise of power under Section 33(c)(2) of the Act. It is only when CIVIL WRIT PETITION NO.14683 OF 1991 :{ 17 }:
the entitlement has been earlier been adjudicated or recognized by the 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 Executive Court power to interpret the degree for the purpose of its execution. As per the Hon'ble Court, the difference between the pre-existing right or benefit on the one hand and the right or benefit which is considered just and fair on the other hand is vital. Former falls within the jurisdiction of Labour Court exercising power under Section 33(c)(2) while the later does not.
Reference is made to Municipal Corporation of Delhi Vs. Ganesh Razak, 1995 (1) SCC 235, where the Court has held as under:-
"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 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 CIVIL WRIT PETITION NO.14683 OF 1991 :{ 18 }:
earlier adjudicated or recognised by the 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."
In this regard, reference is also made to State Bank of India Vs. Ram Chandra Dubey, 2001 (1) SCC 73, Punjab Beverages (P) Ltd. Vs. Suresh Chand, 1978 (2) SCC 144. The Hon'ble Supreme Court has again summed up the principle enunciated through various judgements in Ram Chandra Dubey's case (supra) as under:-
"Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre- existing benefit or one flowing from a 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. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case CIVIL WRIT PETITION NO.14683 OF 1991 :{ 19 }:
that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the high Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages.
In the case of State Bank of Bikaner and Jaipur Vs. Khandelwal, 1968 ILLJ 589, the Supreme Court while considering the maintainability of application under Section 33(c)(2) in regard to CIVIL WRIT PETITION NO.14683 OF 1991 :{ 20 }:
claim for supervisory allowance under Shastri Award has held that application would not be maintainable.
It is on the basis of above noted ratio of law that the counsel has advocated their respective point of view.
The Constitutional Bench of Hon'ble Supreme Court in Central Bank of India's case (Supra), has gone into the legislative history of this provision to observe that this was so enacted to provide speedy remedy to enforce the existing rights, which the Act has failed to give due protection to the workman. If an individual employee, did not seek to raise an industrial dispute in the sense that he did not want any change in the terms and conditions of his service, but wanted only to implement or enforce his existing rights, it was not considered necessary for him to take recourse to the remedy prescribed under Section 10(1) of the Act. It was due to criticism made against said omission under the Act that speedy enforcement of individual workman's existing right was catered for. This provision, thus, filled up the lacuna, which was discovered as workmen were not given a speedy remedy to implement or execute the award in his favour. Section 20(1) has provided that if money was due under an award or a decision of an Industrial Tribunal, it may be recovered as arrears of a land revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the said benefit. Section 20(2) then dealt with those cases where workman was entitled to receive any benefit under the award or decision of the Industrial Tribunal, which was capable of being computed in terms of money. Section 20(2), thus, roughly corresponded to the provisions of Section 33(c)(2) of the Act. The CIVIL WRIT PETITION NO.14683 OF 1991 :{ 21 }:
distinction, as can be noticed, is that benefit, which can be claimed by workman under the award or decision of a Tribunal, had to be filed before that Tribunal, which had made the award or a decision. These limitations have been removed under Section 33(c)(2) of the Act. Then legislature provided additional right by adding chapter VA to the Act by amending Act No.43 of 1953. This Chapter deals with the claims of lay-off and retrenchment and this Chapter also provided for machinery to recover the money due from the employer under this Chapter.
Yet again, Industrial Disputes (Appellate Tribunal) Act was repealed by enacting Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Chapter VA inserted Section 33
(c)(1), (2) and (3) and Section 36A in the Act. Recovery provisions are, thus, made in Section 33(c) and an additional provision under Section 36A, which deals with the cases where doubt of difficulty may arise in interpreting any provisions of the award or settlement.
These provisions, thus, provided for speedy remedy and would illustrate the cases where the workmen can enforce their right without having recourse to Section 10(1) of the Act, which depended upon their union to espouse their case. Accordingly, it was observed by the Constitutional Bench that the construction of this provision can not be so broad as to bring within the scope of the Section cases which would fall under Section 10(1) of the Act. The Court also observed that it would also not be reasonable to exclude from the scope of Section 33(c) the cases of existing right which are sought to be implemented by individual workman. The Court was not impressed with the argument raised that scope of sub-section (2) would be CIVIL WRIT PETITION NO.14683 OF 1991 :{ 22 }:
similar to sub-section (1) of Section 33 as under sub-section (1) any disputed question about right to receive the money could not be adjudicated upon by the appropriate Government. The Court opined that on a fair and reasonable construction of sub-section (2), it is clear that if workman's right to receive benefit is disputed that may have to be determined by the Labour Court. It is also observed that before proceeding to computing the benefits in terms of money, the Labour Court invariably has to deal with the question as to whether the workman has a right to receive that benefit. If this right is disputed, the Labour Court must deal with the question and decide whether workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answer this point in favour of the workman that the next question of making necessary computation then arise. The Court even did not accept the submission that while dealing with the question about the existence of a right, the Labour Court can not interpret the award or settlement on which the right is based as interpretation of the award or settlement is specifically provided expressly by Section 36A of the Act. The Court has further observed that the Court while adjudicating under this Section is virtually exercising execution power in some cases as it is open to the executing court to interpret the decree for the purpose of execution. The Labour Court would have same rights. However, since the executing Court cannot go beyond the decree nor can it add or subtract from the provisions of the decree, these limitations would also apply to Labour Court. The Court had then given various examples which had already been noticed.
This judgement has held the field and has invariably been CIVIL WRIT PETITION NO.14683 OF 1991 :{ 23 }:
followed in large number of cases. Thus, the argument that the Labour Court can not interpret the award may not be open to the counsel to raise.
Subsequently, Hon'ble Supreme Court had culled out the proposition of law in scope of Section 33(c)(2) of the Act in Chief Mining Engineer's case (supra), which has already been noticed above. Thus, where the individual workman wants to enforce his existing right, then this can not be excluded from his right to seek implementation under Section 33(c)(2) of the Act. However, the care is to be taken not to include cases within its purview, which would fall under Section 10(1) of the Act. Whereas Section 33(c)(1) of the Act 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 so there is no dispute about its computation but sub- section (2) applies both to non-monetary as well as monetary benefits. In cases of monetary benefits, it applies where such benefit is not calculated and there is dispute about its calculation. The Labour Court can interpret the award or settlement on which workman's right rests, where the workman claims the benefit to which he is entitled to and as already noticed, proceedings under Section 33(c)(2) of the Act are analogous to execution proceedings and the Labour Court, in such cases, is in a position of Executing Court. Accordingly, the Labour Court would be competent to interpret the award or settlement where the benefit is claimed. What would emerge from the ratio in all these judgements is that the distinction between the rights, which can be adjudicated under Section 10(1) of the Act are to be excluded from the scope of Section 33(c)(2) of the CIVIL WRIT PETITION NO.14683 OF 1991 :{ 24 }:
Act.
To what extent the Labour Court can go while interpreting the award would emerge from some subsequent decisions, which have been noticed above. A Division Bench of this Court in Harnam Chand's case (supra) made an attempt to discern the principles to hold that where dispute is squarely covered by Section 10 of the Act, it can not be determined by the Labour Court while exercising power under Section 33(c)(2) of the Act. It is also noticed that the Labour Court is competent to interpret the award or settlement in order to execute the same. Mere denial by an employer may not be sufficient to negate the claim made under Section 33(c)(2) of the Act but where the right, which is the foundation of a claim is in itself in dispute, then it would be exclusively within the competence of the Industrial Tribunal to adjudicate upon and would be outside the purview of Section 33(c)(2) of the Act. The power under Section Section 33(c) are held meant to compute the compensation claimed to be payable and where question raised is incidental or referable to the interpretation, then the Labour Court will be within its jurisdiction to determine the same.
Hon'ble Supreme Court in D.Krishnan's case (supra) held that it is beyond jurisdiction of the Labour Court to determine under Section 33(c)(2) whether or not the claimants are workman under Section 2(S). Reference in this regard here can be made to the observations in the case of Brij Pal Singh (supra), where the Hon'ble Supreme Court has held that Labour Court has no jurisdiction first to decide the workman's entitlement and then proceed to compute the benefits so adjudicated on that basis in exercise of its power under CIVIL WRIT PETITION NO.14683 OF 1991 :{ 25 }:
Section 33(c)(2) of the Act. As observed, it is only when the entitlement has earlier been adjudicated or recognized by the employer that for enforcement thereof some ambiguity requires interpretation and that interpretation is treated as incidental to the Labour Court's power like that of an Executing Court's power to interpret the decree for the purpose of execution. The Court highlighted the difference between pre-existing rights or the benefit on one hand and the right or benefit, which is considered just and fair to be vital.
This, in my view, would clearly provide the scope of Section 33(c)(2) of the Act. If there is a pre-existing right or a benefit, then it will be within the jurisdiction of Labour Court to execute the same and if any ambiguity requires to be interpreted, it being incidental to the Labour Court's power, the same can be so interpreted for the purpose of execution. On the other hand, if right or benefit is claimed on the ground that it would be just and fair, then it would be beyond the competence of the Labour Court to determine that right first and then compute the same. The scope of enquiry, which the Labour Court can undertake can well be understood from this principle that has been noticed by the Hon'ble Supreme Court on the basis of law laid down in Municipal Corporation of Delhi, Punjab Beverages (P) Ltd. and Ram Chandra Dubey's cases (supra). Brijpal Singh's case (supra) is referred to and relied by the Hon'ble Supreme Court in D.Krishnan's case (supra) alongwith abovesaid cases.
In Municipal Corporation of Delhi's case (supra), the Hon'ble Supreme Court observed that the High Court has referred to CIVIL WRIT PETITION NO.14683 OF 1991 :{ 26 }:
some of the decisions but missed the true import thereof. The Court has then observed that the decisions would clearly indicate that where very basis of the claim or the entitlement to certain benefits is disputed, there being no earlier adjudication or recognition thereof by an employer, then this dispute relating to entitlement is not incidental to the benefit claimed and, thus, outside the scope of Section 33(c) (2) of the Act. The Hon'ble Court has, thus, observed that the Labour Court has no jurisdiction to decide the entitlement of a workman and then to adjudicate the benefit under Section 33(c)(2) of the Act. It is only where entitlement is earlier adjudicated or recognized and for the purpose of implementation, some ambiguity requires interpretation that is treated as incidental to Labour Court's power.
The benefit, which can be enforced under this Section, is necessarily has to be a pre-existing benefit or flowing from a pre-existing right.
On this basis of the law, as it would emerge from the judgements noticed above we have to test the legality of the order passed by the Labour Court. The claim of the petitioner was disputed by the respondent-management not only on the ground that he was never its employee but also to his entitlement under Section 33(c)(2) of the Act. As per the respondents, the claim of the petitioner was ill- founded. The Labour Court, on the basis of material produced before it, found that the controversy over the status of the petitioner was not without any foundation. The petitioner was found to have been given a chance for despatching news items on trial basis only and was not to be given any remuneration. Subsequently, it was mentioned that the petitioner was appointed as Sanvad Prakshak and was to paid remuneration at the rate of Rs.1/- per inch of the news item published CIVIL WRIT PETITION NO.14683 OF 1991 :{ 27 }:
at his behest. The Labour Court also found that there was no adjudication, as a result of which the petitioner was seeking either computation or enforcement and his status was subject to bonafide dispute. The Palekar award or the Bachawat Award, which has been advanced as a basis for making this claim not only in this regard to his status by the petitioner but also to claim the benefits perhaps was never produced before the Labour Court nor was available on record of this writ petition. It can, thus, be observed that there is no existing right or entitlement on the basis of which the petitioner has made this claim under Section 33(c)(2) of the Act. Concededly, there was no earlier adjudication or recognition by the employer about the entitlement or right of the petitioner. The dispute in regard can not be considered incidental to the benefit claimed and, therefore, would be outside the scope of proceedings under Section 33(c)(2) of the Act. What the petitioner was seeking was adjudication of his status and thereafter his entitlement and thereupon asking the Labour Court to compute the benefit under Section 33(c)(2) of the Act. It is not a case of some ambiguity, which requires interpretation, which would be incidental to the power being exercised under Section 33(c)(2) of the Act. To me, it appears that the petitioner is claiming his right on the ground that it is just and fair and not that this is a pre-existing right or a benefit, which he had claimed. The Labour Court was being called upon to first determine the rights of the petitioner as a stringer/Liner and then was making claim for his entitlement under the award, which would still had to be interpreted to determine his entitlement. The award was not an adjudicated right, which the petitioner could seek implementation thereof. Clearly, there is no pre-
CIVIL WRIT PETITION NO.14683 OF 1991 :{ 28 }:
existing benefit or the benefit flowing from pre-existing right, which the petitioner was wanting to enforce. Accordingly, I am of the considered view that Labour Court was justified in rejecting the claim of the petitioner on the ground that the same is not maintainable under Section 33(c)(2) of the Act.
There is, thus, no merit in the writ petition and the same is accordingly dismissed.
October 5, 2011 ( RANJIT SINGH ) khurmi JUDGE