Karnataka High Court
Venkatswamy vs The Managing Director on 10 August, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 10TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE Mr.JUSTICE RAVI MALIMATH
WRIT PETITION NO.34643 OF 2010 (L-RES)
BETWEEN:
1. VENKATSWAMY,
AGED ABOUT 57 YEARS,
DRIVER, KSTDC GARAGE,
H.SIDDAIAH ROAD, BENGALURU.
2. SMT.H.PADMAVATHI, } amended as per
W/O LATE VENKATSWAMY, } orders of this
AGED ABOUT 61 YEARS, } Court dated
RESIDING AT NO.20/5, } 11.07.2017
RANGAPPA CROSS,
CHIKKA MAVALLI,
BENGALURU - 560 004. ...PETITIONERS
(BY SMT.K.SAROJINI MUTHANNA, ADVOCATE)
AND:
THE MANAGING DIRECTOR,
KARNATAKA STATE TOURISM,
DEVELOPMENT CORPORATION,
10/4, KASTURBA ROAD,
QUEENS CIRCLE,
SBENGALURU - 560 001. ...RESPONDENT
(BY SRI B.L.SANJEEV, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 09.02.2010 VIDE
ANNEXURE - 'H' APPLICATION NO.37 OF 2000 IN THE COURT
OF PRESIDING OFFICER II ADDITIONAL LABOUR COURT AT
BENGALURU AND DIRECT THE MANAGEMENT TO PAY ALL THE
DUES AS CLAIMED BY THE PETITIONERS.
****
THIS WRIT PETITION COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The case of the petitioner is that he is a driver of the respondent concern. He joined the services of the respondent concern in the year 1980. It is his case that certain payments pertaining to overtime wages, wages for all Sundays, Second Saturdays, National and Festival Holidays in a year, wages for the suspension period, etc., have not been paid by the respondent. Therefore, he filed an application under Section 33(c)(2) of the Industrial Disputes Act before the Labour Court. By the impugned order, the same was dismissed. Hence, this petition.
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2. Smt.Sarojini Muthanna, learned counsel for the petitioner contends that the Labour Court committed an error in denying relief to the petitioner. That the material on record would clearly indicate the days on which he has worked. The finding of the Labour Court that there is no document to show that he has worked on holidays and other days is incorrect. Hence, she pleads that the petition be allowed.
3. Learned counsel for the respondent primarily contends that the application before the Labour Court is not maintainable. The same ought to have been rejected. Therefore, consideration of merits of the case is irrelevant. In support of his case, he relies on the judgment of the Constitution Bench of the Hon'ble Supreme Court reported in 2005-III LLJ 1003 in the case of State of Uttar Pradesh and another Vs. Brijpal Singh wherein it was held that a workman can proceed under Section 33-C(2) of the Act only after the Tribunal has adjudicated on a complaint under Section 33-(A) or on a reference under Section 10. That the right to the money which is sought to be calculated or the benefit which is 4 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. Therefore, it was of the view that it is not possible to maintain an application under Section 33-C(2) of the Industrial Disputes Act, 1947 for determination of payment, which have not been determined. Hence, he pleads that on these grounds itself, the petition be dismissed.
4. Learned counsel for the petitioner in support of her case relies on the judgment of the High Court of Himachal Pradesh reported in 2000-I-LLJ in the case of (Himachal Road Transport Corporation and Others Vs. Presiding Officer and another); judgment of the High Court of Gujarat reported in 2007-I-LLJ in the case of (Commercial Co-operative Bank Limited Vs. Pravin S.Mehta); judgment of the learned single Judge of this Court reported in 2002-II-LLJ in the case of (Management of Majestic Exhibitors, Bengaluru Vs. Muthyalu). 5
She contends that an application under Section 33-C(2) of the Industrial Disputes Act, 1947 is maintainable.
5. On hearing learned counsels, I'am of the considered view that there is no merit in this petition. The judgment of the Hon'ble Supreme Court as referred supra completely covers the issue involved herein. The Hon'ble Supreme Court therein held that the proceedings under Section 33-C(2) of the Industrial Disputes Act, 1947 was one in the nature of execution proceedings. That the right of the workman to the money claimed by him must therefore be an existing right that is to say, a right already adjudicated upon. Therefore, by placing reliance on the findings of the Hon'ble Supreme Court in Paragraphs No.10 and 12, which are as under, the petition is liable to be dismissed.
"10. It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the 6 case of Punjab Beverages Private Limited Vs. Suresh Chand AIR 1978-II-LLJ-1, held that a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman form 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 benefit in terms of money. Proceeding further, this Court held that 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. This Court further held as follows:
"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."
In the case of Municipal Corporation of Delhi vs. Ganesh Razek & Anr. , (1995) 1 SCC 235. this Court held as under:
"12. The High Court has referred to some of these decisions but missed the true 7 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 compare 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 the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity required 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 8 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 petition 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."
12. Thus it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of 9 the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent- workman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shymala Pappu that the respondent-workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed underSection 33C(2) of the I.D. Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court. The High Court has also equally committed a manifest error in not considering 10 the scope of Section 33C(2) of the I.D. Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23.8.1995 and the order dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995 as illegal and uncalled for. We do so accordingly.
6. The judgments relied upon by the learned counsel for the petitioner are judgments that of the High Courts. By the law of precedents, it is the judgments of the Hon'ble Supreme Court that will have precedence over the judgments of the High Courts. Therefore, it would be inappropriate to place reliance on the judgments of the High Courts. Even otherwise, the law having been well settled, no interference is called for. Consequently, the petition being devoid of merit is dismissed.
SD/-
JUDGE dh