Jharkhand High Court
Tata Steel Ltd. vs Kali Manjhi & Ors. on 1 November, 2017
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 7810 of 2006
Tata Steel Limited ( Earlier known as Tata Iron and Steel Company
Limited) an existing company under the Indian Companies Act, 1956
having its registered office at 24, Homi Mody Street, Fort Mumbai and
having its works at Jamshedpur, through its Head (Legal-Cooperate
Matters) Meena Lall W/o Sri Behari Lall, Tata Steel Ltd. R/o Park Flats,
Northern Town, P.O. and P.S. Bistupur, town: Jamshedpur, Dist.
Singhbhum (East) ... ... Petitioner
Versus
1.Kali Manjhi Son of Guneshwar Manjhi Resident of company Quarters,
Dhowrah Colony, P.O. and P.S. Bhaga District-Dhanbad
2.Harendra Nath Mahto Son of Naresh Chandra Mahato Resident of
Village-Mangora P.O. and P.S. Mangora Dist. Purlia West Bengal
3.Paras Nath son of Dukhi Ram Resident of Vill-Saidpura P.O. and P.S.
Khagaul Dist. Patna (Bihar)
4.Nageshwar Singh Son of Mozelal Singh Resident of Village-Masarhi
P.O. and P.S. Masarhi Dist. Patna Bihar
5.Siraj Khan Son of late Kadi Khan Resident of Vill-P.O. and P.S. Uttratol
Dist. Gajipur U.P.
6.Bijoy Kumar Singh Son of Joginder Prasad Singh Resident of Sundarpur
Basti, P.O. and P.S. Jealgora, Dist. Dhanbad
7.Darpan Devi, wife of Late Kamal Kishore Singh, resident of- Village-
Bahuara, P.O.-Bidpur, Railway Station-Bidpur, Dist. Muzaffarpur (now
Vaishali) Bihar
8. Kamta Singh, Son of Ranjan Singh Resident of Village-Sadahpur, P.O.
and P.S. Usfa Dist. Vaishali Bihar
9. Jhapsi Singh son of Ram Brich Singh Resident of Jaslpura, P.O. and P.S.
Ram Box Jaintipur Dist. Patna Bihar
10. Sheo Shankar Son of Jai Narayan Yadav Resident of Vill-Benipur P.O.
and P.S. Ashepur Dist. Allahabad U.P.
11. Rajeshwar Prasad Singh Son of Ramjiwan Singh Resident of company
Quarters, Bhaga Ground Colony, P.O. and P.S. Bhaga, Dist. Dhanbad
12.Deo Bahadur Pun son of Late Balbir Pun, Resident of Village-Danga
13.Lal Govind Singh Son of Ramdeo Singh Resident of Vill-Bhauara,
P.O.and P.S. Bahuara Dist. Vaishali Bihar ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Rajiv Ranjan, Sr. Advocate
Mr. Manish Mishra, Advocate
For the Respondents : None
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25/01.11.2017The present writ petition has been filed for quashing the order dated 06.01.2006, passed by the Presiding Officer, Labour Court, Dhanbad in M.J Case No. 2 of 1990, whereby the application of the respondents u/s 33-C(2) of the Industrial Disputes Act, 1947 has been allowed with a direction to the petitioner to make payment of due 2 amount to the concerned workmen(respondents herein) on account of difference of wages arising out of payment of one and half times the daily wages and double wages claimed as per Joshi Agreement and National Coal Wage Agreement (in short to be referred as N.C.W.A.) respectively.
2. The factual background of the case as stated in the writ petition is that the respondents were the security guards in the Jamadoba Colliery of the petitioner and they had filed a petition u/s 33-C(2) of the Industrial Disputes Act, 1947 (in short Act, 1947) before the Presiding Officer, Labour Court, Dhanbad being M.J Case No. 2 of 1990 claiming that they have been paid only half days additional wages for working on Sundays and other rest days during the period the Joshi Agreement was effective, whereas, they were entitled to one and half days wages. They had further claimed that after coming into force of NCWA-II, w.e.f. 01.01.1979, the respondents were entitled to double wages for the Sundays or other rest days, however they had been paid only one day wages which is inconsistent with the relevant provisions. The petitioner appeared before the Labour Court and challenged the petition of the respondents on the ground of maintainability as well as delay and latches in filing the claim petition. The learned Labour Court passed an order dated 06.01.2006 allowing the claim of the respondents with a direction to the management to pay the outstanding dues to the respondents as has been determined in the impugned order itself.
3. The learned counsel appearing on behalf of the petitioner while assailing the impugned order submits that the learned Labour Court while exercising jurisdiction under section 33-C(2) of the Act, 1947 has arbitrarily adjudicated the dispute without any jurisdiction under the said provisions. It is further submitted that the learned Labour Court while passing the impugned award has not appreciated the scope of section 33-C(2) of the Act, 1947. It is also submitted that it is a settled law that under section 33-C(2) of the Act, the court has to exercise its jurisdiction as an executing court and there cannot be a full-fledged adjudication of the dispute under the said proceeding. In support of the above contention, the learned senior counsel for the petitioner put reliance on the following judgments:-
i. State of U.P & Another Versus Brijpal Singh reported in (2005) 8 SCC 58 3 ii. U.P State Road Transport Corporation Versus Birendra Bhandari reported in (2006) 10 SCC 211 iii. D. Krishnan and Anr. Versus Special Officer, Vellore Cooperative Sugar Mill and Anr. Reported in (2008) 7 SCC 22
4. Vide order dated 29.08.2017 it was made clear that if the respondents are not represented by any counsel on the next date, the writ petition shall be disposed of after hearing counsel for the petitioner and on the basis of the materials available on record. Inspite of the order dated 29.08.2017, no one appears on behalf of the respondents.
5. It appears that both the parties are admitting that till the Joshi Agreement was in existence, the respondents were entitled for one and half days of salary for working on Sunday or any rest days and when the NCWA-II came into force w.e.f 01.01.1979, the respondent became entitled to the double wages for working on Sunday or any rest days. The management is claiming that it was giving additional wages to the respondents as per the relevant provisions, however the respondents claimed that they have been paid less wages. According to the petitioner, the procedure of computation was to calculate the number of working days in a particular months by adding all the days actually worked including Sunday and if the workmen have worked on Sunday, they have been given balance ½ day wages for each Sunday till Joshi Agreement was effective and since inception of N.C.W.A-II i.e on 01.01.1979, they have been paid one day extra wages. However, the case of the respondents is that for the work done on Sundays or other rest days, they are entitled to one and half days salary till the Joshi Agreement was in existence and double since 01.01.1979. Thus, the actual dispute between the parties was about the application of relevant provision which required proper adjudication. The learned senior counsel for the petitioner has given much stress on the argument that the learned Labour Court had no jurisdiction to entertain the application of the respondents under 33-C(2) of the Act, 1947 as it was a disputed issue which could have been determined by a valid reference under section 10 of the Act, 1947.
6. I have perused the judgments relied upon by the petitioner in the case of State of U.P. v. Brijpal Singh (supra) the Hon'ble Supreme Court in para 10, 11 and 12 held as under:-
10. It is well settled that the workman can proceed under 4 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 case of Punjab Beverages (P) Ltd. v. Suresh Chand held that a proceeding under Section 33-C(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 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: (SCC p. 150, para 4).
"It is not competent to the Labour Court exercising jurisdiction under Section 33-C(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."
11. In the case of Municipal Corpn. of Delhi v. Ganesh Razak this Court held as under: (SCC pp. 241-42, paras 12-13)
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 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 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.
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 5 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."
12. In the case of State Bank of India v. Ram Chandra Dubey this Court held as under: (SCC pp. 77-78, paras 7-8).
"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.
8. The principles enunciated in the decisions referred by either side can be summed up as follows:
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 6 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 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."
7. In the case of U.P. State Road Transport (Supra.) and D. Krishnan (Supra.) the Hon'ble Supreme Court has reiterated the view taken earlier in the case of Brijpal Singh (Supra.).
8. It would emerge from the ratio laid down by the Hon'ble Supreme Court that a proceeding u/s 33-C(2) can only be initiated for computing any claim in terms of money when there is a pre-existing right which has already been adjudicated on the complaint under section 33-A or on a reference under section 10 of the Act, 1947. A proceeding u/s 33- C(2) is in the nature of an execution proceeding and as such the same presupposes some adjudication leading to determination of a right, which is to be enforced. On an application under section 33-C(2), the Labour 7 Court cannot exercise jurisdiction to determine the entitlement of a party and then compute the benefit.
9. In the year 1956, Section 33-C(2) was introduced in the Act, 1947 to give speedy remedy to the workmen to directly enforce their pre- existing rights without being dependent upon their union to espouse their cause. The proceeding under section 33-C(2) is a summary proceeding and the Labour Court is not supposed to allow the claimant to adduce full-fledged evidence for determining his/her rights, otherwise the object and purpose of section 33-C(2) would frustrate. In the present case, the Labour Court has in fact decided a disputed issue after making proper adjudication by taking evidences on behalf of the parties which is not permissible under the ambit and scope of section 33-C(2) of the Act, 1947. Thus the impugned order can not be sustained in law.
10. In view of the aforesaid discussions, this writ petition is allowed and the impugned order dated 06.01.2006 passed by the learned Presiding Officer, Labour Court, Dhanbad in M.J Case No. 2 of 1990 is hereby quashed and set aside.
(Rajesh Shankar, J.) Binit/A.F.R.