Allahabad High Court
U.P.State Electricity Board vs Deepak Sikroria & Another on 19 December, 2013
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Writ Petition No. 8125 of 1998. U.P. State Electricity Board. .... .... ... Petitioner. Versus Deepak Sikroria and another. ..... ... Respondents. ------- Hon'ble Pradeep Kumar Singh Baghel, J.
1. This writ petition was initially filed by the Uttar Pradesh State Electricity Board through Kanpur Electricity Supply Administration. However, during pendency of the writ petition, there was reorganisation of the Electricity Board, therefore, with the permission of the Court, Kanpur Electricity Supply Company Limited through its General Manager has been substituted as the writ petitioner.
2. The writ petition is directed against the order and award of the Labour Court (I), U.P., Kanpur dated 15th December, 1997 passed in Misc. Case No. 115 of 1997, in proceedings under Section 33C(2) of the Industrial Disputes Act, 1947, whereby the respondent no. 1 has been awarded an amount of Rs.1,38,251/- as arrears of difference of pay in the pay scale of Stenographer Selection Grade with effect from 01st April, 1984 to 30th April, 1997.
3. The essential facts, as averred by the petitioner, are that the respondent no. 1-workman was initially appointed as Stenographer in the establishment of the petitioner on 16th November, 1976. In the year 1980, he raised an industrial dispute, being Adjudication Case No. 105 of 1980, claiming pay scale and designation of the Stenographer Selection Grade. The Labour Court allowed his claim. Aggrieved by the said order, the petitioner preferred Special Leave to Appeal (Civil) No. 6468 of 1981, which was dismissed by the Supreme Court and the award of the Labour Court was upheld. It is stated that in compliance of the order of the Supreme Court and the Labour Court, the petitioner vide order dated 31st October, 1985 implemented the award of the Labour Court and the respondent no. 1 was given the pay scale of Rs. 610-955, as revised from time to time. A copy of the order dated 31st October, 1985 has been brought on record as Annexure-1 to the writ petition. It is further stated that the respondent no. 1 was also given benefit of the Board's order dated 28th August, 1995, whereby pay scale of Rs.610-955 was revised to Rs.1650-2690. It is also stated that the respondent no. 1 was given all his dues in terms of the award of the Labour Court passed in Adjudication Case No. 105 of 1980.
4. The respondent no. 1, however, was not satisfied with the said order of the Board and he claimed that he was entitled for the grade/ pay scale of Rs.1850-2930 with effect from 01st April, 1984. It is averred that on 21st September, 1989 the salary of the respondent no. 1 was re-fixed in the revised grade and the pay scale of Rs.1850-2930 was not admissible to him as it was given to the Stenographers attached to the Chief Engineer, Grade-I.
5. When the demand of respondent no. 1 for the pay scale of Rs.1850-2930 was not accepted, he moved an application under Section 33C(2) of the Industrial Disputes Act, 1947 (for short, the "Act, 1947") on 29th May, 1996, which was registered as Misc. Case No. 123 of 1996, before the Labour Court (I), U.P. at Kanpur. By means of said application, the respondent no. 1 claimed that he was entitled to the pay scale of Rs.1850-2930 with effect from 01st April, 1984 and Rs.2225-3500 with effect from 16th November, 1992 and thus, the amount due to him was Rs.84,795.50. A true copy of the application of the petitioner filed under Section 33C(2) of the Act, 1947 is on the record as annexure-6 to the writ petition. Subsequently, the respondent no. 1 moved a fresh application under Section 33C(2) of the Act, 1947 claiming a sum of Rs.1,38,251/-, on the basis of fresh calculation, along with 18% interest. This application was registered as Misc. Case No. 115 of 1997. A copy of the said application has been brought on record as annexure-7 to the writ petition. Against the application so moved by the workman, the petitioner filed its objection. Before the Labour Court, the petitioner got examined one Sri Ramesh Babu Sharma. A copy of his statement is annexure-10 to the writ petition. The Labour Court by the impugned order dated 15th December, 1997 has found that the claim of the respondent no. 1 is justified and accordingly, allowed the application of the petitioner, being Misc. Case No. 115 of 1997, and the petitioner has been directed to pay the respondent no. 1 a sum of Rs. 1,38,251/- within two months.
6. Dissatisfied with the aforesaid order of the Labour Court, the petitioner preferred this writ petition.
7. On 16th March, 1998, when this writ petition was entertained, an interim order was passed by this Court staying the operation of the impugned award subject to deposit of 25% of the awarded amount.
8. Respondent no. 1 has filed a counter affidavit, wherein it is stated that for grant of pay scale of Stenographer Selection Grade he had raised an industrial dispute, which was registered as Adjudication Case No. 105 of 1980, in the Labour Court (IV), U.P., Kanpur wherein award was made in favour of respondent no. 1 and it was held that he was entitled for the Stenographer Selection Grade.
9. It is noteworthy that at that point of time the pay scale admissible to the Stenographer Selection Grade was Rs.250-500 with effect from 01st April, 1969 and on the recommendation of the Anomaly Committee with effect from 01st April, 1969 it was revised to Rs.300-655, which was further revised to Rs.665-1130 with effect from 01st April, 1979 and not the pay scale of Rs.610-955. Pay scale of Rs.610-955 was the pay scale of Stenographer (Ordinary Grade) and not the Stenographer Selection Grade.
10. It is further stated in the counter affidavit that as a result of revision of the pay scale, the pay scale of Rs.665-1130 has been revised to Rs.1850-2930 with effect from 01st April, 1984. Thus, the respondent no. 1 was entitled for the pay scale of Rs.1850-2930 with effect from 01st April, 1984 and after completion of 9 years' service, he was entitled to first time-scale of Rs. 1800-3150 and after 16 years' service second time-scale of Rs.2225-3600 with effect from 16th November, 1992. It is also stated that the respondent no. 1, who is the senior-most, was attached to Sri K.K. Singh, Chief Engineer (G&D), Sri S.C. Chawla, Chief Engineer (Commercial), and Sri A.K. Mitra, Chief Engineer (Commercial)/C.B.S.C.. He has brought on record various orders in support of the said contention.
11. A supplementary counter affidavit has been filed by the respondent no. 1, wherein it is stated that when in spite of the order of the Supreme Court dated 30th September, 1985 the petitioner did not pay his dues in terms of the award passed by the Labour Court in Adjudication Case No. 105 of 1980, the respondent no. 1 approached the Supreme Court by filing Civil Misc. Petition No. 42952 of 1985 (Deepak Sikeria v. Area Manager, Kanpur Electricity Supply Admn. & anr.), which was disposed of on 15th September, 1987 on the statement of learned Counsel for the petitioner that payment shall be made within four weeks. It is further stated that when even after the order of the Supreme Court dated 15th September, 1987 the petitioner did not make the payment in terms of the award of the Labour Court, the respondent no. 1 had no other option but to move an application under Section 33C(2) of the Act, 1947 before the Labour Court (I). In fact, the order of the Supreme Court has been partly implemented and that too after nearly 10 years of passing of order by the Supreme Court. The Labour Court by the impugned order has rightly computed the benefits due to the workman in terms of the award and orders of the Supreme Court and allowed the application of the respondent no. 1-workman under Section 33C(2) of the Act, 1947 thereby directing the petitioner to make the payment of a sum of Rs.1,38,251/- to the respondent no. 1.
12. I have heard Sri Arvind Kumar, learned Counsel for the petitioner, and Sri S.N. Dubey, learned Counsel for the respondent no. 1-workman.
13. Learned Counsel for the petitioner submits that the application under Section 33C(2) of the Act, 1947 for grant of grade of Rs. 1850-2930 was not in respect of the existing claim and, as such, his application under Section 33C (2) was not maintainable.
14. Learned Counsel for the respondent no. 1 Sri Dubey submits that the respondent-workman was entitled for the designation of Stenographer Selection Grade with effect from 20th December, 1980, which was given to him by the Labour Court by means of the award passed in Adjudication Case No. 105 of 1980, which award was upheld by the Supreme Court. Though the pay scale of the Stenographer Selection Grade was revised from time to time, but the workman was not given benefit of the same in spite of being entitled. It has been further submitted that during the pendency of the present writ petition, the petitioner itself vide order dated 19th June, 2007 accepted the claim of the petitioner, as directed by the Supreme Court, and by a subsequent order dated 23rd June, 2008 salary of the respondent no. 1 has been fixed in the pay scale of Rs.1850-2930 from 01st April, 1984. However, an illegal rider has been put in the order that no arrears will be paid. He further urged that the dispute is now confined for the period from 01st April, 1984 to 1997.
15. I have considered the respective submissions advanced by the learned Counsel appearing for the parties and perused the record.
16. I find it helpful to extract Section 33C(2) of the Act, 1947, which reads as under:
"33C. Recovery of money due from an employer.--(1) **** **** (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 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."
17. Scope of Section 33C(2) of the Act, 1947 is no more res integra as the Supreme Court in the long course of the judgements has settled the scope of said section. The Supreme Court in the case of The Central Bank of India Ltd. v. P.S. Rajagopalan etc., (1964) 3 SCR 140, has held as under:
"16. Let us then revert to the words used in s. 33C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-s. (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? According to the appellant, the scope of sub-s. (2) is similar to that of sub-s. (1) and it is pointed out that just as under sub-s. (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-s. (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-s. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in term of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making necessary computation can arise. It seems to us that the opening clause of sub-s. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The Clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit." The appellant's construction would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under s. 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-s. (2). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution(1)." We must accordingly hold that s.33C(2) takes within its purview cases of workmen who claimed 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. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-s.(3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. 3 becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-s. (2)."
18. In State of U.P. and another v. Brijpal Singh, (2005) 8 SCC 58, the Supreme Court has held as follows:
"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 case of Punjab Beverages (P) Ltd. v. Suresh Chand2 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.""
19. Principles of law, which emanate from the above judgements, are that the proceedings under Section 33C(2) of the Act, 1947 are like execution proceedings. Right to money which is claimed by workman must be existing one. Therefore, there is no need to adjudicate the claim, only calculation is required to be done. In other words, Labour Court can only compute the money in terms of earlier adjudication.
20. In the case in hand, the workman had raised a dispute with regard to the pay scale of Stenographer Selection Grade. His claim was adjudicated upon in Adjudication Case No. 105 of 1980 by the Labour Court. The Labour Court in its award found that the workman, respondent no. 1 herein, was entitled for the pay scale of Stenographer Selection Grade. Aggrieved by the said award of the Labour Court, the petitioner preferred a Special Leave to Appeal (Civil) No. 6468 of 1981, wherein the award of the Labour Court was upheld. However, when despite that the petitioner did not comply with the order of the Supreme Court and award of the Labour Court, the respondent no. 1 approached the Supreme Court by filing Civil Misc. Petition No. 42952 of 1985, wherein, after hearing both the parties, on 15th September, 1987 the Supreme Court passed the following order:
"Shri Markandeya, learned counsel for U.P. State Electricity Board makes a statement at the Bar that the Board shall in compliance with this Court's order dated September 30, 1983, pay to the petitioner whatever is due on account of the salary and allowances payable to him as a Stenographer, Selection Grade, with effect from October 7, 1983. The payment shall be made within 4 weeks from today. C.M.P. is disposed of accordingly."
21. The grievance of the workman was that even after 10 years, the award of the Labour Court and the order of the Supreme Court were not complied with in true letter and spirit but were complied with partly, therefore, he moved an application under Section 33C (2) of the Act, 1947 in respect of a claim, which was already adjudicated upon by the Labour Court in Adjudication Case No. 105 of 1980. In view of the law laid down by the Supreme Court, it cannot be said that the present application filed by the workman under Section 33C(2) of the Act, 1947 was not based on existing right. In fact, his right has already been adjudicated upon by the Labour Court and the application moved by the workman under Section 33C(2) of the Act, 1947 was in respect of a claim, which has already been adjudicated by the Labour Court and upheld by the Supreme Court. Therefore, in my view, the submission of learned Counsel for the petitioner that the application under Section 33C(2) of the Act, 1947 was not maintainable as it was not in respect of the existing right, is not acceptable and the application of the workman was maintainable and it was in respect of an existing right.
22. Relevant it would be to mention that before the Labour Court the respondent no. 1 had moved an application dated 25th September, 1997 to summon certain orders of the petitioner. But in spite of the order having been passed when the documents were not produced, the respondent no. 1 had filed photocopies of the said orders before the Labour Court. The Labour Court after perusal of the order of the petitioner dated 10th January, 1977 found that the pay scale of the Stenographer Selection Grade was Rs.300-655 with effect from 01st April, 1969, which was revised to Rs.540-900 with effect from 01st April, 1974. Again it was revised to Rs.656-1121 and thereafter Rs.665-1130 with effect from 01st April, 1979. Thereafter, vide Board's order dated 28th August, 1995 it was revised to Rs.1850-2930. The Labour Court has recorded that the employer/petitioner did not file any documentary evidence to establish its claim that the pay scale of the Stenographer Selection Grade was Rs.485-755. It has also recorded the statement of the only witness produced by the employer, namely, Sri Ramesh Babu Sharma, who deposed that he did not know any fact with regard to previous award of the Labour Court and the order of the Supreme Court. He also could not satisfy the Labour Court that why the papers summoned by the Court on the application of the respondent no. 1-workman were not produced. There is a recital in the impugned order that said witness of the employer admitted in his deposition that the pay scale of Rs.665-1130 was revised to Rs.1850-2930. The Labour Court has, thus, on the basis of documents and oral evidence, recorded a finding of fact about the revision of pay scale of the Stenographer Selection Grade to Rs.1850-2930.
23. Learned Counsel for the petitioner failed to point out any infirmity in the findings recorded by the Labour Court.
24. In view of the aforesaid facts and circumstances of the case, I am of the view that there is no error in the impugned order and award of the Labour Court to warrant any interference under Article 226 of the Constitution of India. Accordingly, the award of the Labour Court is upheld. The petitioner is directed to make the payment in terms of the award passed by the Labour Court within three months from the date of communication of this order. The respondent no. 1 shall be entitled for interest @ 9% from the date of award till the payment is actually made to him. Needless to say that the amount received by the respondent no. 1 in compliance with the interim order of this Court dated 16th March, 1998 shall be adjusted.
25. Thus, the writ petition fails and is hereby dismissed.
26. No order as to costs.
Order Date :- 19th December, 2013.
SKT/-
Hon. Pradeep Kumar Singh Baghel, J.
The writ petition is dismissed.
For order, see my order of the date passed on the separate sheets (ten pages).
Dt.- 19th December, 2013.
SKT/-