Jharkhand High Court
Sri C H Bapa Rao Alias C H Bappa Rao And Ors vs Indian Steel And Wire Product Ltd And Anr on 26 July, 2016
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (L) No. 1092 of 2014
1. Sri C. H. Bapa Rao @ C.H.Bappa Rai
2. Sri R.Radha Krishna
3. Mr. Abdul Aziz
4. Mr. Raj Kumar
5. Mr. D. K. Guha
6. Mr. C. H. Balaji Rao
7. Mr. S. N. Banerji @ S. N. Banerjee
8. Mr. L. D. Raju
9. Mr. Dhuryodhan
10.Mr. Jugal Kishore Tejpal
11. Mr. Malcolm David
12. Mr. Bansi Sah
13. Mr. Jatan
14. Mr. Ramesh
15. Mr. Md. Salim
16. Mr. Ashok Sharma
17. Mr. Bani
18. Mr. Din Mohamad
19. Mr. S. K. Mukherjee
20. Smt. Bengo
21. Mr. Bhim Singh
22. Md. Murtaja @ Md. Murtaza
23. Mr. Harjit Singh
24. Mr. Jai Pal Singh
25. Mr. Shivshankar
26. Mr. Ramdan Thakur
27. Mr. Prafulla
28. Mr. G. C. Sarkar
29. Mr. A. Narayan Rao
30. Mr. P. Mangaraj
31. Mr. J. P. Sharma
32. Mr. Rajaram Paswan
33. Mr. Baldeo Singh
34. Mr. Ram Eqbal Sahu @ Ram Ekbal Saha
35. Mr. R. Chandran
36. Mr. Jiten ..Petitioners.
vs.
1. Indian Steel & Wire Product Ltd. (a subsidiary of
Tata Steel),Jamshedpur DistrictSinghbhum (East) .....Respondent
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioners : M/s. Anubha Rawat Choudhary,
Girish Mohan Singh, Advs.
For the Respondents :
5/26.7.2016 Heard learned counsel for the petitioner.
2. Petitioners 36 in number instituted M.J.Cases before the Presiding Officer, Labour Court, Jamshedpur for computation of their monthly pay, dearness allowances and other allowances outstanding due with opposite party/employer for the period 1st April, 1998 to 19th December, 2003 and to pay the amount so computed.
2.
3. On the rival pleadings of the parties four issues were framed by the learned court, which are as follows:
"(i) whether the applicants worked at their work place under the employment of opposite party during the period 01.4.1998 to 19.12.2003 ?
(ii) whether there was temporary closure/suspension of work in the company during the period 01.4.1998 to 19.12.2003?
(iii) whether temporary closure, if any of work creates any legal impediment in the entitlement of the applicants to get full wages for the closure period of the company on the application of legal principles of "No work no pay"
(iv) whether the applications of the applicants/workmen u/s. 33C(2) I.D Act for the relief sought for is maintainable?"
4. The applicants examined only one witness, who deposed on behalf of all applicants and supported the pleadings stating that only 40% of their respective pay and allowances have been paid by the employer during the period 1st April, 1998 to 19th December, 2003. They also adduced certain documents as exhibits.
5. The opposite partyemployer had examined two witnesses, who deposed that Factory was closed during the period in question on account of the fact that power supply was disconnected due to non payment of electric supply bill. The Company later on was taken over by Tata Steel Ltd. The Company was declared sick and failed to make payment of electric bill, as a result of which, power supply was stopped and company became closed till it was taken over by Tata Steel Ltd. with effect from 20.12.2003. Only JEMCO Division was functional. Due to unavailability of electric supply, no manufacturing activity could be possible during the period in question. Tata Steel Company made a trialrun of operational activity for a period of 3 months from 1st January, 1999 to 31st March, 99. During that period, employees were paid their full wages. During the period of closure, the workmen were paid 40 to 50% of their respective monthly wages and they were issued a slip in proof of payment. No P. F was deducted. It pleaded that the workmen would not be entitled to full wages on the principle of 'No work no pay'. The employer also stated that if the temporary closure is declared unjustified, the opposite party would care to pay the balance amount of monthly wages to the 3. workmen. Several exhibits were also adduced by the opposite party employer.
6. Learned Labour Court, Jamshedpur upon consideration of rival pleadings and the evidence of the parties, came to a finding on Issue nos.
(i) and (ii) that manufacturing activities remained totally stopped in ISWPL and there was no production at all. Opposite party had successfully proved that due to disconnection of power supply, machines could not be operated. The applicants had therefore failed to prove that they had worked and participated in manufacturing activities in the company for the period 1st, April, 1998 to 19th December, 2003. Resultantly, Issue nos. (i) and (ii) were decided against the workmen/applicants in favour of employer. In respect of Issue no. (iii) also, the learned Labour Court found that the workmen were not entitled to get their pay for the period in question on the legal principle of 'No work no pay'. Learned Labour Court came to a conclusion that suspension of manufacturing work in the case in hand would come within definition of temporary closure amounting to lock out under Section 2(L) of I.D Act which also required adjudication. The employer did not refuse to give work to the workmen. The workmen could not discharge the work due to operating machine became nonfunctional in absence of electric supply. The Labour Court held that it cannot legally proceed on the factual presumption that temporary closure was illegal. Therefore, it held that it must abstain to exercise its jurisdiction under Section 33C( 2) of I.D. Act for computation of the amount of part salary of workmen for the period in question. It also observed that the provisions under Section 33 C(2) of I.D. Act is in the nature of execution of existing or preadjudicated rights. Here it was found that entitlement of workmen to get full wages for the period in question stands prima facie covered under the cloud of series of legal disputes and doubts, which is beyond the legal competence of the court exercising jurisdiction under Section 33C(2) of I.D Act. Issue no 3 was also decided against the workmen.
4.
7. The learned Labour Court in respect of Issue no. (iv) came to the same finding that unless such question of legality of temporary closure amounting to lock out is duly adjudicated, it should not exercise power and jurisdiction under Section 33C(2) of I.D. Act which is in the nature of execution proceeding on preexisting and were preadjudicated rights. The applications were accordingly dismissed by the impugned order dated 27th April, 2013.
8. Counsel for the petitioners has made strenuous efforts to canvass that the Labour Court was well within the jurisdiction to entertain applications for computation of wages for the period in question and direct payment thereof to the workmen as facts in controversy dealt with during the course of proceeding, did not make out a legally sustainable case on the part of employer to justify the temporary closure as legal. In the absence of a valid permission to close factory for the period in question, the workmen who had marked their attendance throughout would not be denied full wages for the period in question, though the employer had paid about 40% of the wages.
9. Reliance has been placed upon the judgments rendered by Apex Court in the case of The Central Bank of India Ltd. v. P. S. Rajagopalan reported in AIR 1964 SC 743, to submit that jurisdiction of Labour Court in terms of Section 33C(1) and 33C(2) is wider to adjudicate on questions relating to claim of wages, which may not strictly lie on the basis of an Award or settlement.
10. I have considered the submission of learned counsel for the petitioners in the light of pleadings on record and perused the impugned order.
11. In the conspectus of facts dealt with during the course of proceeding of M.J.Cases instituted by the petitioners herein, it has definitely come out that there was a temporary closure of the Unit on the ground of disconnection of power supply on account of failure to pay the electricity bills on the part of the employer. It has also come out that 5. Company was sick and was later on taken over by Tata Steel Ltd. and was made operational. All these applicants were also taken over by amalgamated Company and have been continued in employment. The claim of the petitioners for wages for the entire period of suspension of manufacturing activity i.e. 1st April, 1998 to 19th December, 2003, is based on the assertion that the employer was not justified in closing the manufacturing activity of the company for the said period and that the workmen had duly attended their duties and marked their attendance. However, what is not to be lost sight of in the entire matrix of the material facts pleaded and adduced during the course of evidence that the very issue, whether the closure of production of factory on the part of the employer, was legal or not is dependent upon an independent adjudication on reference to be made before Labour Court in exercise of powers conferred under I.D Act on an Industrial Dispute raised by the aggrieved workmen. Consequences of such adjudication would flow depending on its outcome in favour of the workmen or otherwise. The Labour Court in exercise of its power under Section 33C(2) definitely could not have adjudicated on the legal issue whether the closure of the factory was on account of unavoidable circumstances beyond control of the employer or otherwise legally impermissible in law. Such an adjudication on the main issue relating to the legality of temporary closure of the factory would not have been undertaken and gone into in a proceeding under Section 33C(2) of I.D Act 1947. Section 33C(2) in that sense, can well be said to be a execution proceeding. However, in a situation where either of the parties dispute the terms and conditions of the settlement or Award, the Labour Court is not precluded from rendering finding thereupon in order to address, the issue whether the workmen in question seeking computation and payment of their wages, are entitled thereto or not. The judgment relied upon by the petitioner lays down the contours of the powers of the Labour Court in a proceeding under Section 33C(2) in that sense.
6.
12. The interpretation of Section 33C(2) and its applicability to a claim for computation of wages and payment thereof fell for consideration before the Apex Court in the case of State of U.P. and Another Vs. Brijpal Singh reported in (2005) 8 SCC 58. The opinion of the Apex Court is contained in paragraph nos. 10 and 12 of the report are quoted as under:
" 10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A 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 33C(2) is a proceeding in the nature of execution proceeding in which the 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 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 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."
12. In the case of State Bank of India v. Ram Chandra Dubey this Court held as under : (SCC pp. 7778), paras 7) " 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 demeriting 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."
13. In the facts of the present case and on consideration of the findings 7. recorded by learned Labour Court, it cannot be said that the impugned order suffers from perversity in the eye of law or that it has committed an error of jurisdiction while declining the prayer made in the applications for payment of wages under Section 33C(2). In such circumstances, no legal infirmity can be found in the impugned order passed by learned Labour Court, Jamshedpur . This Court ,therefore, does not find any reason to interfere in the impugned order in exercise of writ jurisdiction of the Court.
13. Accordingly, writ petition is dismissed. Consequently, I. A. No. 4279 of 2016 is also disposed of.
(Aparesh Kumar Singh,J) jk