Miya Singh Vs. Haryana Roadways and anr. - Court Judgment

Excerpt:
- - it was also stated in the return that the petitioner had failed to make out a case for the grant of back wages inasmuch as he failed to lead any evidence and, therefore, the labour court did not grant him the said relief of payment of back wages. -(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of chapter v-a or chapter v-b, the workman himself or any other person authorised by him in writing in this behalf, or, in the caseof the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate government for the recovery of the money due to him, and if the appropriate government is satisfied that any money is so due, it shall issue a certificate forthat amount to the collector who shall proceed to recover the same in the same manneras an arrear of land revenue: provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer'.provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate government is satisfied that the applicant had sufficient cause for not making the application within the said period. but, sub-section (2) applies both to non-monetary as well as monetary benefits. (8) since proceedings under section 33c(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 executing court in execution proceedings governed by the code of civil procedure, is competent under section 33c(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. (3) section 33c(2) is more comprehensive than section 33c(1). it applies not only to cases of a settlement or award or to cases under chapter v-a of the act but to other cases as well. there are well recognised exceptions to the limit of jurisdiction.a.p. chowdhari, j. 1. this writ petition raises an important question of law, namely, where termination of the service of the workman is held to be void abinitio under section 10(1)(c) of the industrialdisputes act, 1947 (hereinafter referred to as'the act'), whether it is within the jurisdictionof the labour court to determine the amount ofmoney due or any benefit which is capable ofbeing computed in terms of money, under section 33c(2) of the act. 2. in order to appreciate the question, the facts of the case may be stated thus: the petitioner was appointed chowkidar on daily wages in the haryana roadways depot, kaithal, on 8th december, 1976. he was paid wages on monthly basis at the rate of rs. 325 per month. he continued working without any break till 9th june, 1982. his services were then terminated by order dated 10th june, 1982. the management did not comply with the mandatory provisions of section 25f(a) and 25f(b) of the act. the workman served a demand notice, annexure p-1a, dated 28th july, 1982, on the management. on a reference by the state government, the dispute was entrusted to the labour court, faridabad, which was later on transferred to the labour court, ambala. the workman filed his claim statement, annexure p-1. the management filed written statement, annexure p-2. the workman filed his rejoinder, annexure p-3. by award dated 25th november, 1985, annexure p-4, the labour court, ambala, held that the petitioner remained in service of the respondent for more than 240 days and at the time of termination of his services he was neither given any notice nor retrenchment compensation. it was further held that the provisions of section 25f(a) and 25f(b) of the act were mandatory and, therefore, the order of termination was illegal and did not bind the petitioner. the order of termination was accordingly set aside. in compliance with the order of the labour court, the petitioner was appointed on daily wages as helper/chowkidar by the respondent, vide order dated 20th march, 1986, annexure p-5. in the order of appointment there was no reference to payment of back wages. the petitioner then made an application under section 33c(2) of the act to the labour court, ambala, claiming rs. 21,456 on account of arrears of wages from 10th june, 1982 to 23rd march 1986, including rs. 1,000 as costs. copy of the application under section 33c(2) of the act is annexure p-6. the application was contested by the management and by order, annexure p-7, dated 4th february, 1987, the application was dismissed by the labour court. in the present petition, the workman has challenged the validity of the order passed by the labour court dismissing the application under section 33c(2) of the act. the petitioner has prayed that the order of the labour court, annexure p-7, dated 4th february, 1987, be quashed; that he may be paid back wages for the period already mentioned and that his services may be regularised, especially as two persons, pokhar singh, chowkidar, and sher singh, gunman, who were recruited after the petitioner's appointment had been made permanent. 3. in the return, the facts set out above are not disputed. the only plea is that the back wages were not paid as there was no order to this effect in the award of the labour court. with regard to regularisation, it was stated that only persons recruited through approved sources were regularised and as the petitioner had been appointed directly on daily wages, his services could not be regularised. it was also stated in the return that the petitioner had failed to make out a case for the grant of back wages inasmuch as he failed to lead any evidence and, therefore, the labour court did not grant him the said relief of payment of back wages. reference to the award dated 25th november, 1985, where-by termination of the service of the petitioner was declared illegal, shows that the petitioner had claimed full back wages besides reinstatement in service. in fact, the reference made to the labour court expressly stated 'to what relief was the workman entitled if termination of his services was not justified'. for reasons which are not available on record, the learned labour court did not go into the question of back wages at all. this necessitated the filing of an independent application under section 33c(2) of the act. the learned labour court simply proceeded to construe the award dated 25th november, 1985 (annexurep-4), instead of considering the merits of the claim of the workman with regard to payment of back wages. 4. in the penultimate paragraph of the award dated 4th february, 1987 (annexure p-7), which is impugned in this writ petition, the learned labour court observed that he had gone through the award dated 25thnovember, 1985, in which relief of reinstatement had been given to the workman, but the other relief of back wages had not been given. the matter was disposed of by saying 'the workman either did not claim back wages, or no evidence was led in support of claim of back wages'. no attempt was made to ascertain the scope of the provisions of section 33c(2) of the industrial disputes act or to go into the question whether the relief of back wages which had been specifically asked by the workman had been gone into and denied on merits. 5. the question posed in the beginning of this order necessitates an examination as to the scope of section 33c(2) of the act. section 33c, as amended up-to-date, reads as under: '33-c. recovery of money due from an employer. - (1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of chapter v-a or chapter v-b, the workman himself or any other person authorised by him in writing in this behalf, or, in the caseof the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate government for the recovery of the money due to him, and if the appropriate government is satisfied that any money is so due, it shall issue a certificate forthat amount to the collector who shall proceed to recover the same in the same manneras an arrear of land revenue: provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer'. provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate government is satisfied that the applicant had sufficient cause for not making the application within the said period. (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. (3) for the purposes of computing the money value of a benefit, the labour court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the labour court and the labour court shall determine the amount after considering the report of the commissioner and other circumstances of the case. (4) the decision of the labour court shall be forwarded by it to the appropriate government and any amount found due by the labour court may be recovered in the manner provided for in sub-section (1). (5) where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen'. 6. paradoxically enough in the original act, there was no speedy remedy to individual employees enabling them to enforce their existing rights. in other words, there was no remedy available to an individual employee, who did not seek to raise an industrial dispute in the sense that he did not want any change in his terms and conditions of service, but wanted only to implement or enforce his existing rights. to remedy the defect, parliament enacted the industrial disputes (appellate tribunal) act, 1950. section 20 of the said act roughly corresponded to the provisions of the present section 33c(2) of the act. in 1953, certain additional provisions were made to help the workman by enacting the industrial disputes (amendment) act, 1953. this was followed by the enactment of the industrial disputes (amendment and miscellaneous provisions) act, 1956, which repealed the industrial disputes (appellate tribunal) act, 1950, and also section 25i, in chapter v-a of the industrial disputes act and, inter alia, inserted sections 33c and 36a in the act. on the basis of experience gained in the working of section 33c the said provision was recast and substituted by the present section 33c by the industrial disputes (amendment) act, 1964 (act no. 36 of 1964). 7. prior to the amendment by act no. 36 of 1964, their lordships of the supreme court considered the scope of section 33c in east india coal co. ltd. v. rameshwara : 1968(i) llj 6 and succinctly summarised the effect of its three earlier decisions in the following propositions (at page 92):' (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 for a speedy remedy to enforce their existing individual rights and, therefore, inserted section 33-a in 1950 and section 33c 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 depend on their union to espouse their case. (2) in view of this history two considerations are relevant while construing the scope of section 33c. 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, it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen. therefore, though in determining the scope of section 33c 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 33c, 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 33c(1) applies to cases where money is due to a workman under an award or settlement or under chapter v-a 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 33c(2) takes within its purview cases of 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 33c(2) shows that the scope of section 33c(2) is wider than that of section 33c(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 v-a. (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 sections 18 and 19 would apply; (8) since proceedings under section 33c(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 executing court in execution proceedings governed by the code of civil procedure, is competent under section 33c(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.'' to complete the picture one more proposition may be added to above as enunciated by the supreme court: (9) it is not essential that the claim which can be brought before the government or its delegate under section 33c(1) must always be for a predetermined sum. the government or the labour court may satisfy itself about the exact amount and then take action under that section.' 8. the inter-relation between sub-sections (1) and (2) of section 33c has been examined by the supreme court in several decisions. in central bank of india ltd. v. p.s. rajagopalan 1963(2) llj 89, it was observed that sub-section (2) does not contain the words of limitation as used in sub-section (1) which deals with the cases where the money is due under a settlement or an award or under the provisions of chapter v-a. thus, a claim made under sub-section (1), by itself, could only be a claim referable to a settlement, award or the relevant provisions of chapter v-a. the three categories of claims mentioned in section 33c(1) fall under section 33c(2), and in that sense, section 33c(2) could itself be deemed to be a kind of execution proceeding, but it is possible that claim not based on settlements, awards or made under the provisions of chapter v-a might also be competent under section 33c(2). 9. in u.p. electric supply co. ltd. v. r.k. shukla, 1969 (2) llj 728 (s.c.), the distinction between the two sub-sections was stated thus(at page 318): 'the legislative intention disclosed by sections 33c(1) and 33c(2) is fairly clear. under section 33c(1), where any money is due to a workman from an employer under a settlement or an award or under the provisions of chapter v-a, the workman himself, or any other person authorised by him in writing in that behalf, may make an application to the appropriate government to recover the money due to him. where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the labour court may under section 33c(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed. section 33c(2) is wider than section 33c(1). matters which do not fall within the terms of section 33c(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of section 33c(2).' 10. a division bench of the calcutta high court in jessop and co. v. m. mukherjee l.i.c. 1307, has stated the following principles marking the areas of jurisdiction under the two subsections: (1) where any money is under a settlement or an award or under the provisions of chapter v-a, section 33c(1) will be attracted. (2) the money due under section 33c(1) may be a specified amount or may have to be arrived at by arithmetical calculation or verification simpliciter. in other words, in cases where there is no dispute as to the amount or as to its computation section 33c(1) would apply. (3) section 33c(2) is more comprehensive than section 33c(1). it applies not only to cases of a settlement or award or to cases under chapter v-a of the act but to other cases as well. (4) when money due is not specified or the benefit capable of being computed in terms of money has not been determined, section 33c(2) would be attracted inasmuch as the labour court, by a process of computation to be found out and applied by it, has to determine the amount of money due. in other words, in cases of disputes as to calculation or computation of money due or benefit capable of being computed in terms of money section 33c(2) has to be invoked. (5) section 33c(2) also enables a labour court to enquire into and decide upon the right to receive the money to be computed provided that the determination of that right is incidental or ancillary to computation. 11. after the amendment by act 36 of 1964, there are two parts of sub-section (2). the first part is concerned with the money claimed simpliciter and the second part speaks about computation in terms of money and, if any, benefit to which the workman is entitled. on a plain reading of the wording of the statute, it would appear that where any workman is entitled to receive from his employer any money and if any question arises as to the amount of money, then the question may be decided by the labour court. in other words, the labour court under section 33c(2) is competent to entertain claims and determine them de hors settlement or award. there are well recognised exceptions to the limit of jurisdiction. these are:(a) where the dispute falls under section 10(1)(c) of the act, the labour court cannot adjudicate the same under section 33c(2). (vide state bank of bikaner and jaipur v. khandelwal 1968 33 f.j.r. 462.) (b) the right to the benefit which is sought to be computed must be an existing one, that is to say, must have already been adjudicated upon. (vide east india coal co ltd. v. rameshwar 1968-illj 6.) (c) other appropriate cases of which it is not possible to give an exhaustive list. 12. the crucial test in such cases appears to be the one laid down by the supreme court in p.s. rajagopalan's case 1963-11 llj 89, i.e., docs the claim of the employee made before a labour court under section 33c(2) arise out of an existing right which they had on the date of the application? applying the above test, there is no manner of doubt that the question first above posed must be answered in the affirmative. 13. i am supported in reaching the above conclusion by two division bench judgments of this court in inder singh v. labour court, jullundur, air 1969 p & h 310 per r.s. narula and s.s. sandhawalia, jj and amar kaur v. state of punjab, 1982 l.i.c 1275 (per s.s. sandhawalia, c.j., and mr. sharma, j.). 14. the next grievance of the petitioner is that two persons, namely, pokhar singh, chowkidar and sher singh, gunman, who were recruited after the recruitment of the petitioner had been made permanent while services of the petitioner had not been regularised yet. the facts arc not disputed in the return filed by the respondents. it was pleaded that the petitioner had been appointed directly and services of only those employees had been regularised, who had been appointed through the approved source, i.e. the employment exchange. this point stands covered by a decision in c.w.p. no. 4350 of 1984, decided on 3rd february, 1988, by j.v. gupta, j., of this court. 15. the writ petition is, therefore, allowed. the respondents are directed to regularise the services of the petitioner within three months from today. the impugned order, annexure p-7, dated 4th february, 1987, passed by the learned labour court is set aside and the labour court is directed to take further proceedings on the application under section 33c(2) made by the petitioner and determine the amount due according to law. as considerable delay has already occurred and the petitioner was obliged to file this writ petition, the labour court is directed to dispose of the application within a period not exceeding three months, as laid down in sub-section (2) of section 33c, as amended by the amending act of 1982. the petitioner shall also be entitled to costs, which i quantify to be rs. 500. a copy of this order be circulated to labour courts in punjab and haryana.