M.D. Oswal Hosiery Vs. D.D. Gupta and ors. - Court Judgment

Excerpt:
the case dealt with the claim of salary by the workman for the period he was allegedly refused to work by the employer - it was observed that the claim though falling under section 33-c (1) of the industrial disputes act, 1947, could be claimed under section 33-c (2) of the act - thereforee, it was ruled that the award could not be interfered - - it is the case of the petitioner that after the award, the second respondent was approached by the petitioner to join duty but he failed to do so and instead filed an application under s. (1) where any money is due to a workman from an employer under a settlement or an award or under the provision 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 case of 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 for that amount to the collector who shall proceed to recover the same in the same manner as 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. 33c(2) especially in case like the present one.anil dev singh, j.1. this is a writ petition challenging the order of the labour court, delhi dated 5 october 1974, whereby the second respondent (workman) was held entitled to receive back-wages for the period 1 september 1971 to 31 july 1973, at the rate of rs. 144 per month amounting to rs. 3,292, from the petitioner (employer). facts as appear from the petition are as follows :- 2. the petitioner is a manufacturer of hosiery goods at delhi. respondent 2 was working with the petitioner as a cutter. on 19 july 1972, respondent 2 filed an application before the labour court, delhi, in the form of a 'statement of claim', with the allegations, inter alia, that he was appointed as a cutter by the management on piece-rate basis with effect from 19 october 1970, that the petitioner refused to give him work from 1 september 1971, and that his monthly wages ranged between rs. 250-350 per month. on 24 october 1992, the statement of the second respondent was recorded by the labour court wherein he stated that he was appointed as a cutter and was earning rs. 250 to rs. 350 per month on piece-rate basis. on 18 july 1973, the labour court made an award whereby it was, inter alias held that the second respondent was entitled to half the back-wages from the date of his removal till 1 august 1973, and also directed that he will be continued in service. according to the award, the monthly wages of the petitioner were required to be calculated by taking his three months' average salary, preceding the date on which he was removed. it is the case of the petitioner that after the award, the second respondent was approached by the petitioner to join duty but he failed to do so and instead filed an application under s. 33c(1) of the industrial disputes act, 1947 (for short the act). however, the labour welfare officer advised the said respondent to move an application under s. 33c(2) of the act. consequently, the respondent moved an application under section 33c(2) before the labour court. the labour court by its order dated 5 october 1974, directed the petitioner to continue the second respondent in service and to pay a sum of rs. 3,292 to him for the period for which he was refused work. the petitioner feeling aggrieved by the order of the labour court, moved the present petition and this is how the matter is before this court. 3. sri aggarwal, learned counsel appearing for the petitioner, submits that the application of the second respondent under s. 33c(2) before the labour court was not maintainable inasmuch as the same was filed pursuant to the award of the labour court and the respondent could have moved only under s. 33c(1). it is the submission of the learned counsel that the application lay to the central government only as is provided in s. 33c(1) itself. 4. there is none present on behalf of the second respondent to oppose the petition. in the circumstances, i have no option but to decide the matter in absence of counsel for the said respondent. 5. in order to appreciate the submission advanced by the learned counsel for the petitioner, it would be appropriate to extract s. 33c of the act in so far as it is relevant for the purpose of the resolution of the controversy. ' (1) where any money is due to a workman from an employer under a settlement or an award or under the provision 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 case of 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 for that amount to the collector who shall proceed to recover the same in the same manner as 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 by 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.' 6. according to s. 33c(1), a workman to whom any money is due from an employer, under a settlement or an award or under the provisions of chapter v-a or chapter v-b may move an application to the appropriate government for recovery of money due to him. thereforee, for invoking s. 33c(1), a workman has to demonstrate that money is due to him under a settlement or an award or under the provisions of chapter v-a or chapter v-b of the act. on the other hand, under s. 33c(2) of the act a claim before the labour court not based on settlements, awards or made under the provisions of chapter v-a or chapter v-b thereof may also be competent but the aforesaid three categories of claims mentioned in s. 33c(1) are not excluded there from, and fall within its purview and filed of operation. section 33c(2) has a wider scope than s. 33c(1). the words limiting the area of operation of s. 33c(1) are not to be found in s. 33c(2). section 33c(2) applies when a workman has an existing established right to receive from the employer any money or benefit which is capable of being computed in terms of money and in such an eventuality he can move the labour court for realisation of the amount due to him. 7. the history of the legislation, as noticed by the supreme court in central bank of india ltd. v. p. s. rajagopalan : (1963)iillj89sc , indicates that s. 33c of the act was inserted for providing speedy remedy to enforce the individual existing rights of the workman falling within its purview, without having the take recourse to s. 10(1) of the act or without the aid of their unions to espouse their cause. as already noticed, the words of limitation which are found in s. 33c(1) are missing in s. 33c(2) to make its operation go beyond the operation of s. 33c(1), it does not stand to reason why a case where the workman who has an existing right to recover money due to him under the award, settlement and under chapters 1-a and v-b or otherwise cannot invoke s. 33c(2) especially when the employer does not dispute the right of the workman. the supreme court in central bank of india ltd. v. p. s. rajagopalan (vide supra), has laid down that the three categories of claims mentioned in s. 33c(1) also fall under s. 33c(2). 'it is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under s. 33c(2). there is no doubt that the three categories of claims mentioned in s. 33c(1) fall under s. 33c(2) and in that sense, s. 33c(2) can itself be deemed to be kind of execution proceedings; but it is possible that claims not based on settlements, awards or made under the provisions of chapter v-a, may also be competent under s. 33c(2) and that may illustrate its wider scope.' thereforee, it follows that classes of claims which are mentioned in s. 33c(1), can still attract the provisions of s. 33c(2) especially in case like the present one. as is apparent from the impugned order, the petitioner in its affidavit before the conciliation officer admitted that the average earning of the workman for the months of june, july and august 1971, be taken as rs. 287.99. in view of there being no controversy over this aspect, the claim would squarely fall under s. 33c(2) of the act. once there is an admission of the existing right of the workman by the employer in regard to the benefit which the former is entitled to receive from the latter, s. 33c(2) of the act would come into play. learned counsel for the petitioner cited various decisions of the supreme court and of this court as of the patna high court, namely, punjab national bank ltd. v. k. l. kharbanda, a. i. r. 1963 s. c. 48, uttar pradesh electric supply company, ltd. v. r. k. shukla 1970 lic 276, s. monomani v. labour court 1969 (2) lic 1448 and bharat kala kendra (private) ltd. v. ved prakash agarwal 1974 2 l. l. n. 48, in order to draw a distinction between the provisions of s. 33c(1) and 33c(2). these authorities are of no assistance to learned counsel for the petitioner as in none of the above cases there was a virtual admission of the right of the workman by the employer before the labour court as in the present case. in any event, before the labour court, the petitioner did not plead or urge that s. 33c(2) of the act was not attracted or the labour court did have the jurisdiction to entertain the claim of the second respondent under it. before the labour court, there was not even a whisper of the plea that the claim of the respondent would fall under s. 33c(2). the petitioner is raising the controversy for the first time in the writ petition. a small man had been held entitled to a small sum of money 20 years back by the labour court. he cannot be denied this sum on a hypertechnical plea, which was not raised before the labour court. 8. i see no reason to interfere with the impugned order of the labour court. consequently, the petition is dismissed but without any order as to costs.