M. Narasimha Reddy and Another Vs. the Management, A.P Dairy Development Co-operative Federation Ltd., Rep. by the General Manager (M.P.F) and Another - Court Judgment

CPK, J.

1 The short questions that arise for consideration in this Writ Appeal are 1) whether the Industrial Tribunal-cum-Additional Labour Court has exceeded its jurisdiction in entertaining the application made by the appellants herein under Section 33 C (2) of Industrial Disputes Act, 1947 (for short ‘the Act’) and 2) Whether the Voluntary Retirement Scheme notified by the Respondents herein vide circular No.1947/per.V-2/89 dated 03.09.1996 cover the service rendered by the employee/appellant on casual basis.

2 Few facts which are necessary for disposal of the case are as under:

The appellant was an employee of the A.P. Dairy Development Co-operative Federation Limited (hereinafter referred to as ‘Federation’). He joined in the service initially on casual basis with effect from 01.04.1971 and thereafter he was absorbed into regular service in a time scale. He was there in service till 17.05.1997. While the appellant was in service, the Government of Andhra Pradesh vide Memo No.1038/PE.1/A2/94-4 dated 23.01.1996 issued consolidated guidelines for a Voluntary Retirement Scheme to the employees of Public Enterprises, Co-Operative Institutions and other State undertakings. It is apt to mention that under Clause 4, the scheme was not made applicable to

a) Employees who are due to retire on superannuation within a year from the date of application,

b) Deputations,

c) Temporary or Casual Employees and employees on consolidated wages,

d) Employees on contract Basis,

e) Employees where proceedings for termination of employment on disciplinary grounds of unsatisfactory performance while in service is in progress.

The said guidelines were also implemented by the respondent Federation vide circular dated 03.09.1996 and called the applications from its employees from 01.09.1996. The appellant opted for Voluntary Retirement Scheme and his application was accepted. As such he was allowed to retire voluntarily as per scheme by extending all the benefits which he is entitled to. Consequently he retired on 17.05.1997 after receiving all the benefits.

3 Having retired in the year 1997, the appellant slept over his rights and for reasons best known, approached the Labour Court in the year 2005 by way of filing M.P.No.18 of 2005 claiming an amount of Rs.29,170/- with interest towards exgratia, gratuity and notice pay of one month. According to him the calculation for the benefits under the scheme has to be made from his initial date of appointment i.e. 01.04.1971. The respondent Federation contested the same on the ground that an application under Section 33 C (2) of the Act is not maintainable as the claim made is in dispute and the Voluntary Retirement Scheme cannot be extended to casual employees. In substance it is the contention of the Federation that the period during which the employee was on contract / casual basis cannot be taken into account for calculating the benefits under Voluntary Retirement Scheme.

4 The Labour Court by its order dated 11.06.2007 allowed the M.P.No.18 of 2005 for recovery of Rs.29,170/- along with interest at 9% p.a from the date of order till its realization.

5 Assailing the said order, the Federation filed Writ Petition No.188 of 2008 before this Hon'ble Court reiterating the same stand taken before the Labour Court. A learned Judge of this Hon'ble Court by his order dated 14.06.2010 allowed the Writ Petition and consequently set aside the order dated 11.06.2007 passed by the Labour Court in M.P.No.18 of 2005.

6 Aggrieved by the same, the employee is before us, contending that the learned single Judge did not consider the ratio laid down by a Constitution Bench of Supreme Court in Central Bank of India Vs. P.S. Rajagopalan (AIR (SC) (1964) 743) and also a judgment of Jarkhand High Court in LaljitBhuiya Vs. Bharat Coking Coal, Ltd and others (2003 (2) LLN 702)for the proposition that the Labour Court has jurisdiction to deal with the question as to whether the workman has a right to receive the benefit when the said benefit is under dispute. It is further contended that Voluntary Retirement Scheme applies even to a workman appointed on casual basis as the Act makes no distinction between a permanent employee and a temporary employee. On the other hand, the learned counsel for the Federation would contend that the learned single Judge has considered the aspects and the said order warrants no interference from this Court.

7 A look at Section 33 C (2) of the Act may be necessary to decide as to whether the Labour Court has exceeded its jurisdiction in entertaining the application filed under Section 33 C (2) of the Act. The said Section reads as under:

(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.)

A reading of the   said section clearly indicates that any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, such amount can be claimed by way of an application under that provision. The emphasis is obviously on the words ‘entitled to receive’.

8 The judgment of High Court of Jharkhand in Laljit Bhuiya (2 supra) relied upon by the learned counsel for the appellant was dealing with a situation where an employee was engaged on casual status in 1973 and continued as such till 1989. Taking into consideration the fact of employee being in service for 16 years as casual workers, the Court took the view that the benefit under Voluntary Retirement Scheme should be extended. The judgment of High Court of Delhi in Delhi Cantonment Board Vs. Central Government Industrial Tribunal and others (2006 – III – LLJ) relied upon by the learned counsel for the appellant will not apply to the case on hand. It was a case where a Division Bench of High Court of Delhi was dealing with the applicability of Section 25 F of the Act to workman. The Court having found that the employees therein were workman under the Act, held that their services cannot be terminated without following the procedure contemplated under Section 25 F of the Act. The judgment of the Constitution Bench of Supreme Court in Central Bank of India case (supra) was a case where the employee of the Bank, besides attending to his routine duties as clerk, had been operating the adding machine provided for use in the cleaning department of the branch. They claimed RS.10/- as special allowance for operating the adding machine as provided for under paragraph 164 (b) (1) of Sastry Award. The Supreme Court while negating the claim of employees, dealt with Section 33 C (2) of the Act and remanded the matter back to the Labour Court to decide whether the nature of duties and responsibilities of the post held by the employees legitimately justify the contention that they are Comptists. Therefore, the judgment relied upon by the learned counsel will not apply to the case on hand.

9 On the other hand the learned counsel for the respondent relied on U.P. State RTC Vs. Shri Birendra Bhandari (AIR 2006 SC 3220). It was a case where a claim petition under Section 33 C (2) of the Act was filed for payment of arrears relating to difference of salary, leave encashment, arrears of dearness allowance arising out of implementation of recommendations of 5^th Pay Commission are binding on the Corporation and therefore dues are payable. The Supreme Court while holding that the benefit which can be enforced under Section 33 C (2) should be a pre-existing benefit or one flowing from a pre-existing right and by referring to State Bank of India Vs. Ram Chandra Dubey (2001 (1) SCC 73)summed up the findings as under:

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 entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(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 33C(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.

10 An analysis of the above judgments would show that invoking the jurisdiction of the Labour Court under Section 33 C (2) of the Act would depend on the circumstances of the case more particularly with regard to the entitlement of the employee over the claim made by him. Only the benefits flowing from an existing right can be computed under Section 33 C (2) of the Act.

11 In order to seek any benefit under Section 33 C (2) of the Act, primarily the employee has to establish his entitlement to al the benefits under the Voluntary Retirement Scheme. As stated above, the appellant worked till 17.05.1997. On the eve of his retirement under Voluntary Retirement Scheme he took all the benefits which he was entitled to without disputing even the quantum of money. After eight long years he approached the Labour Court alleging that there was a mistake in calculating the benefits and his period of service as casual employee should be reckoned with while calculating the benefits. It may be noticed that in the present case, the Voluntary Retirement Scheme notified by the Government specifically excludes the employees who were appointed on temporary and casual basis. Clause 4 of the circular, as extracted above, read with other provisions of the circular, clearly excludes the employees who were appointed on temporary and casual basis and the benefit was made applicable only for the employees who rendered regular services in the time scale. Further the differential amount of Rs.29,170/- claimed by the appellant is disputed by the Respondents. Disputed facts, where decision for ascertainment of disputes is necessary, such matters cannot be decided under Section 33 C (2) of the Act. In view of the above, it is clear that the appellant is not entitled to any benefit of Voluntary Retirement Scheme where the eligibility of the claimant and the claim for differential amount under scheme is in dispute, the Tribunal could not have entertained the application under Section 33 C (2) of the Act.

12 Further, as observed by the learned single Judge, the appellant having subjected himself to the terms of the scheme and having accepted the benefits under the scheme, cannot turn around after eight years and go back against Voluntary Retirement Scheme claiming benefits which are beyond the scope of the scheme. This practice of approaching the Courts at their whims and fancies have to be deprecated more so when the appellant was aware of the situation in question in 1997 itself.

13 In view of the above, we feel that there are no grounds to interfere with the order of the learned single Judge and as such the Writ Appeal is dismissed. No order as to costs.