Dismissed

The Chairman-Cum-M.D.Cement Corporation v. Central Govt.Industrial Tribunal

Himachal Pradesh HC26 Dec 2011CWP/7430/2010

Case brief

AI extract

What is this about?

This writ petition challenged an award directing a Cement Corporation entity to pay a contract labourer a wage difference computed under Section 33-C(2) of the Industrial Disputes Act based on Wage Board recommendations. The Court held the award was valid.

What did the court decide?

Writ petition dismissed; award dated 17.08.2010 confirmed; no costs.

The Chairman-Cum-M.D.Cement… — Labour and Industrial Disputes | Himachal Pradesh HC (2011)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

¶2

C.W.P. No. 7430 of 2010.

¶3

Reserved on: 27.12.2011.

¶4

Decided on 13.01.2012.

¶5

The Chairman-Cum-Managing Director, Cement Corporation of India Ltd., Core No. 5, Scope Complex, Lodhi road, New Delhi.

¶6

The General Manager, Cement Corporation of India Ltd., Post Office-Rajban Cement Factory, District Sirmour-171029 (H.P.).

¶7

…………..Petitioners.

¶8

-Versus-

¶9

Central Government Industrial Tribunal-Cum-Labour Court –I, Chandigarh and others.

¶10

Shri Anup Kumar, son of late Shri Jagdish Singh, Resident of Village Cattu Navi, Post Office Chhacheti, Tehsil Paonta Sahib, District Sirmour-173 209 (H.P.).

¶11

Shri Albel Singh, Labour Supply Contractor, C/o Cement Corporation of India Limited, Post Office Rajban Cement Factory, District Sirmour-172029 (H.P.)

¶12

………………...Respondents.

¶13

Writ Petition under Article 226 of the Constitution of India.

¶14

Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?¹Yes.
____________________________________________________________ For the petitioner : Mr. K.D. Shreedhar, Advocate. For respondent
No. 2 : M/s. Rohit Sharma and Anuj Gupta, Advocates. For respondents
No. 1 and 3 : None.

¶15

---------------------------------------------------------------------------------------- Rajiv Sharma, Judge:

¶16

Petitioner-Company (hereinafter referred to as “the Management” for convenience sake) has assailed the award made

¶17

by the learned Central Govt. Industrial Tribunal-Cum-Labour

¶18

1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.

¶19

¶20

Court-I, Chandigarh in case L.C.A. No. 4 of 2010, dated 17.08.2010.

¶21

2. Material facts necessary for the adjudication of this petition are that the respondent-Workman (hereinafter referred to as “the workman” for convenience sake) has filed a petition under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” for brevity sake). Primarily, the workman has confined his relief to the difference of wages and arrears as per Wage Board constituted by the Central Government amounting ` 508501/-.

¶22

3. The Management filed reply to the same. Primarily, it was contended by the Management that the application under Section 33-C (2) was not maintainable in the present form. It was also contended that under Section 22 of the Act, the application under Section 33(C) (2) was not maintainable. The workman was not directly employed by the Management as Workman. Learned Central Government Industrial Tribunal –Cum-Labour Court vide award dated 17.08.2010 computed a sum of ` 508501/- in the proceedings under Section 33-C(2) payable to the workman. The Management was directed to pay the computed amount within two months from the date of receiving the order.

¶23

4. Mr. K.D. Shreedhar, learned counsel for the petitioner has strenuously argued that the application under Section 33–C(2) was not maintainable. According to him, the proceedings under Section 33-C(2) are in the form of execution. He then argued that the workman was not employed by the Management. He lastly contended that under Section 22 of the Sick Industrial Companies

¶24

¶25

(Special Provisions) Act, 1985, the Labour Court has no jurisdiction to decide the application.

¶26

5. Mr. Rohit Sharma, learned counsel for respondent No. 2 has strenuously argued that the workman is entitled to the wages determined by the Central Wage Board constituted by the Central Government on 02.04.1958 and the recommendations made from time to time. He further argued that the amount has already been computed as per award and the same was liable to be paid by the Management and since the difference of wages has not been paid to the workman at par with regularly employed employees of the Company, he was entitled to move an appropriate application under Section 33-C(2) of the Act.

¶27

6. I have heard the learned counsel for the parties and gone through the pleadings carefully.

¶28

7. The dispute is in a narrow compass. The core issue to be decided is whether the application preferred by the workman under Section 33-C(2) was maintainable before the learned Central Government Industrial Tribunal-Cum-Labour Court or not. The workman was engaged on 21^st April, 2003. He has served a legal notice upon the Management on 30^th January, 2010. Thereafter, as noticed above, he has filed a claim petition, to which reply was filed by the Management.

¶29

8. The Management has placed on record the recommendations made by the Wage Board vide Annexures P-3, P- 4 and P-6, respectively. A bare perusal of item Nos. 4.27 and 4.28 of Annexure P-3 makes it abundantly clear that the contract labour employed in the Cement Industry should get the same wages, dearness allowance, leave, medical facilities, hours of work

¶30

¶31

and overtime as departmental labour and they should also get the same rate of bonus. It is also made clear as per paragraph 4.27 that employers should carry more direct responsibility to ensure that the contractors make payment to their labour on the employers’ premises and in the presence of a representative deputed by the employer to check and supervise such payments.

¶32

9. The recommendations of the Wage Board have been summarized vide Annexure P-4, whereby in paragraph No. 14.8, it is reiterated that the contract labour employed in the Cement Industry should get the same wages, dearness allowance, leave etc. as departmental labour and they should get the same rate of bonus and as per paragraph No. 14.9, it is reiterated that the employers should carry more direct responsibility to ensure that the contractors make payment to their labour on the employers’ premises.

¶33

10. It will be apt at this stage to reproduce paragraph No. 165 of Annexure P-5, which reads as under:

¶34

“165. If after the recommendation of the First Wage Board, which has been accepted by the Government and implemented by the industry, any employee in the industry has resorted the employment of contract labour in any occupation other than those permitted by the First Wage Board, it would amount to an aberration and an unfair practice by the employer concerned. Therefore, to correct such aberration and direct the employe not to persist in such unfair practice but to employ such labour as regular departmental workers as well without our jurisdiction.”

¶35

11. According to paragraph No. 166, the Wage Board has recommended that no contract labour shall be employed in the

¶36

¶37

industry by any employee except in loading, unloading, packing operations, as stated by the First Wage Board and where any employer employ contract labour in any other occupation such labour shall be made regular departmental employee under the employers and made eligible to the same wages, dearness allowance, bonus and other allowance under the award as the other regular employee under the employer, provided they give the corresponding workload obtaining for similar occupation in units. 12. In Annexure P-6, it is stated that it was agreed position that contract labour will not be employed in any other occupation and the Regulation Act will not come in the way if the Wage Board directed that the agreement in respect of contract labour from the days of the First Wage Board should be adhered to by the employers. The Board has directed that the unanimous recommendations of the First Wage Board in that regard should be strictly adhered to.

¶38

13. Learned Labour Court has taken into consideration the award made by the Wage Board. It is the primary duty of the employer as per the contents of Annexures P-4 to P-6 to ensure that even the persons appointed on contractual basis are given the same wages which are paid to the regular employees in the Company. No issue was framed that whether the workman was engaged by respondent No. 3, Shri Albel Singh or not. The Court need not go into this issue since the case of the workman is covered by the various recommendations, as noticed above for the purpose of payment of difference of wages. Rather, it is emphasized in the first recommendation made by the Wage Board that the Management should ensure that the contractor make

¶39

¶40

payments to their labour in the presence of representatives. In these circumstances, it can safely be concluded that the wages to which the petitioner is entitled, also stood computed on the basis of the recommendations made by the Central Wage Board. He was entitled to the wages determined by the Central Wage Board and not as per the minimum wages notified by the State of Himachal Pradesh, as argued by Mr. K.D. Shreedhar, learned counsel for the petitioners.

¶41

14. Mr. Rohit Sharma, learned counsel for respondent No. 2 has also brought to the notice of this Court that as far as Cement Corporation of India Rajban Unit is concerned, it is running in profits. The rights of the contractual employees stood determined as per the recommendations of the Wage Board and the Labour Court was only to compute the money.

¶42

15. Now, the Court will advert to the question whether the application preferred by the workman under Section 33-C(2) was maintainable before the learned Central Government Industrial Tribunal-Cum-Labour Court or not. In the instant case, the wages to which the contractual employees were entitled, already stood determined by the Wage Board and the Management was bound to pay the same.

¶43

16. What is to be gone into while considering application under Section 33-C(2) is :

¶44

(i) that the workman is entitled to receive any money or benefit; and

¶45

(ii) that the benefit is capable of being computed in terms of money.

¶46

¶47

The expression “benefit” is to be construed liberally and it will include its benefits, expressed or otherwise, in terms of money, but requiring computation. The expression compute means: to calculate.

¶48

17. The expression ‘benefit’ mentioned in sub-section (2) of Section 33-C has been explained by their Lordships of the Hon’ble Supreme Court in Punjab National Bank Ltd. Versus K.L. Kharbanda , AIR 1963 Supreme Court 487 as under:

¶49

“9. This matter had come up before the Labour Appellate Tribunal in 1955 in Glaxo Laboratories (India) Ltd. Bombay v. Shri A Y. Manjrekar. Etc., 1955 Lab AC 505 (LATI-Bom). The appellate tribunal took the view that S.20 of the Appellate Tribunal Act was concerned purely with execution and there was no reason to hold that subsee (2) only applied to non-monetary benefit. The same view was taken by the Madras High Court in South Arcot Electricity Distribution Co. Ltd. v. Elumalai, 1959-1 Lab LJ 624: (AIR 1959 Mad 401) by a learned Single Judge and again by the same High Court in M.S. N.S. Transports, Tiruchirapalli v. K Rajaram, 1960-1 Lab LJ 336: (AIR 1961) Mad 332) by a Division Bench Looking therefore to the words of the sub-section and the previous decisions with respect to them we are of opinion that the word "benefit" used in sub-sec. (2) is not confined merely to nonmonetary benefit which could be converted in terms of money but is concerned with all kinds of benefits, whether monetary or non-monetary, to which a workman may be entitled, say, for example, under an award and that the sub-section comes into play when the benefits have to be computed or calculated and there is a dispute as to the calculation or computation. After the benefits have been so computed, the workman can apply under sub-sec. (1) for recovery of the amount in the same manner as arrears of land-revenue. As in this case, the Sastry award had conferred a benefit on the respondent and those like him by providing for fixation of pay in the new scale, even though that benefit may be monetary and there was a

¶50

¶51

dispute between the parties as to the amount of that benefit, it was open to the respondent to apply to the labour Court for computation of that benefit in terms of money, and then labour Court would have jurisdiction to entertain the application and compute the amount due on the basis of the benefit conferred by the award.

¶52

18. In this case their Lordships have held that the Sastry award had conferred a benefit on the respondent and those like him by providing for fixation of pay in the new scale, even though that benefit may be monetary and there was a dispute between the parties as to the amount of that benefit and it was open to the respondent to apply to the labour Court for computation of that benefit in terms of money, and the labour Court would have jurisdiction to entertain the application and compute the amount due on the basis of the benefit conferred by the award.

¶53

19. The Apex Court in The Central Bank of India Ltd.

¶54

Versus P.S. Rajagopalan etc ., AIR 1964 Supreme Court 743 have held that Section 33 C(2) applies even if right to benefit is disputed by the employer. Their Lordships have further held that it would be open to the Labour Court to interpret the award or settlement on which workman’s right rests. Their Lordships have further held that the scope of Section 33-C(2) is wider than that of Section 33 C(1). Their Lordships have held as under:

¶55

“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-sec. (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.

¶56

¶57

(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-sec. (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 terms 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 the necessary computation can arise. It seems to us that the opening clause of sub sec. (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 Section 33C(2) clearly postulates that the determination of the question about

¶58

10 -

¶59

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-sec. (2). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the powers of doing all such acts, or employing such means, as are essentially necessary to its execution (Maxwell on Interpretation of Statutes p.350)''. 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).

¶60

17. It is however, urged that in dealing with the question about the existence of a right set up by the workman, the Labour Court would necessarily have to interpret the award or settlement on which the right is based, and that cannot be within its jurisdiction under S. 33C(2), because interpretation of awards or settlements has been specifically and expressly provided for by S 36A. We have already noticed that Section 36A has also been added by the amending Act No. 36 of 1956 along with S. 33C. and the appellant's argument is that the legislature introduced the two sections together and thereby indicated that questions of interpretation fall within S. 36A and, therefore, outside S. 33C(2). There is no force in this contention. Section 36A merely provides for the interpretation of any provision of an award or settlement where any difficulty or doubt arises as to the said interpretation. Generally, this

¶61

11 -

¶62

power is invoked when the employer and his employees are not agreed as to the interpretation of any award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such case that S. 36A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties resolved and that remedy is now provided by S. 36A. But the scope of S. 36A is different from the scope of S. 33C(2), because S. 36A is not concerned with the implementation, or execution of the award at all, whereas that is the sole purpose of S. 33C(2). Whereas S. 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, S. 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under S. 36A.

¶63

18. Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under S. 33C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under S. 33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests.

¶64

12 -

¶65

19. We have already noticed that in enacting S. 33C the legislature has deliberately omitted some words which occurred in S. 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable that similar words of limitation have been used in S. 33C(1) because S. 33C(1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter VA. It is thus clear that claims made under S. 33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in S. 33C(2) and to that extent, the scope of S. 33C(2) is undoubtedly wider than that of S. 33C(1). It is true that even in respect of the larger class of cases which fall under S. 33C(2) after the determination is made by the Labour Court the execution goes back again to S. 33C(1). That is why S. 33C(2) expressly provides that the amount so determined may be recovered as provided for in sub-sec. (1). 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 a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under S. 33C(2) and that may illustrate its wider scope. We would, however, like to indicate some of the claims which would not fall under S. 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the

¶66

13 -

¶67

employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under S. 33C(2). If a settlement has been duly reached between the employer and his employees and it falls under S. 18(2) or (3) of the Act and is governed by S. 19(2), it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative, no claim can be made under S. 33C(2) inconsistent with the said settlement. If the settlement is intended to terminated; proper steps may have to be taken in that behalf and a dispute that may arise thereafter may be dealt with according to the other procedure prescribed by the Act. Thus, our conclusion is that the scope of S. 33C(2) is wider than S. 33C(1) and cannot be wholly assimilated with it, though for obvious reasons, we do not propose to decide or indicate what additional cases would fall under S. 33C(2) which may not fall under S. 33C(1). In the connection we may incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd., (1962) 1 Lab LJ 234 (AIR 1963 SC 487) that S. 33C is a provision in the nature of execution should not be interpreted to mean that the scope of S. 33C(2) is exactly the same as S. 33C(1) (at p. 238) (of Lab LJ) : (at pp.489-490 of AIR).

¶68

20. The Apex Court in State Bank of Patiala Vs. Ram

¶69

Pakash and another , AIR 1966 Supreme Court 1665 again gone into the applicability of Section 33-C(2). In this case, the workmen had filed application under Section 33-C(2) of the Act praying for determination and computation of the benefit to which they were entitled under Desai award as they were not satisfied with the fixation of their pay by the bank.

¶70

21. The Apex Court in Chief Mining Engineer, M/s. East India Coal Co. Ltd., Bararee Colliery Dhanbad Vs. Ramehwar and others, AIR 1968 Supreme Court 218 has laid down that the

¶71

14 -

¶72

Labour Court has jurisdiction to interpret an award or settlement on which workmen’s right rests. Their Lordships have held as

¶73

under:

¶74

“5. It is clear that the right 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 an industrial workman and his employer. Since the scope of sub-section (2) is wider than that of subs. (1) and the sub-section is not confined to cases arising under an award, settlement or under the provisions of Chapter V-A, there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being anything contrary under such statute or Section 33-C (2), cannot fall within sub-section (2). Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to the be computed must fall under sub-section (2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer. The contention that the Labour Court had no jurisdiction because the claim arose under the said scheme or because the benefit was monetary or because it involved any substantial question between the Company and the workmen must, in view of the said decisions, fail.

¶75

22. The scope of Section 33 C(2) has been further explained by their Lordships of the Hon’ble Supreme Court succinctly in Payment of Wages Inspector, Ujjain V. Surajmal Mehta, Director, The Barnagar Electric Supply and Industrial

¶76

Co. Ltd. and another , AIR 1969 Supreme Court 590. Their Lordships have held as under:

¶77

“ 5. It must, however, be remembered that though such compensation falls within the definition of wages, cases may arise where it would not be a simple question of recovery of wages. In the present case, for instance, the defence taken by respondent 1 was that he was not the person responsible for payment of compensation and that the right of the workmen was

¶78

15 -

¶79

defeated by reason of the proviso to Section 25FF being, according to him, applicable inasmuch as these workmen were continued in the employment by the said Board, the new employer, that therefore there had been no interruption in their employment, that the terms and conditions of service given to them by the new employer were in no way less favourable than those they had when the company was the employer, and that the new employer was responsible for payment of compensation if any retrenchment took place in future. The question, therefore, is whether in view of the limited jurisdiction of the Authority under Section 15 (2) of the Act, it was intended to deal with such questions, which in some cases might well raise complicated problems of both fact and law.

¶80

6. While considering the scope of jurisdiction of the Authority under Section 15 of the Act it is relevant to bear in mind the fact that the right to compensation is conferred by the Industrial Disputes Act which itself provides a special tribunal for trying cases of individual workmen to whom compensation payable under Chapter VA has not been paid. Section 33C of that Act provides both a forum and the procedure for computing both monetary as well as non-monetary benefits in terms of money and further provides machinery for recovery of such claims. In Punjab National Bank Ltd. v. K. L. Kharbanda, 1962 Supp (2) SCR 977= (AIR 1963 SC 487) this Court held that while sub-section (I) of Section 33C applied to cases where any money was due to a workman from an employer under a settlement, award or under the provisions of Chapter VA and the amount was already computed or calculated or at any rate there could be no dispute about its calculation or computation, sub-section (2) applied to benefits including monetary benefits conferred on a workman under an award, settlement etc., but which had not been calculated or computed and there was a dispute as to their calculation or computation. The Court rejected the contention that sub-section (2) applied only to a non-monetary benefit which had to be converted in terms of money. The Court also observed that Section

¶81

16 -

¶82

33C was a provision in the nature of execution and where the amount to be executed was worked out or where it might be worked out without any dispute sub-section (1) would apply but where such amount due to the workman was not stated or worked out and there was a dispute as to its calculation, sub-section (2) would apply and the workman would be entitled to apply thereunder to have the amount computed provided he was entitled to a benefit, whether monetary or non-monetary, which was capable of being paid in terms of money. In the Central Bank of India Ltd. v. Rajagopalan, 1964 (3) SCR 140=(AIR 1964 SC 743) this Court held that where the right of a workman was disputed by his employer the Labour Court could go into the question as to whether he had a right to receive such a benefit. Sub-section (3) of Section 33C under which the Labour Court can appoint a commissioner to take evidence for computing the benefit postulates that it has the jurisdiction to decide whether the workman claiming benefit was entitled to it where such right was disputed by the employer. In Bombay Gas Co. Ltd. v. Gopal Bhiva, 1964-3 SCR 709 = (AIR 1964 SC 752) this Court held that the Labour Court could in an application under Section 33C (2) go even into the question whether the award under which the workman had made a claim was a nullity. Being in the nature of an executing Court it could interpret the award and also, consider the plea that the award sought to be enforced was a nullity. It is thus clear that a workman whose claim, monetary or otherwise, is disputed by his employer can lodge such a claim before a specified Labour Court under Section 33C and obtain an inexpensive and expeditious remedy. The question then is whether for such a claim the legislature intended to provide alternative remedies both under the Industrial Disputes Act and the Payment of Wages Act. For deciding this question it is necessary to refer to some of the provisions of and the scheme of the Payment of Wages Act.”

¶83

23. The Apex Court in Central Inland Water Transport Corporation Ltd. Vs. The Workmen and another, AIR 1974

¶84

17 -

¶85

Supreme Court 1604 has again explained the scope of Section 33 C(2) as under:

¶86

“12. It is now well-settled that a proceeding under Section 33C (2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workmen from his employer, or if the workman is entitled to any benefit which is capable of being computed in term of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar, (1968) 1 SCR 140 = (AIR 1968 SC 218) it was reiterated that 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 workmen is in such cases in the position of an executing court. It was also reiterated that the right to the benefit which is sought to be computed must be an existing one, that it to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an Industrial workmen and his employer.

¶87

13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination no (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33C (2) is in

¶88

18 -

¶89

the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'incidental' To call determinations (i) and (ii) 'incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33C (2), that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself function - say to an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'incidental' to its main business of computation. In such cases determinations (i) and (ii) are not 'incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal, (1968) 2 Lab LJ 589 (SC), that a workman cannot put forward a claim in an application under Section 33C (2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an Industrial Dispute which requires a reference under Section 10 of the Act.”

¶90

24. In Central Bank of India Vs. Sirir Kumar Shaw,

¶91

AIR 1976 Supreme Court 929, the Apex Court has held that the Labour Court can interpret the dispute as to special allowance under the terms of bipartite agreement between the parties under Section 33-C(2). Their Lordships have held as under:

¶92

19 -

¶93

“7. Another point raised on behalf of the appellant was that this application cannot be maintained under Section 33C (2). We are of opinion that this contention is wholly without merit. What the Labour Court was doing was to interpret the terms of the bipartite agreement and that it is entitled to do under that section.”

¶94

25. The Apex Court in Namer Aliu Choudhury and others Vs. The Central Inland Water Transport Corporation

¶95

Ltd. and another, (1977) 4 Supreme Court Cases 575 has again explained the scope of Section 33-C(2) as under:

¶96

“4. In our judgment the High Court has committed an error in so narrowly interpreting S. 33C(2) of the Act. The said provision runs as follows :

¶97

"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 appropriate Government." There are two parts of the sub-section as it stands after its amendment by Act 36 of 1964. The first part is concerned with the money claim simpliciter and the second part speaks about computation in terms of money of any benefit to which the workman is entitled. Although for appreciation of the point at issue there is no substantial difference between the two, we shall confine our discussion to the money claim only pure and simple. On a plain reading of the wordings of the Statute it would be found that where any workman is entitled to receive from employer any money and if any question arises as to the amount of money due, then the question may be decided by the Labour Court. The expression "if any question arises as to the amount of money due" embraces within its ambit any one or more of the following kinds of disputes :- (1) Whether there is any settlement or award as alleged?

¶98

20 -

¶99

(2) Whether any workman is entitled to receive from the employer any money at all under any settlement or an award etc?

¶100

(3) If so, what will be the rate or quantum of such amount?

¶101

(4) Whether the amount claimed is due or not?

¶102

Broadly speaking, these will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established, no amount of money will be due. If it is established, then it has to be found out, albeit, it may be by mere calculation, as to what is the amount due. For finding it out, it is not necessary that there should be a dispute as to the amount of money due also. The fourth kind of dispute which we have indicated above obviously and literally will be covered by the phrase, "amount of money due". A dispute as to all such questions or any of them would attract the provisions of S. 33C(2) of the Act and make the remedy available to the workman concerned.”

¶103

26. The Apex Court in Municipal Corporation of Delhi

¶104

Versus Ganesh Razak and another (1995) 1 Supreme Court Cases 235 has again explained the scope of Section 33-C(2) as under:

¶105

“12. The High court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2 of the Act. The Labour court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2 of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter

¶106

21 -

¶107

for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour court's power under Section 33-C(2 like that of the Executing court's power to interpret the decree for the purpose of its execution.”

¶108

27. The Full Bench of Gujrat High Court in Nizajmuddin Suleman etc. Vs. The New Shorrock Spg and Mfg. Mills Co.

¶109

Ltd. Nadiad and another etc ., 1980 LAB I.C. 397 has held that while deciding maintainability of proceedings what is to be looked at is the plaint in a civil suit or the application in case existing under Section 33-C(2) of the Industrial Disputes Act and not what the other side contends or urges in its reply or written statement. The Full Bench has followed the principles laid down in AIR 1964 SC 743 as explained in 1978 Lab IC 693 (SC).

¶110

28. Their Lordships of the Hon’ble Supreme Court in U.P. State Road Transport Corporation Vs. Birendra Bhandari , (2006) 10 Supreme Court Cases 211 have reiterated that the benefit enforceable has to be a pre-existing benefit or one flowing from a pre-existing right.

¶111

29. The learned Single Judge in Bharat Earth Movers Ltd., Mysore Vs. Gangaramaiah and others , 2007 (114) FLR 700 has held that the application under Section 33-C(2) is maintainable and under Section 21 of the Contract Labour Regulation Act it is the duty of employer to ensure that all the Contractors make payment of wages to the labourers or their representatives in terms of Section 21(2) of the Act. The learned Single Judge has held as under:

¶112

22 -

¶113

“8. The Principal contention of the learned Senior Counsel for the petitioner is that the Labour Court in exercise of power under Section 33-C(2) has no power to allow the claim of the workmen when there is a serous dispute s to the relationship of master and servant and maintainability of the application. The said contention of the learned Senior Counsel for the petitioner is that since the respondents 1 to 121 not being workmen under the petitioner, they cannot maintain a claim application for difference of minimum wages before the Labour Court under Section 33-C(2) of the Act. In the light of these submissions, the question that arises for consideration in this writ petition are:

¶114

(1) Whether the contract labourer whose difference of minimum wages has not been paid by the contractor are entitled to maintain the claim petition under Section 33-C(2) against the principal employer as well as the contractor?

¶115

(2) Whether on failure of the contractor to pay the difference of minimum wages as agreed under the contract, the principal employer is liable or not?

¶116

14. Insofar as the contention of the learned Senior Counsel that there is no relationship of master and servant or employer and workmen and claim petition under Section 33-C(2) of the Act is not maintainable. It is to be seen here, that as regards to the nature of the employment of the respondents 1 to 121 is concerned is that they are contract labourer under the respondent 122. What is claimed by these respondents is the difference of minimum wages from the contractor, who is primarily liable under section 21(1) of the CLRA Act. By reading of section 21, subsections (1) and (2) makes it abundantly clear that a contractor is liable to make the payment to the contract labourer and that payment is required to be ensured by the principal employer. Reading of these two subsections clearly indicates, that the liability basically on the contractor and the said payment has to be ensured by the principal employer. It also makes it clear, that in the event the contractor fail to make the payment, then the liability is created on the principal employer. If the status creates liability on the principal employer, then it become legally unrecoverable due. Once the amount becomes legal due, the contract labourer for the purpose of recovery would be workmen for the purpose

¶117

23 -

¶118

of Section 33-C(2) of the Act. Hence, the application under Section 33-C(2) is maintainable for the recovery of the amount and agreed under the contract. There is no dispute that the minimum wages is required to be paid to the contract labourer in terms of the contract and the claim made by the respondents 1 to 121in entitle can be recovered under Section 33-C(2) of the Act. The question of relationship of master and servant does require for the purpose of deciding the recovery amount to which the principal employer is statutorily liable.”

¶119

30. Now, as far as the question of applicability of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 is concerned, the learned Labour Court has held that since the Act has been repealed by Sick Industrial Companies (Special Provisions) Repeal Act, 2003, the question need not be gone into. However, since a legal question has been raised, the Court has decided to go into this question also.

¶120

31. Learned Single Judge of Bombay High Court has held in Baburao P. Tawade & Ors . Vs. Hes Ltd. Bombay & Ors . 1995 II CLR 81 that the bar under Section 22 is not applicable to the claim made under Section 33-C(2) of the Industrial Disputes Act.

¶121

32. Learned Single Judge of Allahabad High Court in M/s. Muir Milla, Kanpur Vs. P.O. Labour Court (IV) Kanpur and others , 1997 (76) FLR has held that realization of wages of workman cannot be resisted on the basis of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.

¶122

33. The Division Bench of Karnatka High Court in Indian Plywood Manufacturing Company, Ltd. Vs. Commissioner of Labour and others, 2000 (2) L.L.N. 677 has held that Section 22 of the Industrial Companies (Special Provision) Act, 1985 does not bar the workman from recovering wages payable to him under the Industrial Disputes Act.

¶123

24 -

¶124

“2. The main ground urged was that in view of the provisions of S. 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter called the 1985 Act), no recovery could be made from the appellant. The learned Single Judge after referring to various provisions of law applicable in the case and relying upon a judgment of Allahabad High Court in 1993 L.L.R. 689, dismissed the writ petition vide the order impugned in this appeal.

¶125

6. The learned Single Judge appears to have rightly relied upon the judgment of the Allahabad High Court reported in 1993 (2) L.L.N. 548, wherein it has been held in Paras 13 to 15, t page 553:

¶126

“….13. Both the Acts have been brought on the statute book to carry out independent and important objects though the area for their operation is the same, that is, the industrial area. It can be said that the one looks after the defective life line of the body and the other provides for the beetling of necessary limbs like hands and legs of the same body. But, both are necessary to keep the whole body moving.

¶127

14……..the purpose and object of S. 22 cannot be to cover those proceedings or actions which are necessary for running the industry irrespective of the fact whether it is sick or non-sick. If the industry cannot run without workers the workers also cannot be expected to work without payment of the wages. The timely payment the wages for which the provisions of the Act of 1978 have been enacted would thus be a sleep helping rehabilitation and it cannot be said that it created any obstacle in fulfilling the object for which the Act, 1985, has been enacted. Both the Acts are thus complementary to each other. Section 22 cannot thus effect the proceedings taken under S.3 of the Act of 1978 for compelling petitioner to make payment of the wages already accrued to the workers…

¶128

25 -

¶129

15……The Parliament while putting S. 22 of the Act, 1985, could never have intended that the industrial unit under the garb of sickness or for any like difficulty may be allowed to shirk its liability to pay the wages to its workers for the work they have done. Thus, proceedings under S. 3 of the Uttar Pradesh Act of 1978 will not be affected by S. 22 of the Act, 1985.”

¶130

34. Thus, on the basis of the law laid down in the judgments cited hereinabove, it is clear that the claim of the workman under Section 33–C(2) could not be resisted by invoking Section 22 of the Sick Industrial Companies (Special Provision) Act, 1985.

¶131

35. What emerges from the observations and discussions made hereinabove, is that the learned Labour Court has jurisdiction to entertain the application under Section 33-C(2). According to the recommendations made by the Central Wage Board, the workman has been held entitled to the same benefits which are being paid to the regular employees of the Company and the Labour Court has to compute the same in terms of money. The claim could not be resisted by invoking Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. The Management is bound to pay the difference of wages to the respondent-Workman, as recommended by the Central Wage Board from time to time. Consequently, there is neither any illegality nor procedural irregularity in the award dated 17.08.2010.

¶132

36. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition

¶133

26 -

¶134

and the same is dismissed, so also the pending application(s), if any. No costs.

¶135

(Rajiv Sharma) Judge

¶136

January 13, 2012. (bhupender)

¶137

27 -

The Chairman-Cum-M.D.Cement Corporation v. Central Govt.Industrial Tribunal

Case brief

What is this about?

What did the court decide?

The Chairman-Cum-M.D.Cement Corporation v. Central Govt.Industrial Tribunal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Raksha Devi Vs State

Amin Chand Verma Vs Hp.State Election Comm.

Surender Kumar Vs State

Surinder Mohan Sharma Vs H.P.Horticultural Produce Marketing

Ram Singh Vs State

Ashok Kumar Bhardwaj Vs Hpseb