Dismissed

Sri K Ananda v. M/S Bharat Heavy Electricals Ltd.

Karnataka HC23 Feb 2024WP/56744/2017

Case brief

AI extract

What is this about?

The High Court dismissed this writ petition seeking to quash an impugned order rejecting an application under Section 33C(2) of the ID Act. The court held that execution proceedings under Section 33C(2) require a pre-existing adjudicated right or award. Since the petitioner's earlier writ petition only directed the employer to consider a representation without adjudicating the claim, the Labour Co

What did the court decide?

The writ petition is dismissed and the impugned order of the Labour Court is affirmed.

Sri K Ananda Vs M/S Bharat Heavy Electricals Ltd. — Money Laundering | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF FEBRUARY, 2024

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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WRIT PETITION No.56744/2017 (L-RES)

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BETWEEN:

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SRI K. ANANDA AGED ABOUT 50 YEARS, S/O. S. KRISHNAPPA, R/AT NO.55-B, 2^ND MAIN ROAD, BAPUJINAGAR, MYSORE ROAD, BANGALORE – 560 026. ... PETITIONER

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(BY SRI S.B. MUKKANNAPPA, ADVOCATE)

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AND:

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M/S. BHARAT HEAVY ELECTRICALS LTD., ELECTRONIC DIVISION (EDN), POST BOX NO.2606, MYSORE ROAD, BANGALORE – 560 026 REPRESENTED BY ITS EXECUTIVE DIRECTOR & GENERAL MANAGER (HR). ... RESPONDENT

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(BY SRI N.S. NARASIMHA SWAMY, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 01.09.2017 PASSED BY THE I ADDL. LABOUR COURT AT BANGALORE, IN APPLICATION NO.16/09 AT ANNEXURE-J AND CONSEQUENTLY REMAND THE APPLICATION NO.16/09 TO THE I ADDL. LABOUR COURT AT BANGALORE TO PASS AN ORDER A FRESH IN ACCORDANCE WITH LAW AFTER HEARING THE RESPECTIVE PARTIES TO THE PROCEEDINGS.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 22/02/2024 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The workman is before this Court questioning the legality and correctness of the order passed by the Labour Court in the application filed by the petitioner under Section 33C(2) of the Industrial Disputes Act, 1947 (“the ID Act” for short), whereby, the application filed by the petitioner was rejected.

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The applicant is seeking direction to the

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respondent to calculate the wages and allowance due fixing the basic pay and dearness allowance from stage by stage for the period from 17.08.1994 to 20.03.2006 and wage due to him from September 1994 to March 2006 approximately in a sum of Rs.9,15,215/- with interest at the rate of 18% p.a.

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The respondent-management appeared and filed

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statement of objections, inter alia, contending that the petition is not maintainable and the application needs to be rejected. The respondent – management contended that the provisions of Section 33C(2) of the ID Act can be invoked

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when there is an existing right in claiming any monetary benefits from the employer and that there should be an order, award or a settlement to give such right to the concerned workman for claiming monetary benefit and in the absence of any decree, award or settlement in favour of the applicant for execution, the 33C(2) of the ID Act is not maintainable.

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The Labour Court, taking note of the settled proposition of law that while considering the application under Section 33C(2) of the ID Act, cannot avail jurisdiction which is available to it under Section 10 of the ID Act as that adjudication has to be in pursuance of a reference of a dispute.

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Heard learned counsel appearing for the petitioner Sri S.B.Mukkannappa and learned counsel Sri Narasimhaswamy appearing for the respondent and perused the material on record.

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The sum and substance of the arguments

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advanced by the learned counsel appearing for the petitioner is that the petitioner is legally entitled for full salary wages for the period from 17.08.1994 to 16.03.2016 and that there is an existing right for the petitioner to claim revision of pay scale on that basis and a memo of calculation as per Ex.-A25 has been submitted on account of wage revision. That though re-fixation has been done consequent upon revision of pay scale, the only thing that remains is the difference of wage allowance. That the order passed in Writ Petition No.718/2007, this Court had directed the respondent to consider the request of the petitioner for payment of full wages and allowance for the period of 17.08.1994 to 20.03.2006 and claiming difference of salary and other allowance in a sum of Rs.9,15,215/- with interest at 18% p.a. which very much falls within the purview of the Section 33C(2) of the ID act.

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Per contra, learned counsel appearing for the respondent justifies the order of the Labour Court and would

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contend that the Labour Court has rightly considered that the applicant is not entitled to claim under 33C(2) of the ID Act as there is no pre-existing right nor there is an order, award or decree of the Court to come under the purview of Section 33C(2).

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Having heard learned counsel appearing for the parties, the only point that arises for consideration is,

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“whether the Labour Court was justified in dismissing the application filed by the petitioner under Section 33C(2) of the ID Act in the present facts and circumstances of the case?”

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The facts reveal that the Writ Petition

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No.718/2007 was filed by the petitioner seeking to direct the respondent to fix the pay and allowances for the period of 17.08.1994 to 20.03.2006 at the rate of full pay with allowance including enhanced revised pay extended to the cadre in which the petitioner is working and further to continue to pay and declare the payment of full wages for similarly placed employees with that of the petitioner. The

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order of this Court in W.P.No.718/2007 at para No.4 is as

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under:

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“4. After having heard the learned counsel appearing for the parties, without going into the merits of the case it would suffice for this Court if appropriate direction is issued to the respondent to consider the representation submitted by the petitioner in accordance with law regarding fixing of pay and allowances for the period from 17-08-1994 to 20-3-2006 including revised pay & allowances in the cadre in which the petitioner is working and dispose of the same as expeditiously as possible, at any rate, within a period of 4 weeks from the date of receipt of this order if not already considered and disposed of.”

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This Court directed the respondent to consider the

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representation submitted by the petitioner in accordance with law. The order clearly indicates that there is no quantification or a right being created in the said writ petition, however, on consideration of the representation of the petitioner, it appears that the respondent has paid a sum of Rs.71,640/-. The settled proposition of law is that Section 33C(2) of the ID Act emphasises that there must be a pre-

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existing right or award or a decree or order from a competent Court and it is like an executing Court in civil matters. Section 33C(2) reads as under:

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“ 33C. Recovery of money due from an employer.— (1) x x x

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(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

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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.”

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The directions as could be seen in Writ Petition

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No.718/2007 was a direction to the management to consider the representation in accordance with law and such direction

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cannot be admittedly taken as an award or a decree or an order of recovery of amount to be enabling the petitioner to file an application under Section 33C(2) of the ID Act. The reliance placed by the learned counsel appearing for the petitioner in the case of The Central Bank of India Limited vs. P.S.Rajagopalan¹ , the law laid down in the said decision is that the Labour Court has jurisdiction to determine that the workman has right to receive the benefit, the Apex Court has distinguished Section 33C(1) and 33C(2) and held that Section 33C(2) is undoubtedly wider than Section 33C(1), while 33C(1) deals with the cases where any money is due under settlement or award or under the provisions of Chapter VA, while 33C(2) itself be deemed to be a kind of execution proceedings, but it is possible that claims not based on settlements, awards or under the provisions of Chapter VA may also be competent under Section 33C(2) and that makes it straight in wider scope. The Apex Court held that

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1 AIR 1964 SC 743

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an employee is entitled to the benefits due to him under a pre-existing right.

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It is well settled law that in case of Section 33C(2) of the ID Act, the Labour Court acts as an executing Court and cannot go into the disputed question of facts. To invoke the jurisdiction of the Labour Court under Section 33C(2) of the ID Act, either of the two ingredients must be present:

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(i) a workman must be entitled to receive from the employer, any money or any benefit which is capable of being computed in terms of money and

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(ii) that a question must have arisen as to the amount

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of money due or as to the amount at which such benefit should be computed.

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A plain reading of the said section shows that the Labour Court has jurisdiction to decide both these ingredients. The Apex Court in the case of Central Inland

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10 -

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Water Transport Corporation Ltd. vs. The Workmen &

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another² at para No.12 held as under:

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“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 workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms 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. Rameshwar (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 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."

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2 AIR 1974 SC 1604

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11 -

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In the instant case, there is no determination of

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the right of the petitioner and in the said circumstances, the Labour Court has rightly held that application under Section 33C(2) of the ID Act is not maintainable as rightly observed in paragraph Nos.23 and 24 of the impugned order. The basis for seeking recovery by filing an application by the applicant/petitioner is on the basis of a writ petition order in W.P.No.718/2007 as stated supra, there is no order in the said writ petition for having based for filing such an application seeking recovery under Section 33C(2) of the ID Act and the material on record indicate that the respondent – management has paid Rs.71,640/- towards the salary refixed. The claim made by the applicant to the difference of wages and arrears could not be entertained under Section 33C(2) of the ID Act. Accordingly, the point framed for consideration is answered against the petitioner holding that the Labour Court was justified in rejecting the application and the same does not warrant any interference. Accordingly, this Court pass the following:

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