Allowed

Management Committee Paradip Port v. Central Government Industiral Tribunal-Cum-Labour Court

Orissa HC4 Jun 2019WP(C)/12128/2018

Case brief

AI extract

What is this about?

Writ petitions by a port management committee against a Labour Court order directing payment of guaranteed minimum wages and attendance allowance to listed C.F. & H workers under the 1994 Scheme. Allowing the petitions, the High Court held the 2008 claims were grossly delayed and bound by the committee's unchallenged financial decisions; only unpaid arbitral attendance allowance was payable.

What did the court decide?

Impugned order set aside; unpaid arbitral attendance allowance, if any, to be paid within three months with 8% simple interest thereafter; excess payment already made not refundable.

Management Committee Paradip Port Vs Central… — Labour and Industrial Disputes | Orissa HC (2019)

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IN THE HIGH COURT OF ORISSA: CUTTACK

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W.P. (C) Nos. 12128, 13433, 13434, 13435, 13436, 13437, 13438, 13439, 13440, 13441, 13442, 13443, 13444, 13445, 13446, 13447, 13448, 13449, 13450, 13451, 13452, 13453, 13454, 13455, 13456, 13457, 13458, 13459, 13460, 13461, 13462, 13482, 13490, 13494, 13497, 13502, 13503, 13505, 13508, 13531, 13532, 13534, 13536, 13538, 13540, 13542, 13543, 13544, 13546, 13548, 13551, 13554, 13555, 13557, 13558, 13560, 13561, 13562, 13565, 13586, 14586, 14588, 14589, 14590, 14591, 14592, 14593, 14594, 14595, 14596, 14597, 14598, 14599, 14600, 14601, 14602, 14603, 14604, 14605, 14606, 14607, 14608, 14609, 14610, 14611, 14612, 14613, 14614, 14615, 14616, 14617, 14618, 14619, 14620, 14621 of 2018

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Applications under Article 227 of the Constitution of India.

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Management Committee, Paradip Port ……. Petitioner -VersusC.G.I.T. -cumLabour Court & others ……. Opp. Parties For Petitioner: - Mr. Saurjya Kanta Padhi (in all the cases) (Senior Advocate) For Opp. Parties workers - Mr. Sanjat Das ----------------------------- P R E S E N T : THE HONOURABLE KUMARI JUSTICE SANJU PANDA AND THE HONOURABLE MR. JUSTICE S.K. SAHOO

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--------------------------------------------------------------------------------------------------Date of Judgment: 04.06.2019 ---------------------------------------------------------------------------------------------------

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S. K. SAHOO, J . The petitioner Management Committee, Paradip Port represented through its Secretary has filed these writ petitions under Article 227 of the Constitution of India to quash the impugned order dated 15.05.2018 (Annexure-7) passed by the learned Presiding Officer, Central Government Industrial Tribunal (hereafter ‘C.G.I.T.’) -cum- Labour Court, Bhubaneswar in Industrial Dispute Misc. Case No.19 of 2008 filed under section 33-C(2) of the Industrial Disputes Act, 1947 (hereafter ‘I.D. Act’).

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252 applicants who are the opposite parties in these writ petitions filed separate Misc. Cases under section 33-C(2) of the I.D. Act before the learned Presiding Officer, C.G.I.T. -cumLabour Court, Bhubaneswar asserting that they were the workers of Clearing, Forwarding and Handling (hereafter ‘C.F. & H’) Pool enlisted as mazdoors under Paradip Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 (hereafter ‘1994 Scheme’) and their services were under the supervision and control of the petitioner-Management Committee during the relevant period from June 1995 to August 2001. Initially there were a large number of casual workers in the Paradip Port from its inception and all the workers could not be accommodated in jobs of carrying, forwarding and handling in

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the Port for which discontentment arose between the casual workers engaged by different Stevedores and workers of C.F. & H Pool which led to labour unrest in the Port. Such unrest ultimately culminated into several litigations in this Court as well as in the Hon’ble Supreme Court. The Hon’ble Supreme Court resolved the disputes by appointing a High Power Committee (H.P.C.) under the Chairmanship of Retd. Supreme Court Judge, Justice H.R. Khanna. While appointing the committee, direction was given by the Hon’ble Court that H.P.C. was to assess and determine the actual requirement of the work force vis-à-vis the manning scale and the datum of Pradip Port. Pursuant to such direction, the H.P.C. submitted its report in the month of July 1993 suggesting to frame a scheme in the line of Cargo Handling Workers (Regulation of Employment) Scheme, 1979 for the purpose of accommodating sufficient work to the workers in C.F. & H operation. The recommendation was accepted by the Hon’ble Supreme Court in toto and direction was given for taking necessary action as per the recommendation. The object of introducing the scheme was to ensure greater regularity in the employment for C.F. & H workers and for bringing efficiency in such C.F. & H works. In compliance to the recommendations of the H.P.C. and direction of the Hon’ble Supreme Court, Paradip

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Port Trust framed the 1994 Scheme, which came into force w.e.f. 27^th May 1994. It was the claim of the applicants that by virtue of direction of the Hon’ble Court, the recommendation of H.P.C. and the Scheme framed thereunder have become the mandate of the Hon’ble Court and the Scheme has got a legal sanctity being the final order of the Hon’ble Court and hence, the provisions of the Scheme are enforceable under the provisions of the I.D. Act having an award or settlement approved by the Hon’ble Court. According to the applicants, clauses 32 and 33 of the 1994 Scheme provided for guaranteed minimum wages in a month and attendance allowance to a workman of C.F. & H respectively. The aforesaid wages and allowance are payable to such workers when no work is accommodated to him by the petitioner-Management Committee who is in overall responsible for implementation of the Scheme on behalf of the employers. There are various groups of workers like 816 Group, 545 Group and other groups on the basis of different categories of cargoes handled by the workers of such groups. The applicants being the members of the 545 Group asserted that the petitionerManagement Committee could not provide them any work in between 01.01.1995 to 30.08.2001 though all of them were enlisted as C.F. & H Workers under the Scheme. They were

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neither provided with any work nor guaranteed minimum wages in a month and attendance allowance as per provisions of the Scheme for the aforesaid period. They ventilated their grievances individually as well through the Union before the petitionerManagement Committee. Since no fruitful result came out, the applicants filed individual applications in Form-K-3 before the learned Court below for investigation and settlement under the provisions of section 33-C(2) of the I.D. Act for individual payment of Rs.1,35,880.10 paisa towards guaranteed wages for the period from June 1995 to August 2001 and Rs.43,906.20 paisa towards attendance allowance for the period from January 1995 to August 2001.

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The petitioner-Management Committee on being noticed filed its objection and contested the claim of the applicants taking the stand that the petitioner-Management Committee was constituted in September 1993 to administer the Scheme formulated for regulating the service condition of the C.F. & H workers and the Scheme came into existence on 27^th May 1994. It was the further stand that the provisions of guaranteed minimum wages and attendance allowance are not recognized as an absolute right/benefit to be extended to a worker under the Scheme and payment of such benefit is a

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conditional one subject to the financial position of the Management Committee and regular availability of work. The provision of guaranteed minimum wages and attendance allowance is neither absolute in nature nor binding on the Management Committee. During the period from June 1995 to August 2001, the Committee was in a formative stage and its financial position was quite uncertain due to certain conditions prevailing in those periods. As per the terms and conditions of the scheme and decision of the committee, priority was required to be given to ensure payment of past liabilities of unpaid wages, unpaid C.F. & H contribution and discharge of full and final settlement of the past service of workers and also to meet the liability towards terminal benefits likely to be incurred due to surplus of workers by introduction of mechanization of thermal coal handling. It was decided by the petitioner-Management Committee that provisions of guaranteed minimum wages and attendance allowance should not be extended at that stage due to magnitude of its financial liability. As per the decision of the committee by its resolution dated 18.01.2001, provisions incorporated with regard to guaranteed minimum wages and attendance allowance in clauses 32 and 33 of 1994 Scheme were deleted. The above facilities cannot be extended suo motu to all

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workers of the Management Committee unless the same is accepted by the Management committee. A stand was also taken on behalf of the petitioner-Management committee that the provisions of attendance allowance as per clause 33 does not allow the computation of such allowance on the basis of wages and dearness allowance rather the same is to be calculated on the basis of 1/60^th of monthly wage only exclusive of dearness allowance and other allowance. According to the petitionerManagement committee, the applicants were paid attendance allowance on the higher side and the differential amount as claimed by them is not correct and maintainable. As the financial position of the Management Committee is the condition precedent in the Scheme for extending the guaranteed minimum wages to the applicants, their claim is not maintainable under the provisions of section 33-C(2) of the I.D. Act.

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The Utkal Port and Dock Workers Union in a separate claim statement conceded that the applicants are eligible for the benefits under the clauses 32 and 33 of the Scheme. It was their stand that such benefits should also be made available to other workers in similar situations and the deletion of the provisions by the petitioner-Management Committee is beyond its jurisdiction and such action of the committee is not tenable in the eye of

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law. However, the Union asserted that the Management Committee be directed to raise a separate fund to meet the expenses towards payment of guaranteed minimum wages and attendance allowance.

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In their rejoinders to the stand taken by the petitioner-Management Committee as well as the Utkal Port and Dock Workers Union, the applicants asserted that the benefits extended under the Scheme formulated on the strength of the order of the Hon’ble Supreme Court cannot be taken away by the Management Committee in a resolution of its proceeding without approval of the Hon’ble Court. The financial constraints cannot be an excuse for implementation of the Scheme when workers of other group were extended benefits of the Scheme. It was further asserted that in an application under section 33-C(2) of the I.D. Act, the Labour Court/Tribunal is not concerned with the financial constraints or sources of income from which the entitlement of a workman is to be paid and as such the objection raised by the petitioner-Management Committee should be dismissed in limine.

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The learned Presiding Officer, C.G.I.T. -cum- Labour Court on the basis of the pleadings of the parties formulated the following points for consideration:-

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(i) Whether the application under the provisions of section 33-C(2) of the I.D. Act is maintainable?

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(ii) Whether the applicants workmen are entitled to receive the benefit from the Management Committee, which is capable of being computed in terms of money and the quantum of amount to which each applicant is entitled to receive?

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In order to substantiate their claims, the applicants

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examined four witnesses and filed documents like calculation sheet claiming guaranteed minimum wages and attendance allowance which were marked as Ext.1 to Ext.1/A.

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The petitioner-Management Committee examined its Secretary as O.P.W.1 and exhibited documents like photocopy of the High Power Committee report, copy of the proceedings of the extra-ordinary meeting dated 11.01.1999, copy of the proceeding of the meeting dated 18.04.2001, copy of the award of the Arbitrator dated 14.08.1992, copy of the proceedings of the extraordinary meeting dated 20.11.1995, copy of the proceedings of the meeting dated 15.01.1996, copy of the proceedings of the meeting dated 29.07.1996 and copy of the proceedings of the meeting dated 07.06.2016 marked as Ext. A to Ext. H.

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No evidence was adduced by the opposite party no.2

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Utkal Port and Dock Workers Union.

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The learned Court while adjudicating the first point, held that from the plain reading of the provisions of section 33C(2) of the I.D. Act, it can be safely said that to invoke the jurisdiction of the Labour Court under the section 33-C(2), two ingredients are necessary. The first is that a workman must be entitled to receive from his employer any money or benefit under a pre-existing right i.e. settlement or award which is capable of being computed in terms of money and the second one is that a question must have arisen as to the amount of money due or as to the amount at which such benefit should be computed. When both these ingredients are satisfied, the Labour Court will have jurisdiction to determine the question. Therefore, the benefit sought to be recovered must be necessarily be a pre-existing benefit or the benefit flowing from an award or settlement. If the entitlement depends upon the adjudication of a right for the first time, then that adjudication will not come under the purview of the section 33-C(2).

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While adjudicating the second point, the learned Court held that the entitlement in regard to the guaranteed minimum wages and attendance allowance which arose out of

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the Scheme formulated at the instance of the Hon’ble Supreme Court can be safely held to be a pre-existing right and such entitlement arose out of a settlement between the parties in the shape of the Scheme and therefore, the contention of the Management Committee that the entitlement put forth by the applicants is not recognized by any pre-existing right or settlement or an award of a Tribunal/Court has no force in the eye of law. It was further held that the recommendation as well as the scheme provides only 1/60^th of monthly wage as attendance allowance. When other workers of different groups were extended benefits as per the Scheme, the applicants cannot be denied of such benefit or entitlement as provided in the Scheme. The plea of financial constrain cannot deprive the applicants from such entitlement and accordingly, the Court directed the quantum of attendance allowance to be computed and determined on the basis of 1/60^th of the monthly wage only prevailing during the period. It was further held that as per the Scheme, each applicant is entitled to 1/60^th of monthly wage as attendance allowance for seven days in a month and directed the Management Committee to calculate the attendance allowance to which each of the applicants is entitled to receive which would be subject to the adjustment of amount already received by the

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applicant in that regard as per the award of the Arbitrator. The Court further directed that the amount put forth by each applicant towards guaranteed minimum wages and attendance allowance @ 1/60^th of the monthly wages subject to adjustment to the allowance already received under that heading by each applicant is to be recovered from the Management Committee. However, the Court on the assertion made by the Utkal Port and Dock Workers Union regarding raising of a separate fund to meet the expenses towards payment of guaranteed minimum wages and attendance allowance, held that in a claim/entitlement under section 33-C(2), the Labour Court is not required to be concerned as to the source of the employer from which the entitlement is to be recovered. Hence, any specific direction on the source from which the Management Committee is to meet the expenses would be an order without jurisdiction. The Labour Court is only concerned about the entitlement to which the applicants are entitled to recover from the Management Committee and it is the look out of the Management Committee as to how it can raise a source to pay such entitlement.

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The learned Court, accordingly, ordered the petitioner-Management Committee to take necessary steps to make payment of minimum guaranteed wages and attendance

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allowance at the rate of 1/60^th of the monthly wage subject to adjustment towards earlier payment, if any and further directed that the calculated/computed amount is to be paid within three months of the communication of the order, failing which each applicant would be entitled to receive his entitlement with an additional simple interest at the rate of 8% per annum on such amount after the expiry of such period.

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Mr. Saurjya Kanta Padhi, learned Senior Advocate appearing for the petitioner-Management Committee challenging the impugned order placed para 15.23 of the High Power Committee report which relates to the constitution of the Management Committee for the smooth and effective working of the 1994 Scheme. He also placed clauses 32 and 33 of the 1994 Scheme which deal with payment of guaranteed minimum wages in a month and attendance allowance respectively. He further placed para 15.26 of the High Power Committee report relating to creation of fund for suitable compensation to the 816 Group of workers who were likely to be retrenched on account of mechanization of coal handling operation. It is contended that the Management Committee is a tripartite body constituted as per the direction of the Hon’ble Supreme Court and since as per the 1994 Scheme, payment of guaranteed minimum wages and

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attendance allowance are subject to financial position of the Management Committee and regular availability of work and such payment is neither absolute nor binding in nature, there cannot be any pre-existing right attributed in favour of the applicants. It is further contended that when with consent of the parties, clauses 32 and 33 of the 1994 Scheme were deleted by way of an amendment on the decision taken by the petitionerManagement Committee on 18.04.2001 and even after lapse of seventeen years, none of the parties and even the Unions have challenged such deletion, the applicants cannot claim benefits of such provisions at a belated stage. He argued that even if no specific period of limitation has been prescribed under the I.D. Act but an application under section 33-C(2) of the I.D. Act which is in the nature of execution proceeding similar to that of a money claim, should not have been entertained by the learned Court below after the statutory period of limitation i.e. 3 years. He further argued that the claim of the applicants is barred by gross laches and delay inasmuch as the applicants approached the learned Court in the year 2008 i.e. after a lapse of thirteen years of the initial cause of action and after seven years of the deletion of clauses 32 and 33 of 1994 Scheme. According to Mr. Padhi, when the applicants were fully aware about the conditions

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of service and rules governing the field as stipulated in the 1994 Scheme, they should have been more vigilant in approaching the Court earlier and the learned Court should have rejected their claims on the ground of delay. He placed reliance in case of Kerala State Coop. Coir Marketing -Vrs.- Labour Court reported in (1993) II Labour Law Journal 193 (Ker . ) . Concluding his argument, the learned Senior Advocate submitted that the applicants are very much bound by the decision taken by their representatives taking into consideration the financial position of the petitioner-Management Committee and therefore, the impugned order is not sustainable in the eye of law and should be set aside.

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Mr. Sanjat Das, learned counsel appearing for the applicants workers on the other hand contended that the ground of delay in approaching the Court as contended by the learned counsel for the petitioner is not sustainable in view of the ratio laid down by the Hon’ble Supreme Court in case of The Bombay Gas Co. Ltd. -Vrs.- Gopal Bhiva reported in A.I.R. 1964 S.C. 752 and Chief Mining Engineer -Vrs.- Rameshwar reported in A.I.R. 1968 S.C. 218 and such plea of delay was never raised before the learned Court below. He placed reliance in the case of The Central Bank of India -Vrs.- P. S. Rajagopalan

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reported in A.I.R. 1964 S.C. 743 and submitted that the Labour Court while determining the computation of benefits in terms of money can deal with the question as to whether the workman has a right to the said benefit or not. He further argued that the learned Court has rightly turned down the argument advanced by the Management Committee regarding its financial constraints in absence of any specific pleadings and evidence adduced in that respect. He emphasized that the deletion of the provisions under clauses 32 and 33 of the Scheme as per the resolution made by the Management Committee in its meeting dated 18.04.2001 is to be acted upon prospectively and the listed C.F. & H workers, who were not provided employment, are entitled to receive guaranteed minimum wages and attendance allowance for the period in which the provisions under clauses 32 and 33 were in force. According to him, there is no apparent error on the face of the impugned order and the findings arrived by the learned Court is neither perverse nor unreasonable and therefore, the writ petitions should be dismissed.

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Before adverting to the contentions raised by the learned counsel for the parties, it is necessary to discuss the scope of interference with the order passed by the Industrial

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Tribunal/ Labour Court by this Court in exercise of its power under Articles 226 and 227 of the Constitution of India.

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In the case of Syed Yakoob -Vrs.K.S. Radhakrishnan reported in A.I.R. 1964 S.C. 477 , a Constitution Bench of the Hon'ble Supreme Court held as follows:-

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"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals: these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court.

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This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding is within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the

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jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (Ref: Hari Vishnu Kamath -Vrs.- Ahmad Ishaque : A.I.R. 1955 S.C. 233 ; Nagendra Nath -Vrs.- Commr. of Hills Division : A.I.R. 1958 S.C. 398 and Kaushalya Devi -Vrs.- Bachittar Singh : A.I.R. 1960 S.C. 1168 )."

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The Hon'ble Supreme Court in the case of Sadhu Ram -Vrs.- Delhi Transport Corporation reported in A.I.R. 1984 S.C. 1467 has held as follows:-

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"3. We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate Court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in

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interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management...."

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In the case of Chandavarkar Sita Ratna Rao -Vrs.- Ashalata S. Guram reported in (1986) 4 Supreme

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Court Cases 447 , it is held as follows:-

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"21. It is true that in exercise of jurisdiction under Article 227 of the Constitution, the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings were perverse and not based on any material evidence or it resulted in manifest of injustice."

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In the case of M/s. Pepsico India Holding Pvt.

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Ltd. -Vrs.- Krishna Kant reported in (2015) 4 Supreme

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Court Cases 270 , it is held that the High Court in the guise of exercising its jurisdiction normally should not interfere under Article 227 of the Constitution and convert itself into a Court of appeal.

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In the case of B.S.N.L. -Vrs.- Bhurumal reported

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in A.I.R. 2014 S.C. 1188 , it is held that the findings of fact by the Central Government Industrial Disputes -cum- Labour Court (CGIT) are not be interfered with by the High Court under Article 226 of the Constitution. Interference is permissible only in cases where the findings are totally perverse or based on no evidence. Insufficiency of evidence cannot be a ground to interdict the findings as it is not the function of the High Court to reappreciate the evidence.

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Therefore, this Court, in exercise of its power under Articles 226 and 227 of the Constitution of India should not interfere with the findings of fact recorded by the Tribunal unless there is an apparent error on the face of the award and the findings given in the award are perverse or unreasonable either based on no evidence or based on illegal/unacceptable evidence or against the weight of evidence or outrageously defies logic so

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as to suffer from irrationality or the award has been passed in violation of the principles of natural justice. If the Tribunal erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding, the same can be interfered by a writ of certiorari. Adequacy of evidence cannot be looked into in the writ jurisdiction but consideration of extraneous materials and non-consideration of relevant materials can certainly be taken into account. Findings of fact of the Tribunal should not be disturbed on the ground that a different view might possibly be taken on the said facts. Inadequacy of evidence or the possibility of reading the evidence in a different manner, would not amount to perversity.

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Whether the C.G.I.T. -cum- Labour Court should not have entertained the claim benefits of the applicants on account of gross laches and delay :

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According to Mr. Padhi, learned Senior Advocate, clauses 32 and 33 of the 1994 Scheme were deleted on 18.04.2001 but the applicants were enlisted as C.F. & H Workers, approached the learned Court below in the year 2008 claiming guaranteed minimum wages in a month and attendance allowance for the period from 01.01.1995 to 30.08.2001 as per

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the aforesaid clauses of the Scheme which was after a lapse of thirteen years of the initial cause of action and after seven years of the deletion of the clauses. He argued that the applicants were fully aware about the conditions of service and rules governing the field as stipulated in the 1994 Scheme and therefore, they should have been more vigilant in approaching the Court earlier. According to him, the maxim “ Vigilantibus non dormientibus jura subveniunt ” which means that the law assists the vigilant and not those who sleep over their rights is very well applicable to the case in hand. He argued that even if no specific period of limitation has been prescribed under the I.D. Act but an application under section 33-C(2) of the I.D. Act which is in the nature of execution proceeding similar to that of a money claim, should not have been entertained after the statutory period of limitation i.e. 3 years. He emphasized that the learned Court below should have rejected the claims of the applicants on the ground of delay. Reliance was placed by him in the case of Kerala State Coop. Coir Marketing (supra) in which a single Judge of Kerala High Court while dealing with a dispute relating to the award of subsistence allowance by the Labour Court under section 33-C(2) of the I.D. Act held as follows:-

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“13. The Legislature did not provide a period of limitation for filing an application under section

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33-C(2) of the Industrial Disputes Act. However, it cannot be said to be a guarantee that the said provision can be used in any manner as one likes. Every provision of law has to be applied properly, reasonably and bona fide. It is repeatedly said by the Supreme Court that industrial adjudication should not encourage unduly belated claims. The employees who prefer to invoke the provisions under section 33C(2) shall make the application within a reasonable period. What is reasonable period will depend on the circumstances of each case.”

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Countering such argument, Mr. Das, learned counsel

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for the opposite parties placed reliance in the case of The

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Bombay Gas Co. Ltd. (supra) wherein the Hon’ble Supreme Court held as follows:-

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“13. In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting section 33-C(2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately

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did not provide for any limitation under section 33-C(2). It may have been thought that the employees who are entitled to take the benefit of section 33-C(2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claim which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided of course, it is kept alive by taking steps in aid of execution from time to time as required by Art. 182 of the Limitation Act, so that the test of one year or six months' limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on grounds of fairness or justice. The words of section 33-C(2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. Mr. Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may

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take into account, and if the legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court cannot import any such consideration in dealing with the applications made under section 33-C(2).

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Mr. Kolah then attempted to suggest that Art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years' limitation should, therefore, be held to govern them. Article 181 provides 3 years' limitation for applications for which no period of limitation is provided elsewhere in Schedule I, or by section 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues. In our opinion, this argument is one of desperation. It is well-settled that Art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under section 33-C(2) of the Act would not be justified. ......Therefore, it is not possible to accede to the argument that the limitation prescribed by Art. 181 can be invoked in dealing with applications under section 33-C(2) of the Act.”

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In the case of Chief Mining Engineer (supra) which

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was placed by Mr. Das, the principle laid down by the Hon’ble

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Supreme Court in the case of The Bombay Gas Co. Ltd. (supra) was followed.

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In the case cited by Mr. Padhi i.e. Kerala State Coop. Coir Marketing (supra), the benefit under Kerala Payment of Subsistence Allowance Act, 1972 was under consideration and the first proviso to section 4 of the Act provided that the applications shall be made within one year from the date on which the money became due to the employee from the employer. However in the case in hand, there is no such period of limitation provided anywhere for availing the unpaid amount towards guaranteed minimum wages and attendance allowance by a worker as provided under clauses 32 and 33 of 1994 Scheme.

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In the case of Town Municipal -Vrs.- The Presiding Officer reported in A.I.R. 1969 S.C. 1335 , the question came up for consideration was whether article 137 of the schedule to the Limitation Act, 1963 which prescribes period of limitation of three years to any other application for which no period of limitation is provided elsewhere, is applicable to the applications under section 33-C(2) of the I.D. Act. The Hon’ble Supreme Court held that article 137 of the schedule to the

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Limitation Act, 1963 does not apply to the applications under section 33-C(2) of the I.D. Act.

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In the case of Nityananda -Vrs.- Life Insurance

¶102

Corporation of India reported in A.I.R. 1970 S.C. 209 , it is held that article 137 of the schedule to the Limitation Act only contemplates applications to Courts. The scheme of the Limitation Act is that it only deals with applications to Courts, and that the Labour Court is not a Court within the Limitation Act.

¶103

In the case of Ajaib Singh -Vrs.- The Sirhind

¶104

reported in A.I.R. 1999 S.C. 1351 , it is held that the provisions of article 137 of the schedule to the Limitation Act, 1963 are not applicable to the proceeding under the Industrial Disputes Act, 1947 and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence.

¶105

The object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims. There are two aspects of the statutes of limitation, the

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one concerns the extinguishment of the right if a claim or action is not commenced within a particular time and the other merely bars the claim without affecting the right which either remain merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. Where a statute prescribing the limitation extinguishes the right, it affects substantive rights, while that which purely pertains to the commencement of action without touching the right is said to be procedural.

¶108

In the case of Assistant Engineer -Vrs.- Mohan Lal reported in (2013) 14 Supreme Court Cases 543 , the Hon’ble Supreme Court held that t hough Limitation Act, 1963 is not applicable to the reference made under the I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side.

¶109

It is not in dispute that since the plea of delay was never raised by the petitioner-Management Committee before the learned Court below, the learned Court below has not dealt with the same. It is rightly contended by the learned counsel for the petitioner that the applicants were very much aware and

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¶111

conscious of their rights as they were represented through their respective Unions. The applicants have taken a stand in their applications that they ventilated their grievances individually as well through the Union before the petitioner-Management Committee but no fruitful result came out. It is no doubt true that even if there is delay in approaching the Court to get the reliefs, under peculiar circumstances, however, excusing or justifying the delay, the Courts of equity would not refuse its aid in furtherance of the rights of the party; since in such cases there was no pretence to insist upon laches or negligence, as a ground for dismissal of the application.

¶112

In view of the foregoing discussions, we are of the humble view that even though the provisions of the Limitation Act, 1963 is not applicable to the applications under section 33C(2) of the I.D. Act but the learned Court below should have kept in view whether the applications suffer on account of gross laches and delay. The applicants perhaps being aware of the justness of the decisions taken by the Management Committee from time to time in not making provisions for payment of guaranteed minimum wages and attendance allowance from the inception of the Scheme on account of financial constraints, remained silent and did not raise any objection or claim or

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challenge such decision taken by the committee. In such a factual scenario, it was not proper on the part of the learned Court below not to deal with the delay aspect in view of the ratio laid down in the case of Mohan Lal (supra).

¶115

Whether deletion of the provisions of clauses 32 and 33 of 1994 Scheme has got any effect on the claims of the applicants:

¶116

According to Mr. Padhi, learned Senior Advocate,

¶117

clauses 32 and 33 of the 1994 Scheme were deleted as per the resolution made by the Management Committee in its meeting dated 18.04.2001 and such a decision was taken transparently taking into consideration the financial position of the Committee after due deliberations and discussions with all the constituent members of the Committee which includes the representatives of the applicants and therefore, the claims of the applicants towards guaranteed minimum wages and attendance allowance are not sustainable in the eye of law.

¶118

Mr. Das on the other hand contended that the deletion clauses 32 and 33 is to be acted upon prospectively and the listed C.F. & H workers, who were not provided employment, are entitled to receive guaranteed minimum wages and

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attendance allowance for the period in which the provisions under clauses 32 and 33 were in force.

¶121

Adverting to such contentions, it is not in dispute that the 1994 Scheme came into existence on 27.05.1994 in view of the report of the High Power Committee constituted as per the direction of the Hon’ble Supreme Court. In clause 15.25 of the recommendation of the High Power Committee, it is mentioned that the listed C.F. & H workers should be allowed twelve days minimum guaranteed wages at the initial stage and they may be allowed attendance allowance at the rate of 1/60^th of monthly wages. Taking into account such recommendation, clauses 32 and 33 were incorporated in the Scheme which deal with guaranteed minimum wages in a month and attendance allowance respectively to be provided to the listed C.F. & H workers. The 1994 Scheme, therefore, has a legal sanctity and the provisions under clauses 32 and 33 are enforceable in the eye of law.

¶122

At this stage, it would be profitable to indicate para 15.26 of the report of the High Power Committee wherein it is mentioned as follows:-

¶123

“15.26. As the proposed scheme will have prospective effect, the Management Committee should ensure that all past liabilities on account

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of workers, unpaid wages, unpaid CPF contribution, if any, and any other dues should be discharged in full and final settlement of the past service of these workers. The proposed mechanisation of thermal coal handling is not far off. This is likely to be commissioned in 1996. Even if its commissioning is delayed by a year or two, the stark reality remains that all the workers in thermal coal section would be rendered surplus and their services will not be required after the mechanisation. Hence, their present employment would have to end and in order to meet the expenditure on thermal benefits and any other dues, required by law, payable at that stage, the Management Committee should commence building up a separate fund for C.F. & H agents by means of a separate levy. This seems to be necessary as otherwise it would not be possible for the C.F. & H agents to meet the entire expenditure at one stroke. It is easy to build up the funds in an equitable manner for all employers in installments and as such the requisite amount should be suitably assessed and collection started from the employers in right earnest from the day the proposed scheme comes into force.”

¶126

Mr. Padhi placed reliance relating to the proceedings

¶127

of the meeting no.4/96-97 of the members of Management

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Committee (C.F.H. Scheme), Paradip Port which was held on 26.07.1996 in presence of the workers’ representatives which was annexed as Annexure-A Series to the written statement filed by the Secretary, Management Committee in the Court below and annexed as Annexure-3 to these writ petitions, in which it was resolved as follows:-

¶130

“A.I. No. 4(4)/96-97/ RESOL. No. 34/96-97 Budget Estimate For The Year 1996-97 Of The Management Committee

¶131

xx xx xx xx xx xx

¶132

(iii) The question of making a provision for guaranteed wages in the budget was discussed and it was decided that provision for guaranteed wages cannot be made at this stage as the existing cost of handling, as pointed out by the employer’s representatives, is very high. All the Members of Committee were of the view that matter could be discussed in a time when the Committee would be in a position to meet the liability from its own funds.”

¶133

The issue of payment of minimum guaranteed wages

¶134

was again discussed in the meeting no.6/97-98 of the members of Management Committee (C.F.H. Scheme), Paradip Port which was held on 01.10.1997 and it was clarified that all the issues had since been discussed in the past and a fresh discussion on the issue without a change in any of the situation was considered

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to be inappropriate. The said proceedings of the meeting was annexed as Annexure-B Series to the written statement filed by the Secretary, Management Committee in the Court below which is annexed as Annexure-3 to these writ petitions.

¶137

The Management Committee in its meeting no.8/9899 dated 17.02.1999 while discussing the introduction of guaranteed wages, as per the recommendations of the High Power Committee, copy of which was annexed as Annexure-D Series to the written statement filed by the Secretary, Management Committee in the Court below and annexed as Annexure-3 to these writ petitions, observed as follows:-

¶138

“Referring to introduction of guaranteed wages, attendance allowance etc., as per the recommendations of the High Power Committee, on implementation of the Scheme was also discussed. The fact that movement of bag and bale cargoes to the Port has stopped and the 545 group of workers do not get more than one or two engagements in a month and further that demands have been made to reduce the handling cost of Bag & Bale cargoes to attract movement of such cargoes to the Port, extension of any benefit like guaranteed wage or attendance allowance will not be advisable without appropriate cargo support. The Committee has also discussed the financial

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capability of the Committee and it was decided that extension of such benefit should be deferred till the financial condition improves. In the existing situation, extension of additional benefits will push up the handing cost of the existing cargoes and the same shall be detrimental for movement of existing cargoes.”

¶141

Thereafter, finally the Management Committee in its meeting dated 18.04.2001 while making an amendment of the 1994 Scheme, resolved to delete clauses 32 and 33 from the Scheme pertaining to payment of guaranteed wages and attendance allowance to the workers. The Chairman of the Management Committee explained to the members that extension of facilities such as guaranteed wages and attendance allowance etc. are administrative decisions and they need not be reflected in the Scheme. There is nothing to doubt about the transparency in the decision taken which seems to have been done after due deliberations/discussions with all the constituent members of the Management Committee to delete the provisions of guaranteed minimum wages and attendance allowance as provided in clauses 32 and 33 of the Scheme.

¶142

It appears that during the period from June 1995 to August 2001, the Management Committee was in a formative stage and its financial position was quite uncertain due to certain

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¶144

conditions prevailing in those periods. As per the terms and conditions of the scheme and decision of the committee, priority was required to be given to ensure payment of past liabilities of unpaid wages, unpaid C.F. & H contribution and discharge of full and final settlement of the past service of workers and also to meet the liability towards terminal benefits likely to be incurred due to surplus of workers by introduction of mechanization of thermal coal handling, for which a decision was taken by the petitioner-Management Committee that provisions of guaranteed minimum wages and attendance allowance should not be extended at that stage due to magnitude of its financial liability. As per the recommendations of the High Power Committee, the 1994 Scheme and above all the decisions taken from time to time by the Management Committee, payment of guaranteed minimum wages and attendance allowance are subject to financial position of the Committee and regular availability of work. Even though the applicants in ordinary course would have been entitled to receive guaranteed minimum wages and attendance allowance at the prescribed rate in the scheme from the Management Committee for the period in which the provisions under clauses 32 and 33 were in force but in view of the exigencies of the situation and decisions taken by the

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Management Committee from time to time, the listed C.F. & H workers, who were not provided employment, are not entitled to receive the benefits of such provisions. We are of the view that the learned Court below was not justified in holding that the applicants are entitled to the reliefs under clauses 32 and 33 from June 1995 till April 2001.

¶147

Whether financial constraints of the Management Committee debars the claim of benefits under clauses 32

¶148

and 33 of 1994 Scheme :

¶149

According to Mr. Padhi, learned Senior Advocate, benefits under clauses 32 and 33 of the 1994 Scheme are not absolute, it does not flow from any pre-existing right but it is conditional one subject to the financial position of the Management Committee and regular availability of work in the Port.

¶150

Mr. Das on the other hand placed reliance in the case of The Central Bank of India (supra) in which the Hon’ble Supreme Court has held that the claim under section 33-C(2) of the I.D. Act clearly postulates that the determination of the question about 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

¶151

¶152

incidental to the main determination which has been assigned to the Labour Court by sub-section (2). It was further held that section 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled to 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 was further held that for the purpose of making the necessary determination under section 33-C(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.

¶153

In the case of State of Uttar Pradesh & Anr.

¶154

-Vrs.- Brijpal Singh reported in (2005) 8 Supreme Court

¶155

Cases 58 , the Hon'ble Supreme Court held that 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 33-C(2) of the I.D. Act. The benefit sought to be enforced under section 33-C(2) of the Act is necessarily a preexisting 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

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other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under section 33-C(2) of the Act while the latter does not.

¶158

The learned Court below has observed that the entitlement in regard to the guaranteed minimum wages and attendance allowance which arose out of the Scheme formulated at the instance of the Hon’ble Apex Court can be safely held to be a pre-existing right and such entitlement arose out of a settlement between the parties in the shape of the Scheme. The learned Court has committed error of record in holding that there is no specific pleadings in the written statement filed by the Management Committee relating to the financial constraints for not providing guaranteed minimum wages and attendance allowance to the applicants. It is not a case of mere bald denial or plea of financial constraints rather all the decisions taken from time to time by the Management Committee were annexed to the written statement and the learned Court below seems to have not given any attention to such vital documents which has resulted in arriving at a faulty conclusion.

¶159

Therefore, we are of the view that when on the ground of financial constraints, the Management Committee took the decision that making a provision for guaranteed wages in the

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budget cannot be made and that extension of the benefits of guaranteed wages and attendance allowance should be deferred till the financial condition improves and such decisions have remained unchallenged for years together since the inception of the Scheme in 1994, the claims of the applicants in that respect in the year 2008 are totally misconceived.

¶162

In the case in hand, it is not disputed at the Bar that the opp. parties to these writ petitions were the applicants in the Court below being the C.F. & H workers of 545 Group. They have not received the guaranteed minimum wages under clause 32 of the 1994 Scheme for the period from June 1995 till deletion of such clause in the year 2001. They only received the attendance allowance on the basis of the award dated 14.08.1992 pronounced by the Arbitrator Sri G.R. Majhee, Deputy Chief Labour Commissioner (Central), New Delhi in a matter referred under section 10A of the I.D. Act.

¶163

Even though the learned Court below directed for computation and determination of the quantum of attendance allowance at a particular rate on the basis of clause 33 of the 1994 Scheme and its recovery from the Management Committee subject to adjustment of the amount already received by the applicants in that regard by the arbitral award, we are of the

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view that no further amount except as was fixed by the Arbitrator, if not already paid, is to be recovered from the Management Committee. If any of the applicants have not yet received such amount in spite of the award passed by the Arbitrator, they are entitled to get it from the Committee and the Committee shall make immediate arrangement for disbursement of the same in favour of the applicants within a period of three months from today, failing which such unpaid amount shall carry an additional simple interest @ 8% per annum after the expiry of such period. If any of such applicants have been paid attendance allowance on the higher side than the award amount passed by the Arbitrator as contended by the Management committee, in view of the financial condition of the applicants and particularly when they were having no work in between the period from June 1995 till deletion of clause 33 in the year 2001, the amount so paid is not liable to be refunded.

¶166

In view of the foregoing discussions, we are of the humble view that the findings of the learned Court below in directing recovery of the guaranteed minimum wages and the attendance allowance at a particular rate from the Management Committee, is neither proper nor justified. The applicants are very much bound by the decision taken by the Management

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Committee which includes their nominated representatives, which seems to have been taken with all fairness and looking into the financial position of the Committee and other liabilities. Even though provisions were made under clauses 32 and 33 of the 1994 Scheme for such benefits, in the overwhelming factual scenario in the instant case, refusal to grant the reliefs towards guaranteed minimum wages and the attendance allowance at a particular rate would not amount to perpetuation of gross illegality, unjustness and unfairness meted out to the applicants. The findings arrived at by the learned Court below suffer from non-consideration of relevant materials on record and are perverse and therefore, the impugned order is not sustainable in the eye of law and liable to be set aside.

¶169

With the aforesaid observations and directions, all

¶170

the writ applications are disposed of.

¶171

S. Panda, J. I agree.

¶172

Orissa High Court, Cuttack The 04^th June 2019/Pravakar/RKM/Sisir/Sukanta

Management Committee Paradip Port v. Central Government Industiral Tribunal-Cum-Labour Court

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Management Committee Paradip Port v. Central Government Industiral Tribunal-Cum-Labour Court

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