Allowed

Raj Rajya Sahkari Upbhokta v. Labour Court No 2 and Anr.

Rajasthan HC23 May 2023CW/14377/2011

Case brief

AI extract

What is this about?

The High Court quashed an award of the Labour Court quashing the Labour Court's award directed the petitioner to pay arrears of pay scale stating that the Labour Court lacks jurisdiction under Section 33-C(2) when the entitlement is disputed and not adjudicated prior to the application.

What did the court decide?

The impugned order dated 08.09.2010 passed by the Labour Court was set aside, and the claim petition filed by the workman was rejected.

Raj Rajya Sahkari Upbhokta Vs Labour Court No 2 and… — Service and Employment | Rajasthan HC (2023)

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[2023/RJJP/010810]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 14377/2011

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Raj Rajya Sahkari Upbhokta Sangh Limited, Nehru Sahkar Bhawan, Bais Godawn Circle, Jaipur through its Managing Director.

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----Petitioner

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Versus

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Labour Court No.2, Jaipur.

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Sadhu Ram Saini, resident of 77, Arjun Nagar, (South), Tonk Road, Jaipur.

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----Respondents

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For Petitioner(s) : Mr. Ram Kumar Sharma For Respondent(s) : Mr. Nikhil Saini

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Reserved On : 15.05.2023 Pronounced On : 23.05.2023

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Order

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(1) Instant petition has been filed by the petitioner with the

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following prayer:

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“It is, therefore, humbly prayed that your lordships may graciously be pleased to accept and allowed and by an appropriate writ, order or directions be pleased to quash and set aside the impugned award dated 08.09.2010 passed by the Labour Court No.1, Jaipur in reference case No. LCC 45/2005 Sadhu Ram Saini Versus Managing Director, Rajasthan Rajya Sahkari Upbhokta Sangh Limited.

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Any other relief deemed just and proper in the facts and circumstances of the case be kindly granted in favour of the answering respondent.”

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(2) Learned counsel for the petitioner submits that the application filed by the workman under Section 33-C(2) was not

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maintainable before the Industrial Tribunal as the Tribunal has no jurisdiction to decide the existing rights. Counsel submits that earlier the Tribunal decided the claim petition filed by the Union on behalf of the workman and issued directions for payment of pay scale and other benefits w.e.f. 28.12.1981. Counsel submits that the award dated 01.10.2001 passed by the Tribunal was duly complied by the petitioner. Counsel submits that if at all the workman was aggrieved by the action of the petitioner with regard to wrong computation of the pay scale, he was at liberty to raise a fresh dispute but instead of availing said remedy, he filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’). Counsel submits that without any jurisdiction, the Tribunal allowed the application and has issued directions to the petitioner to pay the arrears of pay scale w.e.f. 28.12.1981 till 31.03.2005. In support of his contentions, counsel has placed reliance upon the judgment of Hon’ble Apex Court in the case of M/s Punjab Beverages Pvt. Ltd. Chandigarh vs. Suresh Chand and Anr. reported in 1978 (2) SCC 144. Counsel submits that under these circumstances, interference of this Court is warranted.

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(3) Per contra, learned counsel for the respondent – workman opposed the arguments raised by the counsel for the petitioner and submitted that the Tribunal has not committed any error in allowing the application filed by the workman under Section 33-C(2) of the Act of 1947. Counsel submits that the earlier award dated 01.10.2001 passed by the Tribunal was clear and specific directions were issued by the Tribunal to the petitioner

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– establishment to grant pay scale and other benefits to the

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respondent – workman of the post of Salesmen w.e.f. 28.12.1981. Counsel submits that the award passed by the Labour Court was not complied in toto, that is why the application was submitted for recovery of the due amount and arrears. Counsel submits that on subsequent occasion the petitioner - establishment invited option from the petitioner for re-fixation of the pay scale and the workman submitted his option for re-fixation of his pay scale. Counsel submits that under these circumstances this petition has been filed with a view to harass the workman and there is no merit in the petition and the same is liable to be dismissed.

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(4) Heard and considered the submissions made at the Bar and perused the material available on the record. (5) At the outset it is required to be noted that respondent no. 2 herein filed an application before the Labour Court under Section 33-C(2) of the Act of 1947, demanding difference of revised pay scale pertaining to the years 1987, 1989 and 1998 as no option was given to him for correct fixation of pay. As per the respondent - workman, pay scale of Rs. 520-925 was given to him w.e.f. 28.12.1981, while the pay scale was revised by the petitioner at Rs. 610-1090 w.e.f. 1.2.1985. Hence, his pay should have been at Rs. 610/- and thereafter it should have been amended to Rs. 1120/- w.e.f. 1.9.1986. And after revision of pay scale on 1.9.1988 and 1.9.1996 the pay scale was raised to Rs. 1200-2050 and 5000-8000, but no such option for revision of pay was ever given to the respondent - workman. This option should have been given to him within two months. Respondent no. 2 further averred before the Labour Court that he submitted his option for getting amended pay scale of Rs. 1120-2050, but his

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option was not accepted by the employer and wrong fixation was done.

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(6) The employee-petitioner objected the above averments and submitted that fresh dispute cannot be adjudicated in an application filed under Section 33-C(2) of the Act of 1947. It was pleaded that in terms of the award dated 1.10.2001 the pay scale was paid to respondent no. 2 and accordingly the pay scale and all related benefits were given to him. And an objection was taken that fresh adjudication cannot be done and the Labour Court has no jurisdiction to decide the fresh cause of action. But discarding all the objections of petitioner, the Labour Court allowed the application filed by respondent no. 2 and directed the petitioner to pay the arrears of Rs. 1,67,279/- due w.e.f. 28.12.1981 to 31.3.2005.

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(7) As per the settled proposition of law, in an application under Section 33-C(2) of the Act of 1947, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by Hon’ble Apex Court in the case of Municipal Corporation of Delhi v. Ganesh Razak (1995) 1 SCC 235, the Labour Court's jurisdiction under Section 33-C(2) of the Act of 1947 is like that of an executing court. As per the settled preposition of law, without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33-C(2) of the Act of 1947.

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(7.1) In Union of India v. Kankuben (2006) 9 SCC 292, it is observed and 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 Act of 1947. It is further observed that the benefit sought to be enforced under Section 33-C(2) of the Act of 1947 is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of the Labour Court exercising powers under Section 33-C(2) of the Act of 1947, while the latter does not.

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(7.2) The Larger Bench of Hon’ble Supreme Court in para 12 of the judgment in the case of MCD v. Ganesh Razak (supra) has held as under :-

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“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 for 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 33C(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 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter 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 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.”

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(7.3) Similarly, in the case of State of Uttar Pradesh v. Brijpal

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Singh (2005) 8 SCC 58, it has been held in para 10 as under :-

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“10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. v. Suresh Chand (1978) 2 SCC 144, held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or 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 the industrial workman, and his employer. This Court further held as follows:

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“ It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act" .”

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(8) Applying the law laid down by the Hon’ble Apex Court

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in the aforesaid decisions to the facts of the case in hand, there was no proper adjudication on the issue whether respondent no. 2 was entitled to get the benefits of the revised pay scales. The only direction was issued by the Labour Court while passing the award dated 1.10.2021 that respondent no. 2 would be entitled to pay scale and the benefits w.e.f. 28.12.1981 and all these benefits were extended to him by the petitioner. If at all the revised pay scale and the revised benefits were not extended to respondent no. 2, he could have raised a fresh dispute for the fresh cause of action for non-payment of above benefits. The Labour Court was not having jurisdiction to decide the fresh issue raised by respondent no. 2 in his application under Section 33-C(2) of the Act of 1947. The Labour Court ought not to have proceeded

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further with the application filed by respondent no. 2. The Labour Court ought to have relegated the respondent no. 2 to initiate appropriate proceedings by way of reference and get his right crystalised and /or adjudicated upon.

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(9) Therefore, the order dated 8.9.2010 passed by the Labour Court was beyond the jurisdiction conferred under Section 33-C(2) of the Act of 1947. The Labour Court has committed an error in assuming the jurisdiction under Section 33-C(2) of the Act of 1947. The award is liable to be set aside.

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(10) Consequently, the petition is allowed, the impugned award is set aside. The claim petition filed by respondent no. 2 is rejected.

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(11) Stay application and all application(s), pending if any, stands dismissed.

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(12) No order as to costs.

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(ANOOP KUMAR DHAND), J.

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KuD/db

Raj Rajya Sahkari Upbhokta v. Labour Court No 2 and Anr.

Case brief

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Raj Rajya Sahkari Upbhokta v. Labour Court No 2 and Anr.

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