Dismissed

Chakkakula Bullemma v. The Municipal Commissioner, Machilipatnam Municipality

Telangana HC23 Nov 2012WP/3903/2008

Case brief

AI extract

What is this about?

The Court dismissed this writ petition where the petitioner sought back wages under Section 33-C(2) of the Industrial Disputes Act after being reinstated from daily wager status to regular service. The Court held that entitlement to specific scales and allowances must be adjudicated as a substantive right before calculation proceedings can commence.

What did the court decide?

The writ petition is dismissed with no costs.

Chakkakula Bullemma Vs The Municipal… — Pension and Retirement Benefits | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.3903 of 2008

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ORDER:

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The point that arises in this writ petition is whether the claim for back wages and other benefits claimed by the petitioner in E.P.No.22 of 2003 and E.P.No.17 of 2005 and also M.P.No.63 of 2003 in I.D.No.282 of 1996 on the file of Labour Court, Guntur (Labour Court) would fall within the purview of Section 33-C(2) of the Industrial Disputes Act, 1947 (for short Act).

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2. The petitioner pleaded that her above claim would fall under Section 33-C(2) of the Act. The Labour Court however held that it would not and dismissed the above two EPs and the MP by its order dated 04.12.2007. It is questioning that order the petitioner has come up with this writ petition.

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3. The admitted facts and circumstances which have given rise to the above point can be stated thus. The petitioner initially worked as a Scavenger as a daily wager in the first respondent Municipality from 1992 to 27.09.1993. She was terminated on 28.09.1993 by the first respondent. She therefore raised an industrial dispute i.e. I.D.No.282 of 1996 challenging her termination before the Labour Court. The Labour Court by its Award dated 31.10.1997 held her termination to be bad for the reasons recorded therein and directed the first respondent and the second respondent herein to reinstate her into service with continuity of service and back wages and all other attendant benefits.

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4. The first respondent challenging the above Award in I.D.No.282 of 1996 filed W.P.No.9967 of 1998 in this court. This

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Court by order dated 09.09.2002 confirmed the petitioner’s reinstatement with continuity of service, but refused full back wages and instead awarded a sum of Rs.10,000/- on that count. That order has become final and subsequently the petitioner was also reinstated into service. It is also brought to my notice that subsequently the petitioner was given a regular appointment by the first respondent in its service by an order dated 29.05.2006 as a public health (PH) worker giving her a time scale mentioned therein, but that order reads that the said appointment was on a temporary basis and it was with effect from that date only. This is not in dispute. The said reinstatement order refers to the order in I.D.No.282 of 1996, W.P.No.9967 of 1998 and W.A.No.478 of 2004 and reads that petitioner earlier worked as a badili worker and she was reinstated into service as a PH worker with the time scale mentioned therein.

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5. Now coming to the circumstances pertaining to the claims made by the petitioner in the aforesaid EPs in the Labour Court, it may be noted that the petitioner first filed M.P.No.63 of 2003 claiming a sum of Rs.2,58,852/- towards back wages and other benefits due under Section 33-C(2) of the Act before the Labour Court and requested the Labour Court to determine that amount as payable to her and she filed E.P.No.22 of 2003 for recovery of that amount. The details of the claim made therein pertain to the period from February, 1993 to November, 2003. Various claims towards arrears are made towards Basic Pay, DA and Compensatory Allowance for various months referred to supra. She then filed E.P.No.17 of 2005 making an additional claim from February, 1998 to March, 2005 under various heads i.e. Basic Pay, DA, HRA, etc., and showed that claim at Rs.3,50,175/-.

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6. The stand of the first respondent in the above proceedings before the Labour Court was that the petitioner was only a daily wager and she was not entitled to Basic pay, DA, HRA and Compensatory Allowance on par with regular employees as claimed by her in the EPs and she was entitled only to daily wages as a Badili/NMR worker till her reinstatement. The impugned order of the Labour Court would also show that according to the calculation of the first respondent municipality on the basis of daily wages the petitioner was entitled to a sum of Rs.34,051/- and that amount was also paid to the petitioner through a demand draft which was given to her on 26.02.2007. This is also not in dispute. The first respondent filed a calculation memo from its side showing the wages paid under Section 17-B and to be paid and calculated the above amount as payable to her.

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7. The plea of the petitioner is that since she was directed to be reinstated into service with continuity of service, she has to be treated as a regular employee like others who are regularised and were being paid Basic Pay, HRA and other allowances and therefore she is entitled to the claims made by her as of right by virtue of the Award in I.D.No.282 of 1996 and consequently no further adjudication of her claim is necessary and what all that is to be done in these proceedings is a mere calculation work which is in substance a ministerial work relating to calculation and therefore her claims would fall within the meaning of Section 33-C of the Act and therefore she is entitled to recover the same. Her further plea is that the Labour Court in the impugned order wrongly held that her claims have to be adjudicated regarding her entitlement and therefore her claims do not fall within the scope of Section 33-C(2) of the Act. On the other hand, the stand of the first respondent is that the petitioner was at best entitled only to

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the daily wages till her reinstatement and not regular pay and other allowances. It is also pleaded by the first respondent that the petitioner’s case did not also fall under G.O.Ms.No.212 Finance and Planning Department dated 22.04.1994 as she did not satisfy the conditions mentioned therein. Therefore, her claims cannot be entertained under Section 33-C(2) of the Act.

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8. It may be noted that when the petitioner was terminated from service, she was admittedly only a daily wager and the Award in I.D.No.282 of 1996 would show that she was reinstated into service only on the ground of violation of Section 25-F of the Act as she has put in more than 240 days of continuous service. Thus when the petitioner was ordered to be reinstated into service under the said Award, it follows that she was entitled to be reinstated only as a daily wager. It was only subsequently that she was reinstated into service on 29.05.2006 by the first respondent giving her a time scale from that date i.e. 29.05.2006. The plea of the first respondent further is that the petitioner has not put in continuous service of five years by 25.11.1993 and was not continuing on that day and that therefore she was not even entitled to any regularisation under the G.O.Ms.No.212 and was not entitled to the scale granted to her prior to 29.05.2006.

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9. It may thus be noted whether the petitioner is entitled to a regular appointment in a time scale from February 1993 or on any subsequent date prior to 29.05.2006 which is her date of reinstatement on any ground or in terms of G.O.Ms.No.212 or any other GO can be said to be a substantive right which has to be first decided in appropriate proceedings which are applicable to adjudication of such rights. In other words, what should be noted is whether the petitioner was in principle entitled to Basic Pay,

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HRA or DA prior to the date of her reinstatement is again a matter to be decided in separate proceedings as mentioned supra by a competent authority and it cannot be said to be a mere case of calculation of arrears as contemplated under Section 33-C of the Act. The said question, to repeat, cannot be decided by the Labour Court under Section 33-C(2) of the Act as it relates to a substantive right and hence the stand of the first respondent merits acceptance as held by the Labour Court. It is now settled that proceedings under Section 33-C(2) of the Act are in the nature of execution proceedings and in such proceedings substantive rights cannot be decided.

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10. Sri M.Pitchaiah, the learned counsel for the petitioner relied upon a Division Bench decision dated 17.10.2012 of this court given in W.A.No.917 of 2012 and batch (A.P. State Textile Development Corporation Limited v. The P.O., Labour Court, Guntur and others) in support of his contention that petitioner’s claim can be said to fall under Section 33-C(2) of the Act. A perusal of this decision would show that unofficial respondents therein were recruited to the posts of Attenders with usual allowances admissible to the staff of A.P. State Textile Development Corporation Limited and they were paid basic pay and other allowances even initially. Subsequently, there was a revision of pay scales and the corporation also issued a memo applying the said scales to the unofficial respondents therein, but they were not paid the same. Thus they filed an application under Section 33-C(2) of the Act for calculating and recovering the same. It was in those circumstances and basing on an earlier Supreme Court decision it was held that the claim of unofficial respondents therein does not require any separate adjudication as

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they are governed by the revised pay scales and therefore their claim would fall under Section 33-C(2) of the Act. That is not the case here. The petitioner was only a daily wager when she was terminated and after the first respondent failed in its writ petition and writ appeal, it reinstated the petitioner into service on 29.05.2006 in a specified time scale granting her the said scale only from that date as by then the said scales were made applicable to PH workers. Thus, to repeat, whether the petitioner was entitled to that scale and increments and allowances even from February 1993 is a question relating to a substantive right which has to be separately adjudicated in a proper forum as she was only a daily wager earlier. Hence, the above decision cannot help the petitioner.

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11. The next decision relied upon by Sri Pitchaiah is the one given in Sirpur Paper Mills Ltd. v. Chairman, Industrial Tribunalcum-Labour Court^[1] . Even in this decision though it pertains to the scope of Section 17-B, it was also a case pertaining to a regular employee of Sirpur Paper Mills Limited who was reinstated and who was held entitled to all other benefits on reinstatement on the facts of that case. Thus this decision is also distinguishable on facts and cannot help the petitioner. I therefore regret that I am unable to accept the contentions of Sri Pitchaiah.

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12. For the aforesaid reasons, it follows that there is no ground to interfere with the order of the Labour Court. This writ petition is therefore dismissed. No costs.

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______________________ N.RAVI SHANKAR, J

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23^rd November, 2012 TJMR/CVRK

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[1] 2000 (1) ALD 336

Chakkakula Bullemma v. The Municipal Commissioner, Machilipatnam Municipality

Case brief

What is this about?

What did the court decide?

Chakkakula Bullemma v. The Municipal Commissioner, Machilipatnam Municipality

Case brief

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What did the court decide?

What the court decided

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