[CASE NUMBER] 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2397 OF 2010 [ENTITY] Petitioner V/s. [ENTITY] & Anr. Respondents Mr. [ENTITY], Sr. Counsel, with Mr. [ENTITY] and Ms. [ENTITY] i/b. Sanjay Udeshi & Co. for the Petitioner. Mrs. [ENTITY] for Respondent No.1. ig CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 20 TH DECEMBER, 2010. PRONOUNCED ON : 8 TH MARCH, 2011. JUDGMENT :
1. Rule. Rule made returnable forthwith, by consent.
2. Once again the vexed question as to what could be considered as an incidental issue in an application under [SECTION] of the [ACT], (for short "the [ACT]"), arises for determination in the present Petition.
3. The first respondent, (hereinafter referred to as "the workman"), was employed with the petitioner, (hereinafter referred to as "the Company"), from 5th October, 1970.
He was recruited as a "Junior Clerk" in the Traffic Department. He was later re-
[CASE NUMBER] designated as a "Senior Assistant" on 1st November, 1979. Thereafter, he was transferred to the Stores Department on 14th January, 1980. The Company dismissed the workman on 7th August, 1982 for having committed gross misconduct of insubordination and disobedience. Aggrieved by that order, the workman preferred [CASE NUMBER], which was allowed partly by the Labour Court, Pune. The Company was directed to reinstate the workman with continuity of service and to pay him 50% of his back-
wages by the order of the Labour Court dated 27th September, 1988. Both the workman as well as the Company preferred Revision Applications before the Industrial Court, Pune. By an order dated 1st March, 1993, the Industrial Court allowed the Revision Application of the workman and granted him full back-wages. The Revision Application of the Company was dismissed. According to the Company it complied with the order of the Industrial Court by reinstating the workman with effect from 23rd April, 1993 and paying him an amount of `2,93,984.34 on 14th May, 1993 as back-wages.
4. The workman filed [CASE NUMBER] before the Labour Court under [SECTION] of the [ACT], (for short "the [ACT]"), claiming that he was entitled to the benefits of Settlements which were signed by the Company with the Union representing the employees while he was out of service. These Settlements were signed on 24th January, 1985, 22nd June, 1988 and 30th April, 1993.
The workman claimed an amount of `2,41,096/-. [CASE NUMBER] was also filed by the workman under [SECTION] of the [ACT]. The process issued by the Labour Court against the Managing Director of the Company was [CASE NUMBER] quashed by the Industrial Court. [CASE NUMBER] filed by the workman against the order of the Industrial Court was dismissed on 30th July, 2001.
Soon thereafter on 3rd September, 2001, the Miscellaneous Application filed under [SECTION] of the [ACT] was also dismissed by the Labour Court by concluding that it did not have the jurisdiction to decide the Miscellaneous Application.
The Industrial Court set aside this order of the Labour Court and remanded the application again to the Labour Court. The application was dismissed once again which lead to another Revision Application being filed by the workman. The Industrial Court dismissed that application. No further proceedings have been initiated by the workman against that order of the Industrial Court passed on 5th October, 2002 in [CASE NUMBER].
5. While these proceedings under the [ACT] were pending, the workman filed an application under [SECTION] of the [ACT], being [CASE NUMBER]. The workman claimed an amount of `2,45,345.55 as dues payable to him under the Settlement dated 30th April, 1993. He also claimed interest @ 18% p.a. on that amount. According to the workman, after he was reinstated in service on 24th April, 1993, the Company did not pay the benefits of the aforesaid Settlement.
6. The workman filed another application, being [CASE NUMBER], under [SECTION] of the [ACT] claiming `2,41,096/- together with interest @ 18% p.a. In this application, he sought dues payable to him under the Settlement of 1984, 1988 and 1993 which had not been extended to him after he was reinstated in service.
[CASE NUMBER] Thus, the period for which the workman claimed difference in wages in both the applications, taken together, was from 1982 till 1993.
7. The workman and five other workmen filed [CASE NUMBER] before the Industrial Court under [SECTION] of the [ACT]. It was alleged that the Company had committed an unfair labour practice by not extending the benefits of certain Settlements to them. The Industrial Court allowed the complaint by an order dated 7th September, 1998. Aggrieved by this decision, the Company preferred [CASE NUMBER] which is pending in this Court. The order of the Industrial Court has been stayed by this Court.
8. In its written statement, the Company contended that the workman was not given the benefits of the Settlement dated 30th April, 1993 while paying him his back-
wages. The Company pleaded that this was because the Settlement of 30 th April, 1993 was binding only on such workmen who had submitted an undertaking in writing, accepting the terms and conditions of the Settlement. As the workman had not submitted any such undertaking, as required under the Settlement, he was denied the benefits of the Settlement of 30th April, 1993. It was also pleaded that the application was barred under [SECTION] of the [ACT] since he had sought the same relief before the Industrial Court.
9. Both the applications filed under [SECTION] of the [ACT], i.e. [CASE NUMBER] as well as 25 of 2003, were heard together by the Labour Court, [CASE NUMBER] on an application made by the workman. The workman filed his affidavit in lieu of examination-in-chief in which he has stated that he had sent several letters and had orally requested officials of the Company to permit him to sign the undertaking in order to avail of the benefits of the Settlement. However, the Company had refused to accept his request. In his cross-examination, when asked whether he had furnished the undertaking accepting the conditions in the aforesaid Settlements the workman answered that the Company had not supplied the Form of Undertaking to him. He further stated that he had written to the Company asking for the Undertaking Form.
10. The witness of the Company has stated in his affidavit filed in lieu of examination-
in-chief that the workman had refused to submit any undertaking accepting the terms and conditions of the Settlement dated 30th April, 1993 and it was for this reason that the benefits of this Settlement were not extended to him. In his cross-examination, the witness has denied the suggestion that the Company had not furnished Annexure-I of the Settlement to the workman despite his request. Annexure-I was the Form of Undertaking.
11. The Labour Court by its Judgement and Order dated 27th April, 2009 has allowed the [CASE NUMBER]. It has directed the Company to pay an amount of `2,45,345/- to the workman along with the interest thereon @ 8% p.a. from the date of the application, i.e. from 29th April, 2000, till realization of the entire amount. By another order dated 27th April, 2009 passed in [CASE NUMBER] the Labour Court directed the Company to pay an amount of `2,08,555/- with interest @ 8% p.a. from the date of the application i.e. from 13th March, 2003 till realization of the [CASE NUMBER] amount. The petitioner then preferred [CASE NUMBER] for review of the order passed in [CASE NUMBER]. That application was dismissed by the Labour Court on 10th February, 2010 on the ground that the review was not maintainable.
ARGUMENTS OF MR. [ENTITY], THE LEARNED COUNSEL FOR THE COMPANY
12. Mr. [ENTITY], the learned Counsel appearing for the Company, pointed out that the claim under [SECTION] of the [ACT] was not maintainable as the entitlement of the workman to the amount payable under the Settlement was disputed. His submissions were as follows :
. The jurisdiction of the Labour Court under [SECTION] of the [ACT] is akin to that of the Civil Court which executes a judgement or order. It cannot traverse beyond the computation of the amount payable. The Labour Court has no jurisdiction to decide the entitlement of the workman. The very fact that the workman had not signed the declaration would indicate that he was not entitled to the amount. Any decision or enquiry by the Labour Court as to whether the workman was prevented from signing such a declaration or he had voluntarily refused to sign the same would amount to deciding his entitlement. Whether the workman was prevented from signing the declaration is a disputed question which cannot be answered by the Labour Court under [SECTION] of the [ACT] as that would lead to adjudication of his entitlement. Such an enquiry would not amount to deciding whether there was an existing right as the [CASE NUMBER] enquiry would not be incidental to the main issue of computation of an amount under [SECTION] of the [ACT]. Clause (1.2) of the Settlement of 30th April, 1993 required each individual workman to signify the acceptance of the terms and conditions of the Settlement by giving a declaration in the form of Annexure-I to the Settlement.
This declaration was not furnished by the workman and, therefore, the amount was not paid to him. No letters signifying his acceptance were produced by the workman, neither was any letter produced indicating that the Company had refused permission to him to sign the declaration envisaged under the Settlement of 30th March, 1993. By the impugned order, the Labour Court has modified the Settlement by observing that no declaration was required from the Senior Clerk. It was only in his evidence that the workman contended that he was willing to sign the relevant declaration. Such an offer made after seven years is of no consequence. Therefore, the application ought to have been dismissed.
ARGUMENTS OF MRS. [ENTITY], THE LEARNED ADVOCATE FOR THE WORKMAN
13. Mrs. [ENTITY]'s submissions were as follows: The benefits claimed under [SECTION] of the [ACT] by the workman flows from a pre-existing right contained in the Settlement dated 30th April, 1993. The refusal by the Company to permit him to sign the Settlement was because the workman had litigious tendencies. The entitlement of the dues is envisaged in the Settlement. The undertaking required to be furnished under the Settlement had not been furnished by the workman because of the refusal by the [CASE NUMBER] Company to furnish him the format in which the undertaking was expected. The issue as to whether the workman was refused permission or he voluntarily did not sign the declaration is a question which is incidental to the main issue of payment of the amounts under the Settlement of 30th April, 1993. The furnishing of the undertaking does not dictate the entitlement as the entitlement is contained in the Settlement itself.
14. Both the learned Counsel have referred to several judgements which I will deal with presently.
15. By a letter dated 20th September, 1995, the workman had called upon the Company to recalculate the amounts paid to him in accordance with the Settlement of 1993. Several similar letters have been written by the workman to the Company. By a letter dated 15th January, 1996, the Company has stated that the question of payment of arrears in accordance with the Settlement of 30th April, 1993 was a subject matter of various cases filed by the workman in Court and, therefore, it had not extended the benefits of that Settlement to the workman. There does not appear to be any letter on record written by the Company to the workman calling upon him to sign the declaration in order to pay him the amount. The Labour Court by the impugned order has held that the Company had avoided the request of the applicant, i.e. the workman, to permit him to sign the undertaking with an intention to deny him the benefits of the Settlement of 30th April, 1993. It was, therefore, of the view that the workman was entitled to the amount claimed by him together with interest @ 8% p.a. [CASE NUMBER]
16. The issue involved in the present case is as to whether the workman had not signed the declaration because of the Company denying him the opportunity to do so or because of an overt act on the part of the workman refusing to sign the undertaking.
There can be no dispute that the Labour Court is not vested with the jurisdiction to adjudicate an entitlement of any amount payable to the workman. It can merely compute the amount. However, while doing so it can always conduct an incidental enquiry which would facilitate its decision while computing the amount.
17. In the case of The [ENTITY] Co-operative Housing Society Ltd. vs. Dilip Singh Parocha & Ors., reported in 2007(1) ALL MR 571, the Division Bench of this Court has considered the judgements of the Supreme Court in the cases of [PRECEDENT], [PRECEDENT], reported in AIR 1972 SC 451, [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], State of U.P. vs. Brijpal Singh, reported in 2006 (2) ALL MR (S.C.) 6, [PRECEDENT], [PRECEDENT], [PRECEDENT], and Divisional Personnel Officer, Southern Railway, Palghat vs. P. Ramchandren, [CASE NUMBER] reported in (1991) 11 CLR 364. Speaking for the Bench, [ENTITY] J. has elucidated in para 40 of the judgement in the case of The [ENTITY] Co-operative Housing Society Ltd.
(supra) the propositions which emerged on consideration of the aforesaid judgements.
Para 40 of the judgement reads as under :
"40. From the judgments of the Supreme Court and of this Court to which we have made a reference following propositions emerge:-
a) The legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights and so it inserted [SECTION] in the said Act in 1956. By resorting to [SECTION] individual workmen can enforce their rights without having to take recourse to [SECTION] of the said Act or without having to depend upon their union to espouse their cause.
b) There is no bar preventing a Labour Court dealing with an application under [SECTION] of the said Act from determining the workmen's right to receive benefit if it is disputed by the employer.
c) This view is consistent with the legislative intent and a contrary view would mean that it would be at the option of the employer to allow the workmen to avail himself of the remedy provided by [SECTION] because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court, to entertain the workman's application.
d) In some cases determination of the question about computing the benefit in terms of money may have to be preceded by an enquiry into the existence of the right, and such an enquiry must be held to be incidental.
e) Whether such inquiry is incidental or not will depend on the facts and circumstances of each case.
f) When Labour Court's jurisdiction is sought to be ousted by raising objection to it, the Labour Court will have to [CASE NUMBER] examine whether it has jurisdiction or not. In such a situation the question of status of the person applying under [SECTION] becomes an incidental matter and the Labour Court can enquire into that matter.
g) In a given case it may be necessary to determine the identity of the person against whom the claim is made if there is challenge and such determination would be incidental.
h) Interpretation of an Award or a Settlement on which the workman's right exists is incidental to the Labour Court's power under [SECTION].
i) Under [SECTION] the Labour Court cannot be asked to disregard the dismissal of the workman as wrongful and on that basis compute his wages.
j) Under [SECTION] the workman cannot claim that his dismissal or demotion is unlawful and, therefore, he continues to be the workman of the employer and he is entitled to the benefits due to him under a pre-
existing contract.
k) Under [SECTION], it would not be open to an employee, notwithstanding a settlement, to claim the benefit as though the said settlement has come to an end.
l) If the workman makes his claim on the basis of a lay off and the employer raises a plea that there was no lay off but closure, the Labour Court must decide as to whether there was really a lay off or a closure and if it takes the view that there was a lay off without any closure of the business, it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of [SECTION] In such a situation the plea raised by the employer is a jurisdictional plea and the Labour Court has to decide whether it has jurisdiction to make the computation. Thus, jurisdictional pleas will have to be decided by the Labour Court.
m) If the workers claim that they had been actually promoted to a particular cadre and the management denies the promotion the Labour Court can decide whether there was such a promotion or not it being an [CASE NUMBER] incidental question, but under [SECTION] the Labour Court cannot reclassify the workers.
n) While dealing with an application under [SECTION] the Labour Court has to keep the legislative intent in enacting this provision in mind. It must adopt a cautious approach and it must not allow an attempt to oust the jurisdiction of the Labour Court by raising frivolous plea succeed for that would mean driving the workman unnecessarily to another forum. In such cases it will have to conduct incidental inquiry to determine the identity of the person against whom the claim is made and the person who makes the claim.
Nature of incidental inquiry will obviously depend on facts and circumstances of each case. "
18. Thus, an incidental enquiry can always be conducted to determine whether a workman is entitled to the benefits as computed by him. The issue as to whether the declaration was not signed because of an overt act by the employer or the workman is an incidental issue involving no complicated question relating to the entitlement of the workman to the amounts payable under [SECTION] of the [ACT]. Therefore, in my opinion, the Labour Court was correct in deciding the application under [SECTION] of the [ACT].
19. According to Mr. [ENTITY], in the case of [PRECEDENT], another Division Bench of this Court, while interpreting the law laid down by the Supreme Court in the case of [PRECEDENT] (supra) , takes a view contrary to the one expressed by the Division Bench in The [ENTITY] Co-operative Housing Society Ltd.
(supra). He pointed out that a judgement in the case of [PRECEDENT] (supra) was not noticed by the Division Bench while deciding the case of The [ENTITY] Co-
[CASE NUMBER] operative Housing Society Ltd. (supra). In the case of [PRECEDENT] (supra), the workman was terminated from service without following the procedure required under the rules governing her service conditions and in breach of the provisions of [SECTION] of the [ACT]. She claimed her wages by filing an application under [SECTION] of the [ACT], contending that her termination from service was thus non est. The Labour Court dismissed the application on the ground that it could go on decide whether the respondent in that case was an "Industry" or whether the "Claimant" was a workman. It further held that there was substantial compliance with [SECTION] of the [ACT]. The Labour Court was of the view that it was only upon the striking down of the order of termination that the claimant could be considered to have an existing right to collect the salary from the employer. This could not be considered as an incidental matter. The salary was claimed by the employee contending that there was no termination of service as there was a breach of the provisions of [SECTION] of the [ACT] and, therefore, she was entitled to wages as the order terminating her services was void, ab initio, invalid and inoperative. After considering the judgement of the Supreme Court in the case of [PRECEDENT] (supra), the Division Bench held that the Labour Court acting under [SECTION] of the [ACT] is not vested with the powers to adjudicate the issue as to whether the provisions of [SECTION] of the [ACT] had been complied. The Division Bench noticed the judgement in the case of [PRECEDENT] (supra) and held that the Labour Court could not give a wrong decision on the jurisdictional plea. The Court further observed that the Labour Court's jurisdiction could not be ousted by a mere plea denying the workman's claim to computation of the benefits. In the circumstances of the facts before it, the [CASE NUMBER] Division Bench held that there was no existing right in the employee to claim salary when there was an order of termination passed against her and until that order was set aside, she was not entitled to claim the salary by filing an application under [SECTION] of the [ACT].
20. In my opinion, there is no conflict between the two decisions of the Division Benches. In the case of [PRECEDENT] (supra) all that the Division Bench has observed is that in the facts and circumstances of that case, the Labour Court had rejected the application correctly as it could not arrogate to itself the jurisdiction to determine whether the workman had been terminated from service in breach of the provisions of [SECTION] of the [ACT] while considering an application under [SECTION] of the [ACT]. The Court has merely held that a wrong decision on the jurisdictional plea cannot confer jurisdiction on the Labour Court. This finding, in my opinion, is not contrary to the decision of the Division Bench in [ENTITY]'s case. The Division Bench has held in [ENTITY]'s case that an enquiry which precedes the determination of the benefit in terms of money may be incidental depending on the facts and circumstances of each case. Both the Division Benches have noticed that the jurisdiction of the Labour Court cannot be ousted merely by raising an objection to the maintainability of the application. In the case of [PRECEDENT] (supra), the Division Bench has noted as under :
The denial of the right would only require the Labour Court to enquire whether the right was existing. The labour Court had jurisdiction to decide and determine this jurisdictional question.
[CASE NUMBER] The enquiry under [SECTION] in such case would have to be proceeded by an enquiry into the existence of the right and such an enquiry was incidental to the main determination which had been assigned to the Labour Court by [SECTION]. Just as an executing Court was competent to interpret the decree, so also the Labour Court was competent to construe the settlement, award or statute under which the right was claimed. Matters such as the interpretation of an award, whether the workman fell within a particular class of workmen entitled to benefits under a settlement, award or statute, the total amount due or the amount at which benefits should be computed were all matters falling within the jurisdiction of the Labour Court under [SECTION]."
21. According to Mr. [ENTITY], the Division Bench of this Court in the case of The [ENTITY] Co-operative Housing Society Ltd. (supra) has not considered the true import of the judgement of the Supreme Court in the case of [PRECEDENT] (supra). He submitted that the Supreme Court has interpreted its earlier decision in the case of [PRECEDENT] (supra) and after quoting the relevant part of that judgement has held that "this decision itself indicates that the power of the Labour Court under [SECTION] extends to interpretation of the award or settlement on which the workman's right rests, like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents." The workmen in the case of [PRECEDENT] (supra) claimed wages at the same rate as the regular workers, although they were daily rated/casual workers. They claimed such wages on the basis of principle of "equal pay for equal work". It is in these circumstances that the Court held that there was need for adjudication of the claim of [CASE NUMBER] the entitlement to the benefit before computation of such benefit which was sought by the workmen. There was no prior adjudication of the entitlement to equal pay and in these circumstances the Court held that such a determination could not be termed as an incidental enquiry under the powers of jurisdiction vested in the Labour Court under [SECTION] of the [ACT]. The Supreme Court has not noticed its earlier judgement in the case of [PRECEDENT] (supra) which is that of a Constitution Bench. The Appeal in the case of R.B. Bansilal Abirchand Mills Co. Pvt.
Ltd. (supra) was heard by a Constitution Bench but on the demise of one of the learned judges of the Bench, the matter was heard once again by a Bench of four learned Judges and they have stated in the judgement that their opinion formed as a Constitution Bench remained unchanged. In the case of [PRECEDENT]
(supra), the issue which arose before the Supreme Court was whether the Labour Court has jurisdiction to entertain an application for lay off compensation under [SECTION] of the [ACT]. The employer in that case contended that there was a closure of Mills and not a lay off. It was, therefore, submitted that since a serious dispute has arisen as to whether there was a closure or a lay off, the Labour Court under [SECTION] of the [ACT] was not vested with the jurisdiction to decide that dispute. The Supreme Court considered its earlier judgement in the case of [PRECEDENT] (supra) and after quoting extensively from that judgement, the Court observed thus :
"In substance the point urged by the appellants was that if a claim is made on the basis of a lay-off and the employer contends that there was no lay- off but closure, it is not open to a labour court to entertain an application under [SECTION]. The more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who [CASE NUMBER] was faced with numerous applications before the Labour Court for computation of benefit in terms of money. As has been said already, the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of [SECTION] In our opinion the High Court's conclusion that;
"In fact the business of this Company was continuing. They in fact continued to employ several employees. Their notices say that some portions of the mills would continue to work."
was unexceptionabe.(sic) The notices which we have referred to can only lead to the above conclusion. The Labour Court's jurisdiction could not be ousted by a mere plea denying the workman's claim to the computation of the benefit in terms of money; the Labour Court had to to into the question and determine whether on the facts, it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdiction plea."
22. In my view the submission of Mr. [ENTITY] is without merit. In any event once the Division Bench has authoritatively pronounced on the scope of [SECTION] I am bound by it. It cannot be said that the judgement in The [ENTITY] Co-operative Housing Society Ltd. (supra) is per incuriam as Mr. [ENTITY] attempted to suggest.
23. In the case of [PRECEDENT] (supra), the Supreme Court considered whether the Labour Court has the jurisdiction to make a preliminary enquiry as to whether there was a closure when compensation payable under [SECTION] of the [ACT] was claimed under [SECTION] of the [ACT]. The Supreme Court held that a mere denial of the fact of retrenchment would not be enough to oust the jurisdiction of the Labour Court. The examination of the claim under [SECTION] of the [ACT] may in some cases have to be preceded by an enquiry into the existence of the right, [CASE NUMBER] observed the Court. The Supreme Court held that the Labour Court in such circumstances could always determine whether there was, in fact, a closure of the undertaking. The judgement in the case of [PRECEDENT] (supra) which has also been considered in The [ENTITY] Co-operative Housing Society Ltd. (supra), has been reiterated in the case of [PRECEDENT].
24. In the case of [PRECEDENT], which was not cited before the Division Bench deciding the case in The [ENTITY] Co-operative Housing Society Ltd. (supra), a learned Single Judge of this Court ([ENTITY], J., as he then was), has observed thus :
"Therefore, a bare reading of the two enactments clearly indicates that both under [ACT] and the [ACT], justifiability of suspension, stoppage or refusal to give work warrants adjudication. [SECTION] of the [ACT] clearly indicates that a dispute dealing with unemployment of a worker or a dispute concerning compensation required to be paid by the Mills on the ground of closure, is covered and falls within the adjudicatory process. On the other hand, under [SECTION] of the [ACT] it is laid down that the Labour Court performs functions which are generally performed by an Executing Court. If a worker claims a right benefit accruing to him from an award or a Settlement or an Agreement or under statutory enactment as an existing right, then the Labour Court is invested with the jurisdiction to compute the benefit in terms of money. In such a case, the dispute involves an existing right. An existing right is a right which is crystallized right in favour of the workman. It is a right which is already adjudicated upon. It is a right which is provided for under the statute. In such cases, the object of adjudication under [SECTION] is based only on computation. It does not involve determination of a right. It does not involve adjudication of rights and liabilities, inter se, between the parties. An existing right in a workman corresponds to an existing liability against the employer. If the [CASE NUMBER] workman is able to show that a right exists in him under the Settlement, Award or Agreement or even under the statutory provisions, then a bare of that right by the Mills or NTC will not defeat the claim of the workman. A bare denial of that right will not oust the jurisdiction of the Labour Court under [SECTION] of the [ACT], but where the applicant is required to prove the conditions precedent to the accrual of the liability of the employer, then [SECTION] has no applicability. Similarly, where the nature of the relief is in issue, [SECTION] does not apply. Similarly, where circumstances leading to closure or stoppage of work are in issue, then [SECTION] will not apply because in such cases, the Court is required to go into justifiability for such stoppage of work."
25. In the case of [PRECEDENT], the Supreme Court has observed thus :
We have considered the arguments advanced by the learned counsel for the parties. The fact that proceedings under [SECTION] are in the nature of execution proceedings is in no doubt, and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case. It will be seen that the reliance of the appellant workmen is exclusively on documentary evidence placed on record which consisted primarily of the punch time cards and the representations that had been filed from time to time before the respondents. It is also true that the claim raised by the appellants had been hotly disputed by the respondents. The question that arises in this situation is whether reliance only on the documentary evidence was sufficient to prove the case.
13. We are of the opinion that the reference to Municipal Corpn.
Case is completely misplaced as in that matter, the fact that different categories of workers were doing identical kind of work was virtually admitted but different scales of pay were nevertheless being paid to them. It is also relevant that oral evidence had been adduced by the workmen to supplement the documentary evidence and it was in that situation that the Court felt that an application under [SECTION] was maintainable.
14. We find that the claim by the appellants herein has been disputed from the beginning and that the documents filed by [CASE NUMBER] the appellants themselves suggest that they were unsure of their own status."
26. Based on the facts before it, the Supreme Court held that the application filed under [SECTION] of the [ACT] was not maintainable when the documents relied on by the employees in support of their case prima facie shows that they were managers and, therefore, it would be beyond the jurisdiction of the Labour Court to determine their status in proceedings under [SECTION] of the [ACT].
27. As stated earlier, the ambit of the provisions of [SECTION] of the [ACT].
have been clearly enunciated in the case of The [ENTITY] Co-operative Housing Society Ltd. (supra), and I am bound by that judgement as it is not per incuriam.
28. In the present case, it is not possible to accept the submission of Mr. [ENTITY] that an enquiry as to whether the workman had not signed the declaration because of his own conduct or because of the Company's refusal to furnish him the declaration form would amount to determination of his entitlement. The entitlement to the wages is stipulated by the Settlement itself. Under Clause (1.2) the workman was entitled to certain benefits. I have perused the undertaking which was expected to be signed. The declaration is in the following terms :
"I have read/have been explained and have understood all the terms and conditions of the settlement dated 30th April 93 between Bajaj TEMPO Ltd. and Bhartiya Kamgar Sena, (Bajaj Tempo Unit), Pune.
I hereby accept all the terms and conditions of the said settlement and the same are binding on me in all respect. I further undertake that the benefits arising out of this settlement will be applicable to me as [CASE NUMBER] have accepted the terms and conditions and provisions of this settlement.
I request you to please extend the benefits to me as above."
29. In my opinion, whether such a declaration was furnished or not would not in any way impede the right of the workman to secure benefits under the Settlement. The Settlement has been signed by a Union representing the workman and, therefore, it is obvious that the workman would be bound by the terms of the Settlement. The declaration was merely a back-up for the Company to ensure that the workmen complied with the terms and conditions in the Settlement. An enquiry as to whether such a declaration was not furnished due to the default of the workman or the Company would in my opinion not amount to a determination of the right of the workman to the benefits of the Settlement. The benefits are due and payable under the Settlement itself.
Assuming the workman had not signed the Settlement, the determination of the reasons for not signing the same is only incidental to the main issue of computation of the benefits under the aforesaid Settlement of 30th April, 1993.
30. In my opinion, therefore, the Labour Court has not committed any error in upholding the contention of the workman and granting him the amount claimed by him.
Mr. [ENTITY] has pointed out that interest has been awarded from the date of the application @ 8% p.a. He has submitted that such a direction could not have been given by the Court under [SECTION] of the [ACT]. In my opinion, this contention is not available to the learned Counsel in view of the judgement of a learned Single Judge of this Court ([ENTITY], J.) in the case of [PRECEDENT].
[CASE NUMBER]
31. In my view, therefore, the Writ Petition deserves to be dismissed. Accordingly, the Writ Petition is dismissed.
32. Rule discharged. No order as to costs.