THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION Nos. 27006 and 22999 of 2006 COMMON ORDER: In these two writ petitions, an order, dated 18.09.2006, passed by the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad (for short ‘the Tribunal’) in I.A.No.46 of 2004 in M.P.No.70 of 2002 and batch is challenged, as being illegal, unconstitutional and contrary to the provisions of the Industrial Disputes Act, 1947 (for short ‘the Act’). The petitioners claim that they were initially employed by the Associate Cement Companies Limited, 1st respondent herein, and that subsequently, the management of the same has changed hands and by the year 1993, it was under the management of the 2nd respondent herein viz., M/s. HMP Cements Limited. They state that the 2nd respondent declared lock out of the factory and the Government issued G.O.Rt.No.1179, Women’s Development Child Welfare & Labour (LAB-1) Department, dated 25.06.1993, prohibiting the continuance of the lock out declared by the 2nd respondent. W.P.No.9101 of 1993 was filed by the Management, challenging the said G.O. It was allowed on 22.02.1995, mainly on the ground that no reference under Section 10(4) of the Act was pending, by the time, the lock out was declared as illegal. Therefore, the Government issued G.O.Rt.No.1772, dated 22.07.1995, after ensuring that there existed a reference. That G.O. was challenged in W.P.No.19847 of 2005, which, in turn, was closed, vide order, dated 04.08.2000, on the ground that the factory itself has been closed and sold to third parties. The petitioners approached the Tribunal by filing a batch of miscellaneous petitions under Section 33-C (2) of the Act, claiming wages for the period, during which the factory was locked out, despite the prohibition by the Government. The 2nd respondent, in turn, filed an I.A. with a prayer to decide the preliminary objection as to the very maintainability of the miscellaneous petitions. According to it, the petitions filed by the petitioners were not maintainable, since there was no prior adjudication as to their entitlement to be paid salaries. Certain other grounds were also urged. The petitioners opposed the I.A. The Tribunal, ultimately, passed the order, dated 18.09.2006, sustaining the objection raised by the 2nd respondent, as to the maintainability of claims under Sections 33-C(2) of the Act and dismissing the batch of 520 cases filed under Section 33-C(2) of the Act. The petitioners contend that once the dispute between the workers and the Management of the Factory was referred to an Industrial Tribunal, the lock out declared by the 2nd respondent was illegal and that they are entitled to be paid the salaries for the period, during which the Factory remained in unlawful lock out. They contend that the Tribunal did not take into account, the fact that the Government issued G.O.Ms.No.1722, dated 22.07.1985, prohibiting the continuance of lock out, and that the writ petition filed against it by the respondents was closed, at their instance. The 1st respondent filed a counter affidavit, opposing the claim of the petitioners. It is stated that the factory has since been sold by it and that at that time, all the workers, who were on the rolls of the Factory, were extended the benefit of Voluntary Retirement Scheme. It is also stated that the claims made by the petitioners under Section 33-C(2) of the Act are not tenable. No counter affidavit is filed by the other respondents. Heard Sri M. Pitchaiah and Sri A.K.Jaya Prakash Rao, learned counsel for the petitioners, Ms. G.Sudha, learned counsel for the 1st respondent and the learned Government Pleader for Labour. The petitioners submitted their claims under Section 33-C (2) of the Act in the factual background mentioned above. Even before any enquiry in the matter commenced, the 2nd respondent filed an application to reject the claims of the petitioners, on the ground of maintainability. The main ground urged on behalf of the 2nd respondent before the Tribunal was that the proceedings under Section 33-C(2) of the Act are comparable to execution petitions and it is but natural that an adjudication on merits must precede the same. It was contended that the G.O. issued by the Government, prohibiting continuance of lock out, was set aside by this Court and in that view of the matter, the petitioners are not entitled for any benefit. The petitioners, on the other hand, brought to the notice of the Tribunal that though an initial order passed by the Government was set aside, a subsequent order was issued, duly ensuring compliance with Section 10 of the Act. The Tribunal discussed the matter with reference to the pleadings before it and arrived at the following conclusion: “In view of the circumstances that there is no prior adjudication of the dispute regarding the illegality of the lock-out and further the existence of the right of eth workmen, the Petitions under Sec. 33 C(2) of Industrial Disputes Act, 1947 are not maintainable since the proceedings under Sec. 33 C(2) are n the nature of execution proceedings. I find the issue in favour of the Petitioner Management which results the dismissal of MP 70/2002 consisting a batch of 520 cases in total. Ordered accordingly.” Section 33-C (2) of the Act enables the workmen to realize the amounts, that are payable to them, towards wages. Way back in the year 1968, the Supreme Court in Chief Mining Engineer, East India Coal Company Limited vs. Rameshwar[1] held that the claim under Section 33(C) (2) of the Act is not confined to the cases, where any definite amount was determined, and that amounts can be recovered under that provision, in case the entitlement is referable to any provisions of law. The same view was taken in a number of subsequent judgments rendered by the Supreme Court and other High Courts. I n M. Radhakrishna Reddy vs. Sri B.V.Bus Service[2], a Full Bench of this Court took the view that in an application filed under Section 33-C(2) of the Act, the Labour Court has to enquire into the question as to whether a workman had existing right to wages or not and it is not necessary that there must be an award or adjudication determining any amount. Authorities can be multiplied on this. Time and again, the Supreme Court cautioned against the preliminary objections being taken up in the matters arising under the Act. It was pointed out that the rejection of a claim under the Act, on preliminary issue, would only add to the delay; and instead, an objection raised as to the maintainability can be dealt with along with other issues. A perusal of the order assailed in these writ petitions discloses that the Tribunal had sustained the preliminary objection raised by the 2nd respondent, by placing certain interpretations on the orders passed by this Court, which is somewhat untenable. On behalf of the respondents, the plea of transfer or closure of the factory was also pleaded. The effect thereof needs to be examined on the basis of the oral and documentary evidence as well as the relevant provisions of law. Under these circumstances, the impugned order cannot be sustained. Therefore, the writ petitions are allowed and the order, dated 18.09.2006, passed by the Tribunal in I.A.No.46 of 2004 in M.P.No.70 of 2002 and batch is set aside. The Tribunal is directed to hear the matter on merits and to examine the contentions advanced on behalf of the respondents, as to maintainability also, at the time of final disposal. There shall be no order as to costs. ________________________ (L.NARASIMHA REDDY, J) Date: 24.07.2008 Note: Issue C.C. in three days. (B/o) JSU THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION Nos. 27006 and 22999 of 2006 Date: .07.2008 JSU [1] AIR 1968 SUPREME COURT 218 [2] 1986 Labour and Industrial Cases 80