IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 28.07.2011 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition No.11443 of 2011 and M.P. No.1 of 2011 The Management of Futura Polyesters Ltd., rep. By its President (Finance & Commerce), Manali, Chennai 600 008. ... Petitioner vs. 1. The Presiding Officer, Principal Labour Court, Chennai 600 104. 2. A.Manoharan ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records relating to the order, dated 28.01.2011, passed in SR No.5316 of 2010 on the file of the Presiding Officer, Principal Labour Court, Chennai, the first respondent herein, and quash the same. For Petitioner : Mr.J.James Respondent No.1 – Court Respondent No.2, appearing Party-in-Person. O R D E R The present writ petition has been filed by the petitioner/Management of Futura Polyesters Ltd., Chennai, seeking to quash the impugned order, dated 28.01.2011, passed by the learned Presiding Officer of the Principal Labour Court, Chennai, in S.R. No.5316 of 2010 in Complaint Petition No.1 of 2011, on the ground that, when the Complaint Petition itself was dismissed for default on the part of the 2nd respondent/workman on 22.02.2010, virtually nothing is pending on the file of the Principal Labour Court and, in such circumstances, the exercise of the R-1/Labour Court in taking on File the petition filed under Section 33-C(2) of the Industrial Disputes Act at S.R. Stage in S.R. No.5316 of 2010, that too, despite serious https://hcservices.ecourts.gov.in/hcservices/ objections on the part of the petitioner/Management on legal points, is wholly unsustainable in the eye of law. 2. Arguing the matter by adverting to the relevant facts, Mr. James, learned counsel appearing for the petitioner/company, would point out that the 2nd respondent/workman, while serving in the petitioner-company, voluntarily remained absent from 09.02.2004 on the ground of psychosomatic illness. On returning back to duty on 21.02.2004, he was asked by the Company to appear before the Medical Board so as to ascertain his fitness for duty. Since he declined to comply with the instruction, by Discharge order, dated 08.09.2004, the company discharged him from service with retrospective effect on the ground that he was unfit for work. Even before passing of the above Discharge Order, the workman raised an Industrial Dispute, alleging non-employment from 21.2.2004. After submission of a 'Failure Report' by the Conciliation Officer, the workman filed a Complaint under Section 33A of the Industrial Disputes Act. Though the said dispute was taken as I.D. No.465 of 2004 by the Labour Court, after two years, R2/workman filed an Application in I.A. No.73 of 2006 before the Labour Court/R1 to treat the Dispute as a 'Complaint' and, accepting the said Application, R-1 ordered conversion of the Dispute into a Complaint. 2-A. Aggrieved by the said conversion order, the petitioner- Management had filed a writ petition in W.P. No.22221 of 2006 before the High Court and the same was dismissed by an order dated 10.10.2006. As against the said order, a writ appeal was preferred by the Management in W.A. No.1324 of 2006 and the same ended in dismissal by order, dated 22.12.2006, passed by a Division Bench. The Special Leave Petition filed by the Management in SLP (Civil) No.1324 of 2006 also came to be dismissed at the admission stage on 25.01.2007. 2-B. Consequent thereto, the complaint was taken up by the 1st respondent/Labour Court as Complaint No.1 of 2007 and, by Award, dated 10.05.2007, the Labour Court allowed the complaint, holding that the order of termination, dated 08.09.2004, was passed in violation of the provisions of Section 33 of the ID Act. Complaining that the Labour Court passed the Award without giving adequate opportunity to the Management to let in evidence to substantiate their case, the petitioner filed a writ petition in W.P. No.23446 of 2007 and after hearing both sides, by orders dated 25.07.2008, this Court allowed the Writ Petition and set aside the Award passed by the Labour Court by holding that the complaint itself was not maintainable. Aggrieved by the said Order, the workman/R2 preferred a writ appeal in W.A. No.961 of 2008 and by orders, dated 19.12.2008, a Division Bench of this Court confirmed the order passed by the learned single Judge. The Special Leave Petition filed by the workman in SLP CC 20322 of 2009 also ended in dismissal by orders dated 16.12.2009. https://hcservices.ecourts.gov.in/hcservices/ 2-C. So highlighting the series of legal proceedings fought between the Management and the workman and the fate they met, learned counsel for the petitioner would argue that, when the finding and conclusion reached by this Court in W.P. No.23446 of 2007 to the effect that the Complaint in CP No.1 of 2007 itself is not maintainable, had been confirmed not only by the Division Bench by its Judgment, dated 19.12.2008, rendered in W.A. No.961 of 2008, and also by the Supreme Court by orders dated 16.12.2009 passed in SLP CC 20322 of 2009, the Award dated 10.05.2007 stands set aside. Further, only in terms of the direction given by the learned single Judge while setting aside the Award, vide orders passed in W.P. No.23446 of 2007, thereby, remitting the matter back to the Labour Court for a de novo enquiry as the parties would have to let in evidence on the merits of non-employment of the workman, the Complaint was taken up by R-1 Tribunal and, recording non-appearance of the workman for the proceedings, by Orders dated 22.02.2010, the Tribunal dismissed the complaint for default. It is vehemently contended that, in the absence of the complaint as it was dismissed for non-appearance of workman-Mr.Manoharan and the same was not restored to file, entertaining a petition under Section 33-C(2) of the ID Act for payment of back wages, that too at the SR Stage, is legally untenable and therefore, any order arising there-from cannot be legally enforceable. Learned counsel further states that, even according to the workman, the complaint, which was dismissed for default, came to be restored only on 08.06.2011. Therefore, the impugned order passed in the petition under Section 33-C (2) of the Act prior to restoration of the complaint should not be given effect to as it is non-est in law. So arguing, he prayed this Court to allow the writ petition. 3. No counter affidavit has been filed by R2/Mr.A.Manoharan. Arguing his case as Party-in-person, he would state that, by taking note of his absence from duty on the ground of psychosomatic illness from 09.02.2004 to 20.02.2004, without even holding any enquiry, the Management dismissed him from service by order dated 08.09.2004. The Conciliation Officer submitted his Failure Report on 24.08.2004. Challenging the Termination Order, dated 08.09.2004, he approached the first respondent/Labour Court by way of a Complaint under Section 33A of the ID Act which was taken on file as ID No.465 of 2004. He further states that though he actually filed a complaint before the Labour Court, the Office of the said Court wrongly mentioned it as a Dispute, therefore, by filing I.A. No.73 of 2006, he sought for conversion of the Dispute as that of a Complaint and, accepting the said application, the Labour Court directed to treat the petition which was earlier numbered as I.D. No.465 of 2004 as a complaint under Section 33A of the Act, whereupon, it was numbered as Complaint No.1 of 2007. He states that, when the said order was challenged by the petitioner/Management by way of W.P. No.22221 of 2006, this Court, by order dated 10.10.2006, dismissed the same categorically holding that the conversion of the dispute as a complaint under Section 33A does https://hcservices.ecourts.gov.in/hcservices/ not take away the right of the petitioner to contest the same under the provisions of the ID Act. The Writ Appeal filed by the Management in W.A. No.1324 of 2006 was dismissed by a Division Bench of this Court vide Judgment dated 22.12.2006, confirming the order passed by the learned single Judge. SLP (civil) No.662/07 filed by the Management against the aforesaid order passed by the Division Bench also came to be dismissed by the Supreme Court on 25.01.2007. Ultimately, the Labour Court dealt with Complaint No.1 of 2001 and, by Award dated 10.05.2007, directed the petitioner-Management to reinstate him with back wages. It is further stated that though the writ petition filed by the Management in W.P. No.23446 of 2007, challenging the Award dated 10.05.2007, on the ground that the Management was not given opportunity to let in evidence so as to substantiate their stand, was allowed by setting aside the Award, and the said Order of the learned single Judge was confirmed by the Division Bench in W.A. No.961 of 2008 vide Judgment dated 19.12.2008 and by the Apex Court in SLP CC 20322 of 2009 vide order dated 16.12.2009, in parallel, there is also a direction in the series of the said orders that, while setting aside the Award, the matter was remitted back to the first respondent-Labour Court for a de novo enquiry as the parties will have to let in evidence on the merits of the non-employment of the 2nd respondent. The Labour Court was further directed to allow both sides to adduce necessary evidence in support of their stand. According to Mr.Manoharan, from the above proceedings, in particular the writ proceedings in W.P. No.23446 of 2007, it is clear that the Award was set aside only because of the lapse in examining the Management witnesses and that the matter was remitted back only to consider the evidence on the merits of his non- employment. Therefore, the vindictive approach on the part of the petitioner-Management before this Court as if the workman, who actually suffered much in maintaining himself and the dependant family members and spent his valuable time and energy in pursuing legal battles against the mighty management, has no case or cause to receive the backwages, legally due to him, should be viewed with all seriousness. Insofar as the petition in SR No.5316 of 2010 filed under Section 33 C(2) of the ID Act seeking wages under Section 17B of the Act is concerned, the workman/party-in-person submits that, of course, when the said petition was submitted before the office of the learned Presiding Officer/R1 Court, it was returned on 05.07.2010, seeking clarification as to the order based on which the petition has been filed and what is the total amount claimed with classification of heads in the prescribed form. The workman re-presented the petition on 07.07.2010 stating that the petition filed by him is very much maintainable since the Labour Court can conduct an incidental enquiry under Section 33-C (2) of the Act when it finds that the Termination Order is unlawful, and he also referred to therein a Judgment of the Apex Court reported in AIR 2002 SC 643 (Jaipur Z.S.B.V. Bank Ltd. vs. https://hcservices.ecourts.gov.in/hcservices/ Shri Ram Gopal Sharma). According to the workman/R2, the Labour Court, only after being satisfied with the explanation offered and in the light of the decision of the Apex Court in Ram Gopal Sharma's case (cited supra), allowed the petition under Section 33-C (2) of the Act and therefore, there is no scope for interference at all. So pleading, he prayed for dismissal of the Writ Petition. 4. Carefully examined the case in the light of the rival submissions made on either side and the materials available on record. 5. The one and only issue that needs to be answered here is, whether the first respondent-Labour Court is correct in taking up and deciding the petition filed under Section 33-C (2) of the I.D. Act, that too at S.R. Stage, independent of any order or award pending enforcement, since the Complaint itself was dismissed for default and not subsequently restored to file at the time of deciding the petition in question. 6. It is seen that, after the termination of the workman by virtue of the Termination Order passed by the petitioner-Management on 08.09.2004 and consequent to the Failure Report submitted by the Conciliation Officer, a Dispute was raised before the first respondent as I.D. No.465 of 2004 by the workman, who later on, filed I.A. No.73 of 2006, seeking conversion of the Industrial Dispute as that of a Complaint and, by orders dated 23.06.2006, the said I.A. was ordered. As pointed out already, the said order challenged by the Management before this Court by way of Writ Petition and Writ Appeal and before the Supreme Court by way of SLP came to be dismissed and ultimately, the complaint was decided in favour of the workman by order passed by the first respondent on 10.05.2007, directing reinstatement of the petitioner in service with back wages, continuity of service and all other attendant benefits. Though the said Award, when challenged by the Management before this Court by way of Writ Petition No.23446 of 2007 on the ground that no opportunity was given to them to let in evidence so as to substantiate their case against the workman, came to be set aside, in a way, a positive direction was given allowing the parties to let in evidence on the merit of the non-employment of the workman, while remanding the matter back to the first respondent. The said order, as aforementioned, was confirmed not only by the Division Bench of this Court but also by the Apex Court when taken further by the Management by way of Writ Appeal and SLP. Subsequently, on remand, when the first respondent had taken up the Complaint, due to non-appearance of the workman, it was dismissed for default on 22.02.2010. Therefore, as on 30.06.2010, when the petition under Section 33-C (2) was filed by the workman before the first respondent, there was no Award or Order in favour of the workman. Now, it is relevant to extract below Section 33C (1) and (2) of the Industrial Disputes Act, https://hcservices.ecourts.gov.in/hcservices/ “ 33C. Recovery of money due from an employer.- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.” 7. A careful reading of the above provision in particular Sub- section (2) makes it clear that, in a dispute relating to workman's right to receive the benefit, before proceeding to compute the benefit in terms of money, the Labour Court has to deal inevitably with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but, if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. 8. Having regard to the logic and synthesis of the above provision, now, the claim of the workman based on the Judgment of the Apex Court in Ram Gopal Sharma (cited Supra) and another case law referred to by him in Central Bank of India v. Rajagopalan (AIR 1964 SC 743) to the effect that the dispute much less monetary dispute https://hcservices.ecourts.gov.in/hcservices/ between the management and the employee can be considered 'incidentally' by the Labour Court while exercising powers under Section 33C(2), has to be appreciated. In regard to the same, it is pertinent to quote below, what is observed by the Apex Court in Municipal Corporation of Delhi vs. Ganesh Razek & Anr. (1995) 1 SCC 235), wherein Rajagopalan's case was taken into consideration:- "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 of 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 33- C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compare the benefit so adjudicated on that basis in exercise of its power under Section 33- C(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 required interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. 13. In these matters, the claim of the respondent- workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petition filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents https://hcservices.ecourts.gov.in/hcservices/ as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents." 9. In the decision reported in 2005 (8) SCC 58 State of U.P. & another v. Brijpal Singh, the supreme court made the issue further clear by laying down the following ratio:- “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. The benefit sought to be enforced under Section 33- C(2) of the Act 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 Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi- judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the https://hcservices.ecourts.gov.in/hcservices/ Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages" 10. From a close and careful reading of the above decisions as to the scope and ambit of Section 33C (2) of the Act, this Court could draw a conclusion that Section 33C(2) of the Act is of course wider than Section 33C (1) of the Act and, in exercising its powers under the said provision, the Labour Court only acts as “Execution Court”. Further, in favour of the party approaching the Labour Court under Section 33-C(2), there must be a pre-existing right in respect of the claim and such pre-existing right should stem from an award or order. Any deviation in this regard would amount to decision on disputed claims, which should not be resorted to, for, the “incidental issue” is only regarding computation of monetary dues or any clarification in that regard. In other words, the provisions of Section 33-C (2) of the Act can be invoked only where the workman has a pre-existing right to claim the benefit. It follows that if the entitlement has not been adjudicated and there is dispute on the same, such claim can not be allowed under Section 33-C (2) of the Act. Therefore, the Labour Court acting as an Execution Authority under Section 33-C (2) of the Act can only compute the benefit and, if necessity arises, can also interpret the award or any order by virtue of which the claim is made. 11. Contrasting the case on hand in the light of the legal position as discussed above, it is seen that the Labour Court proceeded to consider the petition under Section 33-C(2), of course, on re-presentment of the papers by the workman and, at that stage, admittedly, there was no Award or Order pending execution against the Management. Further, the