IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision : January 23rd , 2008 WP(C) No.8130/2007 # Ashok Kumar Rana ….… PETITIONER ! Through: Ms.Nikita Sharma and Mr.Ajit Kumar, Advocates. Versus $ Delhi Public School & Another ......... RESPONDENTS ^ Through : Nemo.. CORAM :- * HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may YES be allowed to see the judgment? 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported NO in the Digest? ANIL KUMAR, J. (Oral) * 1. The petitioner has impugned the order dated 13th September, 2007 of the Labour Court in LCA No.3/2007 dismissing the petition filed by the petitioner under Section 33(C)(2) of the Industrial Disputes Act, 1947 being not maintainable. 2. The petitioner claimed that he was employed as a Computer Assistant with the Management since 1st July, 1984 on the initial salary of Rs.1.180/- per month and in 1999, the Management had implemented the Fifth Pay Commission with effect from 1st January, 1996 with some modifications and accordingly the pay of the cadre of WP(C) No.8130/2007 Page 1 of 5 Administrative Staff was fixed in the basic pay of Rs.5,000/-, however, the Management with ulterior motive fixed the pay of the workman in the basic pay of Rs.4,200/- instead of Rs.5,000/- and the arrears have been paid according to the basic pay of Rs.4,200/- and not according to the pay of Rs.5,000/-. 3. The petitioner, therefore, filed a petition seeking striking down the decrease in salary from Rs.5,000/- to Rs.4,200/- and claimed his full back wages with continuous seniority and for revision of pay scale and payment of arrears with interest at 18% per annum. 4. The petition was contested by the respondents contending that the petition is not maintainable as there is no pre-existing right already adjudicated upon or provided under any settlement or award or under any statute and consequently the petition claiming fixation of the salary at Rs.5,000/- and payment of arrears on the basis of basic salary of Rs.5,000/- and reinstatement is not maintainable. 5. The Management/respondent also denied the claim to pay the amount on account of delay and laches and on account of the fact that a complaint has been filed against the petitioner for accepting Rs.1,50,000/- as bribe for securing the admission. It is alleged that the petitioner was arrested in the case of accepting bribe and remained in police custody till 22nd August, 2005. According to the respondents, the petitioner is in the category of Administrative Staff WP(C) No.8130/2007 Page 2 of 5 and, therefore, he is entitled for a pay scale of Rs.4,200/- only. 6. It is no more res integra that the question of arrears of back wages or the pay scale can be decided only in a proceeding pursuant to a reference under Section 10 of the Industrial Disputes Act, 1947 and under Section 33(C)(2) of the Industrial Disputes Act, 1947 the Industrial Tribunal cannot arrogate the function to itself. The Labour Court also does not have jurisdiction to first decide the workman's entitlement and thereafter to proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33(C)(2) of the Industrial Disputes Act, 1947. 7. This also cannot be disputed that to invoke the jurisdiction of the Labour Court under Section 33(C)(2), first there must be entitlement of the workman to receive from the employer any money or benefit which is capable of being computed and that question must have arisen as to the amount of money due or as to the rate or criteria at which such benefit should be computed. 8. The Labour Court has relied on Jeet Lal Sharma Vs Presiding Officer, Labour Court IVth and another [2000 (85) FLR 268]; MCD Vs. Ganesh Razak and Another, 1995 – 1 L.L.N.S.C. 402; State of U.P. Vs. Brijpal Singh, 2005 VIII AD (SC) 250; Municipal Corporation of Delhi vs. Raghunath Rath & others [2003 (99) FLR 144] Delhi; Jagannath Bhagwandas Shrivastav and Others Vs. Harish Thadani WP(C) No.8130/2007 Page 3 of 5 and Another, 1993 L 48 LC.2508; Bombay and Basant Lal Vs. Management of M/s.A.F. Ferguson & Co. & Anr., 2002 LLR 612 (Delhi) and has come to the conclusion that computation of the amount claimed by the claimant, i.e., whether the arrears has to be paid at Rs.5,000/- or Rs.4,200/-has not been settled by an Industrial Tribunal and this fact cannot be adjudicated under Section 33(C)(2). The finding of the Labour Court that without adjudicating the entitlement of the petitioner to get the arrears at the basic salary of Rs.5,000/-, the arrears claimed by the petitioner cannot be claimed under Section 33(C)(2) of the Industrial Disputes Act, 1947 does not suffer from any apparent error. The Labour court has also held that claim of the petitioner for striking down the decrease in salary and status and reinstatement of workman in his post and continuous seniority and full back wages also cannot be determined in exercise of powers under Section 33(C)(2) of the Act. The petition of the petitioner was not entertained by the Labour Court on account of delay and latches as the report of the Fifth Pay Commission was implemented with effect from 1st January, 1996 in the year 1999 whereas the petition under Section 33(C)(2) has been filed on 3rd February, 2002 without a plausible explanation. Learned counsel for the petitioner has relied on 18(1980) DLT 460, D.P. Maheshwari Vs. Delhi Administration & Others holding that non-reference to the evidence of an important witness while dismissing the point in issue WP(C) No.8130/2007 Page 4 of 5 would clearly vitiate the order of the Labour Court. Apparently, the judgment relied on by the petitioner is clearly distinguishable. In the case relied on by the petitioner, the Court was concerned with an award holding that the appellant was a workman pursuant to a reference made under Section 10(1)(C) of the Industrial Disputes Act, 1947 in contra-distinction to the petitioner's petition under Section 33(C)(2) of the Industrial Disputes Act, 1947. Learned counsel for the petitioner is unable to show any precedent laying down that the entitlement of the petitioner whether his basic salary should be Rs.4,200/- or Rs.5,000/- and whether he is liable to be reinstated and paid the arrears of the salary, can be adjudicated without reference under Section 10(1)(C) and in a petition under Section 33(C)(2) of the Industrial Disputes Act, 1947. 9. In the circumstances, there is no manifest error or perversity or apparent error or denial of principle of natural justice so as to entail interference by this Court in exercise of its powers under Article 226 of the Constitution of India against the order dated 13th September, 2007 passed by the Labour Court No.XII in LCA No.3/2007. 10. The writ petition is without any merit and is, therefore, dismissed. Parties are however, left to bear their own costs. January 23, 2008. ANIL KUMAR, J. 'Dev' WP(C) No.8130/2007 Page 5 of 5