^'' ,'t',^B i^ ^-.M>) ^ ^iO' (-^> ;'y H8GH COURT OF CHHATTSSGARH : BiLASPUR WntPetition No,806 of 2004 -^^ PETJTIONER RESPONDENTS M/s Radius Corporation Limfted, a company jn«5rporat@d under the Indian Companies Act, having its registered ofRce at 3, Late Kunj Charani Road, Thakurdwara, Mumbai (MS), through its authorized signatory Mr. Pramod Agrawat. aged about 40 years, son of Shri T.R, Agrawai, resident of Vardhman Nagar, Rajnandgaon (CG). Versus 1. Manish Shanna, S/o Mohanlal Sharma, Computer Operator, Ambedkar Ward No.11. Rajnandgaon, Dist. Rajnandgaon. 2. Labour Court, Rajnandgaon, through the Presiding OfRcer, Old Tahsit Office, Rajnandgaon. 3. Smt. Shashi Soni, Preslding Officer, Labour Court, Rajnandgaon. 4. State of Chhattisgarh, through the Secretery, Department of Labour. DKS Bhawan, Raipur. QA/rit petition under Article 226/227 of the Constitution of Ifidia) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Prashant Jaiswal, Sr. Advocate with Shri Shaiiendra Sharma, Advocate for the petitiwier. Shri Rajeev Shrivastava, counsel for ttie respondent No.1, Ms Sunita Jain, Panel Lawyer for the State. ORAL ORDER (Passed on this 28ttldayofApri!, 2009} 1. Challenge in this petition is to the order dated 28-10-2003 (Annexure - P/1) passed by the Labour Court, Rajnandgaon, in case No.21/10 Act Claim/98 Sn an application filed under Section 33-C.(2) ofthe industrial Disputes Act, 1947 {ibrshortutheAct, 1947"). 2. The facts, in nutshell, relevant for disposal of the case, are that the respondent No.1 working with the petitioner company fsled an application under Section 33-C.(2) of the Act, 1947 before the Labour 6. "A" to tbe' Court, Rajnandgaon, seeking reliefe as per schedute application. The petitioner company filed ite written statement (Annexure - P/3) denying the entttlement of the respondent No,1 for working on Sundays and other hotidays. The petitioner company stated that the respondent No.1 has never worked on Sundays and other holidays. Further the provisions under Section 16 of the Payment of Bonus Act, 1965 are not applicable to the respondent No.1, as the respondent No.1 has not worked during fte period for which he was claiming bonus. The Labour Court, white exercising its jurisdiction under Secfion 33-C.(2) of the Act, 1947, decided the dispute and came to the conclusion that the petitloner has failed to establish that the respondent No.1 was not entitlwl to bonus. Accoidingly, it was ordered for payment of bonus of 8.33%. On other Issues with re^ard to over time, for working on Sundays and otier hdidays is concerned, the same was rejected. Being aggrie^sd by the said order, the petitioner company had fiied this petition. Shri Jaiswal, iearned senior counsel appearing on betelf of the petjtioner, would submit that once the dispute is involved tfie Labour Court cannot exercise its jurisdiction under Section 33-C.(2) of the Act, 1947. Per contra, Shri Shrivastava, learned counsel appearing on behalf of the respondent No.1, supporting the impugned order would submit that there was no dispute with regard to payment of bonus and the same was atso capable of being computed, as the bonus amount is fixed and working ofthe respondent No.1 is not in dispute. 1 have heard learned counsel appearing for the parties, peru^d the pieadings and the documents appended thereto. According to the learned counsei for the petitioner the question asto whettier the respondent No.1 is entitied to bonus or not requires consideration and the said dispute has to be settled first before grating relief under the provisions of Section 33-C.(2) ofthe Act, 1947. For benefrt, Section 33-C.(2) and ^) of the I.D. Act raads as ynder: "33.C. Recoveryof money due from an employer. (1)xxx xxx xxx ^•^•y (2) Where any workman is entitted to reeeive fr<»nthe employer any money or any benefit which is capabte 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 b©nefit shoutd be computed, then the question may, subject to any mles that may be made under this Act. be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months]: (3) xxx xxx xxx (4) xxx xxx xxx (5) Where workmen employed uncter ths same employer are entitled to receive from him any money or any benefrt capable of being computed in tenns of money, then, subject to such mies as may be made In this behalf, a single appiication for ttie recovery of the amount due may be made on behalf of or in respect of any number of such workmen." 8. The Supreme Court, in Municipal Corporation of DeiM v. Gartesh Razak and another1 observed as under: -^ "12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions cieariy jndicates tiiai where th@ very basis of the daim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or rec^nition thereof by the employer, the dispute relating to entitlemwit is not inddente! to the benefit claimed and is, therefore, cieariy outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has ne jurisdictjon to first decide the workmen's entitlement and then proceed to compute the b^iefit s© adjudicated on that basis in exercise of its p@wer under Section 33-C(2) of the Act It is only when the entitlement has been earlier adjudicsrted or recognised by the employer and thereafter for the purpose of imptementation or enforcement ttiereof some ambiguity requir^ interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) IJke that of the Executing Court's power to interpret the decree for the purpose of its execution." 9. ln U.P. State Road Transport Corporatson v. Birendra Bhandari2, the Supreme Court, obsen/ed as under: "7. The benefit which can be enforceel under Section 33-C(2) is a pre-existing benefit or one flowing from a pre-existing right. ! (1995)13cc 235 2 (2006) 10 SCC 211 8. In Stete Bank oflndia v. Ram Chamlra Dyfoeythis Court held as under: (SCC pp. 77-78, paras 7-8) "7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the Sermination of a workman Is Justified or not but to grant appropriate relief, it would consist of examination of the qirestion whether the reinstatementshould be with full or partial backwages or none. Such a question is one of fact depending upon &ie evidenee to be produced before the Tribuna!. If aft®' the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in deterrnining whether or not reinstatemwt shouki be wth fuil back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be detenmined by the Tribunal and in th®particuiar case, a specific question has been referred to the Tribunal as to the nature of relief to b@ granted to the workmen. 8. The principles enunciated m the decisfons referred by either sid©can be summed up as follows: Whenever a worteman 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 entitied to receive from his employer and is denied of such benefrt can approach Labour Court under Section 33-C(2) of the Act. The benefrt 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 befrween a pre-existing right or benefrt on one hand and the right or benefit, whteh is considered just and fair on ihe other hand is vital. The former falls within juriscfiction 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 b©nefH;has accrued to the workman as the spedfic question ofthe reliefgranted is confined wlyto 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 bsack wage® all reievant circumstences which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wag®&couid be ^ ^s^ &N%^ ^^. T .^ Gowri 10. 11, 12. -^ decided is only in a proceeding to whom a reference under Section 10 ofthe Act is made. To state that merely upon reinstatemen^ a workman would be wititled, under the terms cS award. to all his arrears of pay and allowances would be incorrect because sever^ factore 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 vlew that the High Court ought not to have presumed that the award of ttie Labour Court for grant of back wages is impded in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of backwages." The ratio as enunciated in UPSRTC (supra) has been reforred with approval in Vijay Kumar & Others v. Whiri Pool of India Limfted & Others3. Applying the well settled principtes of law as above stated to the facts of the present case it is held that the Labour Court has exceeded its jurisdiction by first determining the dispute raised and thereafter granting relief. Thus, the impugned order dated 28-10-2003 (Annexure - P/1) is set aside. In the result, the petitioner is allowed. However, libeity is reserved to the respondent No.1 to take recourse to otier altemath/e forum seeking redressal of his grievance, if any and if so advised. No order asto costs. _ Sd/- Satish K. Agnihotri Judge (2008)18cci19