CIVIL WRIT PETITION NO.14683 OF 1991 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: October 5, 2011 Mohan Nagpal .....Petitioner VERSUS The Editor, Navbharat Times, New Delhi and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Whether Reporters of local papers may be allowed to see the judgement? 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ram Lal Gupta, Advocate, for the petitioner. Mr. Harsh Aggarwal, Advocate, for the respondents. **** RANJIT SINGH, J. The issue regarding scope of Section 33(c)(2) of the Industrial Disputes Act, 1947 (for short, “the Act”) arises for consideration in this case. The petitioner had moved an application under Section 33(c)(2) of the Act before Labour Court, Bhatinda, claiming recovery of arrears of wages as per Palekar Wage Board Award, bonus, employees provident fund, family pension, interim relief etc. The Labour Court has dismissed the application, being not maintainable by holding that right to benefit sought to be computed under the Section must be an existing one. The petitioner accordingly has impugned this finding through the present writ petition. Counsel CIVIL WRIT PETITION NO.14683 OF 1991 :{ 2 }: for the parties have accordingly debated about the scope of Section 33(c)(2) of the Act. The petitioner was employed as Correspondent by Navbharat Times (respondent No.1) on 8.5.1975 and had worked as such. The petitioner claims that respondent No.1 did not pay the arrears of wages to the petitioner despite number of representations. The petitioner accordingly contends that he was forced to approach the Labour Court through application under Section 33(c)(2) of the Act for recovery of arrears of wages. The petitioner has placed on record his appointment letter dated 8.5.1976. As per the appointment letter, the petitioner was to start sending news on probation. He was not to get any return and his appointment was to be considered on the basis of the quality of the news reports. As per the petitioner, his services were regularized on 1.3.1977. The petitioner was to get remunerations under the rules, which was `1/- per column inch as was provided in letter dated 1.3.1977. The petitioner has also made reference to the letters initiated by respondent No.1 to M/s Nortan Dass and Brothers, News Agents at Bhatinda, apprising the agency about the appointment of the petitioner as a Correspondent and that he be supplied complementary copy of Nav Bharat Times free of costs. These documents and a communication by respondent No.1 to the effect that the petitioner was drawing minimum wages in receipt of retainers prescribed under the Wage Board recommendations for working Journalists were placed on record of the Labour Court. On this basis, the petitioner claims to have been appointed as whole time Correspondent and described himself as a working Journalist as per CIVIL WRIT PETITION NO.14683 OF 1991 :{ 3 }: the definition given under Section 2(f) of working Journalists and other News Paper Employees (Condition of Service) and Miscellaneous Provision Act, 1955. As per the petitioner, his principal avocation was that of a Journalist. He accordingly claims that he was entitled to be paid as per 3rd Wage Board Award by Justice Palekar, which is popularly known as Palekar Award. It is averred that 3rd Wage Board was constituted under Section 13 of the Working Journalist Act and respondent No.1 would fall in 1-B Class as prescribed under Palekar Award. Reference is made to the definition of part time Correspondent, which means that a Correspondent, who is on the establishment of a newspaper and whose principal avocation is that of journalism. As per Para 19 of the award, part time Correspondent is to be paid not less than 1/3rd of the basic wage (basic pay + D.A.) applicable to full time correspondent at similar level. Payment should be made on column basis and rate is to be settled by mutual negotiation. Fourth Wage Board was also constituted and is known as Bachawat Award. This award had also adopted the definition given under the Bachawat Award but has increased the salary to be paid by the newspaper establishment to their Correspondents. On this basis, the petitioner claims that he was entitled to the wages under the award as admittedly he was working as a Correspondent. The petitioner, thus, has impugned the order passed by the Labour Court, which has declined to grant relief to the petitioner on the ground that he did not have any existing right, which could be computed. The petitioner accordingly had filed an application before the Labour Court with the following averments:- CIVIL WRIT PETITION NO.14683 OF 1991 :{ 4 }: “The respondent appointed the applicant as Correspondent `Working Journalist' at Bhatinda & the latter used to send news report & other material for publication with good sense of responsibility for past several years but when he raised `demand' for the payment of his wages as per Palekar Wage Board Award for Working Journalist, Bonus, Employees Provident Fund & Family Pension, Interim Relief & other benefits permissible under rules, the respondent turned inimical instead of conceding in utter violation of Labour Laws & adopted unfair Labour Practices; Further, with the motive to reduce his earnings to zero the respondent did not give space coverage even to a single news report provided by him & it had not issued `bearing Press Telegram Authority' card in his name so that he might not be able to produce news reporting on record and also changed his service conditions during the pendency of proceedings. According to him, he used to get Rs.250/- to Rs.350/- P.M. by way of space covering before his victimization started at the hands of the respondent.” Respondents had filed reply and denied the fact that the petitioner was their Correspondent `working Journalist` and rather would urge that the petitioner was never the employee of the respondents. Subsequently, the respondents filed an amended reply to plead that according to own showing of the petitioner, he was merely a stringer/Liner while the demands, which he had raised, were CIVIL WRIT PETITION NO.14683 OF 1991 :{ 5 }: applicable only to such working Journalists who were employees of the respondents. As per the respondents, Stringer/Liner is never the employee and, thus, the petitioner has no right to demand benefit under the reference as he was entitled to be paid on the basis of space coverage i.e. `1/- column per inch of such news which used to send and was accepted by the Editor and the same was published in the newspaper. As per the respondents, such an application was not maintainable as the petitioner did not have any existing right in his favour. The Labour Court framed the following issues:- “I. Whether there is no relationship of employer & employees between the parties? ii. To what amount, if any, is the workman entitled? iii. Relief.” The petitioner simply tendered his affidavit and the documents, which were the communications addressed by him. The application as well as the affidavit were silent about the amount, which the petitioner wanted to claim. The petitioner subsequently filed an application and prayed that at the end in the last para of the affidavit, he had claimed demand of `1.50 lacs but it got omitted due to over-sight and hence, it be read accordingly. Later, the petitioner raised his claim to `2,44,972/- by moving another application. The respondents examined Sushil Joshi (MW1) in rebuttal and also relied upon copy of some plaint and thereafter closed their evidence. It is in this context required to be seen if the application under Section 33(c)(2) of the Act would be maintainable or not. Learned counsel for the petitioner has very vehemently CIVIL WRIT PETITION NO.14683 OF 1991 :{ 6 }: canvassed his view point to urge that the application filed by the petitioner was clearly maintainable and the Labour Court was misconceived in holding that the application was not maintainable under Section 33(c)(2) of the Act. As per the counsel, the claims, which are to be computed, will fall within the jurisdiction of a Labour Court under Section 33(c)(2) of the Act. In this regard, the counsel has referred to large number of precedents, which can be noticed. Reference is made to Chief Mining Engineer , M/s East India Coal Co., Ltd., Bararee Colliery Dhanbad Vs. Rameshwar and others, AIR 1968 Supreme Court 218. While considering the scope of Section 33(c)(2) of the Act, the Hon'ble Supreme Court has observed that contention as to jurisdiction of the Labour Court depends on the true construction of Section 33(c)(2) of the Act as it stood in 1962, when application in the said case was filed, which was before the Amendment Act 36 of 1964. On the basis of unamended Act the Supreme Court has recorded that the following proposition on the question as to the scope of Section 33(c)(2) of the Act are deductible from the different decisions that were noticed:- “(1) The legislative history indicates that the legislature after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing individual rights and therefore inserted Section 33A in 1950 and Section 33-C in 1956. These two Sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to Section 10(1) and without having to CIVIL WRIT PETITION NO.14683 OF 1991 :{ 7 }: depend on their union to espouse their case. (2) In view of this history two considerations are relevant while construing the scope of Section 33-C. Where industrial disputes arise between workmen acting collectively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance under Section 10(1). But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights sought to be implemented by individual workman. Therefore though in determining the scope of Section 33-C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under Section 10 (1), cannot be brought under Section 33C. (3) Section 33-C which is in terms similar to those in Section 20 of the Industrial Disputes (Appellate Tribunal) Act 1950 is a provision in the nature of an executing provision; (4) Section 33-C (1) applies to cases where money is due to a workman under an award or settlement or under Chapter VA of the Act already calculated and ascertained and therefore there is no dispute about its computation. But sub-section (2) applies both to non-monetary as well as monetary benefits. In the case of monetary benefit it applies where such benefit though due is not calculated and there is a dispute about its calculation; (5) Section 33-C(2) takes within its purview cases of CIVIL WRIT PETITION NO.14683 OF 1991 :{ 8 }: workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers. It is open to the Labour Court to interpret the award or settlement on which the workmen's right rests. (6) The fact that the words of limitation used in Section 20 (2) of the Industrial Disputes (Appellate Tribunal) Act 1950 are omitted in Section 33-C(2) shows that the scope of Section 33-C(2) is wider than that of Section 33-C(1). Therefore, whereas sub-section (1) is confined to claims arising under an award or settlement or Chapter V-A, claims which can be entertained under sub-Section (2) are not so confined to those under an award, settlement or Chapter VA. (7) Though the court did not indicate which cases other than those under sub-Section (1) would fall under sub- section (2), it pointed out illustrative cases which would not fall under sub-Section (2), viz., cases which would appropriately be adjudicated under Section 10(1) or claims which have already been the subject-matter of settlement to which Section 18 and 19 would apply. (8) Since proceedings under Section 33-C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court, the Labour Court like the CIVIL WRIT PETITION NO.14683 OF 1991 :{ 9 }: executing court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33-C (2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction.” While deducing these principles, the Hon'ble Supreme Court in Chief Mining Engineer 's case (supra) took note of the three cases i.e. Punjab National Bank Ltd. Vs. Kharbanda, 1962 Supp (2) SCR 977, Central Bank of India Vs. Rajagopalan, 1964-3 SCR 140: AIR 1964 SC 743 and Bombay Gas Co. Ltd. Vs. Gopal Bhiva, 1964-3 SCR 709. The Court in Chief Mining Engineer' s case (supra) has otherwise held as under:- “It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. Since the scope of sub-sec. 2 is wider than that of sub sec. 1 and the sub-section is not confined to cases arising under an award, settlement or under the, provisions of Chapter VA. there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being anything contrary to such statute or s. 33C(2), cannot fall within sub-section 2......” The counsel has then referred to a decision of this Court CIVIL WRIT PETITION NO.14683 OF 1991 :{ 10 }: in Harnam Chand and others Vs. the Management, Punjab University Printing Press, Chandigarh and others, 1990 (1) Recent Services Judgements 663, where the Court has expressed that the Labour Court did not have jurisdiction under Section 33(c)(2) of the Act to determine the equation of the status of a claimant with those of junior grade compositions and such disputes would squarely be covered by Section 10 of the Act and can be determined by the Industrial Tribunal. Matter of equation of the post being in dispute was held to be outside the purview of Section 33(c)(2) of the Act. Reference is then made to Market Committee Vs. Presiding Officer, Labour Court and another, 1981 (2) ILR Punjab and Haryana 313. In this case, the Court has viewed that if money or benefit is claimed by a workman on the basis that the right already exists and the existence of a right is denied, it is competent for the Labour Court in the proceedings under Section 33(c)(2) of the Act to decide whether the right does or does not exist. In this regard only reference is made to the case of Central Bank of India Ltd. Vs. The Central Bank of India Ltd.'s case, (supra) where the Supreme Court has viewed that Section 33(c)(2) of the Act applies even if right to benefit is disputed by the employer and the Labour Court has jurisdiction to determine whether workman has a right to receive benefits. For this purpose, the Labour Court can interpret award or settlement on which the workman's right is based. The Court in this case has further observed that in determining the scope of under Section 33(c)(2) of the Act, care must be taken not to exclude cases which legitimately falls within its CIVIL WRIT PETITION NO.14683 OF 1991 :{ 11 }: purview but it must also be borne in mind that the cases which fall under Section 10(1) of the Act can not be brought within the scope of under Section 33(c)(2) of the Act. Though the Hon'ble Supreme Court repelled the argument that Section 33(c)(2) of the Act may not entitle the Labour Court to interpret the award or settlement as interpretation of the award is expressly provided for by Section 36A but gave certain examples in detail to specify the sweep of Section 33(c)(2) of the Act. In this regard, the following observations may need notice:- “Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his` existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under s. 33C (2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under s. 33C (2),it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests. We have already noticed that in enacting S. 33C the CIVIL WRIT PETITION NO.14683 OF 1991 :{ 12 }: legislature has deliberately omitted some words which occurred in S. 20 (2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable that similar words of limitation have been used in s. 33C (1) because S. 33 C (1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter VA. It is thus clear that claims made under s. 33C (1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in s. 33C (2) and to that extent, the scope of S. 33C (2) is undoubtedly wider than that of S. 33C (1). It is true that even in respect of the larger class. of cases which fail under S. 33C (2), after the determination is made by the Labour Court the execution goes back again to S. 33C (1). That is why S. 33C (2) expressly provides that the amount so determined may be recovered as provided for in sub-section (1). It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under S. 33C (2). There is no doubt that the three categories of claims mentioned in S. 33C (1) fall under S. 33C (2) and in that sense, S. 33C (2) can itself be deemed to be a kind of. Execution proceeding; but it is possible that Claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under S. 33C (2) and that may CIVIL WRIT PETITION NO.14683 OF 1991 :{ 13 }: illustrate its wider scope. We would, however, like to indicate some of the claims which would not fall under S. 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C (2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and. therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under S. 33C (2). If a settlement has been, duly reached between the employer and his employees and it fails under S. 18 (2) or (3) of the Act and is governed by S.(19) 2 it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative no claim can be made under S. 33C(2) inconsistent with the said settlement. If the settlement is intended to be terminated, proper steps may have to be taken in that behalf and a dispute that may be arise CIVIL WRIT PETITION NO.14683 OF 1991 :{ 14 }: thereafter may to be dealt with according. to the, other procedure prescribed by the Act. Thus, our conclusion is that the scope of s. 33C (2)is wider than s. 33C (1) and cannot be wholly assimilated with it, though for obvious reasons, we do not propose to decide or indicate what additional cases would fall under S. 33C (2) which may not fall under S. 33C (1). In this connection, we may incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd (1962) 1 Lab LJ 234 (AIR 1963 SC 487) that S. 33C is a provision in the nature of execution should not be interpreted to mean that the scope of S. 33C (2) is exactly the same as S. 33C (1) (at p. 238).(of Lab. LJ):(at pp.489-490 of AIR).” In Business Manager, Andhra Printers Ltd. Vs. Industrial Tribunal-cum-Labour Court & Another, 1993 ILLJ 562, Andhra High Court has viewed that where two remedies are available under the special enactments dealing with labour welfare, it is perfectly open to the employees to choose one of the remedies under either of the enactment. This observation was made in the light of objection that Section 17 of the Working Journalists and other Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, 1955 also provides a remedy for payment of claims. Reference is then made to United News India Vs. The Presiding Officer and another, 2008 (1) SCT 514, where this Court has held that even part time working journalists fall within the definition of workman and the respondent-workman, who was working as part time journalist, was entitled to full back wages. In CIVIL WRIT PETITION NO.14683 OF 1991 :{ 15 }: Cement Corp. of India Vs. Presiding Officer, Central Govt. Industrial Tribunal Labour Court, 2002(1) SCT 355, this Court has held that if a workman's right to receive benefit is disputed that may be determined by the Labour Court before proceeding to compute the benefit under Section 33-C(2). In this case, the petitioner corporation was denying the relationship of the workman. The court has further observed in this case that the labour Court has a jurisdiction to interfere with the settlement and award while proceeding with the application under Section 33-C(2). In Bhakra Beas Management Board, Chandigarh Vs. Presiding Officer, Central Govt. Labour Court, Chandigarh and others, 2004(3) RSJ 777, Division Bench of this court has viewed that computation of wages on the basis of rule, order or instructions does not amount to adjudication, but fall within the scope of existing right. Finally, the counsel has referred to Prithvi Singh Vs. Presiding Officer, Central Govt., Ind. Tribunal-cum-Labour Court, Chd., 1995(2) PLR 516 to point out that computation of benefit in terms of the money and determination of existence of a claim and holding of an enquiry and incidental enquiry for such determination fall within the scope of Section 33-C(2). It is also observed that jurisdiction is not barred only because the claim is disputed by the Management even if it was a case of lay-off or closure. The counsel for the respondents, however, has seriously