SCA/9562/2003 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9562 of 2003 with SCA NOS.16670 TO 16672 OF 2003 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== BHAVNAGAR MUNICIPAL CORPORATION - Petitioner(s) Versus VANDANABEN NAVALBHAI VYAS & 3 - Respondent(s) ============================================================== Appearance : MR RM CHHAYA for Petitioner(s) : 1, MR DHARMESH V SHAH for Respondent(s) : 1 - 4. ================================================================== CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 17/02/2006 ORAL JUDGMENT 1. Heard the learned Advocate, Mr.R.M.Chhaya, appearing on behalf of the petitioner - Corporation and learned Advocate, Mr.D.V.Shah, appearing on SCA/9562/2003 2/30 JUDGMENT behalf of respondents - workmen. 2. In this group of petitions, the petitioner – Bhavnagar Municipal Corporation has challenged the common order passed by Labour Court, Bhavnagar in Recovery Application No.160/2001 to 163/2001 dated 24th October,2002, whereby, the Labour Court, Bhavnagar has granted the benefit of Nursing Allowance, Uniform Allowance and Washing Allowance in favour of respondents of Rs. 38,850/- to each respondent. Initially, rule has been issued by this Court on 16th December,2003 and meanwhile, interim relief granted against the implementation of order passed by Labour Court, Bhavnagar. 3. Learned Advocate, Mr.R.M.Chhaya, appearing for the petitioner – Corporation has submitted that Labour Court has no jurisdiction to decide or adjudicate the disputed question while exercising power under Section 33-C(2) of I.D.Act,1947. He, however, submitted that with the consent of the Union, the said benefit was granted in favour of SCA/9562/2003 3/30 JUDGMENT respondents w.e.f. 1st April,2000. He also submitted that Government Resolution in respect to any kind of benefits straightway automatically not applicable to the Corporation. He also submitted that each and every Government Resolution is not binding to the Corporation but, the Corporation can accept it according to its financial condition. He also submitted that respondents – workmen have accepted the benefit as granted by the Corporation w.e.f. 1st April,2000 and thereafter, raised the objection before the Corporation and filed the Recovery Application subsequently. Therefore, he submitted that respondents are not entitled the said benefit as pre-existing right or undisputed due amounts from Corporation and, therefore, Labour Court has committed gross error in granting the benefit in favour of respondents from 1st January,1991 to 31st March,2000. He also submitted that Exh.14 letter, which was relied by Labour Court, was relating to one Bhaniben Makwana, who was not the employee of the Corporation and was paid the benefit on the basis of direction issued by the Health Department of Gujarat SCA/9562/2003 4/30 JUDGMENT State vide its letter dated 20th September,1993. Therefore, he submitted that Labour Court has committed gross error while coming to the conclusion that respondents are entitled the benefit on the basis of Exh.14 she is not similar situated employee and, therefore, Labour Court has also committed error in granting the benefit. He also raised contention that Labour Court has committed gross error in coming to conclusion that demand raised by respondents was not disputed or refused by the Corporation. He submitted that the demand raised by the respondents was refused and rejected by the Corporation, even though a wrong finding has been given by the Labour Court. Therefore, according to him, when respondents were not proved pre-existing right to receive such benefit as per Government Resolution from the Corporation, then, Labour Court has no jurisdiction to grant such benefit in favour of respondents. 4. Learned Advocate, Mr.D.V.Shah, appearing for the respondents has submitted that earlier three Resolutions dated 20th June,1981 where Rs.30/- was SCA/9562/2003 5/30 JUDGMENT granted by the Government as a Nursing Allowance; another Resolution dated 14th November,1980 where Rs.25/- was granted as Uniform Allowance and vide third Resolution dated 1st October,1986, Rs.75/- was granted by the Government as Washing Allowance. He submitted that in respect to these benefits which were already granted by Corporation in favour of respondents. He also submitted that there was no settlement with the Union by the Corporation and there was no consent given by the respondents – workmen to accept the said benefit w.e.f. 1st April,2000. He also submitted that witness of petitioner – Corporation has admitted that there was no settlement between Union and Corporation and, therefore, the Labour Court has rightly granted the benefit in favour of respondents, for which each respondent was entitled the said benefit. He submitted that Labour Court has not committed any error while granting the benefit in favour of respondents. He also submitted that once the State Government has decided to grant the various allowances, then, it will automatically applicable to SCA/9562/2003 6/30 JUDGMENT the Corporation and the Corporation should have to implement the same. He submitted that since the Corporation has not implemented the same w.e.f. 1st October,1986 and 1st December,1989, therefore, respondents workmen have filed Recovery Applications which were rightly allowed by the Labour Court. For that, according to him, the Labour Court has not committed any error. 5. Learned Advocate, Mr.Shah, has relied upon the decision of Hon'ble Division Bench of this Court in case of Lallubhai Bapujibhai Parmar Vs. Panchmahal District Panchayat,2005 (3) GLR 1907 and relying upon the said decision, he submitted that once the Government Resolution dated 17th October,1988 is applicable to the Panchayat and that fact was not disputed, then, to change the date of implementation, Panchayat has no right and, therefore, this Court has held that in such circumstances, Recovery Application demanding from the original date of implementation is maintainable and prior adjudication under Section 10(1) is not necessary. Except that, no other SCA/9562/2003 7/30 JUDGMENT submissions made by learned Advocate, Mr.D.V.Shah and no other decision relied by him. 6. I have considered the submissions made by both the learned Advocates and perused the common order passed by Labour Court, Bhavnagar dated 24th October,2002. I have also perused the Recovery Application filed by each respondent and affidavit- in-reply filed by respondents. I have also considered the Government Resolution dated 12th December,1989, 16th April,1988 and 15th September,1993, 20th September,1993 as well as the order passed by Corporation dated 31st July,2000, wherein, the benefit was given w.e.f. 1st April,2000. The objection raised by respondents workmen is at Page-62 and Page-64 vide letter dated 7th August,2000. Page-66 is the reply filed by Corporation against the Recovery Application filed by respondents workmen. The affidavit-in- rejoinder filed by petitioner dated 5th October,2003. Except that, there is no other documents on record in the present petitions. All the relevant record has been taken into account by this Court while SCA/9562/2003 8/30 JUDGMENT considering the submissions of respective Advocates. The main question raised by Corporation is that whether, under Section 33-C(2) of I.D.Act,1947, Labour Court has jurisdiction to grant such benefit relying upon Government Resolution to the respondents workmen or not? Before deciding the controversy and legal question whether, Labour Court has jurisdiction or not, the relevant Section 33-C(2) is required to be considered. Section 33-C(2) provides that 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 in this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. Now considering the aforesaid sub-section (2), the question of entitlement of the workman is to be established being a condition precedent and second thing that amount of money must be due or should be computed, then only Labour Court has jurisdiction. SCA/9562/2003 9/30 JUDGMENT Otherwise Labour Court has no jurisdiction to grant any benefit while exercising power under Section 33- C(2) of I.D.Act,1947. Now, in light of this Section itself, the Recovery Applications which have been filed by workmen before the Labour Court are necessary to be considered. Page-23 is the Recovery Application No.160 of 2001 of Vandanaben Navalbhai Vyas. In Para.3 thereof, claim has been made by respondent workman. The claim is that by different Government Resolutions, certain allowances like Nursing Allowance, Uniform Allowance and Washing Allowance are paid to District Panchayat employee working in Nursing Department, but similar benefit is not given by the Corporation to the respondent – workman. So the base to file Recovery Application was that such benefit was available to District Panchayat employee and same was not made available by the Corporation to the respondents workmen without any reason. Para.4 relating to that present applicant is also a Nursing employee. Therefore, he entitled the said benefit from the Corporation. For that, on number of occasions, written and oral submissions SCA/9562/2003 10/30 JUDGMENT were made, but ultimately, Corporation has granted such benefit w.e.f. 1st April,2000 by order dated 31st July,2000. Therefore, respondent – workmen are entitled the benefit as the benefit was paid to District Panchyat employee. In Recovery Application, there was no consent in settlement and Union was not authorized to settle the matter and there was some assurance given by Corporation that they will pay the arrears a moment the financial condition was improved of the Corporation. These are the Recovery Applications filed by respondents - workmen, wherein, nowhere it is mentioned by the workmen that they are entitled the said benefit on what basis whether any amount has been due legally in their favour or whether they are entitled to such amount by way of legal right. No averment has been made by the respondents workmen in Recovery Applications. In absence of these, merely reliance has been placed by respondents workmen that according to various Government Resolutions, the Nursing Allowance, Uniform allowance and Washing Allowance were paid to District Panchayat employee and said benefit was not SCA/9562/2003 11/30 JUDGMENT paid to the employee of the Corporation, though some of the employee of the Corporation are receiving said benefit. Therefore, considering these Recovery Applications, there is no base pointed out by respondents workmen that on this base or on this legal right, they are entitled the due benefit which can be computed in terms of money from the Corporation. So, according to my opinion, Recovery Applications itself are without base of pre-existing right. However, it is necessary to note that these applications were filed on 14th / 18th June,2001 by the respondents – workmen. On the same day, these four applications were filed on similar base by the respondents - workmen. Against that, petitioner – Corporation has filed reply which is at page-66 dated 14th February,2002. In the reply, the claim made by the respondents – workmen has been disputed and denied by the Corporation. In para.1, 2 and 3, a specific averment has been made by the Corporation that averments made in the Recovery Applications is not correct and not admitted by the Corporation. In reply, it is also made clear by Corporation that SCA/9562/2003 12/30 JUDGMENT whatever benefits are available to District Panchayat employee through Government, same are not available automatically to the employees of the Corporation. The Corporation has made clear in reply that w.e.f. 1st April,2000, the benefit has been made available to the respondents workmen and such benefit was accepted by the respondents – workmen. On that occasion, no objection was raised by the concerned employee and it was settled with the Union and on that basis, Resolution dated 31st July,2000 was passed by the Corporation. In written statement, Corporation has also disputed that such kind of Recovery Applications are not maintainable and respondents workmen have no legal right to file said applications and, therefore, same may be dismissed. The Resolution which has been passed by Corporation dated 31st July,2000 which is at Page-60 on record. In the said Resolution, the Corporation has referred various Government Resolutions in respect to Nursing Allowance, Uniform Allowance and Washing Allowance and specific decision has been taken that instead of the date mentioned in the Government Resolution, the Corporation is agreed SCA/9562/2003 13/30 JUDGMENT to pay such benefits w.e.f. 1st April,2000 and for that, necessary proposal was forwarded to the Secretary. This Resolution has been passed by the Commissioner and Chief Personnel Officer of the Corporation. In the said Resolution, one fact is important that respondents – workmen claimed said benefit from the Corporation w.e.f. 1st April,2000. Specific averments have been made in the Resolution that representation was made by the workmen and Bhavnagar Maha Mazdoor Sangh and as a result of such discussion, ultimately, according to their representation, benefit has been granted w.e.f. 1st April,2000. This fact has been disputed by the respondent workmen, but it is necessary to note here that Resolution passed by the Corporation dated 31st July,2000 granting the benefit as per their demand on 1st April,2000 accepted by them and subsequently, raised the objection by letter dated 7th August,2000. Thereafter, the respondents workmen have not filed any proceedings to challenge this Resolution dated 31st July,2000. After accepting the amount from the Corporation on the basis of their representation, SCA/9562/2003 14/30 JUDGMENT Recovery Applications filed on 18th June,2001 after a period of about one year. In between one year, respondents workmen have not challenged the Resolution dated 31st July,2000. If the facts mentioned in the Resolution dated 31st July,2000 by the responsible officer of the Corporation; one Municipal Commissioner and another is the Chief Personnel Officer and on that basis, benefit has been accepted by the respondents workmen. This Resolution dated 31st July,2000 issued by the two highest officers of the Corporation on the basis of Resolution passed by Standing Committee Resolution No.214 dated 30th June,2000. If the respondents workmen are disputing that there was no settlement and no representation to grant the benefit w.e.f. 1st April,2000, then, they should have challenged the particular Resolution dated 31st July,2000, but for that, Recovery Application is not maintainable. Once the decision, rightly or wrongly, has been taken by the Corporation, the Labour Court cannot examine legality and validity of the Resolution dated 31st July,2000 passed by Municipal Commissioner or Chief SCA/9562/2003 15/30 JUDGMENT Personnel Officer on the basis of the Standing Committing Resolution No.214 dated 30th June,2000 in exercise of powers under Section 33-C(2) of the I.D.Act,1947. The order passed by the Labour Court, Bhavnagar amounts to changing or setting aside the order dated 31st July,2000 passed by Corporation. The Labour Court, while exercising the power under Section 33-C(2) has no jurisdiction to pass or issue any direction which is contrary to Resolution dated 31st July,2000. The result of such direction amounts to setting aside the Resolution or decision of Corporation dated 31st July,2000. 7. The decision of the Hon'ble Division Bench of this Court relied upon by learned Advocate, Mr.Shah, as referred above. In that decision, it is not decided by the Division Bench of this Court that any kind of right if it is not disputed by other side, then, recovery is maintainable. The facts of the case before the Division Bench for implementation of Government Resolution dated 17th October,1988. There was no dispute raised by the Panchayat about the SCA/9562/2003 16/30 JUDGMENT applicability of Government Resolution dated 17th October,1988. In that case, the view taken by the Division Bench is that once the Government Resolution dated 17th October,1988 is applicable and accepted by the Panchayat, then, Panchayat has no right to deffer the date of implementation. In this case, Municipal Corporation has not accepted Government Resolutions. The Government Resolutions are not automatically applied to Corporation. The Government Resolutions are not binding to Corporation. The Government Resolution not applicable and accepted by Corporation. The date of Government Resolution differ with the consent of workmen and Union. The demand made by workmen to grant such benefits from 1st April, 2000. The resolution dated 31st July,2000 not challenged by workmen before any authority including State Government. This is the facts in the present case because here the decision has been taken by the Corporation with consent of workmen and Union as per their demand, to grant such benefit w.e.f. 1st April,2000 by Resolution dated 31st July,2000. Therefore, in such circumstances, the respondents SCA/9562/2003 17/30 JUDGMENT have only right to raise industrial dispute or to challenge the Resolution dated 31st July,2000 and to get the adjudication about their right or claim and then, to file such Recovery Application. Otherwise, straightway Recovery Application is not maintainable. The decision relied by learned Advocate, Mr.D.V.Shah, as referred above, is not applicable to the facts of this case. 8. The question of jurisdiction under Section 33- C(2) of I.D.Act,1947 has been examined by Apex Court in various cases (i) in case of Municipal Corporation of Delhi Vs. Ganesh Razak reported in 1995 (1) SCC 235, (ii) Tara Vs. Director, Social Welfare, (1998) 8 SCC 671 (iii) Punjab Beverages (P) Ltd. Vs. Ramchandra Dubey (2001) 1 SCC 73. These all the decisions of the Apex Court has been recently considered by the Division Bench of Himachal Pradesh High Court in case reported in Balbir Singh Vs. Nika Ram& Ors., reported in 2005 Lab.I.C. 4000, wherein, the Division Bench of the Himachal Pradesh High Court has considered the scope of Recovery Application and SCA/9562/2003 18/30 JUDGMENT entitlement of the workman and ultimately, come to the conclusion that amount if it is not payable either under a settlement or an award in accordance with law. This was not a sum determined in accordance with law, which would enable the Labour Court to have passed the impugned award. Assumption of jurisdiction by the Labour Court in these circumstances cannot be upheld and plea to the contrary urged by Sari Kaundal is liable to be rejected. In fact, Labour Court travelled beyond the scope of its authority under Section 33-C(2) of the Act, and as such the impugned award cannot stand the test of judicial scrutiny. The Division Bench of Himachal Pradesh high Court has, considering the decision of Apex Court, in case of Namor Ali Choudhury v. The Central Inland Water Transport Corporation Ltd. AIR 1978 SC 275. Para.10 of the said judgment is reproduced as under : “10. In Namor Ali Choudhury v. The Central Inland Water Transport Corporation Ltd. AIR 1978 SC 275 : (1978 Lab IC 166), while interpreting the provisions of Section 33-C(2) of the Act, it was held in para 4 of SCA/9562/2003 19/30 JUDGMENT the judgment as under: 'In our judgment the High Curt has committed an error in so narrowly interpreting S.33C(2) of the Act. The said provision runs as follows: 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. “There are two parts of the sub-section by Act 36 of 1964. The first part is concerned with the money claim simpliciter and the second part speaks about computation in terms of money of any benefit to which the workman is entitled. Although for appreciation of the point at issue there is no substantial difference between the two, we shall confine out discussion to the money claim only pure and simple. On a plan reading of the wordings of the Statute it would be found that where any workman is entitled to receive from SCA/9562/2003 20/30 JUDGMENT employer any money and if any question arises as to the amount of money due, then the question may be decided by the Labour court. The expression “if any question arises as to the amount of money due” embraces within its ambit any one or more of the following kinds of disputes :- (1)Whether there is any settlement or award as alleged ? (2)Whether any workman is entitled to receive from the employer any money at all under settlement or an award etc.? (3)If so, what will be the rate of quantum of such amount ? (4)Whether the amount claimed is due or not ? Broadly speaking, these will be the disputes, which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established, no amount of money will be due. If it is established, then it has to be found out, albeit, it may be by mere calculation, as to what is the amount due. For finding it out, it is not necessary that there should be a dispute as to the amount of money due also. The fourth kind of dispute which we have indicated above obviously and literally will be covered by SCA/9562/2003 21/30 JUDGMENT phrase “amount of money due”. A dispute as to all such questions or any of them would attract the provisions of Section 33C(2) of the Act and make the remedy available to the workman concerned.” 9. Recently also, the Hon'ble Apex Court as considered the question of jurisdiction of Labour Court under Section 33-C(2) of the I.D.Act,1947 in case of State of U.P. and Another Vs. Brijpal Singh, reported in (2005) 8 SCC 58. The relevant observations made by Apex Court is from Para 11 and 12, which are as under: “The workman can proceed under Section 33- C(2)only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. A proceedings under Section 33-C(2) is a proceeding in the nature of execution proceedings in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of SCA/9562/2003 22/30 JUDGMENT being computed in terms of money, proceeds to compute the benefit in terms of money. The right to the money which is sought to be calculated or 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 the industrial workman and his employer. It is not competent to the Labour Court exercising jurisdiction under Section 33-C(2) to arrogate to itself the functions of an Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the Act. The Labour Court has no jurisdiction to first decide the workman's entitlement and then proceed to compute 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 recognized by the employer and thereafter for the purpose of implementation that the interpretation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to SCA/9562/2003 23/30 JUDGMENT the Lower 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. 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.” 10. Section 33-C(2) of I.D.Act,1947 itself