IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.3034 of 1998 Date of Decision: July 29, 2008 M/s Prem Narain & Company .....PETITIONER(S) VERSUS The Presiding Officer, Labour Court & Another .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Arun Palli, Senior Advocate, with Mr. Jiwandeep Singh, Advocate, for the petitioner. Mr. H.S. Gill, Senior Advocate, with Mr. R.C. Dhiman, Advocate, for respondent No.2. . . . AJAI LAMBA, J The civil writ petition has been filed under Article 226/227 of the Constitution of India seeking a writ in the nature of certiorari to quash the order, Annexure P-3, passed by the Labour Court in favour of the workman under Section 33-C (2) of the Industrial Disputes Act, 1947 (for short, ‘the Act’) being illegal, perverse and without jurisdiction. Petitioner, M/s Prem Narain & Company is a partnership concern engaged in the activity of supplying spare parts of various vehicles manufactured Civil Writ Petition No.3034 of 1998 [2] under the make Escorts and also provides sales services. Respondent No.2 – workman (Laxmi Narain) was employed in the capacity of Store Keeper at the rate of Rs.1,000/- per month and as per the case set up by the petitioner, he left the service at his own by submitting his resignation on 6.4.1989. A perusal of the impugned order shows that the respondent-workman filed an application registered at Serial No.82/93 claiming a sum of Rs.1,08,000/- pleading that he was appointed and worked with effect from 1983 to 1989 in the capacity of Manager in addition to Store Keeper on which post he was employed. He was therefore entitled to the difference in pay of Manager and Store Keeper i.e. a sum of Rs.1,500/- per month for a period of six years. In the other application bearing No.81/93, the workman claimed a sum of Rs.41,000/- as bonus of 15 years of service @ Rs.1,000/- per year, encashment of C.L. & P.L. @ 7 C.L. and 24 P.L. yearly for 15 years, sick leave and gazetted holidays for 15 years. The applications had been consolidated and decided vide the impugned order. The Management, before the Presiding Officer, disputed the claim made by the workman as also maintainability of the application on the issue of jurisdiction to examine the matter under the provisions of Section 33-C (2) of the Act. It was claimed that the workman had no existing right for the claim set up in the application as it was disputed that the workman was Civil Writ Petition No.3034 of 1998 [3] appointed as a Manager or he had ever performed or discharged the duties of a Manager. It was asserted that the workman was appointed as a Store Keeper and he continued to discharge the duties on the said post and thus was entitled to Rs.1,000/- per month, which were duly paid. Contention of the learned counsel for the petitioner is that once the very foundation or the claim of the workman being whether he was appointed as Manager and worked in that capacity or not, was in dispute, the Presiding Officer could not have invoked the provisions of Section 33-C(2) of the Act to grant relief to the respondent. In this regard, reference has been made to Municipal Corporation of Delhi vs. Ganesh Razak & Another, 1995 Lab. I.C. 330. The other issue raised is with regard to benefits claimed in the application bearing No.81/93 wherein the respondent claimed benefits for past 15 years of service. Even after termination, the claim had been filed after four years and therefore, on account of delay and latches, the respondent was not entitled to any relief. In this regard, reference has been made to Nanoo Ram vs. Mahesh Chandra & Another, 1990 (Supp) Supreme Court Cases 752 and S.K. Kapur vs. New Delhi Municipal Council, (2004) 10 Supreme Court Cases 679. Learned counsel for the respondent – workman, as against this, has contended that from 1989 onwards, the respondent had worked as Manager in addition to his own duties of Store Keeper. By the Civil Writ Petition No.3034 of 1998 [4] time, his services had been terminated. He had rendered 16 years of service. He was however paid the salary of Store Keeper only. The evidence produced before the Labour Court clearly indicates that the respondent had been performing the duties of Manager. No other person had worked at Phagwara branch either as Manager or Store Keeper which also establishes the claim of the respondent. The findings recorded by the Labour Court in this regard are in favour of the petitioner. Learned counsel has referred to P.G.I. of M.E. & Research Chandigarh vs. Raj Kumar & Others, JT 2001(1) SC 336 to contend that the Labour Court being the final fact finding Court and being vested with the discretion in the matter of award of back wages, it was not open to the High Court to go into the factual aspects in writ jurisdiction. Reference has also been made to Dr. M.L. Sachdeva vs. State of Punjab, 2000(2) SLR 310 and Selva Raj vs. Lt. Governor of Island, Port Blair & Others, 1998(3) SLR 770 to contend that where an officer is holding additional charge of the higher post, he is entitled to the higher pay for the period he worked. I have considered the arguments addressed by the learned counsel and have gone through the referred case law. On the issue raised by learned counsel for the petitioner viz. of jurisdiction of the Court to adjudicate, the provisions of Section 33-C of the Act are required to be considered which read as under:- “33-C. Recovery of money due from an employer.— (1) where any money is due to a workman from Civil Writ Petition No.3034 of 1998 [5] 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 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 [within a period not exceeding three months]: [Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing extend such period by such further period as he may think fit.]” Perusal of the above reproduced provision shows that Section 33-C of the Act can be invoked where any money is due to a workman from an employer under settlement, an award or under the provision of Chapter VA dealing with ‘Lay-Off & Retrenchment’ and Chapter VB dealing with ‘Special Provisions Relating To Lay-Off, Retrenchment And Closure In Certain Establishments’. The import of the provision has been interpreted by the Hon’ble Supreme Court of India in Ganesh Razak’s case (supra). The issue before the Hon’ble Supreme Court of India was Civil Writ Petition No.3034 of 1998 [6] the maintainability of the claim of respondent-workman in proceedings under Section 33-C(2) of the Act. The respondents therein were daily rated casual workers of the appellant, Municipal Corporation of Delhi and claimed that they were doing the same kind of work as the regular employees and therefore, they were required to be paid by the appellant the same pay as the regular employees on the principle of ‘equal pay for equal work’. On the said principle, a claim for computation of arrears of their wages was made at the rate at which the wages were paid to the regular employees. The applications made to the Labour Court under Section 33- C(2) of the Act led to the passing of the award in their favour accepting the claim. The writ petitions were filed by the Municipal Corporation challenging the award. The writ petitions were dismissed and therefore, the matter came before the Hon’ble Supreme Court for adjudication. While referring to Central Bank of India Ltd. vs. P.S. Rajagopalan, AIR 1964 SC 743 in Ganesh Razak’s case (supra), in Para 8, 9, 10, 12, 13 and 14, the following has been held:- “8. ……… It was urged that since the applications involved a question of interpretation of the Sastry Award, they were outside the purview of Section 33-C (2) because interpretation of awards or settlements has been expressly provided for by Section 36-A. This objection was rejected. This Court pointed out the difference in the scope of Section 36A and Section 33-C(2) indicating that the distinction lies in the fact that Section 36A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33-C(2); and whereas Section 33-C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36A deals merely with a question of interpretation of the award where a dispute arises in Civil Writ Petition No.3034 of 1998 [7] that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under Section 36A. In this context, this Court also indicated that the power of the Labour Court in a proceeding under Section 33-C(2) being akin to that of the Executing Court, the Labour Court is competent to interpret the award or settlement on which a workman bases his claim under Section 33- C(2), like the power of the Executing Court to interpret the decree for the purpose of execution. Relevant extract from that decision is as under (at p. 749 of AIR):- "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 Section 33-C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under Section 33-C(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." (at pages 154-155) This decision itself indicates that the power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the workman's right rests, like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents. Civil Writ Petition No.3034 of 1998 [8] 9. Another decision on the point is Bombay Gas Co. Ltd. v. Gopal Bhiva, 1964 (3) SCR 709 : (AIR 1964 SC 752), wherein also Gajendragadkar, J. (as he then was) speaking for the Bench, referring to the above Constitution Bench decision, stated that the proceedings contemplated by Section 33-C(2) are analogous to execution proceedings and the Labour Court, like the Executing Court in the execution proceedings governed by the Code of Civil Procedure, would be competent to interpret the award on which the claim is based. It is obvious that the power of the Executing Court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in the form of decree. The Executing Court, after the decree has been passed, is however competent to interpret the decree for the purpose of its implementation. This position was settled by the above Constitution Bench decision and has been the consistent view of this Court ever since then. 10. Next case on this point is Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar, (1968) 1 SCR 140 : (AIR 1968 SC 218), wherein the above decisions were relied on. It was held that the right to the benefit which is sought to be computed under Section 33-C(2) must be "an existing one, that is to say, already adjudicated upon or provided for". The propositions on the question as to the scope of Section 33-C(2) deducible from the earlier decisions of this Court were summarised and they include the following, namely (at p.220 of AIR) : "(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 S. 33C in 1956. These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to S. 10(1) and without having to depend on their union to espouse their case. xxx xxx xxx (3) Section 33C which is in terms similar to those in S. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950 is a provision in Civil Writ Petition No.3034 of 1998 [9] the nature of an executing provision. xxx xxx xxx (5) Section 33C(2) takes within its purview cases of 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. xxx xxx xxx (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-sec. (2), viz., cases which would appropriately be adjudicated under S. 10(1) or claims which have already been the subject- matter of settlement to which Ss. 18 and 19 would apply. (8) Since proceedings under S. 33C(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 Executing Court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33C(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." (at pages 142-144) After stating the propositions, the decision proceeds to state 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 Civil Writ Petition No.3034 of 1998 [10] and in relation to the relationship between an industrial workman and his employer……" (at pages 142-144) xxx xxx xxx 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 S. 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under S. 33C(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 or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under S. 33C(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 S. 33C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Art. 22 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 petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents 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 Civil Writ Petition No.3034 of 1998 [11] 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 S. 33C (2) of the Act by these respondents. 14. Consequently, these appeals are allowed. The judgments of the High Court as well as the awards made by the Labour Court in favour of the respondents are set aside. No costs.” In the same context, reference may be made to P.K. Singh & Others vs. Presiding Officer & Others, (1988) 3 Supreme Court Cases 457. For exact reference, Para 2, 5 and 9 read as under:- “2. The appellants filed the applications under Section 33-C (2) of the Act for computation of the wages payable to them for certain periods as detailed in the respective petitions. Their case was that even though they had been engaged as 'C' Grade Fitters, they were entitled to the salary and allowances payable to 'B' Grade Fitters, since they were doing the same duties as 'B' Grade Fitters. The Management contested the applications filed by the appellants stating that they were not maintainable since the principal question involved in all the applications related to the re-classification of the workmen concerned and that such a relief could not be claimed under Section 33-C (2) of the Act. The Central Government Industrial Tribunal-cum- Labour Court upheld the objection of the management and rejected the applications by its common order dated February 14, 1979. Aggrieved by the said common order the appellants filed this appeal by special leave. xx xx xx xx xx xx 5. It is obvious from the facts narrated above, which are not in dispute, that by merely doing the same kind of work which is done by a 'B' Grade Fitter, a workman appointed as a 'C' Grade Fitter will not be entitled to claim the wages of a 'B' Grade Fitter unless he is duly promoted after getting through the prescribed trade tests Such a workman cannot complain that he is not being paid the salary and allowances due to a 'B' Grade Fitter, since he does not possess an existing right to claim it. If on an adjudication made on the said question on a reference made under Section 10 (1) of the Act, it is held that he should be deemed to be a member of the cadre of 'B' Grade Fitters, then only he would be able to claim the salary and Civil Writ Petition No.3034 of 1998 [12] allowances payable to 'B' Grade Fitters. The case before us is analogous to the claim made by a Junior Clerk, who can become a Senior Clerk only on promotion, to the salary attached to the post of Senior Clerk on the ground that both the Junior Clerk and the Senior Clerk are engaged in clerical work. xx xx xx xx xx xx 9. In any view of the matter we feel that there is no ground to set aside the order of the Central Government Industrial Tribunal-cum- Labour Court against which this appeal is filed. The appeal fails and it is dismissed. There will be no order as to costs. ” Considering the law laid down by the Hon’ble Supreme Court in the context of the facts of the present case, it is seen that the respondent (workman) admitted the fact that he was employed as a Store Keeper. He, however, alleged and asserted that he was also doing the work of a Manager which post carried a higher responsibility and more pay. This asserted fact itself had been disputed by the petitioner employer. Surely there arose a dispute or issue as a fact asserted by the respondent-workman had been denied by the petitioner- employer. Considering the law laid down by the Hon’ble Supreme Court in the case cited above and to which a detailed reference has been made, the Labour Court while exercising jurisdiction under Section 33-C(2) of the Act, could not have adjudicated on the issue and held that indeed the respondent had worked in the capacity of a Manager and therefore, he was entitled to higher salary for the last 15 years. It was an issue that required detailed adjudication and not merely Civil Writ Petition No.3034 of 1998 [13] execution and computation in terms of money. Under the circumstances, I am of the considered opinion that the Labour Court has travelled beyond its jurisdiction in adjudicating on the issue in proceedings under Section 33-C(2) of the Act. Learned counsel appearing for the respondent has referred to the case of Raj Kumar & Others (supra). The case is distinguishable in so much as the Labour Court had awarded 60% back wages while ordering reinstatement with continuity of service. The order came to be challenged before the High Court. The High Court held that the Labour Court was in