1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5529 OF 2009 Mrs. Prabhavati Ramgarib B. ) Adult, aged 65 years, Indian ) Inhabitant, residing at Gram Gumsai ) Ganj, Thane Road, Kirane Ki Dukan, ) Post. Gumsai Ganj, Dist. Faizabad, ) (U.P.) ) ... Petitioner Versus Divisional Railway Manager, ) Western Railway Manager, ) Mumbai Central, Mumbai – 400008. ) ... Respondent Mr. Arshad Shaikh with Mr. V.M. Parkar for the petitioner. Mr. Arjun H. Patil for the respondent. CORAM: S.J. VAZIFDAR, J . DATED : 4TH FEBRUARY, 2010. ORAL JUDGMENT. : 1. The Petitioner has sought a writ of certiorari to quash and set aside the order of the Central Government Industrial Tribunal and 2 Labour Court dismissing his application under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”). 2. The case, in a nutshell, is this. In the Petitioner’s deceased husband’s earlier application also under Section 33-C(2), the Respondent was, by an order dated 30th September, 1992, directed to pay him a sum of Rs.65,781/-. The Respondent paid the same almost eleven years later, on 14th March, 2003, after dragging the Petitioner through rounds of tortuous litigation and only after this Court issued notice in a Contempt Petition filed by the Petitioner. The Petitioner filed the present application under Section 33-C(2) for interest at 12 per cent per annum for the period 30th September, 1992 to 14th March, 2003. 3. Mr.Patil, the learned counsel appearing on behalf of the Respondent opposed the Petitioner’s application for interest on the following grounds :- i). The application under Section 33-C(2) was filed after considerable delay. 3 ii). The application is not maintainable as there was no employer – employee relationship between the parties at the relevant time. iii). The Petitioner failed to furnish any evidence in support of the application. iv). The application is barred by res-judicata and/or principles analogous thereto. v). There is no legal basis for the grant of interest. I have answered each of the submissions in the negative, against the Respondent. 4. Mr.Patil’s fifth defence raises a question of law of some importance. The question of law that arises is whether the Labour Court has power under Section 33-C(2) to order an employer to pay the employee interest for the period between the date of an order of a Court or Tribunal or authority for payment and the date of payment. I have answered the question in the affirmative upholding the claim for interest in such cases on four grounds - under Sections 3(1) (a) and (b) and 4 of the Interest Act, 1978, and in exercise of powers 4 under Article 226 of the Constitution of India. A view to the contrary would lead to a total miscarriage of justice and disastrous consequences not merely in this matter but for bona-fide and innocent employees in general. It would put a premium on an employer disregarding orders of Courts, Tribunals and other authorities. Worse still, it would encourage an employer to refuse payments under such orders for as long as possible, rendering them virtually meaningless. 5(a). The Petitioner’s deceased husband had filed an application also under Section 33-C(2) in the year 1989 claiming, inter alia, over-time wages. The claim was upheld and the Respondent was directed to compute and pay the same within three months from the date of the order i.e. by 30th December, 1992. The Petitioner requested the Respondent to pay the amounts pursuant to the said order dated 30th September, 1992, orally, as well as in writing. It is not necessary to set out the details of these requests. Suffice it to state that they were not complied with. (b). The Respondent challenged the order after six years by filing Writ Petition No.1955 of 1998. The Writ Petition was rejected by an order of this court dated 10th February, 2000. 5 (c) About two years later, the Respondent filed Appeal No.311 of 2002 against the said order. The appeal was dismissed by an order of the Division Bench dated 23rd April, 2002. (d). Even thereafter the Respondent refused to comply with the order dated 30th September, 1992. The Petitioner was, therefore, constrained to file a Contempt Petition. The same was served on the Respondent. This court issued notice to the Respondent on the Contempt Petition. It is only thereafter that the Respondent paid an amount of Rs.65,781/- on 14th March, 2003 as per the said order dated 30th September, 1992. The amount was, therefore, paid after a delay of almost eleven years. (e). The Petitioner, therefore, filed the present application under Section 33-C(2) claiming Rs.1,49,750/- being interest on the said sum of Rs.65,781/- at 12 per cent from 30th September, 1992, till payment. The learned Presiding Officer, by the impugned order, dismissed the said application. 6 6. Mr. Patil, the learned counsel appearing on behalf of the Respondent contended that the present application under section 33- C(2) suffered from gross delay and latches. 7. To uphold this contention would be a traversity of justice. It would put a premium on the entirely unreasonable and, in fact, contumacious conduct of the Respondent in not merely having failed and neglected to comply with the order dated 30th September, 1992, but having wilfully and contumaciously refused to comply with the same despite the fact that the order had been upheld by a learned single Judge and by the Division Bench of this court. It was only under pain of the contempt proceedings that the order was complied with. It is pertinent to note that the present application under Section 33-C(2) was filed on 11th August, 2003, i.e. within five months of the amount having been paid. There is no question, therefore, of the application suffering from delay and latches. 8. Mr. Patil submitted that the application was not maintainable as, on the date on which it was made, the concerned workman was no longer employed by the Respondent. 7 9. The learned Presiding Officer held that on the date of the present application under Section 33-C(2), there was no workman and employer relationship between the parties as admittedly the workman had retired and was a pensioner of the Respondent. It was, therefore, held that the Petitioner cannot be considered to be a workman within the meaning of Section 33-C(2). 10. The impugned judgment in this regard is contrary to the provisions of Section 33-C(2). If this view is upheld, any application for recovery of money or other benefits under Section 33-C(2) made after the cessation of an employer-employee relationship would have to be dismissed even if the claim was in respect of a period when such a relationship existed. The impugned order is, in fact, contrary to the judgment of the Supreme Court in National Buildings Construction Corporation Ltd. Vs. Pritam Singh Gill & ors., (1972) 2 SCC 1 = 1972 Labour Industrial Cases, 857. Paragraph 12 of the judgment reads as under: “12. Now, it is noteworthy that Section 2 of the Act, which is the definition section begins, as is usual with 8 most of the definition sections, with the clause, “unless there is anything repugnant in the subject or context”. This clearly indicates that it is always a matter for argument whether or not this statutory definition is to apply to the word “workman” as used in the particular clause of the Act which is under consideration, for this word may both be restricted or expanded by its subject- matter. The context and the subject-matter in connection with which the word “workman” is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus construing the word “workman” is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of Section 33-C of the Act. This section was enacted for the purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the powers similar to those of an executing court so that the workman concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing courts, it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33-C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act. To accept the argument of the appellant, it would always be open to an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by Section 33-C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the 9 Act thereby defeating the very purpose and object of enacting this provision. This, in our view, quite clearly brings out the repugnancy visualised in the opening part of Section 2 of the Act and such a position could hardly have been contemplated by the Legislature. In order to remove this repugnancy Section 33-C(2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term “workman” as used in Section 33-C(2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33-C in the Act. We are, therefore, inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is no dispute about the employee’s right which is not denied, he will be entitled to file a suit. Whether or not the right of suit can be claimed by the employee, we are not persuaded on the basis of this argument to accept the construction canvassed on behalf of the appellant and deny to a dismissed employee the benefit of speedy remedy under Section 33-C(2) of the Act.” 11. The ratio of this judgment would apply to a claim for interest on the amount awarded or due to a workman, even though it is for a period after the applicant ceases to be a workman so long as it is in respect of a principal sum which arose on account of or relates to his relationship as an industrial workman with his employer. In other words, an application for interest under section 33-C(2), in such a 10 case, would be maintainable if it pertains to the principal sum which accrued when the person was a workman. Such an application would also be maintainable for compound interest for even when the interest is compounded, it still in effect relates to the principal amount. Interest is always qua a principal amount. That the component of the principal amount may differ from case to case. For instance where compound interest is payable it will also include the previous interest. It makes no difference. The interest is relatable to and in respect of a right to receive wages or other benefits during the subsistence of the employer-employee relationship to wit during the period the applicant was a workman. 12. Any other view would lead to a totally unjust and undesirable result where the workman would be entitled to maintain an application under Section 33-C(2) only upto the period of his employment, but not thereafter despite the fact that the claim arises in respect of, in relation to or in connection with a period during which he was a workman. It would also lead to an absurd result requiring an employee to file proceedings before the Labour Court for the principal sum and 11 possibly a part of the interest and a civil suit for the interest for the period after he ceased to be a workman. 13. Mr. Patil submitted the application was liable to be dismissed as no evidence had been led by the Petitioner in support of the application under Section 33-C(2). 14. This submission is without any substance. The facts are admitted. There was nothing that was required to be proved. It is based on the above facts alone that the application was made. The Respondent has not and indeed cannot deny the fact of the order dated 30th September, 1992, the orders of this court and the date on which the payment was finally made. 15. The Respondent’s contended that the claim was barred by res judicata and/or principles analogous thereto. The claim in the first application under Section 33-C(2) pertained to the Petitioner’s deceased husband’s wages for the period 1980 to 1987. No interest was claimed in that application. It was, accordingly, submitted that the claim for interest had been impliedly abandoned. 12 16. Section 33-C of the ID Act 1947, is as follows: “33-C. Recovery of money due from an employer.—(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter V-A or Chapter V-B], 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 a 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 with- in 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 enter- tained 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.] (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as 13 may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. Explanation. — In this section “Labour Court” includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.]” 17. A decree in a civil suit must be executed under the provisions of Order XXI of the Code of Civil Procedure. In a civil suit if the decree does not provide for interest, the executing court cannot grant interest as the provisions of Order XXI of the CPC do not entitle the executing court to confer any benefit upon the decree-holder, other than that stated in the decree itself. 18. That the Executing Court cannot grant interest in execution of a decree under Order XXI of The Civil Procedure Code, 1908, however, does not bar a separate, independent action for interest for 14 the delay in payment of the decretal amount. The delay in payment of the decretal amount furnishes an independent cause of action for payment of interest on account of such delay. A Plaintiff/Claimant is not bound to presume or proceed in the first action on the basis that even if it is decreed/allowed, the judgment debtor will not honour the order by refusing to make payment thereunder or even by delaying the payment thereof. 19. It is indeed true that more often than not, interest is claimed in the first action itself not merely for the period upto the date of the filing of the action and pendente lite, but also for future interest and that the Court or Tribunal has the power to grant the same. That such a claim for future interest is the normal practice at least in civil suits is well established. The same, however, does not preclude a party from claiming interest by a separate action for the delay in payment of the amount adjudicated, ordered or decreed to be paid. 20. An action only for interest is not unusual. Indeed, Section 3 of the Interest Act, 1978, expressly recognizes such an action. Section 3 reads as under : 15 “3. Power of court to allow interest . (1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say, - The words “....or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made ....” refers to actions only for interest on a debt or damages even where the same have been paid. 21. This line of reasoning would apply equally to an application under Section 33-C(2) of the Industrial Disputes Act as it would to any other action. 22. This brings me to a consideration of the legal basis on which interest may be awarded in the present matter. Mr. Patil submitted there was none. I do not agree. 16 23. Mr. Shaikh, the learned counsel appearing on behalf of the Petitioner relied upon a judgment of a Division Bench of the High Court of Punjab & Haryana in the case of State of Haryana vs. Hisam Singh and anr., 1999 II LLJ 335 In this case, the services of the Respondents were terminated. In the industrial dispute raised by the Respondent, the Labour Court ordered reinstatement with full back wages and continuity of service. The Petitioner reinstated the Respondents, but paid the back wages only after a period of four years and eleven months. The Respondents, therefore, filed a Petition under Section 33-C(2) of the Industrial Disputes Act for interest during this period. It was contended that the Labour Court had no jurisdiction to award interest on account of the delay in payment of back wages. The Division Bench held thus :- “The contention is wholly misconceived. In pursuance to the award dated August 27, 1990 the Management should have made the payment of back wages within a reasonable time. It took about seven months to reinstate the workman and thereafter almost five years were spent in paying the back wages. During this long interval the petitioner kept the money which was rightfully due to the respondent. No justification for such an inordinately long 17 delay in payment has been even offered at the hearing of the case. In such a situation, we find that the Labour Court was amply justified in upholding the claim of the respondent-workman. If the technical plea raised on behalf of the petitioner is accepted, it would lead to grave miscarriage of justice. It would allow the petitioner to take advantage of its own wrong. It would cause (un)avoidable hardship to the workman. Such is not the spirit of the industrial law. Thus, no ground for interference under Article 226 of the Constitution is made out.” 24. Mr.Shaikh also relied upon the judgment of a learned single Judge of this court in Swan Mills Ltd. vs. Sakharam Dhondu Panchal & anr., 2004 (12) LJSOFT 56 =2004 III CLR 870 where it was held :- “12. The next issue is awarding of interest. In the instant case, no interest has been awarded on the amount of wages awarded. What the Labour Court has done is merely to award interest subsequent to the orders in the event, the employer fails to pay the amount determined. It is therefore, not a case of awarding interest but merely awarding an interest on the amount awarded on failure to pay the amount already quantified. The learned counsel has placed reliance in the judgment of Payal Electronics Vs. Arun Vasant Pawar and anr. 2002 III CLR 328 to contend that the Labour Court has no jurisdiction and power to grant any interest on the determined amount as due from the employer. In that case, interest at the rate of 15% p.a. was ordered to be paid on unpaid over time wages. The learned Single Judge of this Court proceeded to hold that there was no existing right to get the interest on the amount of dues and as the Executing Court, the labour court cannot add anything more than the amount of money due. There can be no dispute with the 18 proposition in the said judgment. As an Executing Court what the court can do is to execute the awards/order and not grant anything beyond the said order. In the instant case also no interest has been awarded on the unpaid amount. It is only on failure to pay the amount that interest has been awarded from a future date. Though the principles of Section 34 of the C.P.C. cannot be said to be conferred on the Labour Court, still it will be open to a Civil Court and the Labour Court is a civil court to award the interest on the amount already computed and not paid from the date of this order in terms of Section 34 of C.P.C. That is what the Labour Court has done. It therefore, cannot be said that the same is without jurisdiction. That contention must therefore, be rejected.” (emphasis supplied) 25. The judgment is binding on me. I am, in any event, in respectful agreement with the