IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9541 of 1990 (O&M) Date of decision:20 .04.2011 Municipality Baretta, through its Executive Officer, District Bhatinda. ....Petitioner versus Presiding Officer, Labour Court, Bhatinda and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.A.S.Grewal, Advocate, for the petitioner. Mr. Malhar Singh Dhami, Advocate, for respondent No.2. --- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. The writ petition has been filed by the Municipal Administration seeking for quashing of an order passed by the Labour Court directing wages to be paid under Section 33-C(2) of the Industrial Disputes Act. The basis of the claim was that the petitioner was being paid Rs.483/- per month in the scale of 300-430, but it was subsequently reduced to Rs.358/- after November, 1983. Such reduction of wages constituted a change in the terms of service that violated Section 9-A of the Industrial Disputes Act. The contention that there had been a reduction without following mandate of Section 9-A was itself not in dispute, but what was contended by the Management was that the Civil Writ Petition No.9541 of 1990 (O&M) - 2 - application could not have been filed under Section 33-C(2) for the non- compliance of the procedure laid down under Section 9-A of the Industrial Disputes Act. This objection of the Management was rejected by the Labour Court and it was found that the amount which had been reduced was liable to be paid and the workman entitled to make a claim of difference in wages through an application under Section 33-C(2) of the Act. While calculating the amount payable, the Labour Court also took note of the fact that a workman was entitled to claim wages in lieu of rest days and holidays by making reference to Rule 23(4) under the Minimum Wages Act that prescribed that the wages were liable to be paid to a workman, who is called upon to work on national and festival holidays were also entitled to double the ordinary rate of wages. The Labour Court, therefore, found that the workman was entitled to the difference what was payable and the amount that was reduced at Rs.20,000/-, for Rs.5,000/- as overtime wages and Rs.50/- deducted from his salary and in all, Rs.25,050/-. 2. The contention on behalf of the petitioner was that he had been employed as a Chowkidar for 89 days on 04.08.1983 and he was re-employed for two months on 30.10.1983 and he was again appointed for 60 days on daily wages basis at Rs.13.50 per day. The appointment seemed to have been extended from time to time till when a resolution was passed on 13.12.1984 deciding to appoint the petitioner on regular basis for 6 months on probation. This resolution was rescinded on 31.12.1984 by the Director, Local Bodies and the workman was terminated from service on 19.04.1985. This termination was challenged Civil Writ Petition No.9541 of 1990 (O&M) - 3 - before the Labour Court, Bhatinda, on the ground that the provisions of Section 25-F of the Act had not been followed. The Labour Court found the termination to be bad and directed reinstatement with continuity of service and back wages. He rejoined the duty pursuant to the award of the Labour in the month of February, 1988. 3. The challenge to the order passed by the Labour Court was on the basis that Section 33-C(2) is attracted to a pre-existing right of the workman which could be calculated in terms of the money and that the workman had no pre-existing right since his right to entitlement to wages was not decided. As regards the applicability of Section 9-A, the contention was that there had been no change in condition of service and that he was estopped from making such a plea in view of his conduct in accepting the back wages as given vide award dated 1805.1987. In support of his arguments, the learned counsel for the Municipal Committee relies on a judgment of the Hon'ble Supreme Court in Municipal Corporation of Delhi and Ganesh Razak and another- (1995) 1 Supreme Court Cases 235, that held that a Labour Court cannot adjudicate dispute of entitlement or basis of claim of workmen under Section 33-C(2) and it can only interpret the award or settlement on which the claim is based. Its jurisdiction was like that of executing court. The Hon'ble Supreme Court held that without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claiming parity in employment was not possible under Section 33-C(2). Civil Writ Petition No.9541 of 1990 (O&M) - 4 - 4. I do not think that the judgment relied by the learned counsel is applicable to the facts of the case. In the said case, the Hon'ble Supreme Court was considering a situation where the workman was making a claim for parity in wages which he did not already get. It was required to be adjudicated whether the workman was entitled to parity in wages with other workmen, who he claimed was engaged in similar type of activity. In this case, there is no denying the fact that the workman was already being paid a particular rate of wages. This was sought to be reduced without in any way following the procedure laid down under Section 9-A. The contention in the writ petition that a reduction in wage does not amount to alteration in terms of service is meaningless. Wage is invariably the most important component of terms of service. If that came to be reduced without undergoing the procedure under Section 9-A, the workman is entitled to ignore the same as illegal and demand the wages at the previous rate at which he was being paid. In a somewhat similar situation where the pension payable had been reduced without following the procedure under section 9A, a petition had been filed in G.M., E.I.D. Parry (India) Ltd. Versus Presiding Officer, 1991 Supp (1) SCC 326. The order of the High Court upholding the workmen’s claim was upheld by the Supreme Court as well. The workman had given the memo of calculation along with the claim petition and the order had been passed by the Labour Court on a due computation of the amount payable to the workman. The order is perfectly justified and the intervention sought through the writ petition is untenable. In a still early decision on the interplay of section 9A and the powers of adjudication Civil Writ Petition No.9541 of 1990 (O&M) - 5 - under section 33 C(2), the Supreme Court held in Board of Directors of the South Arcot Electricity Distribution Co. Ltd. Versus N.K. Mohammed Khan, (1969) 1 SCC 192, at page 199 : “The right, which has been claimed by the various workmen in their applications under Section 33-C(2) of the Act, is a right which accrued to them under Section 25-FF of the Act and was an existing right at the time when these applications were made. The Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision. The mere denial of that right by the company could not take away its jurisdiction, so that the order made by the Labour Court was competent.” 5. The order of the Labour Court is confirmed and the writ petition is dismissed. (K.KANNAN) JUDGE 20.04.2011 sanjeev