THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 5752 of 2003 JUDGMENT : This writ petition has been directed against the order passed on 14.2.2003 in EP No. 26 of 2000 by the Industrial Tribunal-cum-Labour Court, Warangal. The 2nd respondent- workman moved execution petition before the Industrial Tribunal-cum-Labour Court, Warangal under Order 21 Rule 43 CPC r/w Section 11-B of the Industrial Disputes Act. It is the case of the workman that he was appointed as a Site Engineer on 5.3.1987 in the service of the petitioner corporation and that on 25.10.1988, his services have been illegally terminated forcing him to raise an Industrial Dispute bearing No. 118/91 before the Labour Court, at Warangal. An award was passed on 21.9.1993, ordering for reinstatement of the workman into service with benefits of continuity of service and full backwages. Questioning the correctness of the said award, the petitioner herein had unsuccessfully filed WP No. 2833 of 1994 in this court. The respondent-workman claimed an amount of Rs.3,01,744/- as his entitlement and after deducting a sum of Rs.9,075/- which he has received from the petitioner, he claimed a sum of Rs.2,92,669/- in the EP. The petitioner has contested the EP and filed its calculation memo disclosing the entitlement of the 2nd respondent – workman to be Rs.68,145/-, from out of which amount a sum of Rs.9,075/- has to be deducted, which amount is already paid to the 2nd respondent – workman. However, the Labour Court placing reliance upon an order passed on 26.10.1988 by the District Collector wherein the other 13 site engineers have been allowed the benefit of minimum of the basic pay in the time scale of pay applicable to regular work inspectors, together with corresponding dearness allowance and traveling allowance, ordered for payment of all such benefits. Therefore, the objection raised by the petitioner herein that entitlement of any benefits for the first time cannot be undertaken in a E.P., has been overruled and based upon the orders passed by the District Collector in his proceedings dated 3.7.1990, the amount claimed by the applicant has been upheld as liable to be paid. Hence, the present writ petition has been moved questioning the validity and correctness of the said order passed by the Labour Court. I have heard Sri M.V.S.Suresh Kumar, learned counsel for the petitioner and Sri A.K.Jayaprakash Rao, learned counsel for the respondent-workman. Learned counsel for the petitioner submits that the Labour Court had exceeded its jurisdiction in allowing the execution petition in terms of the prayer made by the workman without first of all determining as to his entitlement. Learned counsel would also submit that a Labour Court is not entitled to enlarge the scope of the award passed in the industrial dispute, while deciding EP. Learned counsel would further elaborate that the jurisdiction to pass orders on execution petition is a very limited jurisdiction and the executing court cannot travel beyond the decree itself. Per contra, Sri A.K.Jayaprakash Rao, would submit that the petitioner should not try to raise untenable or technical objections and not create hurdles for, the amount which a workman is entitled to legitimately receive. Sri Jayaprakash would further submit that but for the illegal termination of the services of the workman, he would have continued in service without any hindrance and consequently he would have also been extended the same benefit which was conferred upon the remaining 13 site engineers who were in service by the time the Collector issued the proceedings. Learned counsel would further submit that payment of wages at the minimum of the running scale of pay attached to the post of work inspector is in fact recognition of the entitlement of the workman to receive fair wages at the minimum of the scale of pay instead of being exposed to the continuous uncertainty of payment of daily wages. Learned counsel would further submit that even if the order passed by the executing court is not in strict conformity of the award passed by the Labour Court while deciding the EP raised by the workman, but none-the-less, if the order of the executing court is only giving effect to a constitutional mandate of the principle of `equal pay for equal work’, such an order shall not be disturbed. In view of the rival submissions, the question that falls for consideration is whether the Labour Court while entertaining the execution petition can also award an amount, which the workman would have otherwise been entitled, at par with those who continued in service. Before answering the question, it would be apt to notice the conclusion reached by the Labour Court while deciding the Industrial Dispute No. 118 of 1991 raised by the workman at the first instance. By its award dated 21.9.1993, the Labour Court had concluded that that the workman had completed 240 days of service within the 12 months period preceding his termination and since his services have been terminated without complying with the mandatory provisions contained under Section 25(f) of the Industrial Disputes Act, the termination of his services is illegal. On that premise, the award is concluded as under: “In the result, an award is passed directing the respondent to reinstate the petitioner into service with continuity of service and full backwages. With regard to the payment of backwages the petitioner is entitled only for daily wages for working days at the then prevailing rates.” From the above, it clearly emerges that (1) the respondent-workman was directed to be reinstated into service. (2) He has been accorded the benefit of continuity of service (3) He was awarded full backwages. However, the next sentence passed by the Labour Court holds the key for purpose of computing the backwages payable. There the award declared the petitioner as entitled only for daily wages for the number of working days and at the rate which was prevailing during the relevant period of time. It is not in dispute that the workman has been reinstated to service. Along with the execution petition, the workman had enclosed the calculation memo. In the calculation memo for the period between 25.10.1988 to 30.10.1988, the workman had computed the backwages payable taking into consideration the daily wage of Rs.30/- and accordingly claimed a sum of Rs.180/-. For the period from 1.11.1988 to 31.11.1990 (it should be 30.11.1990), he had claimed for the period of 25 months at the rate of Rs.900/- per month and for the subsequent period of 37 months, he claimed at the rate of Rs.1948.50 ps. For the balance period, he has calculated at the minimum of the basic pay together with admissible dearness allowance thereon. Thus, he had calculated the total amount aggregating to Rs.3,01,744/-. Since, he has already received a sum of Rs.9,075/- he has solicited the execution petition to be taken out for the balance sum of Rs.2,92,669/-. Whereas the petitioner herein has enclosed to its counter its calculation memo working out for each month the number of working days and multiplying them with the then prevailing rates of daily wages. It has calculated the total entitlement of the workman to be Rs.72,220/- after deducting the amount of Rs.9,075/- paid to him earlier, the petitioner has pointed out the respondent-workman is entitled to the balance amount of Rs.68,145/-. It is worthy to notice that Section 11-B has been added to the Industrial Disputes Act, by way of state amendment, conferring powers of a civil court, on Labour Court to execute it’s award as a decree of a civil court. However, Section 33(c) of the Industrial Disputes Act, 1947, provides for recovery of money due from the employer. Sub-section (2) thereof stipulates that where any workman is entitled to receive from the employer any money which is capable of being computed in terms of money and if any question arises as to the entitlement of such money, then the question may be decided by the Labour Court. An obligation has been cast on the Labour Court to go into the question of entitlement of money. The words “entitle” and “entitlement” are understood as meaning : Black’s Dictionary – @ P. 553 – entitle, vb. 1. To grant a legal right to or qualify for 2. Eccles. Law. To ordain as a minister.- Formerly also spelled intitle entitlement. An absolute right to a (usu. Monetary) benefit, such as social security, granted immediately upon meeting a legal requirement. In other words, the Labour Court is required to consider as to whether this entitlement of the workman is in conformity with the award/decree passed by the Labour Court in ID No. 118 of 1991 or not? As was noticed supra, the award made it clear that the workman is entitled to be paid daily wages for the working days at the then prevailing rates. That was a crucial and integral part of the Award. That cannot be ignored. While entertaining the EP, therefore, the Labour Court was clearly called upon to ascertain the prevailing rates of daily wages and the total number of working days and whether the moneys are accordingly paid to the workman or not. On that basis compute the amount of entitlement of the workman. To my mind, the calculation memo enclosed to the counter affidavit filed by the writ petitioner before the Labour Court appears to be in complete conformity with this requirement spelt out in the award passed in ID No. 118 of 1991, dated 21.9.1993 whereas the calculation memo filed by the workman has proceeded on an altogether different principle. I have no hesitation to hold that the calculation memo of the workman is not in conformity with the award. It is a settled principle of law that the executing court cannot travel beyond the limits drawn in the decree and it can only interpret the decree for purposes of deciding about it’s executability. The award clearly said that the workman is entitled to be paid backwages calculated on the basis of number of working days and at the rates then prevailing. Hence, there is no escape for the executing court to allow backwages to be calculated differently. While entertaining the execution petition, the jurisdiction of the executing court cannot be the same of a court of first instance, which can pronounce upon the entitlement of a party before it. In other words, no right or entitlement of a workman can be adjudicated by the Labour Court in an execution proceeding. Here in this case, the Labour Court did exactly the same. It is altogether a different thing to say that the workman would have become entitled to be paid on par with the other 13 site engineers, who are continued in service, in terms of the orders passed by the District Collector. That is an independent question which has got to be agitated and answered separately. The present execution petition is traceable only to the rights adjudicated in the award. By the time the award was passed on 21.9.1993, the orders passed by the District Collector were very much available. However, that was not made the subject matter of consideration by the Labour Court and consequently there was no decision rendered as to whether the respondent-workman would have also become entitled for similar benefits or not. Without any such entitlement being adjudicated and crystallized, the execution petition could not have been taken out or ordered in the manner in which it has been done. Learned counsel for the respondent – workman placed strong reliance upon a judgment rendered by the Supreme Court in Roshan Deen v. Preeti Lal[1]. In particular, the learned counsel has relied upon the following passage: “( 12 ) WE are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned single Judge in a case where judicial mind would be tempted to utilise all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non- suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law.” Learned counsel for the respondent-workman, therefore, submits that this Court should refrain from interfering with the order passed by the executing court so as to advance the cause of justice as the order passed by the Labour Court attempted to do that. I have given my anxious consideration to the submission made by the learned counsel in this regard. The settled principle of law that the executing court does not have any power to travel beyond the decree is based upon a public policy. The job expected of the executing court is only to give full effect to the decision rendered by the competent court after a full- fledged trial/enquiry into the matter. The rights and obligations of the respective parties had been drawn in such a decree. Therefore, the executing court is only called upon to give effect to a decree in question. It cannot attempt to alter or modify such a decree. At best, it can only interpret any phase or term of the award. The executing court is not competent to determine the rights and the corresponding obligations of the respective parties for the first time. They have already been determined. Executing court is only required to give full effect to such an order. Therefore, if executing court is allowed to travel beyond the limits drawn in a decree/award, an issue which has not been determined can become capable of being worked out in the guise of execution. It amounts to determining a lis between the parties for the first time. Such powers should not be conferred upon the executing courts. It is not merely a technical error that would be committed by the executing courts in the process. It would be substantially going to the very root of its power. Matters of such nature cannot be characterized as technical or mere irregularities. They become substantial illegalities requiring correction. Adverting to the principle enunciated by the Supreme Court in Roshan Deen’s case (supra), the power under Articles 226 and 227 should be exercised only for subserving the cause of justice. Every effort should be made for preventing miscarriage of justice and ensure that that no injustice is caused to any party. In the instant case, if the present order passed by the executing Labour Court is left unaltered, it squarely amounts to causing injustice to one of the two parties viz., the petitioner herein. It has not been provided an opportunity to establish, if it can, as to how and why the respondent- workman is not entitled for parity of treatment with the rest of the site engineers for being paid his monthly wages at the minimum of the basic pay. It is altogether rested upon a separate principle for which the necessary facts have to be pleaded and proved. If the respondent-workman can be shown to stand on a different footing, from the site engineers in service perhaps, he can be shown as not entitled for payment of wages at the minimum of the scale of pay. Without providing an opportunity in that regard, the petitioner could not have been condemned and mulcted with the obligation to pay the said amount. Therefore, the principle enunciated in Roshan Deen’s case (supra) has appropriate application to the cause and case of the petitioner herein as well. I found from the order that no effort has been made by the Industrial Tribunal-cum-Labour Court to ascertain as to whether the wages as calculated by the petitioner is correct or not? But, however, even by their own showing the petitioner showed that the respondent-workman is entitled to be paid a sum of Rs.68,145/-. Therefore, I allow this writ petition setting aside the order passed by the Industrial Tribunal-cum-Labour Court 21.9.1993 and direct the petitioner to pay the respondent-workman a sum of Rs. 59,070/- (Rupees Fifty Nine thousand and seventy only) within 60 days from the date of receipt of this order. The respondent-workman is entitled to verify the calculation memo appended by the petitioner to its counter before the Labour Court and if any discrepancy in that regard is noticed by him he is entitled to make a demand for the additional amount by drawing an appropriate representation, which would be looked into and determined within a maximum period of sixty days from its submission. The observations made in the course of this judgment shall not be construed as a determination of the claim for payment of wages at the minimum of the scale of pay by the workman. The writ petition is therefore allowed. No costs. ------------------------------------------ -- NOOTY RAMAMOHANA RAO,J Dt : 18.12.2009 knk [1] 2002-LLN-1-1:2002 ALD-1-18