4-F^. HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 2820 of 2002 PETITIONER RESPONDENT Amardeep Talkies. VERSUS Raipur Cuiema Operatoi-s & Karmachari Sangh Post for pronouncement ofjudgment ahd order on .43..03.2009. 1-1 HIGH COURT OF CHHATTISGARH AT BILASPUR ;y PETITIONER RESPONDENTS WRIT PETITIONNo. 2820 of 2002 Amardeep Talkies, Tb-ough: Its Manager, Near Shastri Bazar, Raipur, Chhattisgarh. VERSUS Raipur Cinema Operators & Karmachari Sangh, through : Bilas Sudarshanwar, President, Raipur, Chhattisgarh. WRIT PETITON UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Mamndra Shrivastava, Senior Advocate with Shri Afroz Khan, Advocate for the petitioner. Shri Pradeep Saxena, Advocate for the respondent. (Passed on ..^Mlday ofMarch, 2009) 1. . Challenge in this petition is to the order dated 16.11.2002 (Aimexure P/l) passed by the Labour Court in case No. 2/I.D. Act Claini/98 whereby the Labour Court, Raipur, in exercise of its jurisdiction under section 33-C.(2) read with sub section (5) ofthe Industhal Disputes Act, 1947 (for short 'the I.D. Act') decided tfae dispute raised by the respondent and passed the order accordingly. 2. The mdisputable facts, m nutshell, are that the petitioner is engaged m the business ofexhibition of cinema shows. The petitioner's cinema house was showi&g four daily shows i.e. from 12 noon to 3 p.m., 3 p.m. to 6 p.m., 6 p.m. to 9 p.m. and 9 p.m. to 12 mid-night. However, from 01.01.1997, it was decided by the petitioner to run only three shows i.e. from 12 noon to 3 p.m., 3 p.m. to 6 p.m. and 6 p.m. to 9 p.m on account ofheav'y losses in running of the late night show i.e. from 9 p.m. onwards. The respondent-Union filed a claim case before the Labour Court under provisions of 33-C.(2) read with sub section (5) of the I.D. Act. The respondent-Union claimed an award of Rs. 1,69,785.28/- as wages for the first show i.e. from 12 noon to 3 p.m. on the ground of the same being additional show. The Labour Court, while exercising its power under section 33-C.(2) read with sub section (5) ofthe I.D. Act, passed the award and directed the petitioner to pay a sum ofRs. 1,69,785/- for running additional show fi-om 12 noon to 3 p.m. Thus, this petition. 3. Shri Manindra Shrivastava, leamed Senior counsel appearing for the petitioner submits that the Labour court has passed the award beyond its jurisdictiori as section 33-C.(2) read with sub section (5) of the I.D. Act, provides for recovery ofmoney due from an employer. It was next contended that the proceedings under pi-ovisions section of33-C.(2) oftheI.D. Act is like an execution proceeding wherein the benefrts if any, is accrued to the employer on account of settlement of claim or award passed by the Labour Court can be recovered. The dispute with regard to claim cannot be determined/settled by the Labour Court under provisions of section 33-C.(2) of the I.D. Act. The members of the respondent-Union were employed to work for three shows and ifthere was a fourth show in a day, the members of the respondent-Union were entitled to additional payment. M.P. Government notification No. 5404-3429/2-A-(3) dated 10th November, 1960 provides tl;at the standard practice was to screen films daily in three shows all over the country. The standard time fixed forthe shows was 3 p.m. to 6 p.m., 6 p.m. to 9 p.m. and 9 p.m. to 12 p.m. Ifthere was any fourth show, the members of respondent-Union may be entitled to additional payment for addition show. Any show starting at 12 noon to 3 p.m.cannot be treated as additional show. Thus, the impugned order is perverse, beyond jurisdiction and deserves to be quashed. 4. Shri Pradeep Saxena, leamed counsel appearing for the respondent-Union, per contra, would contend in support of the order passed by the Labour Court. 5. I have heard leamed counsel appearing for the parties, perused the pleadings an.d documents appended thereto. It is evident that the application was filed under provisions ofsection 33-C.(2) read with sub section (5) ofthe I.D. Act by the respondent-Union for awarding additional payment for additional show which started at 12 noon. The Labour court observed that the last show of 9 p.m. to 12 mid-night was closed without any intimation to the employees. As per notification, regular three shows ofa day were 3 p.m. to 6 p.m, 6 p.m. to 9 p.m. and 9 p.m. to 12 mid night. Thus, closure ofthe last show starting at 9 p.m. and running the show in place of last show at 12 noon, was additional show. Accordingly, the award was passed. In another case, i.e. 2/1T/1980 (President, Raipur Cinema Operators and Kannachari Sangh Raipur vs. Manager, Amardeep Talkies, Raipur), the Labour Court in reference, passed the award and held as under: I have gone through the terms of the compromise and they being legal an award in terms of the compromise is ordered to be recorded as under: (1) That the workers will be paid wages as fixed by the Govemment of Madhya Pradesh under Minimum Wages Act, as may be notified from time to time for cinema. 6. (2) That the spread over will be &om 12.00 noon to 12.00 mid-night for four shows. If the cinema owner run the fourth show, the employees will be paid 3A exb-a wages for the day including additional D.A. In case of exigency, when due to unavoidable reason the fourth show is not mn, the workers will not get extra wages for that show, otherwise, they are entitled to 3/4 wages which shall include D.A. also. (3) As the workers are covered by the E.S.I. scheme, the workers do not press the demand for insurance scheme. (4) The workers as they have reached to a compromise with the cinema owner, for all the reference, they do not press their other demands. (5) That this compromise shall remain in force till 1999. (6) That this award shall be operative with effect from 1.5.1989." It was held that the shows mn by fhe petitioner would be from 12 noon to 12 mid night for four shows. If the cinema owner runs the fourth show, the employee will be paid 3/4 extra wages for the day including additional D.A. In case of exigency, due to unavoidable reasons, the fourth show is not run, the workers will not get extra wages for that show. Otherwise, they are entitled to 3/4 extra wages which shall include D.A. also. The Labour Court, in the impugned order has tried to execute the award dated 6 May, 1989 passed in reference No. 2/I.T./1980 (Annexure P/2). It is no where provided in the award that if a show of 9 p.m. to 12 mid-night closes and in place of that, a show starts at 12 noon, the sai-ne shall be treated as additional show. The learned Court, it appears has exceeded its jurisdiction in exercise of its power under section 33-C.(2) of tfie I.D. Act and passed Ae award, considering claim ofthe petitioner a fresh. 7. Forbenefit, section33-C.(2) and(5) oftheI.D. Actreadsasunder: "33.C. Recovery ofmoney due from an employer. (1) XXX XXX XXX 8. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable ofbeing 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 Govemment [within a period not exceeding three months]: (3) xxx xxx xxx (4) xxx xxx xxx (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 mles as may be made in this behalf, a single application for the recovery of the ai-nount due may be made on behalfofor in respect ofany number ofsuch workiiien. The Supreme Court, in Municipal Corporation ofDelhi v. Ganesh Razak and another observed as under: 9. "12. The High Court has referred to some of these decisions but missed the tme import thereof. The ratio of these decisions cleariy 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 Section 33-C(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 ofits power under Section 33-C(2) oftheAct. It is only when the entitlement has been earlier adjudicated or recognised 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 Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose ofits execution." Thus, the Labour Court directed payment of inoney which has been determined in the facts of the case wherein the Labour Court in earlier reference has not decided that any show which commences at 12 noon be treated as additional show. The dispute requires adjudication which cannot be (1995)1 SCC 235 done in this application filed under section 33.C(2) read with section (5) of the I.D. Act. Thus, the order passed by the Labour Court is beyond < jurisdiction and is accordingly quashed. The members of the respondent Union are at liberty to take appropriate steps firstly for determination oftheir claim before taking recourse to provisions ofsection 33.C(2) ofthe I.D. Act. 10. In U.P. State Road Transport Corporation v. Birendra Bhandari, the Supreme Court, observed as under: 7. The benefit which can be enforced under Section 33-C(2) is a pre-existing benefit or one flowing from apre-existing right. 8. In State Bank oflndia v. Ram Chandra Dubey this Court held as under: (SCC pp. 77-78, paras 7-8) "7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal md in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen. 8. The principles enunciated in the decisions referred by either side can be summed up as follows: Whenever a workman is entitled to receive from his employer any money or any benefit which is capable ofbeing computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) oftheAct. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right (2006) 10 SCC 211 11 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 wifliiH jurisdiction of Labour Court exercising powers under Section 33-C(2) oftheAct while the latter does not. It caimot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as tiie specific question ofthe relief granted is confined only to the reinstatement without stating anything more as to the back wages. Herice that reliefmust be.deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate fomm wherein such question ofback wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon remstatement, a workman w^uld be entitled, under the terms ofaward, to all his arrears oTpay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court oughf not to have presumed that fhe award of the Labour Court for grant of back wages is implied in the relief of reinstatement or fhat the award of reinstatement itselfconferred right for claim ofbackwages. The ratio as enunciated in UPSRTC (supra) has been referred with approval in Vijay Kumar & Othersv. Whirl PoolofIndiaLimited& Others . .:.!/ 12. For the reasons mentioned hereinabove, this petition is allowed. The aiTiounf deposited pursuant to the order dated 25.6.2004 shall be refanded back to the petitioner. Costs easy. __ Amif