1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.89 OF 2008 Pioneer Embroideries Ltd., ) a Public Limited Company, ) registered under the Companies ) Act, 1956, having its Registered & ) Corporate Office at Hakoba ) Compound, Near Magathane ) Telephone Exchange, ) Western Express Highway, ) Borivali (East), Mumbai – 400 066 ) and having one of its factory units ) at Dadra and Nagar haveli Silvasa. ) .. Appellant (Org. Petitioner) Versus 1. Prithvi Singh, ) 2. Raja Singh, ) 3. Ranvijay Yadav, ) 4. Dinesh Kumar, ) 5. Rajit Shah, ) 6. Saroj Shah, ) 7. Arvind Rohit, ) 8. Arvind Patel, ) 9. Ravi Sarvaker, ) 10.Avinash Rathod, ) 11.Abhu Raj yadav, ) 12.Devendra Raut, ) 13.Harikrishna Nayak, ) 14.Harish Chand Nayak, ) 15.Sanjit Kumar, ) 16.Hiralal yadav, ) 17.Hrishikesh Shetty, ) 18.Ishwar Singh, ) 19.Janai Jaiswal, ) 20.Jitendra Nayak, ) 21.Jayed Khan, ) 2 22.Kulmani Pradhan, ) 23.Radhey Shyam Shetty, ) 24.Sapal Maity, ) 25.Subhash Prasad, ) 26.Sanil Paswan, ) 27.Suresh Jai Singh, ) 28.Jagannath Shetty, ) 29.Tarun Paswan, ) 30.Amritlal Vama, ) 31.Chandrabhan Singh, ) 32.Yogesh Prajapati, ) 33.Amit Kumar Gupta, ) 34.Shankar Panigrahi, ) 35.Paragh Rajbar, ) 36.Saroj mahakal, ) 37.Tulsi Ram, ) 38.Malan Gurang, ) 39.Awadhesh Maurya, ) 40.Amar Pathy, ) 41.Gangh Gangwa, ) 42.Raj Kumar Jaiswal, ) 43.Mukesh Tembekar, ) 44.Pravin Pandey, ) 45.Ram Naresh yadav, ) 46.Jinta Nath, ) 47.Ramdhin Singh, ) 48.Devindhar Pradhan, ) 49.Sabhajeet Tiwari, ) 50.Deepa Deka, ) 51.Rakesh Bangram, ) 52.Jitendra Yadav, ) 53.Kashi Kishan, ) 54.Sanjay Bohra, ) 55.Awadhesh Kishore, ) 56.Shashi Prakash, ) 57.Virendra Munya, ) 58.Prabhakar Nayak, ) 59.Surendra Singh, ) 60.Mrutanjay Barik, ) 61.Kabir Das, ) 3 62.Pralad Nayak, ) 63.Pramod Barik, ) 64.Prajact Behra, ) 65.Prasant Raut, ) 66.Sanjay Lama, ) 67.Sanjay Prajapati, ) 68.Sankta Pd. Varma, ) 69.Santosh Barik, ) 70.Shiv Prasad Nayak, ) 71.Subhash Shetty, ) 72.Md. Kabiroal, ) 73.Md. Mustafa, ) 74.Md. Shahbul, ) 75.Md. Shambhurul, ) 76.Narayan Behra, ) 77.Narayan Das, ) 78.Naragh Ravi, ) 79.Pawan Kumar, ) 80.Raghunath Shetty, ) 81.Rajendra Jaiswal, ) 82.Rameshwar Ravi, ) 83.Ratan Das, ) 84.Rohit Kumar Sahu, ) 85.Rahul Das, ) 86.Samir Dey, ) 87.Sandeep Ku. Singh, ) 88.Sanjay Ku. Yadav, ) 89.Santosh Patnayak, ) 90.Arun Pd. Kushwaha, ) 91.Chotelal Yadav, ) 92.Dabloo Paswan, ) 93.Deepak Rai, ) 94.Jaisingh Yadav, ) 95.Kaleshwar Paswan, ) 96.Gajadhar yadav, ) 97.Kalindi Das, ) 98.Kuldeep Sahani, ) 99.Manoj Rai, ) 100.Santnu Chinta, ) 101.Sopad Chand Das, ) 4 102.Shashi Kant Barik, ) 103.Shashi Kant Barmah, ) 104.Shri Kant Khamdevi, ) 105.Vijay Munji, ) 106.Sanay Pal, ) 107.Sadhu Charan, ) 108.Nirakar Behra, ) 109.Amita, ) 110.More Pandit, ) 111.Pitambar Chamaraj, ) 112.Ram Jana Jaiswal, ) 113.Ram Saran Tewa, ) 114.Sadapa Bora, ) 115.Amarjeet Morya, ) 116.Sanjay Chauhan, ) 117.Mansoor Ahmed, ) 118.Shyam Sunder Nayak, ) 119.Babul Das, ) 120.Narayan Joshi, ) 121.Rajkumar Chapgai, ) 122.Vimal Ram, ) 123.Vinay Ram, ) 124.Vinod Jaiswal, ) 125.Vinendra Yadav, ) 126.Vishnu Pragad Ghamiya, ) 127.Wagival Sahani, ) 128.Ashok K. Varma, ) 129.Baleshwar Gupta, ) 130.Bindu Madhav Joshi, ) 131.Dashrah Behra, ) 132.Sudarshan Behra, ) 133.Sudarshan Senapati, ) 134.Sunil Jaiswal, ) 135.Surendra Raut, ) 136.Tapan Panda, ) 137.Umakant Behra, ) 138.Vibha Bhigha Behra, ) 139.Vijay Dangi, ) 140.Amar Prem, ) 141.Atmaram Kadam, ) 5 142.Jagdish Malpahi, ) 143.Prabhu M. Patel, ) 144.Khagendradas, ) 145.Narayan Thapa, ) 146.Satrughan Paswan, ) 147.Girish Deka, ) 148.Hiralal Khati, ) 149.Udayrao Yadav, ) 150.Manoj Mohanti, ) 151.Anirudh Yadav, ) 152.Anil Jaiswal, ) 153.Babulal Panigrahi, ) 154.Deerpak Samant, ) 155.Dinesh Pawwan, ) 156.Gopi Chand, ) 157.Jay Bmdhu Pillai, ) 158.Jatin Nath, ) 159.Laxman Yadav, ) 160.Lingraj Kathai, ) 161.Moni Deka, ) 162.Navin Barwa, ) 163.Om Prakash, ) 164.Rajesh Sanapat, ) 165.Ramesh Chellu, ) 166.Ramesh Jaiswal, ) 167.Ranjan Nayak, ) 168.Ravindra Sahu, ) 169.Sanatan Nayak, ) 170.Santosh Lehra, ) 171.Santosh Nayak, ) 172.Suraj Patnayak, ) 173.Subhash Rout, ) 174.Sukumar Panigrahi, ) 175.Sunil Kumar Pandey, ) 176.Suresh Kumar Gupta, ) 177.Umesh Kumar Gupta, ) 178.Virendra jaiswal, ) 179.Vinod Paswan, ) 180.Champak Deka, ) 181.Manoj Kumar Gupta, ) 6 182.Pankaj Kumar Singh, ) 183.Prabhatra Barik, ) 184.Prakash Adherhrit, ) 185.Prakash Rathor, ) 186.Sodhar Shah Dhal, ) 187.Tapan Panigrahi, ) 188.Vimalchand Nath, ) 189.Jayant Deka, ) 190.Anand Pradhan, ) 191.Budheshwar Deka, ) 192.Dalal Bora, ) 193.Ganesh Sahu, ) 194.Himanshu Mahakal, ) 195.Jaychand Singh, ) 196.Jintumani Deka, ) 197.Krishna Biswal, ) 198.Krishna Savakoti, ) 199.Mahesh nath, ) 200.Mohd. Fazif, ) 201.Prashant K. Behra, ) 202.Raju Deka, ) 203.Sanjiv Deka, ) 204.Sohan Singh, ) 205.Susant Kumar, ) 206.Uttam R. Patel, ) 207.Subhash Pravapati, ) 208.Sumant Patra, ) 209.Indra Bahadur, ) 210.Rajesh Dhar, ) 211.Birenchi Sahu, ) 212.S.K. Salin, ) 213.Kalyan Singh, ) 214.Susant Mohanti, ) 215.Pradeep Setth, ) 216.Narendra Nayak, ) 217.Suraj Kumar, ) 218.Mirakar Das, ) 219.Bharat Duri, ) 220.Anwar Alam, ) 221.Deepak Sahu, ) 7 222.M. A. Indrish, ) 223.Ishwar Singh, ) 224.Kadir Mohammed, ) 225.Salman Khan, ) 226.Usman Ali, ) 227.Zakir Hussain, ) 228.Anil Kumar Singh, ) 229.Arun Gahahi, ) 230.Ashok Jaiswal, ) 231.Ashok Sahu, ) 232.Babar Ali, ) 233.Bhavin Rai, ) 234.Devendra Jaiswal, ) 235.Dinesh Pal, ) 236.Gajendra Shetty, ) 237.Gajadhar Barik, ) 238.Gadhuri Behra, ) 239.Gunanidhi Sahu, ) 240.Khirodhar Paswan, ) 241.Khigendra Barik, ) 242.Lalan Mukhiya, ) 243.Manoj Verma, ) 244.Md. Aktar, ) 245.Md. Dabool, ) 246.M.Z. Fazir, ) 247.Nirmall Behra, ) 248.Nityanand Biswai, ) 249.Sushil Nayak, ) 250.Susil Rai, ) 251.Sonkherkar, ) 252.Sukumar Behra, ) 253.Surehs Patel, ) 254.Tiku Prasad, ) 255.Vorasenkar, ) 256.Goverdhan Rana, ) 257.Kalicharan, ) 258.Muni Bhushan Yadav, ) 259.Prakash Raut, ) 260.Rajesh Gupta, ) 261.Santosh Raut, ) 8 262.Shashikant Shetty, ) 263.Shyam Sunder Behra, ) 264.Sukhdev Behra, ) 265.Tukna Biswal, ) 266.Vijay Behra, ) 267.Ashok Mandal, ) 268.Vilash Chotu, ) 269.Kali Das, ) 270.Leelaben Marsi, ) 271.Meena Raman, ) 272.Parvati Vasant, ) 273.Savita Navin, ) 274.Damodar Mallik, ) 275.Gurupal Samant, ) 276.Mirdal Das, ) 277.Niranjan Mohanti, ) 278.Padam Bemudar, ) 279.Sisir Deka, ) Address for all: ) C/o. Gujarat Rajya Kamdar ) Sena at PO Soldhara, ) Mochiwad, Tal.: Chikhli, ) Dist.: Navsari. ) .. Respondents (Org. Respondents) -- Shri C.U. Singh i/by Abhay Kulkarni & Associates for the Petitioner. Ms Bhavna Shah for the Respondents. -- CORAM: SWATANTER KUMAR, C.J.& S.A. BOBDE, J JUDGMENT RESERVED ON : 3RD DECEMBER, 2008 JUDGMENT PRONOUNCED ON : 11TH DECEMBER, 2008 JUDGMENT : ( PER SWATANTER KUMAR, C.J. ) 9 The ambit and scope of the provisions of Section 33-C(2) of the Industrial Disputes Act, 1947, hereinafter referred to as the Act, is the only question that arises for consideration of the Court in this facts and circumstances of the present appeal. A number of workmen of the Appellant Company filed a Petition under Section 33-C(2) of the Act before the Central Government Labour Court at Silvasa claiming overtime wages for the period from 23rd August, 1998 to 29th March, 2003 approximately Rs.2,03,768/- on assertions that they were workmen of the Company for many years and had been working on for the said period. The Appellant-Company is an establishment to which the provisions of the Factories Act and Industrial Disputes Act are applicable. Their normal working hours from 7.00 a.m. To 7.00 p.m. and from 7.00 p.m. To 7.00 a.m., i.e. 12 hours per day. Thus, they claimed overtime wages for working four hours every day except from the holidays, and therefore, filed the Petition. They also claimed interest at the rate of 18% per annum per day. The claim of the Applicants was disputed by the Company. A preliminary objection was raised that the 10 application under Section 33-C(2) of the Act was not maintainable and was liable to be rejected as it was not based on any pre-requisite rights. Thus, the Court has no jurisdiction to adjudicate the claim for overtime as the workmen must get their claim decided by appropriate forum as condition precedent for invoking this provision, while on merits contending that the Company had continued with two tier system. The Company further contended that as a result of settlement entered into between Gujarat Rajya Kamdar Sena under Section 2(P) read with Section 81 of the Act and the workmen being signatory to the said settlement now cannot turn back to raise such claim contrary to the terms of the settlement. The workmen were working for 8 hours as per law and no complaint has been raised for all this time and prayed that the application be rejected. 2. From the record, it appears that vide order dated 26th September, 2006 the Labour Court had framed the following issues as regards to jurisdiction and maintainability. 11 “1. Whether claim is maintainable ? 2. Whether this Court has jurisdiction to entertain the plaint ?” 3. After framing the issues, the Labour Court vide its order dated 5th December, 2006 answered partially the issues in the affirmative and while keeping the questions open, held as under: - “11. Therefore, according to me unless evidence is recorded, unless parties get opportunity of hearing this court straight away cannot confirm any opinion about existence or non-existence of pre-existing right in the given circumstances, and facts of the case. Therefore, according to me at this stage before recording of any evidence all the applications are maintainable and this court has jurisdiction to proceed with the matters. Therefore, I held findings of Issues No.1 and 2 is affirmatives. The point for maintainability and jurisdiction is kept open for arguments at the final stage of the matter.” 4. Aggrieved by the said order, the Company filed Writ Petition in this Court. The learned Single Judge rejected the Petition summarily vide order dated 14th January, 2008 giving rise to filing of the present Letters Patent Appeal. The contention raised on behalf of the Appellant before us is that in 12 terms of the provisions of Section 33-C(2) of the Act, the Labour Court has jurisdiction to entertain and decide the application which is in the form of execution proceedings and it cannot enter upon and/or adjudicate other issues which are for establishment of the claim. It is only a claim which has to be a determined or a settled claim, the computation of which or otherwise claimed in relation to which can be raised in an application under Section 33-C(2) of the Act. As the very right of the workmen to receive overtime has been disputed, this controversy would fall beyond the scope of the provisions of the Act. In support of the contentions, reliance has been placed on the judgments in Municipal Corporation of Delhi Vs Ganesh Razak & Anr., 1995 LLR 161 (SC), Gujarat Water Supply and Sewerage Board & Anr. Vs Ketanbhai Dinkarray Pandya, Amroli, 2003 III CLR 316 ( Guj. D.B.), and Tata Consulting Engineers & Associates Staff Union Vs Tata Consulting Engineers & Ors., 1996 I CLR 1038 (Bom.D.B.). 5. It is also contended that the learned Single Judge has recorded the finding on the issue of maintainability while the 13 same was kept open by the Labour Court in its order dated 5th December, 2006. The Learned Single Judge thus has even varied the order of the Labour Court while there was no challenge by the workmen to the said order. The finding that the claim of overtime wages is recognised under the Factories Act and therefore, it cannot be said that the application for claiming recovery of overtime wages made by the workmen is not maintainable and as such held that the application was maintainable. This finding is contrary to law and error on the face of record. While making this argument, learned Counsel appearing for the Respondents relied upon the judgments in The Central Bank of India Ltd. Vs P.S. Rajagopalan etc., AIR 1964 SC 743 and Namor Ali Choudhury & Ors. Vs The Central Inland Water Transport Corporation Ltd. & Anr., AIR 1978 SC 275 and primarily relied upon a decision in the case of The Central Bank of India Ltd.' s (supra), Constitutional Bench, that the scope of Section 33-C(2) is not limited and can be gone into by the Labour Court in exercise of its jurisdiction under Section 33-C(2) of the Act. It is also argued that the labour Court has to finally decide the matter but the findings indicated by the learned 14 Single Judge in the impugned order are correct and are in accordance with law. The various judgments relied upon by the learned Counsel appearing for the respective parties, the principle of law is commonly stated in all these judgments except to the extent in the facts of a given case, the Court has held that remedy under Section 33-C(2) would be maintainable while in some other cases it has been held that such application was beyond the scope of the said provisions. In the case of Municipal Corporation of Delhi (supra), the Supreme Court took the view that the claim for equal pay for equal work being not a pre-adjudicated matter for claim for such workmen was beyond the scope of provisions of Section 33-C(2). The learned Counsel appearing for the Company while making special reference to the observations of the Supreme Court in Union of India & Anr. Vs Kankuben (Dead) by Lrs & Ors, 2006 LLR 494 (SC) and D.Krishnan & Anr. Vs Special Officer, Vellore Cooperative Sugar Mill & Anr., (2008)7 SCC 22, argued that the claim of overtime for which slips are required to be issued in accordance with the provisions of T.N. Factories Rules, 1950. The Supreme Court had taken the view that these were 15 disputed facts and the case for invocation of Section 33-C(2) was not made out. In the case of Municipal Corporation of Delhi (supra), the Supreme Court had also noticed earlier judgment of the Supreme Court including the Chief Mining Engineer, East India Coal Co. Ltd. Vs Rameshwar & Ors., 1968 (1)SCR 140. Thus, the consistent view was that where the claim is not based on a prior adjudication made, in the Writ Petition filed by the workmen, remedy under summary procedure was not invokable. 6. We have already noticed that the proceedings under Section 33-C(2) of the Act are a kind of summary proceedings, equatable to execution proceedings and like an Executing Court, the Labour Court can neither go behind the order determining the claim nor can it determine controversies, if raised, with regard to existence of a right to receive any benefit as the claim has to be pre-determined or based upon an award or a settlement or any other determinative document. In some other cases, the Supreme Court and some Benches of this Court have taken a view that even certain larger questions can 16 be gone into by the Labour Court. In the case of Namor Ali Choudhury (supra), the Supreme Court formulated questions in paragraph 4 of the judgment including where there is any settlement or award as alleged and what amount the workmen were entitled to receive if any and rate and quantum of such amount. A dispute as to all such questions or any of them attract the provisions of under Section 33-C(2) of the Act. It will be useful to refer to dictum laid down by the Constitutional Bench of the Supreme Court in The Central Bank of India Ltd.' s case (Supra), which reads as under:- “15. The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted S.33-A in the Act in 1950 and added S. 33-C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to S. 10(1) of the Act, or without having to depend upon their Union to espouse their cause. Therefore, in construing S. 33-C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of S. 33-C cases which would fall under S. 10(1). Where industrial disputes arise 17 between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under S. 10(1). These disputes cannot be brought within the purview of S. 33C. Similarly, having regard to the fact that the policy of the Legislature in enacting S. 33C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. In other words, though in determining the scope of S. 33C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under S. 10(1) of the Act for instance, cannot be brought within the scope of S. 34C. 16. Let us then revert to the words used in S.33C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-sec. (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer ? According to the appellant, the scope of sub-s.(2) is similar to that of sub-s. (1) and it is pointed out that just as under sub-s.(1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-s. (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and 18 reasonable construction of sub-sec. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub-sec.(2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The Clause “Where any workman is entitled to receive from the employer any benefit” does not mean “where such workman is admittedly, or admitted to be, entitled to receive such benefit”. The appellant's construction would necessarily introduce the addition of the words “admittedly, or admitted to be” in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be 19 preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). As Maxwell has observed “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution”. We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claimed 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. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-s.(3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-s.(2). 17. It is, however, urged that in dealing with the question about the existence of a right set up by the workman, the Labour Court would necessarily have to interpret the award or settlement on which the right is based, and that cannot be within its jurisdiction under S. 33C(2), because interpretation of awards or settlements has been specifically and expressly provided for by S.36A. We have already noticed that Section 36A has also been added by the Amending Act No.36 of 1956 along with S. 33C, and the appellant's argument is that the legislature introduced the two sections together and thereby indicated that questions of interpretation fall within 20 S. 36A and, therefore, outside S. 33C(2). There is no force in this contention. Section 36A merely provides for the interpretation of any provision of an award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such cases that S. 36A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties resolved and that remedy is now provided by S. 36A. But the scope of S. 36A is different from the scope of S. 33C(2), because S. 36A is not concerned with the implementation or execution of the award at all, whereas that is the sole purpose of S. 33C(2). Whereas S.33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, S. 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under S.36A.” 7. As is evident from the above stated principles that the jurisdiction of the Labour Court is not so limited or narrow so as to dismiss the application filed by the workmen at the threshold itself. Besides, if some ancillary questions are to be 21 dealt with and/or decided by the Labour Court, determination or adjudication of a right itself may not squarely fall within the scope of these provisions. But, certainly, like in the present case, where the workmen, while relying upon the provisions of the Factories Act and even partial admission of the Company that the workmen were working 8 hours as per law and the Labour Court leaving the questions open till