1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.1385/02 RSRTC, Jhalawar vs. Shri Narendra Kumar Lohia & Anr. Date of order : 29/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashok Bansal for the petitioner. Shri Akhil Simlote for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner RSRTC against the award passed by the Labour Court, Kota dated 8.1.01 whereby the said Court allowed the application filed by the respondent- workman under Section 33-C(2) and directed the petitioner to pay to him salary at par with similarly situated employees in terms of the award passed by the Labour Court, Kota dated 22.12.1983 by notionally arriving at such salary calculating the benefits of suspension period, the period during which the respondent-workman remained out of employment, the selection scale and also notionally calculating the benefits of 2 selection scale by treating the period during which he was out of service and then pay to him whatever amount is found due within one month. Shri Ashok Bansal, learned counsel for the petitioner has argued that the order of this nature could not be passed by the Labour Court in the scope of Section 33-C (2) as this would amount to adjudication of a fresh cause which was not subject matter of reference made to the Labour Court earlier which was decided by award dated 22.12.1983. It was argued that even otherwise, the respondents could not be entitled to benefit of selection scale because he was actually not serving during the intervening period between the date of retrenchment and date of reinstatement and that only notional benefits have been ordered to be given to him and therefore this period would not be treated as experience in service in terms of relying on government instructions for the purpose of grant of 3 selection scale. It was argued that even if selection scale is granted to other employees that by itself would not be a reason to grant such benefit, may be on notional basis, to the respondent-workman because his case would have to be considered afresh on its own merits. Learned counsel argued that Labour Court has exceeded its jurisdiction under Section 33-C(2) while passing the award. He in this connection relied on the judgement of Supreme Court in Municipal Corporation of Delhi vs. Ganesh Razak & Anr.-1995 1 L.L.N. Page 402. Shri Akhil Simlote, learned counsel for the respondent-workman opposed the writ petition and argued that Labour Court in the aforesaid award while answering the reference in the terms that removal of the respondent-workman was illegal, directed the petitioner management to reinstate him in service without back wages but with continuity in service. It was argued that the salary of 4 petitioner would be fixed at the same level at which other workmen were receiving such salary at the present. It was argued that the Labour Court in the scope of Section 33-C(2) can make computation of payable sum in terms of the pre-determined entitlements, which is what has been done by the Labour Court in the impugned order. The adjudication of the dispute having already been taken place in the award dated 22.12.1983 and culminated into relief aforesaid, there can be now no option for the petitioner except to make payment of the salary at par with the other similarly situated workman which in any case would be paid to the respondent only from the date of reinstatement and for the intervening period, such salary would be calculated only on notional basis. Having heard learned counsel for the parties and perused the material on record, I find that although it may be correct that the Labour Court in the 5 scope of Section 33-C(2) cannot determine the entitlement of the workman to receive benefit of selection scale, the notional benefits of suspension period, during which the workman remains out of service and the selection scale by calculating the period during which he has so remained out of service, but the order passed by the Labour Court under Section 33-C(2) in the present case will have to be viewed in the light of what was ultimately granted as a relief to the respondent-workman by the Labour Court after adjudication of the industrial dispute in its award dated 22.12.1983. The Labour Court clearly directed the petitioner management to fix the salary of the respondent-workman at par with the workmen who were working with the respondent-workman at the time of his removal i.e. to say, the similarly circumstanced workman all that time, if during the period when the respondent- workman was out of service, similarly 6 circumstanced workmen have received the benefits of selection scale, i.e. as to in what manner ultimately payable sum as salary to the respondent-workman would be arrived at and that is directed to be done only on notional basis coupled with calculation of salary and payable increments etc. for the intervening period of suspension as also subsequent to the period from which respondent- workman was out of service. It cannot therefore be said that the Labour Court in the impugned order has passed fresh direction for granting all these benefits to the respondent-workman because what has been directed is ultimately exposition of what was granted as relief to the respondent. The judgement of Supreme Court on which reliance has been placed by the learned counsel for the petitioner also was to the same effect that the Labour Court in the scope of Section 33-C(2) cannot adjudicate the dispute relating to entitlement of 7 workmen to parity in wages. Power under Section 33-C(2) can be exercised only when entitlement has been earlier adjudicated upon or recognised by the employer. It was held that jurisdiction of the Labour Court under Section 33-C(2) is similar to that of Executing Court. There can be a quarrel with the proposition of law as laid down by the Supreme Court in Ganesh Razak, supra, because in the present case also what has been directed by the Labour Court under Section 33-C(2) is based on entitlement of the respondent-workman which had earlier been adjudicated upon. It is not in dispute that the award dated 22.12.1983 has attained finality and therefore the petitioner cannot be permitted to circumvent the award and avoid making compliance thereof by not paying whatever flows from the same. All that has been directed is to calculate the sum notionally arrived at which is found payable as salary to the 8 respondent-workman on the date of reinstatement and it has been directed that if the petitioner failed to pay the aforesaid due salary within a period of one month, they shall be further liable to pay to the respondent-workman interest @ 18% from the date the respondent- workman filed application with the Labour Court on 15.2.1996 till the actual date of payment. In view of aforesaid discussion, I do not find any merit in the present case, which is dismissed. It is however directed that in case the petitioner management pay to the respondent-workman the aforesaid benefits within a period of three months, they shall be liable to pay interest @ 9% per annum because interest rate of 18% appears to be excessive, therefore, the same is reduced to 9%. This direction was rightly issued because legitimate entitlements of the respondent-workman were withheld by the petitioner-management for such a long 9 time. Compliance of the judgement be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/