CIVIL WRIT PETITION NO.16479 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 28, 2010 Punjab Roadways, Moga .....Petitioner VERSUS Chamkaur Singh and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Monica Chhibber Sharma, DAG, Punjab, for the petitioner. Mr. R. S. Sihota, Sr.Advocate with Mr. B.R.Rana, Advocate, for respondent No.1. **** RANJIT SINGH, J. The Presiding Officer, Labour Court, Bhatinda, had passed an award on 14.9.1990, holding Chamkaur Singh (respondent No.1) entitled to reinstatement with continuity of service and with full back wages. Respondent No.1 was directed to report for duty within 30 days of publication of the award. It is stated that respondent No.1 did not report for duty, though the petitioner had passed an order dated 13.5.1991, taking him back on duty with effect CIVIL WRIT PETITION NO.16479 OF 2009 :{ 2 }: from the said date as daily wager at the rate approved by the Deputy Commissioner, Faridkot. Reference in this regard is made to the copy of the order, which is annexed with the petition as Annexure P- 3. It is also averred that the copy of this order was sent to respondent No.1 through Shri Baldev Singh, Daftri, but he was not available at his residence. Another employee, namely, Gurdev Singh was also sent to the residence of respondent No.1 but he was not found available. A registered notice dated 16.5.1991 was then sent but was never received back. From this, it was assumed that respondent No.1 was never interested in rejoining the duty. He was found working as Commission Agent in Grain Market, Moga. Suddenly, however, the petitioner has been confronted with a recovery order passed by the Assistant Collector-cum-Assistant Labour Commissioner, Moga, requiring the petitioner to deposit an outstanding amount to the tune of ` 10,66,136/-. Terming this order to be illegal, the petitioner has filed the present writ petition to impugn the same on the ground that it is illegal, wrong, malafide, arbitrary and against the rules besides being in violation of the principles of natural justice. The amount of recovery, as ordered, is challenged on the plea that respondent No.1, at the most, would be entitled to the back wages from the date of retrenchment to the date of award and not for any subsequent period. Reference is made to the writ petition filed by respondent-workman for implementing the award passed by the Labour Court in the year 2003, which was dismissed on 27.11.2006 by a Division Bench of this Court. It was pointed out before this Court CIVIL WRIT PETITION NO.16479 OF 2009 :{ 3 }: that the respondent-workman had already moved an application for enforcement of the award and the writ petition was, therefore, held not maintainable. Notice of motion was issued and reply has been filed. The order of recovery has been justified primarily on the ground that there is an award standing in favour of the respondent- workman, which has not been implemented and hence, it is prayed that the writ petition be dismissed. The counsel appearing for the State would submit that the certificate for a sum of ` 10,66,136/- could not have been passed in a manner done by the Assistant Collector. As per the counsel, there are number of disputed questions of facts, which have not been considered at all and the impugned order passed. The counsel would also challenge the jurisdiction of the Assistant Collector to entertain application under Section 33-C (1) of the Industrial Disputes Act (for short, “the Act”). In support, heavy reliance is placed on the case of Lalit Engineering Works and another Vs. Ram Kishore and two others, 1981 (59) FJR 54. The facts in Lalit Engineering Works' case (supra) are somewhat similar to the facts in the case in hand. The workman in this case was ordered to be reinstated and directions were issued to take him back in service. The workman thereafter had filed an application under Section 33-C(1) for recovery of arrears of pay for two years from the date of award and certificate for recovery was issued accordingly. This was ultimately challenged by filing a writ petition before this Court solely on the ground that the State Government or its delegatee under Section 33-C(1) of the Act has no CIVIL WRIT PETITION NO.16479 OF 2009 :{ 4 }: jurisdiction to issue certificate because the sum claimed was neither due under the award nor the management had admitted its liability to pay the said amount. The dispute in the case of Lalit Engineering Works' case(supra) was also on the basis of the respective stands taken by the management and the workman. As per the management, the workman had never reported for duty and accordingly no amount was due to him on account of pay for any period beyond the date of award. The contention was that the amount claimed was neither due under the award nor the right of the workman to this amount had been adjudicated upon in the award. The contention on behalf of the workman, however, was that it is only arithmetical calculation and, therefore, the application under Section 33-C (1) of the Act was maintainable. The Division Bench, in the case of Lalit Engineering Works (Supra) has further referred to another Division Bench judgement passed by this Court titled State of Punjab and others Vs. Malout Transport Company (Pvt.) Limited, 1963 (II) L.L.J. 40. The facts in Malout Transport Company (Pvt.) Limited (supra), were that the workman had moved an application for recovery of an amount due to him as night allowance on the basis of a settlement between the employer and employee. A certificate was, thus, granted under Section 33-C (1) of the Act for recovery of the amount, which was impugned by the management by filing a writ petition. Single Judge had allowed the petition, holding that settlement itself did not entitle the employee to receive any ascertained sum of money from the employer and, thus, it was not CIVIL WRIT PETITION NO.16479 OF 2009 :{ 5 }: open to the Labour Commissioner under Section 33-C (1) of the Act to decide what precisely may or may not be due to the employee and such questions have to be decided by the Labour Court. This view was affirmed in the L.P.A filed before this Court. In this case, the question addressed was regarding precise scope of Section 33-C(1) of the Act. Determining the relative scope of Sections 33-C(1) and 33-C (2), it is held that the appropriate Government or the officer to whom the appropriate Government has delegated its power under Section 33-C(1), has no power to decide disputed questions between the parties to grant relief to the concerned workman in respect of money claimed to be due under settlement or an award. After making reference to various precedents cited before the Court, it is held:- “As I have said, the Supreme Court's view seems perfectly clear, and it is that a provision of the kind contained in S.33 C (1) of the Industrial Disputes Act has to be considered narrowly and its scope is limited and that it is in the nature of execution of a settlement already arrived at. That being so, the view adopted by the learned Single Judge that the Labour Commissioner acting on behalf of the State Government is not competent to determine what allowance might be due to a particular workman in terms of the settlement of June 1955 seems well founded. The writ petition was allowed on that ground and the order of the Labour Commissioner and the recovery certificate quashed. There is, in my opinion, no reason to disturb that order, and I would, therefore, CIVIL WRIT PETITION NO.16479 OF 2009 :{ 6 }: dismiss both the appeals......” The Division Bench in the case of Malout Transport Company (Pvt.) Limited (supra), while taking the view noticed above, addressed itself a following poser:- “The question is whether the expression “where any money is due to a workman from an employer under a settlement” means money actually found due by that settlement, or whether it is intended to include what might possibly become due because of a settlement, for, in the latter case, a dispute would still be possible whether any amount has or has not become due, while, if the former is the meaning, then the dispute will have been settled by the award or the settlement itself.” As per the Division Bench, two opposite views were placed before Hon'ble Supreme Court in Kasturi & sons (Private) Ltd. Vs. N.Salivateeswaran & Others, [1958] 14 FJR 170. The question before the Supreme Court was whether the expression `where any money is due to the workman from an employer under settlement' means money actually found due by that settlement or whether it is intended to include what might possibly become due because of the settlement. It was observed that in the later case, a dispute would still be possible whether any amount has or has not become due while if the former is the meaning, then the dispute will have been settled by the award or the settlement itself. Thus, where enquiry raising several questions of fact is needed, then the State Government is not entitled to enter into and decide such matters. It follows that the person authorised by the State Government, namely, CIVIL WRIT PETITION NO.16479 OF 2009 :{ 7 }: the Labour Commissioner can also not do so either. Thus, the view which prevailed with the Supreme Court in Kasturi & sons (Private) Ltd.'s case (supra) was that such a tribunal is only concerned with ascertaining whether a sum of money already determined by an award or settlement has been paid. The argument before the Supreme Court was that it is only after the amount due to the employee has been duly determined that the stage is reached to recover that amount. According to that view, the State Government or the authority specified by the State Government has to hold a summary enquiry on a very narrow and limited point: Is the amount, which is found due to the employee, still due when the employee makes an application? The Supreme Court in that case interpreted the provision of S.17 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955, but S.17 of that Act was similar to S.33C(1) of the Industrial Disputes Act and the Supreme Court said so in the judgment. The Court accepted the argument set out above and formed the opinion that the scope of S.17 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, was narrow and limited and did not entitle the State Government to enter into disputed questions concerning the merits of a claim. One main reason in support of this view, which the Supreme Court accepted, was this that S.11 of the Industrial Disputes Act, which authorizes certain tribunals to call and hear evidence in accordance with the Civil Procedure Code, does not make any mention of the State Government or anyone else authorized by the State Government, and it was concluded, therefore, that the Act never intended to set up the State Government CIVIL WRIT PETITION NO.16479 OF 2009 :{ 8 }: or its delegate as an independent tribunal to decide disputed questions, and that all that the State Government could do was by way of execution of a settlement or an award. The Hon'ble Supreme Court further observed as under:- “In this connection, we may also refer to the provisions of S.33C of the Industrial Disputes Act 14 of 1947. Sub- Section (1) of S.33C has been added by Act 36 of 1956 and is modelled on the provisions of S.17 of the present Act. Section 33C, Sub-sec. (2), however, is more relevant for our purpose. Under S.33C, Sub Sec.(2), where any workman is entitled to receive from his employer any benefit which is capable of being computed in terms of money, the amount at which such benefit may be computed may, subject to any rules made under this Act, be determined by such labour court as may be specified in this behalf by the appropriate Government, and the amount so determined should be recovered as provided in Sub-sec. (1). Then follows Sub-sec. (3) which provides for4 an enquiry by the labour court into the question of computing the money value of the benefit in question. The labour court is empowered under this sub-section to appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the labour court, and the labour court shall determine the amount after considering the report of the commissioner and other circumstances of the case. These provisions indicate that, where an employee makes a claim for CIVIL WRIT PETITION NO.16479 OF 2009 :{ 9 }: some money by virtue of the benefit to which he is entitled, an enquiry into the claim is contemplated by the labour court, and it is only after the labour court has decided the matter that the decision becomes enforceable under S.33C (1) by a summary procedure.” All the above noted judgments are noticed by the Court in the case of Lalit Engineering Works' (supra) to hold that the claim to wages is necessarily dependent on post award facts such as reporting for work by the workman and refusal of the employer to allow him to do so. It is also observed that the workman can not contend that right of reinstatement and rate of pay having been settled by the award, it was only an arithmetical calculation which was required to be done and could be done under Section 33-C (1) of the Act as there could be no pronouncement in that award on the post award facts relevant to the claim. Setting-aside of the removal of the workman by the award was observed as only to be one of the factors and not the sole factor upon which the claim of the workman would depend. As the appropriate Government or its delegatee has no jurisdiction to pronounce on these facts, the claim of the workman to post award wages could not be covered by Section 33-C (1) of the Act and his remedy in this regard would be only under sub-section (2) of Section 33-C of the Act. The ratio of law laid down in the case of Lalit Engineering Works ' (supra) squarely apply to the facts of the present case. Here also, respondent No.1 has issued the certificate, which pertains to the post awards facts. There is a serious dispute raised by the petitioner that respondent No.2 was reinstated in CIVIL WRIT PETITION NO.16479 OF 2009 :{ 10 }: service but has not reported for work and, thus, it was a case of refusal on the part of workman. It was not a case of simple arithmetical calculation, which could be so made, and as held by this Court, appropriate remedy was only under Section 33-C (2) of the Act. In the present case, it is quite clear that the question simply is not and can not be whether under the award any particular sum of money still remains payable. Besides, it has not been explained as to how respondent No.2 waited for all these years before raising this demand, leading to passing of the impugned order on 25.8.2009. The proviso under Section 33-C (1) can not be easily ignored. Proviso lays down that every such application shall be made within one year from the date on which the money became due to the workman from the employer. As per the proviso, any such application may be entertained after the expiry of the said period of one year if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. There is no reason forthcoming as to why respondent No.2 did not make any application for recovery of this amount due to him consequent to the award passed by the Labour Court, which is dated 14.9.1990. Respondent No.2 has waited for a period of nearly 20 years for getting the impugned order whereas the limitation given in the proviso under the Section for moving such an application will directly stare at him. The objection on this precise ground was also raised by the petitioner in response to this recovery and also on the ground that respondent No.2 had not turned up to perform his duties despite repeated communications having been sent to him. The details of the efforts made by the CIVIL WRIT PETITION NO.16479 OF 2009 :{ 11 }: petitioner to send communication to respondent No.2 to report for duties have been placed on record and are as under:- “Order No._____B.I.M______date_____1991 In pursuance of award of Labour court Bathinda dated 14.9.1990 Sh.Chamkaur Singh ticket verifier is hereby taken on duty with immediate effect as daily wages @ approved by the DC Faridkot. Sd/-General Manager, Punjab Roadways Moga Endorsement No.2801 04/BIM dated 13.5.1991 xx xx xx xx xx That on 13.5.1991 I visited the house of Chamkaur Singh in the village but he was not present in the house so no order was served and I many time visited his house hence this is my report. Balwinder Singh 13.5.1991 On 15.5.1991 I went to serve some paper to Chamkaur Singh in his village by the office I visited his village to serve these papers but he objected to accept these paper nor his family members accepted these papers. This is the report. Gurdev Singh 15.5.1991 Worthy GM may kindly see the report of the officials sent to deliver the order to Sh.Chamkaur Singh at A & B here. Reported 16.5.1991 Registered letter vide registered No.2906 dated 16.5.1991.” Thus, it can fairly be observed that the liability of the CIVIL WRIT PETITION NO.16479 OF 2009 :{ 12 }: petitioner to pay the amount was in dispute and the application filed by respondent No.2 under Section 33-C (1) of the Act apparently was not maintainable. The Hon'ble Supreme Court in the case of East India Coal Company Ltd. (by Chief Mining Engineer), Bararee Colliery, Dhanbad Vs. Rameshwar and others, [1968] 33 FJR 90, has defined the scope of Section 33-C (1) and 33-C (2) in the following terms:- “Section 33C(1) applies to case where money is due to a workman under an award or settlement, or under Chapter V-A of the Act already calculated and ascertained and therefore there is no dispute about its computation. But sub-section (2) applies both to non-monetary as well as monetary benefits. In the case of monetary benefits it applies where such benefits though due is not calculated and there is a dispute about its calculation. Section 33C(2) takes within its purview cases of workmen who claim that the benefits to which they are entitled should be computed in terms of money even though the right to the benefits on which their claim is based is disputed by their employers. It is open to the Labour Court to interpret the award or settlement on which the workmen's right rests.” The reference made by counsel for respondent No.2 in the case of M.L.Bose and Co., Private Ltd., Calcutta Vs. Its employees, AIR 1961 Supreme Court 1198 to contend that rights of the workman to claim full wages from the date of award would CIVIL WRIT PETITION NO.16479 OF 2009 :{ 13 }: become operative to the date of their reinstatement. It would be a separate issue. It would depend upon the fact if the respondent- workman had refused to join the service or not or that any such offer was made or not. The question would be of execution and of the jurisdiction of the authorities to entertain the application under Section 33-C (1) of the Act. There may not be any reason to deprive the person of wages but once this is disputed, then this can not be resolved under Section 33-C (1) of the Act, as has been noted above. I am, thus, of the considered view that the application filed by respondent No.2 under Section 33-C (1) of the Act was not maintainable on account of the detailed reasons as mentioned above. In the result, the writ petition is allowed. The impugned certificate issued by respondent No.1 is quashed. September 28, 2010 ( RANJIT SINGH ) khurmi JUDGE