SBCWP NO.6877/93. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6877/1993. M/s.Daily Rashtradoot Vs. Presiding Officer Labour Court Rajasthan Jpr. & Anr. Date of Order : February 6, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Kala with Shri Rupin Kala for the petitioner. Shri Rajendra Prasad, Amicus-curiae for respondent No.2. **** Reportable BY THE COURT :- Under challenge in this writ petition is the order dated 27/5/1993 passed by Labour Court Jaipur whereby, application filed by respondent No.2-workman Dinesh Khare (now deceased and represented by his legal heirs) who shall hereinafter be referred as "respondent-workman" under Section 33C(2) of the Industrial Disputes Act, 1947 (for short, "the Act") was allowed and the petitioner-Daily Rashtradoot Jaipur (for short "petitioner-management") was directed to pay to him back wage amount for the period from October 1969 to November, 1982 for amenities for SBCWP NO.6877/93. 2 newspaper and telephone, gratuity, earned leave, provident fund and bonus in total amounting to a sum of Rs.1,49,027/-. It was argued that bonus is payable only if some contribution is made by the employee in earning of profits by the employer. Bonus does not form part of wages. In support of his argument, learned counsel for the petitioner-management has placed reliance on the judgment of Supreme Court in Punjab Beverages Pvt.Ltd. Vs. Suresh Chand & Anr. : 1978 (2) SCC 144. 2) Factual matrix of the case is that respondent-workman was working as Editor of the petitioner newspaper 'Daily Rashtradoot'. petitioner terminated the services of the respondent-workman vide order dated 18/2/1967. An industrial dispute was referred to Labour Court, Jaipur at the instance of the respondent-workman. It was the stand of the petitioner before the Labour Court that respondent- workman was performing the work of Editor and since his services were managerial in nature, he was not a workman in the meaning of Section 2(s) of the Act. Labour Court however rejected this argument and held respondent No.2 to be a workman. The Labour Court vide its award dated 7/10/1968 declared his termination having been made without compliance of Section 25F of the Act and therefore illegally held him entitled to reinstatement. Respondent-workman was reinstated in the services of the petitioner. Thereafter, petitioner SBCWP NO.6877/93. 3 started disciplinary proceedings against the respondent-workman and in the enquiry conducted against him, he was held guilty of the charges of misconduct. The petitioner decided to again dismiss him from service. Since an industrial dispute pertaining to the employees of the petitioner- management was pending before the Labour Court, the petitioner submitted an application for approval of his proposed dismissal under Section 33(2)(b) of the Act and the Labour Court vide its order dated 14/12/1971 accorded approval, which order was challenged by the respondent-workman before this court inter-alia, among others, on the ground of short payment of notice pay. According to the petitioner, however, the respondent-workman was correctly paid the notice pay because issue regarding payment of wages in terms of the wage board announced by the Central Government for working journalists was still not settled and therefore the respondent-workman was rightly paid the notice pay as per the emoluments last drawn by him. Learned Single Bench of this court rejected this argument of the petitioner and held that the respondent-workman was not paid full notice pay in accordance with the provisions of the Act. There was thus, violation of Section 33(2)(b) of the Act. Approval order passed by the Labour Court was therefore set-aside and matter was remitted back for fresh adjudication on merits to the Labour Court which SBCWP NO.6877/93. 4 was unsuccessfully challenged before the Division Bench of this court by the petitioner. In the meanwhile, respondent-workman attained the age of superannuation of 58 years, thereupon, the petitioner filed an application before the Division Bench. The plea of the petitioner-management was that respondent- workman has attained the age of superannuation of 58 years whereas stand of the respondent-workman before the Division Bench was that age of retirement was 60 years. Division Bench however dismissed the special appeal leaving this question open to be determined by the Labour Court to which the matter was remanded by the learned Single Bench. Labour Court vide its order dated 6/5/1988 held that there was violation of provisions of Section 33 of the Act on the part of the petitioner because it made short payment of notice pay to the respondent-workman. The Labour Court thus refused to grant approval of the dismissal of the respondent-workman and rejected the application filed by the petitioner under Section 33(2)(b) of the Act. Respondent-workman thereafter filed an application under Section 33C(2) of the Act for recovery of the aforesaud dues, which was allowed by the Labour Court under the order impugned in the present writ proceedings. 3) I have heard learned counsel for the parties and perused the material on record as well as the cited judgments. SBCWP NO.6877/93. 5 4) Shri R.K. Kala, learned counsel for the petitioner-management has argued that in the scope of Section 33C(2) of the Act, rights of the parties cannot be created as it is only meant to grant due amount to a workman which he is entilted to receive from the employer. It is only a pre-determined entitlement which has to be computed in terms of money. The generic procedure for investigation and settlement of industrial dispute cannot be resorted to in the otherwise limited scope of Section 33C(2), course is available only in the event of a reference of industrial dispute under the provisions of Section 10(1) of the Act. Labour Court under Section 33C(2) of the Act acts like an executing court and in doing so it has to abide by the limitations attached to an executing proceedings. It cannot arrogate to itself the functions of an Industrial Tribunal, which alone is entitled to make adjudication in the nature of determination. It was argued that approval for the dismissal of the services of the respondent-workman by the management was held illegal on the technical ground of short payment of notice pay at a very belated stage. Such a belated refusal cannot make the respondent-workman entitled to reinstatement. Labour Court erred in law in treating the respondent No.2 as automatically reinstated. Labour Court further erred in granting him wages for the period from October 1969 to November 1982. It was argued that the question SBCWP NO.6877/93. 6 whether respondent-workman could be treated as reinstated or not, could be adjudicated upon only in a reference proceeding under Section 10(1) of the Act. Learned counsel in support of his argument, relied on the judgment of Supreme Court in P.K. Singh Vs. Presiding Officer, Labour Court etc. : F.L.R. 1988 (57) 239, Municipal Corporation of Delhi Vs. Ganesh Razak and another : 1995(1) SCC 235, State of U.P. And another Vs. Brijpal Singh : 2005(8) SCC 58, U.P. State Road Transport Corporation Vs. Birendra Bhandari : 2006(10) SCC 211, Divisional Forest Officer Vs. Magan Lal & Ors. : 2003(1) CDR 434 and Central Inland Water Transport Co.Ltd. Vs. The Workmen : 1974 Lab.I.C. SC 1018. 5) Shri R.K. Kala, learned counsel for the petitioner-management further argued that the management has got certified standing orders of its establishment which deals with the age of superannuation of the employees of the Press/Working Journalists engaged in the newspaper establishment. The standing order was produced before the Labour Court. Age of superannuation as contemplated in the said standing order is 58 years and not 60 years. Even the Second Wage Board also, considered the age of superannuation of its employees as 58 years and thereafter working journalist could apply for further extension of his service for another two years provided he submitted along with his application, a SBCWP NO.6877/93. 7 certificate of fitness to the petitioner. It was then at the discretion of the petitioner whether or not to grant such extension. Since the respondent-workman remained out of service, there was no question of his submitting such application. Division Bench while dismissing the appeal of the petitioner left this question open. Such question needs adjudication under the Act by a proper reference under Section 10(1) and could not be decided in the scope of Section 33C(2) of the Act. Learned counsel in support of his argument, relied on the judgment of this Court in Divisional Superintendent, South Central Railway, Sholapur and others Vs. Madhav Kashinath Kulkarni and another : 1982 1 LLJ 64. 6) Citing the order of the Division Bench dated 17/9/1987 under which appeal of the petitioner- management herein was dismissed, Shri R.K. Kala, learned counsel for the petitioner-management argued that the Division Bench in that order observed that whatever payments were made to the respondent-workman pursuant to its interim-order, would be liable to be adjusted at the time when final order is passed. Pursuant to the order of the Division Bench dated 19/1/1982 as modified on 31/7/1986, the respondent- workman was paid monthly payment of Rs.800/- per month for the period from January 1982 to 31/8/1986. Respondent-workman remained under the employment of M/s.Jewellers Association, Johari Bazar, Jaipur for SBCWP NO.6877/93. 8 the period from March 1974 to June 1980 where he was engaged as an Editor of a periodical known as "Gem World" and was being paid Rs.1853/- per month and he filed a complaint against M/s.Jewellers Association also for some benefits. Such period was therefore liable to be excluded while computing the benefits payable to the respondent-workman. Labour Court refused to go into this question of gainful employment observing that this question could be raised only when regularisation was made or when order was passed under Section 33(2)(b) or before the High Court and it could not examine such question in the scope of Section 33C (2) of the Act. It was argued that since there was no reference of industrial dispute on the question of termination of the respondent-workman and it was only an application only under Section 33(2)(b), no occasion arose for the petitioner to raise question of gainful employment before the High Court. Learned counsel for the petitioner-management further argued that there was no impediment in law to examine such particular question even while considering the application under Section 33C(2). In support of his argument, learned counsel relied on the judgment of this Supreme Court in Abhinesh Chandra Gautam Vs. Union Territory of Tripura : AIR 1984 SC 320 as well as judgment of this court in Hariganga Security Service Ltd. Vs. Member IC Maharashtra : 1991 II LLJ 203. SBCWP NO.6877/93. 9 7) It was argued that payment of cash towards earned leave could not be directed to be paid in absence of any provision and more particularly when there was no actual working of the respondent-workman. In support of his argument, he placed reliance on the judgment of Supreme Copurt in Abhinesh Chandra Gautam and Hariganga Security Service Ltd. Supra. Moreover, when the respondent-workman had not discharged duties actually with the management, he also could not be paid bonus. Bonus cannot be treated as part of wages. Reliance in this connection was placed on the judgment in M/s.Hamdard Laboraties supra, Registrar Manager SBI Vs. CGIT and another : 1993 FLR (67) 1036 and M/s.Indian Potash Ltd. Vs. Sapan Kumar Bhattacharjee : 2007 LLR 440. For the same reason, benefits and amenities like newspaper and telephone could not be claimed in the scope of Section 33C(2). Number of newspapers were provided to the Editor so that he could keep his knowledge updated for effective discharge of his duties as an Editor. Since the respondent-workman did not actually work, such payments could not be paid to him. Reliance was placed on the judgments of Supreme Court in P.K. Singh, Municipal Corporation of Delhi, Brijpal Singh, Birendra Bhandari, Magan Lal & Ors. and Central Inland Water Transport Co.Ltd. supra. 8) It was therefore prayed that the writ petition be allowed and the impugned order passed by SBCWP NO.6877/93. 10 the Labour Court be quashed and set-aside. 9) Per contra, Shri Rajendra Prasad, learned counsel appearing as amicus-curiae on behalf of respondent No.2-workman has opposed the writ petition and argued that Labour Court has passed a just and reasonable order within the scope of Section 33C(2) of the Act. While it granted the other benefits, it refused to grant gratuity and provident fund holding that this could only be claimed under the specific provisions of law and not under Section 33C(2) of the Act. It was therefore justified in holding that question whether or not the respondent-workman was in the gainful employment elsewhere could not be gone into and determined by the Labour Court in the scope of Section 33C(2) as its jurisdiction is confined to only execute an award/order. Learned amicus-curiae argued that as far as the age of retirement of 58 years is concerned, this is the discretion of the petitioner of the newspaper to decide upon medical fitness of the journalist whether or not to grant extension of 2 years beyond 58 years. In the present case however, respondent-workman was kept out of employment pursuant to the order which ultimately has been held to be illegal, he could not furnish such medical fitness certificate. The Labour Court was therefore justified in granting benefits as there was no reason to presume that respondent-workman would not be granted extension. Learned counsel argued that SBCWP NO.6877/93. 11 effect of refesul for approval of dismissal is that employee continues to be in service and it will have to be deemed that the order of dismissal was never passed. Learned counsel in this connection has placed reliance upon the judgment of Supreme Court and argued that the judgment of Supreme Court relied on by learned counsel for the petitioner-management in Punjab Beverages Pvt.Ltd. supra has since been over- ruled by the Constitution Bench of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma and others : (2002) 2 SCC 244. Supreme Court in this case held that "entitlement of monetary benefits crystalizes immediately on passing of order of refusal to approval and therefore the workmen is entitled to move application under Section 33C(2) without any prior declaration by way of reference in this regard so as to avoid multiplicity of the proceedings". 10) On the ambit of jurisdiction of Labour Court under Section 33C(2), learned amicus-curiae argued that powers of the Labour Court under Section 33C(2) of the Act are limited being in the nature of executing proceeding. He in this connection placed reliance on the judgment of Supreme Court in Central Inland Water Transport Corporation Ltd. Vs. The Workmen and another : AIR 1974 SC 1604 and argued that Supreme Court in that case held that question whether plaintiff has right to relief and whether the SBCWP NO.6877/93. 12 defendant has corresponding liability to grant the same are not available for decision to the executing court. However, said court can decide the extent of liability of the defendant. It was argued that with refusal to grant of approval, it would be as if there has been no dismissal at all and therefore it would be deemed that the respondent-workman continued in service and thus he would be entitled to receive all benefits. As regards payment of amenities towards newspapers and telephone, gratuity etc., it was argued that this court in its judgment dated 2/7/1977 while dismissing SBCWP No.1981/75 filed by the petitioner- management, held that these amenities were part of the wages of the respondent-workman and he is entitled to wages in lieu of these amenities. This question was therefore no longer res-integra and Labour Court has committed no error in awarding such benefits. On the question of age of retirement of 58 years, it was argued that when the order of dismissal has been held to be illegal due to refusal of the Labour Court to grant approval, the question of retirement is only an ancillary issue and not a principal dispute and therefore it need not require any separate adjudication. This court has held that benefit of extention of age of superannuation beyond 58 years years will not be available to the working journalists and therefore he is only entitled to monetary benefits. Respondent-workman would also be entitled to SBCWP NO.6877/93. 13 bonus and the order of Labour Court in this regard cannot be fauled with because effect of non-approval is not restricted to only backwages. once the respondent-workman is deemed to be continued in service in the eye of law, he would be entitled to all the benefits as if he was never removed and on the same analogy, he was therefore also be entitled to earned leave. On the question of gainful employment, Labour Court has rightly held that question of gainful employment itself is a disputed question of fact requiring adjudication, therefore, Labour Court could not decide this question in the scope of Section 33(2) (b) of the Act. This was not a case of gainful employment because if the employer does not take the work from the workman, he cannot be expected to die out of starvation. Therefore, whether or not the workman was under the gainful employment, is also an issue which requires adjudication which could not be decided by the executing court. It is therefore prayed that writ petition be dismissed. 11) I have given my anxious consideration to the arguments aforesaid and perused the material on record. 12) The award of back wages, earned leave, bonus, amenities is primarily challenged by the petitioner-management on the ground that this being a proceeding under Section 33C(2), only such entitlements which are pre- SBCWP NO.6877/93. 14 determined and which can be computed in terms of money, could be granted since there was no regular reference of a industrial dispute under Section 10, generic procedure for investigation and settlement of industrial disputes cannot be resorted to in the otherwise limited scope of Section 33C(2) of the Act. In order therefore to test the argument that whether all these benefits could be granted to the respondent-workman only because Labour Court refused to grant approval of his dismissal, it has to be seen as to what would be the effect of refusal to grant approval. 13) Supreme Court in T.N. State Transport Corporation Vs. Neethivilangan, Kumbakonam : (2001) 9 SCC 99 held that requirement of Section 33(2)(b) of the Act was mandatory and if apoproval is not granted, order of discharge or dismissal would be rendered void and inoperative. It was further held that rejection of approval application by the court would give rise to consequential right in favour of the workman. As such, Supreme Court held, the dismissal order would become non-est and the employer was bound to treat the workman as continuing in service with all consequential benefits. It was further observed that workman concerned could get that right enforced even under Article 226 and need not raise a new industrial dispute for that purpose. Later, this very view was reiterated by the Constitution Bench of the Supreme SBCWP NO.6877/93. 15 Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. supra, which over-ruled an earlier judgment of the Supreme Court in M/s.Punjab Beverages (P) Ltd. Vs. Suresh Chand and another : (1978) 2 SCC 144. 14) Clearly, it would be seen that legislative scheme of the Industrial Disputes Act is such that affords protection to workman to safeguard his interest and such protection is writ large in the proviso to Section 33(2)(b) of the Act which is in the nature of shield against the victimization and exploitation by the employee of an employee during pendency of an industrial dispute. Though, reliance has been placed on behalf of the petitioner-management on the judgment of Supreme Court in Punjab Beverages supra but that judgment was expressly over ruled by the Constitution Bench of Supreme Court in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Supra. In para 13 of the report in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. supra, it was held by the Supreme Court that Section 33(2)(b) is a mandatory provision which is evident from the fact that its contravention invites a punishment under Section 31(1). On the question as to what would be the consequence of refusal to grant approval, in para 14 of the report, it was held by the Supreme Court as under:- “If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. SBCWP NO.6877/93. 16 It was further held that “order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx This being the position, there is no need of a separate or specific order for his reinstatement.” 15) Law thus authoritatively laid down by the Supreme Court in Jaipur Zila supra clearly show that once the approval under Section 33(2)(b) is prayed for and it is refused, its consequences are just the same as that of an affirmative answer to the industrial dispute reference of which is made under Section 10. 16) Reliance has been placed by the petitioner- management on various judgments of Supreme Court on the scope of Section 33(2)(b) to argue that the various claims such as back wages, earned leave, bonus, benefit of amenities etc. could not be granted as they would require investigation into the facts, marshalling of evidence and then adjudication of disputes. 17) Contention that limitations attached to the executing court would be applicable to proceeding under Section 33C(2) become the court in the scope of proceedings of this nature cannot arrogate to itself the functions of an industrial tribunal entertaining reference of an industrial dispute also to be SBCWP NO.6877/93. 17 appreciated in the context of refusal to grant approval of dismissal and the consequences in law flowing therefrom. When approval has been refused, it cannot be accepted that the workman would not be reinstated because there had been no adjudication on the question of reinstatement and when workman is deemed to have continued in service, it would have to be assumed that had he continued, he would have received all such benefits which a workman continuing in normal circumstances receives. But at the same time, the view taken by the learned Labour Court that since the petitioner-management has not raised the question of gainful employment of the respondent- workman with M/s.Jewellers Association, Johari Bazar Jaipur for the period from April 1974 to June, 1980 either before the Labour Court during approval proceeding or before this court in the writ petition/special appeal filed thereagainst, which question could not be raised before it, cannot be accepted. Labour Court’s conclusion on this aspect is that such question was open to be raised only in regular proceedings of industrial reference and not in the scope of Section 33C(2) is wholly misconceived. Petitioner-management is justified when it contends that there was no occasion for it to raise industrial dispute on this aspect because the application was filed by it under Section 33(2)(b) for approval of dismissal of the respondent. Law does not envisage SBCWP NO.6877/93. 18 that even if workman is found, when he is dismissed/retrenched, in the gainful employment elsewhere, yet, in the scope of Section 33C(2), he would be entitled to receive monetary benefits for the same period while getting his unpaid wages computed. Even if industrial dispute on the question of validity of reinstatement of the workman is referred to the Labour Court, the question of gainful employment elsewhere while deciding the entitlement of the workman for the back wages is a relevant consideration. There was in the present case no occasion for the employer to raise this plea while prosecuting their application for approval of the dismissal or even in writ proceedings before this