I\/ l*-'oi* THE HrcH couRT oF DELH. AT NEW DELH. Date of order: 12 October,2011 + WRIT PETITION (ClVlL) NO' 11385/2009 AIR INDIO *O """ Petitioner Through Ms. Ratna Dhingra, Ms. Shreya S. Dabas & Ms. Bhavna Dhami, Advocates. VETSUS ? uNloN oF INDIA ""' ResPondent +, Iitlbl: Mr' Ravinder Asarwal' cGSC Mr. Atul Bandhu & Mr. Varun Baweja' Advocates for respondent workman' wRlT PETITION (ClVlL) NO. 11389/200e AIR INDIA LIMITED """ Petitioner Through Ms. Ratna Dhingra, Ms' Shreya S. Dabas & Ms. Bhavna Dhami, Advocates. VETSUS S, UNION OF INDIA AND ANR. ..... Respondents jf Through Mr' Ravinder Aganrual' CGSC for UOl. Mr. Govind NaraYan, Advocate for respondent No.2. wRlr PETITION (GlVlL) NO. 11390/2009 AIR INDIA LIMITED """ Petitioner Through Ms. Ratna Dhingra, Ms'Shreya S. Dabas & Ms. Bhavna Dhami, Advocates. VETSUS w.p. (c) Nos. 1 1 3g5/2009, 1 1 389/2009, 1 1 390/2009, 1 1 391/2009, 1 1 397/2009, 114ozt2oog & 1 1 404/2009 Pase 1 of 23 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified r> t. ",rr UNION OF INDIA AND ANR. ..... Respondents Through Mr. Ravinder Aganrual, CGSC for UOl. Mr. A.K. Trivedi, Advocate for respondent No.2. wRlr PETITION (ClVlL) NO. 11391/2009 AIR INDIA LIMITED """ Petitioner Through Ms. Ratna Dhingra, Ms' Shreya S. Dabas & Ms. Bhavna Dhami, Advocates. VETSUS UNION OF INDIA AND ANR. ""' Respondents Through Mr. Ravinder Aganrual, CGSC for UOl. Mr. Govind NaraYan, Advocate for respondent No.2. wRlT PETITION (ClVlL) NO' 11397/2009 AIR INDIA LIMITED """ Petitioner Through Ms. Ratna Dhingra, Ms. Shreya r. S. Dabas & Ms' Bhavna Dhami, -r") Advocates' VETSUS i uNloN oF INDIA AND ORS. ....' Respondents Through Mr. Ravinder Aganrual, CGSC for UOl. Mr. Atul Bandhu & Mr. Varun Baweja, Advocates for respondent workman' wRlT PETITION (ClVlL) NO. 11402/2009 AIR INDIA LIMITED ...." Petitioner w.P.(c)Nos.11385/2009,11389/2009,11390/2009,11391/2009,11397/2009,114021200s&114O4|2OO9Pase2of23 r(1 A't Through Ms. Ratna Dhingra, Ms.Shreya S. Dabas & Ms. Bhavna Dhami, Advocates. Mr. A.K. Trivedi, Advocate for respondent No. 2. UNION OF INDIA VETSUS ..... ResPondent Through Mr. Ravinder Aganrual, CGSC for UOl. wRlT PETITIoN (GlvlL) NO. 11404/2009 AIR INDIA LIMITED """ Petitioner Through Ms. Ratna Dhingra, Ms'Shreya S. Dabas & Ms. Bhavna Dhami, Advocates. VETSUS UNION OF INDIA AND ORS' ""' Respondents Through Mr. Ravinder Aganrual, CGSC for UOl. Mr. Atul Bandhu & Mr. Varun Baweja, Advocates for respondent workman' GORAM: HON'BLE MR. JUSTICE SANJIV KHANNA l.WhetherReportersof|oca|papersmaybeal|owedtoseethejudgment? 2. To be referred to the Reporter or not ? 5. Wh"tt"'"t the judgment should be reported in the Digest ? SANJIV KHANNA. J.: These seven writ petitions have been filed by National Aviation company of lndia Limited, now known as Air India ' Limited, challenging different orders passed by the Presiding _Jf ? W.P.(C)Nos.11385/2009,11389/2009,11390/2009,11391/2009,11397/2009,11402!2oog&114o4l2oo9Page3of23 * I fs Officer, Central Government, lndustrial Tribunal-cum-Labour Court under Section 33-C(2) of the Industrial Disputes Act, 1947 (Act, for short). By the aforesaid orders, the petitioner has been directed to pay the respondent employees arrears towards wages as per the agreement dated 5th May, 1996 entered into between the petitioner and the Air lndia Employees Guild' lt is accepted by the counsel for the parties that the reasoning given by the Industrial Adjudicator in all orders is identical and, therefore, these writ petitions can be disposed by a common order. For the sake of convenience and with the consent of the learned counsel for the parties, Writ Petition (Civil) No' 11391 l2OOg titled National Aviation company of India Limited, now known as Air lndia Limited, Versus Union of lndia and Raj Kumar is treated as the lead case. 2. The private respondents had filed applications under section 33-C(2) of the Act before the Industrial Adjudicator stating, inter alia, that they had worked as drivers and were paid basic salary of Rs. 11BSt- per month and other allowances' They claimed and had submitted that they were entitled to basic pay of Rs.3140/- per month as stipulated in the agreement dated 5th May, 1996 between the petitioner and the Air India Employees Guild. Accordingly, the petitioner should be directed to pay the w.p. (c) Nos. 113g5/2oos, 11389/2009, 11390/2009, 11391/2009, 113s7taoos,114ozt2oos&11404120os Pase4ot23 ) {.. I\, l6 :;t balance amount. They rely upon clause 2 of the engagement letters which has been translated and reads as under. "2. During the course of employment on temporary post (as per provisions of memorandum of settlement entered with the unions) your basic pay will be Rs.11BS/- p.m., HRA (30% of basic salarY), citY allowance (6% of the basic or Rs.100f whichever is less) additional pay and Dearness Allowance as applicable from time to time (on aPPlicable rates)." 3. The contention of the petitioner, on the other hand, was that the respondents had been appointed on contractual and temporary basis for a short duration mentioned in the engagement letters. The total emoluments payable to the respondents were expressly stated. The respondents were paid in terms of the emoluments mentioned in the engagement letters. The agreement dated 5th May, 1996 between the petitioner and Air lndia Employees Guild is in respect of permanent employees and is not applicable to the respondents' . The respondents were/are not members of the said guild and were engaged as drivers on specific terms and conditions. The respondents are not entitled to the salary payable to regular drivers. The jurisdiction of the tribunal to decide the question/issue in proceedings under Section 33-C(2) is raised' 4. The tribunal examined the said contention relating to its w.P. (c) Nos. 1 1 385/2009, 1 1 389/2009, 1 1 390/2009, 1 1 391/2009, 113g7l2}Og, 1'\4O22OO9 & 114O41?OO9 Page 5 of 23 i rt ,w l1 ra. jurisdiction but rejected the same holding, inter alia, that the agreement dated sth May, 1996 nowhere makes a distinction between permanent and casual employees and it speaks of non- technical and technical category of workmen. The relevant portion of the order passed by the Industrial Adjudicator on this aspect reads as under: "8. As detailed above, contents of the settlement Ex.MW1/3 nowhere makes any distinction viz, permanent employees and casual employees' lt speaks of non technical and technical categories of workmen. lt is not case of the management that the workman is not a technical employee' Management concedes that the drivers' who were permanent employees, were paid in the scale of Rs.3140/-, in pursuance of the agreement dated 5'5'96' lt is not case of the management that the workman was not performing the similar duties as performed by the regular drivers' lN such a situation the management cannot differentiate between a driver employed on casual basis and a driver employed on permanent basis. Consequently it is evident that the contention of the management that agreement Ex' MW1/3 is notipplicable to the workman, is found to be without any basis" Equal pay for equal work is norm of the day as held by the APex Court in Tarsem Lal Gautam and another (1989 Lab' l'C' 1138)' State of U.P. and another (1989 Lab' l'C' 1146), Mewa Ram Kanojia (1989 Lab' l.C. 1348), Kerala High Court Non- Graduate Staff Association and another (1998 Lab. l.C. 455), State of U'P' and w.P. (c) Nos. 1 1 385/2009, 1 1 389/2009, 1 1 390/2009, 1 1 391/2009, 1 1 397/2009' 114O2l2OOg & 1 1 404/2009 Pase 6 of 23 (,J J & , others (2002 Lab. l.C. 3920). Vijay Singh and another (2006 Lab. l.C. 437)' ln view of above law laid by the Apex Court, it is clear that the workman is entitled to the wages as Per agreement dated 5.5.96, to keeP him at Par with the permanent employees of his category' L Mr. Gaur argued that the application under sub-section (2) of Section 33C of the Act is not maintainable. According to him, the provisions of sub-section (1) of Section 33-C of the Act contemplates that when any moneY is due to a workman from an employer under a settlement or an award or und-er the provisions of Chapter VA or' ChaPter VB of the Act, he maY make. an aPPlication to the aPProPriate Government for recovery of the money due to him and on satisfaction in that regard the appropriate Government shall issue a certificate of recovery of the amount' He argued that the application under sub-section (2) of Section 33-C of the Act is not competent' He claims that on that count the application may be discarded. His submissions are untenable. The apex Court in K'L' Kharbanda (1963 (1) LLJ 406) construed the words "any benefit which is capable of being computed in terms of money" and held that where the benefit to which the workman may be entitled to be computed, for example, any award which confers on him the benefit' sub section (2) would apply for computation such benefit, if there is a dispute about it' 10. In P.S. Rajgopalan (1963 (2) LLJ Bg) the Apex Court concluded that it should not to be interpreted to mean that the scope of sub-section (2) of Section W.P'(C)Nos,11385/2009,11389/2009,11390/2009,11391/2009'11gg7l2oog,114oz2oog&114o4t2oo9Page7of23 -v .) rl a / 33-C of the Act is exactly the same as in sub-section (l) of Section 33-C and further Pointed out that the three categories of claim mentioned in section 33C(1) fall under section 33-C(2) of the Act and in that sense section 33-C(2) of the Act itself be deemed to be a kind of execution proceedings, but it is possible that claim not based on settlement, awards or made under the provisions of ChaPter V-A, may also be comPetent under section 33-C(2) and that may illustrate its wider scope. ln other words the Labour Court' acting under section 33-C(2) of the Act, is comPetent to enteftain claims made de hors settlements, awards or the provisions of Chapter V-A of the Act' Consequently the provisions of section (2) of Section 33C of the Act takes within its sweep cases of workman who claim that benefit to which theY are entitled would be comPuted in terms of money, even though the right to the benefit on which their claim is based is disputed by the employer and it is open to the Labour court io interpret an award or settlement on which the workman's right rests' In view of law laid bY the APex Court, contention advanced by Shri Gaur are found to be untenable and the same are' therefore, discarded." 5. The respondents herein had earlier filed writ Petition (civil) No. 1 32611997 in this court for a direction to the petitioner to regularize their services as permanent drivers against regular permanent vacancies. In this writ petition notice was issued and vide order dated 9th April, 1gg7 the petitioner was directed to W.P'(C)Nos,11385/2009,11389/2009,11390/2009,11391/2009,11397|2oog,114o212oog&114o4l2o09Page8of23 .ar I I 1.O { -1t maintain status quo. The status quo order continued till it was vacated when the writ petition was dismissed vide order dated Bth November, 2001. The Court while dismissing the writ petition observed that the respondents herein were appointed as temporary drivers for intermittent periods in 1989-1990 and thereafter again on different dates in 1996-1997 after a gap of 5- 6 years. The tenure of engagement varied between 2-4 months' The engagement letters specifically stipulated that the appointment was on temporary basis and the service would stand terminated at the end of the period stipulated. The coutt took notice of the contention of the petitioner herein that the supreme court had issued directions that old buses should not ply on the roads in Delhi and accordingly the petitioner had decided to do away with the old buses and as a policy decision it was decided not to purchase new cNG buses as it would not be economically viable. After considering the relevant submissions' the Court in its decision dated 8th November, 2001 recorded as under:- "14. lt is thus conclusively established thatwhenpetitionersWereinitia||yappointed they did noi go into the rigour of the selection pto-c""s as prescribed under the regulation and their sustainability was considered only toalimitedextentforthepurposeoftheir contract appointment and they had also W.P.(C)Nos.11385/2009,11389/2009,11390/2009,11391/2009,11397/2009,114o2|2oo9&114o4l2oo9Page9of23 i .J I \t: Workedforfewmonthsandthereforenorelief could be granted to the petitioner as sought for in th; writ petition directing for their regularization in the service they having not been selected through a regular process of selectioninaccordancewiththerecruitment rules prescribe for such recruitment' Even .othenruisenosuchdirectionforregu|arization could be issued in the present case as petitioner have only worked for few months withtheRespondentsandparticularlywhenit is the specific stands of the Respondents now thai there are no permanent vacant posts of drivers with the Respondents at the presentmoment.AttheSametimeitistrue that the petitioner could not have been substituted by appointing another set of casual or temPorary emPloyees' 15. Accordingly, l find no merit in this petitionandthepetitionstandsdismissed. However, before parting with the records I am inclinedtomakeanobservationwhereinI hereby do, that in case the Respondent requirl any driver the same shall be notified for filling up in accordance with accordance with reciuitment rules and in the event of the petitioners applying for the same their cases sha||beconsid-eredinaccordancewith|aw giving due weightage to. their past .*p"ii.n"es with the Respondents and also by giving relaxation of age to the extent of the PLrroO theY had worked with the ResPondents." 6. The aforesaid paragraphs show that the appointment of the respondents was not made after following a regular selection process in terms of the recruitment rules. The appointment was on casual or temPorary basis' W.P.(C)Nos.11385/2009.11389/2009,11390/2009,1139.1/2009,11397/2009,1.|4oz2oog&114o4t2oo9Page.|0of23 I ".j -yr' \ <J",I 7. After the aforesaid writ petition was dismissed, the respondents herein in 2OO2 had filed applications under Section 33-C(2) of the Act before the Industrial Adjudicator claiming that they were entitled to higher salary than what was paid to the respondents during the period of engagement in terms of the engagement letter (i.e. during the period 1996-97) and thereafter pursuant to the interim order passed by the Court on 9th April, 1gg7 till the decision of the writ petition vide order dated Bth November,200L The claim of the petitioner, as noticed above, was founded on the agreement dated sth May, 1996 between the petitioner and the Air lndia Employees Guild' B. The question which arises for consideration is whether the Industrial Adjudicator could have examined and gone into the question whether the agreement dated sth May, 1996 was applicable to the respondents in proceedings under section 33- c(2) of the Act. secondly, whether clause 2 of the letter of engagementhasbeenwrong|yinterpretedandwhetherthe respondents are entitled to pay scale mentioned in the letter of engagement or the agreement dated sth May, 1996' 9. Section 33-C(2) of the Act reads as under:- "(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in W.P. (C) Nos, 1 1 385/2009' 1 1 389/2009, 1 1 390/2009, 1 1 391/2009' 1 1 397/2009, 114o2t2oog & '|1404t2009 Page 1 1 of 23 I .n v5 t \1 I 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 Government within a period not exceeding three months: Provided that where the Presiding officer of a Labour Court considers it necessary or expedient so to do, he may' for reasons to be recorded in writing' extend such period by such further period as he may think fit." 10. The aforesaid section had come up for consideration before the Supreme Court in East lndia Coal Company Limited yersus Rameshwar and others, AIR 1968 SC 218' ln the said case, the aforesaid provision was interpreted and the following propositions on the scope of the said section as discernible were elucidated :- "(1) The legislative history indicates that the legisiature, after providing broadly for the invest.rgationandsett|ementofdisputeson tlre baiis of collective bargaining' recognised the need of individual workmen of a speedy remedytoenforcetheirexistingindividual rightsandthereforeinsertedSection33-Ain 1950 and Section 33-C in 1956' These two sectionsil|ustratecasesinwhichindividua| workmen can enforce their rights without having to take recourse to Section 10(1) and withouthavingtodependontheirunionto espouse their case' W.P' (C) Nos, 11385/2009' 11389/2009, 11390/2009. 11391/2009, 113g7t2oog,114o2!2oog&1.|4o4l2oo9 Page'|2of23 rt *r '' ll t t -- t.. (2) In view of this history two considerations are relevant while construing the scope of Section 33-C. Where industrial disputes arise between workmen acting collectively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance under Section 10(1). But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen' Therefore though in determining the scope of Section 33-C care should be taken not to exc|udecaseswhich|egitimatelyfatlwithinits purview, cases which fall, for instance under Section 10(1), cannot be brought under Section 33-C; (3) Section 33-C which is in terms similai to those in section 20 0f the Industrial Disputes (Appellate Tribunal) Act 1950 is a provision in the nature of an executing provision; (4) Section 33-C(1) applies to cases where money is due to a workman under an award or seitlement or under Chapter VA of theActalreadycalcu|atedandascertained and therefore there is no dispute about its computation. But sub-section 2 applies both to non-monetarY as well as monetary benefits.|nthecaseofmonetarybenefitit applies where such benefit though due is not calculated and there is a dispute about its calculation; (5) Section 33-C(2) takes within its purview cases of workmen who claim that the benefittowhichtheyareentitledshouldbe computed in terms of money even though the w.p. (c) Nos. 1 1 385/2009, 1 1 389/2009, 1 .t 390/2009, 1 1 391/2009, 1 1 397/2009, 114o22oog & 114o412oo9 Page 1 3 of 23 '.\ ..) 1/\ ! right to the benefit on which their claim is based is disputed by their employers. lt is open to the Labour Court to interpret the award or settlement on which the workmen's right rests. (6) The fact that the words of limitation used in Section 2O(2) of the Industrial Disputes (Appellate Tribunal) Act 1950 are oritt"d in Section 33-C(2) shows that the scope of Section 33-C(2) is wider than that of Section 33-C(1). Therefore, whereas sub- section 1 is confined to claims arising under an award or settlement or Chapter VA, claims which can be entertained under sub-section are not so confined to those under an award' settlement or ChaPter VA. (7) Though the court did not indicate which cases other than those under sub- section 1 would fall under sub-section 2, it pointed out illustrative cases which would not ialt under sub-section 2 viz. cases which would appropriately be adjudicated under Section iOtt j or claims which have already been the 'subject-matter of settlement to which Sections 1B and 19 would apply' (8) Since proceedings under Section 33-C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court' the Labour Gourt like the executing court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33-C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction'" \ \-' .L w.P. (c) Nos. 1 1 385/2009, 1 1 389/2009, 1 ',1390/2009, 1 1 391/2009, 11397 t2OOg, 114O2t2OOg & 1140412009 Page 14 of 23 e 11. Proposition 3 mentioned above clearly states that the aforesaid section is in the nature of execution provision' Proposition 4 states that is applies to both the monetary as well as the non-monetary benefits and covers cases where there is a dispute about their calculation. Proposition 5 states that the section takes within its purview a claim by a workman that the benefits to which they are entitled to should be computed in terms of money, even though the right to the benefits on which their claim is based is disputed. lt further states that it is open to the lndustrial Adjudicator to interpret the award or settlement on which the workmen's claim vests. proposition B, however, clarifies that the proceedings under the said section are analogous to execution proceedings and this determines the jurisdiction and exercise thereof by the Industrial Adjudicator' 12. The scope and jurisdiction of an Industrial Adjudicator underSection33-C(2)WaSconsideredbytheSupremeCourtin the case of Puniab Beverages (P) Ltd' v' Suresh Chand' (1978) 2 SCC 144 wherein it was held that the right to money which is sought to be calculated or the benefit which is sought to becomputedmustbeanexistingone,arightwhichis alreadyacljudicateduponorprovidedforandmustariseinthe course of employment of the workman. The words "adjudicated W.t,'(c)Nos.1.1385/2009,.11389/2009,11390/2009'11391/2009,1139712009,11402t20og&114o4l2oo9Page15of23 t "i L I '$r '7/1 upon" or "prgvided for" are important and have to be examined in the present case. The said aspect and these words were examined by the Supreme Court in Municipal Corporation of Delhi yersus Ganesh Razak, (1995) 1 SCC 235. The said decision is relevant as it peftains to claims which were made by daily rated/casual workers, who had pleaded that they were entitled to wages at the same rates as regular workers' The Supreme Court examined the said aspect whether such a claim could be adjudicated and decided in proceedings under Section 33-C(2) of the Act and held as under:- "12. The High Court has referred to Someofthesedecisionsbutmissedthetrue import thereof' The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no ear|ieradjudicationorrecognitionthereofby the emfloyer, the dispute relating to entitlement is not incidental to the benefit claimedandis,therefore,clearlyoutsidethe 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 of its power under Section 33-C(2) of the Act. lt is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementationorenforcementthereofSome ambiguity requires interpretation that the interfretation is treated as incidental to the Labour Court's power under Section 33-C(2) w.p. (c) Nos. 1.1385/2009, 11389/2009, 11390/2009, 11391/2009' 113s7t2}Og,114OZ2OO}&1140412009 Page',l6 of23 J- like that of the Executing Court's power to interpret the decree for the purpose of its execution. 13. ln these matters, the claim of the respondent-workmen who were all daily- rated/casual workeis, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not realh. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adludication of their dispute resulting in acteptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33- C(2). The mere fact that some other workmen are'alleged to have made a similar claim by filing *iit petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the behefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding. a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well' The writ petitions by some other workmen to which some reference was casuallY made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. lt must, therefore, be held if'at tt'te Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of