IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 09.04.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P. NO. 25475 OF 2002 AND W.P.M.P. NO. 493 OF 2008 Management of Ganesh Theatre Tirunelveli – 6 rep. by its Partner, Ganesan. .. Petitioner - Vs - 1. Presiding Officer Labour Court Tirunelveli – 2. 2. M.Narayanan .. Respondents Writ Petition filed for the issuance of a writ of certiorari to call for the records of the 1st respondent in his proceedings in C.P. No.150 of 1995 and quash the award dated 28.11.2001, as stated therein. For Petitioner : Mr. T.N.Rajagopalan For Respondents: Mr. R.Parthiban for Mr.V.Venkadasalam, for R-2 ORDER The petitioner, Management of Ganesh Theatre, Tirunelveli, filed the present writ petition seeking a writ of certiorari to call for the records of the Labour Court, Tirunelveli, made in its proceedings in C.P. No.150/95 dated 28th Nov., 2001 and quash the same. 2. The 2nd respondent, M.Narayanan, who was working as an employee of the petitioner's theatre, left the job on 19th July, 1997. He was performing certain insignificant works, like attending phone calls, etc., from the year 1993. Though he was originally appointed as a cinema operator, but due to his failing eye sight, he was given the above mentioned odd jobs. However, in view of loss of eye sight, the 2nd respondent left the job with the petitioner's theatre and filed C.P. No.150/95 on the file of the Labour Court claiming leave wages from 1989 to 1995, overtime salary from 1987 to 1995, festival holiday salary at the rate of 9 days per year from 1987 to 1995, matinee show batta from the year 1992 to 1995, bonus for the year 1994 and 1995 and salary for the period June and July, 1995, totally claiming a sum of Rs.1,47,136.14. The 2nd respondent claimed the above mentioned amount by making an application u/s 33-C (2) of the Industrial Disputes Act (hereinafter referred to as the 'Act'). Opposing the claim made by the 2nd respondent, the petitioner https://hcservices.ecourts.gov.in/hcservices/ management also filed a detailed counter contending that the claim made by the 2nd respondent was not maintainable under Section 33-C (2) of the Act on the ground that the Labour Court had no jurisdiction to entertain the said claim as there must be an existing one, that is to say, one which has already been adjudicated upon or provided for under a statute or settlement, and above all, it was also pleaded that the said claim petition filed by the 2nd respondent was hopelessly barred by time since the same was presented with a huge delay. 3. Learned counsel appearing for the petitioner further contends that the Labour Court, without appreciating the settled legal position, partly allowed the claim petition holding that the workman/2nd respondent was not entitled to leave salary, but was entitled to the other dues as prayed for and directed to pay a sum of Rs.27,419.64 with interest @ 9% p.a. from the date of petition till the date of award and, thereafter, @ 6% p.a. by order dated 28th Nov., 2001. Aggrieved by the said impugned order, the petitioner filed the present writ petition. The major thrust of argument advanced by the learned counsel appearing for the petitioner in the present writ petition is that the Labour Court gravely erred in entertaining the claim petition filed by the 2nd respondent u/s 33-C (2) of the ID Act and failed to appreciate that the proceeding u/s 33-C (2) is in the nature of execution proceeding and in the absence of any money or benefit, which has already been determined, the Labour Court has no jurisdiction to entertain the petition u/s 33-C (2) of the ID Act and, thus, the Labour Court committed serious mistake in not dismissing the petition filed by the workman/2nd respondent u/s 33-C (2). It was further contended that the question in respect of entitlement of the workman to receive any money or benefit must pre- exist before inviting adjudication of the amount payable to the recipient in such entitlement. When the question of entitlement of any monetary benefit, which can be valued in terms of money is itself in dispute between the employer and the employee, petitioner and the 2nd respondent herein, who claims to have worked in the petitioner's theatre, the learned Labour Court should not have embarked upon any enquiry and allowed the petition, which is totally contrary to Section 33-C (2) of the Act. In view of the impugned order, the petitioner theatre was directed to pay the claim made by the petitioner, which has never been proved by the 2nd respondent, as a workman, nor admitted anywhere by the petitioner theatre as legally due and on that basis prayed for setting aside the impugned award passed by the Labour Court. 4. Refuting the arguments of the learned counsel for the petitioner, the learned counsel for the 2nd respondent contended that sub-section (2) is broad enough to take into its fold all cases where a workman claims some benefit and wants the said benefit to be computed in terms of money. For not accepting the said claim, the employer makes several defences. All these defences will have to be tried by the Labour Court under sub-section (2). All the arguments and questions rising between the workmen and their employers in respect of the benefit which they claim to be computed in terms of money would fall within the scope of sub-section (2) and, therefore, https://hcservices.ecourts.gov.in/hcservices/ it was further contended that on a fair and reasonable consideration of sub-section (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. In this case, since there was a dispute in respect of receiving certain benefits, which the petitioner theatre refused to pay, the 2nd respondent rightly approached the Labour Court and the Labour Court, by exercising power u/s 33-C (2) of the Act has allowed the claim petition. It was further submitted that this Court, while exercising its jurisdiction under Article 226 of the Constitution of India would originally not interfere with the findings of fact arrived at by the Labour Court and, therefore, learned counsel pleaded for dismissal of the writ petition. 5. Heard the learned counsel appearing on either side and perused the materials available on record. 6. The question that arises for consideration is whether the Labour Court is competent to adjudicate the matter raised by the workman/2nd respondent u/s 33-C (2) of the Act vis-a-vis the settled legal position. A similar issue fell for consideration before the Supreme Court in Municipal Corporation of Delhi – Vs – Ganesh Razak & Anr. (1995 (1) SCC 235). The ratio laid down by the Apex Court in the above said judgment clearly indicates that where the very basis of the claim or entitlement of a workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding u/s 33-C (2) of the Act. The Apex Court further held that the Labour Court has no jurisdiction to first decide the workman's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power u/s 33-C (2) of the Act. Only when the entitlement is earlier adjudicated or recognised by the employer and, thereafter, for the purpose of implementation or enforcement thereof some ambiguity requires interpretation, that interpretation is treated as incidental to the Labour Court's power u/s 33-C (2) like that of the executing court's power to interpret the decree for the purpose of its execution and the Labour Court is empowered to go into the dispute with regard to the claim of any workman by entertaining a claim petition u/s 33-C (2) of the Act. 7. Admittedly, in the present case, there being no earlier adjudication or recognition of any existing right of the employee by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of proceeding u/s 33-C (2) of the Act. Therefore, the 2nd respondent has to raise an industrial dispute only before the appropriate authority, which can adjudicate the matter of dispute with regard to wages. Therefore, the power of Labour Court u/s 33-C (2) has to be construed that it extends only to interpret the award or settlement on which the claim is based, which means, it cannot adjudicate the fresh dispute of entitlement or basis of claim made by the workman when the same entitlement or claim was disputed by the employer. https://hcservices.ecourts.gov.in/hcservices/ 8. Further, a close reading of Section 33-C (2) also clearly answers the objection raised by the learned counsel for the 2nd respondent. For useful reference, Section 33-C (2) & (3) are extracted hereunder :- “33-C. Recovery of money due from an employer. - (1) * * * * * * * * * * (2) Whereas any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in 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:] * * * * * * * * (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, 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.” A conjoint reading of sub-clause (2) and (3) of Section 33-C would clearly indicate that for the purpose of computing the money value of a benefit, the Labour Court cannot directly do the work of computing the value of money, particularly the payment of bonus, salary, etc., for the simple reason that sub-clause (3) empowers the Labour Court, for the purpose of computing the money value of the benefit, 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. Sub- clause (3) makes it abundantly clear, as put forth by the learned counsel for the petitioner, that the Labour Court ought not to have embarked upon deciding the issue, which has not been decided earlier by any competent authority. 9. The argument advanced by the learned counsel appearing for the 2nd respondent relying upon a Constitution Bench judgment in The Central Bank of India Ltd. - Vs – P.S.Rajagopalan, etc. (AIR 1964 SC 743), to say that the Labour Court is competent to entertain his claim application, was considered by the Apex Court in Municipal Corporation of Delhi – Vs – Ganesh Razak & Anr. (1995 (1) SCC 235) wherein the Supreme Court held that the power of the Labour Court u/s 33-C (2) extends only to the interpretation of the award or settlement on which the workman's right rests, like the executing courts power to interpret the decree for the purpose of execution, where the basis of claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim, if there be any prior adjudication or recognition of the same by the employer. This decision negatives, https://hcservices.ecourts.gov.in/hcservices/ instead of supporting the submission of the learned counsel for the 2nd respondent. Therefore, it is absolutely clear that the contention of the learned counsel for the 2nd respondent basing his claim on the Constitution Bench judgment in Central Bank of India's case (supra) may not be useful to support the impugned order passed by the Labour Court. Another decision on the above said aspect is Bombay Gas Co. Ltd. - Vs – Gopal Bhiva (AIR 1964 SC 752), wherein also, Gajendragadkar, J., as he then was, speaking for the Bench, referring to the Constitution Bench judgment, has held that the proceedings contemplated by Section 33-C (2) are analogous to execution proceedings and the Labour Court, like the executing court in the execution proceedings, governed by the Code of Civil Procedure, would be competent to interpret the award on which the claim is based. It is obvious that the power of the executing court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim, which requires adjudication for its enforcement in the form of a decree. The executing court, after the decree has been passed is, however, competent to interpret the decree for the purpose of its implementation. This position was settled by the Constitution Bench judgment and has been the consistent view of this Court ever since then. Therefore, the dictum of the Apex Court in Municipal Corporation of Delhi case (supra) answers the question very clearly that the right to the benefit, which is said to be computed u/s 33-C (2) must be an existing one, that is to say, already adjudicated upon or provided for. Therefore, when a claim is made before the Labour Court u/s 33-C (2), that court must clearly understand the limitation under which it is to function. Secondly, it is equally so that the workman, should again put forward a claim in an application u/s 33-C (2) in respect of a matter, which is not based on an existing right and which can only be appropriately a subject matter of an industrial dispute, which requires reference u/s 10 of the Act. To put it further very clear, where the very basis of the claim or entitlement of a workman, to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding u/s 33-C (2) of the Act. The Labour Court, therefore, has no jurisdiction to first decide the workman's entitlement and then proceed to compute the benefit or adjudicate on that basis in exercise of its power u/s 33-C (2) of the Act. 10. This Court in Union of India – Vs – Presiding Officer (2007 (3) CTC) 745) has held that the prayer for adjudication or a settlement of a disputed claim of a workman is not maintainable u/s 33-C (2). In view of the above settled legal position, the award passed by the Labour Court in adjudicating the dispute directing the petitioner to pay the amount due to its employee is not in accordance with law. Therefore, the only way available to the 2nd respondent herein is to raise an industrial dispute before the competent forum. 11. Therefore, I am of the considered view that the writ petition is liable to be allowed. Accordingly, the same stands https://hcservices.ecourts.gov.in/hcservices/ allowed directing the 2nd respondent to raise an industrial dispute before the competent forum within a period of four weeks from the date of receipt of a copy of this order. The impugned order is, therefore, set aside. Since the 2nd respondent had filed the application u/s 33-C (2) wrongly, the period of proceedings before the Labour Court as well as this Court have to be excluded while calculating the period of limitation for entertaining the dispute. Consequently, connected miscellaneous petition is closed. However, there shall be no order as to costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar GLN To The Presiding Officer Labour Court Tirunelveli – 2. 1 cc to Mr.V.Venkadasalam, Advocate, Sr.No.24163 1 cc to Mr.T.N.Rajagopalan, Advocate, Sr.No.23354 ORDER IN W.P. NO. 25475 OF 2002 KA {CO} TP/16.4.2010. https://hcservices.ecourts.gov.in/hcservices/