CWP No. 9445 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 9445 of 2009 Date of decision: 06.04.2010 State of Punjab and others ...... PETITIONERS VERSUS Gajjan Singh son of Piara Singh and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Ms. Monica Chhibbar Sharma, DAG, Punjab, for the petitioners. Mr. Bhupinder Ghai, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present writ petition is for setting aside of the order dated 04.02.2009 (Annexure P-5) passed by the Industrial Tribunal- cum-Labour Court, Jalandhar on an application moved under Section 33-C (2) of the Industrial Disputes Act (hereinafter referred to as 'the Act') by respondent No. 1-workman claiming therein wages for the period 01.04.1994 to 16.01.1997, wherein an amount of Rs. 1,39,128/- has been granted as wages for the said period by the Industrial Tribunal-cum-Labour Court, Jalandhar. CWP No. 9445 of 2009 2 Counsel for the petitioners contends that the workman- respondent No. 1 although was transferred from Ranjit Sagar Dam, Shahpur Kandi to Jalandhar Drainage Circle, Jalandhar and was relieved from duty on 23.12.1991 from Ranjit Sagar Dam, Shahpur Kandi but the workman-respondent No. 1 did not report for duty at the Jalandhar Drainage Circle, Jalandhar and, therefore, is not entitled to any benefit, as has been claimed by him in his application under Section 33-C (2) of the Act. She contends that on a request made by the workman on 07.06.1996, the workman was issued a fresh transfer order cancelling the earlier order dated 07.01.1989 and was retransferred to Ranjit Sagar Dam Project, Shahpur Kandi from Jalandhar Drainage Circle, Jalandhar. He joined his duties on 17.01.1997 and from that day onwards, he has been regularly paid salary. She contends that as the workman did not report for duty at the Drainage Circle, Jalandhar, he is not entitled to any wages for the period, he has not worked with the petitioners-Management. Thus, the application moved by the workman deserves to be dismissed. Counsel for the petitioners challenges the impugned Award also on the ground that the provisions, as contained under Section 33-C (3) of the Act, have not been resorted to by the Labour Court while computing the wages as claimed by the workman. On this basis, she prays that the impugned order deserves to be set aside. On the other hand, counsel for respondent No. 1-workman has submitted that the contention of the counsel for the petitioners with regard to the non-submission of the joining report by the workman or not joining the Jalandhar Drainage Circle, Jalandhar despite his transfer from Ranjit Sagar Dam, Shahpur Kandi on 07.01.1989 and his relieving from duty, is incorrect as earlier also, the workman had moved an application under CWP No. 9445 of 2009 3 Section 33-C (2) of the Act claiming wages from 24.12.1991 to March, 1994, where again this very plea, as has been sought to be raised in the present case, was taken up by the petitioners. The said stand of the petitioners was rejected by the Court and on the evidence produced by the workman-respondent No. 1 before the Labour Court, a finding was recorded that the workman had submitted his joining report with the Superintending Engineer, Jalandhar Drainage Circle but the same was not accepted by the Management. He contends that the said application was allowed and the wages were granted to the workman-respondent No. 1 from 24.12.1991 to March, 1994, which order was complied with and the same was not challenged by the petitioners. The said order having attained finality, the petitioners would be estopped from raising the same issue on the same factual aspect. He, on this basis, prays that the writ petition deserves to be dismissed. I have heard the counsel for the parties and have gone through the records of the case. The submission of the counsel for respondent No.1 with regard to the earlier application moved by respondent No. 1-workman under Section 33-C (2) of the Act claiming wages for the period 24.12.1991 to March, 1994 and the benefit having been granted to the workman is not disputed. It is also not disputed that the said order has attained finality as the same was not challenged but was rather complied with. That being the position, the contention as raised by the counsel for the petitioners with regard to the fact that the workman had not reported himself at the place of his transfer nor had joined duty cannot be agitated in the light of the earlier order passed by the Labour Court on an application under Section 33-C (2) of the Act, which has attained finality, the findings recorded in that CWP No. 9445 of 2009 4 application would be fully applicable to the case in hand and the order being inter parties would be binding upon both the parties and, therefore, principle of estoppel would be applicable to the contention of the counsel for the petitioners. The only question, which is now left for consideration, is as to whether the workman is entitled to the claim as made by him in the application under Section 33-C (2) of the Act, which he has moved subsequently claiming wages for the period 01.04.1994 to 16.01.1997. It is not in dispute that the earlier transfer order of the workman was cancelled vide order dated 06.08.1996 by the Chief Engineer, Drainage Department, Ex. RW2/2. It is also not in dispute that the Superintending Engineer, Drainage, issued letter dated 19.08.1996 addressed to the workman calling upon him to join duty at Ranjit Sagar Dam, Shahpur Kandi, Ex. RW2/3. After the issuance of the said letters, it was the specific stand of respondent No. 1 that he had approached the petitioners-Management for joining his duties at the Ranjit Sagar Dam and when he was not allowed to join, he had sent letters to the Management to permit him to join but despite the said letters having been sent, which are dated 05.10.1996, 13.11.1996 and 11.12.1996, which find mention in the statement of the workman and are Exs. A-3, he was not allowed to join the duties. In this view of the matter, the claim, which has been made by the workman in the application under Section 33-C (2) of the Act has been rightly granted to the workman by the Labour Court while allowing the application under Section 33-C (2) of the Act. As regards the contention of the counsel for the petitioners that the Labour Court should have taken note of and proceeded to appoint a Commissioner before determining the amount, as has been claimed by the workman as provided under Section 33-C (3) of the Act, the said contention CWP No. 9445 of 2009 5 cannot be accepted for the reason that what was disputed by the petitioners-Management before the Labour Court was the period for which the workman was entitled to the wages. The quantum and the calculations as submitted by the workman were never in dispute. That being the position, resort to Section 33-C(3) of the Act was not called for. Section 33-C (3) of the Act reads as follows:- “33-C (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 perusal of the above provision clearly shows that it is, in any case, the discretion of the Labour Court and if it thinks fit can appoint a Commissioner. In the present case, as the amount and the calculation was not disputed by the Management, the question of appointing a Commissioner does not arise and, therefore, no illegality has been committed by the Labour Court in not appointing the Commissioner to make the calculations as per the claim made by the workman. Finding no merit in the present writ petition, the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE April 06, 2010 pj