* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.No.31344 OF 1997 % Dated 23-12-2005 # The Depot Manager, APSRTC, Nirmal Depot, Adilabad District. …. Petitioner Vs. $ Mirza Basheer Baig, C/o Egg Centre, Old Bus Stand, Nirmal, Adilabad District and another. …. RESPONDENTS ! Counsel for the Petitioner: Smt. P. Rajini Reddy ^ Counsel for the Respondents: Sri M. Ramarao <GIST: > HEAD NOTE: ? Cases referred AIR 1964 SC 743 2 1965 (1) LLJ 150 3 AIR 1969 SC 1335 4 AIR 1975 SC 1898 5 AIR 1964 SC 752 6 AIR 1968 SC 218 7 1996(3) LLJ 952 8 2002(3) ALD 516 9 AIR 2000 SC 1508 10 AIR 1974 SC 1604 11 (1995)1 SCC 235 12 (2001)1 SCC 73 13 (2005)8 SCC 58 THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.31344 OF 1997 O R D E R: Questioning the order of the Industrial Tribunal-cum-Labour Court, Godavarikhani, in M.P.No.4 of 1996 in I.D.No.21 of 1980, dated 07.04.1997, the Depot Manager, APSRTC, Nirmal Depot, has filed the present writ petition. Facts, to the extent necessary for this writ petition, are that the first respondent was appointed as a Conductor on 12.10.1963 and was removed from service on 06.11.1971 for his involvement in cash and ticket irregularities. The first respondent raised a dispute, in I.D.No. 21 of 1980, before the Tribunal and, by award dated 09.08.1980, the petitioner was directed to reinstate the first respondent into service with full back wages and all other attendant benefits. Aggrieved thereby the petitioner filed W.P.No. 2872 of 1981, and the execution of the award was stayed by this Court subject to the condition that the workman be reinstated and 1/6th of the back wages that were awarded being deposited. It is the case of the petitioner that, pursuant to the award of the Tribunal dated 09.08.1980, the Divisional Manager, Nizamabad, had issued proceedings dated 03.03.1982, posting the first respondent at Kamareddy Depot, pending further orders in W.P.No.2872 of 1981. W.P.No.2872 of 1981 was dismissed by this Court by order dated 23.10.1986. It is the case of the petitioner that, in spite of the office order dated 03.03.1982 issued by the Divisional Manager, Nizamabad, reinstating him into service, the first respondent did not report to duty till 31.03.1993 and he was thereafter, posted to Bhainsa on 06.02.1996. The first respondent filed E.P.No.14 of 1993, which was dismissed. He subsequently filed M.P.No.4 of 1996, under Section 33(C)(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’), before the Tribunal for recovery of Rs.4,77,606-10 ps towards arrears of wages. Before the Tribunal, in M.P.No.4 of 1996, the petitioner herein contended that the petition filed by the workman/first respondent was not maintainable under Section 33 (C)(2) and that the Tribunal did not have jurisdiction to entertain the petition. It was contended that since the first respondent did not approach the petitioner for reinstatement, he was not entitled for the benefits of arrears of wages and as he had avoided joining duty, he was not entitled for promotion and continuity of service. The petitioner contended that the first respondent was not entitled for Rs.4,77,606-10 ps., claimed by him, as he had willfully avoided joining duty at Kamareddy Depot, soon after the award was passed or at least after the interim directions passed by this Court in W.P.No. 2872 of 1981 whereby execution of the award was stayed subject, among other conditions, that the first respondent be reinstated into service. The first respondent examined himself as WW.1 and marked Exs.W.1 to W.8, whereas one witness was examined on behalf of the petitioner as M.W.1 and Exs.M.1 to M.14 were marked as exhibits. While the petitioner contended that the first respondent had failed to join duty despite the posting orders dated 03.03.1982, the first respondent contended that he did not receive the said orders of posting and was, in fact, not given any posting orders in spite of the legal notice given by his counsel. The Tribunal held that it had jurisdiction to try the petition in M.P.No. 4 of 1996 under Section 33 (C)(2) of the Act. The Tribunal relied on the office copy of the legal notice sent by the counsel of the first respondent, marked as Ex.W.3, and the oral evidence of the first respondent that the same was sent by registered post acknowledgment due, a copy of which was marked as Ex.W.5. Placing reliance on Ex.W.7, notice dated 27.09.1993, though disputed by the petitioner as having been brought into existence, the Tribunal held that the said document was genuine inasmuch as Ex.W.6, postal receipt dated 27.09.1993 had been produced in support thereof. The first respondent contended that he was not given posting orders and had therefore filed E.P.No.14 of 1993, that only thereafter were posting orders issued by the petitioner, pursuant to which he joined duty. The Tribunal held that Ex.M.3, dated 24.02.1982, was not a reinstatement order and was only a direction given to the Deputy Manager, Nizamabad, to issue reinstatement orders, that since there was no documentary proof to show that the office order in Ex.M.2 was sent to the first respondent and that he had received the same, and since the first respondent, as WW.1, had categorically stated that he was not aware of the proceedings and had not received the posting orders dated 03.03.1982, it must be held that no reinstatement orders were issued and in the absence of any acknowledgement, it had to be held that the first respondent had not received the posting orders dated 03.03.1982. The Tribunal further held that the first respondent was not aware of the posting orders as it was not served, that he was entitled to back wages till he was allowed to join duty, and that he was not entitled to bonus, ex-gratia or encashment of leave. The Tribunal directed that the first respondent be paid Rs.4,30,414/- with interest at 6% P.A. from the date of filing of M.P.No.4 of 1996 i.e., 25.03.1996. It is this order of the Tribunal, which is impugned in this writ petition. Smt P.Rajini Reddy, learned counsel for the petitioner, would contend that since proceedings under Section 33 (C)(2) are in the nature of execution proceedings, the dispute as to whether or not the first respondent had received the proceedings dated 03.03.1982, asking him to join duty; and whether or not he was prevented from joining duty subsequent to the award, were all questions which could not be examined in execution proceedings, in M.P.No.4 of 1996 and the remedy, if any, for the first respondent/workman was under Section 10, and not under Section 33-C(2) of the Act. Sri M.Rama Rao, learned counsel for the first respondent, would submit that the question as to whether the petitioner was entitled to arrears of pay from the date of the award dated 07.08.1980 till his reinstatement on 06.02.1996, was an incidental question, which could be examined in proceedings under Section 33- C(2) of the Act. Learned counsel would rely on CENTRAL BANK OF INDIA LTD. v. P. S. RAJAGOPALAN, CHHOTU KALU (IMPERIAL TOBACCO COMPANY OF INDIA, LTD., EMPLOYEES’ UNION, AHMEDABAD) V. LABOUR COURT, TOWN MUNICIPAL COUNCIL, ATHANI V. PRESIDING OFFICER, LABOUR COURT, HUBLI, PUNJAB CO-OPERATIVE BANK LTD. V. R. S. BHATIA, BOMBAY GAS CO. LTD. V. GOPAL BHIVA, CHIEF MINING ENGINEER, M/S. EAST INDIA COAL CO., LTD., BARAREE COLLIERY, DHANBAD V. RAMESHWAR, SARANGI RAMACHANDRAIAH V. NAGARJUNA GRAMEENA BANK, EXECUTIVE ENGINEER, PENSTOCK FABRICATION AND ERECTION DIVISON V. P.SESHAGIRI RAO, INDIAN OVERSEAS BANK V. I.O.B. STAFF CANTEEN WORKERS' UNION. Before examining the rival contentions, it is necessary to refer to Section 33-C of the Act, which reads as under: 33-C. Recovery of money due from an employer:-- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter V-A or Chapter V-B] the workman himself or any other person authorized by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue. Provided that every such application shall be made within one year from the date on which money became due to the workman from the employer : Provided further that 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. (2) Where 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]; [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] (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. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. Explanation:- In this Section “Labour Court” includes any Court constituted under any law relating to investigation and settlement of industrial disputes in force in any State. A proceeding under Section 33-C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workmen is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or otherwise duly provided for. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination no. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). Since a proceeding under Section 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33-C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. Therefore, when a claim is made before the Labour Court under S. 33-C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases determinations (i) and (ii) are not 'Incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. (CENTRAL INLAND WATER TRANSPORT CORPORATION LTD. V. THE WORKMEN). In the present case, the award in I.D.No.21 of 1980 was passed on 07.08.1980, whereby the first respondent was directed to be reinstated into service with full back wages. As such, the first respondent would automatically be entitled to the entire back wages from 06.11.1971 till the date of the award dated 07.08.1980, and arrears of back wages for the aforesaid period can certainly be computed by the labour Court in proceedings under Section 33- C(2) of the Act. What arises for consideration, is, whether the Labour Court, in proceedings under Section 33-C (2), could have examined the question as to whether or not the first respondent, pursuant to the award in I.D.No. 21 of 1980, was called upon by the petitioner to join duty and as to whether he was entitled for payment of salary subsequent to the date of the award i.e. 07.08.1980 till the date of his actual reinstatement on 06.02.1996. While Smt P. Rajini Reddy, learned counsel for the petitioner, would submit that the entitlement of the first respondent for salary for the period subsequent to the date of the award till the date of his actual reinstatement on 06.02.1996, are matters which do not flow or arise from out of the award in I.D.No. 21 of 1980 dated 09.08.1980 and as such, did not call for examination in proceedings under Section 33 (C)(2) of the Act, Sri M.Rama Rao, learned counsel for the first respondent would submit that these are all incidental questions, which arose consequent upon the award passed by the Tribunal and for failure of the petitioner, to permit the first respondent-workman to join duty, the only forum available, for a claim of salary for this period, was in proceedings under Section 33(C)(2) alone and not by way of a fresh dispute or a reference made thereupon under Section 10 of the Act. Sri M. Rama Rao, learned Counsel for the first respondent, would submit that, pending disposal of the present writ petition, the first respondent has been paid 50% of the amount awarded by the Tribunal in M.P.No.4 of 1996 and that he has already retired from service on 30.04.1999. Learned counsel would submit that at the time of admission of the present writ petition, 25% was paid and after the vacate stay petition was filed by the first respondent, another 25% was directed to be paid on 12.02.1998. Before examining whether or not the Tribunal, in proceedings under Section 33-C(2), has the jurisdiction to examine questions of this nature, relating to payment of salary for a period of more than 15 years from the date of the award in I.D.No.21 of 1980 dated 07.08.1980, till the reinstatement on 06.02.1996, the judgments relied upon by Sri M.Rama Rao, learned counsel for the first respondent, shall be referred to. In P. S. RAJAGOPALAN1, the question which arose for consideration was as to whether a section of employees of the Central Bank of India Ltd. were entitled for payment of special allowance for operating the adding machine in accordance with the provisions of the Shastri Award. The contention raised on behalf of the bank was that the question regarding the existence of the right set up by the workman, would call for interpretation of the award or settlement on which the right is said to be based, and that cannot be within the jurisdiction of the Tribunal or Labour Court under Section 33-C(2). While holding that the power exercised by the Tribunal/Labour Court under Section 33-C(2), is akin to an executing court, the Supreme Court held that it was open to the executing court to interpret the decree for the purpose of execution, though it could not go behind the decree, nor could it add to or subtract from the provision of the decree. The Supreme Court further held that while these limitations, which apply to an executing court, are also applicable to the Labour Court, the Labour Court however, like the executing court, was competent to interpret the award or settlement, on which the workman based his claim, in proceedings under Section 33- C(2) of the Act. The Supreme Court held thus: “We would, however, like to indicate some of the claims which would not fall under S. 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made under S. 33C(2)……” I n CHHOTU KALU2, the workmen claimed that they were entitled to basic wages and dearness allowance in accordance with the settlement arrived a t between the workmen and the company and since they were not paid at these rates, they approached the Labour Court at Ahmedabad under Section 33-C(2) of the Act. The Labour Court held that that the question whether the workmen were employees of the Company; whether they were covered by the terms of settlement or not; and whether they had acquiesced in the arrangement under which their services with the company were terminated are all matters which could not be gone into in proceedings under Section 33-C(2) of the Act. The Division Bench of the Gujarat High Court, however, held that the view of the Labour Court, regarding the provisions of Section 33-C(2) of the Act was erroneous, and were matters which ought to have been adjudicated by the Labour Court in proceedings under Section 33-C(2). I n TOWN MUNICIPAL COUNCIL, ATHANI3, the Supreme Court held that Article 137 of the schedule to the Limitation Act, 1963, does not apply to applications under Section 33-C(2) of the Industrial Disputes Act, and that no limitation was prescribed for such applications. In R. S. BHATIA4, the claim of the workman was that under the Shastri Award he was entitled for the benefits which the bank had refused to pay. The Supreme Court held that the claim of the workman was limited to the period from 01.04.1954 to 1961 and the application under Section 33-C(2) was filed on 10.07.1968. The plea of the bank, that the application filed by the workman under Section 33-C(2) of the Act was barred by limitation and was not fit to be entertained on the ground of undue delay and laches, was rejected by the Labour Court, and the view taken by Labour Court was affirmed by the Supreme Court. I n GOPAL BHIVA5, contending that as a result of the award of the Industrial Tribunal they were entitled to certain benefits, the workmen approached the Labour Court to compute the benefit in terms of money and to direct the employer to pay the same. With regards the plea of laches, the Supreme Court held that a decree passed under the Code of Civil Procedure was capable of execution within 12 years, provided, of course, it was kept alive by taking steps in aid of execution from time to time as required by Article 182 of the Limitation Act; and in cases where the legislature had made no provision for limitation, it would not be open to the Courts to introduce any such limitation on grounds of fairness or justice. The Supreme Court held that the words of Section 33-C(2) were plain and unambiguous and it was the duty of the Labour Court to give effect to the said provision without any considerations of limitation. In RAMESHWAR6, the workmen claimed bonus under a scheme framed by the Central Government under the Coal Mines Provident Fund and Bonus Schemes Act, (Act 46 of 1948), and railway fares and leave wages under the award of the Industrial Tribunal. The applications under Section 33-C(2) were made in 1962, though they related to claims for the years commencing from 1948 onwards. The Supreme Court held that there was no justification in inducting a period of limitation, as provided in the Limitation Act, into the provisions of Section 33- C(2) which do not lay down any limitation and that such a provision could only be made by the legislature if it thought fit and not by the Court on an analogy or any such consideration. The Supreme Court held that the Labour Court had the jurisdiction to entertain the claim if it was based on an existing right or a benefit provided by a statute or a scheme made thereunder. I n SARANGI RAMACHANDRAIAH7, the question which fell for consideration before a Division Bench of this Court was whether the Labour Court, while deciding an application under Section 33-C(2) of the Act, could refuse the claim of a reinstated workman for salary for the period from the date of removal till the date of the judgment in the writ petition in which the removal order was set aside, taking the view that such a claim of the workman was not an existing right implementable under the Section. The Division Bench held that this was a matter which certainly could be and ought to have been examined by the Labour Court in proceedings under Section 33-C(2) of the Act. I n P.SESHAGIRI RAO8, the workmen claimed difference of wages in terms of a government order, whereby pay scales applicable to NMR workers in the Srisailam project was treated on par with employees of the work-charged established. The Division Bench of this Court held that in order to invoke the jurisdiction of the Labour Court, under Section 33-C(2), either of the two ingredients must be present. The first is that a workman must be entitled to receive from the employer any money or benefit which is capable of being computed in terms of money and the second is that a question must have arisen as to the amount of money due, or as to the amount at which such benefit should be computed. The Division Bench held that in a case where both these ingredients are satisfied or either of these ingredients are satisfied, the Labour Court will have the jurisdiction to determine the question. The Division Bench further held that the Legislature had empowered the Labour Court to decide a dispute as to the right of the workman to receive from the employer any money or any benefit which is capable of being computed in terms of money and had authorized