IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 7430 of 2010. Reserved on: 27.12.2011. Decided on 13.01.2012. _____________________________________________________ 1. The Chairman-Cum-Managing Director, Cement Corporation of India Ltd., Core No. 5, Scope Complex, Lodhi road, New Delhi. 2. The General Manager, Cement Corporation of India Ltd., Post Office-Rajban Cement Factory, District Sirmour-171029 (H.P.). …………..Petitioners. -Versus- 1. Central Government Industrial Tribunal-Cum-Labour Court –I, Chandigarh and others. 2. Shri Anup Kumar, son of late Shri Jagdish Singh, Resident of Village Cattu Navi, Post Office Chhacheti, Tehsil Paonta Sahib, District Sirmour-173 209 (H.P.). 3. Shri Albel Singh, Labour Supply Contractor, C/o Cement Corporation of India Limited, Post Office Rajban Cement Factory, District Sirmour-172029 (H.P.) ………………...Respondents. Writ Petition under Article 226 of the Constitution of India. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner : Mr. K.D. Shreedhar, Advocate. For respondent No. 2 : M/s. Rohit Sharma and Anuj Gupta, Advocates. For respondents No. 1 and 3 : None. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner-Company (hereinafter referred to as “the Management” for convenience sake) has assailed the award made by the learned Central Govt. Industrial Tribunal-Cum-Labour 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - Court-I, Chandigarh in case L.C.A. No. 4 of 2010, dated 17.08.2010. 2. Material facts necessary for the adjudication of this petition are that the respondent-Workman (hereinafter referred to as “the workman” for convenience sake) has filed a petition under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” for brevity sake). Primarily, the workman has confined his relief to the difference of wages and arrears as per Wage Board constituted by the Central Government amounting ` 508501/-. 3. The Management filed reply to the same. Primarily, it was contended by the Management that the application under Section 33-C (2) was not maintainable in the present form. It was also contended that under Section 22 of the Act, the application under Section 33(C) (2) was not maintainable. The workman was not directly employed by the Management as Workman. Learned Central Government Industrial Tribunal –Cum-Labour Court vide award dated 17.08.2010 computed a sum of ` 508501/- in the proceedings under Section 33-C(2) payable to the workman. The Management was directed to pay the computed amount within two months from the date of receiving the order. 4. Mr. K.D. Shreedhar, learned counsel for the petitioner has strenuously argued that the application under Section 33–C(2) was not maintainable. According to him, the proceedings under Section 33-C(2) are in the form of execution. He then argued that the workman was not employed by the Management. He lastly contended that under Section 22 of the Sick Industrial Companies - 3 - (Special Provisions) Act, 1985, the Labour Court has no jurisdiction to decide the application. 5. Mr. Rohit Sharma, learned counsel for respondent No. 2 has strenuously argued that the workman is entitled to the wages determined by the Central Wage Board constituted by the Central Government on 02.04.1958 and the recommendations made from time to time. He further argued that the amount has already been computed as per award and the same was liable to be paid by the Management and since the difference of wages has not been paid to the workman at par with regularly employed employees of the Company, he was entitled to move an appropriate application under Section 33-C(2) of the Act. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. The dispute is in a narrow compass. The core issue to be decided is whether the application preferred by the workman under Section 33-C(2) was maintainable before the learned Central Government Industrial Tribunal-Cum-Labour Court or not. The workman was engaged on 21st April, 2003. He has served a legal notice upon the Management on 30th January, 2010. Thereafter, as noticed above, he has filed a claim petition, to which reply was filed by the Management. 8. The Management has placed on record the recommendations made by the Wage Board vide Annexures P-3, P- 4 and P-6, respectively. A bare perusal of item Nos. 4.27 and 4.28 of Annexure P-3 makes it abundantly clear that the contract labour employed in the Cement Industry should get the same wages, dearness allowance, leave, medical facilities, hours of work - 4 - and overtime as departmental labour and they should also get the same rate of bonus. It is also made clear as per paragraph 4.27 that employers should carry more direct responsibility to ensure that the contractors make payment to their labour on the employers’ premises and in the presence of a representative deputed by the employer to check and supervise such payments. 9. The recommendations of the Wage Board have been summarized vide Annexure P-4, whereby in paragraph No. 14.8, it is reiterated that the contract labour employed in the Cement Industry should get the same wages, dearness allowance, leave etc. as departmental labour and they should get the same rate of bonus and as per paragraph No. 14.9, it is reiterated that the employers should carry more direct responsibility to ensure that the contractors make payment to their labour on the employers’ premises. 10. It will be apt at this stage to reproduce paragraph No. 165 of Annexure P-5, which reads as under: “165. If after the recommendation of the First Wage Board, which has been accepted by the Government and implemented by the industry, any employee in the industry has resorted the employment of contract labour in any occupation other than those permitted by the First Wage Board, it would amount to an aberration and an unfair practice by the employer concerned. Therefore, to correct such aberration and direct the employe not to persist in such unfair practice but to employ such labour as regular departmental workers as well without our jurisdiction.” 11. According to paragraph No. 166, the Wage Board has recommended that no contract labour shall be employed in the - 5 - industry by any employee except in loading, unloading, packing operations, as stated by the First Wage Board and where any employer employ contract labour in any other occupation such labour shall be made regular departmental employee under the employers and made eligible to the same wages, dearness allowance, bonus and other allowance under the award as the other regular employee under the employer, provided they give the corresponding workload obtaining for similar occupation in units. 12. In Annexure P-6, it is stated that it was agreed position that contract labour will not be employed in any other occupation and the Regulation Act will not come in the way if the Wage Board directed that the agreement in respect of contract labour from the days of the First Wage Board should be adhered to by the employers. The Board has directed that the unanimous recommendations of the First Wage Board in that regard should be strictly adhered to. 13. Learned Labour Court has taken into consideration the award made by the Wage Board. It is the primary duty of the employer as per the contents of Annexures P-4 to P-6 to ensure that even the persons appointed on contractual basis are given the same wages which are paid to the regular employees in the Company. No issue was framed that whether the workman was engaged by respondent No. 3, Shri Albel Singh or not. The Court need not go into this issue since the case of the workman is covered by the various recommendations, as noticed above for the purpose of payment of difference of wages. Rather, it is emphasized in the first recommendation made by the Wage Board that the Management should ensure that the contractor make - 6 - payments to their labour in the presence of representatives. In these circumstances, it can safely be concluded that the wages to which the petitioner is entitled, also stood computed on the basis of the recommendations made by the Central Wage Board. He was entitled to the wages determined by the Central Wage Board and not as per the minimum wages notified by the State of Himachal Pradesh, as argued by Mr. K.D. Shreedhar, learned counsel for the petitioners. 14. Mr. Rohit Sharma, learned counsel for respondent No. 2 has also brought to the notice of this Court that as far as Cement Corporation of India Rajban Unit is concerned, it is running in profits. The rights of the contractual employees stood determined as per the recommendations of the Wage Board and the Labour Court was only to compute the money. 15. Now, the Court will advert to the question whether the application preferred by the workman under Section 33-C(2) was maintainable before the learned Central Government Industrial Tribunal-Cum-Labour Court or not. In the instant case, the wages to which the contractual employees were entitled, already stood determined by the Wage Board and the Management was bound to pay the same. 16. What is to be gone into while considering application under Section 33-C(2) is : (i) that the workman is entitled to receive any money or benefit; and (ii) that the benefit is capable of being computed in terms of money. - 7 - The expression “benefit” is to be construed liberally and it will include its benefits, expressed or otherwise, in terms of money, but requiring computation. The expression compute means: to calculate. 17. The expression ‘benefit’ mentioned in sub-section (2) of Section 33-C has been explained by their Lordships of the Hon’ble Supreme Court in Punjab National Bank Ltd. Versus K.L. Kharbanda, AIR 1963 Supreme Court 487 as under: “9. This matter had come up before the Labour Appellate Tribunal in 1955 in Glaxo Laboratories (India) Ltd. Bombay v. Shri A Y. Manjrekar. Etc., 1955 Lab AC 505 (LATI-Bom). The appellate tribunal took the view that S.20 of the Appellate Tribunal Act was concerned purely with execution and there was no reason to hold that sub- see (2) only applied to non-monetary benefit. The same view was taken by the Madras High Court in South Arcot Electricity Distribution Co. Ltd. v. Elumalai, 1959-1 Lab LJ 624: (AIR 1959 Mad 401) by a learned Single Judge and again by the same High Court in M.S. N.S. Transports, Tiruchirapalli v. K Rajaram, 1960-1 Lab LJ 336: (AIR 1961) Mad 332) by a Division Bench Looking therefore to the words of the sub-section and the previous decisions with respect to them we are of opinion that the word "benefit" used in sub-sec. (2) is not confined merely to non- monetary benefit which could be converted in terms of money but is concerned with all kinds of benefits, whether monetary or non-monetary, to which a workman may be entitled, say, for example, under an award and that the sub-section comes into play when the benefits have to be computed or calculated and there is a dispute as to the calculation or computation. After the benefits have been so computed, the workman can apply under sub-sec. (1) for recovery of the amount in the same manner as arrears of land-revenue. As in this case, the Sastry award had conferred a benefit on the respondent and those like him by providing for fixation of pay in the new scale, even though that benefit may be monetary and there was a - 8 - dispute between the parties as to the amount of that benefit, it was open to the respondent to apply to the labour Court for computation of that benefit in terms of money, and then labour Court would have jurisdiction to entertain the application and compute the amount due on the basis of the benefit conferred by the award. 18. In this case their Lordships have held that the Sastry award had conferred a benefit on the respondent and those like him by providing for fixation of pay in the new scale, even though that benefit may be monetary and there was a dispute between the parties as to the amount of that benefit and it was open to the respondent to apply to the labour Court for computation of that benefit in terms of money, and the labour Court would have jurisdiction to entertain the application and compute the amount due on the basis of the benefit conferred by the award. 19. The Apex Court in The Central Bank of India Ltd. Versus P.S. Rajagopalan etc., AIR 1964 Supreme Court 743 have held that Section 33 C(2) applies even if right to benefit is disputed by the employer. Their Lordships have further held that it would be open to the Labour Court to interpret the award or settlement on which workman’s right rests. Their Lordships have further held that the scope of Section 33-C(2) is wider than that of Section 33 C(1). Their Lordships have held as under: “16. Let us then revert to the words used in S. 33C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-sec. (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? According to the appellant, the scope of sub-s. (2) is similar to that of sub-s. (1) and it is pointed out that just as under sub-s. - 9 - (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-s. (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-sec. (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. Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub sec. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The Clause "Where any workman is entitled to receive from the employer any benefit'' does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit''. The appellant's construction would necessarily introduce the addition of the words "admittedly, or admitted to be'' in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33C(2) clearly postulates that the determination of the question about - 10 - computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the powers of doing all such acts, or employing such means, as are essentially necessary to its execution (Maxwell on Interpretation of Statutes p.350)''. We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-s. (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-s. (2). 17. It is however, urged that in dealing with the question about the existence of a right set up by the workman, the Labour Court would necessarily have to interpret the award or settlement on which the right is based, and that cannot be within its jurisdiction under S. 33C(2), because interpretation of awards or settlements has been specifically and expressly provided for by S 36A. We have already noticed that Section 36A has also been added by the amending Act No. 36 of 1956 along with S. 33C. and the appellant's argument is that the legislature introduced the two sections together and thereby indicated that questions of interpretation fall within S. 36A and, therefore, outside S. 33C(2). There is no force in this contention. Section 36A merely provides for the interpretation of any provision of an award or settlement where any difficulty or doubt arises as to the said interpretation. Generally, this - 11 - power is invoked when the employer and his employees are not agreed as to the interpretation of any award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such case that S. 36A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties resolved and that remedy is now provided by S. 36A. But the scope of S. 36A is different from the scope of S. 33C(2), because S. 36A is not concerned with the implementation, or execution of the award at all, whereas that is the sole purpose of S. 33C(2). Whereas S. 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, S. 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under S. 36A. 18. Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under S. 33C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under S. 33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests. - 12 - 19. We have already noticed that in enacting S. 33C the legislature has deliberately omitted some words which occurred in S. 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable that similar words of limitation have been used in S. 33C(1) because S. 33C(1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter VA. It is thus clear that claims made under S. 33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in S. 33C(2) and to that extent, the scope of S. 33C(2) is undoubtedly wider than that of S. 33C(1). It is true that even in respect of the larger class of cases which fall under S. 33C(2) after the determination is made by the Labour Court the execution goes back again to S. 33C(1). That is why S. 33C(2) expressly provides that the amount so determined may be recovered as provided for in sub-sec. (1). It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under S 33C(2). There is no doubt that the three categories of claims mentioned in S. 33C(1) fall under S. 33C(2) and in that sense, S. 33C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under S. 33C(2) and that may illustrate its wider scope. 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 - 13 - employer and is entitled to the benefits due to him under a pre- existing contract, cannot be made under S. 33C(2). If a settlement has been duly reached between the employer and his employees and it falls under S. 18(2) or (3) of the Act and is governed by S. 19(2), it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative, no claim can be made under S. 33C(2) inconsistent with the said settlement. If the settlement is intended to terminated; proper steps may have to be taken in that behalf and a dispute that may arise thereafter may be dealt with according to the other procedure prescribed by the Act. Thus, our conclusion is that the scope of S. 33C(2) is wider than S. 33C(1)