PETITIONER: MUNICIPAL CORPORATION OF DELHI Vs. RESPONDENT: RAZAK DATE OF JUDGMENT20/10/1994 BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) BHARUCHA S.P. (J) PARIPOORNAN, K.S.(J) CITATION: 1995 SCC (1) 235 JT 1994 (7) 476 1994 SCALE (4)967 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by J.S. VERMA, J.-
Leave granted.
2. The common question for decision in these matters is
the maintainability of the claim of respondents in
proceedings under Section 33-C(2) of the Industrial Disputes
Act, 1947 (hereinafter referred to as ‘the Act’). The
respondents are all daily-rated/casual workers of the
appellant Municipal Corporation of Delhi, who claim that
they were doing the same kind of work as the regular
employees and, therefore, they were required to be paid by
the appellant the same pay as the regular employees on the
principle of “equal pay for equal work”. On this basis,
they claim computation of the arrears of their wages at the
rate at which the wages are paid to the regular employees,
in accordance with Section 33-C(2) of the Act. Their
applications made to the Labour Court under Section 33-C(2)
of the Act led to the award in their favour, accepting this
claim. Writ petitions were filed in the Delhi High Court by
the appellant-Municipal Corporation challenging those
awards. The writ petitions having been dismissed, these
appeals arise by special leave.
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3. The appellant’s challenge to the maintainability of the
respondents’ claim in proceedings under Section 33-C(2) of
the Act is on the ground that the claim of workmen to be
paid at the same rate as the regular workmen being disputed,
proceedings under Section 33-C(2) of the Act were not
maintainable for grant of this relief. The Labour Court
and, thereafter, the High Court have rejected this
contention. The same argument is reiterated before us in
these appeals.
4. It is clear that there has been no earlier adjudication
by any forum of the claim of these workmen of their
entitlement to be paid wages at the same rate at which the
regular workmen of the establishment are being paid and
there is no award or settlement to that effect. In short,
this claim of the workmen has neither been adjudicated nor
recognised by the employer in any award or settlement. The
real question therefore is : Whether in these circumstances,
without a prior adjudication or recognition of the disputed
claim of the workmen to be paid at the same rate as the
regular employees, proceedings for computation of the
arrears of wages claimed by them on that basis are
maintainable under Section 33-C(2) of the Act?
5. In our opinion, the question for decision is no longer
res integra being long settled by earlier decisions of this
Court. Some of the decisions have been referred by the High
Court in the impugned judgment, but the application of the
settled principle made by the High Court is erroneous. We
would refer to some of the decisions on this point and the
submissions of learned counsel for the parties with
reference to which these matters have to be decided.
6. Shri G.B. Pai, learned counsel for the appellant,
submitted that the proceedings under Section 33-C(2) of the
Act are in the nature of execution proceedings which
envisage a prior adjudication or recognition by the employer
of the claim of the workmen to be paid wages at the rate ;At
which they claim the computation; and when the basis of
their claim is disputed, the remedy under Section 33-C(2) is
not available to the workmen. Shri Pai contended that in
the present case, there was no earlier adjudication or
recognition of the workmen’s claim to be paid at the same
rate as the regular workmen and, therefore, the basis of
computation being disputed, the proceedings under Section
33-C(2) of the Act were not maintainable. According to Shri
Pai, this is the sit tight position emerging from the
decisions of this Court.
7. On the other hand, Shri PP. Rao, learned counsel for
the respondent workmen submitted that there was really no
dispute of this kind since these daily-rated/casual workmen
were doing the same kind of work as the regular workmen and,
therefore, they were entitled to be paid wages at the same
rate as the regular workmen on the principle of “equal pay
for equal work”. It was submitted that in certain writ
petitions filed by some other workmen, it had been held that
they were required to be paid at the same rate as the
regular workmen and, therefore, it would not be open to the
employer to raise such a dispute in the case of other
workmen such as the present
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respondents. According to Shri Rao, proceedings under
Section 33-C(2) of the Act were maintainable in these cases
and the Labour Court as well as the High Court are right in
taking that view. Shri Rao formulated his contention thus:
The very dispute as to entitlement of the benefit claimed by
the workmen as well as the computation thereof are within
the scope of Section 33-C(2) of the Act.
8.Reference may be made first to the Constitution Bench
decision in Central Bank of India Ltd. v. PS. Rajagopalan1
on which Shri Rao placed heavy reliance. That was a case in
which the question of maintainability of proceedings under
Section 33-C(2) of the Act was considered in a claim made by
the workmen on the basis of the Sastry Award. The employer
disputed the claim of the workmen on several grounds
including the applicability of Section 33-C(2) of the Act.
It was urged that since the applications involved a question
of interpretation of the Sastry Award, they were outside the
purview of Section 33-C(2) because interpretation of awards
or settlements has been expressly provided for by Section
36-A. This objection was rejected. This Court pointed Out
the difference in the scope of Section 36-A and Section 33-
C(2) indicating that the distinction lies in the fact that
Section 36-A is not concerned with the implementation or
execution of the award whereas that is the sole purpose of
Section 33-C(2); and whereas Section 33-C(2) deals with
cases of implementation of individual rights of workmen
falling under its provisions, Section 36-A deals merely with
a question of interpretation of the award where a dispute
arises in that behalf between the workmen and tile employer
and the appropriate Government ‘Is satisfied that the
dispute deserves to be resolved by reference under Section
36-A. In this context, this Court also indicated that the
power of the Labour Court in a proceeding under Section 33-
C(2) being akin to that of the Executing Court, the Labour
Court is competent to interpret the award or settlement on
which a workman bases his claim under Section 33-C(2), like
the power of the Executing Court to interpret the decree for
the purpose of execution. Relevant extract from that
decision is as under: (SCR pp. 154-155)
“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 Section 33-C(2). Therefore, we
feel no difficulty in holding that for the
purpose of making the necessary determination
under Section 33-C(2), it would, in
appropriate cases, be
1 (1964) 3 SCR 140: AIR 1964 SC 743:(1963) 2
LLJ 89
239
open to the Labour Court to interpret the
award or settlement on which the workman’s
right rests.”
This decision itself indicates that the power of the Labour
Court under Section 33-C(2) extends to interpretation of the
award or settlement on which the workman’s right rests, like
the Executing Court’s power to interpret the decree for the
purpose of execution, where the basis of the 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 no prior adjudication or
recognition of the same by the employer. This decision
negatives instead of supporting the submission of learned
counsel for the respondents.
9. Another decision on the point is Bombay Gas Co. Ltd. v.
Gopal Bhiva2 wherein also Gajendragadkar, J., (as he then
was) speaking for the Bench, referring to the above
Constitution Bench decision, stated 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 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 above Constitution Bench decision and has
been the consistent view of this Court ever since then.
10. Next case on this point is Chief Mining Engineer East
India Coal Co. Ltd. v. Rameswar3 wherein the above
decisions were relied on. It was held that the right to the
benefit which is sought to be computed under Section 33-C(2)
must be “an existing one, that is to say, already
adjudicated upon or provided for”. The propositions on the
question as to the scope of Section 33-C(2) deducible from
the earlier decisions of this Court were summarised and they
include the following, namely: (SCR pp. 142-144)
“(1) The legislative history indicates that
the legislature, after providing broadly for
the investigation and settlement of disputes
on the basis of collective bargaining,
recognised the need of individual workmen of a
speedy remedy to enforce their existing
individual rights and therefore inserted
Section 33-A in 1950 and Section 33-C in 1956.
These two sections illustrate cases in which
individual workmen can enforce their rights
without having to take recourse to Section
10(1) and without having to depend on their
union to espouse their case.
2 (1964) 3 SCR 709: AIR 1964 SC 752 : (1963) 2
LLJ 608
3 (1968) 3 SCR 140: AIR 1968 SC 218 : (1968) 1
LLJ 6
240
(3) Section 33-C which is in terms similar
to those in Section 20 of the Industrial
Disputes (Appellate Tribunal) Act, 1950 is a
provision in the nature of an executing
provision.
(5) Section 33-C(2) takes within its purview
cases of workmen who claim 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. It is open to
the Labour Court to interpret the award or
settlement on which the workmen’s right rests.
(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 fall
under sub-section (2), viz., cases which would
appropriately be adjudicated under Section
10(1) or claims which have already been the
subject-matter of settlement to which Sections
18 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 Court 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.”
After stating the propositions, the decision
proceeds to state as under: (SCR p. 144)
” It is clear that the right to the benefit
which is sought to be computed must be an
existing one, that is to say, already
adjudicated upon or provided for and must
arise in the course of and in relation to the
relationship between an industrial workman and
his employer.”
11. In Central Inland Water Transport Corpn. Ltd. v.
Workmen4 it was held with reference to the earlier decisions
that a proceeding under Section 33-C(2) being in the nature
of an execution proceeding, it would appear that an
investigation of the alleged right of re-employment is
outside its scope and the Labour Court exercising power
under Section 33-C(2) of the Act cannot arrogate to itself
the functions of adjudication of the dispute relating to the
claim of re-employment. Distinction between proceedings in
a suit and execution proceedings thereafter was pointed out.
It was indicated that the plaintiff’s right to relief
against the defendant involves an investigation which can be
done only in a suit and once the defendant’s liability had
been adjudicated in the suit, the working out of such
liability with a view to give
4 (1974) 4 SCC 696: 1974 SCC (L&S) 421 :(1975) 1 SCR 153
241
relief is the function of an execution proceeding. This
distinction is clearly brought out in that decision as
under: (SCR p. 159 : SCC pp. 701-02)
“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). They are normally regarded as the
functions of a suit and not an execution
proceeding. 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’. To call determinations (i) and
(ii) ‘Incidental’ to an execution proceeding
would be a perversion, because execution
proceedings in which the extent of liability
is worked out are just consequential upon the
determinations (i) and (ii) and represent the
last stage in a process leading to final
relief. Therefore, when a claim is made
before the Labour Court under Section 33-C(2)
that court must clearly understand the
limitations under which it is to function. It
cannot arrogate to itself the functions-say 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.
It was, therefore, held in State Bank of
Bikaner and Jaipur v. R.L. Khandelwal5 that a
workman cannot put forward a claim in an
application under Section 33-C(2) in respect
of a matter which is not based on an existing
right and which can be appropriately the
subject matter of an industrial dispute which
requires a reference under Section IO of the
Act.”
12.The High Court has referred to some of these decisions
but missed the true 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 earlier adjudication or
recognition
5 (1968) 1 LLJ 589 : 38 Comp Cas 400 (SC)
242
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 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. It is only
when the entitlement has been earlier adjudicated or
recognised by tile employer and thereafter for the purpose
of implementation or enforcement thereof some ambiguity
requires interpretation that the interpretation is treated
as incidental to the Labour Court’s power under Section 33-
C(2) like that of the Executing Court’s power to interpret
the decree for the purpose of its execution.
13.In these matters, the claim of the respondent-workmen who
were all daily-rated/casual workers, 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 reach. 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 adjudication of
their dispute resulting in acceptance 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 writ petitions under Article 32 of
the Constitution is indicative of the need for adjudication
of the claim of entitlement to the benefit 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. It must, therefore, be held that the Labour Court
as well as the High Court were in error in treating as
maintainable the applications made Linder Section 33-C(2) of
the Act by these respondents.
14.Consequently, these appeals are allowed. The judgments
of the High Court as well as the awards made by the Labour
Court in favour of the respondents are set aside. No costs.
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