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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2397 OF 2010
Force Motors Ltd., Pune ... Petitioner
V/s.
Shantilal Hukumchand Sancheti & Anr. ... Respondents
Mr. S.K. Talsania, Sr. Counsel, with Mr. Vishal Talsania and
Ms. Pallavi Dedhia i/b. Sanjay Udeshi & Co. for the Petitioner.
Mrs. Neeta P. Karnik for Respondent No.1.
ig CORAM : SMT. NISHITA MHATRE, J.
RESERVED ON : 20
TH DECEMBER, 2010.
PRONOUNCED ON : 8
TH MARCH, 2011.
JUDGMENT :
1. Rule. Rule made returnable forthwith, by consent.
2. Once again the vexed question as to what could be considered as an incidental
issue in an application under Section 33C(2) of the Industrial Disputes Act, 1947, (for
short “the I.D. Act”), arises for determination in the present Petition.
3. The first respondent, (hereinafter referred to as “the workman”), was employed
with the petitioner, (hereinafter referred to as “the Company”), from 5th October, 1970.
He was recruited as a “Junior Clerk” in the Traffic Department. He was later re-
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designated as a “Senior Assistant” on 1st November, 1979. Thereafter, he was transferred
to the Stores Department on 14th January, 1980. The Company dismissed the workman
on 7th August, 1982 for having committed gross misconduct of insubordination and
disobedience. Aggrieved by that order, the workman preferred Complaint (ULP) No.51 of
1988, which was allowed partly by the Labour Court, Pune. The Company was directed
to reinstate the workman with continuity of service and to pay him 50% of his back-
wages by the order of the Labour Court dated 27th September, 1988. Both the workman
as well as the Company preferred Revision Applications before the Industrial Court,
Pune. By an order dated 1st March, 1993, the Industrial Court allowed the Revision
Application of the workman and granted him full back-wages. The Revision Application
of the Company was dismissed. According to the Company it complied with the order of
the Industrial Court by reinstating the workman with effect from 23rd April, 1993 and
paying him an amount of `2,93,984.34 on 14th May, 1993 as back-wages.
4. The workman filed Miscellaneous Application (ULP) No.12 of 1993 before the
Labour Court under Section 50 of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”),
claiming that he was entitled to the benefits of Settlements which were signed by the
Company with the Union representing the employees while he was out of service. These
Settlements were signed on 24th January, 1985, 22nd June, 1988 and 30th April, 1993.
The workman claimed an amount of `2,41,096/-. Criminal Complaint (ULP) No.22 of
1993 was also filed by the workman under Section 48 of the MRTU & PULP Act. The
process issued by the Labour Court against the Managing Director of the Company was
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quashed by the Industrial Court. Criminal Writ Petition No.1066 of 1997 filed by the
workman against the order of the Industrial Court was dismissed on 30th July, 2001.
Soon thereafter on 3rd September, 2001, the Miscellaneous Application filed under
Section 50 of the MRTU & PULP Act was also dismissed by the Labour Court by
concluding that it did not have the jurisdiction to decide the Miscellaneous Application.
The Industrial Court set aside this order of the Labour Court and remanded the
application again to the Labour Court. The application was dismissed once again which
lead to another Revision Application being filed by the workman. The Industrial Court
dismissed that application. No further proceedings have been initiated by the workman
against that order of the Industrial Court passed on 5th October, 2002 in Revision
Application (ULP) No.81 of 2000.
5. While these proceedings under the MRTU & PULP Act were pending, the workman
filed an application under Section 33C(2) of the I.D. Act, being Application (IDA) No.75
of 2000. The workman claimed an amount of `2,45,345.55 as dues payable to him under
the Settlement dated 30th April, 1993. He also claimed interest @ 18% p.a. on that
amount. According to the workman, after he was reinstated in service on 24th April,
1993, the Company did not pay the benefits of the aforesaid Settlement.
6. The workman filed another application, being Application (IDA) No.25 of 2003,
under Section 33C(2) of the I.D. Act claiming `2,41,096/- together with interest @ 18%
p.a. In this application, he sought dues payable to him under the Settlement of 1984,
1988 and 1993 which had not been extended to him after he was reinstated in service.
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Thus, the period for which the workman claimed difference in wages in both the
applications, taken together, was from 1982 till 1993.
7. The workman and five other workmen filed Complaint (ULP) No.377 of 1977
before the Industrial Court under Item 9 of Schedule IV of the MRTU & PULP Act. It was
alleged that the Company had committed an unfair labour practice by not extending the
benefits of certain Settlements to them. The Industrial Court allowed the complaint by
an order dated 7th September, 1998. Aggrieved by this decision, the Company preferred
Writ Petition No.6605 of 1998 which is pending in this Court. The order of the Industrial
Court has been stayed by this Court.
8. In its written statement, the Company contended that the workman was not
given the benefits of the Settlement dated 30th April, 1993 while paying him his back-
wages. The Company pleaded that this was because the Settlement of 30 th April, 1993
was binding only on such workmen who had submitted an undertaking in writing,
accepting the terms and conditions of the Settlement. As the workman had not submitted
any such undertaking, as required under the Settlement, he was denied the benefits of
the Settlement of 30th April, 1993. It was also pleaded that the application was barred
under Section 59 of the MRTU & PULP Act since he had sought the same relief before the
Industrial Court.
9. Both the applications filed under Section 33C(2) of the I.D. Act, i.e. Application
(ULP) Nos.75 of 2000 as well as 25 of 2003, were heard together by the Labour Court,
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on an application made by the workman. The workman filed his affidavit in lieu of
examination-in-chief in which he has stated that he had sent several letters and had
orally requested officials of the Company to permit him to sign the undertaking in order
to avail of the benefits of the Settlement. However, the Company had refused to accept
his request. In his cross-examination, when asked whether he had furnished the
undertaking accepting the conditions in the aforesaid Settlements the workman
answered that the Company had not supplied the Form of Undertaking to him. He
further stated that he had written to the Company asking for the Undertaking Form.
10.
The witness of the Company has stated in his affidavit filed in lieu of examination-
in-chief that the workman had refused to submit any undertaking accepting the terms
and conditions of the Settlement dated 30th April, 1993 and it was for this reason that
the benefits of this Settlement were not extended to him. In his cross-examination, the
witness has denied the suggestion that the Company had not furnished Annexure-I of the
Settlement to the workman despite his request. Annexure-I was the Form of Undertaking.
11. The Labour Court by its Judgement and Order dated 27th April, 2009 has allowed
the Application (IDA) No.75 of 2000. It has directed the Company to pay an amount of
`2,45,345/- to the workman along with the interest thereon @ 8% p.a. from the date of
the application, i.e. from 29th April, 2000, till realization of the entire amount. By
another order dated 27th April, 2009 passed in Application (IDA) No.25 of 2003 the
Labour Court directed the Company to pay an amount of `2,08,555/- with interest @ 8%
p.a. from the date of the application i.e. from 13th March, 2003 till realization of the
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amount. The petitioner then preferred Miscellaneous Application No.3 of 2009 for
review of the order passed in Application (IDA) No.25 of 2003. That application was
dismissed by the Labour Court on 10th February, 2010 on the ground that the review was
not maintainable.
ARGUMENTS OF MR. TALSANIA,
THE LEARNED COUNSEL FOR THE COMPANY
12. Mr. Talsania, the learned Counsel appearing for the Company, pointed out that
the claim under Section 33C(2) of the I.D. Act was not maintainable as the entitlement
of the workman to the amount payable under the Settlement was disputed. His
submissions were as follows :
. The jurisdiction of the Labour Court under Section 33C(2) of the I.D. Act is akin
to that of the Civil Court which executes a judgement or order. It cannot traverse beyond
the computation of the amount payable. The Labour Court has no jurisdiction to decide
the entitlement of the workman. The very fact that the workman had not signed the
declaration would indicate that he was not entitled to the amount. Any decision or
enquiry by the Labour Court as to whether the workman was prevented from signing
such a declaration or he had voluntarily refused to sign the same would amount to
deciding his entitlement. Whether the workman was prevented from signing the
declaration is a disputed question which cannot be answered by the Labour Court under
Section 33C(2) of the I.D. Act as that would lead to adjudication of his entitlement. Such
an enquiry would not amount to deciding whether there was an existing right as the
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enquiry would not be incidental to the main issue of computation of an amount under
Section 33C(2) of the I.D. Act. Clause (1.2) of the Settlement of 30th April, 1993
required each individual workman to signify the acceptance of the terms and conditions
of the Settlement by giving a declaration in the form of Annexure-I to the Settlement.
This declaration was not furnished by the workman and, therefore, the amount was not
paid to him. No letters signifying his acceptance were produced by the workman, neither
was any letter produced indicating that the Company had refused permission to him to
sign the declaration envisaged under the Settlement of 30th March, 1993. By the
impugned order, the Labour Court has modified the Settlement by observing that no
declaration was required from the Senior Clerk. It was only in his evidence that the
workman contended that he was willing to sign the relevant declaration. Such an offer
made after seven years is of no consequence. Therefore, the application ought to have
been dismissed.
ARGUMENTS OF MRS. NEETA KARNIK,
THE LEARNED ADVOCATE FOR THE WORKMAN
13. Mrs. Karnik’s submissions were as follows: The benefits claimed under Section
33C(2) of the I.D. Act by the workman flows from a pre-existing right contained in the
Settlement dated 30th April, 1993. The refusal by the Company to permit him to sign the
Settlement was because the workman had litigious tendencies. The entitlement of the
dues is envisaged in the Settlement. The undertaking required to be furnished under the
Settlement had not been furnished by the workman because of the refusal by the
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Company to furnish him the format in which the undertaking was expected. The issue as
to whether the workman was refused permission or he voluntarily did not sign the
declaration is a question which is incidental to the main issue of payment of the amounts
under the Settlement of 30th April, 1993. The furnishing of the undertaking does not
dictate the entitlement as the entitlement is contained in the Settlement itself.
14. Both the learned Counsel have referred to several judgements which I will deal
with presently.
15.
By a letter dated 20th September, 1995, the workman had called upon the
Company to recalculate the amounts paid to him in accordance with the Settlement of
1993. Several similar letters have been written by the workman to the Company. By a
letter dated 15th January, 1996, the Company has stated that the question of payment of
arrears in accordance with the Settlement of 30th April, 1993 was a subject matter of
various cases filed by the workman in Court and, therefore, it had not extended the
benefits of that Settlement to the workman. There does not appear to be any letter on
record written by the Company to the workman calling upon him to sign the declaration
in order to pay him the amount. The Labour Court by the impugned order has held that
the Company had avoided the request of the applicant, i.e. the workman, to permit him
to sign the undertaking with an intention to deny him the benefits of the Settlement of
30th April, 1993. It was, therefore, of the view that the workman was entitled to the
amount claimed by him together with interest @ 8% p.a.
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16. The issue involved in the present case is as to whether the workman had not
signed the declaration because of the Company denying him the opportunity to do so or
because of an overt act on the part of the workman refusing to sign the undertaking.
There can be no dispute that the Labour Court is not vested with the jurisdiction to
adjudicate an entitlement of any amount payable to the workman. It can merely compute
the amount. However, while doing so it can always conduct an incidental enquiry which
would facilitate its decision while computing the amount.
17. In the case of The Mahalaxmi Co-operative Housing Society Ltd. vs. Dilip Singh
Parocha & Ors., reported in 2007(1) ALL MR 571, the Division Bench of this Court has
considered the judgements of the Supreme Court in the cases of Central Bank of India
Ltd. vs. P.S. Rajagopalan, reported in AIR 1964 SC 743, R.B. Bansilal Abirchand Mills
Co. Pvt. Ltd. vs. The Labour Court, Nagpur, reported in AIR 1972 SC 451,
Ramakrishna Ramnath vs. State of Maharashtra, reported in 1975 LIC 1561,
Municipal Corporation of Delhi vs. Ganesh Razak, reported in (1995) I CLR 170,
Central Inland Water Transport vs. The Workman, reported in (1974) 4 SCC 696,
Som Vihar Apartment Owners Housing Maintenance Society Ltd. vs. Workmen,
reported in (2001) I LLJ 1413, P.K. Singh vs. Presiding Officer, reported in AIR 1988
SC 1618, Tara vs. Director, Social Welfare, reported in AIR 1999 SC 1508, State of U.P.
vs. Brijpal Singh, reported in 2006 (2) ALL MR (S.C.) 6, R.S.R. Mohata Spinning &
Weaving Mills Pvt. Ltd., Hinganghat vs. Chintaman Govindrao, reported in 2001 LAB
I.C. 2269, Central Group vs. Motiram Thakre, reported in (2005) II LLJ 492 (Bom),
and Divisional Personnel Officer, Southern Railway, Palghat vs. P. Ramchandren,
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reported in (1991) 11 CLR 364. Speaking for the Bench, Desai J. has elucidated in para
40 of the judgement in the case of The Mahalaxmi Co-operative Housing Society Ltd.
(supra) the propositions which emerged on consideration of the aforesaid judgements.
Para 40 of the judgement reads as under :
“40. From the judgments of the Supreme Court and of this Court to
which we have made a reference following propositions
emerge:-a) The legislature recognised that individual
workmen should be given a speedy remedy to enforce
their existing individual rights and so it inserted
Section 33C in the said Act in 1956. By resorting toSection 33C individual workmen can enforce their
rights without having to take recourse to Section 10(1)
of the said Act or without having to depend upon theirunion to espouse their cause.
b) There is no bar preventing a Labour Court dealing with
an application under Section 33C(2) of the said Act
from determining the workmen’s right toreceive benefit if it is disputed by the employer.
c) This view is consistent with the legislative intent and a
contrary view would mean that it would be at the
option of the employer to allow the workmen to avail
himself of the remedy provided by Subsection (2) ofSection 33C 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.d) In some cases determination of the question about
computing the benefit in terms of money may have to
be preceded by an enquiry into the existence of the
right, and such an enquiry must be held to be
incidental.e) Whether such inquiry is incidental or not will depend
on the facts and circumstances of each case.f) When Labour Court’s jurisdiction is sought to be ousted
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11examine whether it has jurisdiction or not. In such a
situation the question of status of the person applying
under Section 33C(2) becomes an incidental matterand the Labour Court can enquire into that matter.
g) In a given case it may be necessary to determine the
identity of the person against whom the claim is made
if there is challenge and such determination would be
incidental.h) Interpretation of an Award or a Settlement on which
the workman’s right exists is incidental to the Labour
Court’s power under Section 33C(2).i) Under Section 33C(2) the Labour Court cannot be
asked to disregard the dismissal of the workman as
wrongful and on that basis compute his wages.j) Under Section 33C(2) the workman cannot claim that
his dismissal or demotion is unlawful and, therefore,he continues to be the workman of the employer and
he is entitled to the benefits due to him under a pre-existing contract.
k) Under Section 33C(2), it would not be open to an
employee, notwithstanding a settlement, to claim the
benefit as though the said settlement has come to anend.
l) If the workman makes his claim on the basis of a lay
off and the employer raises a plea that there was no layoff but closure, the Labour Court must decide as to
whether there was really a lay off or a closure and if it
takes the view that there was a lay off without any
closure of the business, it would be acting within its
jurisdiction if it awarded compensation in terms of theprovisions of Chapter V-A. In such a situation the plea
raised by the employer is a jurisdictional plea and the
Labour Court has to decide whether it has jurisdiction
to make the computation. Thus, jurisdictional pleas
will have to be decided by the Labour Court.m) If the workers claim that they had been actually
promoted to a particular cadre and the management
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12incidental question, but under Section 33C(2) the
Labour Court cannot reclassify the workers.n) While dealing with an application under Section
33C(2) the Labour Court has to keep the legislativeintent in enacting this provision in mind. It must adopt
a cautious approach and it must not allow an attempt
to oust the jurisdiction of the Labour Court by raising
frivolous plea succeed for that would mean driving the
workman unnecessarily to another forum. In suchcases it will have to conduct incidental inquiry to
determine the identity of the person against whom the
claim is made and the person who makes the claim.Nature of incidental inquiry will obviously depend on
facts and circumstances of each case. ”
18.
Thus, an incidental enquiry can always be conducted to determine whether a
workman is entitled to the benefits as computed by him. The issue as to whether the
declaration was not signed because of an overt act by the employer or the workman is an
incidental issue involving no complicated question relating to the entitlement of the
workman to the amounts payable under Section 33C(2) of the I.D. Act. Therefore, in my
opinion, the Labour Court was correct in deciding the application under Section 33C(2)
of the I.D. Act.
19. According to Mr. Talsania, in the case of Indu Vishnu Mahajan vs. National
Safety Council & Ors., reported in 1987 II CLR 259, another Division Bench of this
Court, while interpreting the law laid down by the Supreme Court in the case of R.B.
Bansilal Abirchand Mills Co. Pvt. Ltd. (supra) , takes a view contrary to the one
expressed by the Division Bench in The Mahalaxmi Co-operative Housing Society Ltd.
(supra). He pointed out that a judgement in the case of Indu Vishnu Mahajan (supra)
was not noticed by the Division Bench while deciding the case of The Mahalaxmi Co-
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13operative Housing Society Ltd. (supra). In the case of Indu Vishnu Mahajan (supra),
the workman was terminated from service without following the procedure required
under the rules governing her service conditions and in breach of the provisions of
Section 25F of the I.D. Act. She claimed her wages by filing an application under Section
33C(2) of the I.D. Act, contending that her termination from service was thus non est.
The Labour Court dismissed the application on the ground that it could go on decide
whether the respondent in that case was an “Industry” or whether the “Claimant” was a
workman. It further held that there was substantial compliance with Section 25F of the
I.D. Act. The Labour Court was of the view that it was only upon the striking down of the
order of termination that the claimant could be considered to have an existing right to
collect the salary from the employer. This could not be considered as an incidental
matter. The salary was claimed by the employee contending that there was no
termination of service as there was a breach of the provisions of Section 25F of the I.D.
Act and, therefore, she was entitled to wages as the order terminating her services was
void, ab initio, invalid and inoperative. After considering the judgement of the Supreme
Court in the case of Central Bank of India Ltd. (supra), the Division Bench held that
the Labour Court acting under Section 33C(2) of the I.D. Act is not vested with the
powers to adjudicate the issue as to whether the provisions of Section 25F of the I.D. Act
had been complied. The Division Bench noticed the judgement in the case of R.B.
Bansilal Abirchand Mills Co. Pvt. Ltd. (supra) and held that the Labour Court could
not give a wrong decision on the jurisdictional plea. The Court further observed that the
Labour Court’s jurisdiction could not be ousted by a mere plea denying the workman’s
claim to computation of the benefits. In the circumstances of the facts before it, the
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14Division Bench held that there was no existing right in the employee to claim salary
when there was an order of termination passed against her and until that order was set
aside, she was not entitled to claim the salary by filing an application under Section
33C(2) of the I.D. Act.
20. In my opinion, there is no conflict between the two decisions of the Division
Benches. In the case of Indu Vishnu Mahajan (supra) all that the Division Bench has
observed is that in the facts and circumstances of that case, the Labour Court had
rejected the application correctly as it could not arrogate to itself the jurisdiction to
determine whether the workman had been terminated from service in breach of the
provisions of Section 25F of the I.D. Act while considering an application under Section
33(C) of the I.D. Act. The Court has merely held that a wrong decision on the
jurisdictional plea cannot confer jurisdiction on the Labour Court. This finding, in my
opinion, is not contrary to the decision of the Division Bench in Mahalaxmi’s case. The
Division Bench has held in Mahalaxmi’s case that an enquiry which precedes the
determination of the benefit in terms of money may be incidental depending on the facts
and circumstances of each case. Both the Division Benches have noticed that the
jurisdiction of the Labour Court cannot be ousted merely by raising an objection to the
maintainability of the application. In the case of Indu Vishnu Mahajan (supra), the
Division Bench has noted as under :
“17. ………………………………………………………………………………………..
The denial of the right would only require the Labour Court to
enquire whether the right was existing. The labour Court had
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15The enquiry under Section 33-C(2) in such case would have to
be proceeded by an enquiry into the existence of the right and
such an enquiry was incidental to the main determination whichhad been assigned to the Labour Court by Section 33-C(2). Just
as an executing Court was competent to interpret the decree, soalso the Labour Court was competent to construe the
settlement, award or statute under which the right was claimed.
Matters such as the interpretation of an award, whether the
workman fell within a particular class of workmen entitled to
benefits under a settlement, award or statute, the total amountdue or the amount at which benefits should be computed were
all matters falling within the jurisdiction of the Labour Court
under Section 33-C(2).”21. According to Mr. Talsania, the Division Bench of this Court in the case of The
Mahalaxmi Co-operative Housing Society Ltd. (supra) has not considered the true
import of the judgement of the Supreme Court in the case of Municipal Corporation of
Delhi (supra). He submitted that the Supreme Court has interpreted its earlier decision
in the case of Central Bank of India Ltd. (supra) and after quoting the relevant part of
that judgement has held that “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.” The
workmen in the case of Municipal Corporation of Delhi (supra) claimed wages at the
same rate as the regular workers, although they were daily rated/casual workers. They
claimed such wages on the basis of principle of “equal pay for equal work”. It is in these
circumstances that the Court held that there was need for adjudication of the claim of
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16the entitlement to the benefit before computation of such benefit which was sought by
the workmen. There was no prior adjudication of the entitlement to equal pay and in
these circumstances the Court held that such a determination could not be termed as an
incidental enquiry under the powers of jurisdiction vested in the Labour Court under
Section 33C(2) of the I.D. Act. The Supreme Court has not noticed its earlier judgement
in the case of R.B. Bansilal Abirchand Mills Co. Pvt. Ltd. (supra) which is that of a
Constitution Bench. The Appeal in the case of R.B. Bansilal Abirchand Mills Co. Pvt.
Ltd. (supra) was heard by a Constitution Bench but on the demise of one of the learned
judges of the Bench, the matter was heard once again by a Bench of four learned Judges
and they have stated in the judgement that their opinion formed as a Constitution Bench
remained unchanged. In the case of R.B. Bansilal Abirchand Mills Co. Pvt. Ltd.
(supra), the issue which arose before the Supreme Court was whether the Labour Court
has jurisdiction to entertain an application for lay off compensation under Section
33C(2) of the I.D. Act. The employer in that case contended that there was a closure of
Mills and not a lay off. It was, therefore, submitted that since a serious dispute has arisen
as to whether there was a closure or a lay off, the Labour Court under Section 33C(2) of
the I.D. Act was not vested with the jurisdiction to decide that dispute. The Supreme
Court considered its earlier judgement in the case of Central Bank of India Ltd. (supra)
and after quoting extensively from that judgement, the Court observed thus :
“In substance the point urged by the appellants was that if a claim is made
on the basis of a lay-off and the employer contends that there was no lay-
off but closure, it is not open to a labour court to entertain an application
under s. 33-C(2). The more so it was stated, when the dispute was not
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17was faced with numerous applications before the Labour Court for
computation of benefit in terms of money. As has been said already, the
Labour Court must go into the matter and come to a decision as towhether there was really a closure or a lay-off. If it took the view that there
was a lay-off without any closure of the business it would be acting withinits jurisdiction if it awarded compensation in terms of the provisions of
Chapter V-A. In our opinion the High Court’s conclusion that;“In fact the business of this Company was continuing. They
in fact continued to employ several employees. Theirnotices say that some portions of the mills would continue
to work.”
was unexceptionabe.(sic) The notices which we have referred to can only
lead to the above conclusion. The Labour Court’s jurisdiction could not be
ousted by a mere plea denying the workman’s claim to the computation of
the benefit in terms of money; the Labour Court had to to into the questionand determine whether on the facts, it had jurisdiction to make the
computation. It could not however give itself jurisdiction by a wrong
decision on the jurisdiction plea.”
22. In my view the submission of Mr. Talsania is without merit. In any event once the
Division Bench has authoritatively pronounced on the scope of Section 33C(2) I am
bound by it. It cannot be said that the judgement in The Mahalaxmi Co-operative
Housing Society Ltd. (supra) is per incuriam as Mr. Talsania attempted to suggest.
23. In the case of Ramakrishna Ramnath (supra), the Supreme Court considered
whether the Labour Court has the jurisdiction to make a preliminary enquiry as to
whether there was a closure when compensation payable under Section 25FFF of the I.D.
Act was claimed under Section 33C(2) of the I.D. Act. The Supreme Court held that a
mere denial of the fact of retrenchment would not be enough to oust the jurisdiction of
the Labour Court. The examination of the claim under Section 33C(2) of the I.D. Act
may in some cases have to be preceded by an enquiry into the existence of the right,
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observed the Court. The Supreme Court held that the Labour Court in such
circumstances could always determine whether there was, in fact, a closure of the
undertaking. The judgement in the case of Ramakrishna Ramnath (supra) which has
also been considered in The Mahalaxmi Co-operative Housing Society Ltd. (supra),
has been reiterated in the case of Voltas Ltd. vs. J.M. Demello & Anr., reported in AIR
1971 SC 1902.
24. In the case of Sadanand D. Phansekar and Ors. vs. National Textile
Corporation (South Mah.) Ltd. & Ors., reported in 1997 II CLR 801, which was not
cited before the Division Bench deciding the case in The Mahalaxmi Co-operative
Housing Society Ltd. (supra), a learned Single Judge of this Court (Kapadia, J., as he
then was), has observed thus :
“Therefore, a bare reading of the two enactments clearly indicates that
both under BIR Act and the I.D. Act, justifiability of suspension, stoppage
or refusal to give work warrants adjudication. Section 78(1)(A) read with
the IIIrd Schedule of the BIR Act clearly indicates that a dispute dealing
with unemployment of a worker or a dispute concerning compensationrequired to be paid by the Mills on the ground of closure, is covered and
falls within the adjudicatory process. On the other hand, under Section
33-C(2) of the Industrial Disputes Act it is laid down that the Labour
Court performs functions which are generally performed by an Executing
Court. If a worker claims a right benefit accruing to him from an award ora Settlement or an Agreement or under statutory enactment as an existing
right, then the Labour Court is invested with the jurisdiction to compute
the benefit in terms of money. In such a case, the dispute involves an
existing right. An existing right is a right which is crystallized right in
favour of the workman. It is a right which is already adjudicated upon. It
is a right which is provided for under the statute. In such cases, the object
of adjudication under Section 33-C(2) is based only on computation. It
does not involve determination of a right. It does not involve adjudication
of rights and liabilities, inter se, between the parties. An existing right in a
workman corresponds to an existing liability against the employer. If the::: Downloaded on – 09/06/2013 17:03:49 :::
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19workman is able to show that a right exists in him under the Settlement,
Award or Agreement or even under the statutory provisions, then a bare of
that right by the Mills or NTC will not defeat the claim of the workman. Abare denial of that right will not oust the jurisdiction of the Labour Court
under Section 33-C(2) of the I.D. Act, but where the applicant is requiredto prove the conditions precedent to the accrual of the liability of the
employer, then Section 33-C(2) has no applicability. Similarly, where the
nature of the relief is in issue, Section 33-C(2) does not apply. Similarly,
where circumstances leading to closure or stoppage of work are in issue,
then Section 33-C(2) will not apply because in such cases, the Court isrequired to go into justifiability for such stoppage of work.”
25. In the case of D. Krishnan & Anr. vs. Special Officer, Vellore Co-operative Sugar
Mill & Anr., reported in (2008) 7 SCC 22, the Supreme Court has observed thus :
“12.
We have considered the arguments advanced by the learned
counsel for the parties. The fact that proceedings underSection 33-C(2) are in the nature of execution proceedings is
in no doubt, and such proceedings presuppose some
adjudication leading to the determination of a right, which
has to be enforced. Concededly there has been no such
adjudication in the present case. It will be seen that thereliance of the appellant workmen is exclusively on
documentary evidence placed on record which consistedprimarily of the punch time cards and the representations that
had been filed from time to time before the respondents. It is
also true that the claim raised by the appellants had been
hotly disputed by the respondents. The question that arises inthis situation is whether reliance only on the documentary
evidence was sufficient to prove the case.
13. We are of the opinion that the reference to Municipal Corpn.
Case is completely misplaced as in that matter, the fact that
different categories of workers were doing identical kind of
work was virtually admitted but different scales of pay were
nevertheless being paid to them. It is also relevant that oral
evidence had been adduced by the workmen to supplement
the documentary evidence and it was in that situation that
the Court felt that an application under Section 33-C(2) was
maintainable.
14. We find that the claim by the appellants herein has been
disputed from the beginning and that the documents filed by::: Downloaded on – 09/06/2013 17:03:49 :::
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20the appellants themselves suggest that they were unsure of
their own status.”
26. Based on the facts before it, the Supreme Court held that the application filed
under Section 33C(2) of the I.D. Act was not maintainable when the documents relied
on by the employees in support of their case prima facie shows that they were managers
and, therefore, it would be beyond the jurisdiction of the Labour Court to determine
their status in proceedings under Section 33C(2) of the I.D. Act.
27. As stated earlier, the ambit of the provisions of Section 33C(2) of the I.D. Act.
have been clearly enunciated in the case of The Mahalaxmi Co-operative Housing
Society Ltd. (supra), and I am bound by that judgement as it is not per incuriam.
28. In the present case, it is not possible to accept the submission of Mr. Talsania that
an enquiry as to whether the workman had not signed the declaration because of his
own conduct or because of the Company’s refusal to furnish him the declaration form
would amount to determination of his entitlement. The entitlement to the wages is
stipulated by the Settlement itself. Under Clause (1.2) the workman was entitled to
certain benefits. I have perused the undertaking which was expected to be signed. The
declaration is in the following terms :
“I have read/have been explained and have understood all the terms
and conditions of the settlement dated 30th April 93 between Bajaj
TEMPO Ltd. and Bhartiya Kamgar Sena, (Bajaj Tempo Unit), Pune.
I hereby accept all the terms and conditions of the said settlement and
the same are binding on me in all respect. I further undertake that the
benefits arising out of this settlement will be applicable to me as I::: Downloaded on – 09/06/2013 17:03:49 :::
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21have accepted the terms and conditions and provisions of this
settlement.
I request you to please extend the benefits to me as above.”
29. In my opinion, whether such a declaration was furnished or not would not in any
way impede the right of the workman to secure benefits under the Settlement. The
Settlement has been signed by a Union representing the workman and, therefore, it is
obvious that the workman would be bound by the terms of the Settlement. The
declaration was merely a back-up for the Company to ensure that the workmen complied
with the terms and conditions in the Settlement. An enquiry as to whether such a
declaration was not furnished due to the default of the workman or the Company would
in my opinion not amount to a determination of the right of the workman to the benefits
of the Settlement. The benefits are due and payable under the Settlement itself.
Assuming the workman had not signed the Settlement, the determination of the reasons
for not signing the same is only incidental to the main issue of computation of the
benefits under the aforesaid Settlement of 30th April, 1993.
30. In my opinion, therefore, the Labour Court has not committed any error in
upholding the contention of the workman and granting him the amount claimed by him.
Mr. Talsania has pointed out that interest has been awarded from the date of the
application @ 8% p.a. He has submitted that such a direction could not have been given
by the Court under Section 33C(2) of the I.D. Act. In my opinion, this contention is not
available to the learned Counsel in view of the judgement of a learned Single Judge of
this Court (Vazifdar, J.) in the case of Mrs. Prabhavati Ramgarib B. Vs. Divisional
Railway Manager, Western Railway, Mumbai, reported in 2010 I C.L.R. 1039.
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22
31. In my view, therefore, the Writ Petition deserves to be dismissed. Accordingly, the
Writ Petition is dismissed.
32. Rule discharged. No order as to costs.
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