ORDER
A. Gopal Reddy, J.
1. The sole question that arises for consideration in the instant writ petition is whether the claim of interest of the first respondent-Union under Section 33-C(2) of the Industrial Disputes Act, 1947 (herein after called as “the Act”) is maintainable or not.
2. The petitioner-Management is a society under the Administrative Control of the Ministry of Industry, the Department of Small Scale Industries, Agro and Rural Industries. The first respondent-Union on behalf of its members, raised an industrial dispute in ID No.13/86 for restoration of the scheme of payment of conveyance allowance, which after being in vogue for some time was discontinued as per the directions of the Government of India. As the Labour Court’s award dt. 13-11-1986 was in favour of the first respondent-Union, the petitioner-Management filed WP No.6743/87 before this court unsuccessfully and the WA No.336/92 preferred by it ended in dismissal. In compliance with the award passed by the Labour Court in ID No.13/86, the petitioner-Management released arrears of conveyance allowance to its eligible employees for the period from 1-1-1980 to 31-12-1985 and from 1-1-1986 onwards, the petitioner-Management has not paid the conveyance allowance in view of revision of pay scales. The first respondent-Union filed EP No.1/93 in ID No.13/86 seeking implementation of the award. The Labour Court by its order dt. 19-6-1993 directed the petitioner-Management to deposit Rs.2,00,000/- on or before 26-6-1993. The petitioner-Management filed an application for extension of time for complying with the order of the Labour Court dt. 19-6-1993 in IA No.69/93. The said IA was dismissed with a direction to the petitioner-Management to deposit an amount of Rs.2,00,000/- on or before 5-7-1993. Questioning the same, the petitioner-Management filed WP No. 9408/93 for extension of time for depositing the said amount of Rs.2,00,000/-. The said writ petition was disposed of granting extension of time for depositing the amount within 90 days form the date of order and the said amount was deposited within the extended time. In EP, the first respondent-Union claimed payment of Rs.2,57,579/- by way of interest at 18% per annum by the petitioner-Management besides the award amount of Rs.3,83,392/-.The petitioner-Management filed IA No.135/93 in EP No.1/93 seeking waiver of interest which was contested by the first respondent-Union. The Labout Court by its impugned order dt. 8-11-1993 allowed the claim of the first respondent-Union for payment of interest at the rate of 12% instead of 18% as claimed in EP. Questioning the same, the present writ petition is filed.
3. In spite of insistence of this court to furnish a copy of the award or the petition and counter-affidavit in IA No.135/93, neither of the counsel furnished the same and requested the court to proceed with the matter basing upon the impugned order.
4. The main thrust of the contentions raised by Sri D.V.Seetharama Murthy, learned counsel for the petitioner is that the Labour Court while proceeding with the matter under Section 33-C(2) of the Act will act as that of executing court, has no jurisdiction to award the same when there is no claim for interest nor the Labour Court while passing the award granted it, it is not open for the first respondent-Union to claim interest on the amount due, which amounts to entertaining a fresh claim, which cannot be adjudicated in proceedings under Sec. 33-C(2) of the Act. He further contends that where the award is silent with respect of payment of future interest on the amount due from the date of award the same shall be deemed to have refused and separate claim for the same is not maintainable in view of Sec. 34(2) of the Code of Civil Procedure. In support of his contentions, he placed strong reliance on the following judgments:
1. MANAGEMENT OF NATHAN’S PRESS, MADRAS V. K.KRISHNAN 1
2. MUNICIPAL CORPORATION OF DELHI V. GANESH RAZAK 2
3. UNION OF INDIA V. GURBACHAN SINGH 3
4. M.NAGENDRUDU V. V.GUNDARAYUDU 4
5. PRITAM SINGH V. P.O., LABOUR COURT5.
5. Learned counsel for the first respondent-Union while supporting the order contends that what was referred to the Labour Court in ID No.13/86 is only with regard to justiciability of withdrawing conveyance allowance or not. Labour court is justified in awarding interest on the amount, which is withheld by the petitioner-Management even after award. It is immaterial whether there is any claim with regard to interest before the Labour Court or not in ID. Once the Labour Court held that the members of the first respondent-Union are entitled to the conveyance allowance, due to the delay in payment of the same, a valuable right which accrued to the workmen was denied. In such circumstances, to do complete justice to the parties, the Labour Court awarded interest. In support of his contentions, he placed reliance on the following judgments:
1. CHHATHIA KAUR & OTHERS V. GOVERNMENT OF NCT OF DELHI AND ANOTHER 6
2. DIRECTOR GENERAL (WORKS), CPWD V. ASHOK KUMAR7
3. UNION OF INDIA & ANOTHER V. S.B.AGNIHOTRI AND ANOTHER 8
4. MANAGEMENT OF TABESH PROCESS V. PRESIDING OFFICER, LABOUR COURT(9).
In order to appreciate the rival contentions, it is necessary to take note of the relevant provisions which confer the jurisdiction of an executing court.
“33-C: Recovery of money due from an employer:–
(1) x x x x x.
(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.
6. A similar question with regard to the claim of interest in Sec.33(c-2) came up for consideration before the Madras High Court in the case of V. K.KRISHNAN (1 supra). Justice Nainar Sundram (as he then was) while dealing with the same, considered the scope of the award whereunder an award was passed holding that the non employment of the employee by the Management was not justified and the Management was directed to reinstate the employee with full back wages and continuity of service. Thereafter the employee filed a claim petition with arrears of salary and other benefits including interest at the rate of 6%. On challenge of the award by the Management, the learned single Judge held as follows:
” …..It is not claimed here that the award passed in the instant case provided for payment of interest as such. In this context, one has to take note of the scope of S.33-C(2) of the Industrial Disputes Act, 1947, under which alone the present claim petition has come to be filed. The Labour Court, while making the computation has got only role of an executing court, and it cannot go beyond the award unless the question is incidental to working the reliefs on the basis of the award. The heads of claims could be based only on the award, and in the absence of any provision for payment of interest in the award, there could not be any claim for such interest and countenancing thereof by the second respondent in he present case. The claim for interest could not be stated to be incidental to computation of the benefits given under the award. I find the view expressed in Krishna Murthy V. The Mail (1964 2 LLJ 88(Mad) has been taken note of and followed by a single Judge of the High Court of Delhi in Union of India V. Central Government Labour Court ((1985) 86 FJR 16. In this view, the award of interest by the second respondent has got to be discountenanced….”
7. The Supreme Court in the case of GANESH RAZAK (2 supra) had an occasion to consider the jurisdiction of the Labour Court under Sec. 33-C(2) and after scanning the entire case law on the subject held as follows:
“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 of a certain benefit is disputed, there being no earlier adjudication or recognition 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 Sec. 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 Sec. 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the 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 Sec. 33-C(2) like that of the Executing Court’s power to interpret the decree for the purpose of its execution. (para 12)
8. The Supreme Court in the case of GURBACHAN SINGH (3 supra), following its decision in the case of Ganesh Razak (2 supra) held that the jurisdiction of the Labour Court under Sec. 33-C(2) does not extend to adjudication of a fresh claim and the Labour Court at best has power to interpret the award and then work out the wages payable to the workmen in terms of the award etc.,
9. In the case of CHHATHIA KAUR & OTHERS (6 supra) when an award made under Sec. 33-C(1) was not implemented the LRs of the workmen approached the Delhi High Court by filing a writ petition for implementation of the award. The Delhi Court directed the employer to implement the award within 3 months from the date of communication of the order . As the said award was not implement, contempt proceedings thereafter were initiated and pending contempt court proceedings, amount due under the award was released. While disposing of the contempt case, the Delhi High Court directed payment of interest on such amount at 12% per annum from the date of order passed by the High Court upto the date of payment.
10. The facts in ASHOK KUMAR’S CASE are inappropriate to the facts of the present case.
11. In the case of S.B.AGNIHOTRI AND ANOTHER( 8 supra) Allahabad High Court while considering the power of the Labour Court to award interest on the amount withheld unlawfully and no period of limitation is prescribed for making an application under Sec. 33-C(2) held that the Labour Court has got equitable jurisdiction to award interest for withholding the amounts due to the workman and refused to interfere with the award made by the Labour Court.
12. In Management of Tabesh Process’s case ( 9 supra) an industrial dispute was raised under Sec. 2-A of the Industrial Disputes Act, 1947 and on failure of the conciliation the Government of Tamilnadu referred the matter for adjudication to the Labour Court, Madurai and the said dispute was numbered as ID No.15/79 which was disposed of by an award dt. 17-12-1980, wherein the Labour Court awarded interest on the amounts due which is sought to be executed in a petition under Sec. 33-C(2). In those circumstances, the court justified the award of interest by the Labour Court in exercise of power conferred under Sec. 11-A. The facts in that case are entirely different with the facts in the present case.
13. This court in the case of M. Nagendrudu (4 supra) considered the scope of omission to grant subsequent interest amounts to refusal to award subsequent interest in view of Sec. 34(2) of the Code of Civil Procedure. Wherein the trial court passed a preliminary decree for recovery of amount due under mortgage and plaintiff’s appeal was dismissed and a final decree followed. When the judgment-debtor failed to discharge the amount within the time granted for redemption, the plaintiff thereafter filed a petition under Sec. 152 C.P.C., to amend the final decree to include a direction for payment of interest by the defendants. The same was allowed by the trial court, which was confirmed by the learned single Judge of this court. When the defendants carried the matter in further appeal, the same was allowed by a Division Bench holding that the absence of any direction for payment of subsequent interest would amount to refusal to award any subsequent interest and allowing the petition filed by the petitioner under Sec. 152 C.P.C., would have the effect of granting him the identical relief that was refused to him in the suit and appeal.
15. Recently the Apex Court considered the scope of jurisdiction of the Labour Court under Sec. 33-C(2) of the Act in STATE BANK OF INDIA V. RAM CHANDRA DUBEY(10), wherein the Labour Court passed an award that workmen are entitled to be reinstated into service with effect from 16-8-1969. The award was, however, silent in regard to payment of back wages for a period between the date of termination of workmen and their reinstatement. The Bank challenged the award before Allahabad High Court, which was dismissed. On dismissal of the writ petition, the workmen filed an application under Sec. 33-C(32) of the Act for computation of back wages on the basis of award and subsequent order of the High Court. The said application was allowed by computing the amount payable to the workmen byway of back wages. Against which, the bank filed a WP before the Allahabad High Court which was rejected. On further appeal by the Bank, the Supreme Court held as follows:
“The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Sec.33-C(2) of the Act. The benefit sought to be enforced under Sec. 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Sec. 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding….(para 8)
16. It is admitted by both parties that in the award passed by the Labour Court there is no direction for payment of future interest on the amount so due to the workmen. In the absence of any direction to pay interest, it is deemed to have been refused by the Labour Court. In the case on hand, the Labour Court awarded interest for the first time on the amount withheld by the petitioner-Management stating that rate of interest at 12% per annum would meet the ends of justice instead of 18% as claimed on the amount of arrears of conveyance allowance and directed the petitioner-Management to deposit the same. The Labour Court while executing the award will act as a Civil Court. When once the award do not specify payment of any interest on the amount payable towards conveyance allowance, awarding interest on such sum will amount to entertaining fresh claim by the Labour Court. The dispute whether the members of the first respondent-Union are entitled to interest on the amounts due and at what rate, has not been adjudicated by the Labour Court. Moreover, when the members of the first respondent-Union have not claimed any future interest on the amount so due, they consciously waived the said right and the executing court while executing the decree cannot go beyond the scope of the decree. Sec.11(B) of the Act as applicable to State of Andhra Pradesh lends support the same, which is couched in positive terms that the Labour Court can execute its award as a decree of Civil Court. Once, the decree is silent with regard to award of interest, the Labour Court in its jurisdiction under Sec. 33-C(2) cannot award interest on the amount so withheld which is due as per the award.
17. In view of the conspectus views taken in the decisions referred to above and as per the aforesaid discussion, the position is manifest that when an award passed by the Labour Court is silent with regard to award of interest on the amount due, it is deemed to have been denied. The Labour court has committed an error in awarding interest at the rate of 12% per annum which cannot be sustainable in law and the same is liable to be set-aside and it is accordingly set-aside.
18. In the result, the writ petition is allowed. There shall be no order as to costs.