IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 6308 of 2002
M/s. Mineral Exploration Corporation Ltd. ... Petitioner
Versus
The President Officer,
Labour Court, Hazaribagh & Ors. ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE AJIT KUMAR SINHA
For the Petitioner: Mr. Ananda Sen, Advocate
For the Respondents: Mr. Awanish Shankar, Advocate
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C.A.V. on 25.03.2009 Pronounced on 16. 04.2009.
ORDER
08/ 16.04.2009
. The present writ petition has been preferred for the following
reliefs:-
i) For issuance of an appropriate writ /order/direction from this
Hon’ble court for quashing the Award dated 17.7.2002 passed by
the Presiding Officer, Labour Court, Hazaribagh in M.J. Case No. 4
of 1999 whereby and whereunder the learned Presiding Officer has
been pleased to hold that the applicants (Respondent Nos. 2 to 34
herein) are entitled for computation of the benefit of the Adhoc
Cash Award Scheme for the year 1998-99 and directed the
petitioner to pay an amount of Rs.2,52,377.15 paise (Rupees two
lakh fifty two thousand three hundred seventy seven and paise
fifteen) only alongwith interest at the rate of 6% per annum from
the date of the filing of the case,
ii) For a writ of or in the nature of Mandamus commanding upon the
concerned respondents to forbear from giving effect to or acting
pursuant to or in furtherance of the said impugned Award dated
17.7.2002.
2. The main contention raised by the learned counsel for the
petitioner is as to whether the Labour Court in a proceeding u/s
33-C(2) of the Industrial Disputes Act can decide the issue involving
disputed question of fact and monetary benefit. He has also submitted
that the scheme for the period 1998-99 was not applicable to the
respondent workmen since they were admittedly contingent employees
and thus they cannot claim the benefit under the said scheme.
3. The facts in brief are set out as under:-
An Adhoc Cash Award Scheme was introduced for drilling
operation in the year 1994 based on productivity and the cash award
was payable accordingly to all the persons working in the drilling
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project during the period 1994-95. This scheme was initially for a
period of one year; but the same was extended from time to time.
However, since 1997-98 the Cash Award Scheme was made applicable
only to all the persons at the drilling project excluding trainees and jobs
done through contract. The relevant clause is quoted as under.
Clause 2.01. The Scheme shall be applicable to all persons at the
Projects, excluding the trainees and jobs done through contracts.
However, distribution of the total Cash Award earning between
different employees has to be based on the following criteria:-
………………………
………………………
4. Respondent Nos. 2 to 34 filed an application before the Presiding
Officer, Labour Court, stating that they were covered under the Adhoc
Cash Award Scheme for drilling operation 1998-99 and were denied the
payment of cash award on the ground that they were contingent
employees.
5. The counsel for the respondent also submitted that on the same
set of scheme they were paid the Cash Award Scheme up till the period
1997-98 and thus the denial of the benefit of the scheme in 1998-99
was bad and illegal.
6. It has also been contended by the learned counsel for the
respondent that even otherwise the order was bad, since it was in
violation of Section 9-A of the Industrial Disputes Act, since it
amounted to change in service condition without any prior notice. The
learned Presiding Officer passed the impugned Award on 17.7.2002
holding that the applicants are entitled for computation of the benefit
of Adhoc Cash Award Scheme for the year 1998-99 and directed the
petitioner to pay the amount of Rs.2,52,377.15 paise with interest at
the rate of 6%.
7. I have considered the rival submissions as well as the pleadings.
Before adverting to it, it will be necessary to refer Section 33-C (2).
Section 33-C (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;]
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[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.]
8. It will be evident on reading the aforesaid provision that if the
workman is entitled to receive from the employer any money or any
benefit computed in terms of money then the same can be decided by
Labour Court. However, the word entitlement preceeds the
computation which means it is basically executory in nature.
9. In the instant case the main claim of the respondent workmen
was that they were entitled to receive money from the employer and or
benefit under the Cash Award Scheme which they were getting till
1997-98 based on the productivity under the drilling operation project.
10. The counsel for the petitioner Management has also referred and
relied upon 2008(7) SCC page 22 (B. Krishnan and another Vrs.
Special Officer, Vellore Cooperative Sugar Mill and another) to
support his contention that Section 33-C (2) of the Industrial Disputes
Act is executary in nature and the proceedings under it pre supposes
adjudication leading to determination of a right, which has to be
enforced. The Hon’ble Supreme Court in Punjab Beverages (P) Ltd.
v. Suresh Chand, (1978) 2 SCC page 144 held that a proceeding
under Section 33-C(2) is a proceeding in the nature of execution of
proceeding in which the Labour Court calculates the amount of money
due to a workman from the employer, or, if the workman is entitled to
any benefit which is capable of being computed in terms of money,
proceeds to compute the benefit in terms of money. The Hon’ble
Supreme Court has followed this proposition in subsequent judgments
as well as has time and again held that the right to the money which is
sought to be calculated or to the benefit which is sought to be
computed must be a exceeding one, that is to say already adjudicated
upon or provided for and must arises in the course of and in relation to
the relationship between Industrial workman and his employer. Section
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.
11. The second aspect of the matter is that Clause 2.01 of the
scheme uses the sentence that the schemes shall be applicable to all
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persons at the project excluding the trainees and jobs done through
contracts and thus the contingent workmen were not entitled. The
ground that they got it in the year 1997-98 by mistake, will certainly
not entitle them as a matter of right to compel the Management to
again commit the same wrong. No doubt earlier the scheme provided
for payment even to contingent employees but from the year 1997-98
and 1998-99 it was modified and it specifically excluded the contingent
workmen from the benefit of the scheme and thus the claim itself of
workman has been disputed by Management.
12. The counsel for the respondent has also submitted that the
action of the petitioner Management herein is violation of Section 9-A
of the Industrial Disputes Act. However, I am of the firm opinion that
Section 9-A will not apply in this case, since it does not relate to any
change in service condition.
13. The learned Presiding Officer, Labour Court, Hazaribagh, has
clearly erred in holding that the respondent workmen were entitled u/s
33-C (2) of the I.D. Act to get an order for the computation of their
dues regarding Adhoc Cash Award Scheme for the year 1998-99.
14. Considering the aforesaid facts and circumstance of the case and
in view of the non-applicability of the Scheme to the contingent
workmen the entitlement itself was disputed and thus the impugned
Award passed under Section 33 (c )(2) of the I.D. Act is on the face of
it not maintainable, illegal and cannot be sustained in the eyes of law.
15. This writ petition is allowed and the impugned Award is set
aside.
(Ajit Kumar Sinha, J.)
Jharkhand High Court, Ranchi
Dated the 16th April, 2009
D.S./NKC N.A.F.R.