Bhaskara Menon vs K.S.R.T. Corporation on 26 January, 1979

Kerala High Court
Bhaskara Menon vs K.S.R.T. Corporation on 26 January, 1979
Equivalent citations: (1979) IILLJ 140 Ker
Author: B Eradi
Bench: B Eradi


Balakrishna Eradi, J.

1. The writ petitioner is a retired employee of the Kerala State Road Transport Corporation in its Water Transport section. He had been working as Assistant Traffic Inspector in the water transport section at Ernakulam during 1963 to 1978.

2. The Traffic Inspector on duty at Ernakulam died early in 1964, and the petitioner had been directed to look after the duties of the Traffic Inspector also in addition to his normal duties as Assistant Traffic Inspector. This is seen from the orders Exts. P1 and P2 issued by the Water Transport Officer in June, 1964 and August, 1964 respectively.

3. An Industrial dispute between the Kerala State Road Transport Corporation and its workmen was referred for arbitration in 1967 under Section 10A of the Industrial Disputes Act (hereinafter called the Act). The writ petitioner also participated in the arbitration proceedings, which was conducted by Sri G. Kumara Pillai, a retired Judge of this Court who had been appointed as Arbitrator in the matter. The petitioner had claimed before the Arbitrator that he was entitled to be paid additional emoluments for the period during which he was in charge of the duties of Traffic Inspector in addition to his duties as Asst. Traffic Inspector. The Arbitrator passed his award on 12.12.1968 and it became enforceable in 1969.

4. Regarding the claims of the petitioner the Arbitrator had held in the Award as follows:

The Asst. Traffic Inspector who looks after the duties of traffic inspector in addition to his own duties, has further to be paid a special pay of Rs. 25 per mensem in consideration of his additional work.

The Award was to be effective from 1.1.1966. There is no dispute that the Asst. Traffic Inspector referred to in the Award is the present petitioner. Notwithstanding repeated representations submitted by the petitioner claiming benefit due to him under the award the special pay of Rs. 25 was not disbursed to him and the representations filed by the petitioner were finally rejected by the General Manager of the 1st respondent-corporation as per Ext. P5 dated 10.2.1972. Thereupon the petitioner filed a claim petition C.P. No. 22/72 before the Labour Court, Quilon under Section 33C(c)(2) of the Act claiming benefits awarded to him as per the award. Exhibit P6 is the copy of the claim petition. The Labour Court by its order Ext. P8 rejected the petition holding that the petitioner’s claim for special pay though supported by the award was not maintainable on the merits, because, in the view of the Labour Court, the Water Transport Officer had acted without jurisdiction in issuing the orders, Exhibits P1 and P2 directing the petitioner to discharge the duties attached to the post of Traffic Inspector also in addition to his functions as Assistant Traffic Inspector. On this basis the Labour Court proceeded to hold that the Arbitrator was wrong in thinking that the orders Exts. P1 and P2 were validly issued by the Water Transport Officer on behalf of the corporation, and that as a matter of fact the petitioner’s workload had not increased consequent on the abolition of the Traffic Inspector’s post since another post of Asst. Traffic Inspector had been created simultaneously with the abolition of the Traffic Inspector’s post. On this reasoning the Labour Court took the view that the claim of the petitioner for payment of additional remuneration, which was upheld by the Arbitrator in the award, was unsustainable on the merits. It is on this ground that the Labour Court dismissed the claim petition.

5. Learned Counsel for the petitioner is well-founded in his contention that a claim under Section 33(c)(2) is in the nature of execution proceedings and that the function of the Labour Court while considering such claim is limited only to the determination of the question as to what, if any, is the amount of money or quantum of benefit computed in terms of money which the workman is entitled to receive from the employer under a settlement or award concerned. Such determination, no doubt, has to be made after due consideration of the rival contentions advanced by the workman and the management. As in the case of an executing court it is open to the Tribunal to consider a plea that the award is a nullity on the ground that it was made wholly without jurisdiction. But once it is found that the award is not vitiated by any total lack of jurisdiction it is not open to the Labour Court to entertain and consider objections concerning the legality or correctness of the award. Therefore, the petitioner is well-founded in his contention that in the present case the Labour Court has acted without jurisdiction in going behind the terms of the Award by purporting to sit in judgment over its correctness as if it was dealing with an appeal over the Arbitrator’s decision. The sole ground stated by the Labour Court for rejecting the claim petition is, therefore, unsustainable in law.

6. Counsel for the respondent, however, contended that the application filed before the Labour Court by the present petitioner under Section 33(c)(2) was itself not maintainable in law inasmuch as the petitioner had retired from service prior to the date of filing of the said application. It was argued that as per the definition of the expression “workman” contained in Section 2(s) of the Act a person can be regarded “as workman” only during the period when he is actually employed under an employer in any industry unless it be a case where such person has been dismissed, discharged or retrenched in connection with, or as a consequence of that industrial dispute, or whose dismissal, discharge or retrenchment has led to the industrial dispute. I see no merit in this argument.

7. In N.B.C. Corporation v. Pritam Singh the Supreme Court had occasion to consider a similar contention raised before it and Dua, J., speaking for the Court observed as follows:

Now, it is noteworthy that Section 2 of the Act, which is the definition section begins as is usual with most of the definition sections, with the clause, ‘unless there is anything repugnant in the subject or context ‘This clearly indicates that it is always a matter for argument whether or not this statutory definition is to apply to the word ‘workman’ as used in the particular clause of the Act which is under consideration, for this word may both be restricted or expanded by its subject matter. The context and the subject matter in connection with which the word ‘workman’ is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus construing the word ‘workman’ is obvious because all parts of the Act have to be in harmony with the statutory intent, Keeping this in mind we may turn to the purpose and object of Section 33C of the Act. This section was enacted for the purpose of enabling individual workmen to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process.

Section 33C of the Act has accordingly been described as a provision which clothes the Labour Court with the powers similar to those of an executing, court so that the workman concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing court it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act. To accept the argument of the appellant, it would always be open to an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by Section 33 C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the Act thereby defeating the very purpose and object of enacting this provision. This in our view, quite clearly brings out the repugnancy visualised in the opening part of Section 2 of the Act and such a position could hardly have been contemplated by the Legislature. In order to remove this repugnancy Section 33C(2) must be so construed as to take within its fold a workman, who was employed during the period in respect” of which he claims relief, even though he is no longer employed at the time of the application. In other words the term ‘workman’ as used in Section 33C(2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33C in the Act. We are therefore inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is no dispute about the employee’s right which is not denied, he will be entitled to file a suit. Whether or the employee’s right which is not denied, he will be entitled to file a suit. Whether or not the right of suit can be claimed by the employee. We are not persuaded on the basis of this argument to accept the construction convassed on behalf of the appellant and deny to a dismissed employee the benefit of speedy remedy under Section 33C(2) of the Act.

In the light of this categoric statement of the law by the Supreme Court it must now be taken to be well established that Section 33(c)(2) will take within its fold a workman, who was employed in an industry during the period in respect of which he claims relief even though at the time of the application he is no longer so employed. The contention to the contrary advanced by the counsel for the respondents deserves only to be rejected.

8. In the result the order Ext. P 8 passed by the Labour Court is hereby quashed and the Labour Court is directed to dispose of the claim petition afresh in the light of the observations contained in this judgment and pass final orders in the matter within a period not exceeding three months from today. O.P. is allowed to the extent indicated above. Parties will bear their respective costs.

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