JUDGMENT
Birendra Prasad Sinha, J.
1. Both these writ petitions were heard together and will be governed by this common judgment. Petitioner in both the cases is the Bihar State Road Transport Corporation. In C.W.J.C. No. 406 of 1975 respondent No. 1 is Bhawsagar Mishra, who is employed as a traffic inspector under the petitioner. Respondent No. 1 in C.W.L.C. No. 1168 of 1976 is Bhubneshwar Prasad Singh, who is also traffic inspector under the petitioner. Respondent No. 2 in both the cases is the presiding officer of the Labour Court at Bhagalpur. Respondent No. 2 by a common judgment (Annexure 3) in Miscellaneous Case Nos. 2 and 4 of 1974, under Section 33C(2) of the Industrial Disputes Act (hereinafter referred to as the Act), has rejected a preliminary objection raised on behalf of the petitioner regarding the maintainability of the applications filed by respondents Bhawsagar Mishra and Bhubneswar Prasad Singh. A prayer has been made in both the cases for insurance of a writ of certiorari quashing the said order contained in Annexure 3.
2. The common grievance of respondents Bhawsagar Mishra and Bhubneshwar Prasad Singh is that they have not been allowed to cross the efficiency bar in their pay scales at the appropriate time and were deprived of their increments in salary for three years. According to them, they were due to cross the efficiency bar on 15-6-1964 and 15-12-1964, respectively, but were not allowed to cross it until 1967, irrespectively of any order stopping it An objection to the maintainability of the application under Section 33C(2) of the Act was taken on behalf of the Corporation-petitioner. According to the petitioner, the question whether the respondents, Bhawsagar Mishra and Bhubneshwar Prasad Singh, were entitled to cross the efficiency bar involves determination of a right which may form the subject-matter of an industrial dispute and can be adjudicated upon a reference under Section 10(1) of the Act, but not in an application under Section 33C(2) of the Act.
3. Shri K.D. Chattarji, Learned Counsel for the petitioner, in the beginning repeated the same arguments and submitted that Labour Court has no jurisdiction to entertain such an application under Section 33C(2) of the Act which involves determination of a right. Later, Shri Chatterji conceded that an enquiry was permissible but it must be confined within the scope of the Bihar Service Code alone which was applicable to the case of the respondents. According to him, the instructions issued by the Government from time to time could not be brought in aid of the respondents for deciding the question.
4. The scope and ambit of Section 33C of the Act was thoroughly considered by the Supreme Court in the Central Bank of India Ltd. v. P.S. Raiagopalan 1963-II L.L.I 89 : A.I.R. 1964 743. After referring to the legislative history of this provision, Gajendragadkar, J. (as he then was), observed that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the Legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted Section 36A in the Act in 1950 and added Section 33C in 1956. These two provisions, be observed, illustrate the cases in which individual workmen can enforce their rights without having to take recourse to Section 10(1) of the Act, or without having to depend upon their union to espouse their cause. He further observed that where industrial disputes arose between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed under Section 10(1) of the Act and those disputes could not be brought within the purview of Section 33C. Similarly, cases of existing rights which were sought to be implemented by individual workmen could not be excluded from the scope of Section 33C. The learned Judge opined that on a fair and reasonable construction of Sub-section (2) of Section 33C, it was clear that if a workman’s right to receive the benefit was disputes, that could be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. When the said right was disputed, the Labour Court must deal with that question and decide whether the workman had a right to receive the benefit as alleged by him. And it was only when the labour Court answered this point in favour of the workman that the next question of making the necessary computation arose. It was held that the claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be proceeded by an enquiry into the existence of right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2).
5. In the beginning, it was sought to be argued on behalf of the petitioner that, in essence and substance, the power of the Labour Court under Section 33C(2) was in the nature of an executing Court. Claims made under Section 33C(1) are referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in Section 33C(2). To that extent the scope of Section 33C(2) is wider than that of Section 33C(1). Even in respect of cases which may fall under Section 33C(2), after the determination is made by the Labour Court, the execution goes back again to Section 33C(1). In respect of the three categories of claims mentioned in Section 33C(1), therefore, the proceeding may be deemed to be a kind of execution proceeding under Section 33C(2), But, in respect of other type of claims which may fall to be considered under Section 33C(2), it cannot be said to be an execution proceeding. To this extent, the scope of Section 33C(2) is wider. The learned Judge, in the case of the Central Bank of India (supra) concluded by saying that the scope of Section 33C(2) is wider than Section 33C(1) and cannot be wholly assimilated it. The Supreme Court refrained from deciding or indicating what additional type of case could fall under Section 33C(2), which could not fall under Section 33C(1). However, the learned Judges stated that the observation made by the Supreme Court in the case of Punjab National Bank Ltd. v. K.L. Kharbanda that Section 33C was a provision on in the nature of execution, should not be interpreted to mean that the scope of Section 33C(2) was exactly the same as Section 33C (1).
6. In the case of Chief Mining Engineer, East India Coal Co. Ltd., Bararee Colliery v. Prameshwar , the Court was considering whether application filed by the workmen under Section 33C(2) claiming bonus under a scheme framed by the Central Government under the Coal Mines Provident Fund and Bonus Scheme Act could be tried by a Labour Court. Relying upon the case of Central Bat, of India (supra) it was held the Labour court had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of a workman and his employer. In the case of V.P. Electric Supply Co. Ltd. v. R.K. Shukla , the question was whether the Labour Court could award retrenchment compensation to certain employees under Section 33C(2). It was held that where the right to retrenchment compensation which was the foundation of a claim was itself a matter which was exclusively within the competence of the Industrial Tribunal to be adjudicated upon on a reference, it would be straining the language of Section 33C(2) that the question whether there has been retrenchment may be decided by the Labour Court. It was further held that the power of the Labour Court was to compute the compensation claim to be payable to the workmen on the footing that there had been retrenchment of the workmen. Where retrenchment was conceded and the only matter in dispute was that by virtue of Section 25FF no liability to pay compensation had arisen, the Labour Court would be competent to decide the question. In such a case the question was one of computation and not of determination of the conditions precedent to the accrual of liability. Where, however, the dispute was whether the workmen had been retrenched and the computation amount was subsidiary or incidental, the Labour Court will have no authority to trespass upon the powers of the Tribunal. In the case of R.B. Bansilal Abirchand Mills Co, Pvt. Ltd. v. The Labour Court, Nagpur , a five Judges Bench ruled that certain observations made in the case of U.P, Electric Supply (supra) were not binding on them as all the aspects were not placed before the Court then. It appears that a somewhat different view had been taken in the case of U.P. Electric Supply (supra). In the case of R.B. Bansilal (supra) the claim of to compensation of the workmen laid-off came to be considered under Section 33C(2) before a Labour Court. The question again was whether the Labour Court had jurisdiction to entertain the application for laying-off compensation under Section 33C(2). A large number of workers had made a claim of the same nature against the employer. It was held that the mere fact that a large number of workers made a, claim of the same nature against the employers does not change the nature of the dispute so-as to take it out of the pale of Section 7 of the Act and render the dispute one which could only be dealt with by an Industrial Tribunal. It was further held that the Labour Court could go into the matter and come to the decision as to whether there was really a closure-or lay-off. If it took the view that there was a lay-off without any closure of. business, it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter VA. In Management of Bhagaband Colliery v. Presiding Officer, Central Government, Labour Court, Dhanbad, (1973) Labour and Industrial Cases 403 a division Bench of this Court had the occasion to consider the scope of Section 33C(2). On an application filed under Section 33C(2) the Labour Court had found that the workman was entitled to a certain amount as difference of his basic pay, underground allowance, quarterly bonus, provident fund, etc. The workman’s claim was that as per recommendation of the Central Wage Board for the Coal Mining industries, he was “entitled to be put in Class I as mining Sardar, but the management had wrongly paid him treating him as Class II. This was disputed by the management. It was held that if there was a dispute in regard to the service conditions, in the sense that the workman says that a particular service condition was applicable to him, while the management asserted that it was not so, the Labour Court had the power to decide such a question under Section 33C(2).
7. In Central Inland Water Transport Corporation Ltd. v. The Workmen , on which much reliance was placed on behalf of the petitioner, the question was one relating to retrenchment. The Government of West Bengal made two orders of reference purporting to be under Section 33C(2). It asked the Labour Court to compute the benefits covered by a settlement between the union and the company and for computation of retrenchment benefit under Section 25MM. This was challenged in a writ application and the reference orders were set aside. Thereafter the Government made a consolidated reference to the Labour Court and four issues were framed. This too was challenged in writ application and one of the issues was struck down. In regard to other three, the High Court took the view that the Labour Court had jurisdiction to try those issues, Ultimately the matter came up before the Supreme Court where the question that arose for determination was whether the Labour Court had jurisdiction to adjudicate on the issues referred to it under Section 33C(2) while dealing with the question about the scope of Section 33C(2) the learned Judges made a little departure from the earlier decisions of the Supreme Court. It was held that a proceeding under Section 33C(2) was a proceeding generally in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to the workman from his employer, or if the workman was entitled to any benefit which was capable of being computed in terms of money, the Labour Court can proceed to compute the same in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged or, otherwise, duly provided for. It was further held that in a proceeding under Section 33C(2) as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim was made, if there was a challenge on that score. But that was merely incidental. When a claim was made before a Labour Court under Section 33C(2) that Court must clearly understand the limitations under which it was to function. It cannot arrogate to itself the functions say of an Industrial Tribunal which alone was entitled to make the identification. The Central Bank of India’s case (supra) was distinguished and it was observed that the Supreme Court in that case had held that the enquiry as to whether the four clerks came within a certain category was purely incidental and necessary to enable the Labour Court to give the relief asked for. It was also observed that that was purely a case of establishing the identity of claimants as coming within a distinct category of clerks in default of which it would have been impossible to give relief to any body falling in that category.
8. In Sahu Minerals and Properties Ltd. v. Presiding Officer, Labour Court , the facts were as follows. Certain reference was made by the Government under Section 33C(2) for retrenchment compensation in regard to a number of workmen, The workers contended that they were entitl to retrenchment compensation under Section 24F whereas the employers contended that it was a case of closure for reasons beyond their control and the workmen were entitled to compensation only under the proviso to Section 25FFF. The Labour Court held that it was a case of retrenchment. The writ application by the employers in the High Court failed. The argument in the Supreme Court was that where there was a dispute before the Labour Court considering an application under Section 33C(2) as to whether the workmen had been retrenched or the factory had been closed for reasons beyond the control of the employers, it was not a matter which the Labour Court was competent to decide and that it was a matter which only an Industrial Tribunal was competent to decide. Relying upon the case of Central Bank of India (supra) the Supreme Court held that the Labour Court was competent to decide whether the case before it was a case of retrenchment compensation or Section 25FFF was attracted on the closure of the establishment. The U.P. Electric Supply Company’s case (supra) was distinguished. So also in the case of the Central Bank of India v. Sisir Kumar Shaw , wherein the dispute was regarding special allowance under the terms of a bipartite agreement between the parties, it was held that the Labour Court could interpret that agreement. In the latest case of Namor Ali Choudhary v. The Central Inland Water Transport Corporation Ltd. , the learned Judges of the Supreme Court held that on a plain reasoning of the wording of Section 33C(2) it would be found that where any workman was entitled to receive from the employer any money and if any question arose as to the amount of money due, then the question may be decided by the Labour Court.
9. The question for consideration in the present case is as to whether the increments in the pay of respondents had been reasonably with held in accordance with the service rules and instructions. Such an investigation is surely within the ambit and power of the Labour Court. It would be merely incidental to the main question, viz., the amounts to which the respondents are entitled had they been allowed to cross the efficiency bar at the proper time. As stated above, Shri Chatterji, submitted that such an investigation or enquiry must be confined to the Bihar Service Code alone and the instructions issued from time to time by the Government should not be applied. I fail to see any reason in this argument. If the Bihar Service Code is applicable in the case of respondents, any instruction or instructions issued from time to time by the Government must also govern their case. While deciding the question those instructions cannot be left aside. In my opinion, the Labour Court has rightly rejected the preliminary objection raised on behalf of the petitioner. The Labour Court has the jurisdiction to try these cases filed by Bhawsagar Mishra and Bhubneshwar Prasad Singh.
10. In the result both the applications fail and are dismissed with costs. Hearing fee Rs. 150in each case to be paid to respondent No. 1.
V. Mishra, J.
1. I agree.