C.Dasarathan vs 4 The Central Government Labour ... on 19 January, 2011 - Supreme Court & High Court Judgements of India

Madras High Court

C.Dasarathan vs 4 The Central Government Labour … on 19 January, 2011

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:     19.1.2011

CORAM
					
THE HON'BLE MR.JUSTICE M.JAICHANDREN

Writ Petition No.6819 of 2006


  C.DASARATHAN                            [ PETITIONER  ]

          Vs

1    VIDESH SANCHAR NIGAM LTD                     
     REP.BY THE CHIEF GENERAL MANAGER (HR) AND 
     APPELLATE AUTHORITY, LOLMANYA VIDESH 
	   SANCHAR  BHAVAN  
     KASINATH DHURU MARG, 
	OPP.KIRTI COLLEGE PRABEDEVI  
	MUMBAI

2    THE GENERAL MANAGER -HR
     DISCIPLINARY AUTHORITY,
     VIDESH SANCHAR NIGAM  LIMITED 
	LOLMANYA VIDESH SANCHAR BHAVAN  
     KASINATH DHURU MARG  OPP.KIRTI COLLEGE 
     PRABEDEVI  MUMBAI

3    THE CHIEF GENERAL MANAGER
     VIDESH SANCHAR NIGAM LIMITED
	5, SWAMI SIVANANDA SALAI  
     CHENNAI-2

4    THE CENTRAL GOVERNMENT LABOUR COURT  
     CHENNAI.							[ RESPONDENTS ]


	Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records and quash the order dated 30.12.2005 in C.C.P.No.18 of 2002 passed by the IV Respondent herein and consequently direct the respondents I-III herein to compute and pay the money value of the performance award due to the petitioner along with interest @ 24%. 

		   For petitioner  :  Mrs.D.Nagasaila
		   For respondents :  Mr.C.Mohan
						  for M/s.King & Partridge
					
 
O R D E R

This writ petition has been filed praying that this Court may be pleased to issue a writ of Certiorarified Mandamus to quash the order of the fourth respondent labour Court, dated 30.12.2005, made in C.C.P.No.18 of 2002, and to direct the respondents 1 to 3 to compute and pay the money value of the performance award to the petitioner, along with the interest at the rate of 24% per annum.

2. The petitioner had stated that he had joined in service, as a Grade D employee, under the respondents 1 to 3, on 14.5.1975. At the time of the filing of the claim petition on the file of the fourth respondent labour Court, he was holding the post of Assistant Officer (MTCE) (NE-9). His wife, D.Kamalavathi, was also employed in Videsh Sanchar Nigam Limited, which was originally a Government of India undertaking. In the year 2000, due to the disinvestment, the Tata Company had taken control of the said Company. While so, there was some misunderstanding between the petitioner and his wife, due to certain family problems. Taking advantage of the same, some of the superior officers of the company, who were unhappy with the trade union activities of the petitioner, had caused the issuance of a charge memo against the petitioner, dated 7.1.1998.

3. The petitioner had further stated that, based on the said charge memo, disciplinary proceedings had been initiated against the petitioner, under the Industrial Employment (Standing Orders) Central Rules, 1946. Based on the findings of the enquiry officer, the petitioner had been compulsorily retired from service, vide memo dated 12.1.2000.

4. The petitioner had further stated that he had preferred an appeal against the order, dated 12.1.2000, to the first respondent. By an order, dated 1.8.2000, the punishment of compulsory retirement, imposed on the petitioner, had been reduced to that of withholding of promotion for a period of two years, from the date of his fitness for promotion. Thereafter, the petitioner had been reinstated in service, with effect from 7.8.2000. The intervening period, from 12.1.2000 to the date of his reporting for duty, had been treated as leave, without pay. The petitioner was also not entitled to any pay and allowances during the period of his suspension, except the subsistence allowance already paid to him. The petitioner had joined duty, as per the said order, on 7.8.2000.

5. The petitioner had further stated that the petitioner had become eligible for promotion in the month of April, 2002. As the punishment awarded to the petitioner was withholding of promotion, for a period of two years, from the date on which he became eligible, the said punishment had commenced only from the month of April, 2002, and it had only lasted for a period of two years thereafter. While so, the first respondent Company had introduced a new scheme, on 21.5.2001, as Performance Reward Scheme, in consultation with the national productivity council. However, the said scheme was made applicable, with effect from 1.4.1999. It was applicable to all the eligible employees of the Company.

6. The petitioner had further stated that he had received an office memo, dated 25.2.2002, informing him that a sum of Rs.8,855/-, was recoverable from him, as it was the amount paid under the Performance Reward Scheme. The petitioner had replied stating that he had not received any amount under the Performance Reward Scheme and he had requested for the payment due to him under the said scheme. By a communication, dated 22.3.2002, he was informed that the performance reward shall not be admissible to him till the period of punishment was over and till normalcy restored. It had also been stated that the Performance Reward Scheme would be due to the petitioner only after 31.8.2005.

7. The petitioner had further stated that the employees union had made a representation, dated 19.4.2002, to the Managing Director Videsh Sanchar Nigam Limited, requesting for the payment of the performance reward to the petitioner. By a communication, dated 8.6.2002, the petitioner had been informed that his suspension period cannot be treated as qualifying service and therefore, he would not be entitled to any benefits. In such circumstances, the petitioner had preferred a claim petition, in C.C.P.No.18 of 2002, under Section 33C (2) of the Industrial Disputes Act, 1947, before the fourth respondent labour Court, challenging the orders, dated 4.12.2001 and 22.3.2002, claiming a sum of Rs.89,895/-, with interest, from the year, 1996, till the month of March, 2002, as the amount due to him under the Performance Reward Scheme, from the first respondent Company.

8. The petitioner had further stated that the fourth respondent labour Court had dismissed the claim petition filed by the petitioner, by an order, dated 30.12.2005, stating that the petitioner would not be entitled to the amount claimed by him, under the Performance Reward Scheme, for the period when he was under suspension, except the subsistence allowance and that the period of suspension, from 12.6.1997 to 11.1.2000, shall not count for qualifying service or for any other purpose. It had also been held that there was no pre- determined or pre-existing right, when the employer management disputes the entitlement of the petitioner to make the claim. It had also been held that it is for the petitioner to work out his remedy by raising an industrial dispute, as per Section 10 of the Industrial Disputes Act, 1947. The fourth respondent labour court had also held that it cannot pass an order for the payment of interest, in the absence of any specific provisions to that effect. It had also been held that the fourth respondent labour Court acts like an executing Court, under Section 33C (2) of the Industrial Disputes Act, 1947.

9. The learned counsel appearing for the petitioner had submitted that the power of labour Court, under Section 33C (2) of the Industrial Disputes Act, 1947, is very wide in nature. It cannot act merely as an executing Court. When a workman makes an application for the receipt of certain benefits and when the employer management raises the dispute in respect of the said claim, it is for the labour Court to ascertain as to whether the claim of the workman is justifiable. Thereafter, it could compute the same in terms of money, as held by the Supreme Court of India, in CENTRAL BANK OF INDIA Vs. RAJAGOPALAN AND OTHERS (1963 (II) LLJ 89).

10. The learned counsel appearing for the petitioner had further submitted that the fourth respondent labour Court had failed to consider the fact that the claim of the petitioner for the performance reward was only for the periods prior to his suspension and subsequent to his reinstatement in service. The fourth respondent labour Court ought to have seen that the claim of the petitioner was only for the period prior to the commencement of the punishment. Since, the petitioner had been reinstated in service, with effect from 7.8.2000, and as he was due for promotion only in the month of April, 2002, the period of his punishment would start only from the month of April, 2002.

11. The learned counsel appearing for the petitioner had also submitted that the power of the labor Court, under Section 33C (2) of the Industrial Disputes Act, 1947, is wide in nature and it could decide issues, which are incidental to the main issue arising for its consideration. Therefore, before computing the amount due to the petitioner as performance reward, it should have decided as to whether the respondents 1 to 3 were entitled to validly dispute the claim of the petitioner.

12. The learned counsel appearing for the petitioner had also submitted that the labour Court ought to have seen that Section 33C (1) of the Industrial Disputes Act, 1947, relates only to applications to be made to the appropriate Government for the recovery of the money due to the workman. However, a labour Court, acting under the powers vested in it, under Section 33C (2) of the said Act, has wider powers. It could make decisions in respect of issues, which are incidental to the claim made by the workman, even it is disputed by the employer management.

13. The learned counsel appearing for the petitioner had submitted that the labour Court does not act merely as an executing court, as held by the Supreme Court, in CENTRAL BANK OF INDIA Vs. RAJAGOPALAN AND OTHERS (1963 (II) LLJ 89), under Section 33C (2) of the Industrial Disputes Act, 1947, as it is different in scope, as compared to section 33C (1) of the said Act.

14. The learned counsel appearing for the petitioner had also submitted that there was no dispute with regard to the existence of the Performance Reward Scheme. Further, there was no dispute that the said scheme would be applicable to the petitioner, who is a workman under the first respondent company. The labour Court had erred in holding that the claim made by the petitioner for the performance reward is not for the period when he was under suspension from service. In fact, it was for the periods prior to the suspension and after his reinstatement in service.

15. The learned counsel appearing for the petitioner had also submitted that the fourth respondent labour Court had also erred in coming to the conclusion that the petitioner would not be entitled to the amount, as claimed by him as the performance reward, since, the management had disputed the same. Therefore, the claim petition filed by the petitioner is not maintainable.

16. The learned counsel appearing for the petitioner had also submitted that the labour Court had erred in arriving at its conclusion that the petitioner is not entitled to make a claim for the payment of the performance reward, as he had preferred a civil suit, in O.S.No.1459 of 2003, on the file of the City Civil Court, Chennai. The labour Court ought to have noted that the said original suit had been filed by the petitioner challenging the order relating to his suspension. Hence, the said suit would only relate to the periods of the petitioner’s suspension from service. Further, the Supreme Court had held that the suit filed by the petitioner is not maintainable, in its order, dated 30.8.2010 in S.L.P.(Civil) No.6268 of 2007, which had been filed challenging the order of this Court, dated 4.1.2007, made in C.R.P.(PD) No.520 of 2005.

17. The learned counsel appearing for the petitioner had relied on the decisions of the Supreme Court, in NEW TAJ MAHAL CAFE (PRIVATE) LTD., Vs. LABOUR COURT, HUBLI (1970) II L.L.J 51) and ARCOT ELECTRICITY DISTRIBUTION Vs. MOHAMMED KHAN (1970) II L.L.J.44) to reiterate her claim that the labour Court is entitled to decide the issue as to whether the petitioner is entitled to the amount claimed by him as performance award, even though the first respondent Company had disputed the same. She had also stated that the fourth respondent labour Court had misdirected itself in holding that the claim petition filed by the petitioner is not maintainable.

18. Per contra, The learned counsel appearing for the respondents 1 to 3 had submitted that the first respondent Company, which was a public sector undertaking, had been changed as Tata Communications Limited, from the month of January, 2008, pursuant to the disinvestment policy of the Government of India. At present, it is a private company forming a part of the Tata group.

19. The learned counsel appearing for the respondents 1 to 3 had further submitted that the petitioner and his wife were both employees of the first respondent Company. On 30.5.1997, the petitioner had forcibly entered into the cabin of his wife, within the premises of the company and strangulated her and had pulled her Mangalnan. Since, the action of the petitioner amounted to a serious misconduct, a charge memo had been issued against him. Based on the charge memo, a domestic enquiry had been conducted and a final order had been passed by the appropriate authority, on 12.1.2000, compulsorily retiring the petitioner from service. Aggrieved by the said order, the petitioner had preferred an appeal to the competent authority. The appellate authority, by an order, dated 1.8.2000, had modified the punishment of compulsory retirement to that of withholding of the promotion of the petitioner, for two years, from the date of his fitness for promotion.

20. The learned counsel appearing for the respondents 1 to 3 had further submitted that the petitioner would not be entitled to any pay or allowances. Subsequently, certain other orders had also been passed by the first respondent Company stating that the petitioner would not be entitled to any benefits or incentives due to the punishment awarded to him. It had also been made clear that the petitioner would not be entitled to performance reward, which had been introduced in respect of the employees of the first respondent Company. Challenging the said orders passed by the first respondent Company, the petitioner had filed a civil suit, in O.S.No.1459 of 2003, on the file of the XIV Assistant City Civil Court, Chennai. Therefore, without determination of the entitlement of the petitioner and recognition of the benefits that may be due to him from the Company, the petitioner would not be entitled to such entitlement or benefits by making a claim, under Section 33C (2) of the Industrial Disputes Act, 1947. Instead of seeking a reference, under Section 10 of the said Act, the petitioner had filed a claim petition, before the fourth respondent labour Court, in C.C.P.No.18 of 2002, under Section 33C (2) of the Industrial Disputes Act, 1947.

21. The learned counsel appearing for the respondents 1 to 3 had further submitted that the claim petition filed by the petitioner before the fourth respondent labour Court is not maintainable, as he had challenged the orders in question passed by the first respondent Company, by way of an original suit before the City Civil Court, in O.S.No.1459 of 2003. The plaint filed by the petitioner before the civil court had been marked as Exhibit R.8, on the file of the fourth respondent labour Court. The petitioner in the present writ petition, who is the plaintiff in the civil court, in O.S.No.1459 of 2003, had challenged the orders passed by the first respondent company, including the order, dated 8.6.2002, which had been marked as Exhibit P.17. In the absence of any judicial determination setting aside the order under challenge in the civil suit filed by the petitioner, he is not entitled to file a claim petition, under Section 33C(2) of the Industrial Disputes Act, 1947, to compute the money value of the entitlement or the benefits said to be due to him.

22. The learned counsel appearing for the respondents 1 to 3 had further submitted that it is a well settled position of law that a labour Court would act only as an executing court, under Section 33C (2) of the Industrial Disputes Act, 1947. It can compute the money value, that would be due to the claimant only after the determination has been adjudicated, which may flow from a pre-existing right, by way of an award or a settlement. In the absence of such determination by way of adjudication, the jurisdiction of the labour Court, under Section 33C(2) of the Industrial Disputes Act, 1947, is limited in nature.

23. The learned counsel appearing for the respondents had relied on the following decisions in support of the above contentions:

23.1. In ML.CORPN OF DELHI Vs. GANESH RAZAK & ANR (1995 (1) LLJ 395) the Supreme Court had held as follows:

8. Reference may be made first to the Constitution Bench decision in The Central Bank of India Ltd. Vs. P.S.Rajagopalan etc., (1963-II-LLJ-89)(SC), on which Shri Rao placed heavy reliance. That was a case in which the question of maintainability of proceedings under Section 33C(2) of the Act was considered in a claim made by the workmen on the basis of the Sastry Award. The employer disputed the claim of the workmen on several grounds including the applicability of Section 33C(2) of the Act. It was urged that since the applications involved a question of interpretation of the Sastry Award, they were outside the purview of Section 33C(2) because interpretation of awards or settlements has been expressly provided for by Section 36A. This objection was rejected. This Court pointed out the difference in the scope of Section 36A and Section 33C(2) indicating that the distinction lies in the facts that Section 36A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33C(2); and whereas Section 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under Section 36A. In this context, this Court also indicated that the power of the Labour Court in a proceeding under Section 33C(2) being akin to that of the Executing Court, the Labour Court is competent to interpret the award or settlement on which a workman bases his claim under Section 33C(2), like the power of the Executing Court to interpret the decree for the purpose of execution. Relevant extract from that decision is as under:

“Besides, there can be no doubt that when the labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go beyond the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under S.33C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under S.33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman’s right rests.

12. 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 to 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 Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmens entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 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 Courts power under Section 33-C(2) like that of the Executing Courts power to interpret the decree for the purpose of its execution.”

23.2. In STATE BANK OF INDIA Vs. RAM CHANDRA DUBEY (2001 (1) SCC 73), the Supreme Court had held as follows:

8. 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 Section 33-C(2) of the Act. The benefit sought to be enforced under Section 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 Section 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. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages.

23.3. In STATE OF U.P. Vs. BRIJIPAL SINGH (2005 (5) CTC 45), the Supreme Court had held as follows:

“12. Thus, it is clear from the principle enunciated in the above decisions that the appropriate Forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an exiting right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33-C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the labour Court in an application under Section 33-C(2) of the I.D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs.Shymala Pappu that the respondent-workman can file application under Section 33-C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No.15172 of 1987 dated 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33-C(2) of the I.D. Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court. The High Court has also equally committed a manifest error in not considering the scope of Section 33-C(2) of the I.D. Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No.11 of 1993 dated 23.8.1995 and the order dated 9.1.2002 passed by the High Court in C.M.W.P.No.36406 of 1995 as illegal and uncalled for. We do so accordingly.”

23.4. In UNION OF INDIA Vs. KANKUBEN (2006) 9 SCC 292, the Supreme Court had held as follows:

4. In State Bank of India v. Ram Chandra Dubey this Court held as under: (SCC pp.77-78, paras 7-8)
7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.

8. The principles enunciated in the decisions referred by either side can be summed up as follows:

6. Director General (Works), CPWD is clearly distinguishable on facts, as in that case the employer had accepted its liability and that is why this Court did not interfere. The factual scenario is entirely different in the case at hand. Right from the beginning the appellants have been questioning the maintainability of the petitions under Section 33-C(2) of the Act. In view of the settled position in law as delineated above, the appeals deserve to be allowed which we direct. In the peculiar circumstances of the case, if any amount has been paid to any of the respondents in compliance with the order of the Labour Court and/or the High Court the same shall not be recovered. Costs made easy.”

23.5. In D.KRISHNAN Vs. VELLORE COOP. SUGAR MILL ((2008) 7 SCC 22), the Supreme Court had held as follows:

9. It has been pleaded that there was a difference between the terminology of Section 33-C(1) and Section 33-C(2) inasmuch as Section 33-C(1) dealt with money due to a workman from an employer under a settlement or award, etc. whereas Section 33-C(2) was much wider in its application and visualised an entitlement with respect to money even if a pre-existing right was created by a statute and as in the present case, Section 59 of the Factories Act visualised payment of overtime wages, a simple enquiry under Section 33-C(2) was fully justified. In this connection, the learned counsel has placed reliance on East India Coal Co. Ltd. v. Rameshwar.

12. We have considered the arguments advanced by the learned counsel for the parties. The fact that proceedings under 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. It will be seen that the reliance of the appellant workmen is exclusively on documentary evidence placed on record which consisted primarily 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 in this situation is whether reliance only on the documentary evidence was sufficient to prove the case.

15. In this view of the matter, we find that the judgment in Municipal Corpn. case was clearly applicable to the facts of the present case. In this case, it was observed that: (SCC p.242, para 13)
13. In these matters, the claim of the respondent workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmens claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of equal pay for equal work being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. The respondents claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents.

17. Mr Gonsalves, has, however urged that a pre-existing right could also emanate from a statute, in this case from Section 59 of the Factories Act, which provided for the payment of overtime wages and in this view of the matter, all that the Labour Court was called upon to do was to make a calculation of the amounts due to the appellants. The facts of the case are, however, not as clear-cut and dried, as has been contended. The Division Bench has observed that though Section 59 of the Factories Act undoubtedly provided for extra payment as overtime wages, but according to Rule 78-B of the Tamil Nadu Factories Rules, 1950, only an employee authorised to work overtime by an overtime slip would be entitled to claim an overtime allowance. The specific case of the respondent management, which has not been contested by the appellants even during the course of the arguments before us, is that no such slips had ever been issued. Additionally, we are of the opinion that in the absence of any supporting oral evidence by the workmen which would also result in their cross-examination, a mere reliance on the documents filed by them is insufficient for determining the factual basis of the issues involved, in proceedings under Section 33-C(2) of the Act. In this view of the matter, Mr Gonsalves argument based on Rameshwar case or the scope and ambit of Section 33-C(1) vis-`-vis Section 33-C(2), is also unacceptable.

18. Mr Gonsalves has finally submitted that in the light of the judgment of this Court in Damodar Valley Corpn. v. Workmen and State of Karnataka v. C. Lalitha, an order made by a court was required to be made applicable to all those similarly circumstanced and as Jayavelu, who was identically placed, had been granted the benefit of overtime wages by the Labour Court, the appellants too were entitled to the same relief. This submission is however not acceptable on account of the lack of particulars with respect to Jayavelus matter. It is, thus, not possible to evaluate the matter as being identical on facts. We, thus, find no merit in the appeal. It is accordingly dismissed, with no order as to costs.”

23.6. In MGMT OF BINNY LTD Vs. P.O. PRINCIPAL L.C. (2009 (1) LLN 340), the Division Bench of this Court had held as follows:

5. In Municipal Corporation of Delhi V. Ganesh Razak and another (1995 (1) L.L.N.402), the Supreme Court has held that while entertaining an application under S.33C(2), the labour Court cannot adjudicate upon the dispute of entitlement or basis of claim of workman. It can only interpret the award or settlement on which the claim is based as its jurisdiction is like that of an executing Court, the Supreme Court in Fabril Gasosa and another V. Labour Commissioner and others (1997 (2) L.L.N.55), has also observed that S.33C deals with the pre-adjudicated claim or the application should be based on some award/settlement or such right should have been recognised right the employer/management. In Union of India V. Gurubachan Singh and another (1997 (2) L.L.N. 457), the Supreme Court has held that application under S.33(2) is not maintainable if it requires the adjudication of a fresh claim. Likewise, in Chief Superintendent, Government Livestock Farm V. Ramesh Kumar (1998 (5) L.L.N.457), the Supreme Court has held that the remedy under S.33C(2) of the Industrial Disputes Act is available only when there is no dispute about entitlement of the workman. The provisions cannot be invoked in a case where the entitlement itself is in dispute. In State Bank of India V. Ram Chandra Dubey and others (2001 (1) L.L.N.58), the Supreme Court while considering its earlier judgments in Municipal Corporation of Delhi Vs. Ganesh Razak (vide supra) and in Central Bank of India Vs. P.S.Rajagopalan (A.I.R.1964 S.C.743) has finally concluded as follows: In para 8, at page 61:

“…… 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 S.33C(2) of the Act. The benefit sought to be enforced under S.33C(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 fall within the jurisdiction of the labour Court exercising powers under S.33C(2) of the Act while the latter does not…”

6. An analysis of the above law laid down by the Supreme Court would lead to the following settled positions of law, viz:

(1) there must be a pre-existing right on the workman to file an application under S.33C(2) of the Act;

(2) while dealing with an application under S.33C(2) of the Act, the Labour Court is in position of an executing Court;

(3) the Labour Court is called upon to compute and consulate the monetary benefit only on the basis of pre-existing right of the workman;

(4) the Labour Court cannot entertain and adjudicate upon a petition under S.33C(2) when the entitlement itself is in dispute; and
(5) an application under S.33C(2) is not maintainable, if the petition is filed on disputed facts which require adjudication by the Labour Court”.”

23.7. In K.S.NATARAJAN Vs. THE PRESIDING OFFICER, PRINCIPAL LABOUR COURT AND ANANDA VIKADAN VASAN PUBLICATION LTD., (MANU/TN/0179/2010), this Court had held as follows:

16.1. In MUNICIPAL CORPORATION OF DELHI Vs. GANESH RAZAK AND ANR. MANU/SC/0532/1995: (1995 I LLJ 395), the Supreme Court had held as follows:

4. It is clear that there has been no earlier adjudication by any forum of the claim of these workmen of their entitlement to be paid wages at the same rate at which the regular workmen of the establishment are being paid and there is no award or settlement to that effect. In short, this claim of the workmen has neither been adjudicated nor recognised by the employer in any award or settlement. The real question therefore is: Whether in these circumstances, without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claimed by them on that basis are maintainable under Section 33-C(2) of the Act?

16.2. In UTTAR PRADESH Vs. BRIJPAL SINGH (2005 (8) SCC 58), the Supreme Court had held as follows:

7. It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages (P) Ltd. v. Suresh Chand held that a proceeding under Section 33-C(2) is a proceeding in the nature of execution 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. Proceeding further, this Court 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 an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. This Court further held as follows:

It is not competent to the Labour Court exercising jurisdiction under Section 33-C(2) to arrogate to itself the functions of an Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the Act.

23.8. In K.S.NATARAJAN Vs. P.O. PRINCIPAL LABOUR COURT (2010 (4) LLN 702), this Court had held as follows:

“6. Learned Single Judge after considering the case of the writ petitioner-appellant and the second respondent and after discussing the various decisions rendered by the Supreme Court and that of this Court, came to the conclusion that the writ petitioner-appellant had not raised the claim for payment of overtime wages during his service period from 1978 till he had submitted his application for resignation, and the Labour Court has rightly held that the claim under S.33C(2) of the Industrial Disputes Act, 1947, cannot be maintained unless there was a pre-existing right or entitlement in favour of the appellant. Learned Single Judge also affirmed the finding of the Labour Court that the appellant was not a workman within the meaning of S.2(s) of the Industrial Disputes Act, 1947. Hence, the present appeal.”

23.9. In G.DHAMODHARAN Vs. M.D.HINDUSTAN LEVER LTD., (2010 (4) LLN 725), this Court had held as follows:

“12. Similar is the law declared by this Court in 2009 (1) L.L.N.340 (Management of Binny, Ltd. V. Presiding Officer, Principal Labour Court) wherein, after analysing the decision of the Apex Court as the scope of S.33C(2) of the Industrial Disputes Act, this Court held as follows:

“An analysis of the above law laid down by the Supreme Court would lead to the following settled positions of law, viz.

(1) there must be a pre-existing right on the workman to file an application under S.33C(2) of the Act;

(2) while dealing with an application under S.33C(2) of the Act, the Labour Court is in position of an executing Court;

(3) the Labour Court is called upon to compute and consulate the monetary benefit only on the basis of pre-existing right of the workman;

24. The learned counsel appearing for the respondents 1 to 3 had also submitted that the respondents had filed an application to reject the plaint filed by the petitioner, in O.S.No.1459 of 2003, on the ground that the civil court does not have the competent jurisdiction to strike down the orders passed by the first respondent Company, as prayed for by the petitioner, in the said suit. As the said application had been dismissed, the management of the first respondent company had filed a civil revision petition before this Court, under Article 227 of the Constitution of India, in C.R.P.No.520 of 2005. This Court, by its order, dated 4.1.2007, had allowed the civil revision petition rejecting the plaint filed by the petitioner in the suit, in O.S.No.1459 of 2003. The appeal preferred by the petitioner before the Supreme Court of India had also been dismissed, vide its order, dated 30.8.2010. As such, it would only be open to the petitioner to challenge the impugned orders before the appropriate forum established, under the provisions of the Industrial Disputes Act, 1947.

25. The learned counsel appearing for the respondents 1 to 3 had also submitted that the impugned orders passed by the fourth respondent labour Court, on 30.12.2005, is a detailed order passed after considering all the materials placed before the fourth respondent labour Court and in view of the various decisions of the High Court, as well as of the Supreme Court. The fourth respondent labour Court had declined to grant the relief, as prayed for by the petitioner in the claim petition, in C.C.P.No.18 of 2002. The labour Court had dismissed the claim petition filed by the petitioner holding that the petitioner is not entitled to claim the performance reward, unless it had already been determined by way of an adjudication. Further, it had taken note of the fact that the petitioner had preferred a civil suit, in O.S.No.1459 of 2003, which was pending on the file of the concerned civil court, challenging the various orders passed by the first respondent company.

26. In view of the submissions made on behalf of the petitioner, as well as the respondents 1 to 3, and in view of the decisions cited above, and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as sought for by the petitioner, in the present writ petition.

27. It is seen that the petitioner had been awarded the punishment of compulsory retirement from service by an order, dated 12.1.2000. On the appeal filed by the petitioner, the appellate authority had modified the punishment of compulsory retirement from service to that of withholding of promotion for two years, from the date of his fitness for promotion, by an order, dated 1.8.2000. It had also been held that the petitioner would not be entitled to any pay or allowances by the subsequent orders issued on behalf of the first respondent company. It had been stated that the petitioner would not be entitled to any benefits or incentive pays, pursuant to the punishment awarded to him. The petitioner had challenged the said orders, by way of the civil suit, in O.S.No.1459 of 2003, on the file of the XIV Assistant City Civil Court, Chennai, and the said suit is pending adjudication.

28. It is also noted that in the claim petition filed by the petitioner before the fourth respondent labour Court in C.C.P.No.18 of 2002, under Section 33C (2) of the Industrial Disputes Act, 1947, the petitioner had stated that he was aggrieved by the orders, dated 4.12.2001, and 22.3.2002, passed by the Management of the first respondent Company. The petitioner having been aggrieved by certain orders passed by the Management of the first respondent company, denying the grant of performance of reward in faovur of the petitioner, the petitioner ought to have established his right and entitlement to receive the same, by way of an adjudication process. When the management of the first respondent company had, categorically, stated that the petitioner was not entitled to the performance reward for the period when he had been under suspension from service and due to the punishment of postponement of promotion by way of the order of the appellate authority, dated 1.8.2000, it is not for the fourth respondent labour court to decide the said issue relating to his entitlement in the claim petition filed by the petitioner, under Section 33C(2) of the Industrial Disputes Act, 1947.

29. It is a well settled position in law, as seen from the decisions cited supra, that the labour Court functions, primarily, as an executing court, under Section 33C (2) of the Industrial Disputes Act, 1947, even though the labour Court can go into certain issues, which are incidental thereto. As such, it would not be open to the petitioner to claim that the fourth respondent labour Court should have adjudicated the main issue as to whether the petitioner had a right or entitlement to receive the performance reward under the Performance Reward Scheme announced by the Management of the first respondent company.

30. It is also noted that this Court had held, by its order, dated 4.1.2007, made in C.R.P.(PD) No.520 of 2005, that it was not open to the petitioner to challenge the orders passed by the management of the first respondent company, denying the performance reward to the petitioner, by way of a civil suit and the said decision had been upheld by the supreme Court, by its order, dated 30.8.2010, in S.L.P.(Civil) No.6268 of 2007. However, it goes without saying that it is for the petitioner to establish his right and entitlement, by way of an appropriate proceedings before the appropriate forum. Until the right and entitlement of the petitioner is not adjudicated upon, he would not be entitled to maintain a claim petition before the labour Court, under Section 33C (2) of the Industrial Disputes Act, 1947. In such circumstances, it cannot be held that the impugned order of the fourth respondent labour Court, dated 30.12.2005, made in C.C.P.No.18 of 2002, is arbitrary, illegal and void. As the writ petition filed by the petitioner is devoid of merits, it is liable to be dismissed. Hence, it is dismissed. No costs.











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To

1    VIDESH SANCHAR NIGAM LTD                     
     REP.BY THE CHIEF GENERAL MANAGER (HR) AND 
     APPELLATE AUTHORITY, LOLMANYA VIDESH 
	   SANCHAR  BHAVAN  
     KASINATH DHURU MARG, 
	OPP.KIRTI COLLEGE PRABEDEVI  
	MUMBAI

2    THE GENERAL MANAGER -HR
     DISCIPLINARY AUTHORITY,
     VIDESH SANCHAR NIGAM  LIMITED 
	LOLMANYA VIDESH SANCHAR BHAVAN  
     KASINATH DHURU MARG  OPP.KIRTI COLLEGE 
     PRABEDEVI  MUMBAI

3    THE CHIEF GENERAL MANAGER
     VIDESH SANCHAR NIGAM LIMITED
	5, SWAMI SIVANANDA SALAI  
     CHENNAI-2

4    THE CENTRAL GOVERNMENT LABOUR COURT  
     CHENNAI

C.Dasarathan vs 4 The Central Government Labour … on 19 January, 2011

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