JUDGMENT
Majithia, J.
1. The petitioner, Life Insurance Corporation of India, a statutory Corporation incorporated under the provisions of Life Insurance Corporation Act, 1956, has challenged the order dated June 15, 1989 passed in Application No. LCB-3 of 1988 filed by Respondent No. 1 under Section 33-C(2) of the Industrial Disputes Act, 1947 directing it to pay to the latter Rs. 67,295.85 along with interest at 9% from July 1, 1987 till the date of actual payment, in this petition under Article 226 of the Constitution of India.
2. The facts as gathered from the pleadings of the parties and the list of events and dates filed by the petitioner in Court and not disputed by the Counsel for respondent No. 1, briefly put, are as under :-
Respondent No. 1 (hereinafter referred to as the ’employee’) joined service of the petitioner on February 9, 1949. He applied for allotment of staff quarters on April 14, 1960. He was allotted staff quarters on July 4, 1960. The petitioner issued a circular dated June 20, 1985 authorising withholding of Provident Fund and Gratuity in the event of any employee not vacating staff quarters on retirement. The petitioner issued another circular dated September 4, 1985 endorsing the action authorised by Circular dated June 20, 1985. The employee retired from service on June 20, 1987 on reaching the age of superannuation. He did not surrender possession of the staff quarters necessitating the withholding of the retirement benefits pursuant to circulars dated June 20, 1985 and September 4, 1985. The employee filed an application dated September 30, 1987 under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short” the I.D. Act.”) claiming Rs. 99,295/- from the petitioner which had been withheld. The petitioner paid Rs. 32,000/- by way of gratuity to the employee during the pendency of the application under Section 33-C(2) of the I.D. Act. The application was allowed by respondent No. 2 by order dated June 15, 1989 directing the petitioner to pay a sum of Rs. 67,295.85 with 9% interest from July 1, 1989 till the date of actual payment. Respondent No. 2 issued these directions after holding that the administrative instructions dated June 20, 1985 and September 4, 1985 cannot replace or modify the rules and regulations governing the rules of pensionary benefits to retiring employees and that these Circulars do not have a binding effect under the provisions of the Life Insurance Corporation of India Act (for short “the L.I.C. Act”) or any statutory rules framed by the Central Government. On September 6, 1990, this Court stayed the operation of the order under challenge on the condition that the petitioner paid a sum of Rs. 50,000/- to the employee by September 30, 1990. This amount was paid before this date. On March 30, 1991, an order of eviction was passed against the employee under the Public Premises (Eviction of Unauthorised Occupants) Acts, 1971 and damages were also awarded against him. This order was not challenged and it has attained finality.
3. Mr. R. A. Dada, Senior Advocate, learned Counsel for the Petitioner, raised the following contentions :-
(i) The Circulars dated June 20, 1985 and September 4, 1985 providing for withholding of Provident Fund and gratuity in the event the employee refuses to vacate staff quarters on superannuation are valid at law and are enforceable.
(ii) The Labour Court has no Jurisdiction to decide a question of entitlement of applicant/employee to a sum claimed in an application under Section 33-C(2) of the I.D. Act.
4. The Leave and Licence Agreement dated July 4, 1960 was executed by the employee in favour of the petitioner. In the preamble to this document it is recited that the employee being in the service of the Life Insurance Corporation (petitioner) has been allotted as a licensee and service occupant, by way of leave and licence, the use and occupation as a residence for himself and his family members only, of premises being Chawl T. No. C-5 on the ground floor building in Vallabb Nagar Colony at Borivli. Paras 3, 4, 5 and 9 of the document read thus :-
“3. The occupation by me of the said premises is by reason of the fact that I am in your service and employ and is merely by way of leave and licence and shall not create any tenancy thereof between you and myself or give me any kind of estate right or interest in the premises or create any relationship of landlord and tenant between you and me, but such occupation shall be deemed to be a licensed occupation of a servant of the employer and the licence to occupy the premises shall determine with the determination of my service or in case of my transfer from Bombay, elsewhere or in case I am required to vacate the premises and I agree that if you allot me any other premises either in the same building or any other building then I will transfer myself without raising any objection to the newly allotted premises and I further agree that the terms and conditions set out herein will also govern my occupancy as a licensee of the newly allotted premises and I further agree that I shall vacate the promises on being required to do so, without raising any objection.
4. In case I fail to deliver possession of the premises on the determination or termination of the licence you shall have every right to enter into possession of the premises without going to a Court of Law and to compel me to vacate the premises and to remove my articles, furniture, fittings etc. from the premises without in any way rendering yourself liable for trespass damages or otherwise and I agree that in case I fail to give possession of the premises after being required to vacate them I shall be guilty of wrongful restraint.
5. I have to pay you so long as I shall have the use and occupation of the said premises,, the sum of Rs. 25 + 1 (Rupees twenty five Plus One) per month by way of licence fee and such sum per month as I may become liable to pay for taxes etc. and you shall be entitled to deduct the same from the salary, and/or remuneration payable to me each month.
9. I agree and undertake to abide by the rules and regulations and the Code of Conduct for use and occupation of the premises, fixtures, fittings and articles that may be enforced by you from time to time.”
A reading of this document suggests that the employee entered into possession as a licensee and service occupant by way of leave and licence and he specifically agreed that in case he fails to deliver possession after being required to vacate the same, he shall be guilty of wrongful restraint.
5. Circular No. Personnel 1/8/ZD/35 dated June 20, 1985. Contains revised instructions. These instructions were issued to ensure that the employees vacated the staff quarters immediately on retirement so that the same could be allotted to other needy employees. Procedure was laid down for calling upon the employees to vacate staff quarters on retirement. It provides for legal action for obtaining vacant possession in addition to the other steps. Paras 7 and 8 of the circular read as under :-
“7. Payment of retirement benefits shall be withheld to the extent specified below.
(a) Provident Fund – The entire Provident Fund Contribution of the Corporation with interest in the employees’ account;
(b) Gratuity & Additional Gratuity :- Gratuity payable to Class II, III and IV employees under the Payment of Gratuity Act, 1972 shall not be withheld even though the employees or his family has not vacated Staff quarters. However, if the Gratuity payable under the (Staff) Regulations is more than that admissible under the Act, such excess amount shall be withheld. In the case of Class I Officers the entire gratuity shall be withheld.
(c) Entire cash benefit in lieu of unutilised Privilege leave.
8. Simultaneously, efforts should be made to obtain vacant possession of the quarters by taking advantage of the provisions of the Public Premises (Eviction of unauthorised Occupants) Act 1971 wherever P.P. Act is applicable.”
Para 7 of Circular No. Par/8/ZD/554 dated September 4, 1985 provides for withholding of terminal benefits and the same reads as under :-
“7. Payment of all terminal benefits shall be withhold as in the case of retirement (as per para 7 of our circular Ref. Personnel/8/ZD/554 dated June 20, 1985) till such time vacant possession of staff quarters are given.”
6. The L.I.C. Act was enacted for nationalisation of Life Insurance business in India by transferring all such business to a Corporation established under Section 3 of the L.I.C. Act. The Petitioner-Corporation was so established. Sub-section (1) of Section 49 of the L.I.C. Act envisages that the Corporation may, with the previous approval of the Central Government, by notification in the official gazette, make regulations not inconsistent with this Act and the rules made thereunder to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of the Act. Sub-section (2) provides for making regulations for other specified purposes, including the method of recruitment of employees and agents of the Corporation and the terms and conditions of service of such employees or agents and the conditions of service of persons who have become employees of the Corporation under sub-section (1) of Section 11. In exercise of powers vested in the Corporation under clauses (b) and (bb) of sub-section (2) of Section 49, the Life Insurance Corporation of India (Staff) Regulations, 1960 were framed with the approval of the Central Government. Regulation 4 provides for issuance of such instructions or directions as may be necessary to give effect to, and carry out, the provisions of these regulations and in order to secure effective control over the staff employed in the Corporation. Regulation 76 deals with Provident Fund. Clause (1) of Regulation 76 says that every employee of the Corporation, other than an employee on probation or an employee appointed on temporary basis or an employee who is contributing to an approved Superannuation Fund, shall contribute to the Provident Fund at 8 1/3 percent of the aggregate of his basic pay including special pay. The corporation was to contribute to the Fund every month an amount equal to the actual contribution of each member subject to a maximum of 81/3 percent of the aggregate of the basic pay including special pay. Regulation 77 deals with Gratuity. Clause (1) of Regulation 77 postulates that a permanent employee who has been in continuous service of the Corporation for not less than 15 years shall be eligible for gratuity benefits on retirement from the service of the Corporation. Clause (2) of this regulation deals with Computation of gratuity. Clause (5) says that notwithstanding anything contained in clauses (1) to (4) of Regulation 77, the gratuity payable to an employee shall stand forfeited on the following grounds :
(i) where the penalty of dismissal is imposed on an employee for any act involving violence against the management or other employees or any riotous or disorderly behavior in or near the place of employment, the gratuity payable to him shall stand wholly forfeited; and
(ii) where the penalty of compulsory retirement, removal from service or dismissal is imposed on an employee for any act involving the Corporation in financial loss, the gratuity payable to him shall stand forfeited to the extent of such loss.
7. The Corporation established a Fund styled as ‘The Life Insurance Corporation of India Provident Fund No. 1’. Para 20(f) of the Provident Fund No. 1 Rules lays down that the Corporation is entitled to recover from the contributions made by it towards the Provident Fund of a member, its claim in respect of any loss, damages, costs or expenses sustained by it or put to by reason of any fraud or misdemeanour of the member. Clause (f) of para 20 in unequivocal terms lays down that the Corporation is entitled to make recoveries out of the contributions made by it towards the Provident Fund in the individual account of the member of the Fund, namely the employee, if it had suffered any loss on account of the fraud or misdemeanour of the employee.
8. The term ‘misdemeanour’ is not defined either in the LIC Act. or in the Regulations framed thereunder. In the absence of the same resort has to be made to its dictionary meaning. This term in Wharton’s Law Lexicon, 14th Edition, is defined thus :-
“Misdemeanour, a crime less than felony, perjury, obtaining money by false pretenses, endeavoring to conceal a birth, and fraudulently obtaining property on credit and not having paid for it within four months of bankruptcy, which are misdemeanours by statute; and any attempt to commit a felony of misdemeanour, whether the crime attempted be so by statute or Common Law (Arch. Cr. Pl. 2); any disobedience of a statute Reg. v. Hall 1891, 1 Q.B. 747 : any incitement of another to commit a felony where no such felony is actually committed, Reg. v. Gregory, 1867 L.R. 1 C.C.R. 77; sale of provisions unfit for food R. v. Dizon 1814 3 M. & S. 11 : public nuisances (see NUISANCE) : and very many other offences, which are misdemeanours at Common Law. ‘In the present state of our law we can only define a misdemeanour by saying that every indictable offence which is neither treason nor felony is a misdemeanour’ (Odgers on the Common Law, P. 130).
Similarly to statutory misdemeanours, to which no express punishment is attached, Common Law misdemeanours are punishable by fine or imprisonment, or both with or without hard labour.
Any greater felony includes a less felony, so that, e.g. on an indictment for murder there may be a conviction of manslaughter; but no felony includes a misdemeanour, so that at Common law no person on an indictment for felony could be convicted of a misdemeanour; but various statutory enactments – e.g., the Criminal Procedure Act, 1851 (14 & 15 Vict.c. 100), S. 9, by which a person indicated for any felony may be found not guilty of the felony; but guilty of the attempt to Commit it-have abrogated the Common Law rule. Consult Archbold’s Crim. Plead.”
In the Black’s Law Dictionary by Henry Campbell Black, 5th Edition, “Misdemeanour” is defined as under :
“Misdemeanour/misdemiyner/. Offences lower than felonies and generally those punishable by fine or imprisonment otherwise than in penitentiary. Under federal law, and most state laws, any offence other than a felony is classified as a misdemeanour IS U.S.C.A. 1. Certain states also have various classes of misdemeanours (e.g. Class A, B etc.). See also infraction; Petty offence.” Fraudulently obtaining property is misdemeanour. After obtaining possession, if the same is fraudulently retained it will amount to misdemeanour. The employee covenanted that for not vacating possession of staff quarter when called upon he would be guilty of wrongful restraint. Wrongful restraint of property will amount to misdemeanour.
9. The Corporation under the Provident Fund No. 1 Rules has provided for deduction from the individual member fund account for any loss or damages suffered by it on account of fraud or misdemeanour of a member. Under the Administrative instructions it provided for withholding its contribution towards the fund on the proven misdemeanour of a member. This provision was made to carry out the provision of the Regulation and for exercising effective control over the past employees. The instructions contained in Circulars dated June 20, 1985 and September 4, 1985 were issued in exercise of powers conferred by regulation (4) of the Staff Regulation for securing effective control over the past employees of the Corporation who wilfully retain possession of the immovable property of the Corporation to which they are not entitled to.
10. Section 43(2) of the L.I.C. Act entitled the Central Government to apply certain provisions of the Insurance Act to the Corporation subject to such conditions and modifications as may be specified in the notification by which those provisions have been applied. The Central Government, by notification No. G.S.R. 734 dated August 23, 1958, apart from other sections, applied the provisions of Sections 102 to 106 of the Insurance Act to the Corporation. Section 105 of the Insurance Act deals with wrongfully obtaining or withholding of the property of the insurer by any director, managing agent, manager or other officer or employee of an insurer. This section further says that if any employee having obtained possession of the property of the insurer wrongfully withholds it, the insurer can file a complaint against the guilty person and the Court could give such punishment as is provided thereunder. Section 49(1) of the L.I.C. Act. contains general provisions for framing of regulations by the Corporation which are not inconsistent with the provisions of the Act to give effect to the I provisions of the Act with the previous approval of the Central Government. The regulation can provide for an action akin to the one provided for under Section 105 of the Insurance Act but with lesser penalty. Regulation can provide for retention of Corporation’s contribution towards the provident fund in case the past employee fails to deliver possession of staff quarter on superannuation and when called upon to do so. Till such time the regulations are framed, there is no bar, for the Corporation to issue instructions for the purpose of giving effect to the provisions of the Act. The Act provides for resorting to criminal action against an employee who illegally retains possession of the property of the Corporation. The Corporation could under the instructions provide for lesser penalty than the one contained in Section 105 of the Insurance Act which has been made applicable to the Corporation by Notification dated August 23, 1958. This conclusion of ours draws support from the decision of the Apex Court in V. T. Khanzode v. Reserve Bank of India (1982-I-LLJ-465). In that case the Apex Court was dealing with identical provisions contained in Section 58(1) of the Reserve 2 Bank of India Act as is contained in Section 49 of the L.I.C. Act and it held thus :-
“So long as staff regulations are not framed under Sec. 58(1), it is open to the Central Board to issue administrative circulars regulating the service conditions of the staff, in the exercise of power conferred by Sec. 7(2) of the Act. The power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subject matter on which a rule or regulation can be framed until it is so framed.”
If the Corporation can frame regulations regulating recruitment of employees and their service conditions, it can issue administrative instructions with reference to the same where on any particular aspect these are silent. The regulations are silent in so far as these relate to the misconduct of a past employee for retaining possession of the service quarters after retirement and not surrendering the same when called upon to do so. These administrative instructions are o those within the competence of the Corporation and are issued in exercise of power conferred by Section 49(1) of the Act read with clauses (b) and (bb) of sub-section (2) of Section 49.
11. Now we will deal with the second limb of the argument of the learned Counsel. He submitted that sub-section (1) of Section 33-C of the Act provided that if any money was due to an employee from his employer under an Award or a decision of an Industrial Tribunal, it may be recovered as arrears of land revenue or as a public demand by the appropriate Government on an application made to it by the employee entitled to the said money. Sub-section (2) of Section 33-C took within its purview the benefit under an award or decision of an Industrial Court to which an employee was entitled to receive from the employer and which benefit was capable of being computed in terms of money. It presupposes that the entitlement is already determined and what has to be determined is the benefit which accrues from that entitlement in terms of money. The Labour Court is not competent to determine the question of entitlement under Section 33-C(2). In support of his submission he placed reliance on C. I. W. T. Corpn. v. Workmen and Management of Reserve Bank of India v. Bhopal Singh Panchal (1994-I-LLJ-791). In C.I.W.T. Corporation’s case, the Apex Court laid down that a plaintiff s suit may involve investigation regarding the following matters :- (i) the plaintiff s right to relief; (ii) the corresponding liability of the defendant, including whether the defendant is, at all, liable or not; and (iii) the extent of the defendant’s liability, if any. The Labour Court cannot make adjudication in the nature of determination of (i) and (ii); (iii) is a consequential relief of determination of (i) and (ii). Labour Court could only determine the extent of liability after (i) and (ii) have been determined by the Industrial Court. It would be useful to reproduce paras 12 and 13 of the judgment which read as under :
“It is now well-settled that a proceeding under Section 33-C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit 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. In Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar it was reiterated that proceedings under Section 33-C(2) are analogous to execution proceedings, and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the position of an executing Court. It was also reiterated that the right 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 an Industrial workman and his employer.
13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff’s right to relief, (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant’s liability, if any. The working out of such liability with a view to give relief is generally, regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant’s liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33-C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely ‘incidental’. To call determinations (i) and (ii) ‘incidental’ to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33-C(2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions – say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as ‘incidental’ to its main business of computation. In such cases determinations (i) and (ii) are not ‘incidental’ to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal, (1968-II-LLJ-589) (SC), that a workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an Industrial Dispute which requires a reference under Section 10 of the Act.
To the same effect is the rule of law laid down in the Management of Reserve Bank of India’s case (supra). In that case, the respondent-employee was suspended from service after he was arrested on September 18, 1974 for the offence under Section 302 IPC, under Regulation 46(1) of the Reserve Bank of India (Staff) Regulations, 1948. He was dismissed from service after he was convicted by the Sessions Court on December 13, 1976 and the dismissal took effect from April 28, 1977. The conviction and sentence were set aside on appeal on November 21, 1977. The employee raised an industrial dispute and the Industrial Tribunal, by order dated May 19, 1983 ordered re-instatement with full back wages. The Bank reinstated the employee by order dated August 24, 1983 and treated him as on duty during the period from April 28, 1977 to August 23, 1983 and paid him admissible back wages for that period. The employee moved the Labour Court under Section 33-C(2) of the I.D. Act claiming difference in the amount paid to him as subsistence allowance during the period of suspension from September 18, 1974 till the date of his dismissal, namely April 28, 1977. The claim of the employee was contested but the Labour Court rejected the objection of the Bank and allowed the claim of the employee. The order of the Labour Court was challenged in appeal before the Apex Court. The Apex Court geld that it is for the competent authority to decide whether an employee who has been suspended is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave; that the power under the regulation is wholly vested in the Bank to treat the period of suspension as on duty or on leave or otherwise; that the Labour Court had no jurisdiction to decide the question whether the period of suspension has to be treated as on duty or otherwise. The order of the Labour Court determining the amount payable for the period of suspension was held to be without jurisdiction. The Apex Court observed thus :
“However, since the Bank has already implemented the Award, the only question that falls for our consideration in the present application under Section 33-C(2) of the Act is whether the period from the date of suspension i.e. September 18, 1974 till the order of dismissal, i.e. April 28, 1977 is entitled to be treated as a period on duty with full pay and allowances.
We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstance is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot he saddled with the liability to pay him his salary and allowance for that period. That will be against the principle of ‘no work, no pay’ and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances, the Bank’s power in that behalf is unassailable.
Further, the Labour Court while acting under Section 33-C(2) of the Act had no jurisdiction to decide the said question. Since the Labour Court in the present case took upon itself the task of deciding the said question, it clearly exceeded its jurisdiction. The order of Labour Court is, therefore, liable to be set aside.”
The order of the Labour Court is beyond the purview of Section 33-C(2) of the I.D. Act and is thus without jurisdiction.
12. Learned Counsel for the employee submitted that the executive instructions contained in the Circulars dated June 20, 1985 and September 4, 1985 have not been issued by the Corporation under the Act. He could not substantiate his submission and the same has to be rejected in view of the finding recorded above.
13. Learned Counsel then submitted that the gratuity cannot be withheld by the employer. The submission is irrelevant as gratuity was paid before the Labour Court.
14. Learned Counsel relied upon the following authorities in support of his submission that amount due could be claimed in a petition under 21 Section 33-C(2) of the I.D. Act.
(i) Central Bank of India v. P. S. Rajagopalan (1963-II-LLJ-89) (SC).
(ii) R. Kapur v. Director of Inspection. (1995-I-LLJ-884) (S.C).
(iii) Gujarat Housing Board Engg. Assn. v. State of Gujarat, Administrative Tribunal cases 898, and
(iv) Union of India v. Sudhir Kumar Jaiswal, Administrative Tribunal Cases 651.
(i) The Central Bank of India’s case was dealt with by the Apex Court in C.I.W.T Corporation’s case (supra) and in para 14 of the judgment it was observed thus :
“14. The scope of Section 33-C(2) was illustrated by this Court in Central Bank of India Ltd. v. P. S. Rajagopalan, (supra). Under the Shastri Award, Bank Clerks operating the adding machine were declared to be entitled to a special allowance of Rs. 10/- per month. Four clerks made a claim for computation allowance before the Labour Court. The Bank denied the claim that the clerks came within the category referred to in the award and further contended that the Labour Court under Section 33-C(2) had no jurisdiction to determine whether the clerks, came within that category or not. Rejecting the contention, this Court held that the enquiry as to whether the 4 clerks came within that category was purely ‘incidental’ and necessary to enable the Labour Court to give relief asked for and therefore, the Court had jurisdiction to enquire whether the clerks answered the description of the category mentioned in the Shastri Award, which not only declared the right but also the corresponding liability of the employer Bank. This was purely a case of establishing the identity of the claimants as coming within a distinct category of clerks in default of which it would have been impossible to give relief to anybody failing in the category. When the Award mentioned the category it, as good as, named everyone who was covered by the category and hence the enquiry, which was necessary, became limited only to the Clerks’ identity and did not extend either to a new investigation as to their rights or the Bank’s liability to them. Both the latter had been declared and provided for in the Award and the Labour Court did not have to investigate the same. Essentially, therefore, the say of the Labour Court was in the nature of a function of a court in execution proceedings and hence it was held that the Labour Court had jurisdiction to determine, by an incidental enquiry, whether the 4 clerks came in the category which was entitled to the special allowance.
These observations indicate that the question of entitlement was indisputed and the dispute was regarding establishing the identity of the claimants.
(ii) In R. Kapur’s case, what was urged before the Apex Court was whether the appellant was entitled to interest on the delayed payment of death-cum-retirement gratuity. This question was formulated in para 8 of the judgment and is as under :
“8. In this appeal before us the appellant urges that he would be entitled to 18% interest at least in view of judgment of this Court in State of Kerala and others v. M. Padmanabhan Nair (1985-I-LLJ-530). Relying on this ruling, it is submitted that there is unjustified culpable delay in issuing the No Demand Certificate. The Tribunal having held that D.C.R.G. cannot be withheld because of the pendency of the claim for damages should have awarded interest at the rate of 18% per annum”
and the answer was given in para 11 as under :-
“11. The Tribunal having come to the conclusion that D.C.R.G. cannot be withheld merely because the claim for damages for unauthorised occupation is pending, should in our considered opinion have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard, to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The D.C.R.G. due to the appellant will carry interest at the rate of 18% per annum from June 1, 1986 till the date of payment. Of course this shall be without prejudice to the right of the respondent to recover damages under Fundamental Rule 48A. Thus the Civil appeal is allowed. However, there shall be no order as to costs.”
This judgment is no authority for the proposition canvassed at the Bar.
(iii) In Gujarat Housing Board Engineers Association’s case, the Apex Court was dealing with Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981. Regulation 3, provided for the procedure to be followed for recruitment to the post of Superintending Engineer. The regulation says that the post could be filled either by promotion of employees working as Executive Engineer in the Board’s Higher Services on the basis of seniority-cum-merits, or by calling Executive Engineer on deputation from State Building and Communication Department, or by direct selection from amongst the candidates called for interview. The suitability of the eligible candidates for promotion as Superintending Engineer was not considered as provided under the Regulation. The post was filled by deputation of an officer of the State Government. The action of the Board was sought to be justified on the ground that the State Government had the power to issue directions to the Board. The Apex Court negatived this contention.
(iv) In the Union of India’s case the only question was what should be the cut-off date for determining the eligibility. These judgments have no relevancy to the facts of the instant case.
15. We find no merits in the submission of the learned Counsel for the employee.
16. For the reasons stated above, the Writ Petition succeeds and the following directions are issued.
(i) Order of the Labour Court, in Application No. LCB-3 of 1988, dated June 15, 1989 is set aside.
(ii) The Petitioner/employer is entitled to withhold its contributions to the Provident Fund till such time the employee surrenders vacant possession of the staff quarters under Circular No. Personnel/8/ZD/554 dated June 20, 1985.
(iii) Rs. 50,000 was paid to the employee towards Provident Fund under the orders of this Court. He is directed to restitute the same with interest at the rate of 12% per annum from the date of payment till deposit to the petitioner within two weeks.
(iv) No order as to costs.
(v) Rule is made absolute in the above terms.
