W.P. No. 5310.11
Writ Petition No. 5310 of 2011
(Ramesh Kumar Jain v. Jal Sansadhan Vibhag,
Bhopal and another)
30/09/2011
Shri Ashok Shrivastava, learned counsel for
the petitioner.
Heard.
Challenge put forth by petitioner in this
petition under Article 227 of the Constitution of
India is to an order dated 06- 12-2010 passed by
the Labour Court No.2, Bhopal; wherein an
application preferred by petitioner under section
33C(2) of the Industrial Disputes Act, 1947, has
been rejected.
The claim vide said application put forth by
petitioner before the Labour Court was to the tune
of Rs. 14,92,483.59 with interest @ 18% per
annum in respect of medical bills, travelling
allowance bills, monthly wages from 01-03-1984 to
31- 03-1986, city compensatory allowance, an
amount towards zerox copies used during the
departmental enquiry and an amount towards
typing etc. The petitioner also claimed the amount
towards general provident fund from January 1995
to June 1995. The Labour Court rejected the
application on the ground that it is beyond its
jurisdiction to compute the entitlement of the
W.P. No. 5310.11
petitioner and then direct execution thereof.
The question is as to whether the Labour
Court was justified in rejecting the application
filed by petitioner.
Section 33C(2) of the Act of 1947
stipulates-
"33C. Recovery of Money Due from an
Employer.
(2) Where any workman is entitled to receive
from the employer any money or any benefit
which is capable of being computed in terms
of money and if any question arises as to the
amount of money due or as to the amount at
which such benefit should be computed, then
the question may, subject to any rules that
may be made under this Act, be decided by
such Labour Court as may be specified in
this behalf by the appropriate Government
within a period not exceeding three months.
Provided that where the presiding
officer of a Labour Court considers it
necessary or expedient so to do, he may, for
reasons to be recorded in writing, extend
such period by such further period as he may
think fit."
In Municipal Corporation of Delhi v. Ganesh
Rajak: (1995) 1 SCC 235; it has been observed in
paragraph 12 :-
"12- .......It is only when the
entitlement has been earlier
adju dica ted or recognized by the
employer and thereafter for the
purpose of implementation or
enforcement thereof some ambiguity
requires interpretation that the
interpretation is treated as incidental
W.P. No. 5310.11
to the Labour Court's power under
Section 33C( 2) like that of the
Executing Court's power to interpret
the decree for the purpose of its
execution."
In State of Uttar Pradesh & another v.Brijpal
Singh (2005) 8 SCC 58 it is observed :-
" 10. It is well settled that the workman can
proceed under Section 33C(2) only after the
Tribunal has adjudicated on a complaint
under Section 33A 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 Pvt.
Ltd. Vs. Suresh Chand, (1978) 2 SCC 144
held that a proceeding under Section 33C(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 33C(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. "
W.P. No. 5310.11
In Krishnan and another v. Special Officer,
Vellore Cooperative Sugar Mill and another :
(2008) 7 SCC 22; it is observed : -
"12. ..................The fact that proceedings
under Section 33C(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.
13. We are of the opinion that the
reference to Municipal Corporation’s case
(supra) is completely misplaced as in that
matter, the fact that different categories of
workers were doing identical kind of work
was virtually admitted but different scales of
pay were nevertheless being paid to them. It
is also relevant that oral evidence had been
adduced by the workmen to supplement the
documentary evidence and it was in that
situation that the Court felt that an
application under section 33C(2 ) was
maintainable.”
In the case at hand, admittedly, there is no
prior adjudication of the right of the petitioner in
respect of the claim he had put forth before the
W.P. No. 5310.11
Labour Court. The petitioner in order to maintain
an application under section 33C(2) has to first
get his entitlement adjudicate, then only an
application under section 33C(2) of the Industrial
Disputes Act, 1947, is tenable.
In view of above we are of the considered
opinion that the Labour Court was justified in its
approach in rejecting the application filed by the
petitioner as in absence of any award or
settlement ignoring the pre-existing right of the
petitioner, the same could not have been allowed.
In the result petition fails and is hereby
dismissed.
(SANJAY YADAV) (T.K.KAUSHAL)
JUDGE JUDGE
SC