Ramesh Kumar Jain vs The State Of Madhya Pradesh on 30 September, 2011

Madhya Pradesh High Court
Ramesh Kumar Jain vs The State Of Madhya Pradesh on 30 September, 2011
                                                               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
 

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