Bharat Coking Coal Limited vs Sarasatia Kamin

Heard Mr. Amit Kr. Sinha, counsel appearing on behalf of the petitioner. Nobody appears on behalf of the respondent in spite of valid service of notice.

Present writ petition has been filed for quashing the order dated 08.06.2012 passed in M.J. Case No.07 of 2010, by Presiding Officer, Labour Court, Dhanbad, whereby learned Labour Court has directed the petitioner-Management to pay full back wages to the respondent-employee.

From the pleading, it appears that the respondentworkman was a permanent employee of the petitioner-company. She has retired on 30.06.2007 on the basis of date of birth i.e. 01.07.1947. The workman has approached the authority under Implementation Instruction No.76 which prescribes the methodology for correction of date of birth if there is discrepancies in the records.

The claim of the workman has been referred to the date of birth committee and after examining the entire record, has recommended her date of birth as 04.04.1958 instead of 01.07.1947.

This recommendation has been accepted and she has been allowed to resume her duty on 23.07.2009.

Above recommendation of date of birth committee, has been accepted and thereafter, a settlement was arrived between the parties which has been annexed as Annexure-1. The term of settlement is as follows:-

"TERMS OF SETTLEMENT

That Smt. Sarasatia Kamin, Ex. W/Loader, P. No. 2513869 of Kusunda Area Office will be allowed to resume her duty with immediate effect.

That Smt. Sarasatia Kamin will not be paid only back wages for the idle period and the period of idleness shall be treated as dies-non. However continuity of service shall be maintained for the purpose of payment of Gratuity only.

If that pension amount due for the intervening period shall be deposited by the workman concerned in due course.

That is resolves the dispute in to-to."

After resuming the duty in the year 2009, the workman has approached the Labour Court, Dhanbad under Section 33(C)(2) of the Industrial Disputes Act, 1947 claiming wages for the idle period i.e. from 01.07.2007 to 22.07.2009. The above application has been registered as M.J. Case No. 07 of 2010. The learned Labour Court has formulated three points for determination which are as follows:-

(i)Whether giving retirement to the applicant, in view of notice dt. 19.01.2007 was valid?

(ii)Whether withholding payment of idle period on the ground of no work no pay is justified?

(iii)Whether memorandum of settlement dt. 22.07.2009 is valid document or is creation of undue influence?

The above points have been decided in favour of the workman and the petitioner-BCCL has been directed to make payment of full back wages for the idle period.

Reference may be made to the judgments of the Hon'ble Apex Court reported in 2005 (8) SCC 58 in the case of State of U.P. & Anr. Vs. Brijpal Singh and 2006 (10) SCC 211 in the case of U.P. State Road Transport Corporation Vs. Birendra Bhandari. The argument has been advanced that the Labour Court has been authorised for computation in terms of money for pre-existing right/claim. The jurisdiction conferred upon the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, 1947 is akin to Executing Court. The Labour Court is not authorised to decide any right, claim or dispute between the parties.

From perusal of record, it appears that the workman has retired w.e.f. 30.06.2007 considering her date of birth as 01.07.1947.

Subsequently, on recommendation of date of birth committee, her date of birth has been corrected as 04.04.1958. She has been allowed to resume her duty w.e.f. 23.07.2009. For the idle period, there was a settlement between the parties that no back wages will be payable to her. However, the service will be counted towards gratuity and pension. This settlement can be disputed by the employee by raising industrial dispute but that cannot be a subject matter of a proceeding under Section 33(C)(2) of the Industrial Disputes Act, 1947.

Reference may be made to the judgment of Hon'ble Apex Court, in case of Mayurakshi Cotton Mills & Ors. Vs. Panchra Mayurakshi Cotton Mills Employees' Union & Ors. reported in 2000(3) SCC 446.

In the above judgments, Hon'ble Apex Court has held that any settlement may be subject matter of the Industrial Tribunal.

It is trite that under Section 33(C)(2) of the Industrial Disputes Act, 1947, the Labour Court has been given limited jurisdiction i.e. to convert the claim into money. The Labour Court has been authorised to adjudicate the pre-existing right or claim of the parties on the basis of settlement, award etc.

No dispute where any right or claim has to be adjudicated, can be resolved by the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, 1947.

It is also settled law that any order passed beyond jurisdiction is void ab initio. Jurisdiction is sine qua non for valid and legal order.

In view of above discussion and judicial pronouncement, this Court finds that impugned order dated 08.06.2012 passed in M.J. Case No. 07 of 2010 by Presiding Officer, Labour Court, Dhanbad, is not sustainable being without jurisdiction. Accordingly, the present writ petition is, hereby, allowed.

With above observation and direction, the present writ petition stands allowed.