Eastern Coalfields Limited vs Basanti Mukherjee And Ors

Heard Mr. Rajesh Lala, learned counsel for the petitioner, Mr. Atanu Banerjee, learned counsel for respondent nos. 1, 2 and 3 and Mr. Prashant

Vidyarthy, learned counsel for respondent no.5.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard on merit.

Nobody appeared on behalf of respondent no.4

The petitioner has preferred this writ petition for quashing the order/judgment dated 11.06.2008 passed by the Presiding Officer, Labour Court,

Dhanbad in M.J. Case No. 24 of 2004.

The case of the petitioner is that respondent nos. 1 to 4 were the employees of the petitioner-Eastern Coalfields Limited. The said employees

superannuated from the petitioner-company at different time. Respondent nos. 1 to 4 claimed that they were members of C.M.P.F. and they were

entitled to get pension as per the Scheme. Since 2% of the amounts from their salary were deducted on account of pension by the petitioner-company

and the same was deposited with respondent no.5, respondent nos. 1 to 4 are entitled to get the pension. It was claimed by respondent nos. 1 to 4 that

after their retirement, neither the Scheme was implemented nor 2% deduction was refunded by the petitioner and respondent no.5. Respondent nos. 1

to 4 had filed an application being M.J. Case No. 24 of 2004 before the Labour Court, Dhanbad under Section 33 (C) (2) of the Industrial Disputes

Act, 1947 (for the sake of brevity hereinafter to be referred to as the Act, 1947) for recovery of their dues, which was allowed by the Presiding

Officer, Labour Court, Dhanbad vide order/judgment dated 11.06.2008 and directed the petitioner-company to make payment to respondent nos. 1 to

Being aggrieved with the order/judgment dated 11.06.2008 passed by the Presiding Officer, Labour Court, Dhanbad, the petitioner has filed this writ

petition.

Mr. Rajesh Lala, learned counsel for the petitioner submitted that the deducted amounts have been deposited with respondent no.5, which is well

known to respondent nos. 1 to 4 and the petitioner-company has no concern with the same. Respondent no. 3 (Satish Mahato) and original respondent

no. 4 (Kisto Bouri) have claimed their dues from April 1989 to June 1999 and April 1989 to March 2000 respectively, which are not admissible

because respondent no.3 has taken GHS Scheme on 22.03.1999 and original respondent no.4 had already superannuated on 14.09.1998. The CMPF

accumulations have already been paid to them, but since they opted for CMPS (Coal Mines Pension Scheme-98), they are entitled to pension as per

the Scheme and, therefore, they were advised to submit claim for this. He further submitted that original respondent no.1 (Sunil Kumar Mukherjee)

had submitted his claim for pension payment and the Commissioner, C.M.P.F. had advised him to deposit the amount of Rs.57,000/- for the period

1971 to 1998 as he was not a member of family pension and deduction has been made for this account from him. He further submitted that the claim

under Section 33 (C) (2) of the Act, 1947 is not maintainable. He also submitted that the deducted amount has already been provided to the C.M.P.F.

Thus, no liability is on the petitioner. He further submitted that only the admitted dues or the amount arising out of any award can be claimed under

Section 33 (C) (2) of the Act, 1947. He further submitted that disputed question of fact cannot be decided under Section 33 (C) (2) of the Act, 1947.

To substantiate his argument, learned counsel for the petitioner relied upon the judgment rendered by the Hon’ble Supreme Court in the case of

Central Inland Water Transport Corporation Limited v. Workmen, reported in (1974) 4 SCC 696.

Paragraph 12 of the said judgment is quoted herein below:

“12. 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. Rameshwar 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.â€​

Mr. Rajesh Lala, learned counsel for the petitioner further relied upon the judgment rendered by the Hon’ble Supreme Court in the case ofM /s

Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand, reported in (1978) 2 SCC 144.

Paragraph 3 of the said judgment is quoted herein below:

“3. The Labour Court rejected the contention of the appellant and held that since a reference in regard to an industrial dispute between the

appellant and its workmen was pending before the Industrial Tribunal, it was not competent to the appellant to pass an order of dismissal against the

first respondent unless the action so taken was approved by the Industrial Tribunal under Section 33(2)(b), and consequently, the appellant having

withdrawn the application for approval under Section 33(2)(b) and the approval of the Industrial Tribunal to the order of dismissal not having been

obtained, the order of dismissal was ineffective and the Labour Court had jurisdiction to entertain the application of the first respondent under Section

33-C(2) and to direct the appellant to pay the arrears of wages to the first respondent. The Labour Court accordingly allowed the application of the

first respondent and directed the appellant to pay an aggregate sum of Rs 6485.48 to the first respondent on account of arrears of wages up to

September 30, 1976. Similarly and on identical facts, the Labour Court also allowed the application of another workman and directed the appellant to

pay to him a sum of Rs 6262.80 in respect of arrears of wages up to the same date. The appellant thereupon preferred Civil Appeal Nos. 1375 and

1384 of 1977 after obtaining special leave from this Court.â€​

Mr. Rajesh Lala, learned counsel for the petitioner further relied upon the judgment rendered by the Hon’ble Supreme Court in the case of

Municipal Corporation of Delhi v. Ganesh Razak, reported in (1995) 1 SCC 235.

Paragraph 12 of the said judgment is quoted herein below:

“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 workmen’s 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 Court’s power under Section 33-C(2) like that of the Executing

Court’s power to interpret the decree for the purpose of its execution.â€​

Mr. Atanu Banerjee, learned counsel for respondent nos. 1 to 3 submitted that the amount in question has already been deducted from the salary

of respondent nos. 1 to 3. He further submitted that in view of Exhibits. A-1, A-3 & A-4, which are the original pay slips of respondent nos. 1 to 3,

deduction of 2% wages from their salaries was proved. A.W.1, A.W.2, and A.W.3 have deposed that at the time of their retirement, Rs.57,000/- was

demanded by the Management so that the requirement for regular payment of pension could be fulfilled, but the amount was not deposited by the

employees. He further submitted that the claim application had been submitted before the petitioner-company and all irregularities were committed by

the petitioner-company. Admittedly, the deductions were made by the petitioner-company and in that view of the matter, respondent nos. 1, 2 and 3

are entitled to receive the dues from the petitioner-company. He further submitted that the objection of non-maintainability of the application filed by

respondent nos. 1, 2 and 3 under Section 33 (C) (2) of the Act, 1947 was not taken before the Labour Court. He also submitted that in the writ

jurisdiction, by which, the petitioner is raising non-maintainability of application under Section 33 (C) (2) of the Act, 1947, is not available to the

petitioner.

Mr. Prashant Vidyarthy, learned counsel for respondent no.5 submitted that the claim papers, submitted by the petitioner-company, were returned

due to certain discrepancies as reflected in the letter dated 12.06.2003 for resubmission. He further submitted that it is evident from the letter dated

24.07.2007, issued by the Personnel Manager, Eastern Coalfields Limited, Mugma Area that the claims had not been submitted. He also submitted

that the amount in question has not been received. CMPS-98 is a social security scheme. He further submitted that a beneficiary is allowed pension as

per the provisions under the scheme depending on the nature of cessation of service irrespective of meager contribution made by the member. The

scheme is guided under different provisions for post retrial livelihood. Respondent nos. 1, 2 and 3 have opted to join pension scheme. He further

submitted that the Management has deducted some contributions after receiving their option to join the scheme from their salary. Moreover, the

employees were required to deposit the rest contributions i.e. from March 1971 to the date of option, which they have not done. He further submitted

that any amount deducted by the employer on account of PF or pension is deposited directly at C.M.P.F. account, which is a deposit account only and

withdrawal from that account for disbursement of excess/erroneous contributions, if any, is not allowed. The operation of the said account is also not

under control of respondent no.5. The employer could have asked the banker i.e. SBI, Dhanbad for reversal of credit or adjust the same in

subsequent. He further submitted that respondent nos. 1, 2 and 3 have opted to join pension scheme and given undertaking to deposit the contribution,

but later they have changed their mind. He also submitted that the CMPS-98 does not have any provisions to withdraw the option once exercised in

affirmative or in negative in PS-1. He further submitted that the employees could not have approached their employer on time with a request not to

deduct the pension contributions or not to forward the PS-1 to the office of C.M.P.F. to avoid such complications.

In view of the above facts and having gone through the submission of the learned counsel for the parties, the only question needs to be answered

by this Court as to whether the application under Section 33 (C) (2) of the Act, 1947 was maintainable before the Labour Court or not and even

assuming that if the respondents were not inclined to deposit further amount of Rs.57,000/-, whether the amount which has already been deposited can

be forfeited for any reason by the petitioner and respondent no.5.

For convenience, the provisions of Sub-sections (1) and (2) of Section 33 (C) of the Act, 1947 are reproduced below:

“33-C. Recovery of money due from an employer-(1) Where any money is due to a workman from an employer under a settlement or any award

or under the provisions of [Chapter V-A or Chapter V-B], the workman himself or any other person ahthorised by him in writing in this behalf, or, in

the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the

appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall

issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.

(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:]â€​

The language of Sub-section (2) of Section 33 (C) is perfectly clear in laying down that the computation in terms of money of the benefit claimed by a

workman is to be made by such Labour Court as may be specified in this behalf by the appropriate Government. The language of Section 33 (C) (2)

itself makes it clear that the appropriate Government has to specify the Labour Court which is to discharge the functions under this Sub-section.

Section 33 (C) (1) provides for a kind of execution proceedings and it contemplates that if money is due to a workman under a settlement or an award,

or under the provisions of Chapter V-A, the workman is not compelled to take resort to the ordinary course of execution in the civil court, but may

adopt a summary procedure prescribed by this Sub-section. This Sub-section postulates that a specific amount is due to the workman and the same

has not been paid to him. The scope and effect of Section 33 (C) (1) are not in dispute. There is also no dispute that the word “benefit†used in

Section 33(C) (2) is not confined merely to non-monetary benefit, which could be converted in terms of money, but that it takes in all kinds of benefits

which may be monetary as well as non-monetary if the workman is entitled to them and in such a case, the workman is given the remedy of moving

the appropriate Labour Court under Section 33 (C) (2) for claim.

It is an admitted fact that no evidence was adduced on behalf of the petitioner and respondent no.5 before the Labour Court to substantiate their

case. However, respondent nos. 1, 2 and 3 have deposed before the Labour Court that the deductions were made by the petitioner under the Coal

Mines Pension Scheme. The original pay slips exhibited at Exhibits A-1, A-3 and A-4 proved deduction of 2% wages from their salaries. They have

also deposed that at the time of their retirement, Rs.57,000/- was demanded by the Management, but they have not been able to fulfil that demand.

Respondent no.5- the Regional Commissioner, C.M.P.F. has stated before the Labour Court in his written statement that the amount in question was

deducted by the petitioner herein. Considering all these aspects, the Labour Court came to the conclusion that the amount in question has been

deducted by the petitioner herein. No evidence was adduced by the petitioner and respondent no.5 against the claimed deducted amounts and,

therefore, the amounts to the tune of Rs.60,360/-, Rs.47,360/-, Rs,49,240/- and Rs.49,240/- were allowed in favour of respondent nos. 1 to 4

respectively by the Labour Court and directed to pay the same within 45 days of the order. Thus, in view of no evidence laid by the petitioner and

respondent no.5 and exhibits such as original pay slips, it is clear that the amount in question has been deducted from the salaries of respondent nos. 1

to 4 and this fact has not been controverted either by the petitioner and respondent no.5. Thus, the amount in question is admitted. The Labour Court

has rightly directed for refund of the amount. Even for the sake of argument, if it is assumed that respondent nos. 1 to 4 have opted for Scheme as

contended by the petitioner and respondent no.5 and they have not been able to pay the sum of Rs.57,000/-, the amount which has been deducted

from their salaries cannot be allowed to be forfeited by the petitioner and respondent no.5. The Labour Court has rightly directed the petitioner to pay

the amount in question.

The grounds of non-applicability of Section 33 (C) (2) of the Act, 1947 has not been taken before the Labour court by the petitioner and

respondent no.5 and the same is not available to them before the writ jurisdiction under Article 226 of the Constitution of India. The Court has also to

look into the limits of the jurisdiction of the High Court in issuing a writ of certiorari under Article 226 of the Constitution of India. A writ of certiorari

can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts

or tribunals without jurisdiction, or are in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise

of jurisdiction conferred on it, the court or tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be

heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is

no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate

court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence, cannot

be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an

error of fact, however grave it may appear to be. Reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court

in the case of Sawarn Singh v. State of Punjab, reported in (1976) 2 SCC 868.

Paragraphs 12 and 13 of the said judgment are quoted herein below:

“12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the

High Court in writ proceedings under Article 226. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction

committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from

appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court. As was pointed out by this

Court in Syed Yakoob case, “this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the

appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be

corrected by a writ, but not an error of fact, however grave it may appear to be.â€​

In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has

acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all,

because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or

tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the

exercise of their jurisdiction causing grave miscarriage of justice.â€​

The argument of learned counsel for the petitioner about non-maintainability of application filed by respondent nos. 1 to 4 before the Labour Court,

Dhanbad is not applicable to the facts of the present case because admittedly, the respondent-workmen claim to pay the amounts deducted @ 2% of

their salaries as the regular workers, which is an admitted fact and there were no occasion to get it settled by adjudication as deduction is not in

dispute. Since the deduction is not disputed, the amounts in question are fit for computation under Section 33 (C) (2) of the Act, 1947 and,

consequently, the application preferred by the workmen under Section 33 (C) (2) of the Act, 1947 were maintainable.

An ‘existing’ right has been created in favour of the respondent nos. 1 to 4 as 2% amount has been deducted as proved by exhibits by way

of salary slips before the Labour Court. A claim based on a right which is derived under a contract of employment is indeed a claim which is

enforceable under Section 33 (C) (2) of the Act, 1947 even when the right is disputed. The amount in question has been deducted from the salaries of

respondent nos. 1 to 4 and this fact has not been controverted either by the petitioner or respondent no.5. Thus, the amount in question is admitted.

The judgment of Hon’ble Supreme Court in the case of Central Inland Water Transport Corporation Limited v. Workmen (supra), relied by

the learned counsel for the petitioner says that the Labour Court under Section 33 (C) (2) of the Act, 1947 calculates the amount of money due to a

workman from his employer. Thus, the judgment relied by the learned counsel for the petitioner is helping the respondents to a great extent as the

deduction of 2% is not in dispute.

The case of M/s Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand (supra), relied by the learned counsel for the petitioner is on different

footing as there were earlier reference for dispute and for that permission was required under Section 33 (2) (b) of the Act, 1947 for approval. Here

in the case in hand, there were no earlier dispute.

The case of Municipal Corporation of Delhi v. Ganesh Razak (supra), relied by the learned counsel for the petitioner is not applicable as in the

case in hand, entitlement is incidental to the benefit claimed as the deduction is not disputed.

The original pay slips exhibited as discussed supra proved deduction of 2% wages from their salaries. The petitioner has not led any evidence

before the Labour Court. Moreover, very meagre amounts are required to be paid to the workmen. The scope of writ of certiorari has already been

discussed herein above.

In light of the above discussions, there is no apparent error in the order of the Labour Court. No evidence was adduced by the petitioner and

respondent no.5 before the Labour Court. The original pay slips clearly suggest that the amount in question has been deducted. The deducted amount

is required to be refunded to respondent nos. 1 to 4 and the same cannot be allowed to be forfeited by the petitioner on any ground, whatsoever.

As a cumulative effect of the aforesaid facts and judicial pronouncement, the Court finds that there is no merit in this writ petition and, accordingly,

the same stands dismissed.