General Manager, Punjab Roadways and Another vs Dyal Singh and Others

N.K. Sodhi, J.—General Manager, Punjab Roadways, Amritsar and the Director. State Transport Punjab, Chandigarh have filed this petition under Article 226 of the Constitution challenging the order of the Labour Court dated July 30, 1991 (Annexure P-1 with the writ petition) passed u/s 33-C(2) of the Industrial Disputes Act, 1947 (for short, the Act) on the ground that the same is without jurisdiction.

Dyal Singh-respondent (hereinafter referred to as the workman) was working as a conductor with Punjab Roadways. Amritsar and was thereafter posted in Nagar Nigam (Municipal Corporation), Amritsar with effect from November 1, 1980. By an order dated March, 28, 1969, one increment of the workman with cumulative effect was stopped by way of punishment. Again by another order passed on April 18, 1978 one more increment of his was stopped with cumulative effect. He filed an application before the Labour Court u/s 33-C(2) of the Act claiming a sum of Rs. 10,000/- as arrears of annual increments from 1969 onwards and another sum of Rs. 2500/- as difference in bonus payable to him. What he alleged was that the aforesaid orders stopping his annual increments were without jurisdiction and, therefore, he was entitled to the annual increments and on that basis to the difference in the bonus as well. The Labour Court accepted the contention of the workman and found that since no regular enquiry was held before those orders were passed, they were, therefore, illegal, void and non est and had to be ignored. The application of the workman was allowed and the management (petitioners herein) were directed to calculate the arrears that were due to him and pay the same. It is this order that is now under challenge in this petition.

I have heard counsel for the parties at length and am of the opinion that the impugned order of the Labour Court cannot be sustained. It is by now well settled that proceedings before a Labour Court u/s 33-C(2) of the Act are in the nature of execution proceedings and before a workman can claim computation of any monetary benefit he has to show that he had a pre-existing right for the enforcement of which he approached the Labour Court. If a question arises as to his any entitlement, the same will of course have to be first adjudicated in appropriate proceedings either u/s 10 of the Act or in any other forum or Court or authority of competent jurisdiction. The scope and ambit of the powers of the Labour Court u/s 33-C(2) of the Act were considered by their Lordships of the Supreme Court in the The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., wherein it ws held as under at Page 97:

"We would, however, like to indicate some of the claims which would not fall u/s 33-C(2), because they formed the subject matter of the appeals which have been grouped together for decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages u/s 33-C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made u/s 33-C(2). If a settlement has been duly reached between the employer and his employees and it falls u/s 18 (2) or (3) of the Act and is governed by Section 19(2), it would not be open to an employee, notwithstanding the said settlement had come to an end. If the settlement exists and continues to be operative, no claim can be made u/s 33-C(2) inconsistent with the said settlement. If the settlement is intended to be terminated, proper steps may have to be taken in that behalf and a dispute that may arise thereafter may be dealt with according to the other procedure prescribed by the Act. Thus, our conclusion is that the scope of Section 33-C(2) is wider than Section 33-C(1) and cannot be wholly assimilated with it, though for obvious reasons, we do not propose to decide or indicate what additional cases would fall u/s 33-C(2) which may not fall u/s 33-C(1). In this connection, we may incidentally state that the observations made by this Court in the case of Punjab National Bank Limited Vs. K. L. Kharbanda, that Section 33-C is a provision in the nature of execution should not be interpreted to mean that the scope of Section 33-C(2) is exactly the same as Section 33-C(1) at P.238."

This matter again came up before the Apex Court in Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, where their Lordships in para 12 of the judgment held as under:

"It is now well-settled that a proceeding u/s 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, of if the workman in 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...."

And again in para 13 as under:

"In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiffs 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 u/s 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 u/s 33-C(2), as in an execution proceeding, it is 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 proceedings 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 u/s 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 Vs. R.L. Khandelwal, that a workman cannot put forward a claim in an application u/s 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 u/s 10 of the Act."

In the present case, it is not disputed that the employer had passed two orders withholding increments of the workman with cumulative effect. The Labour Court could not ignore these orders as void and proceed to compute the arrears that were then due to the workman. The orders withholding the increments had to be challenged in appropriate proceedings either u/s 10(1) of the Act or in any other forum and only after they were set aside that the workman could claim the computation of the arrears from the Labour Court. This not having been done, the impugned orders have to be quashed.

In the result, the writ petition is allowed and the impugned order set aside, leaving the parties to bear their own costs.