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Judgment
Order dated 05.11.2008 rendered in Recovery Application No. 509 of 2007 by the Labour Court, Jamnagar allowing the recovery of two increments due to the workman, under Section 33C(2) of the Industrial Disputes Act, 1947 ( for short 'I.D.Act') is sought to be assailed in this petition under Article 227 of Constitution of India.
Though served the respondent workman has not appeared.
On consideration of the submissions made by the learned counsel for the petitioner and perusal of the record, more particularly the impugned award, it transpires that the respondentworkman had already retired on 30.04.1996 before making an application under the above provision in the year 1997. As is evident from Section 2 (s) of the I.D. Act the term 'workman' comprehends (1) the person in employment or (2) the person dismissed, discharged or retrenched in connection whereof the dispute is raised. Superannuated workman is not comprehended within the expression 'workman'. That apart the workman had ample opportunity to challenge the punishment of stoppage of two increments imposed upon him during the subsistence of the relation between the petitioner and him as that of employer and workman. That order was never challenged then; it was thus accepted and also implemented. The punishment was thus not live when jurisdiction under section 33C(2) of the I.D. Act was invoked after the date of superannuation. In the opinion of this court, application under Section 33C(2) of the I.D.Act was not maintainable in absence of the relation between the petitioner and the workman as indicated above. Moreover it appears that the recovery of two increments sought after more than 22 years of such stoppage i.e. 25.11.1974 without any explanation was a stale claim.
However this court is not impressed by the arguments advanced by the learned counsel for the petitioner that the jurisdictional forum under Industrial Disputes Act, 1947 more particularly Section 33C(2) of the I.D. Act would have no jurisdiction to examine prima facie whether the order or action of the employer depriving the workman of certain benefits, was permissible under the relevant rules, regulations or standing orders. There can be no dispute on the proposition of law indicated in U.P. State Road Transport Corporation vs. Birendra Bhandari - (2006) 10 SCC 211, D. Krishnan and Another vs. Special Officer, Vellore Cooperative Sugar Mill and another (2008) 7 SCC 22 and Nagar Council, Kapurthala vs. Davinder Kumar and Others (2012) 10 SCC 280; relied upon by the learned counsel for the petitioner. The question is whether in a case where the employer is unable to justify denial of such entitlements of the workman, the judicial forum under section 33C(2) of the I.D.Act would have no jurisdiction to compute such denied benefits for the workman. There is a marked difference between the bonafide action/inaction capable of giving rise to a dispute requiring adjudication and the actions/inactions unsupported by base. In other words if the action of the employer is based upon some legal or factual basis, the forum contemplated under section 33C(2) would have no jurisdiction to adjudicate such basis, but if such basis is totally lacking or apparently camouflaged as the basis but doesn't exist in fact or law, the forum (supra) would be justified in exercising powers under Section 33C(2) of the I.D. Act to compute the entitlement of the workman. It would be unreasonable to ask the workman to raise industrial dispute in relation to baseless actions or inactions of an employer. Acceptance of such stand of the employer would defeat the very object of Section 33C(2) of the I.D.Act. In the instant case, it appears that for his misconduct, the workman was already punished and for subsequent misconduct of unauthorized absence, he was deprived of two increments without any legal procedure. Thus in absence of basis for deprivation of such increments, jurisdiction under Section 33C(2) was justifiably exercised and no error is found in the impugned award so as to require interference of this court under Article 227 of Constitution of India. However for the reasons recorded in para 4(supra), impugned judgement and award is not sustainable. It deserves to be quashed and set aside. Accordingly ordered. Rule is accordingly made absolute.