K. Thinakaran and Others vs The Presiding Officer, Labour Court, The Management, Tuticorin Stevedores Association and Tuticorin Port Trust

A. Kulasekaran, J.—The prayer in the writ petitions is for issuance of writ of certiorarified mandamus, after calling for the concerned

records from the file of the first respondent / Labour Court pertaining to the proceedings in C.P. No. 155 of 1992 (in W.P. No. 10832 of 1996)

and C.P. No. 135 of 1992 (in W.P. No. 10833 of 1996), quash the order dated 8.12.1994 and consequently direct the second respondent to

pay the amounts as claimed in the Claim Petitions filed by the petitioners together with interest at the rate of 12% per annum calculated from the

date of claim till the date of payment and award costs.

The petitioners herein were working in the second respondent/Management. A settlement u/s 12(3) of the Industrial Disputes Act was reached

before the Assistant Labour Commissioner (Central) on 8.6.1983 between the second respondent/Management and various Trade Unions

representing the employees, including the Union of the petitioners. The settlement was related to the introduction of incentive scheme for cargo

handling operation in the Tuticorin Port. As per Clause 15 of the said settlement, incentive earnings for each workers should be calculated as per

the stipulations and calculations had to be made on the basis of the least basic wages of a shore worker. Another settlement dated 11.4.1984 was

arrived at between the Government of India represented by Ministry of Shipping and Transport and four major Trade Union Federations of the

Port and Dock Workers, which was regarding the wage revision of the workers. According to the petitioners, the wages as fixed by the settlement

was also implemented in respect of the employees of the second respondent also. However, the settlement relating to incentive earnings was not

taken into account, though Clause 23 of the settlement dated 11.4.1984 provides categorically.

One other settlement dated 12.6.1989 was arrived between the Management and the Unions representing the Port and Dock Workers

regarding the issue of wage revision and liberalisation of terms and conditions of employment. It is stated that the second respondent/Management

denied their right accrued under the settlements. The petitioners filed claim petitions before the Labour Court at Madurai u/s 33-C(2) of the

Industrial Disputes Act, which was later transferred to Labour Court, Tirunelveli along with other similar claim petition of other Union and re-

numbered as C.P. Nos. 155 of 1992 and 135 of 1992.

The Labour Court tried both the claim petitions together and passed a common order stating that dispute between the workmen and the

employer in regard to the interpretation of any provisions of the award or settlement can be resolved only by following the procedure prescribed

u/s 36-A of the Industrial Disputes Act by way of reference to the Tribunal.

Learned counsel for the petitioners Mr. Hariparanthaman brought to the notice of this Court the judgment of the Supreme Court reported in The

Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., , wherein, it is held as follows:

It is however, urged that in dealing with the question about the existence of a right set up by the workman, the labour court would necessarily have

to interpret the award or settlement on which the right is based, and that cannot be within its jurisdiction under S. 33C(2), because interpretations

of awards or settlements have been specifically and expressly provided for by S. 36A. We have already noticed that S. 36A has also been added

by the Amending Act 36 of 1956 along with S. 33C, and the appellant''s argument is that the legislature introduced the two sections together and

thereby indicated that questions of interpretation fall within S. 36A and, therefore, outside S. 33C(2). There is no force in this contention. Section

36A merely provides for the interpretation of any provision of an award or settlement where any difficulty or doubt arises as to the said

interpretation. Generally, this power is invoked when the employer and his employees are not agreed as to the interpretation of any award or

settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement.

Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such

cases that S. 36A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience

showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their

doubts or difficulties resolved and that remedy is now provided by S. 36A. But the scope of S. 36A is different from the scope of S. 33C(2),

because S. 36A is not concerned with the implementation or execution of the award at all, whereas that is the sole purpose of S. 33C(2). Whereas

S. 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, S. 36A deals merely with a question of

interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is

satisfied that the dispute deserves to be resolved by reference under S. 36A.

Besides, there can be no doubt that when the labour court is given the power to allow an individual workman to execute or implement his existing

individual rights, it is virtually exercising execution powers in some cases, and it is well-settled that it is open to the executing Court to interpret the

decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from

the provisions of the decree. These limitations apply also to the labour court; but like the executing Court, the labour court would also be

competent to interpret the award or settlement on which a workman bases his claim under S. 33C(2). Therefore, we feel no difficulty in holding

that for the purpose of making the necessary determination under S. 33C(2), it would, in appropriate cases, be open to the labour court to

interpret the award or settlement on which the workman''s right rests.

The abovesaid judgment of the Supreme Court was followed by the Supreme Court in the decision reported in Municipal Corporation of Delhi

Vs. Ganesh Razak and Another, , wherein the Supreme Court held as follows:

Reference may be made first to the Constitution Bench decision in The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., on which Shri Rao

placed heavy reliance. That was a case in which the question of maintainability of proceedings u/s 33-C(2) of the Act was considered in a claim

made by the workmen on the basis of the Sastry Award. The employer disputed the claim of the workmen on several grounds including the

applicability of Section 33-C(2) of the Act. It was urged that since the applications involved a question of interpretation of the Sastry Award, they

were outside the purview of Section 33-C(2) because interpretation of awards or settlements has been expressly provided for by Section 36A.

This objection was rejected. This Court pointed out the difference in the scope of Section 36A and Section 33-C(2) indicating that the distinction

lies in the fact that Section 36-A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section

33-C(2); and whereas Section 33-C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36-

A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the

appropriate Government is satisfied that the dispute deserves to be resolved by reference u/s 36-A. In this context, this Court also indicated that

the power of the Labour Court in a proceeding u/s 33-C(2) being akin to that of the Executing Court, the Labour Court is competent to interpret

the award or settlement on which a workman bases his claim u/s 33-C(2), like the power of the Executing Court to interpret the decree for the

purpose of execution. Relevant extract from that decision is as under: (SCR pp. 154-155).

Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his

existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to

interpret the decree for the purpose of execution. It is, of course, true that the Executing Court cannot go behind the decree, nor can it add to or

subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the Executing Court, the Labour Court would

also be competent to interpret the award or settlement on which a workman bases his claim u/s 33-C(2). Therefore, we feel no difficulty in holding

that for the purpose of making the necessary determination u/s 33-C(2), it would, in appropriate cases, be open to the Labour Court to interpret

the award or settlement on which the workman''s right rests.

This decision itself indicates that the power of the Labour Court u/s 33-C(2) extends to interpretation of the award or settlement on which the

workman''s right rests, like the Executing Court''s power to interpret the decree for the purpose of execution, where the basis of the claim is

referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no

prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for

the respondents.

It is seen from the abovesaid judgments that u/s 33-C(2), the Labour Court is vested with the jurisdiction to interpret the award or the

settlement on which the claim is based, but it failed.

Hence, the order of the Labour Court dismissing the claim petitions as not maintainable u/s 33-C(2), is set aside. The matters are remanded

back to the Labour Court for fresh consideration. The Labour Court is directed to pass orders within a period of three months from the date of

receipt of a copy of this order.

With the above observations, the writ petitions are disposed of. No costs.