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Judgment
M. Jaichandren, J.—This writ petition has been filed praying for a writ of Certiorarifed Mandamus to call for and quash the order of the first
respondent labour Court, dated 5.12.2005, made in C.P. No. 590 of 2001.
The petitioner has stated that he had joined in the service of the second respondent company, on 15.11.1977, as a Press Assistant. Thereafter,
having served in various posts, he was promoted as a Section Head (Press) and his scale of pay had been fixed as per the Bhatchawad Award
and in accordance with the Working Journalists and Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, 1955.
Thereafter, the petitioner''s salary had been revised, as per the terms and conditions prescribed by the wage board.
It has also been stated that, after the petitioner had attained superannuation, on his attaining the age of 58 years, his service had been extended
by the second respondent, from 1.4.1998 to 31.3.2000. During the period of his extended service, the petitioner had submitted his request for
voluntary retirement from service, on medical grounds. The second respondent, instead of accepting the request of the petitioner for voluntary
retirement, had accepted the request as though it was a request for resignation, without giving an opportunity of hearing to the petitioner.
It has also been stated that the second respondent had failed to pay the overtime wages, festival incentives and other monetary benefits, that the
petitioner is entitled to. Therefore, the petitioner was constrained to raise a dispute before the Conciliation Officer, on 11.4.2001. The Conciliation
Officer had directed the petitioner to approach the labour Court, u/s 33C(2) of the Industrial Disputes Act, 1947. Accordingly, the petitioner had
filed a petition before the first respondent labour Court, in C.P. No. 590 of 2001.
The main contentions raised on behalf of the second respondent Management are that the petitioner was not a ''workman'', as he was employed
in a Supervisory capacity and that he was drawing wages in excess of Rs. 1,600/-, per month. Further, the petitioner is not entitled to raise an
industrial dispute, as the petitioner had not been dismissed, discharged, retrenched or otherwise terminated from service. In fact, he had resigned
from his service, voluntarily and his accounts had been fully and finally settled.
It has been further stated that the first respondent labour Court had, erroneously, come to the conclusion, without going into the merits of the
case, that the petitioner cannot claim the benefits, as prayed for by him, in the absence of pre-existing rights, either under an award or settlement
and therefore, a petition, u/s 33C(2) of the Industrial Disputes Act, 1947, is not maintainable. The first respondent labour Court had also erred in
coming to the conclusion that the question as to whether the petitioner is a ''workman'' or not could be decided only by a labour Court in an
industrial dispute raised before it.
It has also been stated that the first respondent labour Court had, erroneously, come to the conclusion that the petitioner is not entitled to the
reliefs sought for by him, without properly appreciating the evidence on record.
In the counter affidavit filed on behalf of the second respondent Company, the averments and allegations made by the petitioner have been
denied. It has been stated that the first respondent had rightly rejected the various claims made by the petitioner, u/s 33C(2) of the Industrial
Disputes Act, 1947. The petitioner, having been employed as a Section Head, in a Supervisory capacity, cannot be said to be a ''workman'', under
the provisions of the Industrial Disputes Act, 1947. Since, the petitioner had resigned from his service, voluntarily, he cannot claim the reliefs, as
though he had been dismissed, discharged, or retrenched from the service of the second respondent Company. The petitioner had not established
any pre-existing right in order to maintain the petition, u/s 33C(2) of the Industrial Disputes Act, 1947.
It has also been stated that the petitioner having received all the amounts due to him, fully and finally, at the time of his retirement, on completion
of 58 years of age, cannot maintain his claim, regarding the payment of overtime wages and other monetary benefits, from the year. 1978, that too,
belatedly. Since, the petitioner had resigned from his service, voluntarily, he cannot be entitle to the benefits, which he is claiming.
It had also been stated that there was no scheme for voluntary retirement available for the employees of the second respondent Company. It
had also been stated that no document had been produced by the petitioner for claiming overtime wages.
The learned Counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
1) Desikachari v. The ""MAIL"" 1961 II LLJ 771.
2) Ramakrishna v. State of Maharashtra 1975 Lab. I.C. 1561.
3) Bhawsar Home Furnishers and Decorators Vs. Dattaram Pandurang Mistri and Others, .
However, this Court does not find the above decisions to be directly relevant for the purpose of deciding the issues involved in the present case.
The learned Counsel appearing for the petitioner had submitted that, since the petitioner''s service had been extended by the second
respondent Management, there was no question of the petitioner attaining superannuation before he had completed 58 years of age. When the
petitioner had submitted a request for voluntary retirement from service, it is improper for the second respondent Management to accept the
request, as though it was a request for resignation from service. The act of the second respondent Management in treating the request of the
petitioner, as resignation from service, would amount to retrenchment of the petitioner, as per Section 2(oo) of the Industrial Disputes Act, 1947.
It has also been submitted that the petitioner is entitled to claim overtime wages under the provisions of the Factories Act, 1948. The first
respondent labour Court had erred in asking the petitioner to raise a dispute before the labour Court, to establish the fact that he is a workman, as
per Section 2(s) of the Industrial Disputes Act, 1947. In fact, the first respondent labour Court could have decided the issue, collaterally. There
was a pre-existing right to claim overtime wages, from the year, 1978, as per the provisions of the Factories Act, 1948. Since, the second
respondent Management had not been in a position to show that overtime wages had been paid to the petitioner, the first respondent labour Court
ought to have held that the petitioner was entitled to such wages. Therefore, the order of the first respondent labour Court, dated 5.12.2005, is to
be set aside and the matter is to be remitted back to the first respondent to render a clear finding, with regard to the reliefs sought for by the
petitioner.
Per contra, the learned Counsel appearing on behalf of the second respondent had submitted that the petitioner had never claimed overtime
wages during his service, nor had he raised the issue at the time of his retirement from service, on his completion of 58 years of age. The petitioner
cannot raise the issue, regarding payment of overtime wages, belatedly, after more than 2 decades, after he had joined in service. The petitioner
cannot invoke Section 33C(2) of the Industrial Disputes Act, 1947, to claim the relief, as he was not a workman coming under the definition of
2(s) of the Industrial Disputes Act, 1947. Further, the petitioner cannot be said to be entitled to receive the overtime wages and other monetary
benefits, as there was no settlement or award or pre-existing right to make such a claim.
It has also been stated that the second respondent Management had not prescribed the manner and methodology for his employees to perform
overtime work, as per the relevant provisions of the Factories Act, 1948. The petitioner had not produced even a single document to show that he
is entitled to the overtime wages, as claimed by him. There was not even a whisper from the petitioner from the year, 1978, claiming overtime
wages. Since, the petitioner had not established that he had a pre-existing right, his claims cannot be considered. Further, the first respondent
labour Court had given a clear and adequate reasons for rejecting the claims made by the petitioner. In such circumstances, the writ petition filed
by the petitioner is liable to be dismissed, as being devoid of merits.
The learned Counsel for the second respondent had relied on the following decisions in support of his contentions.
16.1. In Municipal Corporation of Delhi Vs. Ganesh Razak and Another, , the Supreme Court had held as follows:
It is clear that there has been no earlier adjudication by any forum of the claim of these workmen of their entitlement to be paid wages at the
same rate at which the regular workmen of the establishment are being paid and there is no award or settlement to that effect. In short, this claim of
the workmen has neither been adjudicated nor recognised by the employer in any award or settlement. The real question therefore is: Whether in
these circumstances, without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular
employees, proceedings for computation of the arrears of wages claimed by them on that basis are maintainable u/s 33C(2) of the Act?
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 u/s 33C(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 u/s 33C(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 u/s 33C(2) like that of the Executing Court''s power to
interpret the decree for the purpose of its execution.
16.2. In Uttar Pradesh v. Brijpal Singh 2005 (8) SCC 58, the Supreme Court had held as follows:
It is well settled that the workman can proceed u/s 33C(2) only after the Tribunal has adjudicated on a complaint u/s 33A or on a reference u/s
10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of
Punjab Beverages (P) Ltd. v. Suresh Chand held that a proceeding u/s 33C(2) is a proceeding in the nature of execution proceeding in which the
Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable
of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the
money which is sought to be calculated or 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 the industrial workman, and his employer. This
Court further held as follows:
It is not competent to the Labour Court exercising jurisdiction u/s 33C(2) to arrogate to itself the functions of an Industrial Tribunal and entertain a
claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference u/s 10
of the Act.
16.3. In CEAT Ltd. Vs. Anand Abasaheb Hawaldar and Others, , the Supreme Court had held as follows:
According to learned Counsel for the appellant, a complaint of unfair labour practice can be made only by the existing employees. Under Clause
(5) of Section 3 of the Act the expression ""employee"" only covers those who are workmen under Clause (s) of Section 2 of the Industrial Disputes
Act, 1947 (in short ""the ID Act""). The expression ""workman"" as defined in Clause (s) of Section 2 of the ID Act relates to those who are existing
employees. The only addition to existing employees, statutorily provided u/s 2(s) refers to dismissed, discharged and retrenched employees and
their grievances can be looked into by the forums created under the Act. In the instant case, the complainants had resigned from service by
voluntary retirement and, therefore, their cases are not covered by the expression ""workman"". On the factual scenario, it is submitted that after 337
employees had accepted VRS I, others had raised disputes and had gone to court. Order was passed for paying them the existing salary and other
emoluments. This went on for nearly two years and, therefore, with a view to curtail litigation a memorandum of understanding was arrived at in
1994. This basic difference in the factual background was not noticed by either the Industrial Court or the High Court.
16.4. In The Special Officer, Vellore Co-operative Sugar Mills Vs. The Presiding Officer, Labour Court, K. Shanmugam and D. Krishnan, , the
Division Bench of this Court had held as follows:
A written statement was filed by the management in reply to those claim petitions. The writ petitioner-Mill denied and repudiated the claim of
overtime allowance and alleged that the concerned employees were never asked to do overtime work. In paragraph - 6 of the written statement
the claim of the employees were denied and it was alleged that they were never ordered to work overtime. It was alleged in paragraph 13 of the
written statement that mere production of punch cards does not establish the right to any overtime allowance. The punch cards would only show at
what time an employee entered the gate of the factory and at what time he left. There can be various reasons as to why an employee stays inside
the factory compound. Unless there is a specific direction from the factory manager or any other authorised person to do overtime work, the
employees cannot claim overtime allowance, and they cannot claim overtime allowance merely because they were inside the factory beyond the
working hours. More over, the claim made after a long lapse of time, without an iota of evidence, cannot be sustained at all.
We have carefully perused the order of the labour Court dated 24.5.2002. It may be noted that no oral evidence was adduced on behalf of the
claimants before the labour Court and no exhibits were marked. In our opinion, whenever there is a claim for overtime allowance, it is incumbent
on the workmen concerned to at east come into the witness box and state on oath before the labour Court that he/she worked overtime. When
he/she does not even adduce his/her own oral evidence it is difficult to accept the claim for overtime allowance. In this case, the
claimants/workmen never adduced any oral evidence before the labour Court. Only claim petitions were filed, and the only material which has
been relied upon is the time cards filed by the respondent/management (appellant in the present writ appeals). In our opinion, the time cards only
reflect the time of entry of the workman into the factory and time of exit. In our opinion, the punch card by itself cannot substantiate a claim for
overtime allowance, as it does not prove that in fact the workman concerned worked overtime. All that the time cards show is the time of entry
into the factory and the time of exit. It is quite possible that even after the working hours of the workman concerned, he may be loitering around
inside the factory premises without being told to do more work.
There was nothing on record to prove that the manger or any authorised person ordered the workmen concerned to work overtime.
16.5. The said decision of the Division Bench of this Court in The Special Officer, Vellore Co-operative Sugar Mills Vs. The Presiding Officer,
Labour Court, K. Shanmugam and D. Krishnan, had been upheld by the Supreme Court in the decision in D. Krishnan and Another Vs. Special
Officer, Vellore Co-operative Sugar Mill and Another, .
16.6. In K.V. Joseph Vs. Pierce Leslie India Ltd. and Others, , the Supreme Court had held as follows:
Even though there is no period of limitation u/s 33C(2), the second respondent was justified in dismissing the stale claims of the petitioner. If
stale claims are allowed, it would lead to undesirable results including financial anarchy and chaos in the industrial field. Unless there is a
satisfactory explanation for the delay, the labour Court is not expected to entertain petitions especially when it would have far-reaching pecuniary
consequences on the employers. In the present case, the claims are made after a long lapse of time. Whether a claim has become stale or not
depends upon facts of each case and hard and fast rule cannot be laid down one way or the other. In Inder Singh & Sons Ltd. v. Their Workmen
1961 II LLJ 89, the Supreme Court held:
On the other hand, it is well-accepted principle of industrial adjudication that over-stale claims should not generally be encouraged or allowed,
unless there is satisfactory explanation for the delay. Apart from the obvious risk to industrial peace from the entertainment of claims after a long
lapse of time, it is necessary also to take into account the unsettling effect this is likely to have on the employer''s financial arrangements. Whether a
claim has become too stale or not will depend on the circumstances of each case. While there is no absolute proposition of law that in no case
relief could be granted for a period prior to the demand, the Industrial Tribunal ought to pay particular attention to the date on which the demand
was first made.
The learned Counsel appearing for the respondents had also relied on the decision of this Court, reported in K. Jayapal Vs. Union of India
(UOI) and State Bank of India , and the judgment, reported in Limbaji Baburao Shinde v. Osmanabad District Central Co-operative Bank Ltd.
2010 L.L.R. 15, to stress that the request of the learned Counsel appearing for the petitioner, to remit the matter back to the first respondent
Labour Court, cannot be accepted, as the said attempt is made only for the purpose of prolonging the proceedings. He had submitted that in the
above cited decisions, the contention of the petitioner therein had been rejected holding that there was nothing perverse in the findings recorded by
the respondents therein.
In view of the contentions made by the learned Counsels appearing for the petitioner, as well as the second respondent and on a perusal of the
documents available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for setting aside the order of
the first respondent labour Court, dated 5.12.2005, made in C.P. No. 590 of 2001.
There is nothing shown by the petitioner in support of his claim for overtime wages. It is clear that the petitioner had not raised the issue
regarding the payment of overtime wages, during his service from the year, 1978, till he had submitted his resignation from service. Such a claim
having been made, belatedly, after more than 2 decades, cannot be countenanced. The first respondent labour Court had rightly held that the
petition filed by the petitioner, u/s 33C(2) of the Industrial Disputes Act, 1947, cannot be maintained, unless there was a pre-existing right or
entitlement in favour of the petitioner. Further, the petitioner had not been in a position to show that he was a workman, within the meaning of
Section 2(s) of the the Industrial Disputes Act, 1947.
It is also clear that the petitioner had requested for voluntary retirement from his service, even before he had attained the age of 58 years.
Merely for the reason that the second respondent Management had accepted the request of the petitioner, as though it was resignation from
service, since there was no scheme of voluntary retirement for the employee, it cannot be held that the petitioner would be entitled to the reliefs, as
sought for by him. As such, the writ petition is liable to be dismissed, as being devoid of merits. Hence, it stands dismissed. No costs.