Mandal Van Adhikari vs Ram Lal Nagar

Veerender Singh Siradhana, J.—The petitioner (Forest Department of the State of Rajasthan), has instituted the writ proceedings projecting a challenge to the order dated 5th January, 1996, passed by the Labour Court, Kota, on an application preferred by the respondent/workman (Ram Lal Nagar), under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act of 1947'', for short).

Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised, needs to be first noticed. The respondent/workman raised an ''industrial dispute'', assailing the action of the petitioner/employer, in terminating his employment without compliance of the mandate of Section 25-F of the Act of 1947, in spite of the respondent/workman having worked for more than 240 days, in the preceding calender year. The industrial dispute raised was decided vide award dated 12th March, 1987, in view of the admission of the petitioner/employer as to the fact that the respondent/workman did work for more than 240 days. The Labour Court vide its award dated 12th March, 1987, held the respondent/workman entitled for reinstatement on the post of ''Cattle Guard'' with effect from 17th March, 1987. The award further directed to accord all the benefits including promotion, if granted to a workman junior to the respondent/workman. Further, though the period with effect from 3rd July, 1983 to 16th March, 1987; would be reckoned as the period of service, but the respondent/workman would not be entitled to any wages for the said period. Thereafter, the respondent/workman preferred an application under Section 33-C(2) of the Act of 1947, claiming benefits of salary etc., after completion of two years of service since he was not conferred with the status of semi-permanent. The respondent/workman also claimed the salary with effect from 1st July, 1979 to 30th June, 1990, including payment for national holidays and other festivals. The claim also included the payment for casual leaves, earned leaves as well as for Sundays and weekly holidays. The total claim was staked for a sum of Rs. 76,966/-(Rupees : Seventy Six Thousand Nine Hundred Sixty Six). The petitioner-employer submitted its written statement to the application under Section 33-C(2) for computation, denying the sustainability of the amount claimed for the period involved and prayed for dismissal of the application under Section 33-C(2) of the Act of 1947.

The Labour Court vide its impugned order dated 5th January, 1996, allowed the claim relying upon the affidavit of the respondent-workman and for that no evidence was produced on behalf of the petitioner-employer to counter the claim made by the respondent/workman in the application.

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as carefully considered the impugned order dated 5th January, 1996 as well as the award dated 12th March, 1987, passed by the Labour Court.

It is not in dispute that while adjudicating upon the ''industrial dispute'', raised by the respondent/workman, assailing the action of the petitioner/employer, in terminating his employment from the post of ''Cattle Guard''; the Labour Court vide its award dated 12th March, 1987, specifically declined to grant any benefit on account of the back wages to the respondent/workman for the period with effect from 3rd July, 1983 to 16th March, 1987; but granted the benefit of promotion, if the same was accorded to any person junior to the respondent/workman.

The issue raised in the instant writ application is no more res-integra in view of the fact that what is enforceable under Section 33-C(2) of the Act of 1947, is a pre-existing benefit or one flowing from a pre-existing right. A three Judges Bench of the Hon''ble Apex Court of the land in the case of State of Uttar Pradesh and Another Vs. Brijpal Singh, ; in unequivocal terms held that the appropriate forum, where question of back wages could be decided, is only in a proceeding to whom a reference under Section 10 of the Act of 1947, is made. The Labour Court while exercising the powers under Section 33-C(2) of the Act of 1947, has no jurisdiction to adjudicate such a claim in an undetermined claim and until such adjudication is made by the appropriate forum. The respondent-workman cannot ask the Labour Court, in an application under Section 33C(2) of the Act of 1947 to disregard his dismissal as wrongful and on that basis to compute his wages. In that backdrop of the legal position, the claim of the respondent/workman under Section 33-C(2) of the Act of 1947, for determination of payment and wages, could not be sustained.

The view has been reiterated by the Hon''ble Apex Court of the land in a subsequent opinion in the case of U.P. State Road Transport Corporation Vs. Shri Birendra Bhandari, ; while referring to earlier opinion in the case of State Bank of India Vs. Ram Chandra Dubey and Others, . The Hon''ble Supreme Court in the case of Shri Birendra Bhandari (supra), observed thus:--

���� "5. In the case of State Bank of India Vs. Ram Chandra Dubey and Others, , this Court held as under:

When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.

The principles enunciated in the decisions referred by either side can be summed up as follows:

Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages.

The position was re-iterated by a three Judge Bench of this Court in State of Uttar Pradesh and Another Vs. Brijpal Singh, .

Judged in the background of principles set out above, the orders passed by the Labour Court and the High Court are indefensible and are accordingly set aside. The appeal is allowed but without any order as to costs."

For the reasons and discussions herein above as well as in view of the law declared by the Hon''ble Apex Court of the land, I have no hesitation in setting aside the impugned order passed by the Labour Court dated 5th January, 1996, in case number 136 of 1992; on an application preferred by the respondent/workman under Section 33-C(2) of the Act of 1947.

Consequently, the writ application succeeds and is hereby allowed.

However, in the facts and circumstances of the case, there shall be no order as to costs.