Municipal Committee vs Presiding Officer, Labour Court and Another

N.K. Aggarwal, J.—These are two petitions (Civil Writ Petitions Nos. 3198 and 3199 of 1994) filed under Articles 226 and 227 of the Constitution by the Municipal Committee, Mansa, against the common order of the Labour Court passed on 30.7.1993 on the petitions made by two workmen, Om Parkash and Shiv Dutt. Since the facts and the questions are similar, these are being decided by this common order. The facts relevant to Civil Writ Petition No. 3198 of 1994 shall, however, be discussed hereinafter.

The workman joined service in the Municipal Committee, Mansa, as a Peon in the year 1982. The workman''s case is that he was required to perform the duties of a Clerk at the Octroi post. He was, however, paid remuneration as payable to a Peon. Since he was not given the wages of a Clerk, he filed an application before the Labour Court on 7.3.1991 claiming wages u/s 33-C(2) of the Industrial Disputes Act, 1947 (for short, ''the Act''). Difference between the wages paid to him as a Peon and the wages payable to a Clerk was estimated at Rs. 15,000/-. The Labour Court recorded the evidence and allowed the petition. The Municipal Committee, Mansa, was directed to calculate the wages of the workman right from the date of his posting till February 1991 at the rates which were permissible to the Clerks from time to time.

The petitioner has challenged the order of the Labour Court passed u/s 33-C(2) of the Act on three courts. First, it was not within the scope of section 33-C(2) of the Act to decide the question of entitlement of the workman whether he should be paid salary of a Clerk. Second, the Labour Court allowed the payment without there being any evidence to the effect that the workman had actually worked on the post of a Clerk from the date of initial appointment in the year 1982. Third, that the application had been allowed and arrears have been held as payable to the workman on an application filed beyond a reasonable period of limitation.

The petitioner firstly raises a question about the applicability of section 33-C(2) of the Act. It is contended that the workman had no existing right to claim any difference of pay. The question of entitlement was very much under dispute and there did not exist any right to a benefit or money. The status of the employee was a contentious issue and it needed investigation whether the workman had been appointed or had been deputed to work as a clerk. The workman''s plea regarding "equal pay for equal work" did not fall for determination within the ambit of section 33-C(2) of the Act. Section 33-C(2) of the Act comes into play where any workman is entitled to receive any money or any benefit from his employer and where a question arises as to the amount of money due or as to the amount at which benefit should be computed. If these conditions are fulfilled, then the question may be determined by the Labour Court. The petitioner''s plea is that the workman had based his claim regarding payment of wages on a presumption that he had been discharging the duties of a clerk from the time of initial appointment. This was a matter to be determined and, therefore, there was no existing right as such. Whether there was a right, that was itself a question for determination.

The Andhra Pradesh High Court in J. Seetharama Rao v. The Co-operative Central Bank Ltd. 1976 LIC 1298, had an occasion to examine the scope of section 33-C(2) and section 10 of the Act. It was observed in that case that an enquiry about workmen''s entitlement to the money or benefit was beyond the scope of the proceedings u/s 33-C(2) of the Act. Such an enquiry may amount to a dispute referable to the Tribunal u/s 10 of the Act. That was a case where the workman had claimed that his period of probation should have been declared much earlier. He had claimed computation of dues on that basis. It was held to be beyond the scope of section 33-C(2) of the Act.

The Supreme Court has also examined the scope of section 33-C(2) of the Act In U.P. Electric Supply Co. Ltd. Vs. R.K. Shukla and Another, etc., It was observed:-

"Where, however, the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon on a reference, it would be straining the language of section 33-C(2) to hold that the question whether there has been retrenchment may be decided by the Labour Court. The power of the Labour Court is to compute the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen. Where retrenchment is conceded, and the only matter in dispute is that by virtue of section 25-FF no liability to pay compensation has arisen, the Labour Court will be competent to decide the question. In such a case, the question is one of computation and not of determination of the conditions precedent to the accrual of liability. Where, however, the dispute is whether workman have been retrenched and computation of the amount is subsidiary or incidental, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested."

The question regarding the scope of section 33-C(2) of the Act was again examined by the Supreme Court in AIR 1994 552 (SC) . That was a case where an employee had been convicted by the Sessions Court for offence u/s 304, Part I, Indian Penal Code, and sentenced to 8 years'' rigorous imprisonment. The High Court, however, acquitted him of the offence, giving him the benefit of doubt. The employer (the Bank) refused to reinstate the employee in service on the ground that he has not earned an honourable acquittal of the offence. The employee raised an Industrial dispute before the Industrial Tribunal. The Tribunal gave an award holding that the dismissal of the employee was unjustified. The Tribunal directed the Bank to reinstate the employee with full back wages and to allow him continuity of service as if he was never dismissed from service. The Bank reinstated the employee and treated him as on duty. The employee filed an application before the Labour Court u/s 33-C(2) of the Act, claiming difference in the amount paid to him as subsistence allowance during the period of suspension till the date of dismissal and full pay and allowances which were payable for the said period. He further claimed that he was entitled to increments during the period he was under suspension. He also claimed that his pay on reinstatement should be fixed, taking into account the increments earned by him between the dates of suspension and dismissal. It was held that the Labour Court, while acting u/s 33-C(2) of the Act, had no jurisdiction to decide the said question and had clearly exceeded its jurisdiction.

The learned counsel for the respondent-workman has argued that the question about the payment of wages to the workman in the status of a Clerk was a question incidental and ancillary to the determination of money claim. Though the scope of section 33-C(2) of the Act was limited yet the workman''s case was fully covered under that section. It is pointed out that the workman had earlier filed a civil suit seeking mandatory injunction against the employer, Municipal Committee, Mansa. That suit was decided on 3.11.1990 giving a direction to the defendants to consider the appointment of the workman on the post of Clerk because the workman had worked as a Clerk for several years.

The plea put forward by the workman is that though there was a difference between an industrial dispute raised u/s 10 of the Act and a claim petition which is contemplated by Section 33-C(2) of the Act, yet the determination of incidental and ancillary matters was within the scope of section 33-C(2) of the Act. Reliance is placed for the said proposition on a decision of the Bombay High Court in Prabhat Enlarging Works, Nagpur v. Prabhakar Antaramji Bagmare 1985 L.I.C. 1185. In that case, the question which required determination was whether the employees were skilled employees or not and whether they were entitled to get the minimum wages fixed for skilled employees under the Minimum Wages Notification. It was held that the Labour Court had jurisdiction to decide whether the employees were skilled workers or not.

Reliance has also been placed by the learned counsel for the workman-respondent on a decision of this Court in Girdhari Lal and Ors. v. State of Haryana and Ors. 1996 (1) SLR 152, in which the doctrine of "equal pay for equal work" was under examination. It was held that relief of "equal pay for equal work" could not be denied to the ad hoc or daily wage employees merely on the ground of their not being subjected to Service Rules or disciplinary control like the regular employees.

The scope of section 33-C(2) of the Act is undoubtedly limited and it cannot be enlarged so as to determine the status of the Workman. The very question, as to whether the workman had been posted as Clerk, was under dispute. The principle of "equal pay for equal work" was required to be examined on the facts of the case. These matters could not be said to be incidental or ancillary to the determination of money claim of the workman.

Whatever was decided by the civil Court in the civil suit filed by the workman, that was relevant to the relief sought by the workman in that matter. There was no specific finding if the workman had performed the functions of a Clerk from the year 1982. If the workman wanted implementation of the findings of the civil Court, proper remedy should have been sought by way of filing an execution application in that Court. Section 33-C(2) of the Act could not be invoked so as to execute an order of the civil Court or to determine a question about the nature of| duties of the workman. In the result, it is held that the question determined by the Labour Court regarding the status of the workman as a Clark did not fall within the scope and ambit of section 33-C(2) of the Act.

The second question relates to the merits of the claim. The workman did not adduce sufficient evidence to establish that he has worked as a Clerk right from the year 1982 till the date of filing of the petition. It appears that the workman filed copies of the duty lists for five months from January 1990 to May 1990. A perusal of these documents gave an indication that Shiv Dutt and Om Parkash performed the duties of Clerk in the month of January 1990. Such duties were performed by Shiv Dutt in February 1990 but, from the duty list of this month, it is not clear whether the other workman, Om Parkash, had also performed similar duties for the whole month. The duty list of March 1990 also does not make it clear whether Shiv Dutt had worked as a clerk during this month. It was for the workman to lead sufficient evidence in order to establish that he had worked as a Clerk at the Octroi Post of Municipal Committee, Mansa, from the time of his initial appointment in the year 1982 till the date of filing of the present petition. Casual appointment could not help the workman to claim the benefit of wages for as long a period as nine years.

The third issue raised by the petitioner relates to the question of limitation. The learned counsel for the petitioner Municipal Committee has argued that, though there was no period of limitation for filing an application u/s 33-C(2) of the Act, yet a reasonable period should be allowed for claiming relief under this provision. The workman filed his application in the month of March, 1991 claiming arrears of wages from the year 1982 onwards. Such a delayed claim could not be allowed. The learned counsel for the respondent-workman has stated that, in the absence of any limitation period, the workman cannot be prevented from filing a money claim before the Labour Court.

Even if no limitation period has been provided for filing a petition u/s 33-C(2) of the Act, a workman cannot be permitted to raise any claim for any period whatsoever. The very object of the provisions in section 33-C(2) of the Act is that a workman, who is entitled to receive any money or any benefit, should be allowed to put forward a claim before a Labour Court. It implies that a workman should claim the benefit on the basis of the existing entitlement. That would, how ever, not entitle the workman to make a claim with undue and unreasonable delay without a plausible explanation. In the present case, the workman has not explained as to why the delay and the latches occurred. In such a situation, the claim put forward u/s 33-C(2) of the Act is found to be unreasonably delayed.

In the result, the petitions succeed and the order of the Labour Court, dated 30.7.1993 (Annexure P-1) u/s 33-C(2) of the Act is quashed. No order as to costs.