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Judgment
Ramaprasada Rao, J.—The petitioner employed the second respondent as his accounts clerk for a period of about five years. In June,
1967, the petitioner claims, the second respondent demanded certain amount by way of loan to go to Madras and to meet certain emergent
requirements of his. This was refused, because the second respondent did not repay an earlier loan borrowed from the petitioner. Thereafter, it is
said that the second respondent did not pay the money already due and abandoned the service with the petitioner. In or about 1969, the petitioner
was confronted with a notice from the Presiding Officer, Labour Court, Coimbatore, by which the second respondent demanded a consolidated
sum of Rs. 2,002.30 falling under three heads: (1) retrenchment compensation, (2) notice pay for unlawful retrenchment of service, and (3) bonus
for the year 1966-67 during which year the second respondent admittedly served the petitioner. The Labour Court entertained the petition filed by
the second respondent, went into the question whether the second respondent was retrenched or not, found that it was a case of retrenchment and
awarded the compensation as asked for under the three heads as above. It is as against this award that the present writ petition has been filed.
The main contention of the learned Counsel for the petitioner is that the Labour Court had no jurisdiction to entertain the application u/s 33C(2)
in which the primary issue was whether the employee was retrenched by the employer. If, therefore, the Labour Court was incompetent to go into
such a question, which is essentially a matter to be adjudicated by the Industrial Tribunal within whose jurisdiction the problem arises, then the
challenged award, in so far as it grants retrenchment compensation and notice pay, has to be quashed. On the third head, namely, the award of
bonus to the second respondent, it is said that there is no proof that the second respondent did not receive the said amount, though his entitlement
is shown in Ext. W-4 which evidences such a payment to other workers and also speaks of the practice prevailing in the petitioner-company.
Contending contra, the learned Counsel for the second respondent says that the Labour Court has jurisdiction to go into the question whether the
case of retrenchment complained of by the employee or the story of abandonment spoken to by the management is true and find on the evidence
one way or other. In this view, it is said that the entire award has to be sustained.
I shall immediately take up the third head of bonus. It is not in dispute that, under Ext. W-4, the petitioner-company paid bonus to all its
employees. The name of the second respondent is also found in that; list. But the case of the second respondent is that he was not paid as pleaded.
The onus lay on the petitioner to prove that the second respondent was paid the bonus, as his entitlement was reflected in Ext. W-4. This was
neither attempted nor proved. The Labour Court accepted the case of the second respondent that the bonus to which he is entitled was not paid
by the petitioner, though the other employees were paid, and, therefore, this part of the award, which granted bonus to the second respondent
based on an appreciation of facts and evidence before it, cannot be disturbed.
The other contention of the learned Counsel for the petitioner that the Labour Court had no jurisdiction to decide the issue whether the case
posed a problem of retrenchment or abandonment of service, is well-founded. There is a marked distinction between the jurisdiction of the
Industrial Tribunal and that of the Labour Court. Whilst the Labour Court functioning for all purposes enumerated under the Act has certain duties
and responsibilities as prescribed therein, the matters to be dealt with and which are within the jurisdiction of the Industrial Tribunal as prescribed
u/s 7A of the Industrial Disputes Act, 1947, are entirely different. Item No. 10 in the Third Schedule to the Industrial Disputes Act, 1947
(hereinafter referred to as the Act), is one of the matters within the juris diction of the Industrial Tribunal. The item is retrenchment of workmen and
closure of establishment. In juxtaposition to this, Section 33C of the Act provides for a different situation and it is intended to ensure certain
benefits to the workmen whose existing rights have not been respected by the employer one way or other. Whereas Section 33C(1) refers to one
particular situation, Section 33C(2) refers to an altogether different situation, though sometimes it might overlap with the problem that would arise
u/s 33C(2). Section 33C(1) refers to a case where money is due to a workman from an employer under a settlement or an award or under the
provisions of Chapter V-A of the Act. Section 33C(2) generally refers to the process of reckoning in money the benefit which the workman would
be entitled to receive from the employer. As long as such benefit or privilege is computable in terms of money, then Section 33C(1) or (2) can be
invoked by a workman and relief secured at the hands of the Labour Court. As the application of Section 33C(2) is, therefore, wider, I expressed
my view that Section 33C(2) might overlap in certain circumstances with the situations contemplated in Section 33C(1). What is urged before me
is that the second respondent''s application in the instant case purports to be one as if a benefit which is capable of being computed in terms of
money was presented before the Labour Court for adjudication and redress, whereas in fact the second respondent went to the Labour Court with
an application that his services were terminated without retrenchment compensation being paid and without notice pay which are necessary
features in such situations. Therefore, it is said that Section 33C(2) is inapplicable to the facts of this case, as essentially Section 33C(2)
comprehends an existing right or a benefit, the denial of such right or benefit and in consequence that denied right or privilege, which is capable of
being computed in terms of money, being reckoned accordingly by the Labour Court. As under Third Schedule to the Act Item 10 therein, the
subject of retrenchment is a matter within the jurisdiction of the Industrial Tribunal, it follows that the Labour Court''s jurisdiction to find the
propriety or regularity in such matters indulged by the management is outside the scope of its enquiry. The learned Counsel for the second
respondent, however, would say that the subject of retrenchment is closely allied to the problem of closure of establishment or lay-off and if,
therefore, the Labour Court has jurisdiction, as was said by the Supreme Court in R.B. Bansilal Abirchand Mills Co. Ltd. Vs. The Labour Court,
Nagpur and Others, , then it follows that the Labour Court in the instant case was right in having weighed the materials before it to find whether
there was retrenchment on the part of the management or abandonment of service on the part of the worker. No doubt, in the case referred to
above, the Supreme Court was categorical that, in a case where the subject posed the problem of lay off or retrenchment and if that in substance
was the point of controversy between the management and the worker, the Labour Court must go into the matter and come to a decision as to
whether there was really closure of establishment or lay off. The Supreme Court held that, if the Labour Court took the view that there was a lay
off without any closure of the business, it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-
A. The instant case before me is not a case of either closure of establishment or lay off. This is a case where the issue was whether the worker was
retrenched or the worker abandoned his services. This aspect is categorically to be dealt with by the Industrial Tribunal, as Third Schedule to the
Act makes it compulsorily adjudicable. But the argument is that it is under the very Item 10 in the Third Schedule the subject of closure of
establishment also appears, and, therefore, the principle in the decision of the Supreme Court as above should also be equally made applicable to a
situation where retrenchment of a workman is involved.
This argument is prima facie attractive. But, in an earlier decision of the Supreme Court which was also considered by the Supreme Court in
R.B. Bansilal Abirchand Mills Co. Ltd. v. The Labour Court, Nagpur, (supra) it was made clear that the Labour Court would not have jurisdiction
to enquire into a case where the problem is whether the workman was retrenched or not. The Supreme Court has relegated such matters for
disposal and adjudication to the Industrial Tribunal, as provided for in the Third Schedule to the Act. in U.P. Electric Supply Co. Ltd. Vs. R.K.
Shukla and Another, etc., , an elaborate and instructive judgment has been rendered by the Supreme Court. After having posed the necessary
question which arose u/s 33C(1) and (2), Shah, J. (as he then was), held:
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 33C(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.
Therefore, where retrenchment is conceded, the position is different. '' But if retrenchment is in dispute or in issue between the management and
worker, the Labour Court exercising the functions of a Tribunal u/s 33C(2) cannot decide that issue, because it is a matter which has to be found
and decided upon by the Industrial Tribunal. The decision of the Supreme Court in U.P. Electric Supply Co. Ltd. Vs. R.K. Shukla and Another,
etc., , quoted by the learned Counsel for the petitioner is quite apposite.
Certain passages in R.B. Bansilal Abirchand Mills Co. Ltd. Vs. The Labour Court, Nagpur and Others, , are pressed into service by Mr.
Kanakaraj, the learned Counsel for the 2nd respondent, to show that U.P. Electric Supply Co. Ltd. v. R.K. Shukla, (supra) is no longer good law.
In R.B. Bansilal Abirchand Mills Co. Ltd. v. The Labour Court, Nagpur, (supra) the question was whether there was lay off or closure of
establishment. In that context, the decisions which touched upon the main issue but which also related to the scope of quantum of jurisdiction of the
Labour Court u/s 33C were also noticed by the Court. Meeting the ratio in U. P. Electric Supply Co. Ltd. v. R.K. Shukla, (supra) the Supremo
Court conceded:
Reliance was, however, placed on certain passages in the judgment at page 513 and at page 517 which, according to the counsel for the
appellants, went to show that when the factum of retrenchment is questioned there is a dispute which is exclusively within the competence of the
Industrial Tribunal. These observations cannot be considered binding on us as all the aspects were not placed before the Court then.
I could only reconcile these two judgments thus. Whereas the decision in U. P. Electric Supply Co. Ltd. v. R.K. Shukla, (supra) would apply to a
case where the sole point at issue before the Labour Court was whether there was retrenchment or not, the ratio in R.B. Bansilal Abirchand Mills
Co. v. The Labour Court, Nagpur, (supra) would apply to a case where the bone of contention is whether there was closure of establishment or
lay off. In this view of the matter, applying the ratio in U.P. Electric Supply Co. Ltd. v. R.K. Shukla, (supra) the award in so far as it directs the
petitioner to pay retrenchment compensation and notice pay is bad in law, when the claim as to retrenchment is in issue. Rule nisi is made absolute
to the above effect. The writ petition is allowed in part. There will be no order as to costs.