Rai Bahadur Narain Singh Sugar Mills Ltd vs Mangey Ram & Another

Manoj K. Tiwari, J

This is employer's writ petition against the order dated 06.08.2011 passed by learned Labour Court, Haridwar in Misc. Case No. 42 of 2011.

Respondent no. 1 was employed as a seasonal worker in Rai Bahadur Narain Singh Sugar Mills Ltd. (petitioner herein) since 15.11.1983. His services were subsequently terminated w.e.f. 07.12.1994. He raised an industrial dispute regarding his termination, which was referred for adjudication to Labour Court, Dehradun. The reference was registered as Adjudication Case No. 64 of 1996. After hearing both the parties, learned Labour Court gave an award in favour of the workman on 18.06.1997, whereby termination of his services was declared to be illegal and it was provided that the workman shall be reinstated in service from the next crushing season. Regarding backwages, it was provided that the workman shall be entitled to a lump-sum amount of Rs.5,000/-.

Employer challenged the said award by filing Writ Petition No. 6958 of 1998 and Allahabad High Court by an interim order stayed the operation of the award.

Upon State reorganization, the writ petition was transferred to this Court and was re-numbered as Civil Misc. Application No. 4169 of 2001 (M/S). A Coordinate Bench of this Court confirmed the award vide judgment dated 09.06.2005. Operative portion of the said judgment is extracted below:-

" In the result, I confirm the award dated 18.06.1997. The award is to be modified to the extent that the respondent No. 2 shall be reinstated to his job with continuation in the services. However, as far as the intervening wages for the period during which the writ petition was pending are concerned, the same would be relegated to the petitioner/ employer before whom the respondent No. 2 shall make the representation, which shall be decided by the petitioner by adopting sympathetic consideration within 45 days. The petitioner/ employer shall also consider the representation of the respondent No. 2 pertaining to the regularization of his service."

Pursuant to the judgment of this Court, workman made representation to the employer on 13.06.2005 claiming intervening wages for the period from the date of the award till his reinstatement and he also prayed for regularization of his services. The representation made by the workman was rejected by the employer vide order dated 26.07.2005 (Annexure-5 to the writ petition). The employer invoked principle of 'no work no pay' for rejecting claim of the workman for wages.

Against rejection of representation, workman approached this Court by filing Writ Petition (M/S) No. 139 of 2007, which was dismissed with liberty to him to avail the remedy before appropriate forum. The workman thereafter filed an application under Section 33-C(2) of Industrial Disputes Act, 1947, which was allowed by learned Labour Court vide order dated 06.08.2011. Thus, feeling aggrieved, employer has filed this writ petition.

Heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner submits that learned Labour Court while exercising power under Section 33-C(2) of Industrial Disputes Act, 1947 or Section 6-(H)-2 of U.P. Industrial Disputes Act, 1947 has a limited jurisdiction of Executing Court and it had no jurisdiction to compute or determine any benefit of backwages ignoring the award published on 08.12.1997. In support of his contention he has relied upon a judgment rendered by Hon'ble Supreme Court in the case of Municipal Corporation of Delhi Vs. Ganesh Razak and another, reported in (1995) 1 SCC 235. Paragraph no. 13 of the said judgment on which reliance has been placed is extracted below:-

"13. In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents."

Per contra, learned counsel for the workman submits that learned Labour Court had declared termination of the workman to be unjust and illegal and it had provided that he would be entitled to reinstatement in the next crushing season, therefore, workman was entitled to wages for the intervening period, in terms of the award. He further submits that although the award was stayed by Hon'ble Allahabad High Court, but after dismissal of Employer's writ petition, workman became entitled to wages for the intervening period during which stay order was operative. He further submits that the award was confirmed by this Court, therefore, learned Labour Court was justified in allowing the application under Section 33-C(2) of Industrial Disputes Act filed by the workman. He further submits that learned Labour Court has merely ordered for payment of the amount due to the workman which flows from Employer's obligation under the award. In support of his contention, he has relied upon the judgment rendered by Hon'ble Apex Court in the case of Fabril Gasosa Vs. Labour Commissioner and others reported in (1997) 3 SCC 150. Paragraph No. 19 of the said judgment is extracted below:-

"19. Section 33-C is in the nature of execution proceedings designed to recover the dues to the workmen. Vide Sections 33-C(1) and (2), the legislature has provided a speedy remedy to the workmen to have the benefits of a settlement or award which are due to them and are capable of being computed in terms of money, be recovered through the proceedings under those sub-sections. The distinction between sub-section (1) and sub-section (2) of Section 33-C lies mainly in the procedural aspect and not with any substantive rights of workmen as conferred by these two sub-sections. Sub-section (1) comes into play when on the application of a workman himself or any other person assigned by him in writing in this behalf or his assignee or heirs in case of his death, the appropriate Government is satisfied that the amounts so claimed are due and payable to that workman. On that satisfaction being arrived at, the Government can initiate action under this sub-section for recovery of the amount provided the amount is a determined one and requires no "adjudication". The appropriate Government does not have the power to determine the amount due to any workman under sub-section (1) and that determination can only be done by the labour court under sub-section (2) or in a reference under Section 10(1) of the Act. Even after the determination is made by the labour court under sub-section (2) the amount so determined by the labour court, can be recovered through the summary and speedy procedure provided by sub-section (1). Sub-section (1) does not control or affect the ambit and operation of sub-section (2) which is wider in scope than sub-section (1). Besides the rights conferred under Section 33-C(2) exist in addition to any other mode of recovery which the workman has under the law. An analysis of the scheme of Sections 33-C(1) and 33-C(2) shows that the difference between the two sub-sections is quite obvious. While the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or V-B, sub-section (2) deals with cases where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. Thus, where the amount due to the workmen, flowing from the obligations under a settlement, is predetermined and ascertained or can be arrived at by any arithmetical calculation or simpliciter verification and the only inquiry that is required to be made is whether it is due to the workmen or not, recourse to the summary proceedings under Section 33-C(1) of the Act is not only appropriate but also desirable to prevent harassment to the workmen. Sub-section (1) of Section 33-C entitles the workmen to apply to the appropriate Government for issuance of a certificate of recovery for any money due to them under an award or a settlement or under the provisions of Chapter V-A and the Government, if satisfied, that a specific sum is due to the workmen, is obliged to issue a certificate for the recovery of the amount due. After the requisite certificate is issued by the Government to the Collector, the Collector is under a statutory duty to recover the amounts due under the certificate issued to him. The procedure is aimed at providing a speedy, cheap and summary manner of recovery of the amount due, which the employer has wrongfully withheld. It, therefore, follows that where money due is on the basis of some amount predetermined like the VDA, the rate of which stands determined in terms of the settlement, an award or under Chapter V-A or V-B, and the period for which the arrears are claimed is also known, the case would be covered by sub-section (1) as only a calculation of the amount is required to be made."

There is no dispute that learned Labour Court had ordered for reinstatement of the workman from the next crushing season i.e. 1997-98 and after dismissal of employer's writ petition, workman's rights flowing from the award got crystallized. Consequently, the employer became liable to pay wages for the intervening period during which award was stayed by order of High Court.

This Court while confirming the award relegated the question of wages for the intervening period to be 'sympathetically' decided by the employer, however, the employer invoked principal of 'no work no pay', which could be invoked only when the workman had voluntarily absented from duty. In the present case, it was the employer, who had terminated his services and had not reinstated the workman even after the award given by the Labour Court.

In the present case, workman was claiming wages for the intervening period in terms of the award. In other words, what he had claimed in his application under Section 33-C(2) was based on a pre-existing right. Merely because the employer had repudiated his claim for intervening wages by invoking the principle of 'no work no pay' will not change the nature of an existing right of the workman to a disputed claim.

In such view of the matter, the judgment rendered in the case of Municipal Corporation of Delhi Vs. Ganesh Razak and another is not applicable to the facts of this case.

A constitution Bench of Hon'ble Supreme Court in the case of Kays Construction Co. Private Ltd. vs. the State of Uttar Pradesh and others reported in AIR 1965 Supreme Court 1488, while considering Section 6-H(2) of U.P. Industrial Disputes Act, which is analogous to Section 33-C(2) of Industrial Disputes Act has held as under:-

"6. It is contended before us that the judgment of the Divisional Bench is erroneous in its interpretation of Section 6-H(1) and (2). The question thus is how are the two sub-sections to be read? This section is analogous to Section 33-C of the Industrial Disputes Act, 1947 and Section 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is significant that in all the three statutes the cognate section is divided into two parts and the first part deals with recovery of "money due" to a workman under an award and the second deals with a "benefit" computable in terms of money. Under the first sub-section the State Government (or its delegate), if satisfied that any money is due, is enabled to issue a certificate to the collector who then proceeds to recover the amount as an arrear of land revenue. The second part then speaks of a benefit computable in terms of money which benefit, after it is so computed by a Tribunal, is again recoverable in the same way as money due under the first part. This scheme runs through Section 6-H sub-sections (1) and (2).

That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in the second sub-section is not "money due" but some advantage or perquisite which can be reckoned in terms of money. The Divisional Bench has given apt examples of benefits which are computable in terms of money, but till so computed are not "money due". For instance, loss of the benefit of free quarters is not loss of "money due" though such loss can be reckoned in terms of money by inquiry and equation. The contrast between "money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-sections. If the word "benefit" were taken to cover a case of mere arithmetical calculation of wages, the first sub-section would hardly have any play. Every case of calculation, however, simple, would have to go first before a Tribunal. In our judgment, a case such as the present, where the money due is back wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two sub-sections between "money due" under the first sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the "amount due" and they are being investigated because the State Government must first satisfy itself that the amount claimed is in fact due. But the anti-thesis between "money due" and a "benefit which must be computed in terms of money" still remains, for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. The judgment of the Division Bench was thus right. The appeal fails and will be dismissed with costs. The companion appeal will also be dismissed but we make no order about costs in that appeal. Appeals dismissed."

Perusal of the impugned order reveals that the employer had not rebutted the contents of the affidavit filed by the workman, therefore, learned Labour Court rightly invoked Rule 12(9) of the U.P. Industrial Disputes Rules, 1957 and presumed the contents of the affidavit of the workman to be correct.

In view of the aforesaid discussion, the claim for intervening wages made by the workman by filing an application under Section 33-C(2) of Industrial Disputes Act cannot be said to be a new claim, which may require adjudication. On the other hand, claim made by the workman was based on pre-existing right, as declared by award dated 18.06.1997 passed by Labour Court. In such view of the matter, this Court finds no jurisdictional error by learned Labour Court in allowing the claim of the workman.

The scope of interference with award of Labour Court by the High Courts; while, exercising power under Article 226/227 of the Constitution was considered by Hon'ble Supreme Court in the case of K.V.S. Ram v. Bangalore Metropolitan Transport Corpn., reported in (2015) 12 SCC 39. Paragraph nos. 10 to 14 of the said judgment are extracted below:-

In the writ petition, while setting aside the award of the Labour Court, the learned Single Judge placed reliance upon the judgment of this Court passed in Punjab Water Supply Sewerage Board v. Ram Sajivan4 and also another judgment of the High Court and observed that a person who practices fraud for securing employment cannot perpetuate on the ground of delay and the learned Single Judge faulted the Labour Court for exercising discretion under Section 11-A of the Industrial Disputes Act and interfering with the punishment of dismissal from service. In our considered view, in exercise of its power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the tribunal, only, when there has been a patent perversity in the orders of tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. In our view, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court.

In Syed Yakoob v. K.S. Radhakrishnan, the Constitution Bench of this Court considered the scope of the High Court's jurisdiction to issue a writ of certiorari in cases involving challenge to the orders passed by the authorities entrusted with quasi-judicial functions under the Motor Vehicles Act, 1939.

Speaking for the majority of the Constitution Bench, Gajendragadkar, J. observed as under:

"7. ... A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised." (emphasis supplied)

In Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Co. Ltd., it was held as under:

"15. We find the judgment and award of the Labour Court well reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the Labour Court in its award as it is well-settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well-reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice.

It is relevant to mention that in Shalini Shyam Shetty v. Rajendra Shankar Patil, with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that:

'49. (m ) ... The power of interference under [Article 227] is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.'

It was also held that:

'49. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it.'"

Emphasising that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution of India, the courts are to keep in view the goals set out in the Preamble and in Part IV of the Constitution while construing social welfare legislations, in Harjinder Singh v. Punjab State Warehousing Corpn., this Court has held as under:

"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:

'10. ... The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.'

Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained."

Thus, there is no scope for interference with the impugned order. Accordingly, the writ petition fails and is dismissed.

Pending application(s), if any, also stand disposed of.