Rama Rao J. vs A.P. State Road Transport Corpn. and Another

M.H.S. Ansari, J.—The Appellant-Writ Petitioner filed an application u/s 33C(2) of the Industrial Disputes Act, 1947 (for short ''the Act'') claiming the salary for the period he was out of service due to orders of termination passed by the Writ Petitioner-Respondent and which orders of termination were declared to be illegal in the suit O.S.No. 5 of 1983 filed by the appellant before the Court of the VIII Asst. Judge, City Civil Court, Hyderabad. By the said, decree, the orders of termination passed by the writ petitioner respondent-Corporation were declared as illegal and invalid and that the Appellant should be treated as in continuous service. The petitioner also claimed the benefits under Circular No. PD-10/ 1980-81, dated April 24, 1980 to which he was held entitled by orders passed in his favour in W.P.No. 5710 of 1989 dated July 7, 1989. The aforesaid claim of the petitioner was allowed by the Labour Court and aggrieved against the same, the Writ Petition was filed by the Respondent Corporation. By the impugned Orders, learned single Judge, upheld the writ petitioner-respondent''s challenge to the maintainability of the appellant''s claim in proceedings u/s 33C(2) of the Act on the ground that Section 33C(2) of the Act is applicable only when the sum is ascertained and thus set aside the orders passed by the Labour Court. It is against this Order of the learned Single Judge this Appeal has been filed.

It cannot be denied that 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. [See] Municipal Corporation of Delhi Vs. Ganesh Razak and Another, .

It has been held by the Apex Court in Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, that the proceedings contemplated by Section 33C(2) are analogous to execution proceedings and the Labour Court, like the Executing Court in the execution proceedings governed by the Code of Civil Procedure, would be competent to interpret the award on which the claim is based. It is obvious that the power of Executing Court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in the form of decree.

In Chief Mining Engineer East India Coal Co. Ltd. Vs. Rameswar and Others, the Supreme Court after tracing the legislative history of the relevant provisions of the Act viz., Section 33A which was inserted in 1950 and Section 33C(2) in 1956 observed that the Legislature recognised the need of individual workman of a speedy remedy to enforce their existing individual rights without having to take recourse to Section 10(1) of the Act and without having to depend on their Union to espouse their case and held as under :

"It is clear that the right 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 an industrial workman and his employer".

In State Bank of Bikaner and Jaipur Vs. R.L. Khandelwal, it was held that a workman cannot put forward a claim in an application u/s 33C(2)in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference u/s 10 of the Act.

It is in the light of the above legal position as to the jurisdiction of the Labour Court u/s 33C(2) of the Act, that the contentions of the appellant require to be considered in the instant Appeal.

In so far as the claim of the appellant -workman for salary during the period after termination of his service is concerned, the appellant had filed a suit O.S.No. 5 of 1983 in the Court of the VIII Asst. Judge, City Civil Court, Hyderabad for a declaration that his services were not validly terminated. The said suit was decreed declaring that the appellant''s services were not validly terminated and he is deemed to be continuing in service. The said judgment was rendered on June 16, 1988 and has become final. The Respondent Corporation by orders dated April 15, 1989, reengaged the appellant on daily wages, of Rs. 16.60 Ps. Per day. At this stage, the appellant filed W.P.No. 5710 of 1989 questioning the said order of appointment purporting to reengage him as Man Mazdoor on daily wages of Rs. 16.60 ps. as illegal, arbitrary and discriminatory. The said Writ Petition was allowed by orders dated July 17, 1989 holding as under :

"I am of the view that when the petitioner was treated as a member of the "work charged" establishment of the Corporation on a consolidated monthly pay of Rs. 163/-, and when it was accepted that the petitioner was entitled to the time-scale of pay mentioned in the circulars of the Corporation, and when the Civil Court declared the termination from March 25, 1980 as invalid and the petitioner is declared as continuing in service notwithstanding the said termination, the Corporation had no authority in law to say that the petitioner was "re-engaged" as "daily wages" of Rs. 16.60 Ps. per day. It may be noted that the Circular No. PD 16/1980-81, dated May 24, 1980 (which was marked as Ex. M-4, before the Labour Court), issued before the termination, itself state that the petitioner was, a member of the work-charged establishment on a consolidated pay of Rs. 163/- per month and was entitled to the time-scale of pay concerned as he was in office on the crucial dates mentioned in the three circulars. The petitioner''s name was shown in Annexure-A to the Circular dated May 24, 1980 on the basis that he was a member of the work- charged establishment of the Corporation. In fact, the Circular clearly mentions that only work charged employees appointed on a "daily wages" basis are not entitled to the benefits in the time scale of pay. But those on consolidated pay were entitled to the time-scale of pay. Obviously, the petitioner''s name was included in Annexure-A to the circular because the petitioner was employed not on daily wages, but on consolidated pay of Rs. 168/- per month. Therefore the Corporation, cannot, now, contend that the petitioner is a daily-wage worker in the work-charged establishment or that he is not entitled to the time-scale of pay referable to watchman in the above said three Circulars. If that is clear, no question of "re-engaging" the petitioner as if it is a fresh employment, arise; nor can he be engaged on "daily wages" of Rs. 16.60 ps per day. In that view of the declaration made by the Civil Court that the termination of the petitioner was invalid, the petitioner is entitled to be reinstated in the time scale of pay referable to him, subject to any further enhancements of the said time scale of pay".

By the aforesaid orders it was declared that the Appellant be treated as a person in office in the work charged establishment of the Corporation as on the date when his services were terminated on March 25, 1980 and that he was on that date, on consolidated pay of Rs. 163/- per month and that he is entitled to the time-scale of pay mentioned in the Circulars dated March 17, 1977, June 22, 1979 and May 24, 1980. A further direction for reinstatement of the appellant into service as Member of work-charged establishment in the Respondent Corporation in the time scale appropriate to the appellant as mentioned in the above said Circulars was also issued with the clarification that the said time-scale of pay will be payable to the petitioner with effect from the date he is served with an order on the above basis.

It is thus apparent that insofar as the appellant''s claim for wages during the period when his services were illegally terminated the appellant''s claim had been adjudicated upon by the Civil Court and by virtue of the said decree passed in O.S.No. 5 of 1983, the appellant is entitled to the salary for the period during which he has not been paid on account of the illegal - termination of his service. The Labour Court in Proceedings u/s 33C(2) has granted to the appellant compensation which includes only salary for the period he was out of service due to illegal termination and no other amount has been awarded to me appellant. Applying the legal principles enunciated above, with regard to the power Labour Court u/s 33C(2), it is apparent that what the Labour Court granted to the appellant was the benefit to which the appellant-workman was held entitled to and had already been adjudicated upon by a Civil Court in No. 5 of 1983 and the salary to which the appellant-workman was entitled to, has been adjudicated upon by the High Court in its Judgment in W.P.No. 5710 of 1989 dated July 17, 1989 whereby it was held, as noticed above, that the appellant is entitled to the time scale of pay mentioned in Circulars dated March 17, 1977, June 22, 1979 and May 24, 1980. It has therefore to be held that the claim put forward by the appellant-workman in application u/s 33C(2) before the Labour Court was in respect of a matter which was based on an existing right and had been duly adjudicated upon and could be enforced u/s 33C(2) of the Act. The Labour Court has not adjudicated any disputed claim but has merely computed the amount based on the judicial orders aforesaid. Such power being incidental to the Labour Court''s power u/s 33C(2) akin to that of the Executing Court''s power to interpret and implement the adjudication already made.

In the circumstances, we have to uphold the contention of the appellant that the learned single Judge fell in error in coming to the conclusion that the Labour Court lacked authority to pass the order u/s 33C(2).

Accordingly, this Appeal is allowed. The order passed by the learned single Judge quashing and setting aside the orders passed by the Labour Court u/s 33C(2) of the Act and passed in M.P. No. 134 of 1993 dated September 20, 1993 is set aside and the Writ Petition is consequently dismissed. No order as to costs.