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Judgment
S.S. Sodhi, J.—The controversy raised in this Writ Petition is with regard to the jurisdiction of the Labour Court in proceedings u/s 33C(2) of the Industrial Disputes, Act, 1947 (hereinafter referred to as the Act).
The facts relevant to this matter are that the workman Shri V.N. Sardana was working as clerk (grade II) in the Traffic Accounts Office, Northern Railway, Jalandhar. On September 5, 1969 he was removed from service consequent upon a departmental enquiry held against him in a disciplinary matter. This order was challenged in a civil suit which culminated in a decree for declaration being passed on September 29, 1973, holding the removal from service of Shri V.N. Sardana to be illegal on the ground that it had not been passed by the appointing authority. It was in pursuance of this judgment that Shri V.N. Sardana resumed duty on February 25, 1974. The question then arose at to the emoluments payable to Shri V.N. Sardana for the period September 5, 1969 to February 24, 1974. In the first instance an order was passed by the Deputy C.A.O. (G) on September 3, 1974 that Shri V.N Sardana be treated on duty for all purposes and full pay and allowances for this period be paid to him, in accordance with the relevant provisions of the Indian Railway Establishment Code, Volume II (hereinafter referred to as the Code) It may be mentioned here that according to the petitioner General Manager, Northern Railway this order was wrongly passed under sub-rule 3 of Rule 2044-A (FR-54 A) and at any rate the Deputy C.O.A. (G) was not competent to pass the order reinstating Shri V. N. Sardana in service and allowing him full pay and allowances for the period in question Be that as it may, the Deputy C.A.O. (G) withdrew the said order by his subsequent order of January 4, 1975. It was thereafter that orders were passed by the General Manager, Northern Railway on March 26, 1975 and May 6 1975, whereby payment to Shri V.N. Sardana for the period September 5, 1969 to February 24, 1974 was ordered to be restricted to the subsistence allowance and other allowances admissible to him under Rule 2043-R(ii) of the Code, this period was however ordered to be treated as spent on duty for purposes of increment, retirement, leave and post-retirement passes.
Shri V.N. Sardana then approached the Labour Court under the Act, seeking full pay and allowances for the period during which he remained out of service (September 5, 1969 to February 24, 1974) The Labour Court vide its award (Annexure P-5) held Shri V.N. Sardana entitled to full pay and allowances and accordingly held him entitled to recover a sum of Rs. 17,309/88 ps from the General Manager, Northern Railway. It is this award which is challenged in this writ petition.
It was the contention of Mr. R.L. Garg appearing for the General Manager, Northern Railway that the order (Annexure P.1/A) passed by the Deputy C.A.O. (G) on September 3, 1974 allowing full pay and allowances to Shri V.N. Sardana had been cancelled by his subsequent order of January 4, 1975 (Annexure P-6) No order of the Deputy C.A.O. (G) survived on the basis of which full pay and allowances as claimed by Shri V.N. Sardana could be awarded to him. It was further contended that the operative orders in the present case were those of the General Manager (Annexures P-3 and P 4) which had been passed in accordance with the relevant service rules governing the conditions of service of Shri V.N. Sardana and there was thus no warrant for making any award which was contrary to the provisions thereof The main contention, however, raised in this Writ Petition was that the dispute raised in the present case was not one which could be adjudicated upon in proceedings u/s 33C (2) of the Act and Labour Court, thus acted without jurisdiction in entertaining it.
The scope and ambit of Section 33C (2) of the Act was considered by the Supreme Court in Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, where it was observed; "It is now well settled that a proceeding u/s 33C (2) it a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in term of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise duly provided for."
It was further observed that "in a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff''s right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not, and (iii) the extent of the defendant''s liability, if any The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding Determination no (iii) referred to above, that is to say, the extent of the defendant''s liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under beads (i) and (ii) They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding u/s 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding u/s 33C (2), as in execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score But that is merely ''incidental''. To call determinations (i) and (ii) ''incidental'' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court u/s 33C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as ''incidental'' to its main business of computation In such cases determinations (i) and (ii) are not incidental'' to the computation The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stags in the process which commenced with a reference to the Industrial Tribunal."
A similar view was expressed by the Supreme Court in an earlier case in Chief Mining Engineer East India Coal Co. Ltd. Vs. Rameswar and Others, where it was reiterated that the right to the benefit which is sought to be computed in proceedings u/s 33C(2)of the Act must be an existing right, that is to say aright already adjudicated upon or provided for.
The contention of the counsel for the petitioner Mr. R.L. Garg thus was that in the present case there was no existing right of Shri V.N. Sardana to full pay and allowances as claimed by him in view of the order of the General Manager under the relevant service Rules that he be paid only subsistence allowance for the period in question. Section 33C (2) of the Act was thus not the appropriate provision of law available to Shri V.N. Sardana for seeking the relief claimed.
Mr. J.C. Verma, appearing for the respondent Shri V.N. Sardana, on the other band, sought to contend that once a declaration had been granted by the Civil Court that the order removing Shri V.N. Sardana from service was illegal, it had the effect of restoring Shri V.N. Sardana to his original position in his service as if the order of his removal had never been passed against him. He would consequently be entitled to full pay and allowances as he would have received had the order of removal not been passed against him. There was thus an existing right available to Shri V.N. Sardana and the Labour Court, therefore, had jurisdiction to adjudicate upon and compute his claim for wages for the period in question.
The contention raised was founded upon the judgment of the Supreme Court in Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh, . In this case in dealing with the provisions of Rule 54 of the Fundamental Rules framed by the State of Uttar Pradesh Article 309 of the Constitution in the context of the Civil Court holding that the order of dismissal passed against a public servant was invalid, it was held that this Rule undoubtedly enables the State Government to fix the pay of a public servant whose dismissal had been set aside in a departmental appeal. In a case, however, where the order of dismissal was declared invalid in a civil suit, the effect of the decree in the civil suit would be that the appellant was never to be deemed to have been lawfully dismissed from the service and an order of reinstatement would thus be superfluous. The effect of the adjudication by the Civil Court was to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.
The authority is clearly not applicable in the instant case. The observations made therein were with reference to the provisions of Rule 54 of the Fundamental Rules, framed by the State of Uttar Pradesh which both in content and substance are different than the relevant service Rules, which govern the matter here What is more no question arose there with regard to the ambit and scope of the provisions of section 33C (2) of the Act The conditions of service governing the employment of workman clearly apply. It is in the context of these conditions that his entitlement to the benefit claim is to be determined.
Adverting to the jurisdiction of the Labour Court u/s 33C (2) of the Act, Mr. J.C. Verma, counsel for the respondent cited the decision of the Supreme Court in Ramakrishna Ramnath v. The Presiding Officer, Labour Court, Nagpur 1973 L of IC to urge that in proccedings u/s 33C (2) of the Act mere denial of the benefit claimed by the workman cannot oust the jurisdiction of the Court to enquire into the matter and consequently it was open to the Labour Court to determine the right of Shri V.N. Sardana to full pay and allowances as claimed by him. In the case cited above, a claim for retrenchment benefit was put forth by the workman and it was held that it was open to the Court to determine the existance of the right to the workman of such benefits. These observations in no way detract from the scope and ambit of Section 33C(2)of the Act as spelt out by the Supreme Court in Central Inland Water Transport Corporation Limited Vs. The Workmen and Another,
In the present case before the workman Shri V.N. Sardana could be awarded full pay and allowances as claimed by him. It would be necessary for the Labour Court to determine his right to such pay and allowances which in turn would necessarily call into question, the validity of the order passed by the General Manager under the Service Rules governing the matter allowing him only subsistence allowance for the period in question. In the face of this order of the General Manager it could not be said that there was any existing right to the amount claimed which Shri V.N. Sardana could seek to recover u/s 33C (2) of the Act In other words, determination of the right of Shri V.N. Sardana to full pay and allowances would be the principal matter for adjudication here. Incidental would be only the computation of such amount.
In view of the discussion above, there is no escape from the conclusion that the impugned award of the Labour Court was without jurisdiction and must consequently be quashed. It shall, however, be open to the workman Shri V.N. Sardana to seek the appropriate remedy as available to him. This Writ Petition is accordingly accepted. There will, however, be no order as to costs.