U.P. State Road Tranpsort Cororation vs State of U.P. and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the Petitioner, learned standing counsel for Respondent Nos. 1 and 2 and learned Counsel for workman Respondent No. 3, Gulab Rai, who has argued the case without filing the counter affidavit.

This writ petition is directed against order dated 28.01.1997 passed by Presiding Officer labour court U.P. Bareilly in Misc. case No. 17 of 1991 Gulab Rai v. U.P.S.R.T.C. and another u/s 33C(2) of Industrial Disputes Act. The case of the Respondent No. 3 before the labour court was that he had worked as carpenter in the regional workshop Bareilly of U.P.S.R.T.C. till 21.12.1988 and thereafter through letter dated 22.12.1980 he had been promoted on the post of in charge Body Section but he was continued to be paid the salary of only carpenter hence he must be paid the difference between the salary of in charge Body Section and of carpenter.

The labour court held that workman was entitled to difference of salary amounting to Rs. 24,000/-and odd as claimed by him. The Petitioner employer had contended that until and unless there was some adjudication regarding entitlement of the workman to the pay of In-charge Body Section, proceedings for recovery u/s 33C(2) were not maintainable as it was a case of determination of entitlement and not simply of computation. The labour court did not accept this plea. Copy of order dated 22.12.1980 was filed by the workman before the labour court. Unfortunately, its copy has not been annexed along with the writ petition. It appears that the order was signed by Junior Service Manager. However, firstly there is no finding that the order amounted to promotion. Secondly it was not proved that Junior Service Manager was authorised to promote a carpenter to the post of In-charge Body Section in such manner. It has also not been stated that what was the criteria of appointment or promotion to the post of In-charge Body Section. It is also not clear that for how much time the workman performed the alleged duties of In-charge Body Section.

In any case it was a clear-cut case of promotion. Unless appropriate procedure was followed, promotion could not be made by the U.P.S.R.T.C, Petitioner employer. Neither it was stated by the workman that what was the procedure nor it was proved that the procedure was followed.

The most glaring defect in the impugned order is that the contention of the employer that the matter was not cognizable u/s 33C(2) of Industrial Disputes Act was wrongly rejected by the labour court. Supreme Court in several authorities including the following has held that unless there is prior adjudication or determination, direction for payment u/s 33C(2) involving determination cannot be given.

State of Uttar Pradesh and Another Vs. Brijpal Singh,

Union of India (UOI) and Another Vs. Kankuben (Dead) by LRs. and Others etc. etc.,

Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner and Others,

Hamdard (Wakf) Laboratories Vs. Deputy Labour Commr. and Others,

D. Krishnan and Anr. v. Special Officer,Vellore Cooperative Sugar Mill and Anr. AIR 2009 SC 395

(cited by learned Counsel for Petitioner employer)

The demand was made quite late. Difference of wages was claimed since 1980 and the case was filed in the year 1991.

In this case on 15.05.1997, an interim order was passed staying the operation of the impugned award.

Accordingly, impugned award cannot be sustained.

However the fact remains that at least for some time the workman did discharge such duties which are to be discharged by an employee enjoying higher pay-scale and designation than that of carpenter i.e. In-charge Body Section. Signature of Junior Service Manager were admitted by the witness of the Petitioner employer. Supreme Court in Haryana Urban Development Authority Vs. Om Pal, has held that even if workman is not legally entitled to any relief still some damages may be awarded to him. Accordingly, impugned award is set aside but it is directed that the Petitioner shall pay Rs. 10,000/-to the workman Respondent No. 3 within two months failing which 1.5% interest shall be payable thereupon since after two months till actual payment/ realisation. The amount may either be paid through draft or deposited before the labour court for immediate payment to the workman concerned.

Writ petition is accordingly disposed of.