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Judgment
S.H. Kapadia, J.—By this writ petition, the workman seeks to challenge the order passed by the second Labour Court at Bombay in Application (IDA) No. 343 of 1988 rejecting the worker''s application under S. 33-C(2) of the Industrial Disputes Act, 1947 on the ground that the application was not maintainable under S. 33-C(2) of the said Act, 1947.
The facts giving rise to this dispute, briefly, are as follows.
Petitioner was employed with respondent No. 1-Company with effect from 2nd September 1976. According to the petitioner, she continued to work as a permanent packer with effect from 2nd September 1976. Her services were illegally retrenched on 21st February 1978. At that time, her salary was Rs. 244/- per month. Being aggrieved by the order of retrenchment, she challenged the said Order before the Industrial Tribunal in Reference (ID) No. 160 of 1979. By Award dated 21st January, 1981, the Industrial Tribunal directed reinstatement with continuity of service and full back wages. The Company reinstated the workman on 24th April 1981 i.e., 3 months after the award. She was, at the time of reinstatement, not paid full back wages in terms of the Award because her back wages were computed on the basis of a Settlement of 1977 and not on the basis of a Settlement dated 4th March, 1981 which came into existence during the pendency of the above reinstatement. She was reinstated on 24th April 1981, but she continued to receive wages under the old Settlement of 1977 instead of being paid wages under the settlement dated March 4, 1981. In the circumstances, she approached Deputy Commissioner of Labour for redressal of her grievance on August 4, 1981. Because she went to the Deputy Commissioner of Labour alleging breach of the above Settlement dated 4th March, 1981, she was once again retrenched on October 15, 1982. In the circumstances, she raised an Industrial Dispute vide Reference (IDA) No. 324 of 1983. By Award dated 11th September 1985 in the said Reference, the Labour Court directed respondent No. 1 to be reinstated with continuity of service and half back wages. She was once again reinstated and once again, she was not paid in terms of the Award dated 11th September 1985 and she was paid only at the rate of Rs. 18/- per day as consolidated wages which was even less than what was being paid to her juniors. In the above circumstances, the petitioner once again approached the Commissioner of Labour on January 16, 1986 and the Commissioner of Labour directed the petitioner to approach the Labour Court u/s 33-C(2) of the Industrial Disputes Act. in the above gross facts, the petitioner filed on 1st March, 1988, Application u/s 33-C(2) of the said Act, 1947 claiming difference in wages. She also claimed difference under the Award dated 11th September 1985 passed by the Labour Court in Reference No. 324 of 1983 and she also claimed the difference payable on reinstatement as per the Settlement dated March 4, 1981. The Company did not choose to file its Written Statement for a period of one year. It ultimately filed its Written Statement on February 24, 1989. Before the Labour Court, the Company contended that the continuity of service awarded by the Labour Court was only for the purposes of calculation of gratuity. It was also contended by the Company that the Labour Court had no jurisdiction u/s 33-C(2) of the said Act to decide as to whether there was a breach of the above Settlement dated 4th March, 1981. On 7th April 1981, petitioner herein filed her calculations before the Labour Court, claiming Rs. 45,315.65. She also filed copies of the Award in Reference No. 160 of 1979 and Reference No. 324 of 1983. Thereafter, evidence was led before the Labour Court. The above facts have been brought on record in the course of the said evidence. In her cross-examination, the petitioner conceded that she had received Rs. 8,775/- towards half back wages, but in her cross-examination, she categorically asserted that she has not been paid wages at the rate mentioned in the settlement dated 4th March, 1981 only on the ground that she was not in the employment of the Company on that date in view of the termination of her services which was subsequently set aside by the Award. In her cross-examination, she has further testified that in 1981, she was a permanent workman, particularly after the Award granting reinstatement came to be delivered and particularly in view of the fact that her services from 1976 were continuous and her services were wrongly terminated, as held by the impugned Award. In her cross-examination, she has stated that before the Commissioner of Labour, she had claimed bonus amounting to Rs. 13,113.14 for the period 1981 upto 1988. In her evidence, she has further deposed that she has prayed for encashment of privileged leave, causal leave, sick leave etc. Despite opportunity, the Company did not choose to lead any evidence in rebuttal. The evidence of the petitioner remained unshaken. However, by the impugned order, the Labour Court dismissed the application only on the ground that it had no jurisdiction to decide the matter under S. 33-C(2) of the said Act, 1947. At the same time, the Labour Court framed large number of issues even on merits, but according to the Labour Court since the worker had claimed back wages on the footing that she was not paid wages as directed by the Award at the rate mentioned in the Settlement dated 4th March, 1981 and that she was paid as per the Settlement of 1977 which contemplated a lesser rate, the question can only be decided in adjudication and not under S. 33-C(2) of the said Act, 1947 and only on the ground of maintainability, the application came to be dismissed. Being aggrieved by the impugned order, the present Writ Petition has been filed.
Before coming to the rival contentions, it may be mentioned that in the present matter, it appears that the Company stands closed. The learned counsel for the Company is also handicapped in as much as he has no instructions with regard to the date from which the Company has closed down. This fact is required to be mentioned at the very outset because grave injustice has been caused to the workman as indicated by the gross facts which are enumerated hereinabove. The Company has acted high handedly and the Company has acted in defiance of the Awards passed by the Industrial Tribunal. The workman has been retrenched only because she chose to fight with the Management for her legal rights as indicated by the facts above. This prelude is required to be mentioned because in the present case, under Article 226 of the Constitution, the Court is required to do justice to the petitioner and this prelude is also required to be mentioned because in the present matter, finer points of law are sought to be raised which, in this case, were never raised earlier before the Labour Court and in any event, in the above facts, as they stand, it is not possible for the Court to even remand the matter back to the Labour Court because the conduct of the Company is very clear that they were not in a position to produce the documents and that they have not been leading any evidence before the Labour Court and to remand the matter back would amount to travesty of justice, particularly with regard to the facts of the present case. Under Article 226 of the Constitution, this Court can certainly even exercise powers by which a worker who seeks justice and claims wages on the ground that her services continued to be in existence and whose services have not been terminated was certainly entitled to claim wages also for the period subsequent to her claim in the application u/s 33-C(2) of the said Act, 1947.
With the above introductory remarks, I will now consider the contentions advanced on behalf of the worker.
Mrs. Mhatre, learned counsel appearing on behalf of the petitioner contends that the judgment and Order of the Labour Court is totally erroneous in law and it is perverse on merits. She contended that by now, it is well settled by various judgments of the Supreme Court and this Court that u/s 33-C(2), the Labour Court is entitled to entertain, try and dispose of matters which are based on a claim made by the worker and which claim arise on a Settlement. In the above matter, it is pointed out by the learned counsel for the petitioner that after the entire evidence came to be recorded and although the Labour Court concludes that it has no jurisdiction it has gone into the adjudication and has come to the conclusion that the Company has honoured both the Awards. If the Court had no jurisdiction to entertain the dispute u/s 33-C(2), then it was precluded from recording a finding that the Company has honoured the Awards. According the learned counsel, therefore, the impugned judgment is required to be set aside. She further contends that looking to the past conduct of the Company, the Court under Article 226 as a case arising on peculiar facts, should arrive at a figure, may be ad hoc, so that remand is obviated because to remand the matter would further extent the agony of the Workman because the Company is closed and, in any event the conduct of the Company is such that it will not lend any assistance by producing the documentary evidence and ultimately, the workman will be without any remedy. Accordingly, the learned counsel for the petitioner has left to this Court the figure which the Company is required to pay on the basis of a statement/summary of the back wages which she has calculated for the period January 1981 upto October 1992. According to her calculations, the figure come to around Rs. 1,20,803/-. The petitioner, who is present, in the Court has given instructions to the learned counsel for the petitioner, leaving the figure to be arrived at by this Court on the basis of the statement which she has furnished to this Court. The learned counsel for the petitioner has also referred to the petitioner''s application u/s 33-C(2) in which the petitioner has claimed wages payable to her at the above rate and of the above amount for the period January 1981, upto the date of her application on 1st March, 1988. However, she claims the above benefits for the extended period after 1988 upto 1992 as stated hereinabove and as stated in the statement delivered to this Court, copy of which is also furnished to the Company. The worker has claimed wages upto October 1992 because the Company stands closed from that date and it is on this basis that the figure is left to this Court to decide the matter.
However, Mr. Verma, the learned counsel appearing for the Company vehemently contended before me that in the present matter, the Labour Court was right in coming to the conclusion that the claim of the worker is not maintainable u/s 33-C(2). Mr. Verma further contends that as found by the Labour Court, the Awards were duly honoured by the Company making payments and in view of the said findings, this Court should not interfere with the impugned judgment herein. Mr. Verma next contends that in any event, the worker had made a claim by the above application without following the prescribed specified forms and even if this Court takes the view that strict compliance of the rules of specified forms is required, the application made by the worker suffers from the vice of vagueness and in the above circumstances, the claim should not have been entertained on merits. Mr. Verma further contends that the claim was made only on 1st March 1988 and in the circumstances, this Court should not grant wages or benefits to the worker upto 1992 because in such cases, there is no question of a notional extension being given in a matter which is pending before the Labour Court u/s 33-C(2) of the said Act, 1946. Mr. Verma contends in other words that if an application is made on 1st March 1988 and if the worker claims wages for the period from January 1981, then she is entitled to claim wages, subject to her claim being proved only upto 1st March 1988, but the Court cannot extend or grant relief to the workman upto October 1992 and for the period 1st March 1988 upto October 1992 if a worker seeks computation and relief on that basis, in that event, the worker should make another application u/s 33-C(2) and this Court, therefore, should not compute the figure for the period subsequent to 1st March 1988. Mr. Verma contends that ultimately the jurisdiction of the Labour Court u/s 33-C(2) is a very limited jurisdiction. It is well settled that it is an Executing Court and in the circumstances, it is contended that even if the Court wants to give a benevolent interpretation to the provisions of Section 33-C(2) of the Act, the Court cannot go beyond the Section and in the circumstances, Mr. Verma contends that this Court should not give the relief in respect of the period after 1st March 1988. Mr. Verma, further contends that in the present matter, in any event, the statement furnished by the learned counsel for the petitioner includes an item of bonus and further, she has claimed amounts towards leave wages which she was not entitled to. Mr. Verma further contends that even ad hoc increases were only payable to a permanent workman. As regards the question of bonus, I may point out that while calculating the figure which I have determined by this Order, I have not taken that Head into account. As regards leave wages, the amount has not even been claimed by the workman and as regards the ad hoc increase, I am of the view that the workman herein was a permanent worker and she is certainly entitled to the benefit of the increase under the Settlement dated 4th March 1981 as a permanent workman and she cannot be denied atleast, the amount under that Head.
Two points, therefore, arise for consideration before me. Firstly, whether the Labour Court was right in coming to the conclusion that it had no jurisdiction u/s 33-C(2) of the Act. I find merit in the contention of the learned counsel for the petitioner that the order of the Labour Court is erroneous in law and even on facts. u/s 33-C(2) it cannot be disputed that when a claim of an applicant-worker is arising out of settlement, then Section 33-C(2) would certainly stand attracted and the Labour Court is certainly entitled to ascertain as to whether there is a breach of the Settlement. In the present case, the Labour Court, on the other hand, says that the Awards have been duly honoured by the Company and yet, in the same breath, it has stated that the worker has claimed wages as per the Settlement dated 4th March, 1981. If that be the case, the controversy is very narrow. It is a case of the workman before the Labour Court that she is entitled to be paid wages as per the rate contemplated by the settlement dated 4th March 1981 whereas according to the employer, she was not entitled to be paid wages at that rate because in 1981, during the pendency of the reinstatement, she was not in service. In the present matter, on facts, it is clear that the Industrial Tribunal granted reinstatement to the workman in the Reference and on reinstatement with back wages, the rate of wage was required to be decided as per the Settlement dated 4th March, 1981. This dispute was certainly within the jurisdiction of S. 33-C(2) of the Industrial Disputes Act and, therefore, the Labour Court erred in coming to the conclusion that it had no jurisdiction to entertain the Dispute under S. 33-C(2) of the Industrial Disputes Act. Even on merits, in the present matter, the workman stood reinstated by the Award of the Industrial Tribunal. It is true that on 4th March 1981 when the Settlement was arrived at, the reinstatement was pending but when the worker succeeded before the Tribunal then she was certainly entitled to claim wages and be paid wages at the rate under the Settlement dated 4th March 1981. Therefore, I find merit in the contention of the learned counsel for the petitioner that both, in law and on facts, the finding of the Labour Court was perverse and erroneous.
As regards the computation of the wages and the benefits in terms of money, I find merit in the contention of Mr. Verma, learned counsel for the Company that after 1st March, 1988, the worker is not entitled to claim the benefits or the computation particularly in view of the limited jurisdiction of the Labour Court u/s 33-C(2) of the Industrial Disputes Act and in every such matter, the worker is required to once again make another application and claim wages for the period from 1st March 1988 upto 24th October 1992 when the Company stood closed down. However, on the facts and circumstances of the case, I find that this is a fit case which squarely comes within the scope and powers of this Court under Article 226 of the Constitution. In this case, as stated above, the Company has acted in a high handed manner. In the above matter, the worker has been made to run from pillar to post and the worker is harassed only because she sought to seek redress in accordance with law. Moreover, as stated in the facts enumerated hereinabove, in the present matter, both on law and on facts, it is established that the worker is a permanent workman. He services have not been terminated till today and in the circumstances, she is certainly entitled to claims wages even after 1st March 1988 and under Art. 226 of the Constitution, after going through the statement furnished to this Court by the worker, I am satisfied, after excluding two items viz. bonus and leave wages computation, that the workman is certainly claiming a rightful amount. This order is required to be passed because even before the Labour Court, the Company did not choose to lead evidence in rebuttal. It did not produce any documents to show as to at what rate the worker is entitled to claim wages and benefits being computed in terms of money and to remand the matter once again, after 24th October 1992 when the Company is closed down, would not subserve the ends of justice. At one stage, the matter was even adjourned in order to enable Mr. Verma to take instructions from the Company whether the matter may be remanded back to the Labour Court and whether the Company would undertake to produce relevant documents. However, Mr. Verma has not been able to obtain any instructions. Even when the matter came before this Court on the earlier occasion, there was no representative from the Company to give instructions to Mr. Verma who, with his usual fairness, candidly told the Court about the handicap which he has suffered in the matter. In the above circumstances, purely under Art. 226 of the Constitution, I pass the following order :
ORDER
Rule is made absolute in terms of prayer clause (a) with costs.
Taking into account the Statement of back wages for the period January 1981 upto 24th October 1992, excluding the bonus and excluding the Head - Leave Wages, the worker has claimed Rs. 1,20,803/- for the above period. In view of the facts and circumstances of the case and taking into account the wages paid by the Management, as indicated in the Statement and after giving credit for the amount paid by the Management to the worker of Rs. 8,775/-, I order the Company to pay an amount of Rs. 65,000/- (Rupees Sixty Five Thousand only) within eight (8) weeks from today. It is clarified that the worker would be entitled to take appropriate execution proceedings in case the said amount is not paid within eight (8) weeks from today.
Accordingly, writ petition is disposed of.
Issuance of certified copy expedited.