Khandelwal Laborataries Vs. Labour Court [Kerala High Court, 09-03-2016]

Contents

Industrial Disputes Act – Sec.33C(2) – Labour Court in an application under Sec.33C(2) of the ID Act cannot adjudicate the dispute of entitlement or the basis of claim of the workman and it can only interpret the award or settlement on which the claim is based and that its jurisdiction is like that of an executing court.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

ALEXANDER THOMAS, J.

W.P(C).No.24057 Of 2006

Dated this the 9th day of March, 2016.

AGAINST THE ORDER IN CP 89/2002 of LABOUR COURT, KOLLAM DATED 23-03-2006

PETITIONER

THE MANAGING DIRECTOR, KHANDELWAL LABORATARIES (PVT).LTD 69/87, D, LAD PATH, POST BOX NO.7808, MUMBAI-400033.

BY ADVS. SRI.THOMAS ABRAHAM SRI.K.B.ARUNKUMAR

RESPONDENTS

1. LABOUR COURT, KOLLAM.

2. V.K.SUDHAKARAN NAIR, T.C.23/1175, VINAYAKA, MELARANUR, KARAMANA P.O., THIRUVANANTHAPURAM.

3. THE DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM.

R2 BY ADV. SRI.R.GOPAN R1 & R3 BY GOVERNMENT PLEADER SRI.P.V.ELIAS

J U D G M E N T

The prayer in this Writ Petition (Civil) filed by the petitioner- company is for a writ of certiorari to quash the impugned Ext.P-10 order dated 23.3.2006 passed by the Labour Court, Kollam in Claim Petition No.89/2002 filed by the 2nd respondent herein in terms of the provisions contained in

# Sec.33C(2) of the Industrial Disputes Act.

There is also a consequential prayer to quash the impugned Ext.P-11 show cause notice dated 28.7.2006 issued by the District Labour Officer, Thiruvananthapuram, whereby the petitioner has been directed to show cause as to why Revenue Recovery steps should not be taken to realise the amount due under Ext.P-10 as arrears of land revenue by resort to proceedings under the Revenue Recovery Act.

2. Ext.P-6(1) to P-6(4) Claim Petition No.89/2002 was instituted by the 2nd respondent herein, in terms of the provisions contained in Sec.33C(2) of the Industrial Disputes Act. It is the case projected by the claimant therein, 2nd respondent herein, that he was employed as a sales promotion worker under the management from 10.8.1993 to 29.11.2001 and that management had illegally denied him employment from 2.9.2000 onwards and that later his resignation from the company services was accepted with effect from 29.11.2001 and that he is entitled for various benefits for the period up to 29.11.2001. On this basis he has claimed that he is entitled to get a total amount of Rs.1,60,326/- by way of unpaid salary, salary due to stoppage of work by the management, transportation expenses, medical reimbursement, leave allowances, bonus and loss due to illegal withholding of increments, etc. The management submitted Ext.P-7 objections dated 15.5.2003 to the above said claim. It has been inter alia contended therein that the claimant had worked as a medical representative in their laboratory at Hubli in Karnataka and therefore appropriate Government in this case is the Government of Karnataka and accordingly, the Labour Court, Kollam, which is situated in the State of Kerala has no territorial jurisdiction to adjudicate this matter. After submission of Exts.P-6(1) to P-6(4) claim petition dated 27.08.2002, the petitioner submitted Ext.P-6(5) to P-6(9) additional claim statement pointing out that the total amounts due to him comes only to Rs.1,31,107/- as stated in Ext.P-6(9), and not the amount of Rs.1,60,326/- mentioned in Ext.P-6(4). It is the case of the petitioner that his entire claim is based on the said additional statement as per Exts.P-6(5) to P-6(9) and not on the basis of original statement of claims in Exts.P-6(1) to P-6(4). The employer (petitioner herein) thereupon submitted Ext.P-8 additional objections giving various details of their version to contend that none of the claims in Ext.P-6(5) to P-6 (9) are entitled to the workman etc. The Management produced Exts.P-1 to P-13 documents before the Labour Court and the workman produced Exts.R-1 to R-13 documents on his side. PW-1 was examined on behalf of the workman and RW-1 was examined on behalf of the Management. The Labour Court after adjudication of the matter rendered the impugned Ext.P-10 order dated 23.03.2006 holding that after submission of the aforestated additional claim by the workman, the Management had not submitted any additional statement or objections and that the claim stands proved and accordingly ordered that the entire amount of Rs.1,31,107/- [as claimed in Ext.P-6(9)] shall be paid by the Management to the workman within two months, failing which, the workman will be entitled to recover it with interest at the rate of 6% from the date of petition till the date of realisation. The impugned Ext.P-10 proceedings is under challenge in this petition.

3. This Court, while admitting this Writ Petition (Civil) on 11.09.2006, had granted interim stay of the impugned Ext.P-10 proceedings on condition that the writ petitioner (Management) pays to the 2nd respondent (workman) 50% of the amount directed to be paid as per the impugned order within one month. Impugning the interim order dated 11.09.2006 passed in the W.P.(C), the petitioner (Management) had preferred a Writ Appeal as W.A.No.1788/2006 before the Division Bench, in which the Division Bench as per judgment dated 21.11.2006 had disposed of the said Writ Appeal after hearing both sides ordering that the impugned interim order passed by the learned Single Judge will stand modified by directing the appellant to deposit 50% of the amount directed to be paid in the Labour Court within two months therefrom. It is pointed out by the learned counsel appearing for the petitioner that in compliance with the aforesaid judgment dated 21.11.2006 of the Division Bench in W.A.No.1788/2006, the petitioner (Management) had deposited an amount of Rs.65,554/- before the Labour Court, Kollam on 19.01.2007.

4. Heard Sri Thomas Abraham, learned counsel for the petitioner (Management), Sri R.Gopan, the learned counsel appearing for the second respondent (workman) and the learned Government Pleader appearing for respondents 1 and 3.

5. The learned counsel for the petitioner has raised several contentions. The first contention is that the Labour Court, Kollam has no territorial jurisdiction to adjudicate the dispute under Section 33C (2), as the workman was transferred to Hubli in Karnataka State in June, 2000, and that he had given his resignation effective from the end of November, 2001, from the service of the company. Therefore, ‘the appropriate Government’, for the purpose of Sec.10 of the Industrial Disputes Act is the Government of Karnataka and not the Government of Kerala and therefore, the Labour Court, Kollam situated within the territorial limits of the State of Kerala has no jurisdiction to entertain the application under Section 33C (2).

6. The second contention raised by the petitioner is that in view of the ruling of this Court in

# Sukumaran v. H.M.T.Ltd reported in 1999 (1) KLT SN 9 (Case No.10)

and the Division Bench ruling in

# Everestee v. District Labour Officer reported in 1999 (2) KLT 560

the Labour Court has no jurisdiction to entertain an application under Sec. 33C(2) of the Industrial Disputes Act preferred by an employee who admittedly had resigned from service of the employer long prior to the submission of his application under Sec. 33C(2). It is further contended by the petitioner-Management that even if the Labour Court had territorial jurisdiction to entertain the application under Section 33C(2), the major claims put forth in Ext.P-6(5) to P-6(9) additional claim is one in relation to the period from 02.09.2000 onwards and that the workman himself has really admitted that those claims are in respect of the periods from 02.09.2000 up to 29.11.2001, when the workman was illegally kept out of service by the employer and that therefore those claims do not make out a justiciable cause of action in Sec.33 C(2) and that the impugned order of the Labour Court deserves to be interdicted on that ground. It is further submitted that the finding of the Labour Court in the impugned Ext.P10 proceedings that the Management had not submitted any separate objections after the amendment of the workman’s claim as per Ext.P-6(5) to (9) and that thus the claims of the workman stand proved, etc., is absolutely wrong and without any factual foundation in as much as the Management had specifically submitted Ext.P-8 additional objections to the additional/amended claim put forward by the workman and that this crucial aspect of the matter has been totally lost sight by the Labour Court, etc.

7. It is pointed out by the learned counsel appearing for the 2nd respondent that the claims put forward by the workman are those covered by Ext.P-6(5) to (9) additional statement submitted by the workman on 26.09.2002 and that the workman had claimed only an amount of Rs.1,31,107/- as stated therein and not the amount of Rs.1,60,326/- earlier mentioned in Ext.P-6(4). As per Ext.P-2(d) (produced as Ext.R-6 by the workman before the Labour Court) dated 16.03.2000, the Management had transferred the workman from Kasaragod to Hubli in Karnataka with effect from 27.03.2000 and it is seen that the workman had not reported there within that time. As per Ext.P-2(e) [Ext.R-7] dated 30.03.2000, the Management had settled all the pending dues as admitted by them to the workman. In Ext.P-2(f) [Ext.R-8] dated 04.04.2000, the Management had directed the workman to report before the new station at Hubli in Karnataka without any further delay. The Management has stated in Ext.P-2(g) [Ext.R-9] dated 03.07.2000 that since the workman had not reported at Hubli till then, he should report there at least by 10.07.2000 morning. In Ext.P-2(h) [Ext.R-10] dated 14.05.2001, the Management has stated that the workman was unauthorizedly absent from 02.09.2000 which is causing problems to the employer, etc., and that the workman has lost his lien on the post of Medical Representative and it would be deemed that he has abandoned his employment and that his name has been removed from the roll of the Management with immediate effect (viz. From 02.09.2000). In Ext.P-3 [Ext.R-11] dated 29.11.2001, the workman has tendered his resignation with effect from 29.11.2001 and requested the Management for full and final settlement of his accounts. In Ext.P-12 [Ext.R-12] dated 30.05.2002, the Management has informed therein that all other dues mentioned therein, which are admissible to the workman stands thus paid as mentioned therein. In Ext.P-15 (Ext.R-13] dated 30.08.2002, the Management has informed the petitioner that full and final settlement of all his claims have been duly made and that the workman has not demanded anything more and that therefore, it is stated that all his settlements are perfectly in order, etc. Thus it can be seen that for the period from 16.03.2000, the employee was transferred from Kerala to Karnataka State and the Management has treated him as unauthorisedly absent since 2.9.2000 and that he has abandoned his employment and that his name stands removed from the roll from July, 2000, etc. On this basis, it is contended by the petitioner (Management) that the appropriate Government as conceived in Section 10(1) of the Industrial Disputes Act in this case is the Government of Karnataka and therefore Labour Court at Kollam which is situated within the State of Kerala, has no territorial jurisdiction to entertain the application under Section 33C(2). The Labour Court has taken note of the fact that the employment of the workman had originated in Kerala State and that the main office of the Management within the State of Kerala was at Thiruvananthapuram and that even though he was transferred to Hubli in Karnataka later in 16.03.2000 onwards, the Labour Court within the State of Kerala has jurisdiction under Sec.33C(2). From a perusal of the claims made by the workman it can be seen that the significant part (if not substantial) of those claims are in relation to periods in which he was employed in the State of Kerala. It is not disputed by the petitioner-Management that one of the places of business of the petitioner is situated in the State of Kerala and that the employment of the workman had originated within the State of Kerala even though he was subsequently transferred outside the State of Kerala. The Bombay High Court in

# D.K.Mahajan v. Chemosyn Pvt. Ltd reported in 1976 (1) LLN 90

dealt with a case of medical representative who was working in Nagpur and his employer Company was at Bombay and his wages were being were paid at Nagpur by means of cheques drawn at Bombay. The employee made an application under Section 33C(2) of the Industrial Disputes Act in respect of his claims by approaching the Labour Court at Nagpur. The Labour Court at Nagpur dismissed the application holding that it had no territorial jurisdiction and as the industrial dispute should be deemed to have arisen only in Bombay because the employer functioned there. The said finding of the Labour Court was challenged by the employee in the writ petition before the Bombay High Court which was the subject matter of the aforesaid ruling. The Bombay High Court held in Paragraph 6 and 7 of the said ruling that the primary purpose of Sec. 33C of the Industrial Disputes Act being to provide the aggrieved workman with a forum similar to executing courts, the said provision calls for a broad and beneficial construction which should serve to advance the remedy and to suppress the mischief and that Section 33C (2) was inserted in the Industrial Disputes Act for making a provision for recovery of money due from an employer to a workman. This provision has nothing to do with the industrial disputes as such proceedings under Sec.33C(2) are virtually execution proceedings. It was further held in Para 8 of the said ruling by the Bombay High Court that the question of dispute involved in the said application under Sec. 33C(2) relates to the recovery of money due from the employer and the entitlement contemplated under Sec.33C(2) relates to the receiving of money or benefit from the employer. This is the only the controversy or dispute involved in the proceedings under Sec.33C(2) of the Act. Therefore, it was held that the general principles incorporated in the Code of Civil Procedure and particularly in Sec.20 of the Code of Civil Procedure are applied to proceedings under Sec.33C(2) of the Industrial Disputes Act, then it could safely be held that the subject matter of a dispute will substantially arise within the jurisdiction of a court where the money is payable or where workman is entitled to get the benefits which are capable of being computed in terms of money. In the said case, the money or the benefit which are to be computed and to which the workman was entitled were payable at Nagpur and so the subject matter of the dispute involved in that case was held to be substantially arose within the territorial jurisdiction of the Labour Court at Nagpur. It is further clearly held therein that the controversy which is germane for deciding the matter under Sec.10 of the Industrial Disputes Act is not at all relevant for deciding the question as to whether a Labour Court will have territorial jurisdiction to entertain an application under Sec. 33C(2) of the Act for recovery of money due from an employer. It was held therein that the Labour Court at Nagpur obviously committed a grave error in coming to the conclusion that the dispute in that case did not substantially arise within its jurisdiction. It will be suitable to make a reference to paragraph 7 and 8 of the said ruling which reads as follows:

“7. The S.33C was inserted in the Industrial Disputes Act for making a provision for recovery of money due from an employer to a workman. This provision has nothing to do with the industrial disputes as such. Nature of the right conferred upon a workman is only to recover the money due from an employer on the basis of his existing individual right in that behalf. Sub-section (1) of S.33C makes a provision for computation of the benefits which is consequential in nature of the right conferred upon a workman to recover money due from an employer. This provision, therefore, deals with the recovery of the money due from an employer to a workman which are virtually execution proceedings. In substance, it has nothing to do with the industrial disputes as such. Therefore, in our opinion, the decisions to which reference has been made by the learned counsel for the respondents, based on interpretation of S.10 of the Industrial Disputes Act, 1947, are of no assistance while construing the provisions of S.33C (2) of the Industrial Disputes Act. As observed by this Court in

# Lalbhai Tricumlal Mills Ltd. v. Dhanubhai Motilal Vin [AIR 1955 Bom. 463]

the Industrial Disputes Act does not deal with the causes of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court. In this context this Court further observed: “But applying the well known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction. And, therefore, the correct approach to this question is to ask ourselves where did this dispute substantially arise and in our opinion the only answer to that question can be that the dispute substantially arose in Bombay and not in Ahmedabad. What is the dispute? The dispute is not as to whether the employee approached the employer in Ahmedabad, and no agreement was arrived at. The dispute is whether the employer was justified in dismissing the employee, and inasmuch as the employment was in Bombay, and the dismissal was in Bombay, it is difficult to understand how it can possibly be urged that the dispute did not substantially arise in Bombay.”

The principle laid down by this Court was quoted with approval by the Supreme Court in

# Indian Cable Co. Ltd. v. Its Workmen [1962-I L.L.J 409]

and

# Workmen of Shri Ranga Vilas Motors (P) Ltd. v. Sri Ranga Vilas Motors (P) Ltd. [AIR 1967 SC 1040]

(vide supra). In this context in the latter case the Supreme Court observed:

“As the High Court observed, there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. This Court in

# Indian Cable Co. Ltd. v. Its Workmen [1962 -I L.L.J.409 S.C]

held as follows:

‘The Act contained no provisions bearing on this question, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings. Dealing with a similar question under the provisions of the Bombay Industrial Relations Act, 1946, Chagla C. J ., observed in

# Lalbhai Tricumlal Mills Ltd. v. Vin. [AIR 1955 Bom. 463 at p.464]:

‘But what we are concerned with to decide is: where did the dispute substantially arise? Now, the Act does not deal with the cause of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court. But applying the well known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction.’ In our opinion, those principles are applicable for deciding which of the States has jurisdiction to make a reference under S.10 of the Act. Applying the above principles to the facts of this case it is quite clear that the subject-matter of the dispute in this case substantially arose within the jurisdiction of the Mysore Government.”

8. If the principles laid down by the Supreme Court in

# Workmen of Shri Ranga Vilas Motors (Private) Ltd. v. Sri Rangavilas Motors (Private) Ltd. [AIR 1967 S.C 1040]

(vide supra), are applied to the provisions of S.33C(2) of the Act, then, in our opinion, having regard to the facts and circumstances of the present case it could safely be said that the subject-matter of the dispute involved in the applications for recovery of money substantially arose within the jurisdiction of the First Labour Court at Nagpur. It is not disputed before us and it is quite clear from the record that the wages were being paid to the petitioner at Nagpur, though the cheques were drawn at Bombay. Therefore, it cannot be disputed that the money was payable to the petitioner at Nagpur. The question or dispute involved in the present applications under S.33C(2) of the Act relates to the recovery of money due from the employer, namely, the respondents. Section 33C (2) of the Act makes a provision for recovery of money by any workman which he is entitled to receive from his employer. The entitlement contemplated by S.33C (2) relates to the receiving of money or benefit from the employer. This is the only controversy or dispute involved in the proceedings under S.33C (2) of the Act. Therefore, if the general principles incorporated in the Code of Civil Procedure and particularly in S.20 of the said Code are applied to the proceedings under S.33C(2) of the Act, then, in our opinion, it could safely be held that the subject-matter of a dispute will substantially arise within the jurisdiction of a Court where the money is payable, or where a workman is entitled to get the benefits which are capable of being computed in terms of money. Section 20 of the Code of Civil Procedure deals with the institution of suits in a Court within the local limits of whose jurisdiction either the defendant resides or the cause of action arises. In the present case the cause of action for institution of an application under S.33C(2) of the Act is the recovery of money due from an employer by the workman. If the money or the benefits which are to be computed and to which the workman was entitled are payable at Nagpur, then, in our opinion, the subject-matter of the dispute involved in this case substantially arose within the jurisdiction of the First Labour Court at Nagpur. The controversy which is germane for deciding the matter under S.10 of the Act is not at all relevant for deciding the question as to whether a Labour Court will have jurisdiction to entertain an application under S.33C(2) of the Act for recovery of money due from an employer. Therefore, in our opinion, the First Labour Court at Nagpur obviously committed an error in coming to the conclusion that the dispute in this case did not substantially arise within the jurisdiction of the First Labour Court at Nagpur.

8. It may be noted that the Bombay High Court in the aforesaid ruling in D.K.Mahajan’s case (supra) has relied on the decision of the Apex Court in the case Workmen of

# Sri Rangavilas Motors (P) Limited v. Sri Rangavilas Motors (P) Limited reported in AIR 1967 SC 1040

para 14., wherein the Supreme Court approved the observations of the High Court therein that there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. The Apex Court in Sreerangavilas Motors (P) Limited’s case (supra) had also approved the observations of the Bombay High Court in

# Lalbhai Tricumlal Mills Ltd. v. Chanubhai Motilal Vin reported in AIR 1955 Bombay 463

at p.464 wherein Chagla, C.J., posed the following question as to where did the dispute substantially arise?, and that since the Industrial Disputes Act does not deal with the cause of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court, the well known tests of jurisdiction as to the residence of the place of business of the defendant or as to the subject matter of the cause of action, should be adopted to determine the jurisdiction of the Labour Court or Industrial Tribunal. As already mentioned herein above in para 8 of D.K.Mahajan’s case (supra) the Bombay High Court has clearly held that principles discernible from Sec.20 of the Code of Civil Procedure could also be fittingly invoked while determining the crucial issue as to the territorial jurisdiction of the Labour Court or the Industrial Tribunal. Therefore, in the light of the above said well established legal principles, the crucial aspect to be examined by this Court is that whether there is some nexus between the dispute (between the employer and the employee) and territory of the State concerned and not necessarily between the territory of the State and the Industry concerning which the dispute has arisen, as has been held by the Apex Court in Sri Rangavilas Motors (P) Ltd’s case (supra), by placing reliance on the aforementioned Bombay High Court rulings. So also, this Court can fittingly apply the principles discernible or importable from Sec.20 of the Code of Civil Procedure and if the place of residence or place of business of the defendant or the cause of action, wholly or in part, has arisen within the territorial limits of a State, then the Labour Court concerned within the territorial limits of that State will get jurisdiction. The crucial aspect of the matter is that the legislature has envisaged that Sec.33C is an easy and effective remedy to the workman to get over the mischief of not having a proper forum which led to making the workman run from pillar to post even in a case where he is claiming only pre-existing benefits or rights that are already adjudicated or have been clearly provided for. Looking from this perspective, it is to be seen that the employment of the workman had originated within the State of Kerala and he was initially employed as a Medical Representative to work within the territorial limits of the State of Kerala and based on the allegations that his performance was not satisfactory, the Management had transferred him from Kerala to Karnataka on 16.03.2000. The significant portion of the claims raised in Ext.P-6(5) to (9) are in relation to the period in which he was worked within the State of Kerala at Thiruvananthapuram. The Labour Court, Kollam has got territorial jurisdiction in respect of matters which come within the Thiruvananthapuram District as well. Therefore, indisputably, there is clearly some nexus between the dispute raised in this matter as between the employer and the employee and the territory of the State of Kerala and as tellingly observed by the Apex Court, the said nexus need not be between the territory of the State and the industry concerning which the dispute has arisen. In this view of the matter, this Court has no hesitation to hold that the Labour Court, Kollam, has territorial jurisdiction to entertain the application under Sec. 33C(2) preferred by the 2nd respondent-workman against the management. The said issue is answered accordingly.

9. The second contention raised by the petitioner Management in view of the rulings of this Court in

# Sukumaran v. HMT reported in 1999(1) KLT SN 10

and the Division Bench ruling in

# Everestee v. DLO reported in 1999 (2) KLT 560

that an application under Sec.36C(2) preferred by a workman who has admittedly resigned from the service of the employer, cannot be maintained. It is to be noted at the outset that both the aforesaid rulings in Sukumaran’s case (supra) and Everestee’s case (supra) dealt with a case where an employee who had admittedly sought voluntary retirement from the service of the employer has subsequently raised industrial dispute under Section 10(1) of the Industrial Disputes Act alleging that some of the amounts which were legally due to the workman on account of the voluntary retirement scheme, were not actually paid by the employer and accordingly, he sought a reference of the said dispute under Sec.10 (1) of the Industrial Disputes Act. It was on this aspect of the matter that this Court in the aforestated rulings in Sukumaran’s case (supra) and Everestee’s case (supra) held that a workman who on his volition has sought voluntary retirement benefits from an employer cannot be held to be a workman within the meaning of Sec.2(s) of the Industrial Disputes Act so as to raise an industrial dispute under Section 10(1) of the Industrial Disputes Act alleging that some of the amounts payable by the employer consequent on the sanctioning of the voluntary retirement scheme, were not actually paid to the workman concerned. On this basis, a similar contention was raised before a Division Bench of this Court in the case

# Thomas v. Sahithya Pravarthaka Co-operative Society Limited reported in 2014 (3) KLT 761.

In Thomas’s case (supra) the Division Bench dealt with a matter wherein the workman had retired from the service of the employer and sought for certain benefits which were allegedly payable to him during the period of his service prior to his retirement and claimed that those were benefits which could be computed in terms of money and thus preferred an application under Sec.33C(2) of the Industrial Disputes Act. The specific contention was raised before the Division Bench in Thomas’s case (supra) is that since the employee/workman had already retired from service, he cannot be treated as a workman as per the Industrial Disputes Act, and that he cannot maintain a claim under Sec.33C(2) of the Industrial Disputes Act. An indepth examination of the above said contention was considered by the Division Bench in Thomas’s case (supra) and it was held that when it comes to understanding of the term `workman’, which is occurring in Sec.33C(2), the Court cannot be guided by Sec.2(s) of the Industrial Disputes Act and the matter should be guided by the legal principles laid down by the Apex Court in

# National Building Corporation v. Pritam Singh reported in AIR 1972 SC 1579

and

# Bhaskara Menon v. KSRTC reported in 1979 KLT SN 26 (C.No.49).

On this basis, the Divison Bench held in Thomas’s case (supra) that a workman even if he has retired from service of the employer can still maintain an application under Sec.33C(2) in respect of benefits allegedly payable to him during the period of his past service under the employer prior to his retirement. It will be profitable to make a reference to paragraph 12 to 16 of the said judgment which reads as follows:

’12. These principles are laid down in paragraph 7 of the judgment, which reads as under:

“7. Now, it is noteworthy that S.2 of the Act, which is the definition section begins, as is usual with most of the definition sections, with the clause, “unless there is anything repugnant in the subject or context”. This clearly indicated that it is always a matter for argument whether or not this statutory definition is to apply to the word “workman” as used in the particular clause of the Act which is under consideration, for this word may both be restricted or expanded by its subject matter. The context and the subject matter in connection with which the word “workman” is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus construing the word “workman” is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of S.33-C of the Act. This section was enacted for the purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to S.10 by raising disputes and securing a reference which is obviously a lengthy process. S.33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the power similar to those of an executing Court so that the workmen concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which S.33-C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to S.10 of the Act. To accept the argument of the appellant, it would always be open an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by S.33-C and compel him to have resort to the lengthy procedure by way of reference under S.10 of the Act thereby defeating the very purpose and object of enacting this provision. This in our view, quite clearly brings out the repugnancy visualised in the opening part of S.2 of the Act and such a position could hardly have been contemplated by the legislature. In order to remove this repugnancy S.33-C(2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term “workman” as used in S.33-C (2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting S.33-C in the Act. We are, therefore, inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is no dispute about the employee’s right which is not denied, he will be entitled to file a suit. Whether or not the right of suit can be claimed by the employee we are not persuaded on the basis of this argument to accept the construction canvassed on behalf of the appellant and deny to a dismissed employee the benefit to speedy remedy under S.33-C(2) of the Act.”

13. In the above judgment, the Apex Court approved the judgments of the Madras High Court upholding the maintainability of applications filed under S.33-C(2) of the Act by persons who had ceased to be workmen, which were followed by the High Courts of Punjab, Mysore and Allahabad. This is evident from paragraph 5 of the judgment which is extracted below for reference.

“5. We now turn to some decisions of the High Courts which directly deal with this point. In

# Tiruchi-Srirangam Transport Co. (P) Ltd. v. Labour Court Madurai (1961) 1 Lab L.J. 729 = (AIR 1961 Mad. 307)

Ramchandra Ayyar J., repelled a similar contention as was raised before us by Shri Malhotra on behalf of the appellant. In the case cited, one Iswaran was employed as a traffic supervisor in Tiruchi- Srirangam Transport Co., (P) Ltd. His services were terminated in December 1956 under a scheme of retrenchment. Later, disputes were raised between the management and other workers regarding bonus for the years 1955-56 and 1956-57 and a settlement was reached in April, 1958 pursuant to which the management declared additional bonus and one month’s wage for each of the two years. Iswaran having not been paid anything by the way of bonus though he had worked during those two years applied to the Labour Court for necessary relief under S.33-C (2) of the Act. The Labour Court having granted the relief claimed, the management approached the High Court under Art. 226 of the Constitution questioning the jurisdiction of the Labour Court to entertain Iswaran’s claim. The High Court repelled this challenge though on an other point relating to the claimant’s right to benefit under the settlement, the case was remitted back to the Labour Court for a fresh decision. It was observed in that decision that while enacting S.33-C(2), the Legislature did not intend merely to provide a remedy for the limited class of the persons who are in actual employment on the date of the application under that section. The words “any workman” in S.33-C(2), according to that decision, would mean workman who would be entitled to benefits conferred under the Act and would necessarily include a discharged workman as well. In

# Manicka Mudaliar (M) v. Labour Court, Madras (1961) Lab LJ 592 (Mad.)

a Division Bench of the Madras High Court, while hearing a writ appeal, from the decision of a learned single Judge of that Court also upheld the competency of a petition under S.33- C (2) of the Act for arrears of salary and one month’s salary in lieu of notice, although at the time of the application, the applicant was no longer in service of the employer. Following these Madras decisions a learned single Judge of the Punjab and Haryana High Court in

# Bachittar Singh v. Central Labour Court, Jullunder (AIR 1969 Punj.187)

a Division Bench of the Mysore High Court in

# Management of Government Soap Factory, Bangalore v. Presiding Officer, Labour Court, Bangalore (AIR 1970 Mys.225)

and the Allahabad High Court in

# U.P. Electric Supply Co., Ltd v. Asstt. Labour Commissioner, Allahabad (1966) 2 Lab. LJ 714 (All.)

took the same view. In the Allahabad case, however the provision which directly came up for construction was S.6-H of the U.P. Industrial Disputes Act, the language of which was considered to be identical with that of S.33-C of the Act. Incidentally it may be pointed out that S.6-H of the U.P. Industrial Disputes Act has been held to be identical with S.33-C of the Act even by this Court.”

14. In fact, in

# Bhaskara Menon v. Kerala State Road Transport Corporation (1979 KLT SN 26 (C. No.49) = FLR 1979 (39) 66)

a contention was raised before this Court that an application filed under S.33-C(2) of the Act by a workman who had retired from service was not maintainable. In this judgment, following the Apex Court judgment in National Buildings Construction Corporation (supra), this Court rejected the same holding thus:

“In the light of categoric statement of the law by the Supreme Court it must now be taken to be well established that S.33-C(2) will take within its fold a workman, who was employed in an industry during the period in respect of which he claims relief even though at the time of the application he is no longer so employed. The contention to the contrary advanced by the counsel for the respondents deserves only to be rejected.”

The principles laid down in these judgments completely answer the contention of the employer against the maintainability of the application by the appellants.

15. Judgment under appeal shows that the learned Single Judge has followed three judgments of this Court. The first judgment is in the case of

# Sukumaran v. H.M.T. Ltd. (1999 (1) KLT SN 9 (C.No.10)).

This judgment shows that what is laid down therein is that a retired workman is not a workman as defined in S.2(s). In so far as the judgments in the case of

# Everstee v. District Labour Officer (1999 (2) KLT 560)

and

# Purandaran v. Hindustan Lever Ltd. (2001 (1) KLT 867)

are concerned, those cases involved claims raised by persons who had voluntarily retired from service availing of the benefit of a scheme introduced by the employer therein. In Everestee’s case (supra), such a retired workman attempted to raise a dispute for adjudication under S.10 of the Act and when that was declined, approached this Court. Following the judgment in Sukumaran’s case (supra), this Court held that such a person is not a workman as defined under S.2 (s) and that therefore dispute cannot be raised. This view is reiterated by the learned Single Judge, who decided Purandaran’s case (supra) also.

16. All the aforesaid judgments were rendered in the context of S.2(s) of the Act and there cannot be any doubt about the correctness of those judgments. However, when it comes to understanding the term ‘workman’ occurring in S.33- C, we cannot be guided by S.2(s), and instead, should be guided by the principles laid down by the Apex Court in N.B.C.Corporation’s case and Bhaskara Menon’s case (supra). Therefore, while we affirm the correctness of the judgments followed by the learned Single Judge, we are unable to endorse his view that an application under S.33-C(2) cannot be maintained by a retired workman in respect of his claims with reference to the period of employment under the employer.’ In this view of the matter the Division Bench held that the view taken in the rulings in Sukumaran’s case (supra) and Everestees case (supra) are in the context of deciding issue as to whether a person who has sought voluntary retirement can maintain industrial dispute under Sec.10(1) of the Act for disputing the amounts payable to him consequent on the Voluntary Retirement Scheme, and that the said position laid down therein cannot be imported for deciding the issue as to whether the workman who has already retired from service can maintain an application under Sec.33C(2) in respect of the benefits or amounts payable to him during his past service prior to his retirement. Accordingly, it was held that even such a retired employee can maintain an application under Sec.33C(2) in respect of his claims so long as those are in relation to the period of employment under the employer, prior to the retirement of the employee concerned. The only difference in the facts and situation of this case is that the workman concerned had resigned from service of the employer, whereas in Thomas’s case (supra) dealt with the case of an employee who had retired from service of the employer. On an examination of the legal principles laid down by the Division Bench in Thomas’ case (supra) this court is of the considered opinion that the said legal principles are also importable in the case of an employee who has resigned from service and therefore, it is only to be held that an application under Sec.33C(2) can be maintained by respondent No.2 even though he had resigned from service so long as the said benefits or amounts claimed are in respect of his past service under the employement of the Management. The said issue stands answered accordingly.

10. The next contention raised by the petitioner-management is that Ext.P-6 claims of the workman does not disclose a justiciable cause of action for adjudication under Sec.33C(2) of the Industrial disputes Act, in so far as substantial claims thereunder relates to period from 2.9.2000 to 29.11.2001 (date of resignation of the workman), wherein the workman has admittedly made such claims by contending that those benefits are claimed by him in respect of that period when he was illegally kept outside the service of the employer. In this regard, Sri.Thomas Abraham, learned counsel appearing for the petitioner- management, would contend that it is by now too well established by a catena of rulings of the Apex Court and various High Courts that jurisdiction available under Sec.33C(2) of the ID Act is essentially one akin to execution proceedings and that therefore such claims are amenable for adjudication under the jurisdiction conferred under Sec.33C(2), if and only if the benefits or rights claimed by the workman are existing right which flow out of adjudication or as recognised or provided by the terms and conditions of the employment. In this regard, it is to be noted from a mere reading of Ext.P-6(5) to (9) that item No.2 thereof is a salary claim for 15 months from September, 2000 to November, 2001 and it clearly stated by the workman thereunder as follows:

“Illegal stoppage of work by the management from 2nd Sept 2000 till the date of resignation up to 29.11.2001.” Item No.4 of those claims are for certain expenses of reimbursement for the month of September, 2000. Item No.5 is also inclusive of the claim for the whole of the year 2000-01, item No.6 is for the year 2000-01 and item No.7 (bonus claim) is for the year 2000-01 and 2001-02. Item No.8(a) thereunder is also inclusive of the claims for the whole of year 2000-01, item No.8(c) is variable DA claims from 2.9.2000 to 29.11.2001, item No.8(d) is for 11 months in the year 2000, item No.8 (e) and 8(f) are for the whole year 2000 and 2001, 8(g) and 8(h) are also inclusive of the claims from September, 2000 and the year 2001, item No.8(i) is also inclusive of the claims for the period from September, 2000 and item No.8(j) is also inclusive for the claims for the whole years 2000 and 2001. Thus, it can be seen that the specific admission made by the workman in Ext.P6(5) is that he was illegally kept outside employment by the management for the period from 2.9.2000 till up to his resignation on 29.11.2001. All the aforestated claims which also cover the period from 2.9.2000 has also been made on the premise that action of the management in keeping him outside employment from 2.9.2000 is illegal and therefore, he is entitled for all consequential benefits. As per the case projected by the management, the workman was transferred from Kerala to Karnataka (Hubli) on 16.3.2000 as per Ext.P-2(d) dated 16.3.2000 and that he had not reported for duty in Karnataka. In Ext.P-2(g) dated 3.7.2000, the management had given the workman time till 10.7.2000 morning for joining the said station. In Ext.P-2(h) dated 14.5.2001, the management has alleged that the workman has been unauthorisedly absent from work from 2.9.2000 and that he has lost his lien in the post and is deemed to have abandoned his employment by remaining unauthorisedly absent and he has been removed from the role with immediate effect, etc. In para 2(2) on page 2 of Ext.P-8 objections, the management has alleged that though the workman has to report for duty at Hubli on 27.3.2000 he did not do so and that he had reported for work on 10.7.2000 and had worked there up to 2.9.2000 and that thereafter he has not worked at Hubli and going by the case projected by the management, the workman had voluntarily abandoned the employment and remained absent from duty from 2.9.2000 whereas the workman would contend that he was illegally kept outside from employment by the management and that since this was unlawful and illegal action, the workman is entitled for all consequential service benefits on this premise, etc. It is on this basis, that the workman would contend that even those claims for the period from 2.9.2000 when he was illegally kept outside employment by the management could be lawfully claimed by him in proceedings under Sec.33C(2). Whereas the management would contend that so long as there is no independent adjudication by any competent legal forum wherein there is conclusive finding, that the said action of the management is illegal, the remedy under Sec.33C(2) cannot be invoked. For determining this controversy, it will be appropriate to refer to the legal position settled by the Apex Court on the scope and ambit of jurisdiction conferred under Sec.33C (2) of the ID Act on this aspect of the matter.

11. In the celebrated case in

# Central Bank of India v. P.S.Rajagopalan reported in AIR 1964 SC 743 = 1964 (3) SCR 140

the Constitution Bench of the Apex Court dealt with a case in which the issue of maintainability of proceedings under Sec.33C(2) of the ID Act was considered in an application filed by a workman as per that provision on the basis of the Sasthri award. The management disputed the claim of the workman in that case on several grounds including the non-invokability of the jurisdiction under Sec.33C(2). It was accordingly urged by the management therein that since applications involved a question of interpretation of the Sasthri Award, they were outside the purview of Sec.33C(2) to award and settlement as the matters in regard to interpretation of the awards or settlement have been expressly provided for by Sec.36A of the Industrial Disputes Act. The said contention urged on behalf of the management was rejected by the Constitution Bench in Central Bank of India’s case (supra). The Supreme Court pointed out the clear difference in the scope of Sec.36A on the one hand and Sec.33C(2) on the other by holding that clear distinction lies in the fact that Sec.36A is not concerned with the implementation or execution of the award at all, whereas the sole purpose and objective of Sec.33C(2) is to deal with cases of implementation of individual rights of workmen falling under that provision whereas Sec.36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and where the appropriate Government is satisfied that the dispute deserves to be resolved by reference under Sec.36A. In this regard, the Supreme Court clearly indicated that the essence and substance of the power of Labour Court conferred in the Act being akin to that of executing court and that the Labour Court is fully competent to interpret the award or settlement on which the workman bases his claim under Sec.33C(2), just as the power available to the executing court to interpret the decree for the purpose of execution. It will be profitable to make a reference to para 18 of the said ruling of the Constitution Bench in

# Central Bank of India v. P.S.Rajagopalan reported in AIR 1964 SC 743

p. 749, which reads as follows:

“18. Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the executing court to interpret the decree for the purpose of execution. It is, of course true that the executing court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under Section 33-C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under Section 33-C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman’s right rests.”

The legal principles laid down by the Constitution Bench in the above said ruling in Central Bank of India’s case (supra) categorically makes it clear that the power of the Labour Court in a proceeding under Sec.33C (2) is akin to interpretation of the award or settlement on which a workman’s right is based. The executing court’s power to interpret the decree of which the workman’s right raised which is akin to execution proceedings to interpret the decree is for the purpose of execution based on the claim is referable to an award or settlement but that the said power under Sec.33C(2) does not extend to determination of the dispute or entitlement or the basis of the claim if there is no prior adjudication or recommendation of the same by the employer. In Central Bank of India’s case (supra) the Apex court dealt with a case arising under Sasthri award whereunder bank clerks operating the adding machine were entitled to special allowance of Rs.10/- per month. Four clerks made their respective claims before the Labour Court. The bank management denied the claims contending that claimants do not come within the category of “clerks” mentioned in Shastri award and the Labour Court does not have the power under Sec.33C(2) to determine whether claimants are within that category or not. The Constitution Bench, while rejecting this argument, held that enquiry as to whether the claimants therein came within the category of “clerks” mentioned in the award was purely incidental and necessary to enable the Labour Court to consider the reliefs prayed for and therefore that Court has got jurisdiction to enquire whether the claimants answered the description of “clerks” in the Shastri award which not only declared the right but also the corresponding liability of the employer bank. So this process of enquiry was held to be only a case of merely establishing the identity of claimants as coming within the ambit of the category of “clerks” and in the absence of such an incidental power of enquiry vested with the Labour Court, it would have been impossible to give relief to any one claiming the benefit of that award. It was so held that when the award mentioned that category, it named everyone who is covered in that description and so the enquiry is limited to merely ascertaining that identity and did not extend to any new enquiry into the claimant’s rights or employer’s liability. Essentially the role of the Labour Court in Sec.33C(2) proceedings was held to be akin to an execution court.

12. In the case

# Bombay Gas Co.Ltd. v. Gopal Bhiva and others reported in AIR 1964 SC 752

Justice P.B.Gajendra Gadkar in a three- Judge Bench judgment of the Supreme Court, after referring to the above said Constitution Bench ruling in Central Bank of India (supra) held that the proceedings contemplated by Sec.33C(2) are, in many cases, analogous to execution proceedings, and the Labour Court like the execution court in execution proceedings governed by the Code of Civil Procedure, would be competent to interpret the award on which the claim is based. But, the power of the executing court is only to implement the adjudication already made by a decree and not adjudication of the disputed claim which requires any adjudication for its enforcement in the form of a decree. In para 7 in Bombay Gas Co’s case (supra) it was held as follows:

“7. The question about the scope and effect of the provisions of Section 33-C(2) of the Act and the extent of the jurisdiction conferred on the Labour Court by it have been recently considered by us in the case of Central Bank of India Ltd. v. P.S. Rajagopalan That decision shows that the applications made by the respondents were competent and the Labour Court had jurisdiction to deal with the question as to the computation of the benefit conferred on the respondents in terms of money. Mr Kolah for the appellant contends that though the applications made by the respondents may be competent and the claim made by them may be examined under Section 33-C(2), it would, nevertheless, be open to the appellant to contend that the award on which the said claim is based is without jurisdiction and if he succeeds in establishing his plea, the Labour Court would be justified in refusing to give effect to the said award. In our opinion, this contention is well-founded. The proceedings contemplate by Section 33-C(2) are, in many cases, analogous to execution proceedings, and the Labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure, the Labour Court under Section 33-C(2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a decree put in execution is shown to be a nullity, the executing court can refuse to execute it. The same principle would apply to proceedings taken under Section 33-C(2) and the jurisdiction of the Labour Court before which the said proceedings commenced. Industrial Tribunals which deal with industrial disputes referred to them under Section 10(1)(d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal with the disputes referred to them, but they cannot travel outsides the terms of reference and deal with matters not included in the reference, subject, of course to incidental matters which fall within their jurisdiction. Therefore, on principle, Mr Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents’ claim is based is without jurisdiction.”

13. In the well known case in

# M/s. East India Coal Company Ltd. v. Rameshwar reported in AIR 1968 SC 218

the Supreme Court has relied on the aforestated rulings referred to hereinabove. It was clearly held therein that the right to benefit which is sought to be computed under Sec.33C(2) must be “an existing one, that is to say, already adjudicated upon or provided for”. The Apex Court in East India Coal Co’s case (supra) has laid down eight propositions on the issue as to the scope and ambit of Sec.33C(2) as deducible from various decisions of the Apex Court as in

# Punjab National Bank Ltd. v. Kharbanda reported in AIR 1963 SC 487

# Central Bank of India v. P.S.Rajagopalan reported in AIR 1964 SC 743

and

# Bombay Gas Co. Ltd. v. Gopal Bhiva and others reported in AIR 1964 SC 752.

It will be profitable to refer para 4 of the ruling in

# East India Coal Co. Ltd. v. Rameshwar reported in AIR 1968 SC 218

p.220 which reads as follows:

“4.The following propositions on the question as to the scope of Section 33-C(2) are deducible from these three decisions:-

(1) The legislative history indicates that the legislature, after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing individual rights and therefore inserted Section 33-A in 1950 and Section 33-C in 1956. These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to Section 10(1) and without having to depend on their union to espouse their case.

(2) In view of this history two considerations are relevant while construing the scope of Section 33-C. Where industrial disputes arise between workmen acting collectively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance under Section 10(1). But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen. Therefore though in determining the scope of Section 33-C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under Section 10(1), cannot be brought under Section 33-C;

(3) Section 33-C which is in terms similar to those in Section 20 of the Industrial Disputes (Appellate Tribunal) Act 1950 is a provision in the nature of an executing provision;

(4) Section 33-C(1) applies to cases where money is due to a workman under an award or settlement or under Chapter VA of the Act already calculated and ascertained and therefore there is no dispute about its computation. But sub- section 2 applies both to non-monetary as well as monetary benefits. In the case of monetary benefit it applies where such benefit though due is not calculated and there is a dispute about its calculation;

(5) Section 33-C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers. It is open to the Labour Court to interpret the award or settlement on which the workmen’s right rests.

(6) The fact that the words of limitation used in Section 20(2) of the Industrial Disputes (Appellate Tribunal) Act 1950 are omitted in Section 33-C(2) shows that the scope of Section 33-C(2) is wider than that of Section 33-C(1). Therefore, whereas sub-section 1 is confined to claims arising under an award or settlement or Chapter VA, claims which can be entertained under sub-section are not so confined to those under an award, settlement or Chapter VA.

(7) Though the court did not indicate which cases other than those under sub-section 1 would fall under sub-section 2, it pointed out illustrative cases which would not fall under sub-section 2 viz. cases which would appropriately be adjudicated under Section 10(1) or claims which have already been the subject-matter of settlement to which Sections 18 and 19 would apply.

(8) Since proceedings under Section 33-C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court, the Labour Court like the executing court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33-C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction.”

After laying down the aforesaid eight propositions, their Lordships of the Supreme Court in para 5 of East India Coal Co.’s case (supra) clearly held as follows: (p.220 of the AIR report)

“5. 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.

………………………………………………………….”

14. In

# Central Inland Water Transport Corporation Ltd. v. Workmen reported in (1974) 4 SCC 696

the Apex Court held in tune with the aforestated rulings that as the power conferred under Sec.33C (2) is essentially in the nature of execution proceeding, it would appear that an investigation of the alleged right of re-employment is outside its scope and the Labour Court exercising power under Sec.33C(2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of re-employment. The Supreme Court has noted therein the clear distinction between the proceedings in a suit and execution proceedings and it was indicated that the plaintiff’s right to relief against the defendant involves an investigation which can be done only in a suit and once the defendant’s liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the function of an execution court. In this regard it was held in para 13 of the Central Inland Water Transport Corporation’s case reported in (1974) 4 SCC 696 p.701-702 which reads as follows:

“13. 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 heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33-C(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 under Section 33-C(2), as in an 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) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33-C(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 stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal that a workman cannot put forward a claim in an application under Section 33-C(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 under Section 10 of the Act.”

15. In the case

# Municipal Corporation of Delhi v. Ganesh Razak and anr. reported in (1995) 1 SCC 235

the Apex court after referring to the settled position in that regard has held categorically therein that the Labour Court in an application under Sec.33C(2) of the ID Act cannot adjudicate the dispute of entitlement or the basis of claim of the workman and it can only interpret the award or settlement on which the claim is based and that its jurisdiction is like that of an executing court. It was held therein that without a prior proper adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claimed by them on that basis was not maintainable. The claimants in that case were all daily rated casual workers of the Municipal Corporation of Delhi who claimed that they were doing the same kind of work as regular employees in the organisation and therefore, it was contended in law that they were required to be paid by the employer the same pay as of a regular employee on the principle of “equal pay for equal work”. They approached the Labour Court by filing an application under Sec.33C(2) claiming wages at the rates at which the regular employees were paid. The Labour Court ordered in their favour under Sec.33C(2). The Writ Petition filed by the Delhi Municipal Corporation before the Delhi High Court to challenge the said order of the Labour Court was dismissed. The Supreme Court clearly and unequivocally held that the right to benefit which is sought to be computed in terms of money as per Sec.33C(2) must necessarily be an existing right or benefit which has already been adjudicated upon or recognized or provided for in terms of the service conditions, etc. On this basis, the Apex court held that the ratio decidendi of the various Apex Court rulings on this subject clearly indicates where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement cannot be said to be incidental to the benefit claimed and is therefore totally outside the ambit of jurisdiction available under Sec.33C(2) of the Act. 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 under Sec.33C(2) of the Act, only when the entitlement has been earlier adjudicated or recognized 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 under Sec.33C(2) which is akin to execution court’s power to interpret the decree for the purpose of its execution. By applying these well known legal principles, the Apex court held in para 13 of the said ruling that the claim of the respondent-casual labourers to get parity of wages along with their regular counter parts had never been earlier settled by adjudication or recognition or provided for by the employer without which the stage for computation of that benefit could not arise at all in a proceeding under Sec.33C(2). Since parity of wages claimed by the workman on the basis of principle of “equal pay for equal work” being disputed and the same has not been the subject matter of concluded adjudication or at least recommendation or provision in that regard made in terms of the employment, there could be no occasion whatsoever for computation of the benefit in terms of money so as to attract jurisdiction under Sec.33C(2). It was found that the respondents’ claim is not based on a prior adjudication made in the writ petition which could be relied on as an adjudication enuring to the benefit of these respondents as well and accordingly, the Apex Court interfered with the order passed by the Labour Court under Sec.33C(2).

16. Applying these legal principles effective to the facts of this case, the management’s specific contention is that the workman had abandoned his employment and had remained unauthorisedly absent from 2.9.2000 onwards and that whatever benefit payable to him has already been paid and settled by the management. These submissions are made by the management on the basis of their pleadings and documents produced before the Labour Court. Per contra, the workman would contend that he was kept outside service by the employer from 2.9.2000 upto the date of his resignation on 29.11.2001 and this action of the management was wholly unlawful and illegal and therefore he is entitled for all consequential benefits during this period from 2.9.2000 onwards as well and that therefore the workman is justified in invoking the jurisdiction under Sec.33C(2) for various periods including that from 2.9.2000 to his date of resignation on 29.11.2001.

17. The Constitution Bench of the Apex court in Central Bank of India’s case (supra) reported in AIR 1964 SC 743 has inter alia held in para 19 (on page 749 of the AIR Report) as follows:

“19. …………………… If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S.33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made under Sec.33C(2). …………………………………….”

The said aspects referred to by the Constitution Bench in para 19 of Central Bank of India’s case (supra) has been pointedly considered and discussed by the Apex court in para 15 of Central Inland Water Transport Corporation’s case (supra) reported in (1974) 4 SCC 696 which reads as follows:

’15. It is, however, interesting to note that in the same case the Court at p. 156 gave illustrations as to what kinds of claim of a workman would fall outside the scope of Section 33-C(2). It was pointed out that a workman who is dismissed by his employer would not be entitled to seek relief under Section 33-C(2) by merely alleging that, his dismissal being wrongful, benefit should be computed on the basis that he had continued in service. It was observed:

“His … dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed . .. him, a claim that the dismissal … is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made under Section 33-C(2).”

By merely making a claim in a loaded form the workmen cannot give the Labour Court jurisdiction under Section 33-C(2). The workman who has been dismissed would no longer be in the employment of the employer. It may be that an Industrial Tribunal may find on an investigation into the circumstances of the dismissal that the dismissal was unjustified. But when he comes before the Labour Court with his claim for computation of his wages under Section 33-C(2) he cannot ask the Labour Court to disregard his dismissal as wrongful and on that basis compute his wages. In such cases, a determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and computation of wages just consequential upon such adjudication. It would be wrong to consider the principal adjudication as “incidental” to the computation. Moreover, if we assume that the Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have no jurisdiction to direct reinstatement under Section 33-C(2). And yet if its jurisdiction to compute the benefit is conceded it will be like conceding it authority to pass orders awarding wages as many times as the workman comes before it without being reinstated. Therefore, the Labour Court exercising jurisdiction under Section 33-C(2) has got to be circumspect before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, incidental to its computation of a benefit under an existing right, which is its principal concern.’ The position in relation to the facts of this case in respect of the claim made for the period 2.9.2000 onwards is almost identical or similar to the situation dealt with in para 18 of Central Bank of India’s case (supra) and para 15 of Central Inland Water Transport Corporation’s case (supra). The workman has no case whatsoever that there has been any proper adjudication by any competent legal forum which has found that action of the management in denying him employment from 2.9.2000 up to 29.11.2001 is illegal and unlawful and that he is entitled for consequential benefits for that period, etc. Without any such adjudication, the workman himself assumes that the action of the management in denying him work for the aforestated period is illegal and therefore he is entitled for all the consequential benefits and therefore he is well justified in filing an application under Sec.33C(2) for various benefits during that period as well. The employer does not recognise that their action in keeping the workman away from work was in any way illegal and on the other hand they would contend that the workman had voluntarily abandoned from employment and that he was unauthorisedly absent from work from 2.9.2000 onwards. Therefore, in the absence of a clear and categoric adjudication on that issue, the workman could not have maintained an application under Sec.33C(2) claiming various service benefits computed in terms of money for the period from 2.9.2000 up to 29.11.2001. The Labour Court clearly did not have jurisdiction under Sec.33C(2) to entertain the claim of the workman in respect of the period from 2.9.2000 onwards. It is true that in cross-examination, RW1 (management witness) has stated to a pointed suggestion that he is not able to deny claims of the workman. But that would not be sufficient as it was the bounden duty of the Labour Court to examine whether it has jurisdiction to entertain the claim of service benefits for the period from 2.9.2000 onwards wherein even the workman himself has clearly admitted in his claim statement that he has been “illegally kept outside from service by the management from 2.9.2000 up to 29.11.2001”.

It is trite law that even consent cannot confer jurisdiction on a forum which it does not otherwise have. Therefore, this Court is of the clear opinion that the Labour Court egregiously erred in entertaining the claim of the workman for service benefit for the period from 2.9.200 onwards. In this view of the matter the impugned Ext.P-10 order of the Labour court deserves to be interdicted in this judicial review proceedings.

18. The Labour Court has held that after the submission of the amended claim of Exts.P-6(5) to (9), the management had never submitted any objection thereto. This is clearly wrong as can be seen from the pleadings and documents produced in this case. After the submission of the amended claim, the management has submitted a detailed additional objections as discernible from Ext.P-8 produced in this Writ Petition. The Labour Court went totally wrong in holding that the management has not submitted any such objection and that therefore the claim stands proved. Very meticulous and detailed aspects are raised in Ext.P-8 objection by the management contending as to how the worker is not entitled for any of the benefits for the various periods in question. On the other hand a perusal of the amended claim as well as the unamended claim made by the workman as discernible from Ext.P-6 series, it can be seen that other than making generalised claims and descriptions, no other particulars are seen averred in the said claim to show precisely as to on what basis the workman would support each of his claims for the various service benefits for the various periods in question in the claim. Therefore, the matter requires reconsideration and the matter is liable to be remitted to the Labour Court for consideration afresh. Accordingly, the impugned Ext.P-10 order dated 23.3.2006 passed by the Labour Court is set aside and the claim of the workman stand remitted to the Labour Court for consideration afresh. Consequently, Ext.P-11 will also stand set aside.

19. The upshot of the above discussion is that the Labour Court has no jurisdiction to entertain the claims by the workman for various service benefits for the period from 2.9.2000 up to 29.11.2001. All such claims for the period from 2.9.2000 mentioned in Ext.P-6 claim will stand struck off. The workman will give a precise and clear amended claim in respect of the various claims made in Ext.P-6(5) to (9) after excluding the service benefits claimed for the period from 2.9.2000 to 29.11.2001. It is made clear that such claims of the workman will be limited to only those claims already covered by Ext.P- 6 claims but excluding the service benefits for the period from 2.9.2000. Such corrected claim should be submitted by the workman within a period of one month from the date of appearance of the parties before the Labour Court. The management will be at liberty to submit additional objections to such corrected/amended claim of the workman. Both sides will be at liberty to adduce additional evidence either oral or documentary as it may deem fit and proper. It is made clear that in case the workman does not prefer any corrected/amended claim as directed above, then the Labour Court should ensure that none of the claims in Exts.P-6(5) to (9) which are in relation to the period from 2.9.2000 should be considered and the same shall be eschewed out of consideration and the consideration should be limited for the period mentioned prior to 2.9.2000 which are already mentioned in the claim and the matter should be proceeded on that basis in accordance with law. Both parties shall appear before the Labour Court, Kollam on 21.6.206 at 11:00 a.m. The Labour Court shall ensure that final orders are passed on the claim as directed above without any further delay giving this matter top priority and at any rate, within a period of 6 months from the date of production of a certified copy of this judgment.

20. As already indicated herein above, the petitioner- management is said to have deposited an amount of Rs.65,554/- before the Labour Court in compliance with the direction of the Division Bench of this Court in W.A.No.1788/2006 arising out of the interim order passed in this Writ Petition. The Labour Court will ensure that the said amount is deposited in a nationalised bank for a period of one year.

With these observations and directions, the above captioned Writ Petition (Civil) stands finally disposed of.

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