http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: P.K. SINGH AND OTHERS

       Vs.

RESPONDENT: PRESIDING OFFICER & OTHERS

DATE OF JUDGMENT15/07/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) OJHA, N.D. (J)

CITATION:  1988 AIR 1618            1988 SCR  Supl. (1) 471  1988 SCC  (3) 457        JT 1988 (3)    62  1988 SCALE  (2)27

ACT:      Industrial Disputes  Act, 1947:  ss. 10(1)  and 33C(2)- Workmen-’C’ Grade  Fitters doing  work of ’B’ Grade Fitters- Claim for  higher  wages-Admissibility  of-Not  entitled  to relief unless duly promoted or reclassified.

HEADNOTE:      The appellant engaged as ’C’ Grade Fitters in a Central Government Undertaking  filed applications  under s. 33-C(2) of the  Industrial Disputes  Act, 1947  for  computation  of wages payable to them for certain periods. Their case before the Central  Government Industrial Tribunal-cum-Labour Court was that  since they  were doing  the same duties which were performed by a ’B’ Grade Fitter, they were entitled to claim wages payable to ’B’ Grade Fitters. The Management contended that since  the  principal  question  involved  in  all  the applications related  to re-classification  of  the  workmen concerned, a  relief which could not be claimed under s. 33- C(2) of  the Act,  these were not maintainable. The Tribunal rejected the applications by a common order.      In this  appeal by  special leave, it was contended for the workmen  that they  should be  classified as  ’B’  Grade Fitters even  though they  had been  appointed as  ’C’ Grade Fitters because  they had  been performing  the duties which were similar to the duties of ’B’ Grade Fitters.      Dismissing the appeal, ^      HELD:1.1 A  workman cannot  put forward  a claim  in an application  filed   under  s.  33-C(2)  of  the  Industrial Disputes Act,  1947 in  respect of  the relief  which is not based on  an existing  right and  which can be appropriately the subject-matter  of an  industrial  dispute  requiring  a reference under s. 10 of the Act. [475C-D]      1.2 By merely doing the same kind of work which is done by a  senior grade  workman, a junior grade workman will not be entitled  to claim the wages of senior grade unless he is duly promoted. Such a workman cannot complain that he is not being paid  the salary  and allowances due to a senior grade workman, since he does not possess an 472 existing right  to claim  it. If  on an adjudication made on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the said  question on a reference made under s. 10(1) of the Act, it  is held  that he should be deemed to be a member of the senior  cadre, then  only he  would be able to claim the salary and  allowances  payable  to  senior  grade  workmen. [474G-H;475A-B]      Central Rank  of India  Ltd. v. P.S,. Rajagopalan etc., [1964] 3  S.C.R. 140;  State Bank  of Bikaner  and Jaipur v. Khandelwal (R.L.).  [1968] I  L.L.J. 589  and State  Bank of Bikaner and  Jaipur v.  Gopal Sahal  Pareek. [1968] 1 L.L.J. 593, referred to.      R. B.  Bansilal Abirchand  Mills  Co.  Ltd.  v.  Labour Court, Nagpur  & Ors.,  [1972] 2  S.C.R. 580  and V.M Vankar (Macwana) v.  Indian Farmers  Fertilizer, [1984]  Lab.  I.C. 1342, distinguished.      1.3 In  the  instant  case,  the  appellants  had  been employed as ’C’ Grade Fitters and in order to get the salary and allowances  payable to  ’B’ Grade Fitters they had to be promoted to  the cadre of ’B’ Grade Fitters on their passing certain trade  tests. They  had not  been so  promoted.  The claim of the appellants, therefore, is not tenable. [473D-E]      2. It  is open  to the workmen, if they are so advised, to seek  a  reference  of  the  question  whether  they  are entitled to  be treated  as ’B’ (grade Fitter Under s. 10 of the Act. [476E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2640(L) of 1980      From the  Judgment and  order dated  14.2.1978  of  the Central Govt. Industrial Tribunal Cum-Labour Court New Delhi in L.C.A. Nos. 389. 391-393, 395-406 of 1978.      Mrs. Urmila Kapur Advocate, for the Appellants.      V.C. Mahajan,  Miss A.  Subhashini, R.P  Srivastava and C.V. Subba Rao for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMlAH, J. This appeal by special leave is filed by 16  workmen of the Small Arms Factory, Kanpur against the common order dated 14th February, 1979 passed by the Central Government  Industrial   Tribunal-cum-Labour  Court,  Alipur Road, Delhi in applica- 473 tions bearing  L.C.A. Nos. 389, 391 to 393 and 395 to 406 of 1978 filed  under section 33-C(2) of the Industrial Disputes Act, 1947  (hereinafter referred  to as ’the Act’) rejecting their claims.      The appellants filed the applications under section 33- C(2) of the Act for computation of the wages payable to them for certain periods as detailed in the respective petitions. Their case was that even though they had been engaged as ’C’ Grade  Fitters,   they  were  entitled  to  the  salary  and allowances payable  to ’B’  Grade Fitters,  since they  were doing the  same duties  as ’B’ Grade Fitters. The Management contested the  applications filed  by the appellants stating that they were not maintainable since the principal question involved  in   all  the  applications  related  to  the  re- classification of  the workmen  concerned and  that  such  a relief could  not be  claimed under  section 33-C(2)  of the Act. The  Central Government  Industrial Tribunal-cum-Labour Court upheld  the objection  of the  Management and rejected the applications  by its  common order  dated 14th February, 1979. Aggrieved  by the  said common  order  the  appellants filed this appeal by special leave.      It  is  not  disputed  that  the  appellants  had  been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

employed as  ’C Grade Fitters and in order to get the salary and allowances  payable to  ’B’ Grade Fitters they had to be promoted to  the cadre of ’B’ Grade Fitters on their passing certain trade tests. Admittedly, the appellants had not been so promoted.  But, their  case before the Central Government Industrial Tribunal-cum-Labour  Court was  that  since  they were doing  the same  duties which  are performed  by a  ’B’ Grade Fitter,  they were entitled to claim the wages payable to ’B’  Grade Fitters  under section  33-C(2)  of  the  Act. Section 33-C(2) of the Act reads thus:           "33-C(2). Where any workman is entitled to receive           from the  employer any  money or any benefit which           is capable of being computed in terms of money and           if any  question arises  as to the amount of money           due or  as to  the amount  at which  such  benefit           should be computed, then the question may. subject           to any  rules that  may be made under this Act, be           decided by  such Labour  Court as may be specified           in  this  behalf  by  the  appropriate  Government           within a period not exceeding three months.                Provided that  where the presiding officer of           a Labour Court considers it necessary or expedient           so to  do he  may, for  reasons to  be recorded in           writing extend  such period by such further period           as he may think fit." 474      The above  provision came  up for  consideration before this Court  A in  the Central  Bank of  India Ltd.  v.  P.S. Rajagopalan etc.,  [1964] 3  S.C.R. 140. At pages 150-151 of the said Report this Court observed thus:                "The Legislative  history to  which  we  have           just  referred   clearly  indicates   that  having           provided  broadly   for  the   investigation   and           settlement of  industrial disputes on the basis of           collective bargaining,  the legislature recognised           that individual  workmen should  be given a speedy           remedy  to   enforce  their   existing  individual           rights, and  so, inserted  s. 33-A  in the  Act in           1950  and   added  s.  33-C  in  1956.  These  two           provisions   illustrate   the   cases   in   which           individual  workmen   can  enforce   their  rights           without having to take recourse to s. 10(1) of the           Act, or  without having to depend upon their Union           to espouse  their cause.  Therefore, in construing           s. 33-C  we have  to bear  in  mind  two  relevant           considerations. The  construction should not be so           broad as  to bring  within the  scope of  s.  33-C           cases which  would  fall  under  s.  10(1).  Where           industrial disputes arise between employees acting           collectively ’and  their employers,  they must  be           adjudicated upon  in the  manner prescribed by the           Act, as for instance, by reference under s. 10(1).           These  disputes   cannot  be  brought  within  the           purview of  s. 33-C.  Similarly, having  regard to           the fact  that the  policy of  the Legislature  in           enacting s.  33-C is to provide a speedy remedy to           the individual workmen to enforce or execute their           existing rights,  it would  not be  reasonable  to           exclude from  the scope  of this  section cases of           existing rights which are sought to be implemented           by individual  workmen. In  other words, though in           determining the scope of s. 33-C we must take care           not  to  exclude  cases  which  legitimately  fall           within its purview, we must also bear in mind that           cases which  fall under  s. 10(1)  of the  Act for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

         instance, cannot be brought within the scope of s.           33-C."      It is  obvious from the facts narrated above, which are not in  dispute, that  by merely doing the same kind of work which is  done by a ’B’ Grade Fitter, a workman appointed as a ’C’  Grade Fitter  will not be entitled to claim the wages of a  ’B’ Grade  Fitter unless  he is  duly  promoted  after getting through  the prescribed  trade tests  Such a workman cannot complain  that he  is not  being paid  the salary and allowances due  to a  ’B’ Grade  Fitter, since  he does  not possess an 475 existing right  to claim  it. If  on an adjudication made on the said question on a reference made under section 10(1) of the Act,  it is held that he should be deemed to be a member of the  cadre of  ’B’ Grade  Fitters, then  only he would be able to claim the salary and allowances payable to ’B’ Grade Fitters. The  case before  us is analogous to the claim made by a  Junior Clerk,  who can  become a  Senior Clerk only on promotion, to  the salary  attached to  the post  of  Senior Clerk on  the ground  that both  the Junior  Clerk  and  the Senior Clerk are engaged in clerical work.      The learned counsel for the appellants, however, relied upon two other decisions of this Court-State Bank of Bikaner and Jaipur  v. Khandelwal  (R. L.),  [1968] 1 L.L.J. 589 and State Bank  of Bikaner  and Jaipur  v. Gopal  Sahal  Pareek, [1968] 1  L.L.J. 593  which were decided on the same day. On going through  those two  decisions we feel that they are of no assistance  to the  appellants. In  the said  cases  this Court clearly laid down that a workman could not put forward a claim in an application filed under section 33-C(2) of the Act in  respect of  a relief  which  was  not  based  on  an existing right and which could be appropriately the subject- matter of  an industrial dispute requiring a reference under section 10 of the Act.      The decision  of this  Court in R.B. Bansilal Abirchand Mills Co.  Ltd. v.  Labour Court,  Nagpur &  Ors., [1972]  2 S.C.R. 580 is clearly distinguishable from the present case. In the  said case  the only dispute was whether workmen were not entitled to lay-off compensation. The Management in that case contended  that the  business had  been closed  and the workmen were  not entitled  lay-off compensation. This Court held that  from the  facts and circumstances of the case, it was clear  that the  business of  the company was continuing and that the Labour Court’s jurisdiction could not be ousted by  a   mere  plea   denying  the  workmen’s  claim  to  the computation of  benefit in  terms of money. It was also held that the  Labour Court  in the  circumstances had to go into the matter  and come  to a  decision as to whether there was really a  closure or  a lay-off.  If in the present case the claim of  the appellants  was that  they had  been  actually promoted to  ’B’ Grade Fitters cadre and that the Management had denied  that there  was such promotion, the Labour Court would have  been under  an obligation  to determine  whether there was  such a  promotion or  not. But  the case  of  the workmen before  us is  that they should be classified as ’B’ Grade Fitters  even though  they had  been appointed  as ’C’ Grade Fitters  merely because  they had  been performing the duties which  were  similar  to  the  duties  of  ’B’  Grade Fitters. 476      The decision  of the  Gujarat High  Court  rendered  by Thakkar, C.J.  (as he  then was) in V.M. Vankar (Macwana) v. Indian Farmers Fertiliser, [1984] Lab. I.C. 1342 is again of no assistance  to the  appellants. In  that case there was a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

settlement arrived at between the Management and the workmen and under  the said  settlement persons  working as Conveyor Attendants, Bag  Stitchers, Bag  Fillers and  Pointsmen were entitled to  the pay-scale of Rs.225-9-333. The complaint of the workman concerned was that even though he was performing the duties  of persons  in the  above category, he was being paid as  per the  pay-scale of  workmen in a lower category, i.e., the  pay-scale of  Rs.210-8-314. In that case the High Court rightly  came to  the conclusion that the Labour Court was required  to decide  whether the  workman concerned  was doing the  work of an employee who was in the category which carried a  higher pay-scale  or was  doing the  work  of  an employee in  a category  which carried a lower pay-scale for the purpose  of granting relief to the workman. The question of promotion  from a  lower post  to a higher post or of the passing of  a trade  test for the n purpose of securing such promotion was not involved in that case.      In any  view of  the matter  we feel  that there  is no ground to  set aside  the order  of the  Central  Government Industrial  Tribunal-cum-Labour  Court  against  which  this appeal is filed. The appeal fails and it is dismissed. There will be no order as to costs.      It is  open to  the workmen, if they are so advised, to seek a  reference of  the question whether they are entitled to be  treated as  ’B’ Grade Fitters under section 10 of the Act and  if such  a reference  is sought  we hope  that  the appropriate  Government   would  decide   expeditiously  the question whether  a reference  should be made accordingly or not. If  a reference  is made,  the Tribunal or the Court to which the  reference is  made shall  dispose of  the case as early as possible. P.S.S.                                Appeal dismissed. 477