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PETITIONER: SAHU MINERALS & PROPERTIES LTD.

       Vs.

RESPONDENT: PRESIDING OFFICER, LABOUR COURT & ORS.

DATE OF JUDGMENT06/08/1975

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. GOSWAMI, P.K. UNTWALIA, N.L.

CITATION:  1975 AIR 1745            1976 SCR  (1) 263  1976 SCC  (3)  93  CITATOR INFO :  R          1978 SC 275  (5)

ACT:      Industrial Disputes  Act, 1947, Sections 25F proviso to see. 25FFF(1)  and  section  33C(2)-Labour  Court  asked  so decide  retrenchment   compensation  pay   able  to  workmen question of  retrenchment or  the closure  of factory beyond control of employer if could be decided by Labour Court-Item 10 to Third Schedule, if attracted.

HEADNOTE:      The Government of Bihar sent to the Labour Court, Chota Nagpur  Division,  Ranchi,  application  in  respect  of  73 workers of  the appellant  for decision under sec. 33C(2) of the Industrial  Disputes Act  for retrenchment compensation. The contention  of the  appellant was  that it was a case of closer for  reasons beyond  its control and that, therefore, the workmen  were entitled to compensation under the proviso to sub-section  (1) of  sec. 25FFF  of the  Act and  not  to retrenchment compensation.  The workers  contended that they were entitled  to retrenchment  compensation under sec. 25F. The Labour  Court held  that it  was a case of retrenchment. The writ  petitions filed  by the employer in the High Court has failed  and these  appeals have  been preferred  to this Court on  the basis of the certificate of fitness granted by the High Court.      Dismissing the appeals, ^      HELD :  (i) It  was competent  to the  Labour Court  to decade whether the case before it was a case of retrenchment compensation or the proviso to sub-sec. (1) of section 25FFF was attracted  on closure  of the  establishment.  Even  the employer does  not dispute  that the workmen are entitled to compensation. It  only says  that the compensation should be calculated on a particular basis different from the basis on which the  workmen claim. The claim also falls under Chapter VA of the Act. [266H; 267B-C]      Central Bank  of India Ltd. v. P. S. Rajagopalan [1964] 3 S.C.R. 140 relied on.      U.P. Electric  Company v.  R. K. Shukla [1970] 1 S.C.R. 507 and South Arcot Elect. Co. v. N. K. Khan [1969] 2 S.C.R.

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902, referred to.      (ii) Item  No. 10 of the Third Schedule to the Act does not say  that all  questions arising  out of retrenchment of workmen and  closure of  establishment have to be decided by Industrial Tribunal.  This entry  refers to  cases where the right to  retrench workers  or to  lose an  establishment is disputed and  that question  is referred for adjudication to the Industrial  Tribunal. In  that case the Tribunal will be competent to  decide whether the closure or retrenchment was justified and  whether the  retrenchment workmen  should  be reinstated or  the workers in the establishment purported to have been  closed should  be continued  to be  paid on basis that the  so-called closure  was no  closure at  all. In the present case  the workmen do not ask for reinstatement. They accept  the   termination  of   the  services  and  ask  for compensation. The  only dispute  is about  the  compensation whether it  is to  be paid under s. 25F or 25FFF. Item 10 of Third schedule will not cover such a  case. [267D-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1266 & 1267 of 1969.      From the  Judgment and  order dated the 29th July, 1968 of the  Patna High Court in Civil Writ Jurisdiction Case No. 61 of 1967      H. K. Puri and K. K. Mohan, for the appellant 264      D. Goburdhan,  for respondent Nos. 1 and 2 (In both the appear) Respondent  No. 21  (In C.A.  No. 1266/69)  and  for respondent No. 60 (in C.A. No. 1267/69).      A. K.  Nag, for  respondent  Nos.  3-19  (In  C.A.  No. 1266/69) and  for respondent  Nos, 4,  S, 7-9, 11-32, 35-42, 44-52, 54-58 (In C.A. No. 1267/69).      The Judgment of the Court was delivered by      ALAGIRISWAMI, J. By two notifications dated 22-6-65 and 28-8-65 the  Government of  Bihar sent  to the Labour Court, Chota Nagpur Division, Ranchi, applications in respect of 73 workers of the appellant for decision under s. 33C(2) of the Industrial disputes  Act for  retrenchment compensation. The employer contended that it was a case of closure for reasons beyond its  control and  that  therefore  the  workmen  were entitled to compensation under the proviso to subsection (1) of s.  25FFF of the Act and not to retrenchment compensation workers contended,  however,  that  they  were  entitled  to retrenchment compensation under s.25F. The Labour Court held that it was a case of retrenchment. Two writ petitions filed by the  employer before  the High  Court of Patna failed and these appeals  have been filed in pursuance of a certificate of fitness granted by the High Court.      The argument  on behalf  of the appellant is that where there is  a dispute  before the  Labour Court considering an application under  s. 33C(2)  as to  whether the workmen had been retrenched  or the  factory had been closed for reasons beyond the  control of  the employer,  it was  not a  matter which the  Labour Court  was competent to decide and that it was a matter which only an Industrial Tribunal considering a reference under  s. 10 is competent to decide. In particular Item 10  of the  Third Schedule to the Act is relied upon to show that the matter relating to retrenchment and closure is one which  only  an  Industrial  Tribunal  is  competent  to decide. Reliance  is placed upon a decision of this Court in U.P. Elect.  Co. v.  R. K.  Shukla(1) where it was held that the  power   of  the   Labour  Court   is  to  complete  the

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compensation claimed  to be  payable to  the workmen  on the footing that  there has  been retrenchment  of the  workmen, that where  retrenchment is  conceded and the only matter in dispute is  that by  virtue of  s. 25FFF no liability to pay compensation has  arisen the  Labour Court will be competent to decide  the question, that in such a case the question is one  of   computation  and  not  of  determination,  of  the conditions precedent  to the  accrual of liability, and that where the  dispute is  whether workmen  have been retrenched and computation  of the  amount is subsidiary or incidental, the Labour  Curt will have no authority to trespass upon the powers  of   the  Tribunal  with  which  it  is  statutorily invested.      In the  U.P. Electric  Company case  (supra) the  facts were somewhat  different. The  Court in that case noticed at page 513 of the report that-           "The company  had expressly  raised  a  contention      that they  had not  retrenched the workmen and that the      workmen had 265      voluntarily abandoned  the Company’s service by seeking      employment with  the  Board  even  before  the  company      closed its undertaking".      This Court emphasised at page 5l7 of the report that-           If the  liability arises from an award, settlement      or under  the provisions  of Ch.  V-A or by virtue of a      statute or a scheme made thereunder, mere denial by the      employer may  not be  sufficient to  negative the claim      under s. 33C(2) before the Labour Court". We, therefore,  do not  see how  the decision  in  the  U.P. Electric Company’s  case (supra)  can come to the aid of the appellant  in   this  case.   The  said   case  is   clearly distinguishable on the peculiar facts as noticed above.      In Central  Bank of  India Ltd  v. P. S. Rajagopalan(1) this Court considered the scope of s. 33C(2) elaborately and it would  be necessary  to quote  at some  length from  that decision. In  that case it was urged by the employer that s. 33C(2) can  be invoked  by a  workman  who  is  entitled  to receive from  the employer  the benefit there specified, but the right  of the  workman to  receive the benefit has to be admitted and  could not  be a  matter of dispute between the parties and  that the  only point which the labour Court can determine is  one in  relation to computation of the benefit ill terms of money. This Court observed:           "We are  not impressed  by this  argument. In  our      opinion on a fair and reasonable construction of sub-s.      (2) it  is clear  that if  a workman’s right to receive      the benefit is disputed, that may have to be determined      by the  Labour Court.  Before proceeding to compute the      benefit in  terms of  money the Labour Court inevitably      has to deal with the question as to whether the workman      has a  right to receive that benefit. If the said right      is not  disputed, nothing more needs to be done and the      labour Court  can proceed  to compute  the value of the      benefit in  terms of  money; but  if the  said right is      disputed the  Labour Court must deal with that question      and decide whether workman has the right to receive the      benefit as  alleged by him and it is only if the Labour      Court answers  this point in favour of the workman that      the next  question of  making necessary computation can      arise. It seems to us that the opening clause of sub-s.      (2) docs  not admit  of the  construction for which the      appellant contends  unless we  add some  words in  that      clause. The  clause "Where  any workman  is entitled to      receive from  the employer  any benefit"  does not mean

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    "where such  workman is  admittedly, or admitted to be.      entitled to  receive  such  benefit."  The  appellant’s      constructional would necessarily introduce the addition      of the  words "admittedly,  or admitted  to be" in that      clause, and  that clearly  is not permissible. Besides,      if seems  to us that is the appellant’s construction is      accepted it would necessarily mean that 266      it would  be at the option of the employer to allow the      workman to avail himself of the remedy provided by sub-      s. (2),  because he has merely to raise an objection on      the ground that the right claimed by the workman is not      admitted to  oust the  jurisdiction of the Labour Court      to entertain the workman’s application. The claim under      s. 33C(2)  clearly postulates that the determination of      the question  about computing  the benefit  in terms of      money may,  in some  cases, have  to be  preceded by an      enquiry into  the existence  of the  right and  such an      enquiry must  be held  to be  incidental  to  the  main      determination which  has been  assigned to  the  Labour      Court by  sub-s.(2). As  Maxwell in  Interpretation  of      Statutes, p.  350, has observed ’where an Act confers a      jurisdiction, it  impliedly also  grants the  power  of      doing all  such acts,  or employing  such means, as are      essentially  necessary   to  its   execution;  we  must      accordingly  hold  that  s.  33C(2)  takes  within  its      purview case of workmen who claimed 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.      Incidentally, it  may be  relevant to add that it would      be somewhat  odd that under sub-s (3), the Labour Court      should have  been authorised  to delegate  the work  of      computing  the  money  value  of  the  benefit  to  the      Commissioner if  the determination of the said question      was the  only task  assigned to  the Labour Court under      sub-s.  (2).  On  the  other  hand,  sub-s.(3)  becomes      intelligible if it is held that what can be assigned to      the Commissioner includes only a part of the assignment      of the  Labour of  Court under  sub-s. (2)". Further on      this Court observed:           "It is thus clear that claims made under s.33C(1),      by  itself   can  be   only  claims  referable  to  the      settlement,  award,   or  the  relevant  provisions  of      Chapter VA.  These words  of limitations  are not to be      found in  s.33C(2) and  to that extent, the scope of s.      33C(2) is  undoubtedly wider  than that of s. 33C(1)...      It is  unnecessary in  the present  appeals  either  to      state exhaustively  or even  to indicate  broadly  what      other categories  of claims  can fall  under s. 33C(2).      There is  no doubt  that the three categories of claims      mentioned in  s. 33C  (1) fall  under s.  33C(2) and in      that sense, s. 33C(2) can itself be deemed to be a kind      of execution proceeding, but it is possible that claims      not based  on settlements,  awards or  made  under  the      provisions of  Chapter VA,  may also be competent under      s. 33C(2) and that may illustrate its wider scope."      This Court  then went  on to discuss some of the claims which would  not fall  under s.33C(2),  which  is  not  very relevant for  the purposes  of this  case. The  present case stand on  an even  stronger footing.  Even the employer does not dispute  that the  workmen are entitled to compensation. It only says that the compensation should be calculated on a particular basis  different from  the  basis  on  which  the workmen claim. The claim also falls under Chapter VA.

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267      In the  decision in  South Arcot,  Elect. Co.  v. N. K. Khan(1) where  a right  had  been  claimed  by  the  various workmen in  their applications  under s. 33C(2), it was held that it  was a  right which  accured to them under s.25FF of the Act  and was  an existing  right at  the time when these applications were  made, that  the Labour  Court clearly had jurisdiction to  decide whether  such a right did or did not exist  when   dealing  with   the  application   under  that provision, and  that the  mere denial of that by the company could not take away its jurisdiction.      We hold  that in  this case  it was  competent  to  the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub-s. (1) of s. 25FFF  was attracted on closure of the establishment. The question even according to the employer falls under s. 25FFF and therefore in deciding that question the Labour Court has necessarily  to   decide  whether   the  proviso   has  been satisfied.      We do not consider that the reference to item No. 10 of the Third  Schedule to the Act can decide the matter one way or the other. The item reads as follows:           "10.  Retrenchment   of  workmen  and  closure  of      establishment It  does   not  say   that  all  questions  arising  out  of retrenchment of  workmen and  closure of establishments have to be  decided by  Industrial  Tribunal.  Logically  if  the contentions is  to be  accepted, even  if  the  question  of retrenchment is  not disputed  the Labour  Court will not be competent to  decide the question of compensation payable in a case  of retrenchment  because it  raises  a  question  of jurisdiction. This  entry should  therefore be held to refer to cases  where the right to retrench workers or to close an establishment is  disputed and that question is referred for adjudication to  the Industrial  Tribunal. In  that case the Tribunal will  be competent to decide whether the closure or retrenchment  was   justified  and  whether  the  retrenched workmen  should   be  reinstated   or  the  workers  in  the establishment  purported  to  have  been  closed  should  be continued to be paid on the basis that the so-called closure was to  closure at  all. In  the present case the workmen do not ask  for reinstatement.  They accept  the termination of their services and ask for compensation. The only dispute is about the  compensation whether it is to be paid under s.25F or 25FFF.  Item 10  of Third  Schedule will not cover such a case.      We therefore  uphold the decision of the High Court and dismiss these appeals with costs. V.M.K.                                    Appeals dismissed. 268