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CASE NO.: Appeal (civil)  5910 of 2005

PETITIONER: State of Uttar Pradesh & Anr.                                    

RESPONDENT: Brijpal Singh                                                               

DATE OF JUDGMENT: 27/09/2005

BENCH: Ruma Pal,Dr. AR. Lakshmanan & R.V. Raveendran

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Civil) No. 182 OF 2003)  Dr. AR. Lakshmanan, J.

Leave granted.

This appeal is filed against the final judgment and order dated 9.1.2002 passed  by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 36406 of  1995 where the High Court dismissed the writ petition filed by the appellants-  The  State of U.P.  & The Regional Food Controller, Meerut Region, Meerut.  The  respondent was appointed as Seasonal Clerk on temporary and ad hoc basis in the  office of the Senior Marketing Inspector on stop gap arrangement.  The appointment  order dated 22.4.1987 reads thus:

"                                               Dated:22.4.1987

O R D E R

Following persons are appointed in this district on the post of  S.A. Clerk at the place mentioned in front of their name vide order No.  97/68/S.V.A. 1.2.87 dated 20.4.1987.  Food Controller of the  Department and direction is given that they should immediately report  their joining at the place of their posting.  The appointment of these  employees have been made under wheat  purchase Project of 1987- 88 on temporary/ad hoc basis in the pay scale of 430-685.  The  services shall be automatically stand terminated from the afternoon of  31.7.1987.  No separate order shall be issued for it."

The services of the respondent were terminated on 3.7.1987.  Feeling aggrieved  by the termination order, the respondent filed Writ Petition No. 15172 of 1987 on the file  of the High Court.  Vide order dated 28.10.1987, the High Court passed the following  order:- "Issue notice. Till further orders of the Court, the operation of orders dated  22.4.87 and 3.7.87 shall remain stayed."

The appellants herein filed its counter affidavit in the writ petition stating that the  respondent never attended the office as per orders of the High Court and that he did  not care to join the duties, therefore, he is not entitled to any pay.  The respondent,  after a gap of six years, filed Misc. Case No.11 of 1993 before the Labour Court,  Meerut, for payment of salary from 4th July, 1987 till July, 1993 and bonus for the years  1987 to 1992.  The total amount of salary and bonus was worked out to be  Rs.1,55,821/-.  The respondent for filing the above petition under Section 33C(2) of the  Industrial Disputes Act, 1947 (hereinafter referred to as "the I.D. Act"), has solely relied   on the interim order dated 28.10.1987 passed by the High Court in the writ petition.  A  counter affidavit was filed by the appellants herein before the Labour Court stating that

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Writ Petition No.15172 of 1987 is pending for consideration before the High Court,  therefore, in such circumstances, the Labour Court does not have the jurisdiction to  hear and decide the dispute.   The Labour Court, vide its order dated 23.8.1995, directed the appellants to  make the payment of salary and bonus of  Rs.1,55,821/- for the period from 1987 to  1992 within one month from the date of the said order.  Aggrieved by the order of the  Labour Court, the appellants filed Civil Misc. Writ Petition No. 36406 of 1995 before the  High Court contending that the Labour Court has no jurisdiction to try and decide the  present controversy and that the order passed by the Labour Court suffers from  manifest error of law apparent on the record and hence is liable to be set aside.  The  appellants, therefore, prayed for quashing the order dated 23.8.1995 passed by the  Labour Court, Meerut.  Counter affidavit was filed by the respondent herein to the writ  petition stating that after the stay order passed by the High Court, he was not allowed  to join the duty in spite of several requests made to the appellants to permit him to join  the duty.  The respondent was left with no other remedy but only to file the application  under Section 33C(2) of the I.D. Act.  It was, therefore, stated that the Labour Court has  rightly passed the order in favour of the respondent directing the appellants to make the  payment of salary and bonus.  The High Court, by order dated 9.1.2002 dismissed Civil  Misc. Writ Petition No. 36406 of 1995 holding that the respondent-Workman is entitled  for the salary and other allowances which admittedly has not been paid to the  respondent; that so long as Civil Misc. Writ Petition No.15172 of 1984 is not finally  disposed of, the liability to pay, if any to the concerned workman under Section 33C(2)  of the I.D. Act cannot be taken by the appellants and, therefore, the petition filed by the  respondent under Section 33C(2) of the I.D. Act is competent and maintainable.   Aggrieved by the judgment and order dated 9.1.2002, the appellants preferred this  appeal by way of special leave. We have carefully perused the pleadings, annexures and orders passed by the  Labour Court and of the High Court. We heard the arguments of Mr. Dileep Tandon, learned counsel appearing for  the appellants and Mrs. Shymala Pappu, learned senior counsel appearing for the  respondent. In the background facts of this case, the following questions of law arise for  consideration by this Court: (1)     Whether the High Court erred in allowing the order passed by the  Labour Court filed by the respondent under Section 33C(2) of the  Industrial Disputes Act? (2)     Whether the pendency of the Writ Petition No. 15172 of 1987 filed by  the respondent herein , same being not finally disposed of, the  liability to pay, if any to the concerned workman under Section  33C(2) of the I.D. Act, does arise or not? (3)     Whether the High Court gravely erred in allowing the salary and  bonus to the respondent, although he has not attended the office of  the appellant after the stay order passed by the High Court  dated  28.10.1987? (4)     Whether the Labour Court has jurisdiction to entertain and decide  the undetermined claim?  Section 33C of the Industrial Disputes Act reads thus: "[33C. Recovery of Money Due from an Employer -   (1)     Where any money is due to a workman from an employer  under a settlement or an award or under the provisions of  chapter 5A or chapter 5B, the workman himself or any  other person authorised by him in writing in this behalf, or,  in the case, of the death of the workman, his assignee or  heirs may, without prejudice to any other mode of recovery,  make an application to the appropriate Government for the  recovery of money due to him, and if the appropriate  Government is satisfied that any money is so due, it shall  issue a certificate for that amount to the collector who shall  proceed to recover the same in the same manner as an  arrear of land revenue:

Provided that every such application shall be made within one  year from the date on which money became due to the workman  from the employer; Provided further that any such application may be entertained

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after the expiry of the said period of one year, if the appropriate  Government is satisfied that the application had sufficient cause  for not making the application within the said period.

(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."      

It is well settled that the workman can proceed under Section 33C(2) only after  the Tribunal has adjudicated on a complaint under Section 33A or on a reference under  Section 10 that the order of discharge or dismissal was not justified and has set aside  that order and reinstated the workman.  This Court in the case of Punjab Beverages  Pvt. Ltd. Vs. Suresh Chand , (1978) 2 SCC 144 held that a proceeding under Section  33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court  calculates the amount of money due to a workman from the employer, or, if the  workman is entitled to any benefit which is capable of being computed in terms of  money, proceeds to compute the benefit in terms of money.   Proceeding further, this  Court held that the right to the money which is sought to be calculated or 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 the industrial workman, and his employer.  This Court further held  as follows: "It is not competent to the Labour Court exercising jurisdiction  under Section 33C(2) to arrogate to itself the functions of an  industrial tribunal and entertain a claim which is not based on  an existing right but which may appropriately be made the  subject matter of an industrial dispute in a reference under  Section 10 of the Act."

In the case of Municipal Corporation of Delhi vs. Ganesh Razek & Anr.  , (1995) 1  SCC 235. this Court held as under: "12.  The High Court has referred to some of these decisions but  missed the true import thereof.  The ratio of these decisions clearly  indicates that 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 is not incidental to the benefit claimed and is,  therefore, clearly outside the scope of a proceeding under Section 33- C(2) of the Act.  The Labour Court has no jurisdiction to first decide the  workmen’s entitlement and then proceed to compare the benefit so  adjudicated on that basis in exercise of its power under Section 33- C(2) of the Act.  It is only when the entitlement has been earlier  adjudicated or recognised by the employer and thereafter for the  purpose of implementation or enforcement thereof some ambiguity  required interpretation that the interpretation is treated as incidental to  the Labour Court’s power under Section 33-C(2) like that of the  Executing Court’s power to interpret the decree for the purpose of its  execution.

13.  In these matters, the claim of the respondent-workmen who were  all daily-rated/casual workers, to be paid wages at the same rate as  the regular workers, had not been earlier settled by adjudication or  recognition by the employer without which the stage for computation of

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that benefit could not reach.  The workmen’s claim of doing the same  kind of work and their entitlement to be paid wages at the same rate as  the regular workmen on the principle of "equal pay for equal work"  being disputed, without an adjudication of their dispute resulting in  acceptance of their claim to this effect, there could be no occasion for  computation of the benefit on that basis to attract Section 33-C(2).   The mere fact that some other workmen are alleged to have made a  similar claim by filing writ petitions under Article 32 of the Constitution  is indicative of the need for adjudication of the claim of entitlement to  the benefit before computation of such a benefit could be sought.   Respondents’ claim is not based on a prior adjudication made in the  writ petition filed by some other workmen upholding a similar claim  which could be relied on as an adjudication enuring to the benefit of  these respondents as well.  The writ petitions by some other workmen  to which some reference was casually made, particulars of which are  not available in these matters, have, therefore, no relevance for the  present purpose.  It must, therefore, be held that the Labour Court as  well as the High Court were in error in treating as maintainable the  applications made under Section 33-C(2) of the Act by these  respondents."   

In the case of  State Bank of India vs. Ram Chandra Dubey & Ors. , (2001) 1  SCC 73, this Court held as under: "7.  When a reference is made to an Industrial Tribunal to adjudicate  the question not only as to whether the termination of a workman is  justified or not but to grant appropriate relief, it would consist of  examination of the question whether the reinstatement should be with  full or partial back wages or none.  Such a question is one of fact  depending upon the evidence to be produced before the Tribunal.  If  after the termination of the employment, the workman is gainfully  employed elsewhere it is one of the factors to be considered in  determining whether or not reinstatement should be with full back  wages or with continuity of employment.  Such questions can be  appropriately examined only in a reference.  When a reference is  made under Section 10 of the Act, all incidental questions arising  thereto can be determined by the Tribunal and in this particular case, a  specific question has been referred to the Tribunal as to the nature of  relief to be granted to the workmen.

8.      The principles enunciated  in the decisions referred by either side  can be summed up as follows:

Whenever a workman is entitled to receive from his employer  any money or any benefit which is capable of being computed in terms  of money and which he is entitled to receive from his employer and is  denied of such benefit can approach Labour Court under Section 33- C(2) of the Act.  The benefit sought to be enforced under Section 33- C(2) of the Act is necessarily a pre-existing benefit or one flowing from  a pre-existing right.  The difference between a pre-existing right or  benefit on one hand and the right or benefit, which is considered just  and fair on the other hand is vital.  The former falls within jurisdiction of  Labour Court exercising powers under Section 33-C(2) of the Act while  the latter does not.  It cannot be spelt out from the award in the  present case that such a right or benefit has accrued to the workman  as the specific question of the relief granted is confined only to the  reinstatement without stating anything more as to the back wages.   Hence that relief must be deemed to have been denied, for what is  claimed but not granted necessarily gets denied in judicial or quasi- judicial proceeding.  Further when a question arises as to the  adjudication of a claim for back wages all relevant circumstances  which will have to be gone into, are to be considered in a judicious  manner.  Therefore, the appropriate forum wherein such question of   back wages could be decided is only in a proceeding to whom a  reference under Section 10 of the Act is made.  To state that merely  upon reinstatement, a workman would be entitled, under the terms of

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award, to all his arrears of pay and allowances would be incorrect  because several factors will have to be considered, as stated earlier,  to find out whether the workman is entitled to back wages at all and to  what extent.  Therefore, we are of the view that the High Court ought  not to have presumed that the award of the Labour Court for grant of  back wages is implied in the relief of reinstatement or that the award of  reinstatement itself conferred right for claim of back wages"   

Thus it is clear from the principle enunciated in the above decisions that the  appropriate forum where question of back wages could be decided is only in a  proceeding to whom a reference under Section 10 of the Act is made.  Thereafter, the  Labour Court, in the instant case, cannot  arrogate to itself the functions of an Industrial   Tribunal and entertain the claim made by the respondent herein which is not based on  an existing right but which may appropriately be made the subject matter of an industrial  dispute in a reference under Section 10 of the I.D. Act.  Therefore, the Labour Court has  no jurisdiction to adjudicate the claim made by the respondent herein under Section  33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by  the appropriate forum, the respondent-workman cannot ask the Labour Court in an  application under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful  and on that basis to compute his wages.  It is, therefore, impossible for us to accept the  arguments of Mrs. Shymala Pappu that the respondent-workman can file application  under Section 33C(2) for determination and payment of wages on the basis that he  continues to be in service pursuant to the said order passed by the High Court in Writ  Petition No. 15172 of 1987 dated 28.10.1987.  The argument by the learned counsel for  the workman has no force and is unacceptable.  The Labour Court, in our opinion, has  erred in allowing the application filed under Section 33C(2) of the I.D. Act and ordering  payment of not only the salary but also bonus to the workman although he has not  attended the office of the appellants after the stay order obtained by him.  The Labour  Court has committed a manifest error of law in passing the order in question which was  rightly impugned before the High Court and erroneously dismissed by the High Court.   The High Court has also equally committed a manifest error in not considering the scope  of Section 33C(2) of the I.D. Act.  We, therefore, have no hesitation in setting aside the  order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23.8.1995 and the  order dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995  as  illegal and uncalled for.  We do so accordingly. At the same time, the respondent-workman should not be left without any other  remedy.  According to the respondent-workman, he was first appointed on the seasonal  post of Clerk in the office of the Senior Marketing Inspector on 24.4.1973 and thereafter  he was appointed in the years 1981,1982,1983,1984,1985,1986 and 1987 and,  therefore, the respondent would be entitled to be regularised and salary and other  emoluments. Admittedly, Writ Petition No. 15172 of 1987 is still pending on the file of the  High Court.  Both parties submit that the pleadings are complete and the pending writ  petition can be disposed of at any time.  We, therefore, request the High Court to  dispose of the writ petition preferably within three months from the date of the receipt of  this order.  We make it clear that we are not expressing any opinion on the merits of the  rival claims. The civil appeal is, accordingly, allowed and the orders passed by the Labour  Court and the High Court in C.M.W.P.No. 36406 of 1995 are set aside.  However, there  shall be no order as to costs.