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CASE NO.: Appeal (civil)  10252-10269 of 2003

PETITIONER: Union of India & Anr.                                    

RESPONDENT: Kankuben (Dead) by LRs. & Ors. etc. etc.                 

DATE OF JUDGMENT: 20/03/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

Challenge in these appeals is to the common judgment  rendered by a Division Bench of the Gujarat High Court  holding that the applications of the respondents before the  Labour Court (Central) Ahmedabad, in terms of Section 33-C  (2) of the Industrial Disputes Act, 1947 (in short ’the Act’) were  maintainable.   

       Background facts in a nutshell are as follows:

By a common judgment and order dated 4.5.2000 the  Labour Court allowed the claims made by the respondents- workmen in the recovery applications filed under Section 33-C  (2) of the Act in respect of certain claims of overtime allowance  which according to them was payable in view of what is called  as ’on and off duty’ for taking out and bringing in locomotives  from the shed as was required to be done for the purpose of  operating them at and from different stations.  Apart from  questioning the legality of the claims preliminary objection to  the maintainability of the applications under Section 33-C (2)  of the Act was raised.  The Labour Court, however, did not  accept the same  and held that the applications were  maintainable, relying on certain earlier adjudications by the  Labour Court and the High Court.  Writ petitions were filed  under Articles 226 and 227 of the Constitution of India, 1950  (in short ’the Constitution’) by the appellants questioning  correctness of the Labour Court’s award.  Learned Single  Judge held that on the basis of materials on record the  entitlements were rightly worked out and, therefore, the  recovery applications were maintainable.  Letters Patent  Appeals were filed before the High Court which by the  impugned judgment dismissed them.  It was held that  instructions issued under Section 71-A to 71-H of the Indian  Railways Act, 1890 (in short ’the Railways Act’) and the  Railway Servants (Hours of Employment) Rules, 1961 (in short  ’the Employees Rules’) did not in any way help the case of the  appellants and in any event the applications under Section 33- C (2) of the Act were maintainable, as held by the High Court  earlier.   

In support of the appeals, learned counsel for the  appellants submitted that the true scope and ambit of Section  33-C (2) of the Act has not been kept in view.  Learned counsel

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for the respondents on the other hand submitted that in  similar cases reliefs have been granted and the challenge  thereto had been repelled by the High Court.  The respondents  were similarly situated and, therefore, the appeals deserve to  be dismissed.  Reliance is placed on a decision of this Court in  Director General (Works), C.P.W.D. v. Ashok Kumar and Ors.  1999 (9) SCC 167) in support of the stand.

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

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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 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"

       The position was recently reiterated by three-judge Bench  of this Court in State of U.P. and Another v. Brijpal Singh  (2005 (8) SCC 58). (Also see A.P. SRTC v. B.S. David Paul  (2006 (2) SCC 282).

Director General (Works), C.P.W.D. (supra) is clearly  distinguishable on facts, as in that case the employer had  accepted its liability and that is why this Court did not  interfere.  The factual scenario is entirely different in the cases  at hand.  Right from the beginning the appellants have been  questioning the maintainability of the petitions under Section  33-C (2) of the Act.  In view of the settled position in law as  delineated above, the appeals deserve to be allowed which we  direct. In the peculiar circumstances of the case, if any  amount has been paid to any of the respondents in  compliance of the order of the Labour Court and/or the High  Court the same shall not be recovered.   Costs made easy.