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CASE NO.: Appeal (civil)  5787 of 2000

PETITIONER: Vijay Kumar and Ors

RESPONDENT: Whirlpool of India Ltd.  and Ors

DATE OF JUDGMENT: 22/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1.      Challenge in this appeal is to the judgment of the  Division Bench of the Punjab and Haryana High Court  dismissing the Letters Patent Appeal filed by the appellants  questioning the legality of the judgment rendered by a learned  Single Judge dismissing the writ petition.  

2.      The controversy lies within a very narrow compass. The  appellants were employees of respondent No.1 (hereinafter  referred to as the \021employer\022). A voluntary retirement scheme  was floated by the employer on 26.5.1995. Undisputedly,  appellants and 125 others opted to be covered by the scheme.  They were paid the amounts required to be paid under the  scheme. Subsequently, a settlement was arrived at between  the management and the workmen through the registered  Union on 13.10.1995. The settlement was in terms of Section  12(3) of the Industrial Disputes Act, 1947 (in short the \021Act\022).  143 persons including the present appellants raised a dispute  on two issues; one relating to the age of retirement and the  other relating to monetary benefits. According to them, the  settlement arrived at on 13.10.1995 also covered their cases  and they were  entitled to higher amounts. The claim was  made by an application under Section 33-C(2) of the Act. The  Presiding Officer, Industrial Tribunal-cum-Labour Court-I,  Faridabad (hereinafter referred to as the \021Tribunal\022) held that  the claimants were entitled to the benefits flowing from the  settlement and that the claimants were entitled to be  continued in service by treating age of retirement to be 58  years.  The employer filed a writ petition before the High  Court. Learned Single Judge held that the view of the Tribunal  is unsustainable. It was held that Section 33-C(2) of the Act  does not apply to the facts of the case and no benefit was  available under the settlement. The essential conclusions of  the learned Single Judge are as follows:

\023What is the position herein? A settlement was  arrived at. At best, the Labour Court could  interpret the said settlement and if there was  anything more due, the benefit could be given  to the workmen but the Labour Court could  not interpret or go into the controversy of  fraud, if any, because on basis of fraud in  execution the decree cannot be modified.

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Similarly, when there was a basic controversy  about the age of retirement, it was not  pertaining to a pre-existing right. The award of  the Labour Court in this regard, therefore,  cannot be sustained.\024    

3.      Eighteen persons i.e. the present appellants filed Letters  Patent Appeal which was dismissed as noted above.   

4.      In support of the appeal, learned counsel for the  appellants submitted that stress in the settlement was on  \023permanent workmen on the rolls of specified divisions on  30.6.1995\024. According to the appellants all of them continued  to be on rolls beyond 30.6.1995 and, therefore, they are  entitled to be benefits.            5.      In response, learned counsel for the respondent No.1- employer submitted that at the point of time the settlement  was arrived at, the appellants were not existing workmen. In  addition, the benefits are relatable to future production targets  and the instalments of financial benefits are given only on  attainment of specified production target. The stand of the  appellants of continuance beyond 30.6.1995 is also disputed  on the ground that learned Single Judge has referred to  various documents to conclude that none of the appellants  were in fact on the rolls of the employer as on 30.6.1995. The  illustrative case of one Jeet Singh as noted by the High Court  was referred to.  It was also submitted that in order to get over  the factual position the basic case before the Tribunal was  alleged fraud purported to have been practiced by the  employer. The High Court has categorically found that there  was no element of fraud.        Reference is made to para 7 of the  application filed under Section 33-C(2) of the Act.  

6.      Learned counsel for the appellants submitted that the  plea relating to age and the alleged fraud are not pressed. The  only plea is relatable to the claim flowing from the settlement.  

7.      Few portions of the settlement which throw considerable  light on the controversy need to be noted:  

       \0230.1 Coverage         All paras of this Settlement shall cover all  permanent workmen, except casuals, of Kelvinator  of India Ltd., Faridabad and Ballabgarh on the rolls  of (its various specified divisions) as on 30.6.1995,  (hereinafter called eligible workmen).

0.6     Financial Benefits      The parties decided to grant the undernoted  financial benefits to the workmen:

               Increase in Basic Wage                                  Period          Amount 1.7.95  Rs.800/- 1.7.96  Rs.400/- 1.7.97  Rs.300/-.  The amount of financial benefit shall be added to  the concerned workman\022s basic wage as on 30th  June, 1995 and the total thereof would be the  revised basic wage of that workman. The second  and third instalments of the financial benefits shall  be given only on attainment the specified  production target and the current 15 per cent

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special worker allowance shall be added to the  workmen\022s basic wage from 1.10.1995.\024  

8.      A bare reading of the above quoted portion clearly shows  that the settlement covered only cases of existing employees.  The question of any erstwhile workman attaining specified  production target does not arise.  

9.      At this juncture, it would also be appropriate to take note  of what has been stated by this Court in some cases.  

10.     In A.K. Bindal v. Union of India (2003 (5) SCC 163) it has  been stated as under:

       \02334. This shows that a considerable  amount is to be paid to an employee ex gratia  besides the terminal benefits in case he opts  for voluntary retirement under the scheme and  the option is accepted. The amount is paid not  for doing any work or rendering any service. It  is paid in lieu of the employee himself leaving  the services of the company or the industrial  establishment and foregoing all his claims or  rights in the same. It is a package deal of give  and take. That is why in the business world it  is known as \023golden handshake\024. The main  purpose of paying this amount is to bring  about a complete cessation of the jural  relationship between the employer and the  employee. After the amount is paid and the  employee ceases to be under the employment  of the company or the undertaking, he leaves  with all his rights and there is no question of  his again agitating for any kind of his past  rights with his erstwhile employer including  making any claim with regard to enhancement  of pay scale for an earlier period. If the  employee is still permitted to raise a grievance  regarding enhancement of pay scale from a  retrospective date, even after he has opted for  Voluntary Retirement Scheme and has  accepted the amount paid to  him, the whole  purpose of introducing the scheme would be  totally frustrated.\024  

11.     In CEAT Ltd. V. Anand Abasaheb Hawaldar and Ors.  (2006 (3) SCC 56) it has been held as under:

       \02310. According to learned counsel for the  appellant, a complaint of unfair labour  practice can be made only by the existing  employees.  Under clause (5) of Section 3 of the  Act the expression \023employee\024 only covers  those who are workmen under clause (s) of  Section 2 of the Industrial Disputes Act, 1947  (in short the \021ID Act\022).  The expression  \023workman\024 as defined in clause (s) of Section 2  of the ID Act relates to those who are existing  employees.  The only addition to existing  employees, statutorily provided under Section  2(s) refers to dismissed, discharged and  retrenched employees and their grievances can  be looked into by the forums created under the  Act. In the instant case, the complainants had

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resigned from service by voluntary retirement  and, therefore, their cases are not covered by  the expression \021workman\022.  On the factual  scenario, it is submitted that after the 337  employees had accepted VRS-I, others had  raised disputes and had gone to Court. Order  was passed for paying them the existing salary  and other emoluments. This went on nearly  two years and, therefore, with a view to curtail  litigation a Memorandum of Understanding  was arrived at in 1994. This basic difference in  the factual background was not noticed by  either the Industrial Court or the High Court.\024

12.     In U.P. State Road Transport Corporation v. Birendra  Bhandari (2006 (10) SCC 211) it has been stated as under:

\0237. The benefit which can be enforced under  Section 33-C(2) is a pre-existing benefit or one  flowing from a pre-existing right.        8. In the case of State Bank of India v. 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

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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 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."

13.     Looked at from any angle, this appeal is without merit,  deserves dismissal which we direct. Costs made easy.