WP/31344/1997 of The Depot Manager, APSRTC, Vs Mirza Basheer Baig, on 23 December 2005

O R D E R:

Questioning the order of the Industrial Tribunal-cum-Labour Court,Godavarikhani, in M.P.No.4 of 1996 in I.D.No.21 of 1980, dated 07.04.1997, theDepot Manager, APSRTC, Nirmal Depot, has filed the present writ petition.

Facts, to the extent necessary for this writ petition, are that the first respondentwas appointed as a Conductor on 12.10.1963 and was removed from service on06.11.1971 for his involvement in cash and ticket irregularities. The firstrespondent raised a dispute, in I.D.No. 21 of 1980, before the Tribunal and, byaward dated 09.08.1980, the petitioner was directed to reinstate the first respondent into service with full back wages and all other attendant benefits.Aggrieved thereby the petitioner filed W.P.No. 2872 of 1981, and the executionof the award was stayed by this Court subject to the condition that the workmanbe reinstated and 1/6[th] of the back wages that were awarded being deposited.

It is the case of the petitioner that, pursuant to the award of the Tribunaldated 09.08.1980, the Divisional Manager, Nizamabad, had issued proceedingsdated 03.03.1982, posting the first respondent at Kamareddy Depot, pendingfurther orders in W.P.No.2872 of 1981. W.P.No.2872 of 1981 was dismissed bythis Court by order dated 23.10.1986. It is the case of the petitioner that, inspite of the office order dated 03.03.1982 issued by the Divisional Manager,Nizamabad, reinstating him into service, the first respondent did not report toduty till 31.03.1993 and he was thereafter, posted to Bhainsa on 06.02.1996.The first respondent filed E.P.No.14 of 1993, which was dismissed. Hesubsequently filed M.P.No.4 of 1996, under Section 33(C)(2) of the IndustrialDisputes Act, 1947 (hereinafter referred to as ‘the Act’), before the Tribunal forrecovery of Rs.4,77,606-10 ps towards arrears of wages.

Before the Tribunal, in M.P.No.4 of 1996, the petitioner herein contendedthat the petition filed by the workman/first respondent was not maintainableunder Section 33 (C)(2) and that the Tribunal did not have jurisdiction toentertain the petition. It was contended that since the first respondent did notapproach the petitioner for reinstatement, he was not entitled for the benefits ofarrears of wages and as he had avoided joining duty, he was not entitled forpromotion and continuity of service. The petitioner contended that the firstrespondent was not entitled for Rs.4,77,606-10 ps., claimed by him, as he hadwillfully avoided joining duty at Kamareddy Depot, soon after the award waspassed or at least after the interim directions passed by this Court in W.P.No.2872 of 1981 whereby execution of the award was stayed subject, among otherconditions, that the first respondent be reinstated into service.

The first respondent examined himself as WW.1 and marked Exs.W.1 toW.8, whereas one witness was examined on behalf of the petitioner as M.W.1and Exs.M.1 to M.14 were marked as exhibits. While the petitioner contendedthat the first respondent had failed to join duty despite the posting orders dated03.03.1982, the first respondent contended that he did not receive the said orders of posting and was, in fact, not given any posting orders in spite of thelegal notice given by his counsel.

The Tribunal held that it had jurisdiction to try the petition in M.P.No. 4 of1996 under Section 33 (C)(2) of the Act. The Tribunal relied on the office copyof the legal notice sent by the counsel of the first respondent, marked asEx.W.3, and the oral evidence of the first respondent that the same was sentby registered post acknowledgment due, a copy of which was marked asEx.W.5. Placing reliance on Ex.W.7, notice dated 27.09.1993, though disputedby the petitioner as having been brought into existence, the Tribunal held thatthe said document was genuine inasmuch as Ex.W.6, postal receipt dated27.09.1993 had been produced in support thereof. The first respondentcontended that he was not given posting orders and had therefore filedE.P.No.14 of 1993, that only thereafter were posting orders issued by thepetitioner, pursuant to which he joined duty. The Tribunal held that Ex.M.3,dated 24.02.1982, was not a reinstatement order and was only a direction givento the Deputy Manager, Nizamabad, to issue reinstatement orders, that sincethere was no documentary proof to show that the office order in Ex.M.2 wassent to the first respondent and that he had received the same, and since thefirst respondent, as WW.1, had categorically stated that he was not aware ofthe proceedings and had not received the posting orders dated 03.03.1982, itmust be held that no reinstatement orders were issued and in the absence ofany acknowledgement, it had to be held that the first respondent had notreceived the posting orders dated 03.03.1982. The Tribunal further held that thefirst respondent was not aware of the posting orders as it was not served, thathe was entitled to back wages till he was allowed to join duty, and that he wasnot entitled to bonus, ex-gratia or encashment of leave. The Tribunal directedthat the first respondent be paid Rs.4,30,414/- with interest at 6% P.A. from thedate of filing of M.P.No.4 of 1996 i.e., 25.03.1996. It is this order of theTribunal, which is impugned in this writ petition.

Smt P.Rajini Reddy, learned counsel for the petitioner, would contend thatsince proceedings under Section 33 (C)(2) are in the nature of executionproceedings, the dispute as to whether or not the first respondent had receivedthe proceedings dated 03.03.1982, asking him to join duty; and whether or nothe was prevented from joining duty subsequent to the award, were all questions which could not be examined in execution proceedings, in M.P.No.4 of 1996and the remedy, if any, for the first respondent/workman was under Section 10,and not under Section 33-C(2) of the Act.

Sri M.Rama Rao, learned counsel for the first respondent, would submit thatthe question as to whether the petitioner was entitled to arrears of pay from thedate of the award dated 07.08.1980 till his reinstatement on 06.02.1996, was anincidental question, which could be examined in proceedings under Section 33-C(2) of the Act. Learned counsel would rely on CENTRAL BANK OF INDIALTD. v. P. S. RAJAGOPALAN, CHHOTU KALU (IMPERIAL TOBACCOCOMPANY OF INDIA, LTD., EMPLOYEES’ UNION, AHMEDABAD) V.LABOUR COURT, TOWN MUNICIPAL COUNCIL, ATHANI V. PRESIDINGOFFICER, LABOUR COURT, HUBLI, PUNJAB CO-OPERATIVE BANK LTD.V. R. S. BHATIA, BOMBAY GAS CO. LTD. V. GOPAL BHIVA, CHIEFMINING ENGINEER, M/S. EAST INDIA COAL CO., LTD., BARAREECOLLIERY, DHANBAD V. RAMESHWAR, SARANGI RAMACHANDRAIAH V.NAGARJUNA GRAMEENA BANK, EXECUTIVE ENGINEER, PENSTOCKFABRICATION AND ERECTION DIVISON V. P.SESHAGIRI RAO, INDIANOVERSEAS BANK V. I.O.B. STAFF CANTEEN WORKERS' UNION.

Before examining the rival contentions, it is necessary to refer to Section 33-Cof the Act, which reads as under:

33-C. Recovery of money due from an employer:--

(1) Where any money is due to a workman from an employer under asettlement or an award or under the provisions of [Chapter V-A or ChapterV-B] the workman himself or any other person authorized by him in writingin this behalf, or, in the case of the death of the workman, his assignee orheirs may, without prejudice to any other mode of recovery, make anapplication to the appropriate Government for the recovery of the moneydue to him, and if the appropriate Government is satisfied that any moneyis so due, it shall issue a certificate for that amount to the collector whoshall proceed to recover the same in the same manner as an arrear ofland revenue.

Provided that every such application shall be made within one year fromthe date on which money became due to the workman from the employer:

Provided further that any such application may be entertained after theexpiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making theapplication within the said period.

(2) Where any workman is entitled to receive from the employer anymoney or any benefit which is capable of being computed in terms ofmoney and if any question arises as to the amount of money due or as tothe amount at which such benefit should be computed, then the questionmay, subject to any rules that may be made under this Act, be decided bysuch Labour Court as may be specified in this behalf by the appropriateGovernment [within a period not exceeding three months]; [Provided that where the Presiding Officer of a Labour Court considers itnecessary or expedient so to do, he may, for reasons to be recorded inwriting, extend such period by such further period as he may think fit]

(3) For the purposes of computing the money value of a benefit, theLabour Court may, if it so thinks fit, appoint a commissioner who shall,after taking such evidence as may be necessary, submit a report to theLabour Court and the Labour Court shall determine the amount afterconsidering the report of the commissioner and other circumstances ofthe case.

(4) The decision of the Labour Court shall be forwarded by it to theappropriate Government and any amount found due by the Labour Courtmay be recovered in the manner provided for in sub-section (1).

(5) Where workmen employed under the same employer are entitled toreceive from him any money or any benefit capable of being computed interms of money, then, subject to such rules as may be made in thisbehalf, a single application for the recovery of the amount due may bemade on behalf of or in respect of any number of such workmen.

Explanation:- In this Section “Labour Court” includes any Court constitutedunder any law relating to investigation and settlement of industrial disputesin force in any State.

A proceeding under Section 33-C(2) is a proceeding, generally, in thenature of an execution proceeding wherein the Labour Court calculates theamount of money due to a workman from his employer, or if the workmen isentitled to any benefit which is capable of being computed in terms of money,the Labour Court proceeds to compute the benefit in terms of money. Thiscalculation or computation follows upon an existing right to the money orbenefit, in view of its being previously adjudged, or otherwise duly provided for.In a suit, a claim for relief made by the plaintiff against the defendant involves

an investigation directed to the determination of (i) the plaintiff's right to relief;(ii) the corresponding liability of the defendant, including, whether the defendantis, at all, liable or not and (iii) the extent of the defendant's liability, if any. Theworking out of such liability with a view to give relief is generally regarded asthe function of an execution proceeding. Determination no. (iii) referred toabove, that is to say, the extent of the defendant's liability may sometimes beleft over for determination in execution proceedings. But that is not the casewith the determinations under heads (i) and (ii). Since a proceeding underSection 33-C(2) is in the nature of an execution proceeding it should follow thatan investigation of the nature of determinations (i) and (ii) above is, normally,outside its scope. It is true that in a proceeding under Section 33-C(2), as in anexecution proceeding, it may be necessary to determine the identity of theperson by whom or against whom the claim is made if there is a challenge onthat score. But that is merely 'Incidental'. Therefore, when a claim is madebefore the Labour Court under S. 33-C(2) that Court must clearly understandthe limitations under which it is to function. It cannot arrogate to itself thefunctions of an Industrial Tribunal which alone is entitled to make adjudicationsin the nature of determinations (i) and (ii) referred to above, or proceed tocompute the benefit by dubbing the former as 'Incidental' to its main business ofcomputation. In such cases determinations (i) and (ii) are not 'Incidental' to thecomputation. The computation itself is consequential upon and subsidiary todeterminations (i) and (ii) as the last stage in the process which commencedwith a reference to the Industrial Tribunal. (CENTRAL INLAND WATERTRANSPORT CORPORATION LTD. V. THE WORKMEN).

In the present case, the award in I.D.No.21 of 1980 was passed on07.08.1980, whereby the first respondent was directed to be reinstated intoservice with full back wages. As such, the first respondent would automaticallybe entitled to the entire back wages from 06.11.1971 till the date of the awarddated 07.08.1980, and arrears of back wages for the aforesaid period cancertainly be computed by the labour Court in proceedings under Section 33-C(2) of the Act.

What arises for consideration, is, whether the Labour Court, inproceedings under Section 33-C (2), could have examined the question as towhether or not the first respondent, pursuant to the award in I.D.No. 21 of 1980, was called upon by the petitioner to join duty and as to whether he was entitledfor payment of salary subsequent to the date of the award i.e. 07.08.1980 tillthe date of his actual reinstatement on 06.02.1996.

While Smt P. Rajini Reddy, learned counsel for the petitioner, wouldsubmit that the entitlement of the first respondent for salary for the periodsubsequent to the date of the award till the date of his actual reinstatement on06.02.1996, are matters which do not flow or arise from out of the award inI.D.No. 21 of 1980 dated 09.08.1980 and as such, did not call for examination inproceedings under Section 33 (C)(2) of the Act, Sri M.Rama Rao, learnedcounsel for the first respondent would submit that these are all incidentalquestions, which arose consequent upon the award passed by the Tribunal andfor failure of the petitioner, to permit the first respondent-workman to join duty,the only forum available, for a claim of salary for this period, was inproceedings under Section 33(C)(2) alone and not by way of a fresh dispute ora reference made thereupon under Section 10 of the Act. Sri M. Rama Rao,learned Counsel for the first respondent, would submit that, pending disposal ofthe present writ petition, the first respondent has been paid 50% of the amountawarded by the Tribunal in M.P.No.4 of 1996 and that he has already retiredfrom service on 30.04.1999. Learned counsel would submit that at the time ofadmission of the present writ petition, 25% was paid and after the vacate staypetition was filed by the first respondent, another 25% was directed to be paidon 12.02.1998.

Before examining whether or not the Tribunal, in proceedings underSection 33-C(2), has the jurisdiction to examine questions of this nature,relating to payment of salary for a period of more than 15 years from the date ofthe award in I.D.No.21 of 1980 dated 07.08.1980, till the reinstatement on06.02.1996, the judgments relied upon by Sri M.Rama Rao, learned counsel forthe first respondent, shall be referred to.

In P. S. RAJAGOPALAN[1], the question which arose for considerationwas as to whether a section of employees of the Central Bank of India Ltd.were entitled for payment of special allowance for operating the adding machinein accordance with the provisions of the Shastri Award. The contention raisedon behalf of the bank was that the question regarding the existence of the right set up by the workman, would call for interpretation of the award or settlementon which the right is said to be based, and that cannot be within the jurisdictionof the Tribunal or Labour Court under Section 33-C(2). While holding that thepower exercised by the Tribunal/Labour Court under Section 33-C(2), is akin toan executing court, the Supreme Court held that it was open to the executingcourt to interpret the decree for the purpose of execution, though it could not gobehind the decree, nor could it add to or subtract from the provision of thedecree. The Supreme Court further held that while these limitations, whichapply to an executing court, are also applicable to the Labour Court, the LabourCourt however, like the executing court, was competent to interpret the awardor settlement, on which the workman based his claim, in proceedings underSection 33- C(2) of the Act. The Supreme Court held thus:

“We would, however, like to indicate some of the claims whichwould not fall under S. 33C(2), because they formed the subject matter ofthe appeals which have been grouped together for our decision along withthe appeals with which we are dealing at present. If an employee isdismissed or demoted and it is his case that the dismissal or demotion iswrongful, it would not be open to him to make a claim for the recovery ofhis salary or wages under S. 33C(2). His demotion or dismissal may giverise to an industrial dispute which may be appropriately tried, but once it isshown that the employer has dismissed or demoted him, a claim that thedismissal or demotion is unlawful and, therefore, the employee continuesto be the workman of the employer and is entitled to the benefits due tohim under a pre-existing contract, cannot be made under S. 33C(2)……”

I n CHHOTU KALU[2], the workmen claimed that they were entitled tobasic wages and dearness allowance in accordance with the settlement arriveda t between the workmen and the company and since they were not paid atthese rates, they approached the Labour Court at Ahmedabad under Section33-C(2) of the Act. The Labour Court held that that the question whether theworkmen were employees of the Company; whether they were covered by theterms of settlement or not; and whether they had acquiesced in thearrangement under which their services with the company were terminated areall matters which could not be gone into in proceedings under Section 33-C(2)of the Act. The Division Bench of the Gujarat High Court, however, held that theview of the Labour Court, regarding the provisions of Section 33-C(2) of the Actwas erroneous, and were matters which ought to have been adjudicated by theLabour Court in proceedings under Section 33-C(2).

I n TOWN MUNICIPAL COUNCIL, ATHANI[3], the Supreme Court heldthat Article 137 of the schedule to the Limitation Act, 1963, does not apply toapplications under Section 33-C(2) of the Industrial Disputes Act, and that nolimitation was prescribed for such applications.

In R. S. BHATIA[4], the claim of the workman was that under the ShastriAward he was entitled for the benefits which the bank had refused to pay. TheSupreme Court held that the claim of the workman was limited to the periodfrom 01.04.1954 to 1961 and the application under Section 33-C(2) was filed on10.07.1968. The plea of the bank, that the application filed by the workmanunder Section 33-C(2) of the Act was barred by limitation and was not fit to beentertained on the ground of undue delay and laches, was rejected by theLabour Court, and the view taken by Labour Court was affirmed by theSupreme Court.

I n GOPAL BHIVA[5], contending that as a result of the award of theIndustrial Tribunal they were entitled to certain benefits, the workmenapproached the Labour Court to compute the benefit in terms of money and todirect the employer to pay the same. With regards the plea of laches, theSupreme Court held that a decree passed under the Code of Civil Procedurewas capable of execution within 12 years, provided, of course, it was kept aliveby taking steps in aid of execution from time to time as required by Article 182of the Limitation Act; and in cases where the legislature had made no provisionfor limitation, it would not be open to the Courts to introduce any such limitationon grounds of fairness or justice. The Supreme Court held that the words ofSection 33-C(2) were plain and unambiguous and it was the duty of the LabourCourt to give effect to the said provision without any considerations oflimitation.

In RAMESHWAR[6], the workmen claimed bonus under a scheme framedby the Central Government under the Coal Mines Provident Fund and BonusSchemes Act, (Act 46 of 1948), and railway fares and leave wages under the award of theIndustrial Tribunal. The applications under Section 33-C(2) were made in 1962,

though they related to claims for the years commencing from 1948 onwards.The Supreme Court held that there was no justification in inducting a period oflimitation, as provided in the Limitation Act, into the provisions of Section 33-C(2) which do not lay down any limitation and that such a provision could onlybe made by the legislature if it thought fit and not by the Court on an analogy orany such consideration. The Supreme Court held that the Labour Court had thejurisdiction to entertain the claim if it was based on an existing right or a benefitprovided by a statute or a scheme made thereunder.

I n SARANGI RAMACHANDRAIAH[7], the question which fell forconsideration before a Division Bench of this Court was whether the LabourCourt, while deciding an application under Section 33-C(2) of the Act, couldrefuse the claim of a reinstated workman for salary for the period from the dateof removal till the date of the judgment in the writ petition in which the removalorder was set aside, taking the view that such a claim of the workman was notan existing right implementable under the Section. The Division Bench held thatthis was a matter which certainly could be and ought to have been examined bythe Labour Court in proceedings under Section 33-C(2) of the Act.

I n P.SESHAGIRI RAO[8], the workmen claimed difference of wages interms of a government order, whereby pay scales applicable to NMR workersin the Srisailam project was treated on par with employees of the work-chargedestablished. The Division Bench of this Court held that in order to invoke thejurisdiction of the Labour Court, under Section 33-C(2), either of the twoingredients must be present. The first is that a workman must be entitled toreceive from the employer any money or benefit which is capable of beingcomputed in terms of money and the second is that a question must havearisen as to the amount of money due, or as to the amount at which suchbenefit should be computed. The Division Bench held that in a case where boththese ingredients are satisfied or either of these ingredients are satisfied, theLabour Court will have the jurisdiction to determine the question. The DivisionBench further held that the Legislature had empowered the Labour Court todecide a dispute as to the right of the workman to receive from the employerany money or any benefit which is capable of being computed in terms ofmoney and had authorized it to decide the question as to the amount of moneydue or as to the amount at which such benefit should be computed. The Division Bench held:-

Division Bench held:-

“……..If this is the position in law, the Labour Court ought not tohave gone into the question whether the respondent-workmen have a rightto receive wages on par with the work-charged establishment employeesin terms of G.O.Ms.No.242, dated 01.06.1977 read with G.O.Ms.No.163,dated 11.05.1982 with effect from 30.04.1976. We say this becauseG.O.Ms.No.163, dated 11.05.1982 under which only the respondents-workmen can claim the benefits of G.O.Ms.No.242, dated 01.06.1977,was brought into force from 11.05.1982 and not with any retrospectiveeffect muchless from 30.04.1976. If the respondents-workmen claimparity of wages for the period from 30.04.1976 to 11.05.1982 on the basisof doctrine of ‘equal pay for equal work’, then, it is absolutely necessaryfor the workmen to establish that right in an appropriate proceedingenvisaged under the Act. Such entitlement question can be decided by theLabour Court or the concerned Industrial Tribunal under Section 10 of theAct and such a question cannot be decided in a proceeding under Section33-C(2) of the Act, which is akin to an execution proceeding under CPC.In that view of the matter, we are of the considered opinion that the LabourCourt has exceeded its jurisdiction in allowing the petition of therespondents-workmen. In that view of the matter, the order of the learnedsingle Judge also cannot be sustained.”

Sri M.Rama Rao, learned counsel for the first respondent, would submit thatthe petitioner has not even taken the plea of laches before the Tribunal and inthe absence of any such plea being taken before the Tribunal, the question canneither be urged nor can it be examined in Certiorari proceedings under Article226 of the Constitution of India. Learned counsel would contend that the HighCourt does not exercise any appellate jurisdiction over awards/orders ofTribunals/Labour Court and that findings of fact recorded by a fact findingauthority duly constituted for the purpose and which ordinarily should beconsidered to have become final, cannot be disturbed for the mere reason ofhaving been based on material or evidence not sufficient or credible, in theopinion of the writ Court, to warrant interference with those findings, at anyrate, as long as they are based upon some material which are relevant for thepurpose or even on the ground that there is yet another view which canreasonably and possibly be taken. Learned counsel would rely on INDIANOVERSEAS BANK[9]in this regard, and submit that the jurisdiction of this Courtwas limited to finding out the satisfaction or otherwise of the relevant criteria onthe facts found and recorded by the fact-finding authority and not to embarkupon an exercise of re-assessing the evidence and arriving at its own findings, giving a complete go-bye to the facts specifically found by the Tribunal.

The Award, in I.D.No. 21 of 1980 dated 09.08.1980 directed that the 1[st]respondent be reinstated into service with full back wages and all otherattended benefits. The back wages, which the 1[st] respondent was entitled tounder the award, was from the date of his termination from service on06.11.1971 till the date of the award on09.08.1980, for a period of around nineyears. Since it has been laid down in Town Municipal Council, Athani[3], R.S.Bhatia[4], Gopal Bhiva[5]a n d Rameshwar[6]that there is no justification ininducting a period of limitation, as provided in the limitation Act, into theprovisions of Section 33-C(2) which does not lay down any limitation and as, inany event, the petitioner herein has not even pleaded latches in M.P.No. 4 of1996 before the labour Court, the 1[st] respondent cannot be denied back wagesfor the period commencing from the date of his termination till the date of theaward as it is an existing right which accrued in his favour under the Award inI.D.No. 21 of 1980 dated 09.08.1980.

The claim of the 1[st] respondent, for arrears of wages for the period from thedate of the award ie., 09.08.1980 till his eventual reinstatement into service on06.02.1996, however stands on a different footing. Sri M. Rama Rao, learnedCounsel for the 1[st] respondent, would contend that, since the award in I.D.No.21 of 1980 dated 09.08.1980 directed reinstatement, the 1[st] respondent had apre-existing right under the said award to be reinstated and failure of thepetitioner to reinstate him for more than fifteen years would entitle him to filethe application under Section 33-C(2) and confer jurisdiction on the labourCourt to examine this incidental question.

In Municipal Corporation of Delhi vs. Ganesh Razak. Daily rated/Casualworkers of the Municipal Corporation of Delhi, who claimed that they weredoing the same kind of work as regular employees and were entitled for thesame pay on the doctrine of “equal pay for equal work”, filed applications underSection 33-C(2)before the labour Court for computation of arrears of theirwages. Their claim was accepted by the labour Court and a challenge theretobefore the Delhi High Court was dismissed. On the said order being challengedby the Municipal Corporation of Delhi, the Supreme Court held:

"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 theentitlement of the workmen to a certain benefit is disputed, there being no earlieradjudication or recognition thereof by the employer, the dispute relating to entitlement is notincidental to the benefit claimed and is, therefore, clearly outside the scope of a proceedingunder Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide theworkmen's entitlement and then proceed to compute the benefit so adjudicated on thatbasis in exercise of its power under Section 33-C(2) of the Act. It is only when theentitlement has been earlier adjudicated or recognised by the employer and thereafter forthe purpose of implementation or enforcement thereof some ambiguity requiredinterpretation that the interpretation is treated as incidental to the Labour Court's powerunder Section 33-C(2) like that of the Executing Court's power to interpret the decree for thepurpose of its execution.”

“In these matters, the claim of the respondent-workmen, who were all daily-rated/casualworkers, to be paid wages at the same rate as the regular workers, had not been earliersettled by adjudication or recognition by the employer without which the stage forcomputation of that benefit could not reach. The workmen's claim of doing the same kind ofwork and their entitlement to be paid wages at the same rate as the regular workmen on theprinciple of "equal pay for equal work" being disputed, without an adjudication of their disputeresulting in acceptance of their claim to this effect, there could be no occasion forcomputation of the benefit on that basis to attract Section 33-C(2). The mere fact that someother workmen are alleged to have made a similar claim by filing writ petitions under Article32 of the Constitution is indicative of the need for adjudication of the claim of entitlement tothe benefit before computation of such a benefit could be sought. Respondents' claim is notbased on a prior adjudication made in the writ petition filed by some other workmenupholding a similar claim which could be relied on as an adjudication enuring to the benefitof these respondents as well. The writ petitions by some other workmen to which somereference 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 LabourCourt as well as the High Court were in error in treating as maintainable the applicationsmade under Section 33-C(2) of the Act by these respondents."

In State Bank of India Vs. Ram Chandra Dubey, on a reference madeby the Central Government as to whether the action of the State Bank of Indiain terminating the services of 26 workmen was justified or not, the Tribunalpassed an order directing reinstatement of the service of the workmen but wassilent with regards payment of back wages for the period between the date oftermination till the date of reinstatement. Aggrieved thereby the State Bank ofIndia approached the Allahabad High Court. The said writ petition wasdismissed holding that since the workmen had been working for the last nine years, by the time their case was taken up for hearing, it was not a case forinterference under Article 226 of the Constitution of India. After disposal of thewrit petition the workman filed applications under Section 33-C(2)of theIndustrial Disputes Act for computation of back wages on the basis of theaward and the subsequent order of the High Court. The Tribunal allowed theapplications and computed the amounts payable to the workman by way ofback wages. Challenging the said award, the State Bank of India againapproached the Allahabad High Court contending that since the earlier awardwas silent with regards payment of back wages the labour Court, inproceedings under Section 33-C(2), was not justified in making an ordercomputing back wages. This contention was rejected by the Allahabad HighCourt holding that the award could not be interpreted to mean that back wageswere not implied in the relief of reinstatement and that the award, by whichreinstatement was ordered, embraced within its ambit the claim of full backwages even though it was silent on the point and since the application filed bythe workman, under Section 33-C(2)was essentially for the purpose ofcomputation of back wages, the labour Court had not determined any new rightin favour of the workman and had simply computed back wages on the basis ofthe award of reinstatement which conferred a right to claim back wages on therespondent workman. On a challenge to the order of the High Court by theState Bank of India the Supreme Courtheld thus:

“When a reference is made to an Industrial Tribunal to adjudicate the question not only as towhether the termination of a workman is justified or not but to grant appropriate relief, itwould consist of examination of the question whether the reinstatement should be with fullor partial back wages or none. Such a question is one of fact depending upon the evidenceto be produced before the Tribunal. If after the termination of the employment, the workmanis gainfully employed elsewhere it is one of the factors to be considered in determiningwhether or not reinstatement should be with full back wages or with continuity ofemployment. Such questions can be appropriately examined only in a reference. When areference is made under Section 10 of the Act, all incidental questions arising thereto canbe determined by the Tribunal and in this particular case, a specific question has beenreferred to the Tribunal as to the nature of relief to be granted to the workmen.”

“The principles enunciated in the decisions referred by either side can be summed upas follows:

Whenever a workman is entitled to receive from his employer any money or any benefitwhich is capable of being computed in terms of money and which he is entitled to receivefrom his employer and is denied of such benefit can approach Labour Court under Section33-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 differencebetween a pre-existing right or benefit on one hand and the right or benefit, which isconsidered just and fair on the other hand is vital. The former falls within jurisdiction ofLabour Court exercising powers under Section 33-C(2) of the Act while the latter does not. Itcannot be spelt out from the award in the present case that such a right or benefit hasaccrued to the workman as the specific question of the relief granted is confined only to thereinstatement without stating anything more as to the back wages. Hence that relief mustbe deemed to have been denied, for what is claimed but not granted necessarily getsdenied in judicial or quasi-judicial proceeding. Further when a question arises as to theadjudication of a claim for back wages all relevant circumstances which will have to begone into, are to be considered in a judicious manner. Therefore, the appropriate forumwherein such question of back wages could be decided is only in a proceeding to whom areference under Section 10 of the Act is made. To state that merely upon reinstatement, aworkman would be entitled, under the terms of award, to all his arrears of pay andallowances would be incorrect because several factors will have to be considered, asstated earlier, to find out whether the workman is entitled to back wages at all and to whatextent. Therefore, we are of the view that the High Court ought not to have presumed thatthe award of the Labour Court for grant of back wages is implied in the relief ofreinstatement or that the award of reinstatement itself conferred right for claim of backwages.”

In State of U.P. Vs. Brijpal Singh the workman challenged the order dated03.07.1987, terminating him from service, by filing a writ petition before theAllahabad High Court and, by order dated 28.10.1987, the operation of order oftermination dated 03.07.1987 was stayed. The workman, after a lapse of sixyears, filed an application before the labour Court under Section 33-C(2) of theIndustrial Disputes Act seeking payment of salary from 04.07.1987 to July 1993and for bonus for the years 1987 to 1992. The labour Court, by order dated23.08.1995, directed the State of U.P. to make payment of salary and bonusfrom 1987 to 1992. The said order of the labour Court was challenged by theState of U.P. in the Allahabad High Court contending that the labour Court hadno jurisdiction to try the said controversy. The Allahabad High Court, by orderdated 09.01.2002, dismissed the petition holding that the workman was entitledto salary and other allowances and since the writ petition filed before the HighCourt had not been finally disposed of, the liability of making payment could notbe avoided and a petition under Section 33-C(2) of the Industrial Disputes Actwas competent and maintainable. Aggrieved by the order of the Allahabad HighCourt, the State of U.P. approached the Supreme Court and it was held thus:

“It is well settled that the workman can proceed under Section 33C(2) only after the Tribunalhas 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 andreinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. Vs. SureshChand , (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding inthe nature of execution proceeding in which the Labour Court calculates the amount ofmoney due to a workman from the employer, or, if the workman is entitled to any benefitwhich is capable of being computed in terms of money, proceeds to compute the benefit interms of money. Proceeding further, this Court held that the right to the money which issought to be calculated or to the benefit which is sought to be computed must be an existingone, that is to say, already adjudicated upon or provided for and must arise in the course ofand in relation to the relationship between the industrial workman, and his employer. ThisCourt further held as follows:

"It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) toarrogate to itself the functions of an industrial tribunal and entertain a claim which is notbased on an existing right but which may appropriately be made the subject matter of anindustrial dispute in a reference under Section 10 of the Act."

Thus it is clear from the principle enunciated in the above decisions that the appropriateforum where question of back wages could be decided is only in a proceeding to whom areference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instantcase, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claimmade by the respondent herein which is not based on an existing right but which mayappropriately be made the subject matter of an industrial dispute in a reference underSection 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate theclaim made by the respondent herein under Section 33C(2) of the I.D. Act in anundetermined claim and until such adjudication is made by the appropriate forum, therespondent-workman cannot ask the Labour Court in an application under Section 33C(2) ofthe 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 therespondent-workman can file application under Section 33C(2) for determination andpayment of wages on the basis that he continues to be in service pursuant to the said orderpassed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. Theargument by the learned counsel for the workman has no force and is unacceptable. TheLabour 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 workmanalthough he has not attended the office of the appellants after the stay order obtained byhim. The Labour Court has committed a manifest error of law in passing the order inquestion which was rightly impugned before the High Court and erroneously dismissed bythe High Court. The High Court has also equally committed a manifest error in notconsidering the scope of Section 33C(2) of the I.D.Act…….”

While the petitioner contends that during the pendency of W.P.No. 2872of 1981 before this Court, the 1[st] respondent was called upon to join duty videproceedings dated 03.08.1992, the 1[st] respondent would contend that he did not

receive the said order of posting. While the 1[st] respondent would rely on thelegal notice sent on his behalf calling upon the petitioner to reinstate him intoservice, the petitioner would contend that these documents were brought intoexistence. The fact however remains that despite an award being passed bythe Tribunal on 09.08.19980, the 1[st] respondent was reinstated more than 15years thereafter on 06.02.1996. The question as to whether during this period of15 years the 1[st] respondent was gainfully employed elsewhere, whether thepetitioner had asked him to join duty and whether the legal notice sent on hisbehalf had been received by the petitioners are among the several factorswhich are required to be examined before the 1[st] respondent could be held asbeing entitled to the arrears of wages from the date of the award till the actualdate of his reinstatement into service. These questions can, as held inRamachandra Dubey[12]be appropriately examined only in a reference andwhen a reference is made under Section 10 of the Act, all incidental questionsarising thereto can be determined by the Tribunal. Since the entire disputerevolves around the period posterior to the award and it is not in dispute thatthere has been no earlier adjudication or recognition thereof by the petitioner-employer, the dispute relating to the entitlement of the 1[st] respondent forarrears of wages during this period is not incidental to the benefit claimed andis clearly beyond the scope of proceedings under Section 33-C2 of the Act. Asheld in Ganesh Razak[11], the labour Court does not have the jurisdiction to firstdecide the workman’s entitlement and then proceed to compute the benefit soadjudicated on that basis, in exercise of its powers under Section 33-C2 of theAct. The labour Court must, therefore, be held to have acted in excess ofjurisdiction in appreciating the evidence adduced before it and in recording afinding that the petitioner had not called upon the first respondent to join duty,after the award in I.D.No. 21 of 1980 dated 09.08.1980. While Sri M. Rama Rao,learned counsel for the 1[st] respondent, contends that it is just and fair that the1[st] respondent be paid this amount since the petitioner was at fault in notreinstating him into service immediately after the award was passed, and thatthe consequences of any order passed by this Court, setting aside the order inM.P. No. 4 of 1997, would result in recovery proceedings being initiated againstthe 1[st] respondent, who, pursuant to the interim directions passed in thepresent writ petition, has been paid 50% of the amount ordered by the labour Court and has retired from service on 30.04.1999. As held in Brijpal Singh[13]the labour Court has no jurisdiction to adjudicate the claim made by the 1[st]respondent under Section 33-C(2) of the Act in an undetermined claim untilsuch adjudication is made in an appropriate forum. The difference, between thepre-existing right or benefit on the one hand and the right or benefit which isconsidered just and fair on the other, is vital. While the former falls within thejurisdiction of the labour Court, exercising powers under Section 33-C2 of theAct, the latter does not. (Ramachandra Dubey[12]). The illustrations given inP.S. Rajagopalan[1]would also show that the claims, such as the one made bythe 1[st] respondent herein are matters which are not incidental questions andtherefore cannot be adjudicated in proceedings under Section 33-C2 of theIndustrial Disputes Act.

The order of the labour Court in M.P.No. 4 of 1996 in I.D.No. 21 of 1980dated 07.04.1997, to extent of computing arrears of wages from the date of theaward dated 09.08.1980 till the date of reinstatement on 06.02.1996 is quashedas without jurisdiction. The matter is remanded to the labour Court to computethe arrears of back wages from the date of termination of the 1[st] respondent on06.11.1971 till the date of award on 09.08.1980 along with 6% interest perannum as directed by the labour Court, giving credit to the amount paid by thepetitioner pursuant to the interim orders of this Court. This exercise shall becompleted by the labour Court as expeditiously as possible not later than aperiod of two months from the date of receipt of a copy of this order.

While the submission, that the 1[st] respondent had retired from servicefrom 30.04.1999 and the 50% amount paid to him, pursuant to the interimorders of this Court in the present writ petition, if sought to be recovered wouldcast an enormous liability which the 1[st] respondent would be in no position tobear, undoubtedly deserves sympathetic consideration, it is not for this court togo into these questions in certiorari proceedings under Article 226 of theConstitution of India. I have no doubt that the petitioner shall bear all theseaspects in mind and take an appropriate decision in the matter.

The writ petition is accordingly allowed to the extent indicated above. Thereshall however be no order as to costs.

Dt: .12.2005 ____________________________

RAMESH RANGANATHAN, J

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