@JUDGMENTTAG-ORDER
T. Raja, J.@mdashThe present writ petition has been filed by thePetitioner/Management of Futura Polyesters Ltd.,Chennai, seeking to quash the impugned order, dated28.01.2011, passed by the learned Presiding Officer ofthe Principal Labour Court, Chennai, in S.R. No. 5316 of2010 in Complaint Petition No. 1 of 2011, on the groundthat, when the Complaint Petition itself was dismissedfor default on the part of the 2nd Respondent/workman on22.02.2010, virtually nothing is pending on the file ofthe Principal Labour Court and, in such circumstances,the exercise of the R-1/Labour Court in taking on Filethe petition filed u/s 33-C(2) of the Industrial Disputes Act at S.R. Stage in S.R. No. 5316 of 2010, that too, despite serious objections on thepart of the Petitioner/Management on legal points, iswholly unsustainable in the eye of law.
2. Arguing the matter by adverting to therelevant facts, Mr. James, learned Counsel appearingfor the Petitioner/company, would point out that the 2nd Respondent/workman, while serving in the Petitioner-company, voluntarily remained absent from 09.02.2004 onthe ground of psychosomatic illness. On returning backto duty on 21.02.2004, he was asked by the Company toappear before the Medical Board so as to ascertain hisfitness for duty. Since he declined to comply with theinstruction, by Discharge order, dated 08.09.2004, thecompany discharged him from service with retrospectiveeffect on the ground that he was unfit for work. Evenbefore passing of the above Discharge Order, theworkman raised an Industrial Dispute, alleging non-employment from 21.2.2004. After submission of a''Failure Report'' by the Conciliation Officer, theworkman filed a Complaint u/s 33A of theIndustrial Disputes Act. Though the said dispute wastaken as I.D. No. 465 of 2004 by the Labour Court, aftertwo years, R2/workman filed an Application in I.A. No. 73 of 2006 before the Labour Court/R1 to treat theDispute as a ''Complaint'' and, accepting the saidApplication, R-1 ordered conversion of the Dispute intoa Complaint.
2-A. Aggrieved by the said conversion order, thePetitioner-Management had filed a writ petition in W.P. No. 22221 of 2006 before the High Court and the same wasdismissed by an order dated 10.10.2006. As against thesaid order, a writ appeal was preferred by theManagement in W.A. No. 1324 of 2006 and the same endedin dismissal by order, dated 22.12.2006, passed by aDivision Bench. The SLP filed by theManagement in SLP (Civil) No. 1324 of 2006 also came tobe dismissed at the admission stage on 25.01.2007.
2-B. Consequent thereto, the complaint was takenup by the 1st Respondent/Labour Court as Complaint No. 1of 2007 and, by Award, dated 10.05.2007, the LabourCourt allowed the complaint, holding that the order oftermination, dated 08.09.2004, was passed in violationof the provisions of Section 33 of the ID Act. Complaining that the Labour Court passed the Awardwithout giving adequate opportunity to the Managementto let in evidence to substantiate their case, the Petitioner filed a writ petition in W.P. No. 23446 of2007 and after hearing both sides, by orders dated 25.07.2008, this Court allowed the Writ Petition andset aside the Award passed by the Labour Court byholding that the complaint itself was not maintainable. Aggrieved by the said Order, the workman/R2 preferred awrit appeal in W.A. No. 961 of 2008 and by orders, dated 19.12.2008, a Division Bench of this Court confirmedthe order passed by the learned single Judge. TheSpecial Leave Petition filed by the workman in SLP CC20322 of 2009 also ended in dismissal by orders dated16.12.2009.
2-C. So highlighting the series of legalproceedings fought between the Management and theworkman and the fate they met, learned Counsel for thePetitioner would argue that, when the finding andconclusion reached by this Court in W.P. No. 23446 of2007 to the effect that the Complaint in CP No. 1 of 2007 itself is not maintainable, had been confirmed notonly by the Division Bench by its Judgment, dated 19.12.2008, rendered in W.A. No. 961 of 2008, and alsoby the Supreme Court by orders dated 16.12.2009 passedin SLP CC 20322 of 2009, the Award dated 10.05.2007 stands set aside. Further, only in terms of thedirection given by the learned single Judge whilesetting aside the Award, vide orders passed in W.P. No. 23446 of 2007, thereby, remitting the matter back tothe Labour Court for a de novo enquiry as the partieswould have to let in evidence on the merits of non-employment of the workman, the Complaint was taken upby R-1 Tribunal and, recording non-appearance of theworkman for the proceedings, by Orders dated 22.02.2010, the Tribunal dismissed the complaint fordefault. It is vehemently contended that, in theabsence of the complaint as it was dismissed for non-appearance of workman-Mr. Manoharan and the same was notrestored to file, entertaining a petition under Section33-C(2) of the ID Act for payment of back wages, thattoo at the SR Stage, is legally untenable andtherefore, any order arising there-from cannot belegally enforceable. Learned Counsel further states that, even according to the workman, the complaint,which was dismissed for default, came to be restoredonly on 08.06.2011. Therefore, the impugned orderpassed in the petition u/s 33-C (2) of theAct prior to restoration of the complaint should not begiven effect to as it is non-est in law. So arguing,he prayed this Court to allow the writ petition.
3. No counter affidavit has been filed byR2/Mr.A. Manoharan. Arguing his case as Party-in-person, he would state that, by taking note of hisabsence from duty on the ground of psychosomaticillness from 09.02.2004 to 20.02.2004, without evenholding any enquiry, the Management dismissed him fromservice by order dated 08.09.2004. The ConciliationOfficer submitted his Failure Report on 24.08.2004. Challenging the Termination Order, dated 08.09.2004, heapproached the first Respondent/Labour Court by way ofa Complaint u/s 33A of the ID Act which wastaken on file as ID No. 465 of 2004. He further statesthat though he actually filed a complaint before the Labour Court, the Office of the said Court wronglymentioned it as a Dispute, therefore, by filing I.A. No. 73 of 2006, he sought for conversion of the Disputeas that of a Complaint and, accepting the saidapplication, the Labour Court directed to treat thepetition which was earlier numbered as I.D. No. 465 of 2004 as a complaint u/s 33A of the Act,whereupon, it was numbered as Complaint No. 1 of 2007. He states that, when the said order was challenged bythe Petitioner/Management by way of W.P. No. 22221 of 2006, this Court, by order dated 10.10.2006, dismissedthe same categorically holding that the conversion ofthe dispute as a complaint u/s 33A does nottake away the right of the Petitioner to contest thesame under the provisions of the ID Act. The WritAppeal filed by the Management in W.A. No. 1324 of 2006 was dismissed by a Division Bench of this Court videJudgment dated 22.12.2006, confirming the order passedby the learned single Judge. SLP (civil) No. 662/07 filed by the Management against the aforesaid orderpassed by the Division Bench also came to be dismissed by the Supreme Court on 25.01.2007. Ultimately, theLabour Court dealt with Complaint No. 1 of 2001 and, by Award dated 10.05.2007, directed the Petitioner-Management to reinstate him with back wages. It isfurther stated that though the writ petition filed bythe Management in W.P. No. 23446 of 2007, challengingthe Award dated 10.05.2007, on the ground that the Management was not given opportunity to let in evidenceso as to substantiate their stand, was allowed bysetting aside the Award, and the said Order of thelearned single Judge was confirmed by the DivisionBench in W.A. No. 961 of 2008 vide judgment dated19.12.2008 and by the Apex Court in SLP CC 20322 of2009 vide order dated 16.12.2009, in parallel, there isalso a direction in the series of the said orders that,while setting aside the Award, the matter was remitted back to the first Respondent-Labour Court for a de novo enquiry as the parties will have to let in evidence on the merits of the non-employment of the 2nd Respondent. The Labour Court was further directed to allow both sides to adduce necessary evidence in support of their stand. According to Mr. Manoharan, from the aboveproceedings, in particular the writ proceedings in W.P. No. 23446 of 2007, it is clear that the Award was setaside only because of the lapse in examining theManagement witnesses and that the matter was remittedback only to consider the evidence on the merits of hisnon-employment. Therefore, the vindictive approach onthe part of the Petitioner-Management before this Courtas if the workman, who actually suffered much inmaintaining himself and the dependant family membersand spent his valuable time and energy in pursuinglegal battles against the mighty management, has nocase or cause to receive the backwages, legally due tohim, should be viewed with all seriousness.
Insofar as the petition in SR No. 5316 of 2010filed u/s 33 C(2) of the ID Act seeking wagesunder Section 17B of the Act is concerned, theworkman/party-in-person submits that, of course, whenthe said petition was submitted before the office ofthe learned Presiding Officer/R1 Court, it was returnedon 05.07.2010, seeking clarification as to the order based on which the petition has been filed and what isthe total amount claimed with classification of headsin the prescribed form. The workman re-presented thepetition on 07.07.2010 stating that the petition filedby him is very much maintainable since the Labour Court can conduct an incidental enquiry u/s 33-C (2) of the Act when it finds that the Termination Order is unlawful, and he also referred to therein a judgment of the Apex Court reported in
4. Carefully examined the case in the light ofthe rival submissions made on either side and the materials available on record.
5. The one and only issue that needs to beanswered here is, whether the first Respondent-LabourCourt is correct in taking up and deciding thepetition filed u/s 33-C (2) of the I.D. Act, that too at S.R. Stage, independent of any order oraward pending enforcement, since the Complaint itselfwas dismissed for default and not subsequently restoredto file at the time of deciding the petition inquestion.
6. It is seen that, after the termination of theworkman by virtue of the Termination Order passed bythe Petitioner-Management on 08.09.2004 and consequentto the Failure Report submitted by the ConciliationOfficer, a Dispute was raised before the firstRespondent as I.D. No. 465 of 2004 by the workman, wholater on, filed I.A. No. 73 of 2006, seeking conversionof the Industrial Dispute as that of a Complaint and,by orders dated 23.06.2006, the said I.A. was ordered. As pointed out already, the said order challenged bythe Management before this Court by way of WritPetition and Writ Appeal and before the Supreme Courtby way of SLP came to be dismissed and ultimately, thecomplaint was decided in favour of the workman by orderpassed by the first Respondent on 10.05.2007, directingreinstatement of the Petitioner in service with backwages, continuity of service and all other attendantbenefits. Though the said Award, when challenged by the Management before this Court by way of Writ Petition No. 23446 of 2007 on the ground that no opportunity wasgiven to them to let in evidence so as to substantiate their case against the workman, came to be set aside,in a way, a positive direction was given allowing theparties to let in evidence on the merit of the non-employment of the workman, while remanding the matterback to the first Respondent. The said order, asaforementioned, was confirmed not only by the DivisionBench of this Court but also by the Apex Court whentaken further by the Management by way of Writ Appealand SLP. Subsequently, on remand, when the first Respondent had taken up the Complaint, due to non appearance of the workman, it was dismissed for default on 22.02.2010. Therefore, as on 30.06.2010, when the petition u/s 33-C (2) was filed by the workman before the first Respondent, there was no Award or Order in favour of the workman. Now, it is relevant to extract below Section 33C (1) and (2) of the Industrial Disputes Act,
33C. Recovery of money due from an employer.-
1. Where any money is due to a workmanfrom an employer under a settlement or anaward or under the provisions of ChapterVA or Chapter VB, the workman himself orany other person authorised by him inwriting in this behalf, or, in the case ofthe death of the workman, his assignee orheirs may, without prejudice to any othermode of recovery, make an application tothe appropriate Government for the recoveryof the money due to him, and if theappropriate Government is satisfied thatany money is so due, it shall issue acertificate for that amount to theCollector who shall proceed to recover thesame in the same manner as an arrear ofland revenue: Provided that every suchapplication shall be made within one yearfrom the date on which the money became dueto the workman from the employer: Providedfurther that any such application may beentertained after the expiry of the saidperiod of one year, if the appropriateGovernment is satisfied that the applicant had sufficient cause for not making the application within the said period.
2. Where any workman is entitled toreceive from the employer any money or anybenefit which is capable of being computedin terms of money and if any questionarises as to the amount of money due or asto the amount at which such benefit shouldbe computed, then the question may, subjectto any rules that may be made under thisAct, be decided by such Labour Court as maybe specified in this behalf by theappropriate Government.
7. A careful reading of the above provision inparticular Sub-section (2) makes it clear that, in adispute relating to workman''s right to receive thebenefit, before proceeding to compute the benefit interms of money, the Labour Court has to deal inevitablywith the question as to whether the workman has a rightto receive that benefit. If the said right is notdisputed, nothing more needs to be done and the LabourCourt can proceed to compute the value of the benefitin terms of money; but, if the said right is disputed,the Labour Court must deal with that question anddecide whether the workman has the right to receive thebenefit as alleged by him and it is only if the LabourCourt answers this point in favour of the workman that the next question of making the necessary computation can arise.
8. Having regard to the logic and synthesis ofthe above provision, now, the claim of the workmanbased on the judgment of the Apex Court in Ram GopalSharma (cited Supra) and another case law referred toby him in
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 u/s 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 u/s 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 u/s 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 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 u/s 33-C(2) of the Act by these Respondents.
9. In the decision reported in 2005 (8) SCC 58 State of U.P. and Anr. v. Brijpal Singh, the supreme court made the issue further clear by laying down the following ratio:
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 u/s 33-C(2) of the Act. The benefit sought to be enforced u/s 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 u/s 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 u/s 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
10. From a close and careful reading of theabove decisions as to the scope and ambit of Section33C (2) of the Act, this Court could draw a conclusionthat Section 33C(2) of the Act is of course wider thanSection 33C (1) of the Act and, in exercising itspowers under the said provision, the Labour Court onlyacts as "Execution Court". Further, in favour of theparty approaching the Labour Court under Section33-C(2), there must be a pre-existing right in respectof the claim and such pre-existing right should stemfrom an award or order. Any deviation in this regardwould amount to decision on disputed claims, whichshould not be resorted to, for, the "incidental issue"is only regarding computation of monetary dues or anyclarification in that regard. In other words, the provisions of Section 33-C (2) of the Act can beinvoked only where the workman has a pre-existing rightto claim the benefit. It follows that if theentitlement has not been adjudicated and there isdispute on the same, such claim can not be allowedunder Section 33-C (2) of the Act. Therefore, theLabour Court acting as an Execution Authority underSection 33-C (2) of the Act can only compute thebenefit and, if necessity arises, can also interpretthe award or any order by virtue of which the claim ismade.
11. Contrasting the case on hand in the light ofthe legal position as discussed above, it is seen thatthe Labour Court proceeded to consider the petitionunder Section 33-C(2), of course, on re-presentment ofthe papers by the workman and, at that stage,admittedly, there was no Award or Order pendingexecution against the Management. Further, theimpugned order came to be passed on 28.01.2011 and,even according to the workman himself, CP No. 1 of 2007, which was dismissed for default on 22.02.2010 came tobe restored to file on 08.06.2011, thereby, it is clearthat as on the date of the presentment of the saidpetition as well as the passing of the impugned order,there was no Order or Award pending enforcement. Therefore, when the claim itself is not decided and thesame is under dispute and when the complaint which wasearlier dismissed for default was not restored, it isnot known under what authority, the Labour Courtproceeded to deal with the petition under Section33-C(2) of the Act despite the serious objections ofthe Management on legal issues at the S.R. Stage. Therefore, I am satisfied that this is a fit case wherethe impugned order is liable to be set aside.
12. However, the other segment of the issue hasto be looked into. In the long-running case of theparties, there were two series of litigations on thedispute, in that, as against the order passed by theLabour Court in favour of the workmen in converting theDispute as that of a Complaint, the aggrieved Management moved the High Court by way of writ petitionand writ appeal and also the Supreme Court by way ofSLP, but in vain. Similarly, as against the Awardpassed in favour of the workman, the Management was,though to an extent, successful in winning their caseon the ground that no adequate opportunity was grantedto them by the Labour Court in examining the witnesses,the matter was ultimately remanded back to the LabourCourt to examine witnesses for the purpose of decidingthe merits of the claim made by the workman. Unfortunately, the workman failed to participate in theproceedings when the matter was taken up by the LabourCourt on remand, as a result, the complaint wasdismissed. The poor workman, who is suffering fromphysical ailments and financial burden and not evenable to effectively launch the legal battle, hadapproached the forum in person and in that endeavour,instead of moving the restoration petition at the firstinstance, he filed the petition u/s 33-C (2)and thereafter, resorted to restoration proceedings. Itseems that he has exhausted considerable time and energy for pursuing the litigation. This Court, in theinterests of justice, taking a sympathetical view,deems it appropriate not to stress much on dismissal ofthe complaint for the absence of the workman, who is anailing aged person with poor financial background. Hence, to meet the ends of justice, in the facts andcircumstances peculiar to this case, a direction isissued to the Labour Court to restore Complaint No. 1 of2007, if not already restored, and decide the issueafresh on merits after affording reasonable opportunityto either side for letting in evidence and cross-examination. Since the matter would be decided on thebasis of evidence and in accordance with law, there maynot be any prejudice or grievance to either side inordering fresh disposal. As the matter is endlesslybeing pursued, this Court further directs the LabourCourt to conclude the entire proceedings strictlywithin a period of four months from the date of receiptof copy of this Order. Both the parties are directedto be cooperative enabling the Labour Court to concludethe proceedings within the time-frame stipulated.
13. Writ Petition is allowed in part, settingaside the impugned order, with the above direction tothe Labour Court. No costs. Connected MiscellaneousPetition is closed.
