@JUDGMENTTAG-ORDER
L. Narayana Swamy, J.@mdashThe management has filed this writ petition challenging the order dated 11.5.2012 passed by the Labour Court, Gulbarga in Application No. 43/2011.
2. The facts of the case are that the respondent preferred application before the Labour Court under Section 33(C-2) of the Industrial Disputes Act, hereinafter referred to as ''the Act'' for short, seeking payment of Rs. 5,09,040/- with interest at 18% p.a. The Labour Court passed order directing the petitioner to pay Rs. 3,28,782/- towards D.A. difference and leave encashment salary etc., with interest.
3. The first contention of the petitioner is that the Labour Court exceeded its jurisdiction and the application under Section 33(C-2) of the Act should have been dismissed as there is no prior determination or adjudication of the claim made by the respondent. The petitioner had settled all the claim of the respondent on his retirement. In order to substantiate his submission, the learned counsel referred Section 33(C-2) of the Act and contended that on retirement of the respondent, the relationship of employer and employee is severed and therefore the respondent, if at all, he is entitled, ought to have approached under Section 10(1-C) of the Act. The learned counsel for the petitioner placed reliance on the decision in
4. The sum and substance of contention of the petitioner is that provisions of Section 33-C(2) could be invoked as if an executing court only to get the undisputed differences, if any, on retirement. Since no such entitlement has been established and adjudicated, the question of invoking Section 33-C(2) of the Act does not arise and the Labour Court has erred in passing the impugned order.
5. The learned counsel for the respondent submits, conceding that unless the entitlement is established, question of invoking provisions of Section 33-C(2) would not arise. But it is submitted, petitioner''s entitlement is in accordance with the service regulations and also a statutory right as per the government orders issued by the Government of Karnataka from time to time. It is submitted, the application filed by the respondent is based on the established right, namely, that entitlement for bonus and other arrears which is an established right. The Labour Court under such circumstances has jurisdiction and rightly the order which is impugned came to be passed. The learned counsel for the respondent placed reliance on the decision of the Supreme Court in
"16.....The only point which the Labour Court can determine is one relation to the computation of the benefit terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-s.(2) it is clear that if a workman''s right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as a to whether the workman has a right to receive that benefit. If the said right is to disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub-s.(2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit". The appellant''s construction would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible."
The said judgment has been followed by this Court in
"12.....In our opinion, on a fair and reasonable construction of Sub-section (2) it is clear that if a workman''s right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done...
The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2)."
6. The learned counsel also referred to the evidence of MW-1 and submitted that entitlement of the respondent is admitted that the employees were paid bonus on par with the other employees by following the directions of the Government orders. In the circumstances, the learned counsel submits to dismiss this writ petition.
7. The submission of the petitioner that the petitioner had settled the claim of the petitioner and hence there was no claim existing or alive for the purpose of invoking application under Section 33-C(2) of the Act. It is true as it is conceded by the respondent also that Section 33-C(2) of the Act cannot be invoked to establish a right of payment by the employee. It could be invoked only on established entitlement as per law and statutory provisions. The said aspect has been discussed by the Labour Court at Para-23 with regard to evidence of MW-1 who denied the pay-scale, D.A., H R A, Bonus and differential gratuity on par with the employees of the State Government and the Management witness has deposed that there was nothing due to the respondent herein. The Labour Court has referred the legal provision that the Government of Karnataka has been extending the benefit of bonus to its employees. MW-1 has shown ignorance as to whether such facilities are paid to the petitioner since 1.1.2004. He deposes that the petitioner has a right to claim earned leave salary of 240 days. Even though he states that they have documents to show that all the benefits are paid to the petitioner. While discussing evidence of MW-1 it is held that the respondent is entitled for Rs. 1,54,000/- towards 201 earned leave encashment. This finding of the Labour Court is on the basis of established right of the respondent for encashment of 201 days earned leave. The payment of salary, pension and other service benefits are held to be fundamental right and right to life as per Article 21 of the Constitution of India. When such a right is held to be fundamental right, the Labour Court has rightly invoked Section 33-C(2) of the Act on established right and constitutional right.
8. In para -26 the Labour Court has referred to D.A. payable to the petitioner. The evidence of the Management witness with regard to revised 5th pay scale benefit is provided to the petitioner and his pay-scale was revised from time to time. It is also referred by the Labour Court that the petitioner herein had admitted the fact that the Government of Karnataka declared D.A at 61%, 64%, 67%, 71% and 74% respectively since 2004 up to 2006. These D.A. arrears are payable by virtue of the government orders which is an established right of a party to get the same.
9. When these are established rights of the petitioner as a matter of right, the respondent rightly approached the Labour Court u/s 33-C(2) of the Act which is in the form of execution. In the circumstances, I find justification in the order passed by the Labour Court. I do not find any ground to interfere.
Accordingly, writ petition is rejected.
