Rajiv Narain Raina, J.@mdashIn this writ petition, the petitioner has challenged an order passed by the Labour Court, Jalandhar in proceedings
under Section 33-C (2) of the Industrial Disputes Act, 1947 (for short ""the Act"") granting Rs. 66651/- along with 8% simple interest as money due
on account of extra wages for work performed overtime. In challenge to the award, the Corporation contends that the respondent No. 1 was
employed as a Driver of an Emergency Jeep in Power House, Mukerian Hydel Project, Talwara, District Hoshiarpur. He was paid the overtime
from the date of his appointment in terms of Section 59 of the Factories Act, 1948. This was till October 1996 whereafter the erstwhile Punjab
State Electricity Board, predecessor-in-interest of the Corporation stopped paying overtime allowance.
2. Aggrieved, the petitioner had moved an application in 1999 under Section 33-C (2) of the Act before the Labour Court, Jalandhar which was
allowed on February 08, 2005. The writ petition filed against the order of the Labour Court was dismissed by this Court on September 19, 2005.
In the Special Leave Petition carried to the Supreme Court against the order of the Division Bench, the converted appeal was dismissed in terms of
the signed order. Two separate orders were passed by the Supreme Court on July 21, 2010. One, dismissing the appeal in terms of the signed
order, the other being the signed order which reads as follows:-
Having heard learned counsel for the parties and having perused the record, we are of the opinion that this is not a fit case for interference under
Article 136 of the Constitution of India.
The Civil Appeal is, accordingly, dismissed. No costs.
However, the question of law is kept open.
We also make it clear that the impugned order of the High Court shall not operate as a precedent.
3. As a result, the ratio of the order of the Division Bench dated September 19, 2005 was not approved. Two issues were raised before the
Division Bench of this Court. One, with respect to entitlement to overtime as granted to employees similarly situated as the workman, while the
other, was grant of compensatory leave/rest days for work performed overtime. Having succeeded in the first round under Section 33-C (2) the
workman returned to the Labour Court by a fresh application for computation of money due for the period November 16, 1999 to November 12,
2005 claiming arrears of overtime. It may be noted that the first application was restricted to the period 1996 to 1999. It was the case of the
Corporation in defence in the Court a quo that the respondent-Driver was working in the Power House outside the factory and he was not being
paid any overtime allowance since a Driver get special pay of Rs. 300/- in view of the circular letter No. 18969 dated July 14, 1997 issued by the
Chief Auditor, Punjab State Electricity Board, Patiala. It was pleaded in defence by the Corporation that the respondent was allowed
compensatory rest in lieu of duty which was tabulated in detail before the Labour Court and has found its way verbatim in the order.
4. A perusal of the impugned order does not show an examination of the circular dated July 14, 1997 reflected therein and the letter dated
September 14, 1997 relied upon, a copy of which has been placed on record as Annexure P-3. This letter contains the policy decision that drivers
of vehicles are not entitled to overtime because special pay is paid for the duties performed by them at odd hours. The workman, in the present
case, claimed that for every additional working day, he was entitled to be provided with two leaves and if not, salary for the un-availed leave
deserves to be paid to him. It was the stand of the Corporation that it has never refused leave to the workman in lieu of working of any holiday.
Though in terms of the circular, he may not be entitled to any extra wages or overtime. A seachange has been brought about by the order passed
by the Supreme Court when the question of law arising from the earlier proceedings was kept open by specifically holding that ""we also make it
clear that the impugned order of the High Court shall not operate as a precedent"". In view of this order, the respondent-Boota Singh would be
certainly entitled to the monetary benefits arising out of the first execution proceedings but those benefits would not operate in continuum as a
precedent and, therefore, in the present proceedings the entire range of legal issues would necessarily have to be decided afresh and this Court
cannot remain dependant on anything said in the orders of the Division Bench after suffering the order of the Supreme Court in the case of the
petitioner himself.
5. The foremost of which arises for consideration of this Court is whether in the face of policy circular dated June 03, 1997 and July 14, 1997 can
it be said that the respondent has a pre-existing right to claim money due in proceedings under Section 33-C (2) of the Act without seeking to
undo the policy decision denying the claim for overtime duty. In the cross-examination of workman Boota Singh has candidly admitted that he was
getting compensatory rest against overtime duty but he volunteered to say that he was entitled to the double benefit. On a pointed question asked,
he replied that it was correct that he was claiming compensatory relief against overtime in writing but had neither claimed nor availed all such
leaves. If he has not availed leaves on his own volition then he may have deprived himself of a right to overtime but he cannot claim both the
benefits simultaneously. His cross-examination is at Annexure P-2.
6. It is well settled that proceedings under Section 33-C (2) are not creative of rights and the Labour Court would have no jurisdiction to declare
such rights in execution proceedings under Section 33-C (2) of the Act. Such claim can be laid only upon a reference under Section 10(1)(c) if the
workman elects to seek his remedy under the industrial law. If he is a Government servant, he can make such claims either before the civil court or
in writ proceedings but the result cannot be achieved before the labour court in the jurisdiction invoked. Though past transactions for the period
1996 to 1999 are not open to be disturbed as a result of the proceedings in the first round of litigation ending in the Supreme Court but the same is
not automatically true of the subsequent period with respect to the jurisdiction invoked as the orders passed by the Division Bench in favour of
Boota Singh are not to be treated as a precedent for anyone including the respondent for a subsequent period not covered by the previous
litigation. The order of the Supreme Court is clearly passed under Article 142 of the Constitution but binds both the parties and operates in
personam: No right as claimed by Boota Ram has been declared in rem.
7. I would, therefore, not find the impugned order passed by the labour court as a legally sustainable one mostly for the reason that the effect and
impact of the policy circulars supra have been noticed but not dealt with and considered. The correctness or otherwise of the policy circulars are
not open to dissection or departure in execution proceedings under Section 33-C (2) of the Act even though they may have existed at the time of
the first round of litigation especially when they were not noticed in the orders of the Division Bench from which the appeal was carried to the
Supreme Court and I would therefore, in the main, allow this petition and set aside the impugned order passed by the Labour Court, Jalandhar on
June 13, 2012. However, if the respondent wishes to question the circulars then he would be free to take appropriate proceedings, if advised or
are available in law other than to invoke the jurisdiction under Section 33-C (2) of the Act. Towards this end and in case litigation ensues then the
period spent for pursuing remedy under Section 33-C (2) of the Act would be treated as time spent bona fidely pursuing remedy in a wrong forum.
It is expected that the Court in the third round of litigation, if any, would consider the request under Section 14 of the Limitation Act, in case made
by the respondent, in the light of the above broad principles but this order would not be taken in those proceedings as one having expressed any
definitive opinion on the merits of the claim arising out of the policy circulars of the Board which would be examined afresh as per law. Parties are
left to bear their own costs.
