Mineral Exploration Corporation Ltd. Vs The President Officer, Labour Court and Others

@JUDGMENTTAG-ORDER

Ajit Kumar Sinha, J.@mdashThe present writ petition has been preferred for the following reliefs:

i) For issuance of an appropriate writ/order/direction from this Hon''ble court for quashing the Award dated 17.7.2002 passed by the Presiding Officer, Labour Court, Hazaribagh in M.J. Case No. 4 of 1999 whereby and whereunder the learned Presiding Officer has been pleased to hold that the applicants (Respondent Nos. 2 to 34 herein) are entitled for computation of the benefit of the Adhoc Cash Award Scheme for the year 1998-99 and directed the petitioner to pay an amount of Rs. 2,52,377.15 paise (Rupees two lakh fifty two thousand three hundred seventy seven and paise fifteen) only alongwith interest at the rate of 6% per annum from the date of the filing of the case,

ii) For a writ of or in the nature of Mandamus commanding upon the concerned respondents to forbear from giving effect to or acting pursuant to or in furtherance of the said impugned Award dated 17.7.2002.

2. The main contention raised by the learned Counsel for the petitioner is as to whether the Labour Court in a proceeding u/s 33C(2) of the Industrial Disputes Act can decide the issue involving disputed question of fact and monetary benefit. He has also submitted that the scheme for the period 1998-99 was not applicable to the respondent workmen since they were admittedly contingent employees and thus they cannot claim the benefit under the said scheme.

3. The facts in brief are set out as under:

An Adhoc Cash Award Scheme was introduced for drilling operation in the year 1994 based on productivity and the cash award was payable accordingly to all the persons working in the drilling project during the period 1994-95. This scheme was initially for a period of one year; but the same was extended from time to time. However, since 1997-98 the Cash Award Scheme was made applicable only to all the persons at the drilling project excluding trainees and jobs done through contract. The relevant clause is quoted as under.

Clause 2.01. The Scheme shall be applicable to all persons at the Projects, excluding the trainees and jobs done through contracts. However, distribution of the total Cash Award earning between different employees has to be based on the following criteria:

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4. Respondent Nos. 2 to 34 filed an application before the Presiding Officer, Labour Court, stating that they were covered under the Adhoc Cash Award Scheme for drilling operation 1998-99 and were denied the payment of cash award on the ground that they were contingent employees.

5. The counsel for the respondent also submitted that on the same set of scheme they were paid the Cash Award Scheme up till the period 1997-98 and thus the denial of the benefit of the scheme in 1998-99 was bad and illegal.

6. It has also been contended by the learned Counsel for the respondent that even otherwise the order was bad, since it was in violation of Section 9A of the Industrial Disputes Act, since it amounted to change in service condition without any prior notice. The learned Presiding Officer passed the impugned Award on 17.7.2002 holding that the applicants are entitled for computation of the benefit of Adhoc Cash Award Scheme for the year 1998-99 and directed the petitioner to pay the amount of Rs. 2,52,377.15 paise with interest at the rate of 6%.

7. I have considered the rival submissions as well as the pleadings. Before adverting to it, it will be necessary to refer Section 33C(2).

Section 33C(2) "Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months;]

[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]

8. It will be evident on reading the aforesaid provision that if the workman is entitied to receive from the employer any money or any benefit computed in terms of money then the same can be decided by Labour Court. However, the word entitlement preceeds the computation which means it is basically executory in nature.

9. In the instant case the main claim of the respondent workmen was that they were entitled to receive money from the employer and or benefit under the Cash Award Scheme which they were getting till 1997-98 based on the productivity under the drilling operation project.

10. The counsel for the petitioner Management has also referred and relied upon D. Krishnan and Another Vs. Special Officer, Vellore Co-operative Sugar Mill and Another, to support his contention that Section 33C(2) of the Industrial Disputes Act is executary in nature and the proceedings under it pre supposes adjudication leading to determination of a right, which has to be enforced. The Hon''ble Supreme Court in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, held that a proceeding u/s 33C(2) is a proceeding in the nature of execution of proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. The Hon''ble Supreme Court has followed this proposition in subsequent judgments as well as has time and again held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be a exceeding one, that is to say already adjudicated upon or provided for and must arises in the course of and in relation to the relationship between Industrial workman and his employer. Section 33C(2) are in the nature of execution proceedings is in no doubt, and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case.

11. The second aspect of the matter is that Clause 2.01 of the scheme uses the sentence that the schemes shall be applicable to all persons at the project excluding the trainees and jobs done through contracts and thus the contingent workmen were not entitled. The ground that they got it in the year 1997-98 by mistake, will certainly not entitle them as a matter of right to compel the Management to again commit the same wrong. No doubt earlier the scheme provided for payment even to contingent employees but from the year 1997-98 and 1998-99 it was modified and it specifically excluded the contingent workmen from the benefit of the scheme and thus the claim itself of workman has been disputed by Management.

12. The counsel for the respondent has also submitted that the action of the petitioner Management herein is violation of Section 9A of the Industrial Disputes Act. However, I am of the firm opinion that Section 9-A will not apply in this case, since it does not relate to any change in service condition.

13. The learned Presiding Officer, Labour Court, Hazaribagh, has clearly erred in holding that the respondent workmen were entitled u/s 33C(2) of the I.D. Act to get an order for the computation of their dues regarding Adhoc Cash Award Scheme for the year 1998-99.

14. Considering the aforesaid facts and circumstance of the case and in view of the non-applicability of the Scheme to the contingent workmen the entitlement itself was disputed and thus the impugned Award passed u/s 33(c)(2) of the I.D. Act is on the face of it not maintainable, illegal and cannot be sustained in the eyes of law.

15. This writ petition is allowed and the impugned Award is set aside.