P. v. Sreedharan Nair VS Deputy Tahsildar — 1992 DIGILAW 266 (KER)

JUDGMENT K.A. Nayar, J. 1. This original petition is filed to quash the revenue recovery proceedings initiated against the petitioner by Exts. P10 to P13 The petitioner was the Managing partner of a Partnership which was operating a bus bearing Registration No. KLN 708. Admittedly, respondents 4 and 5 are workers employed by the partnership. That partnership was dissolved by a decree passed in a suit filed by one of the partners, viz. the brother of the petitioner as O. S. No. 192 of 1979 in the Court of Subordinate Judge, Thalassery. Preliminary and final decree have been passed. In the final decree passed, there is a provision for payment of arrears of salaries to the employees in connection with the management of the bus upto the date of court auction. Before the partnership was dissolved, the petitioner purchased the bus in court auction on 24-10-1988 for an amount of Rs. 80,000/-. The purchase consideration was deposited in court and, thereafter, the petitioner was operating the bus. service. When dissolution suit was pending, i. e. from 1-4-1984 to 31-10-1988, the receiver appointed by the court was operating the bus service. The bus was put in possession of the petitioner on 1-11-1988 and, thereafter, the petitioner was running the service and operating the bus. It was found that the operation of bus service was not profitable and, therefore, the petitioner retrenched the workmen on 3-12-1990 including respondents 3, 4 and 5. A dispute arose regarding payment of the amount due to the workmen which ended in a settlement, i.e. Ext. P4. On 26-3-1991 the Conciliation Officer issued a notice convening a conciliation conference of the parties to the dispute relating to Bus KLN 708 and denial of employment to three workers. The conference was proposed at 3 P. M. on 2-4-1991 in the office of the District Labour Officer, Cannanore. The 4th respondent has produced the notice as Ext. R4(a). A meeting was held on 2-4-1991. On that day, it is stated that the parties have agreed to have a bipartite discussion and to adjourn the conciliation conference. The parties discussed the matter on 12-4-1991 in the presence of Sri. Achuthan Nair, Advocate of the petitioner. Parties arrived at a tentative settlement on that day. That has been produced by the 4th respondent and marked as Ext. R4(b). That shows the petitioner is a signatory to that agreement. The parties discussed the matter on 12-4-1991 in the presence of Sri. Achuthan Nair, Advocate of the petitioner. Parties arrived at a tentative settlement on that day. That has been produced by the 4th respondent and marked as Ext. R4(b). That shows the petitioner is a signatory to that agreement. By that agreement the amount due to respondents 4 and 5 has been quantified at Rs. 15,898/- and Rs. 9515/- respectively. By Clause.5 of that agreement it was agreed that the said agreement was only a provisional agreement and further agreement will be entered into in the presence of the District Labour Officer on 17-4-1991. Accordingly a conciliation settlement was arrived at which is evidenced by Ext. P4 dated 20-5-1991. Serial Nos. 2 and 5 in Ext, P4 are respondents 4 and 5. The amount due to them have been quantified and mentioned. In Ext. P4 it is stated that an amount of Rs. 2,002/- should be deducted from the amount due to the 4th respondent and an amount of Rs. 1640/- to be deducted from the amount due to the 5th respondent. Without deduction, the amount comes to Rs. 25,413/- and after deduction the amount comes to Rs. 21,771/-. This amount had to be paid under the agreement, to respondents 4 and 5. Since the amount has not been paid, the parties approached the District Labour Officer under S.33C(1) of the Industrial Disputes Act and the District Labour Officer issued notices, Exts. P5 and P6, both dated 4-9-1991 to the petitioner to make the payment. Instead of paying the amount, the petitioner, through his counsel, filed objection stating that the settlement has been entered into by force and it is not binding on him. It is further stated that settlement of liabilities due to workmen is provided for in the final decree in I. A. 1433/1983 in O. S. No. 192/1979 and therefore, the same will have to be collected by the workmen from the Court of Subordinate Judge, Tellicherry. But nevertheless, revenue recovery proceedings have been Issued and ' the petitioner filed Exts. P14 and P15 objection before the District Collector. It is in the above background the petitioner approached this Court challenging the revenue recovery proceedings. 2. The amount is due under the settlement and under S.33C(1) that can be recovered by way of revenue recovery proceedings. But nevertheless, revenue recovery proceedings have been Issued and ' the petitioner filed Exts. P14 and P15 objection before the District Collector. It is in the above background the petitioner approached this Court challenging the revenue recovery proceedings. 2. The amount is due under the settlement and under S.33C(1) that can be recovered by way of revenue recovery proceedings. Under S.33C(1) of the Industrial Disputes Act, where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB, the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, can make an application to the appropriate Government for the recovery of the money due to him and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue. The settlement Itself is not in challenge before me. The contention of the petitioner is that only the Government can recover the amount and the District Labour Officer has no jurisdiction. This contention is not tenable as the power of delegation has been given under S.39 and notification authorising the District Labour Officer also has been issued. S.39 authorises the appropriate Government, by notification in the official gazette to direct that any powers exercisable by it under the Industrial Disputes Act or Rules made thereunder can be exercised by such officer or authority subordinate to it as may be specified in the notification. Notification No. 48174/L2/61-5 HLD dated 4th July, 1961 published in the Kerala Gazette dated 18th July 1961 directed that the powers exercisable by the Government of Kerala under sub-section (1) of S.33C of the Industrial Disputes Act shall be exercisable also by the Labour Commissioner, Deputy Labour Commissioners and the District Labour Officer. In this case the certificate has been issued by the District Labour Officer. Hence, the contention that the District Labour Officer cannot Issue the certificate but only the Government can do so cannot be countenanced. 3. In this case the certificate has been issued by the District Labour Officer. Hence, the contention that the District Labour Officer cannot Issue the certificate but only the Government can do so cannot be countenanced. 3. Petitioner also contended that there must be an enquiry regarding the amount due as the petitioner has challenged the existence of the agreement itself. Jurisdiction under S.33C(1) is to issue the certificate and that jurisdiction cannot be taken away by conjuring up a dispute regarding the settlement. Conciliation settlement has been signed by the petitioner and before that there is a provisional settlement as well. Amount due from the petitioner has been quantified and, therefore, a dispute at the belated stage to oust the jurisdiction of the competent authority, the Government, or the delegated authority cannot be countenanced. The Government's jurisdiction under S.33C(1) cannot be ousted by a mere plea at a belated stage that the settlement arrived at is not genuine or binding. There is also a contention that the conciliation agreement has not been signed by the Conciliation Officer. From the agreement it is seen that the Conciliation Officer has signed the agreement and there was no contention that agreement has not been countersigned by the Conciliation Officer, in Exts. P7, P8 & P15 objection of. the petitioner. In any case there was provisional agreement preceding the conciliation settlement in which the petitioner is a signatory. Therefore, he cannot contend that the amount is not properly quantified or that the amount is not actually due. It is also contended that the amount now in dispute is deposited in the Subordinate Judge's Court, Tellicherry in O. S. No. 192/1979 and that can be attached and recovered. Respondents 4 and 5 are not parties of the suit. Agreement can be enforced under S.33C(1) and that can be done by way of certificate issued and that is what has been done in this case. Exts. P10 to P13 are, therefore, not vitiated. If the petitioner makes the payment, it is for him to recover the amount from the Subordinate Judge's Court, in O. S. No. 192 of 1979. 4. Petitioner further contended that S.33C(1) of the Industrial Disputes Act itself is not applicable to the case in question. If money is due to respondents 4 and 5, they ought to have filed an application under S.33C(2) and only thereafter recourse to be had under S.33C(1). 4. Petitioner further contended that S.33C(1) of the Industrial Disputes Act itself is not applicable to the case in question. If money is due to respondents 4 and 5, they ought to have filed an application under S.33C(2) and only thereafter recourse to be had under S.33C(1). This contention is also without any merit. S.33C (2) is wider in scope and that applies 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. 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 money due will have to be computed under S.33C (2) and only thereafter recovery proceedings could be had under S.33C (1). But when the money is due to the workman, it is S.33C (1), that is applicable. In other words, S.33C (2) is applicable when workman is entitled to receive any money or benefit which is capable of being computed in terms of money. There is no dispute in this case that there was a settlement and under that settlement the amount to be paid to respondents 4 and 5 have been computed. On a reading of S.33C (1) it will be seen that the money due under a settlement or an award or under the provisions of Chapter VA or VB, to the workman can be recovered by the modality mentioned in S.33C (1). Reference to Chapter VA and VB would show that it relates to lay off and retrenchment compensation. If the fact of lay off or retrenchment is not disputed and there is no dispute relating to wages and length of service of the workman, the money due can be ascertained by applying simple arithmetic. There is no adjudication Involved in such case. This contention also has been considered by the Supreme Court in the decision reported in Swatram Ramprasad Mills Co. v. Baliram Ukandaji 1966 (I) LLJ 41 . The Supreme Court held that: "The next contention is that the claim for lay off is not a claim for money due, because calculations have to be made before the money due can be found. v. Baliram Ukandaji 1966 (I) LLJ 41 . The Supreme Court held that: "The next contention is that the claim for lay off is not a claim for money due, because calculations have to be made before the money due can be found. This argument has been considered on more than one occasion and it was rejected recently by this Court in Kays Construction Company (Private), Ltd. v. State of Utter Pradesh and others (1965 II LLJ 429). It is not essential that the claim which can be brought before the Government or its delegate under S.33C(1) must always be for a predetermined sum. The Government or the labour court may satisfy itself about the exact amount and then take action under that section. In the present case the dates of lay off are known and each workman will show to the second labour court he is qualified to receive compensation for layoff. That will be shown from the muster roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S.33C permits to be made. If there is any question whether there was lay - off or not, the labour court will decide it. This argument, therefore, has no force." On the basis of the settlement, the Government, therefore, rightly entered its satisfaction that money is due to the workman in question. The satisfaction even by applying an objective standard cannot be considered as vitiated. The claim of the workmen for amount fixed under the agreement cannot be defeated by a mechanical denial of the agreement at a belated stage without any bona fide. 5. Lastly it is contended that there is a dispute relating to the amount mentioned in Exts. P10 to P13. The dispute relates to the quantum. The total amount demanded is Rs 25,413/-. Out of this an amount of Rs. 3642/- will have to be deducted and the certificate, therefore, is valid only for the amount of Rs. 21,771/-. It is made clear that the first respondent and 6th respondent can collect only that amount from the petitioner and they are therefore restrained from collecting any amount from the petitioner in excess of Rs. 21,771/-. This is so declared. 3642/- will have to be deducted and the certificate, therefore, is valid only for the amount of Rs. 21,771/-. It is made clear that the first respondent and 6th respondent can collect only that amount from the petitioner and they are therefore restrained from collecting any amount from the petitioner in excess of Rs. 21,771/-. This is so declared. In order to avail the amount in deposit from the Subordinate Judge's Court, Tellicherry as per the final decree in I. A. No. 1433/1983 in O.S. No. 192/1979, the petitioner prays that he may be given some time for making the payment. The request is reasonable. Revenue recovery proceedings, therefore, shall be kept in abeyance for a period of three months from today for the said purpose. The original petition is disposed of as above.