Hindustan Copper Limited v. Presiding Officer — 1997 DIGILAW 435 (PAT)

Judgment A. K. Ganguly, J. 1. All these 25 writ petitions were heard analogously and are decided by this common judgment since common questions are involved. 2. These writ petitions have been filed by the Hindustan Copper Limited (hereinafter referred to as the said company) for quashing the order dated, 4th September, 1990 passed by the presiding Officer, Labour Court, Jam-shedpur in M. J. Case No.2/87 to 25/87. The said Company has also impugned the order dated 30th November, 1991 passed by the same respondent in the aforesaid M. J. Cases. 3. Against the order dated 4th September, 1990 passed by respondent No.1 previously another writ petition was filed before this Court by the said Company. That writ petition was numbered as C. W. J. C. No.2318 of 1990 (R), and on that writ petition a Division Bench of this Court, by its order dated 30th november, 1990, held that since the order dated 4-9-1990, is an interim order, the Hon ble Court refused interfere and the said Company was given liberty to challenge the same if final order is passed. Now the order dated 30th November, 1991 is admittedly the final order passed in that proceeding. 4. Both these orders dated 30th september, 1990 and 30th November, 1991 were passed by respondent No.1 in a proceeding under Sec.33-C (2)of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act ). 5. The material facts out of which the aforesaid orders were passed may be summarised as thus: -The said Company is a Government Company within the meaning of section 617 of the Companies Act, and engaged in the business of extraction of the mineral known as Copper Ore from the leasehold areas, benefication of the copper ore and production of copper bars, plates and some bye-products at the Indian Copper Complex. A club under the name and style of Moubhan-dar Golf Club (hereinafter referred to as the said Club) situated at Ghastsila was started by the officers of the said company. This is common ground that the officers of the said Company are members of the said Club. Apart from the officers, in the said Club there are various outsiders who are also its members. This is the case made out in the writ petition. 6. The case of the said Company is that the said Club is a distinct entity and different from the said Company. Apart from the officers, in the said Club there are various outsiders who are also its members. This is the case made out in the writ petition. 6. The case of the said Company is that the said Club is a distinct entity and different from the said Company. It may be noted here that for development of the said club the said company extended some help in purchasing the implements and machinery etc. but the clear stand of the said Company is that the said club has a distinct entity apart from the said Company. The respondents-workmen are all admittedly working in the said club. Those workmen have claimed that they are also employees of the said Company, and as employees of the said Company they are entitled to the benefits of various agreements between the employees and the said company in respect to their wages and other conditions of services and they should be treated as the workers of the said company. 7. The said company in the aforesaid circumstances denied that the workers of the club are employed by it and stated the claim Of worker of the said club is not tenable. 8. The existence of employer and employee relationship is very much disputed and on the existence of such relationship depends the right of workers to get the benefit that they are claiming. 9. Primarily in the aforesaid factual background, an application under Section 33-C (2) was filed before respondent No.1 and while contesting the same before respondent No.1 the said company specifically raised the question that there does not exist any relationship of employer and employees between the said Company and the workers of the said Club. By a detailed enquiry and order running into several pages the respondent No.1 found that the said relationship exists by its order dated 4th-September, 1990, and thereafter by its consequential order dated 30th November, 1991 had given relief to the workers and on the basis of the adjudication in the order dated 4th September, 1990. It may be mentioned here that both the orders are passed by respondent No.1 in exercise of jurisdiction under Sec.33-C (2) of the said act. 10. It may be mentioned here that both the orders are passed by respondent No.1 in exercise of jurisdiction under Sec.33-C (2) of the said act. 10. Therefore, the following questions fall for consideration before this court: - I. Whether the Labour Court while exercising its jurisdiction under Sec.33-C (2) of the Act can entertain an adjudication on the question of existence of any relationship between the employer and employees when such relationship is not apparent and is disputed. In other words whether adjudication of such question on the decision of which is based the entitlement of the workers falls within the domain of a proceeding under Sec.33-C (2 ). 11. Assuming, that the Labour Court acting under Sec.33-C (2) of the said act has the jurisdiction to decide the questions mentioned, even then can the adjudication made above it, be called a proper adjudication on the merits of the case and on an objective basis? II. Learned Counsel for both par-ties addressed the Court on both the questions as framed above. But this court confines its decision on the first question as the same is a question of jurisdiction. Nothing said in this judgment will therefore be interpreted to have any effect on the determination of the issues involved in the second question. 12. In order to answer the first question referred to above, it will be advisable to construe the relevant Section, namely Sec.33-C (2) of the said Act and so the same is quoted below: - 33-C (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 from 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. " 13. " 13. From the wording of the said section it is clear that the said Section proceeds on one basis assumption, namely, the entitlement of the workmen. On a proper construction, this entitlement ought to be in connection with a pre-determined right which has been decided or conceded already. This entitlement of the worker, unless it is purely incidental or obviously consequential, cannot be adjudicated in a proceeding under Sec.33-C (2) of the Act. Therefore, this Section which is merely in the nature of a recovery proceeding and has been equated by various judicial pronouncements with execution proceeding cannot permit an adjudication where the right to the relief or the basis of the entitlement is adjudicated for the first time, unless such an adjudication, as pointed out already, is just incidental and merely consequential. Therefore, acting under this section the question which may be decided by the Labour Court is not a question as to whether the workman is entitled to receive the benefit, but merely the question of computation of such benefit in terms of money or where a question arises the amount of money at which such benefit may be computed. In this case there is no prior adjudication whether the workers of the club are workers of the said company and are entitled to the benefit of pay scale and other emoluments which are available to the workers of the said company. Nor there is any prior determination whether the workers of the said club are the workers of the said Company. So those questions cannot be for the first time adjudicated in a proceeding under Sec.33-C (2 ). 14. On a plain reading of the Sec.33-C (2), such an adjudication falls outside the domain of a proceeding under the said section. This question is therefore decided in favour of the said company. It is obviously true as urged by the learned Counsel for the respondents that the provisions of the said Act should be constructed as social welfare legislation. It is also well known in a dispute between the workers and the employer, the workers being the weaker section, if two equally reasonable interpretations are possible the one which is in favour of the weaker Section may be adopted. 15. It is also well known in a dispute between the workers and the employer, the workers being the weaker section, if two equally reasonable interpretations are possible the one which is in favour of the weaker Section may be adopted. 15. Keeping those well known principles in mind this Court finds that under the said Act various rights have been conferred on the workers to ventilate their grievances in various other sections. But these rights are not contained in Sec.33-C (2 ). If the workers of the said club feel aggrieved that even after becoming workers of the said company they are being deprived of the benefits which are given to the workers of the said Company, they can have the said issue thrased in a Reference proceeding under the said Act. And there are adequate provisions for the same under the said Act. But this Court cannot, however, permit the jurisdiction of a Labour Court under Sec.33-C (2) to be converted or widened to a jurisdiction of a tribunal under Section 10 of the said Act. Permitting the same would amount to an interpretation which is contrary to the scheme of the act. Therefore, going by the provisions of Sec.33-C (2) of the Act, this court finds that orders impugned namely, the impugned orders referred to above cannot be sustained within the parameters of Sec.33-C (2 ). 16. Of course in this connection learned Counsel for the respondent workman has submitted that if strict technical view of Sec.33-C (2) is taken, that will give the management an opportunity to defeat the benefit claimed by the workers by merely questioning the jurisdiction of the Labour court. 17. The said apprehension of the learned Counsel for the respondent is not well founded. It has been judicially construed that merely questioning the jurisdiction of the Labour Court is not sufficient to oust its jurisdiction. If the labour Court is satisfied from the materials on record that such question has not been raised bona fide or if the labour Court is satisfied that it can while deciding the main question under section 33-C (2) also decide the question of its jurisdiction as ancillary issue, namely, whether entitlement of the workers is otherwise established then merely raising this question as a plea will not be entertained. But where the said entitlement has not been decided, that cannot be decided first in a proceeding under Sec.33-C (2 ). 18. Unfortunately, in the instant case, the Labour Court has adopted that course of action, namely, it has purported to decide the relationship between the employer and employees for the first time by the order dated 30th september, 1990 and on that basis the final order dated 30th November, 1991 was passed. This course of action is impermissible in view of the pronouncement of the Supreme Court in the case of Municipal Corporation of Delhi V/s. Ganesh Razak and Anr. reported in (1995)1 LLJ Page-395. In the said case of the municipal Corporation (Supra) the Hon ble Supreme Court made the following observations: - "the ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to ascertain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute in relation to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Sec.33-C (2) of the Act. The labour Court has no jurisdiction to first decide the workmens entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Sec.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 requires interpretation that the interpretation is treated as incidental to the Labour Courts power under Section 33-C (2) like that of the Executing Courts power to interpret the decree for the purpose of its execution. " By the said observation the supreme Court clearly lays down the law on the point. Applying the aforesaid ratio this Court holds that the order dated 4th September, 1990 passed by respondent No.1 purporting to establish the relationship of employer and employee in a proceeding under Section 33-C (2) cannot be sustained.18-A. Learned Counsel for the petitioner also cited before me other decisions on the second question. Since this Court does not wish to make any pronouncement on the second question, this Court need not consider that aspect of the matter. Since this Court does not wish to make any pronouncement on the second question, this Court need not consider that aspect of the matter. Learned Counsel for the respondent, however, referred two other decisions in order to contend that the labour Court has jurisdiction under section 33-C (2) to decide the issue which has decided by the order dated 4th September, 1990 and in support of that contention he has relied upon a decision of the Division Bench judgment of Punjab and Haryana High court in the case of Deepak Kumar V/s. Presiding Officer, Labour Court and Ors. reported in (1993) 2 Labour Law Journal page-224. In that case of Deepak kumar (Supra) the Division Bench of punjab and Haryana High Court held in para-4 the following observation, which has been quoted below: - "the learned Counsel for the petitioner has argued that the Labour court while deciding application under section 33-C (2) has no jurisdiction to decide the status of "workman" as such and the finding given in its award An-nexure P/1 cannot be treated as binding on the Labour Court while deciding reference under Sec.10 (1) (c) of the Act the contention cannot be accepted. It is only on proof of the fact that the petitioner was a workman as defined under the Act that the Labour Court could further proceed with an application filed under section 33-C (2) of the Act for computation of the back salary and wages. This was inherent in the provision of Sec.33 to invest the Labour Court with the jurisdiction to compute arrears of pay or wages. Thus, it cannot be said that the Labour court has no jurisdiction to decide the question whether the petitioner was a "workman" as defined under the Act in the proceedings under Sec.33-C (2) of the act. " 19. A careful reading of para-4 would show that the Division Bench of punjab and Haryana High Court were concerned with the limited nature of jurisdiction under Sec.33-C (2 ). " 19. A careful reading of para-4 would show that the Division Bench of punjab and Haryana High Court were concerned with the limited nature of jurisdiction under Sec.33-C (2 ). From the facts situation of that case it is clear that there was reference under section 10 (l) (c) of the Act and it was contended on behalf of the petitioner before the Division Bench that the labour Court while deciding the application under Sec.33-C (2) of the act, shall not proceed on the basis of the award given under Sec.10 (l) (c)which is binding on the Labour Court. This contention of the learned Counsel for the petitioner is obviously wrong for the simple reason that when there is an adjudication of the status of the workers concerned, as in the case of Deepak kumar (Supra) on the reference under section 10 (l) (c) of the Act, the Labour court functioning under Sec.33-C (2) and can on the basis of such prior determination compute the benefit to which the workers are entitled. Therefore, the ratio in the case of Deepak kumar has no application inasmuchas, there is no prior finding in this case in favour of the workers either under Sec.10 (l) (c) or in any other forum. The other decision cited by the learned Counsel for the respondent is the Division Bench Judgment of Orissa high Court in the case of Editor, The samaj and others V/s. Presiding Officer, labour Court and others reported in 1994 (1) Labour and Industrial Cases 913. In the said judgment of the Samaj (supra) in para-16 the Division Bench of Orissa High Court lays down the law relating to the jurisdiction of the labour Court under Sec.33-C (2)and came to the following conclusion: - "though in Sec.33-C (2) of the i. D. Act proceeding the mere denial of the right of the workman by the employer would not take away the jurisdiction of the labour Court where the basis and foundation of the claim is seriously contested and determination of that basic fact in that case will involve elaborate process such matters being principal function and concern of the Industrial Tribunal, the Labour court cannot proceed to decide that matter by dubbing the same as "incidental" to the computation of the benefit. This view of ours finds support from the case of m/s. Shyam Sunder Sahu and Co. This view of ours finds support from the case of m/s. Shyam Sunder Sahu and Co. V/s. The presiding Officer, Labour Court, Orissa, 1977 Lab IC 1052 (DB ). The same view has been taken in the case of Managing director the Orissa Agro Industries corporation Ltd. V/s. Presiding Officer, Labour court, Orissa, (1984) 57 CLT 129 : (1984)Lab IC 641 and later on followed. in the case of Chintamani Acharya V/s. Union of india (1988) 66 CLT 714. " 20. Therefore, proceeding on the aforesaid legal position the Division bench observed that though the maintainability of application under Section 33-C (2) of the I. D. Act was specifically raised but as the Labour Court did not decide that question, the Division bench found that the order of the labour Court is not sustainable. This court is therefore, unable to appreciate the ratio of the judgment of the division Bench of Orissa High Court in the case of The Samaj (Supra) in the facts of this case. 21. The other judgment cited by the learned Counsel for the respondent is in the case of M/s. Fabril Gasosa V/s. Labour Commissioner and others reported in AIR 1997 SC page-954. In that case the question before the labour Court is about rate of Variation dearness Allowance (VDA) pre-deter-mined in terms of settlement. Period for which it was payable was not in dispute. In the fact situation of that case the supreme Court held that the claim of the petitioner for recovery of Variation dearness Allowance (VDA) and the arrears in a proceeding under Sec.33-C (2) is maintainable. Therefore, the ratio in that case is not remotely relevant for the purpose of deciding the question which has fallen for determination in this case. 22. In my view, the decision on the question No.1 is squarely covered by the decision of the Supreme Court in the case of Municipal Corporation, Delhi (Supra) as discussed above. Therefore, this Court following the aforesaid decision of the Supreme Court in the case of Municipal Corporation, Delhi (Supra) quashes the impugned orders dated 4th September, 1990 and the consequential order dated 30th November, 1991 which is admittedly passed on the basis of the adjudication of the Labour court in his previous order dated 4th september, 1990. Both the orders are therefore quashed. This writ petition thus succeeds. 23. Both the orders are therefore quashed. This writ petition thus succeeds. 23. It is, however, made clear that nothing said in this judgment can be construed to have even remotely affected the right of the workman to agitate before any appropriate authority that they are workers of the said company. This writ petition is thus allowed to the extent indicated above. There will be no order as to costs. Petition Allowed.