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Rajasthan High Court · body

1998 DIGILAW 834 (RAJ)

State of Rajasthan v. Labour Court, Bikaner

1998-08-05

R.R.YADAV

body1998
Honble YADAV, J.–The present writ petition has been filed against the award dated 30th of April, 1994 passed by Labour Court, Bikaner-respondent No.1, directing the petitioners under sub-section (2) of Section 33-C of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) to pay Rs.12,689/- as arrears of salary to respondent No.2, Bhagwat. (2). The facts relevant for decision of this petition can be briefly Stated as under: (3). The respondent No.2 claimed himself to be Garden Supervisor in the proceedings under sub-sec.(2) of Sec.33-C of the Act of 1947, on the other hand according to the petitioners, he was appointed as a `Mali Grade-II in the Depart- ment. In the aforesaid proceedings before Labour Court, Bikaner it is alleged by respondent No. 2, Bhagwat that he is entitled for regular monthly pay-scale of Rs. 295-500 whereas according to the petitioners his monthly pay-scale was inadvertently fixed Rs. 295-500 in place of Rs.240-370 which was detected in audit report and excess payment of salary to him was ordered to be recovered from him against which Union of workman Bhagwat respondent No.2 raised dispute under the Act of 1947. In the said proceedings Conciliation Officer for the purpose of bringing about an amicable settlement between the employer and employee investigated the present dispute and all matters affecting its merit and also made sincere efforts for settlement. On failure of settlement between the parties he sent a full report se- tting forth the steps taken by him to the State Government. The State Government in exercise of its power under sub-sec.(5) of Sec.12 of the Act of 1947 declined to make a reference to Labour Court after recording reasons in support of refusal of reference and communicated on 1.11.88 Annex.3 to the writ petition to the parties. (4). irrespective of aforesaid serious dispute about entitlement of the salary of respondent No.2, the Labour Court passed the award with the aforementioned direction against the petitioners which is impugned before this Court by filing the present petition. (5). The core question involved in the present writ petition is regarding jurisdiction of Labour Court under sub-sec. (2) of Sec. 33-C of the Act of 1947. It is contended by learned counsel for the petitioners that for passing an order under sub-sec.(2) of Sec.33-C of the Act of 1947, two conditions precedent must co- exist at the time of initiation of proceedings. (2) of Sec. 33-C of the Act of 1947. It is contended by learned counsel for the petitioners that for passing an order under sub-sec.(2) of Sec.33-C of the Act of 1947, two conditions precedent must co- exist at the time of initiation of proceedings. Firstly, the accused person must demonstrate before the Labour Court about his undisputed entitlement of benefit and secondly, he is required to establish that the undisputed entitlement of benefit is capable to be computed in terms of money and is also due on the employer. According to the learned counsel for petitioners unless the aforesaid two conditions are established in the present case, the Labour Court, Bikaner has no jurisdiction to pass the award impugned. He also invited my attention to Annex.3 dated 1.11.88 as a proof relating to reconciliation proceeding under Sec.12 of the Act of 1947 and refusal of reference by State Government in exercise of its power under sub-section (5) of Section 12 of the Act of 1947. (6). It is borne out from perusal of Annex.3 dated 1.11.88 that claim of fixation of salary of respondent No.2 of Rs.295-500 was vehemently disputed by the employer-Department, regarding which a detail enquiry was made by Conciliation Officer under sub-sec.(2) of Sec.12 of the Act of 1947. As reconciliation failed, the Conciliation Officer after closing investigation sent to the State Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about an amicable settlement thereof, together with a full Statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (7). It is further evident from perusal of Annex.3 dated 1.11.88 that after receipt of report from the Conciliation Officer it was considered by the State Govt. as envisaged under sub-sec.(5) of Sec.12 of the Act of 1947. On consideration of the report sent by Conciliation Officer, in the present case, the State Govt. was satisfied that there was no dispute for reference to the Labour Court, Tribunal or National Tribunal. The State Govt. also recorded reasons for its refusal to make a reference and communicated its refusal with reasons to both the contesting parties. (8). On consideration of the report sent by Conciliation Officer, in the present case, the State Govt. was satisfied that there was no dispute for reference to the Labour Court, Tribunal or National Tribunal. The State Govt. also recorded reasons for its refusal to make a reference and communicated its refusal with reasons to both the contesting parties. (8). Indisputably, against the refusal of reference by State Government dated 1,11.88 Annex.3 to the writ petition which was duly communicated to the parties concerned, the matter was not agitated further by filing a writ of mandamus and certiorari under Article 226 of the Constitution. In view of this, the order of refusal of reference passed by State Government in exercise of its power under sub-sec.(5) of Sec.12 of the Act of 1947 on 1.11.88 in the present case has attained finality against which Labour Court Bikaner has no jurisdiction to entertain the dispute within the meaning of sub-section(2) of Sec.33C of the Act of 1947. (9). It is well to remember that when conciliation proceedings have commenced under sub~sec.(1) of Sec.12 of the Act of 1947 the further procedure en- joined by the said Act has to be followed. When no settlement is arrived at, during conciliation proceedings, it is the duty of the appropriate Government to proceed under sub-section (5) of Section 12 of the Act of 1947 either to make a reference or to record and communicate to the parties concerned its reasons for not making a reference. Where appropriate Government refused to make a reference on irre- levant consideration or considerations as the case may be such matter can be agitated before High Courts by filing appropriate writ for quashing such order of refusal to make reference and also for issuing a mandamus. If the High Courts are satisfied within its discretionary extraordinary jurisdiction under Article 226 of the Constitution on recognised line that the appropriate Government has refused the reference on any irrelevant consideration, a writ of mandamus can be issued, directing the appropriate Government to discharge its legal duty within the meaning of sub-sec.(5) of Sec.12 of the Act of 1947 in accordance with law and order of refusal to make reference may be quashed. (10). (10). In the present case it goes without saying that against the reasoned order passed by the State Government in exercise of its power under sub-sec.(5) of Sec.12 of the Act of 1947 on 1.11.88, the matter was not agitated by respondent No.2 before this Court under Article 226 of the Constitution for issuing a writ of mandamus and quashing the said order of refusal to make reference, therefore, respondent No.2 is not entitled to agitate the same disputed question of his entitlement under sub- sec.(2) of Sec.33-C of the Act of 1947. (11). On the premises of the discussion made hereinabove 1 have no hesitation to hold that the remedy provided under sub-sec.(2) of Sec.33-C of the Act of 1947 is available only when there is no dispute about entitlement of the benefit due of the workman. Remedy cannot be invoked under sub-sec.(2) of Sec.33 C of the Act of 1947 in a case where the entitlement of the benefit due itself is disputed. Here, in the present case, the entitlement of fixation of salary raised by respondent No.2 under sub-sec.(2) of Sec.33-C of the Act of 1947 was vehemently disputed by the employer-Department therefore in such a situation, the Labour Court has no justification to adjudicate a disputed question of entitlement of fixation of salary of respondent No.2 in garb of expression any benefit due under the said sub-section. (12). I am of the view, that a composite reading of sub-sections (1), (2), (3), (4) and (5) of Sec.33-C of the Act of 1947 clearly reveals that the power enjoined upon the Labour Court, is to remove obstructions in executing a pre-existing entitlement of `money due or money or any benefit due which is capable of being computed in terms of money of the workman and not to decide a fresh right of entitlement between the employer and the employee within the aforesaid Section. The aforesaid intention of Legislature is clear from sub-sec.(4) of Section 33 C of the Act of 1947 which clearly provides that the decision of the Labour Court shall be forwarded by it to the appropriate Government so that any amount may be recov- ered in the manner provided for in sub- sec.(1) of the said Section. The aforesaid intention of Legislature is clear from sub-sec.(4) of Section 33 C of the Act of 1947 which clearly provides that the decision of the Labour Court shall be forwarded by it to the appropriate Government so that any amount may be recov- ered in the manner provided for in sub- sec.(1) of the said Section. It is evident from reading of sub- section (1) of Section 33 C of the Act of 1947 that Legislature has enacted Section 33 C as one of the mode of recovery where any money due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B as arrears of land revenue by Collector after receipt of a certificate from appropriate Government. Unless the amount is calculated and fixed it is not possible to issue a recovery certificate. In fact, in order to achieve the aforesaid object, the Legislature has enacted sub-sec.(1) and sub-sec.(2) of Sec.33-C of the Act of 1947. It is true that the field of occupation of the aforesaid sub-sec- tions (1) and (2) of Section 33-C of the Act of 1947 is not the same. There is some difference between sub-sec. (1) and sub-section(2) of Sec.33-C of the Act of 1947. (13). I am of the view that sub-sec.(1) of Sec.33-C of the Act of 1947 deals with recovery of money due to a workman under a award, settlement or under the provisions of Chapter V-A or V-B of the Act whereas sub-sec.(2) of Sec.33-C of the said Act deals with any benefit computable in terms of money to enable the appropriate Government to issue a certificate for that amount so determined by Labour Court to the Collector who in his turn required to proceed to recover the amount as arrears of land revenue. (14). It is strenuously urged by learned counsel for respondent Mr. R.S.Saluja that reference in the present case was refused by the State Government on 1.11.88 and the same was agitated before the Labour Court by respondent No.2, Bhagwat under sub-sec.(2) of Sec.33-C of the Act of 1947 in the year, 1989 which was entertained by Labour Court. The Labour Court decided the lis in favour of respondent No.2 on 30.4.94 against which the present writ petition was filed in the year 1994, therefore, according to Mr. The Labour Court decided the lis in favour of respondent No.2 on 30.4.94 against which the present writ petition was filed in the year 1994, therefore, according to Mr. Saluja it is a fit case in which respondent No.2 is entitled to be given benefit of Section 14 of the Indian Limitation Act. Mr. Saluja also submitted that respondent No.2 was prosecuting his case in his bonafide belief before the Labour Court and thus time consumed may be excluded. Suffice it to say in this regard that there is substance in the argument of Mr. Saluja. However, I am of the view that this question can be raised before appropriate forum in an appropriate proceeding while seeking the relief which respondent No.2 claims himself to be entitled in the present case in accordance with law. (15). With the aforesaid observation, the instant writ petition is allowed. The award dated 30th of April 1994 Annex.7 to the writ petition passed by the Labour Court, Bikaner is hereby quashed. In the facts and circumstances of the case, parties are left to bear their own costs.