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2002 DIGILAW 260 (KER)

Pakkiyam v. Executive Engineer Southern Railway

2002-04-04

KURIAN JOSEPH

body2002
JUDGMENT Kurian Joseph, J. 1. Petitioner challenges Ext. P1 Order passed by the Labour Court, Kozhikode. The said order was passed in a petition filed by the petitioner under S.33(c)(2) of the Industrial Disputes Act. According to the petitioner her husband late Selvaraj was an employee working under the first respondent and during 10th March 1971 to 7th August 1982 the said employee was paid only daily rated wages. It is the case of the petitioner that having completed six months continuous service the workman was entitled for payment in the authorised scale of pay. Petition was resisted by the respondents on various grounds. It was contended that the petition filed after 13 years of the alleged entitlement is stale. The status of the petitioner herself was questioned. At any rate it was also contended that unless the petitioner established the entitlement of the workman for the regular scale of pay, the computation under S.33 (c) (2) was not possible. There was also a contention that none of the respondents before the Labour Court (the same respondents herein also) was the actual employer of the late workman. Even going by the case of the petitioner, the husband of the petitioner was a casual labourer in the Construction Branch (Project) under the control of the Executive Engineer (Construction), Salem. 2. The Labour Court rejected the claim petition on two grounds; (1) it was stale and (2) unless the petitioner could establish the temporary status of her late husband it was not possible to entertain a petition under S.33 (c)(2) of the Act. 3. Sri B. Gopakumar, learned Counsel for the petitioner, vehemently contends that the stand taken by the Labour Court that the application is stale is not correct. True, there is no period of limitation under S.33(c)(2) of the Act. But that does not mean that it is open to a party to file a petition under S.33(c)(2) at a time which suits his convenience. If there is long delay in filing a petition, unless the delay is properly explained, to the Labour Court is justified in rejecting the claim as stale. In Joseph v. Pierce Leslie-India Ltd 1992 (1) KLT SN 6. It is held as follows: "Even though there is no period of limitation under S.33(c)(2), the second respondent was justified in dismissing the stale claims of the petitioners. In Joseph v. Pierce Leslie-India Ltd 1992 (1) KLT SN 6. It is held as follows: "Even though there is no period of limitation under S.33(c)(2), the second respondent was justified in dismissing the stale claims of the petitioners. If stale claims are allowed, it would lead to undesirable results including financial anarchy and chaos in the industrial field. Unless there is a satisfactory explanation for the delay, the Labour Court is not expected to entertain petitions especially when it would have far reaching pecuniary consequences on the employers." In a latter decision reported in Kerala State Cooperative Coir Marketing Federation v. Labour Court 1993 (1) KLJ 974 at Para.11 of the Judgment the issue has been succinctly dealt with as follows: "The Legislature did not provide a period of limitation for filing an application under S.33(c)(2) of the I. D. Act. However, it cannot be said to be a guarantee that the said provision can be used in any manner as one likes. Every provision of law has to be applied properly, reasonably and bona fide. It is repeatedly said by the Supreme Court; 'Industrial adjudication should not encourage unduly belated claims.' The employees who prefer to invoke the provisions under S.33(c)(2) shall make the application within a reasonable period. What is reasonable period will depend en the circumstances of each case." Guided by those decisions, it has to be noted that the petitioner would be in a position to succeed only if the long delay is properly explained. The Labour Court has specifically found that there is no satisfactory explanation for the long delay. Therefore, it cannot be stated that the conclusion arrived at by the Labour Court is unwarranted. 4. The whole object behind S.33(c)(2) is to provide a speedy remedy to the workman to enforce his existing individual right. The said provision takes in its purview only the case of a workman in whose case there is an existing right and what remains is the computation in terms of money alone. In the process of such computation, there may be instances where the right to the benefit on which the claim is based is disputed by the employer. In such a situation it is open to the Labour Court to interpret the award or settlement which is the basis of the claim of the workman. In the process of such computation, there may be instances where the right to the benefit on which the claim is based is disputed by the employer. In such a situation it is open to the Labour Court to interpret the award or settlement which is the basis of the claim of the workman. But that does not mean that in the process of interpretation it is open to the Labour Court to adjudicate on a claim which is possible only under S.10(1) of the Industrial Disputes Act. The apex court has taken the view that in proceedings under S.33(c)(2), the position of the Labour Court is analogous to the execution proceedings before an executing court. In Municipal Corporation of Delhi v. Ganesh Razak 1995 (1) SCC 235 it is held as follows: "Where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed nd is, therefore, clearly outside the scope of a proceeding under S.33(c)(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under S.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 Court's power under S.33(c)(2) like that of the executing court's power to interpret the decree for the purpose of its execution. The power of the Labour Court under S.33(c)(2) extends to interpretation of the award or settlement on which the workman's right rests." 5. In the instant case the status of the workman is in dispute and unless the status is decided, it will not be possible for the Labour Court under S.33(c)(2) to compute the benefits. Therefore, on that ground also the rejection of the petition cannot be said to be improper. 6. Thirdly, the respondents have a definite case of lack of territorial jurisdiction. Therefore, on that ground also the rejection of the petition cannot be said to be improper. 6. Thirdly, the respondents have a definite case of lack of territorial jurisdiction. True, the said issue has not been dealt with by the Labour Court.Yet, even on the admitted fact that the workman had worked only at Salem, it is for the petitioner to have moved the appropriate court having jurisdiction. On all these grounds the writ petition is liable to be dismissed and I do so.