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2003 DIGILAW 263 (HP)

STATE OF H. P. v. ROOP CHAND MALHOTRA

2003-09-04

LOKESHWAR SINGH PANTA

body2003
JUDGMENT Lokeshwar Singh Panta, J.—This writ petition has been filed by the State of H.P. represented by the Superintending Engineer, 1st Circle, HPPWD, Mandi, H.P. for issuance of appropriate writ, directions or orders quashing and setting aside the award dated 4.12.1996 of the Presiding Judge, Labour Court passed in Reference No. 33/93 under Section 33-C(2) of the Industrial Disputes Act, 1947. 2. It is the case of the petitioner that respondent Roop Chand Malhotra, respondent No. 1-workman was engaged as a Steno-typist on daily-wage w.e.f. 5.12.1978 to 20.2.1979 in view of his educational qualification, as he could not perform his duty satisfactorily, he was directed to work in the field in various capacities from 21.2.1979 to 11.2.1988. Jogeshwar Singh Rana, respondent No. 2 workman was engaged as a Baildar on daily-wage basis. Both these workmen did not report on duty w.e.f. 11.2.1988 and 13.2.1988 respectively as a result thereof their names were removed from the muster rolls. Both the workmen raised an Industrial dispute which was referred to the Labour Court by the State Government for adjudication. The Labour Court in case No. 69/88 made an award on 12th April, 1990 directing respondents to give posting to the workmen as Class-Ill officials as Steno typist and Clerk-cum-typist if such posts were available with the Department or as and when vacancy in the said post would fall. Further it was held that if no vacancies were available or not likely to fall vacant, the workmen shall be deemed to be in continuous service as Class-IV employees i.e. Road Supervisor and Baildar respectively as daily-wage workers according to their seniority as per the seniority list. The petitioner was also directed to pay the entire back-wages to the workmen from the date of their removal till the date of absorption. Costs of Rs. 400 to each of the workmen was also awarded. 3. Both the workmen filed an application under Section 33-C(2) of the Industrial Disputes Act (hereinafter referred to as the T.D. Act) before the Labour Court which was registered as reference No. 33 of 1993 for implementation and execution of the award in case No. 68 of 1988. The Labour Court interpreted the first award holding both the workmen having discharged the duties of Steno-cum-typist and clerk-cum-typist during the year 1979 to 1988 as daily-wage workers and awarded a sum of Rs. The Labour Court interpreted the first award holding both the workmen having discharged the duties of Steno-cum-typist and clerk-cum-typist during the year 1979 to 1988 as daily-wage workers and awarded a sum of Rs. 1,70,643 to workman Roop Chand Malhotra and a sum of Rs. 1,34,628 to workman Jogeshwar Singh Rana as differential amounts between the salary actually paid and the amounts entitled to as ministerial employees from 5.12.1978 to 9.6.1993. The arrears of back-wages were ordered to be paid within 40 days from the date of award i.e. 4.12.1996 failing which interest 12% p.a. from the date of award was ordered to be paid on the above said amounts of back-wages. 4. The State of H.P. through Superintending Engineer has challenged the correctness and validity of the award dated 4.12.1996 passed by Presiding Officer, Labour Court in Reference No. 33 of 1993 (Annexure P-l) in this writ petition. 5. In joint reply to the writ petition the workmen have submitted that after the first award was made by the Labour Court, they approached the employer to resume the duties of Class-Ill employees as there were posts lying vacant with the Department, but out of revenge they were never allowed to join the duties and on the contrary they were asked to submit joining report as Class-IV employees. The workmen were left with no option but to file CWP No. 997/92 in the High C6urt, inter alia, claiming that the employer may be directed to reinstate them as class-Ill official as per the award of the Labour Court dated 4.12.1990 on regular basis and to pay the differential amounts of pay and back-wages to them after duly verifying and ascertaining from the record and also to pay the interest on the amount withheld wrongly. The said writ petition was allowed by this Court on April 21, 1993, a copy whereof is placed on record of this writ petition as Annexure P-VIII directing the H.P. Public Service Commission to release one post of clerk and one post of steno-typist within a period of one month from the date of the order. Further the employer was directed to appoint the workmen within a period of one month thereafter. Further the employer was directed to appoint the workmen within a period of one month thereafter. The workmen have denied that they were working as Road Supervisor and Baildar respectively as contended by the petitioner in this writ petition and the Labour Court in the present award has rightly awarded the amounts of difference of wages by interpreting the first award in the proceedings filed by the workmen under Section 33-C(2) of the I.D. Act. 6. I have heard learned Counsel for the parties. The learned Advocate General has contended that the award of the Labour Court dated April 12, 1990 in case No. 69/88 (Annexure P-II) had been implemented in letter and spirit by the Department and thereafter the workmen were appointed against the posts of Steno-typist and Clerk on the basis of the judgment of this Court. The petition under Section 33-C(2) of the I.D. Act, therefore was not maintainable before the Labour Court and the Labour Court has no jurisdiction to entertain and decide the said application granting relief to the workmen as an Executing Court. 7. Per contra the learned Counsel for the workmen contended that the Labour Court in the first award decided issue No. 2 in favour of the workmen holding them entitled to claim pay as regular employees for the posts of Steno-typist and Clerk respectively and by virtue of Award dated 4.12.1996 (Annexure P-I), Labour Court has interpreted the award based on the claim of Issue No. 2 awarding difference of back-wages and termination benefits to the workmen and therefore the Labour Court has rightly exercised the jurisdiction vested in it under Section 33-C(2) of the I.D. Act. In support of the submissions the learned Counsel has placed reliance in the case of Municipal Corporation of Delhi v. Ganesh Razak and another, (1995) 1 SCC 235; Tara and others v. Director, Social Welfare and others, (1998) 8 SCC 671 and State Bank of India v. Ram Chandra Dubey and others, (2001) 1 SCC 73. 8. I have duly considered the respective contentions of the learned Counsel for the parties. 9. 8. I have duly considered the respective contentions of the learned Counsel for the parties. 9. The primary question involves for determination is whether the Labour Court by award dated 4.12.1996 (Annexure P-I) passed in Reference No. 33 of 1993 has the jurisdiction to grant the relief of payment of the differential amount between the salary actually paid and the amounts of wages of ministerial employees w.e.f. 5.12.1978 to 9.6.1993, based upon the earlier award of the labour court dated 12.4.1990 in case No. 69/99. It is now well settled that the Labour Court under Section 33-C(2) of the I.D. Act cannot adjudicate dispute of entitlement of benefits on the basis of disputed claim of workmen as its jurisdiction is like that of Executing Court. In Municipal Corporation of Delhi v. Ganesh Razak and another (supra), three Judge Bench of the Supreme Court dealing with the jurisdiction of the Labour Court under Section 33-C(2) of the I.D. Act has held that 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 and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the I.D. Act. It is only when the entitlement has been earlier adjudicated or recognized 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. 10. The ratio of the law in Municipal Corporation of Delhi (supra) has been reiterated by the Supreme Court in Tara and others v. Director, Social Welfare and others (supra) holding that where status and nature of employment of the workmen is itself disputed and unless there is prior adjudication on merits of the status which is the foundation for making the claim for wages at the specified rates, the question of moving an application under Section 33-C(2) of the I.D. Act for computation of wages does not arise. 11. 11. The Supreme Court in State of India v. Ram Chandra Dubey and others (supra) summed up the principle enunciated in the earlier decisions, in para 8 (SCC p. 77) as under : "Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence, that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceedings. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act, is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages." 12. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages." 12. In the light of the above settled proposition of law, in my view the Labour Court has passed the award impugned in this writ petition dated 4.12.1996 (Annexure P-l) in Reference No. 33 of 1993 without jurisdiction by allowing the relief claimed by the workmen in an application filed under Section 33-C(2) of the I.D. Act. In the first award dated 12.4.1990 the Labour Court has granted the following relief to the workmen: "In the instant case, the petitioners claim reinstatement in service with all the consequential benefits arising therefrom. From the evidence so adduced by the petitioners, it is proved that they were retrenched as additional hands discharging the duties of Class-Ill employees as Steno-typist and clerk-cum-typist in addition to the cadre strength through shown as daily rate wagers by the respondents. In other words, there was no post in existence in the cadre strength of Steno-typist and clerk-cum-typists at the material time. In that view of the matter, ordinarily, both the petitioners cannot be directed to be given the equivalent posts. The first petitioner has been able to prove that his appointment as Steno-typist was from the inceptions of his service though against rules. In the said circumstances in the foregoing reasons, an Award directing the respondents that both the petitioner be given posting as Class-Ill officials in the status referred to above, if presently or as and when vacancy in such category falls. In otherwise case, it is further held that both the petitioners shall be deemed to be in continuous service as Class-IV employees i.e. Road Supervisor and Beldar respectively and in that view of the matter, respondents are directed to absorb both the petitioners as daily rate wagers i.e. as Road Supervisor and Beldar respectively according to their seniority as per the seniority list prepared in accordance with the dictum of our own Honble High Court, within one month from the date of publication of this Award in the official Gazette i.e. Himachal Pradesh Rajpatra. Respondents are further directed to pay the entire back wages to the petitioners from the date of their removal till the date of their absorption. The petitioners are further held entitled to costs of this litigation in lump sum of Rs. 400 payable in equal share to each one of them. Memo of costs be prepared.” 13. The employer in compliance to the award of the Labour Court dated 12.4.1990 issued orders dated 1.9.1990 (Annexure P-III), dated 4.9.1990 (Annexure P-IV), dated 9.7.1991 (Annexure P-V, dated 26.10.1990 (Annexure P-VI) and dated 6.6.1991 (Annexure P-VII) to both the workmen directing them to report for duty as Road Supervisor and Baildar on Muster Roll basis but it appears that both the respondents-workmen have failed to join their duties. However, both the respondents have accepted the amounts of difference of wages of daily-rate Road Supervisor and Daily-rate Steno-typist and daily-rate Baildar and daily-rate clerk w.e.f. 5.12.1978 to 10.2.1988 and 1.1.1983 to 12.2.1988 respectively. In addition to the arrears of difference of wages, both the workmen were given wages for retrenchment period w.e.f. 11.2.1988 to 31.8.1990. The statement of the payments received by both the Workmen has been placed on record by the learned Advocate General. The respondents then filed CWP No. 997/92 which was allowed on April 21, 1993 in the aforesaid terms. Pursuant to the judgment of this Court in the said writ petition, office orders dated 9.6.1993 and 16.6.1993 (Annexures P-IX and P-X) were issued by the Superintending Engineer First Circle, HPPWD, Mandi, whereunder Roop Chand Malhotra, workman was offered temporary post of Steno-typist from the date of his joining in the regular pay scale and Jogeshwar Singh Rane workman was offered temporary post of Clerk from the date of his joining in regular pay scale. It appears that both the workmen have joined their respective places of posting. 14. It appears that both the workmen have joined their respective places of posting. 14. The Labour Court in the first Award recorded the findings against issue No. 2 which read as under: "Thus, both the petitioners have succeeded in proving Issue No. 2 and consequently they are entitled to the differential wages i.e. to say, the equivalent to the wages between the rated workers as Road Supervisor in the case of the first petitioner and Beldar in the case of second petitioner and the pay of Steno-typist as also clerk-cum-typist respectively from the dates of their respective appointment from the date of their termination till the date of decision." However, in the relief granted by the Labour Court in the first award, the employer was directed to pay the entire back-wages to the workmen from the date of their removal till the date of their absorption as road supervisor and Beldar respectively and also to absorb them in the same capacity according to their seniority list prepared in accordance with the dictum of the order of this Court within one month from the date of publication of the Award in the official Gazette. The Labour Court in the impugned award overstepped its jurisdiction by giving the reliefs sought for by the workmen in application under Section 33-C (2) of the I.D. Act. The finding recorded by the Labour Court in the impugned award reads as under: "16. So much so that the respondents adopted the same posture during the proceedings of this petition too. They admitted in the evidence on oath that the petitioners had worked as Steno Typists during the period in question on daily-wages. Also, it is an admitted fact on their (respondents) part that the petitioners were entitled to regular pay scale of Steno-typist from the date of their removal. The respondents further evidenced that prior to the removal of the petitioner from service, they (petitioners) were subjected to the work or duties of Steno-typist and Clerk-cum-typist by them. Thus, there is a consistent admission on the part of the respondents with regard to the functional duties as ministerial employees taken from the petitioners." 15. Next comes the arrears of wages which were not paid to the petitioners notwithstanding the admitted ministerial work to which they were subjected to by the respondents. Thus, there is a consistent admission on the part of the respondents with regard to the functional duties as ministerial employees taken from the petitioners." 15. Next comes the arrears of wages which were not paid to the petitioners notwithstanding the admitted ministerial work to which they were subjected to by the respondents. The differential amount between the salary actually paid and the amount entitled to as wages being ministerial employees, has been mentioned as Annexure A-l and Annexure A-2 with respect to the petitioners respectively. The petitioner No. 1 has calculated the amount in Annexure A-l with respect to the actual wages he was entitled to as ministerial employee from 5.12.1978 to 9.6.1993. He has correctly calculated this difference each year during this tenure and given it in a tabular form thereunder. I have analyzed the evidence of AW-1 to AW-4. They have not been cross-examined by the respondents in relation to the details given in Annexure A-l and Annexure A-2. It goes to prove a long way that the respondents admitted the contents of these documents and had nothing to offer to rebut them. Exactly similar is the case of Annexure A-2. This contains the amount of wages which stood unpaid to the petitioner No. 2 from 1.4.1983 to 20.6.1993 despite order incorporated in order Ex. P-l particularly in its para 15 to this effect. The respondents have admitted the contents of this documents also because they preferred not to cross-examine AW-1 to AW-4 concerning the contents thereof. 18. Undoubtedly, the petitioners are entitled to recover differential amount of their wages which stood unpaid to them till now to the following extent:— 1. Petitioner No. 1 Shri Roop Chand Malhotra = Rs. 1,70,643 2. Petitioner No. 2 Shri Jogeshwar Singh Rana = Rs. 1,34,628 This is the exact, correct, definite and arithmetically calculated amount of back wages to which the petitioners are entitled to pursuant to the award Ex. P-l. On plaint reading of the above extracted finding recorded by the Labour Court, it is clear that they are contrary to the relief granted by the labour Court in award dated 12.4.1990 (Annexure P-II). As noticed above both the workmen after the first award of the Labour Court have not joined their duties as Road Supervisor and Baildar respectively despite the offer of engagement and the reminders issued by the employer. As noticed above both the workmen after the first award of the Labour Court have not joined their duties as Road Supervisor and Baildar respectively despite the offer of engagement and the reminders issued by the employer. If both the workmen have not joined the duties in compliance to the first award of the Labour Court, it was not within the jurisdiction of the Labour Court to direct the employer to pay the difference of wages to the workmen from the date of their engagement on daily wage in the year 1978 to 9.6.1993 and 1.4.1983 to 20.6.1993 respectively, the workmen have joined the duties as regular employees in terms of the office orders dated 9.6.1993 and 23.6.1993 (Annexures P-IX and P-X). The Labour Court in exercise of the jurisdiction like that of an Executing Court could not travel beyond the relief granted by the Labour Court in the first award dated 12.4.1990. In the first award though issue No. 2 was decided in favour of the workmen but no relief was granted to them directing the employer to pay the differential wages i.e. to say the equivalent to the wages between the daily-wage Road Supervisor in the case of first workman Roop Chand and Baildar in the case of second workman Jogeshwar Singh Rana, the pay scale of Steno-typist as also clerk-cum-typist respectively from the date of their respective appointment till the date of decision. The benefit sought to be enforced under Section 33-C(2) of the I.D. Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The specific relief granted to the workmen in the first award was confined only to the reinstatement as daily-rate workmen against the job of Road Supervisor and Baildar respectively according to their seniority as per the Seniority list and they were held entitled to receive the entire back-wages from the date of their removal till the date of their absorption which would mean that if both the workmen were reinstated as Road Supervisor and Baildar respectively according to their seniority in the said capacity. Thus, the workmen cannot take the benefit of the ratio of the above cited judgments of the Supreme Court and on the contrary, the dictum of the decisions of the Supreme Court goes against them. 16. No other point is urged by the learned Counsel for the parties before this Court. 17. Thus, the workmen cannot take the benefit of the ratio of the above cited judgments of the Supreme Court and on the contrary, the dictum of the decisions of the Supreme Court goes against them. 16. No other point is urged by the learned Counsel for the parties before this Court. 17. In the result, for the above said reasons, the writ petition is allowed and the award dated 4.12.1996 (Annexure P-I) passed by the Presiding Judge, Labour Court in Reference No. 33 of 1996 is quashed and set-aside. Costs on parties. Stay order, if any, shall stand vacated.