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2003 DIGILAW 739 (JHR)

Steel Authority of India Limited v. Presiding Officer

2003-06-26

TAPEN SEN

body2003
Judgment Per Tapen Sen, J.-Heard Mr. Babban Lal, learned counsel for the Petitioner and Mr. Sumir Prasad, learned counsel for the Respondent No.2. 2. The concerned workman was dismissed from service with effect from 18.1.1980 for certain misconducts. While Reference Case No. 39/1973 was pending, the Management filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 for approval. That application was numbered as Miscellaneous Case No. 1 of 1980. Thereafter, the Petitioner raised objection to the extent that the concerned workman was not a workman under the Industrial Disputes Act. The preliminary objection was rejected which was challenged before the then Ranchi Bench of the Patna High Court vide C.W.J.C. No. 1205 of 1983 (R) but that application was dismissed on 22.4.1987. Thereafter, an L.P.A. was filed which was disposed off on 16.5.1988 refusing to interfere with the order. However, the Labour Court did not accord the approval and accordingly rejected the application filed under Section 33(2)(b). The Management challenged the same before the High Court but that was also dismissed vide C.W.J.C. No. 1340 of 1988 (R). While the aforementioned Writ Application was pending, the concerned workman made a prayer that he should be allowed to resume duty and by order dated 5.10.1988, the High Court observed that there was no reason as to why the Respondent No. 2 should not be allowed to join his duty. Thereafter, the Respondent No. 2 resumed duty on and from 17.11.1988. According to the Petitioner, they paid the Respondent No. 2 his full wages from 12.2.1979 to 18.1.1980 after deducting subsistence allowance. It has further been stated in the Writ Application that his wages for the other periods were also paid but surprisingly the Respondent No.2 filed an application under Section 33(2)(c) claiming monetary benefits on a higher scale which was registered M.J. Case No.5 of 1993. 3. Since the order that has been challenged relates to computation of money in relation to the entitlement of an employee, this Court is not inclined to interfere in this Writ Application. However, Mr. Babban Lal, learned counsel for the Petitioner has submitted that there is no dispute that the concerned workman was entitled to wages etc. but the computation should have been made on its own merit without making any comparisons in relation to other employees such as one S.P. Dubey. 4. Mr. However, Mr. Babban Lal, learned counsel for the Petitioner has submitted that there is no dispute that the concerned workman was entitled to wages etc. but the computation should have been made on its own merit without making any comparisons in relation to other employees such as one S.P. Dubey. 4. Mr. Babban Lal points out that the bone of contention in this case is that the Respondent No. 2;claims higher wages on comparing his case with S.P. Dubey. He draws attention of this Court to paragraphs5 and 6 of the Order passed by the Presiding Officer, Labour Court, Bokaro in M.J. Case No.5 of 1993. The said paragraphs are quoted below "5. A.W. 1 Shri Kesho Prasad is the applicant himself who has said that he was dismissed by O.P.-Management with effect from 18.9.80. Since Ref. Case No. 39/73 was pending in this Labour Court in which he was a concerned workman, the O.P. filed an application u/s. 33 (2)(b) of the I.D. Act, 1947 for approval of its action, but the Labour Court did not approve the action of management and dismissed the application filed by it on 26.6.87 (Ext. W-12). The O.P. preferred a writ application against the said order of Labour Court in the Ranchi Bench of Patna High Court which was registered and numbered as C.W.J.C. No. 1340/88 (R). By order, dated 5.10.88 passed by the Hon'ble High Court (Ext. W-13), he was allowed to join his duty (Ext. W-1). Ultimately the writ application fited by the O.P. was dismissed by the Hon'ble High Court by Order, dated 10.8.92 (Ext. W-14). Pursuant to the said order of the Hon'ble High Court, the O.P.-Management took out an office order on 30.9.92 (Ext. W-2). Two more office orders were taken out by the O.P. on 2.12.92 and 2/ 3.12.92 (Exts. W-3 and W-4 respectively) wrongly calculating the benefits payable to him. His version is that at the time of dismissal he was Operator Grade-III (Exts. W-5 and W-6). The workman who joined alongwith him in the year 1974 in L-3 grade as Attendant Pump Operator in L-8 grade at the time of filing the present application. The O.P. has wrongly placed him in L-6 grade with effect from 31.12.90. Comparing his case with Sri S.P. Dubey he has said that he was entitled to be promoted to L-4 grade in 1980. L-5 grade in 1984. The O.P. has wrongly placed him in L-6 grade with effect from 31.12.90. Comparing his case with Sri S.P. Dubey he has said that he was entitled to be promoted to L-4 grade in 1980. L-5 grade in 1984. L-6 grade in 1988 and L -7 grade in 1992 and accordingly he is entitled to the difference of wages and other benefits like bonus. L.T.C./L.L.T.C.. Conveyance allowance etc. details whereof have been given in Annexure-I and II of the application. In his cross-examination at para 17 he has admitted that Sri S.P. Dubey was given L-4 grade in the year 1977 whereas his, promotion to that grade was due in 1980. He has also admitted that L.T.C. and L.L.T.C. are paid on the basis of journey undertaken. He has further admitted that the non-executive employees of Bokaro Steel Plant are reimbursed for the expenses incurred in preparing school dress for their children as well as medical expenses incurred in their treatment, but he has not prepared school dress for their children and he has not filed any voucher/receipt/cash memo in token of treatment of his children. As a matter of fact L.T.C., L.L.T.C. and conveyance allowance are paid to the workman who are in active service and who actually undertake journey. Medical reimbursement and reimbursement of expenses incurred in preparing school dress for 'the children are not payable on prorata basis. 6. M.W.-2 Shri H.C.P. Burnwal has said that both the applicant and Sri S.P. Dubey initially joined the services of Company on 28.6.72 in L-2 grade and by Ext. W-5 they were promoted to L-3 grade with effect from 23.2.74. Sri S.P. Dubey joined in L-3 grade on 26.2.74 whereas the applicant joined in the said grade on 27.2.74. The probation period of Sri S.P. Dubey expired on 25.2.75 whereas the probation period of the applicant expired on 26.2.75 (Ext. W-6/ 1) and as such Sri Dubey became senior to him. He has also said that Sri S.P. Dubey was placed in L-5 and L-6 grades by Exts. W-8 and W-10 respectively. As a matter of fact Ext. W-8 is the office order, dated 18.11.81 by which the seniority of Sri S.P. Dubey and 30 others were stopped upto the level of junior employees. The pay of a large number of workmen who were promoted to L-3 grade along with the applicant and Sri S.P. Dubey by Ext. W-8 and W-10 respectively. As a matter of fact Ext. W-8 is the office order, dated 18.11.81 by which the seniority of Sri S.P. Dubey and 30 others were stopped upto the level of junior employees. The pay of a large number of workmen who were promoted to L-3 grade along with the applicant and Sri S.P. Dubey by Ext. W-5 were stepped up at par with their juniors, but since the applicant was dismissed from service prior to the taking out of Ext. W-8, he was not given that benefit. Unfortunately the D.P. did not give him his benefit of stepping up of pay while fixing his pay etc. by office orders dated 3.9.92, 2.12.92 and 2/3.12.92 (Ext. W-2 to W-4 respectively). Had the applicant been given benefit of stepping up like similarly situated workmen the discrepancy in calculating his benefits would not have cropped up. His case should have been compared with Sri S.P. Dubey who joined along with him and not with Shri H. Sharma who was admittedly junior to him in all respects. The method and the procedure adopted by the D.P.-Management for calculating the benefits due and payable to the applicant is manifestly wrong. Continuity of employment means giving all the benefits to the applicant which he might have got had he been in the active service of D.P.-Company during the period of idleness. Unfortunately that has not been done by the D.P.-Management." (underlining by Court) 5. Upon perusal of the aforementioned paragraphs, it does appear that the Labour Court has dealt with the case of S.P. Dubey and at one place he has said that the case of the concerned workman should have been compared with the case of S.P. Dubey who joined along with him and not with Shri H. Sharma who was admittedly junior to the concerned workman in all respects. This court is of the opinion that the Labour Court exercising jurisdiction under Section 33(2)(c) could not have enlarged the scope of entitlement. All that he could have done was compute the wages to which the workman was entitled. The jurisdiction of the Labour Court under Section 33(2)(c) is just like that of an Executing Court. It cannot adjudicate a dispute relating to entitlement or the claim of the concerned workman. All that he could have done was compute the wages to which the workman was entitled. The jurisdiction of the Labour Court under Section 33(2)(c) is just like that of an Executing Court. It cannot adjudicate a dispute relating to entitlement or the claim of the concerned workman. Paragraph-6 no doubt begins with the statement of Management Witness No. 2 but towards the end of that paragraph, the Court appears to have given his own finding after comparing the case of the Respondent No.2 with that of S.P. Dubey and has gone to the extent of saying that the method and procedure adopted by the Management for calculating the benefits due and payable to the workman is manifestly wrong. This could not have been done by the 33(2)(c) Court. Reference in this context may be given to the case of "Municipal Corporation of Delhi vs. Ganesh Razak and Another" reported in (1995) 1 SCC 235 . 6. However, since the matter has been pending since such a long time and since the concerned workman had already been paid wages as has been stated, the impugned order passed under Section 33(2)(c) may be implemented only if it relates to actual entitlement of the Respondent No.2 bereft of any comparison or analogy of any entitlement as has been held by the Labour Court. With the aforesaid observations and directions, this Writ Petition stands disposed off. There shall however be no order as to costs.