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Rajasthan High Court · body

2005 DIGILAW 2281 (RAJ)

Mining Engineer, Bikaner v. Malu Ram

2005-08-29

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-The present writ petition has been filed by the petitioner department challenging the validity of the award Annexure-4 dated 28.02.1996 passed by the Judge, Labour Court, Bikaner whereby the application filed by the workman respondent under Section 33-C (2) of the Industrial Disputes Act has been allowed and the Department has been directed to make payment of the amount of award as over-time remuneration to the respondent workman within a period of one month. 2. The respondent-workman filed application under Section 33-C (2) of the Industrial Disputes Act before the Labour Court claiming a sum of Rs. 17, 401. 27 ps for over-time work done by him under the Department for the period from 01.01.1987 to 312.1988. The petitioner department filed its reply and denied the claim of the workman alleging that there is no provision of over-time remuneration in the department. The learned Judge, Labour Court, however, proceeded on the basis of the material on record and, after hearing the parties, passed the award dated 28.02.1996 as aforesaid for a sum of Rs. 17, 401. 27 ps in favour of the respondent workman. 3. I have heard learned Counsel for the parties and perused the impugned award. 4. The award has been made by the Labour Court in favour of the respondent-workman exclusively under the provisions of Section 33-C (2) of the Industrial Disputes Act. Section 33-C (2) of the Act reads as under: “(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 at 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.” 5. From the aforequoted section it is clear that such claim as staked by the workman should be an existing claim, already adjudicated upon or provided for. From the aforequoted section it is clear that such claim as staked by the workman should be an existing claim, already adjudicated upon or provided for. If the claim itself is disputed by the employer and has not already been adjudicated upon, the workman cannot claim such benefit under Section 33-C (2) of the Act. The computation of a claim, which itself has not been settled, cannot be made by the Labour Court under Section 33-C (2) and, therefore, the learned Labour Court ex facie traversed beyond its jurisdiction while awarding the claim of the respondent workman. 6. Reference in this regard may be made to the ratio laid down by the Apex Court in Municipal Corporation of Delhi vs. Ganesh Razak & Anr., 1995 (1) SCC 235 , wherein the Apex Court held that where the very basis of the claim or the entitlement of the workman 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 Act, and, 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 Section 33-C (2) of the Act. 7. Counsel for the respondent workman contended that such an objection was never raised before the Labour Court nor any such ground has been taken in the writ petition either then, now, for the first time the petitioner department cannot be permitted to raise this objection before this Court. 8. There is no substance in the contention of the learned Counsel for the respondent workman. When the award itself is vitiated with exercise of jurisdiction not vested in the Labour Court under Section 33-C (2) of the Act, validity of the award cannot be upheld merely because an objection to its jurisdiction under Section 33-C (2) of the Act was not raised before the Labour Court. When the award itself is illegal having been passed without jurisdiction, the claim of the workman arising therefrom automatically fails. When the award itself is illegal having been passed without jurisdiction, the claim of the workman arising therefrom automatically fails. It is the duty of the trial Court to first ascertain whether the Court had the jurisdiction to adjudicate upon an issue and, if it lacks the jurisdiction, the entire proceedings is illegal and without force of law. 9. In view of the aforesaid discussion, the impugned award dated 28.02.1996 deserves to be quashed and set aside. The writ petition is, therefore, allowed and the impugned award dated 28.02.1996 is quashed and set aside. The respondent-workman is, however, at liberty to approach the Conciliation Officer, if so advised, and raise an industrial dispute for his grievance.