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2006 DIGILAW 3267 (RAJ)

Jaipur Vidyut Vitran Nigam Ltd. v. Shanti Lal

2006-12-20

K.S.RATHORE

body2006
JUDGMENT 1. - This writ petition is directed against the order dated 5th February, 1994 passed by the Labour Court, Kota on the application moved by the respondent workman under section 33(c)(2) whereby the Labour Court directed to make the payment of Rs. 52,311/- to the workman as a difference of pay scale which is also made effective from 1.4.77. The petitioner challenged this impugned order passed by the Labour Court, Kota on several count one with regard to jurisdiction to entertain the application under section 33(c)(2) and placed reliance on the judgment reported in 1995 (1) SCC 235 , Municipal Corporation of Delhi v. Ganesh Razak and Another " wherein Hon'ble the Supreme Court has held as under : "Labour Court's jurisdiction under- Scope-It cannot adjudicate dispute of entitlement or basis of claim of workman. It can only interpret the award or settlement on which the claim is based --Its jurisdiction is like that of executing court-On facts held, without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claimed by them on that basis not maintainable under Section 33-C(2)." 2. He also referred a judgment reported in 1997 (5) SCC 59 , Union of India v. Gurbachan Singh and Another ". 3. Learned counsel for the petitioner referred a judgment passed by Hon'ble the Supreme Court dated 23.10.89 in Special Leave to Appeal (Civil) 15342-46 of 1989 and 746-51 of 1988 from the judgment of this Court dated 14.7.88. Hon'ble the Supreme Court has observed as under : "We are of the view that it would be appropriate to rest the petitioners as per with those who during the pendency of the writ petitions in the High Court were/allowed Scale No. 3 with same qualification as the petitioners possess. We accordingly direct that in each of these cases the petitioner shall be given scale No. 3 and that scale should be admitted from 1.11.89. The same benefits should be available to others who are not before the Court if they have the same qualifications." 4. We accordingly direct that in each of these cases the petitioner shall be given scale No. 3 and that scale should be admitted from 1.11.89. The same benefits should be available to others who are not before the Court if they have the same qualifications." 4. In view of the direction issued by the Hon'ble the Supreme Court, all the similarly persons qua the respondent No. 1 were given the benefit of scale No. 3 with effect from 1.11.89 and he was also given the difference of the arrear but the respondent moved application under section 33(c)(2) before the Labour Court claiming pay scale No. 3 with effect from 1.4.66 and thus the pay scale No. 3 from the period 1.4.77 to 1.11.89 was provided and the difference of arrear has been computed to the tune of Rs. 52,311/- and he further submits that this judgment is not only contrary to the direction issued by Hon'ble the Supreme Court and also without jurisdiction. 5. Per contra, learned counsel for the respondent workman submits that it is the right of the respondent to claim wages which are admissible and as per Annexure-5, the office order dated 6.2.80, the department itself has provided this Scale to the respondent with effect from 1.4.77 and, therefore, considering this letter the labour Court Kota after considering the relevant record and after appreciating the evidence adduced before the Labour Court arrived at the conclusion that the workman is entitled to get the benefit of pay scale No. 3 with effect from 1.4.77 and difference of arrear from the period 1.4.77 to 1.11.89 has rightly been awarded in favour of the workman. 6. Learned counsel for the respondent submits that the application under section 33(c)(2) is maintainable in such dispute and he placed reliance on the judgment in the case of ' Vadodara Municipal Corporation v. Govind Mahadev Joshi, reported in 2005 Lab I.C. 140 wherein the Gujarat High Court has held as under : "Labour Court under order of recovery directed that part of amount has been paid to workman and employer is bound to pay different s amount." 7. Here, in the instant case also, the respondent workman claimed the difference amount for which he is legally entitled. 8. Here, in the instant case also, the respondent workman claimed the difference amount for which he is legally entitled. 8. He also referred a judgment of the Gujarat High Court in the case of " State of Gujarat v. Jivabhai Isabhai & Others, reported in 2005 Lab I.C. 664 wherein the Gujarat High Court has held as under : "No prior adjudication of claim under section 10 of ID Act was necessary for entertaining claim of workmen under Section 33-C(2) by the Labour Court." 9. And thus, the application which has been moved by the workman s before the Labour court under section 33(c)(2) cannot be said to be without jurisdiction and the order passed by the Labour Court is absolutely in accordance with the provisions of law and was passed after appreciating the evidence and the document. 10. Learned counsel for the respondent also submits that this Court while exercising power under Article 226 of the Constitution of India cannot re-appreciate the evidence adduced before the Labour Court and cannot sit as an appellate authority and to this effect he has placed reliance on the judgment of Andhra Pradesh High Court in the case of " Superintending Engineer v. D. Sambalah and Another, reported in 2002 Lab I.C. 2124 wherein the Andhra Pradesh High Court has held as under : "Finding of fact recorded by Labour Court while granting relief of payment of difference of wages. No interference in award of Labour Court under writ jurisdiction is required." 11. Having heard the rival submissions of the respective parties and upon carefully perusal of the relevant provisions of law and the judgments referred by the parties and the order passed by the labour Court Kota, it appears that the Labour Court while entertaining the application under Section 33(c)(2) filed by the workman placed heavy reliance upon Annexure-5, the letter dated 6.2.80, by which three persons including the respondent have been given the benefit of scale No. 3. The respondent and one Om Prakash from 1.4.77 and one Bheru Lal is given this benefit with effect from 1.6.77. 12. The respondent and one Om Prakash from 1.4.77 and one Bheru Lal is given this benefit with effect from 1.6.77. 12. It is averred on behalf of the petitioner that this order has been passed by the Assistant Engineer who is not competent to grant the pay scale and in reply also they have stated so but the Labour Court has not appreciated the argument at the time of passing of the order impugned dated 5.2.94. 13. As held by Hon'ble the Supreme Court in the case of " Municipal Corporation of Delhi v. Ganesh Razak and Another " (supra) the application under section 33(c)(2) asking for computation of arrear is not maintainable. Even otherwise also since the same dispute has been resolved by Hon'ble the Supreme Court vide judgment dated 23.10.89 in the S.L.P. which has been filed by the similarly situated persons and which was decided by the Supreme Court on the similar facts and as such the scale No. 3 is only admissible with effect from 1.11.89 and the judgment passed by Hon'ble the Supreme Court in S.L.P. is judgment in rem and not the judgment in persona and even application to those who are not before the Court and it is not disputed that the benefit of pay scale No. 3 has been granted to the petitioner with effect from 1.11.89 and the petitioner also retired from service after attaining superannuary age. 14. Accordingly, the writ petition stands allowed. The order passed by the Labour Court, Kota, 5.2.94 is hereby quashed and set aside being passed without having jurisdiction.writ petition allowed - order of labour court set aside. *******