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2006 DIGILAW 560 (GAU)

Lakheswar Hazarika v. Presiding Officer

2006-06-13

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J. 1. Heard Mr. D.P. Chaliha, learned senior assistant by Mrs. A. Bhattacharya, learned Counsel for the applicant. Also heard Mr. S.N. Sarma learned senior counsel assisted by Ms. P. Sarma and Mr. A. Sarma learned Counsel appearing for the respondent No. 2, the Management, Sokalatinga Tea Estate. 2. The validity and the correctness of the order dated 30.10.1992 passed by learned Presiding Officer, Labour Court, Dibrugarh in Misc. (J) Case No. 1/88 has been assailed in this writ petition invoking the jurisdiction and power of this High Court under Article 226 of the Constitution of India. 3. The impugned order was passed by the Labour Court as mentioned above on the basis of a petition moved by the petitioner under Section 33C(2) of the Industrial Disputes Act, 1947 ('the Act'). 4. For ready reference of the Section 33C(2) of the Act may be reproduced as under: ... (2) Where any workman is entitled to receive from the employer and 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.... 5. An ordinary reading of the above provision goes to show that whenever any workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money, such workman can approach the Labour Court under the above mentioned provision. In other words, the applicability of this section is closely confined to the entitlement. To move an application under the above provision of law the condition precedent is that there must be a prior adjudication or existing entitlement. The language of this provision above mentioned is clear and loud. It may be noticed that in entertaining an application under Section 33C(2), the Labour Court has no jurisdiction to go beyond the award so passed by the Presiding Officer. 6. Before delving upon the scope and ambit of provision of Section 33C(2) of the Act as mentioned above it will be necessary to notice the facts of the case in brief: 7. 6. Before delving upon the scope and ambit of provision of Section 33C(2) of the Act as mentioned above it will be necessary to notice the facts of the case in brief: 7. Initially a reference was made before the Labour Court under Government Notification dated 11.4.1979 to decide the following issues: (1) Whether the management of Socklatinga Tea Estate is justified in terminating the services of Shri L. Hazarika with effect from 18.2.1977? (2) If not, is he entitled to reinstatement or any other relief in lieu thereof? 8. Under Reference Case No. 24/79 the learned Presiding Officer, Labour Court by his award dated 14.9.1984, after hearing learned Counsel for the parties and upon appreciation of the witnesses examined by the rival parties came to a find that the termination of the workman was unjustified, arbitrary, bad in law and against the principle of natural justice and accordingly by the said award, the petitioner was reinstated in his post with a liberty to the management to frame fresh charges, if so advised by treating him as a permanent employee after his reinstatement. 9. However, the Labour Court did not pass any order as regards the back wages in answering the two issues above mentioned under reference. 10. Conceded, the petitioner did not challenge the said award dated 14.9.1984 and allowed the same to attain its finality. 11. Thereupon, in 1988 the petitioner preferred an application being MC No. 1/88 seeking back wages under Section 33C(2) of the Act before the Labour Court. The learned Presiding Officer of the Labour Court by the impugned order rejected the prayer holding that since there was no award as regards the payment of any back wages for the period culminating in joining the service on reinstatement, the petitioner was not entitled to get any such benefit of back wages. The Labour Court by a well reasoned order has observed that had the Labour Court earlier been inclined to award the back wages it could have awarded such wages in clear terms without directing the management to bring the facts of fresh charges if any after re-instatement. 12. Impugning the order dated 30.10.1992 Mr. The Labour Court by a well reasoned order has observed that had the Labour Court earlier been inclined to award the back wages it could have awarded such wages in clear terms without directing the management to bring the facts of fresh charges if any after re-instatement. 12. Impugning the order dated 30.10.1992 Mr. Chaliha, learned senior counsel has forcibly contended that when the petitioner was reinstated on 2.4.1986 in terms of Labour Court's order above mentioned on quashment of his dismissal order dated 18.2.1977, once the Labour Court by the impugned order granted the petitioner the company's provident fund contribution benefit with effect from 1.2.1977 to 1.4.1986, i.e., till his reinstatement, it can be well presumed that the Labour Court also indicated for the payment of back wages and on the strength of such observation of the Labour Court being apparent on the impugned order itself, the petitioner is entitled to get the back wages and accordingly, it is a fit case where this court will exercise its power under Article 226 of the Constitution of India so as to give relief to the petitioner for his back wages. 13. Mr. Sarma, learned senior counsel, on the other hand, justifying the finding recorded in the impugned order refusing the prayer of the petitioner for back wages, has strenuously argued that the power of Labour Court in entertaining an application under Section 33C(2) of the Act is limited and circumscribed. That power of the Labour Court, according to him, is akin to an Executing Court where thee Executing Court cannot travel beyond the decree. His contention is that since the award dated 14.9.1984 attained its finality for not being challenged the same before the higher forum when the relief of the back wages was categorically rejected, the Labour Court cannot now pass any such order granting back wages to the petitioner under the provision of law mentioned above. It is contended that the applicability of the Section 33C(2) will be allowed only when there is a prior adjudication or existing entitlement. 14. Strong reliance has been placed by Mr. Sarma in support of his above submission on the following two cases of the Apex Court, namely, (1) Municipal Corporation of Delhi v. Ganesh Razak and Anr. reported in (1995) I LLJ 395 SC and (2) A P SRTC and Anr. 14. Strong reliance has been placed by Mr. Sarma in support of his above submission on the following two cases of the Apex Court, namely, (1) Municipal Corporation of Delhi v. Ganesh Razak and Anr. reported in (1995) I LLJ 395 SC and (2) A P SRTC and Anr. v. B.S. David Paul reported in (2006) I LLJ 999 SC. 15. In Ganesh Razak's case (supra) the Supreme Court in paragraphs 8 and 12 relying on the decision in a case of Central Bank of India Ltd. v. P.S. Rajagopalan reported in (1963) II LLJ 89 SC held that the power of the Labour Court in a proceeding under Section 33C(2) was being akin to that of the Executing Court and the Labour Court was competent to interpret the award or settlement on which the workman based his claim under Section 33C(2) like the power of the Executing Court to interpret the decree for the purpose of execution. 16. It is settled that since the Executing Court can not go behind the decree, nor can it add or subtract from the provision of the decree, the same limitation can also apply to the Labour Court. 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 33C(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 Section 33C(2). 17. In view of A P SRTC's case (supra) wherein the Apex Court had the occasion to deal with the case for entitlement, under Section 33C(2) of the Act to the back wages, it is established that the entitlement to the back wages is not automatic on reinstatement and the benefit sought to be enforced under Section 33C(2) of the Act is necessarily pre-existing benefit or one flowing from a pre-existing right. 18. 18. Having considered the contentions of the rival parties and also on close perusal of the materials available on record including the impugned order as well as having regard to the above cited judicial authorities, this court is of the view that the claim for entitlement of the workman to get certain benefit like back wages is disputed by the employer and further there must be an earlier adjudication or existing entitlement. 19. In view of the same, there is no hesitation of this court to hold that the Labour Court being akin to an Executing Court cannot go beyond the award initially passed by the same court. 20. For the foregoing reasons, discussions and observations, this court is of the view that no illegality and/or jurisdictional error has been committed by the learned Presiding Officer, Labour Court in rejecting the prayer of the petitioner by the impugned order. 21. At this stage, Mr. Chaliha, learned senior counsel has stated that the petitioner, by this time, retired on 17.7.2003 and his retiral benefits has not yet been paid. If that is so, it is needless to say that the petitioner be paid all his entitled retiral benefits as expeditiously as possible.