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2008 DIGILAW 1780 (PAT)

Baij Nath Prasad Gupta v. State Of Bihar

2008-12-18

NAVANITI PRASAD SINGH

body2008
JUDGEMENT 1. Respondent No. 10 claims to be an employee in the unit of petitioner. Claiming himself to be a workman, he filed an application before the Labour Court in terms of Section 33C(2) of the Industrial Disputes Act, 1947 claiming for computation of his wages payable under an employment agreement with petitioner. It may be noted that this agreement was neither arrived at in course of any conciliation proceedings nor is a settlement nor has it been notified or given to any authority. It is an alleged private agreement between the parties. Before the Labour Court, notices were issued to the petitioner who appeared and challenged the maintainability of such an application. While doing so, it specifically urged that the agreement was forged, invalid and did not bind the petitioner in any manner. It disputed the claims of respondent No. 10. The Labour Court noticed the said challenges and then held that application in terms of Section 33C(2) of the Act was not maintainable and that respondent No. 10 had chosen a wrong forum. This was so ordered on 7.11.2007 (Annexure-4). It may also be noted that petitioners claim related to five years wages that is from 1.4.1981 to 20.4.1984 with bonus, leave, earned leave and overtime and the same had been claimed in 1992 before the Labour Court in Miscellaneous Case No. 28 of 1992. The claim, thus, having been rejected, respondent No. 10 then filed an application before the Labour Commissioner, Bihar on 29.11.2007 (Annexure-J to the supplementary counter affidavit). In that application, all that respondent No. 10 said was that he was annexing the order of the Labour Court passed in the said Miscellaneous Case No. 28 of 1992 and requested the Labour Commissioner to get the money recovered as per the order. Interestingly, from the office of the Labour Commissioner, the said application of respondent No. 10 was forwarded to Joint Labour Commissioner by letter dated 2.1.2008 clearly stating that the judgment of the Labour Court needs implementation and steps to implement the same should be taken up immediately (Annexure-K to the supplementary counter affidavit) which is also Annexure-6 to the writ application. On 24.1.2008, respondent No. 7 files a calculation chart before the Assistant Labour Commissioner, Patna claiming Rs. 71,167/- and interest thereon with cost totaling to over Rs. 4 lacs. On 24.1.2008, respondent No. 7 files a calculation chart before the Assistant Labour Commissioner, Patna claiming Rs. 71,167/- and interest thereon with cost totaling to over Rs. 4 lacs. It now appears from Annexure-H to the counter affidavit of respondent No. 7 that the Labour Superintendent, Patna who was then dealing with the matter acting in pursuance to the letter from the Labour Commissioners office dated 2.1.2008, issued notices to the petitioner and then without any further enquiry merely noted that the claim of respondent No. 10 is to be recovered in terms of Section 33C(1) of the Act and forwarded alongwith requisition for certificate for an amount of Rs. 71,167/- vide his letter dated 13.2.2008 and on the same day, on basis of requisition of the same day, certificate for the said amount was issued against the petitioner and, thereafter, coercive steps were taken to realize the amount from the petitioner which has brought the petitioner to this Court. 2. Heard the parties and with their consent, the writ petition is being disposed of at this stage itself. 3. The first thing that is apparent is that when respondent No. 10 made an application in terms of Section 33C(2) of the Act, the application was neither adjudicated upon nor any finding given therein. The order, as noted above, notes that the petitioner challenges the very authenticity of the agreement which was the basis of the claim of the workman (respondent No. 10). It holds that the application was not maintainable and respondent No. 10 had chosen a wrong forum. Thus, in absence of any finding, in absence of any adjudication, there was nothing to be executed. Notwithstanding this, the workman (respondent No. 10) virtually filed an execution application before the Labour Commissioner, Bihar, Patna who then directed the Labour Superintendent to proceed with the matter for realization of the workmans money. At the very outset, I may state that such a procedure is unknown to law. There was no direction or finding executable as given by the Labour Court and the moment from the office of the Labour Commissioner directions were issued, the subordinates were no option but to implement the same as if they were executing an order of the Labour Court. There was no direction or finding executable as given by the Labour Court and the moment from the office of the Labour Commissioner directions were issued, the subordinates were no option but to implement the same as if they were executing an order of the Labour Court. In the last communication when requisitions were made and certificate issued, it appears that these were taken to be the proceedings in terms of Section 33C(1) of the Act. 4. A reading of Section 33C(1) of the Act would show that primarily the provisions therein contemplate of no adjudication. They are to be operated mechanically for a good reason. Section 33C(1) applies only when a claim is made under an award or under a settlement or under the provisions of Chapter-5A or 5B which deals with retrenchment and lay off. The present is not a case covered by either of the contingencies mentioned therein. Even if we assume the basis of claim of respondent No. 10 to be the agreement, it was a private agreement between petitioner and respondent No. 10 and not an agreement pursuant to any settlement or award or made in course of any conciliation proceeding nor was the agreement posted or notified to any authority. The reason for non-adjudicatory nature of Section 33C(1) of the Act is that all disputes are resolved and quantified in award duly made or settlement duly arrived or an agreement duly arrived in course of conciliation proceedings and the same being final and binding between the parties, it requires no adjudication but mere mathematical calculation. Here, as seen above, the very genuineness of this private agreement was under serious challenge. There was no award, no settlement, no conciliation. Thus, the State-respondents had no jurisdiction even to entertain any claim application of respondent No. 10 much less as an executor of the order of the Labour Court, for there was no order of the Labour Court to be executed. Next, the proviso to Section 33C(1) itself puts a limitation on the claim. It clearly lays down that every such application shall be made within one year from the date on which the money became due from the workman to the employer. Next, the proviso to Section 33C(1) itself puts a limitation on the claim. It clearly lays down that every such application shall be made within one year from the date on which the money became due from the workman to the employer. Here, as noted above, it would be seen that the claim was for the period 1981 to 1984 which was for the first time led before the Labour Court in the year 1992 and then on the application being dismissed as not maintainable before the authorities in November, 2007. Thus, the workman had approached the Labour Court itself after seven years of unexplained delay and then by the time it reaches the Labour Officers of the State (appropriate Government), the claim was more than twelve years old. Neither was condonation prayed nor condonation granted at any stage by any authority. Thus, the exercise of power under Section 33C(1) of the Act was wholly without jurisdiction. Here, I may note one important fact as well. Firstly, this sought to give a final colour to the order of the Labour Court, the execution whereof they sought but the Labour Superintendent did realize that that was not correct nor was there any proper application from the workman (respondent No. 10) in terms of Section 33C(1) of the Act and it is for this reason, he himself became the applicant when he himself filled up application in terms of Section 33C(1) on 13.2.2008 and himself signed it and annexed it alongwith his letter and the requisition of the same day. That application is to be found at Annexure-7 to the writ petition and is not disputed by any of the respondents. This clearly establishes a clear abuse of process of law. 5. As a result, the proceedings against the petitioner cannot be sustained. The requisition made and the certificate issued are misconceived and are liable to be quashed and are quashed accordingly. 6. The writ application is allowed.