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2015 DIGILAW 410 (ORI)

GULF OIL CORPORATION LTD. v. MANOJ KUMAR SAHU

2015-07-10

C.R.DASH

body2015
JUDGMENT : C.R. Dash, J. - Above noted three writ petitions arise out of I.D. Misc. Case No. 23 of 2006, I.D. Misc. Case No. 2 of 2008 and I.D. Misc. Case No. 7 of 2011 respectively. All the aforesaid I.D. Misc. Cases are proceedings under Section 33C(2) of the Industrial Disputes Act, 1947 ("I.D. Act" for short) relating to different periods, as claimed by the present opposite party workman. As the proceedings are between the same parties and involve same facts and questions of law, they are taken up together for disposal by this common order. 2. In all the I.D. Misc. Cases under Section 33C(2) of the I.D. Act the present opposite party workman had prayed to determine his dues relating to salary, etc. against the employer Management on the basis of the award passed by the Labour Court on 31.03.1999 in I.D. Case No. 9 of 1997. 3. The brief facts relevant for disposal of these writ petitions are as follows:-- "The present opposite party workman, while working as a Senior Laboratory Technician under the petitioner Management, was terminated from service on 16.04.1996. He raised an Industrial Dispute before the District Labour Officer, Rourkela, which ended in submission of a Failure Report to the appropriate government. The appropriate government, in turn, referred the matter under Section 10 read with Section 12 of the I.D. Act for adjudication. The P.O., Labour Court, Sambalpur passed the award in the aforesaid I.D. Case No. 9 of 1997 on 31.03.1999 directing reinstatement of the present opposite party workman in service with full back wages from the date of his termination till his reinstatement. It was further directed that, in the event of failure to implement the award, the Management shall be liable to pay interest @ 15% per annum on the back wages till actual payment is made." 4. The Management (present petitioner) challenged the award before this Court under the writ jurisdiction, vide O.J.C. No. 7086 of 1999. Stay was granted in the writ petition subject to compliance of the provision of Section 17-B of the I.D. Act. While the matter was pending, the award was implemented by giving some back wages and the aforesaid O.J.C. was disposed of on 27.04.2005 with the following order:-- "Heard. Stay was granted in the writ petition subject to compliance of the provision of Section 17-B of the I.D. Act. While the matter was pending, the award was implemented by giving some back wages and the aforesaid O.J.C. was disposed of on 27.04.2005 with the following order:-- "Heard. The award dated 31st March, 1999 passed by the Presiding Officer, Labour Court, Sambalpur in I.D. Case No. 9 of 1997 is assailed by the petitioner-management in this writ petition. Mr. Nanda, learned counsel for the petitioner-management submitted that in the meanwhile the management has complied with the direction issued in the award. In that view of the matter, nothing remains to be decided in this writ petition. Accordingly, the writ petition is disposed of giving liberty to the workman to pursue any other grievances before the appropriate forum, if he is so advised." 5. The present opposite party workman submitted his Joining Report on 24.06.2004, which was duly accepted. In the petition under Section 33C(2) of the I.D. Act he alleged that from the date of joining he is drawing pay of Rs. 3,894/- per month, which was his existing pay at the time of his termination from service and his pay structure has not been regularized in consonance with the pay drawn by his co-workers in the same position. The applicant thus filed a statement of claim amounting to Rs. 15,50,796/- in two schedules, which include differential salary, differential allowances, etc. including interest. 6. The present petitioner Management filed objection stating that the opposite party workman was, in fact, working in a Junior Management Cadre and he has already been paid full salary for the period of his non-employment due to termination and that, he is not entitled to the claim regarding L.T.C., Bonus, etc. It was specifically averred that the present workman was paid a sum of Rs. 1,13,621/- under Cheque bearing No. 238018 dated 23.09.2004 and he was supplied with a calculation sheet. According to the Management, the application under Section 33C(2) of the I.D. Act is not maintainable on the ground that the amount claimed is not based upon any pre-existing right. 7. To substantiate their claim, both the parties adduced evidence. The present opposite party workman examined himself and one ex-employee of the Management. The present petitioner Management examined one of its Senior Assistant Manager and one Assistant Manager. 7. To substantiate their claim, both the parties adduced evidence. The present opposite party workman examined himself and one ex-employee of the Management. The present petitioner Management examined one of its Senior Assistant Manager and one Assistant Manager. Both the parties also relied on several documents, which were marked Exts. 1 to 7 (for present opposite party workman) and Exts. A to D (for present petitioner Management). 8. Learned Labour Court, dealing with the question as to whether the workman was working in the Junior Management Cadre or as a Senior Laboratory Technician at the time of his termination from service, held that the opposite party workman at the time of his reinstatement as per the award of the Labour Court in I.D. Case No. 9 of 1997, joined as a Member of Junior Management Cadre and not a Senior Laboratory Technician, as claimed by him. Discussing different dates from the initial date of his appointment, learned P.O., Labour Court held that the opposite party workman was selected for a post in the Junior Management Cadre with effect from 01.08.1990 and he was confirmed in that cadre w.e.f. 01.11.1991. While working in the said cadre he was served with one month's Notice on 05.03.1996 and was removed from service after completion of the Notice period. It was further specifically held by the learned P.O., Labour Court that the opposite party workman has to be paid back wages from the date of his termination, i.e. 05.03.1996 till date in the scale (basic pay, DA, HRA, Special Allowances and Rourkela Allowance) at par with any member of the Junior Management Cadre out of those listed in Exhibit 7, whose increments were not stopped for any reason whatsoever. In reaching such conclusion and entitlement of the petitioner on the basis of the award passed by the Labour Court in I.D. Case No. 9 of 1997, learned P.O., Labour Court, Sambalpur relied on the cases of S.G. Ramalingam v. Management of Tamilnadu State Transport Corporation, 2001 (IV) LLJ - 17 Regional Authority, Dena Bank and Another Vs. In reaching such conclusion and entitlement of the petitioner on the basis of the award passed by the Labour Court in I.D. Case No. 9 of 1997, learned P.O., Labour Court, Sambalpur relied on the cases of S.G. Ramalingam v. Management of Tamilnadu State Transport Corporation, 2001 (IV) LLJ - 17 Regional Authority, Dena Bank and Another Vs. Ghanshyam, AIR 2001 SC 2270 : (2001) 90 FLR 365 : (2001) 1 JT 229 Supp : (2001) LabIC 2069 : (2001) 2 LLJ 252 : (2001) 4 SCALE 62 : (2001) 5 SCC 169 : (2001) SCC(L&S) 786 : (2001) 3 SCR 591 : (2001) 2 SCT 1057 : (2001) 3 SLJ 70 : (2001) AIRSCW 2150 : (2001) 4 Supreme 267 and Piara Lal v. Lt. Governor and others, 2001 (1) LLJ - 46. 9. So far as the claim of Bonus, L.T.C. and Leave Salary is concerned, learned P.O., Labour Court disallowed such claim of the opposite party workman on the reasoning that the opposite party workman had not physically rendered service to the Management from 05.03.1996 to 24.06.2004 and the Management was not at all benefited by the opposite party workman during the said period. Learned P.O., Labour Court, on consideration of the effect of the stay order passed by this Court in O.J.C. No. 7086 of 1999 and other materials, held that the opposite party workman is entitled to interest awarded by the Labour Court in I.D. Case No. 9 of 1997. Learned Labour Court disposed of I.D. Misc. Case No. 23 of 2006 and adopted the reasoning of the said order in disposing I.D. Misc. Case No. 2 of 2008 and I.D. Misc. Case No. 7 of 2011, which relates to claims for different periods by the opposite party workman. Learned P.O., Labour Court however did not compute the money claim of the opposite party workman and directed the Management to prepare a fair statement of calculation of wages of the opposite party workman deducting the amount already paid to him as monthly salary from the date of reinstatement and the amount of Rs. 11,362/- paid vide Ext. 4. In the ordering portion liberty was given to the opposite party workman to challenge the discrepancy in the calculation and file separate petition for realization of the discrepant amount, if any. Direction was further issued to the Management for paying a sum of Rs. 11,362/- paid vide Ext. 4. In the ordering portion liberty was given to the opposite party workman to challenge the discrepancy in the calculation and file separate petition for realization of the discrepant amount, if any. Direction was further issued to the Management for paying a sum of Rs. 5,00,000/- (five lakhs) to the opposite party workman within a period of one month, as the amount is far below the amount claimed by the opposite party workman. 10. Mr. N.K. Mishra, learned senior counsel appearing for the petitioner in all the three writ petitions impugns the award passed by the learned P.O., Labour Court, Sambalpur on different grounds, inter alia, that the learned P.O., Labour Court, in absence of any pre-existing right of the opposite party workman, has travelled beyond the scope of Section 33C(2) of the Act. In the fitness of things the matter should have been dealt with under Section 36-A of the I.D. Act and not otherwise. The P.O., Labour Court having acted as an Executing Court under Section 33C(2) of the Act, could not have created right in favour of the claim of the workman for the first time in absence of one. He relies on the cases of Municipal Corporation of Delhi v. Ganesh Razak and Another, 1995 (1) LLJ - 395, State Bank of India v. Ram Chandra Dubey and Others, 2001 SCC (L and S) - 3, and Union of India and Another v. Kankuben (Dead) by LRs. and others, 2006 LLR 494 to substantiate his submissions. 11. Mr. Ramanath Acharya, learned counsel for the opposite party workman on the other hand submits that, award was passed in favour of the opposite party workman reinstating him in service with full back wages. The Management did not pay to the opposite party workman the back wages he was entitled to get. He claimed the benefit due from his employer capable of being computed in terms of money under Sub-section (2) of Section 33C of the I.D. Act. The aforesaid claim having been made on the basis of pre-existing right decided in I.D. Case No. 9 of 1997, it cannot be held that the claim as laid by opposite party workman before the P.O., Labour Court, Sambalpur in the aforesaid I.D. Misc. Cases is not maintainable. 12. Mr. The aforesaid claim having been made on the basis of pre-existing right decided in I.D. Case No. 9 of 1997, it cannot be held that the claim as laid by opposite party workman before the P.O., Labour Court, Sambalpur in the aforesaid I.D. Misc. Cases is not maintainable. 12. Mr. N.K. Mishra, learned senior counsel relies on the case of Union of India and Another v. Kankuben (Dead) by LRs. and others, 2006 LLR 494 . In the said decision a claim for over-time duty by a workman under Section 33C(2) of the I.D. Act was held to be not tenable in view of the settled law that such a claim is to be adjudicated on the basis of pre-existing right of the workman. Hon'ble Supreme Court in clear terms held that benefit sought to be enforced under Section 33C(2) of the Act is a pre-existing benefit or one flowing from pre-existing right. The aforesaid principles being well settled law, none is in disagreement with the principles. At the appropriate stage I shall discuss as to whether in the present case the claim of the opposite party workman is based on existing right or pre-existing right. Mr. Mishra further relies on the case of State Bank of India v. Ram Chandra Dubey and Others, 2001 SCC (L and S) - 3, where Hon'ble Apex Court had set aside the order passed by the Labour Court under Section 33C(2) of the I.D. Act and affirmed by the High Court under Article 226 of the Constitution of India on the ground that the Labour Court under Section 33C(2) of the Act could not have computed the claim of the workman, as there was no order for back wages while passing the award. This case is however distinguishable so far as the facts of the present case is concerned. In the case of State Bank of India v. Ram Chandra Dubey and Others (supra) award was passed for reinstatement only and the learned Tribunal was silent about back wages. In the present case however award has been passed for reinstatement of the workman with full back wages. Hon'ble Supreme Court, in paragraph-9 of the judgment, has held thus:-- "9. In the case of State Bank of India v. Ram Chandra Dubey and Others (supra) award was passed for reinstatement only and the learned Tribunal was silent about back wages. In the present case however award has been passed for reinstatement of the workman with full back wages. Hon'ble Supreme Court, in paragraph-9 of the judgment, has held thus:-- "9. Whenever a workman is entitled to receive from his employer any money or any benefit, which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit, can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand, is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence, that relief must be deemed to have been denied for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. ......." From the aforesaid ruling of the Hon'ble Apex Court it is clear that the proceeding in the case of State Bank of India v. Ram Chandra Dubey and Others (supra) was held to be untenable under Section 33C(2) of the Act, as there was no award of back wages by the Tribunal on the reference made by the appropriate government and there was no pre-existing right of the workman in that case for getting such back wages computed. In the present case however facts are different and the learned P.O., Labour Court under reference has awarded the benefit of reinstatement as well as full back wages to the opposite party workman. The claim of the opposite party workman, in the present case, is that he is not getting salary, etc. at par with his co-workers working in the same position after his reinstatement. The claim of the opposite party workman, in the present case, is that he is not getting salary, etc. at par with his co-workers working in the same position after his reinstatement. The opposite party workman has therefore got a pre-existing right and not merely an existing right to get his claim computed in terms of money under Section 33C(2) of the Act. So far as the decision of the Hon'ble Apex Court in the case of Municipal Corporation of Delhi v. Ganesh Razak and Another, 1995 (1) LLJ - 395 is concerned, it is also on the similar point where it has been held that the Labour Court cannot determine the dispute of entitlement or the basis of claim under Section 33C(2) of the Act in absence of prior adjudication or recommendation of the employer. So far as the present case is concerned, the claim petition filed by the opposite party workman does not in any way seek determination of the dispute of entitlement or the basis of the claim. The opposite party workman simply asks his employer to pay him his salary on his reinstatement at par with his co-workers working in the same position. The aforesaid decision therefore has no application so far as the facts of the present case is concerned. 13. Perusal of the impugned order passed in I.D. Misc. Case No. 23 of 2006 makes it abundantly clear that learned Presiding Officer has discussed different evidence and especially Exhibit 7 in absence of any co-operation by the Management to furnish Pay-Structure, Standing Order, Seniority List or Pay Roll of the employees, etc. working in the same cadre as that of the opposite party workman. Learned P.O., Labour Court has also taken into consideration the settled law on the point by referring to different decisions including the decision of the Hon'ble Apex Court in the case of Regional Authority, Dena Bank and Another Vs. working in the same cadre as that of the opposite party workman. Learned P.O., Labour Court has also taken into consideration the settled law on the point by referring to different decisions including the decision of the Hon'ble Apex Court in the case of Regional Authority, Dena Bank and Another Vs. Ghanshyam, AIR 2001 SC 2270 : (2001) 90 FLR 365 : (2001) 1 JT 229 Supp : (2001) LabIC 2069 : (2001) 2 LLJ 252 : (2001) 4 SCALE 62 : (2001) 5 SCC 169 : (2001) SCC(L&S) 786 : (2001) 3 SCR 591 : (2001) 2 SCT 1057 : (2001) 3 SLJ 70 : (2001) AIRSCW 2150 : (2001) 4 Supreme 267, wherein it has been held that it needs no debate to conclude that on reinstatement the respondent will be entitled to his salary at par with other employees working in the same post. In absence of proper co-operation by the Management to prove particulars, learned P.O., Labour Court has rightly fallen back on Exhibit 7 and other documents furnished by the opposite party workman. 14. So far as the claim is concerned, learned Labour Court has accepted the claim of the opposite party workman with respect to Basic Pay, D.A., H.R.A., Special Allowances and Rourkela Allowance. But he has disallowed the claim of the opposite party workman so far as Bonus, L.T.C. and Leave Salary, etc. are concerned. The claim of Mr. N.K. Mishra, learned senior counsel to the effect that there is no existence of right to claim benefit under Section 33(C)(2) of the I.D. Act so far as the opposite party workman is concerned, is a spacious submission in as much as the benefit claimed by the opposite party workman here is relatable to his pre-existing right on reinstatement on the basis of the award passed in I.D. Case No. 9 of 1997. Hence, raising dispute by the Management now as to existence of right cannot take away the jurisdiction of the Labour Court to deal with entitlement of the workman to the benefits claimed by him. The contention of Mr. Hence, raising dispute by the Management now as to existence of right cannot take away the jurisdiction of the Labour Court to deal with entitlement of the workman to the benefits claimed by him. The contention of Mr. Mishra, learned senior counsel to the effect that the matter could have been dealt with under Section 36-A of the I.D. Act and not otherwise is also a spacious argument, in as much as Section 36-A deals with power of the appropriate government in case of any difficulty or doubt arising out of or regarding interpretation of any provision of an award or settlement to refer the question to the Labour Court or Tribunal. In the present case, such a situation has not arisen. The opposite party workman has claimed salary at par with his co-workers working in the same cadre and same post, and such claim has been made on the basis of the award of reinstatement and back wages passed in I.D. Misc. Case No. 9 of 1997. In view of the nature of the claim made by the opposite party workman, Section 33C(2) of the I.D. Act is the appropriate proceeding and not Reference under Section 36-A of the said Act. 15. Learned P.O., Labour Court has however erred in not computing the claim of the opposite party workman. From the impugned order it is found that the Management did not supply or furnish relevant documents like Pay-Structure, Standing Order, Seniority List or Pay-Roll of the employees working in the same cadre as that of the opposite party workman. 16. Mr. Ramanath Acharya, learned counsel for the opposite party workman submits that, in this regard petitions were filed in all the Misc. Cases to call for the documents from the Management. Said petitions were allowed and in spite of order passed by the learned Labour Court, the Management did not furnish the relevant documents. It is a matter of common knowledge that so far as Salary, Pay-Structure, Standing Orders, etc. are concerned, the Management can give the best evidence and best support for adjudication. The workman can only provide the basis of his claim and a rough claim, which the Management may not agree with. In that view of the matter, it was the duty of the Management to co-operate in the trial of the proceeding by providing all relevant documents and materials. 17. The workman can only provide the basis of his claim and a rough claim, which the Management may not agree with. In that view of the matter, it was the duty of the Management to co-operate in the trial of the proceeding by providing all relevant documents and materials. 17. Taking into consideration the scope and ambit of Section 33C(2) of the I.D. Act, I am of the considered view that learned P.O., Labour Court, Sambalpur should have disposed of the proceeding without leaving anything to be done by the Management, by computing the entire claim of the petitioner for the periods set out in all the Misc. Cases, i.e. I.D. Misc. Case No. 23 of 2006, 2 of 2008 and 7 of 2011. Learned P.O., Labour Court having not done that, has committed an error, and therefore the matter is liable to be remanded for the aforesaid exercise. 18. Learned P.O., Labour Court has awarded Rs. 5,00,000/- (five lakhs) in favour of the opposite party workman, but there is no basis for such award. In view of such fact, I deem it proper to modify the order on the aforesaid aspect directing the petitioner Management to pay Rs. 2,50,000/- (rupees two lakh fifty thousand) to the opposite party workman within 30 (thirty) days from the date of receipt of a certified copy of this order. The said amount shall be paid to the opposite party workman to defray the expenses of the litigation. If, on conclusion of the proceeding he is found to have been entitled to get any amount, that amount shall be adjusted against payment of Rs. 2,50,000/- (rupees two lakh fifty thousand). 19. In view of the above, all the three writ petitions are disposed of. The matters are remanded back to the learned P.O., Labour Court, Sambalpur for computation of the claim of the opposite party workman fully on the basis of materials supplied by the parties. Learned P.O., Labour Court, if necessary, may also take resort to Sub-section (3) of Section 33C of the I.D. Act for computing the claim of the opposite party workman. The petitioner Management is directed to supply all the documents as required by the learned Labour Court or as called for at the behest of the opposite party workman for just adjudication of the matter in dispute. The petitioner Management is directed to supply all the documents as required by the learned Labour Court or as called for at the behest of the opposite party workman for just adjudication of the matter in dispute. Opposite party workman is also directed to co-operate in the trial without making any frivolous claim. The proceeding be concluded within 4(four) months from the date of receipt of a certified copy of this order or within such extended time not exceeding six months on the discretion of the P.O., Labour Court. The petitioner Management is directed to pay Rs. 2,50,000/- (rupees two lakh fifty thousand) to the opposite party workman within one month from the date of receipt of a certified copy of this order, subject to the adjustment as outlined in the preceding paragraph. 20. No order as to cost. Final Result : Disposed off