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2016 DIGILAW 131 (JHR)

Ramjani Devi, Wife of Late Paresha Nand Jha v. TISCO Limited, Now Tata Steel Limited

2016-01-18

SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. Aggrieved by order dated 29.09.2011 in M.J. Case No.75 of 1999 whereby, the application filed under Section 33(C)(2) of the Industrial Disputes Act has been dismissed, the present writ petition has been filed. 2. The brief facts of the case are that, the deceased workman was employed initially with Indian Tube Limited and he was dismissed from service on 25.01.1979. An industrial dispute was raised which after failure of the conciliation proceeding, was referred for adjudication vide Reference Case No. 31 of 1979. The reference was answered vide award dated 30.05.1988 whereunder, the management of M/s TISCO Ltd. was directed to reinstate the workman with 75% back wages and other benefits. It appears that an application under Section 33(C)(2) of the Industrial Disputes Act was filed by the deceased workman for payment of various benefits accruing to him during the period his service remained terminated. The said application was dismissed vide order dated 29.09.2011, against which the petitioners, who are the legal heirs and successors of the deceased workman namely, Paresha Nand Jha, have filed the present writ petition. 3. The learned counsel for the petitioners submits that under the tripartite agreement and the award dated 30.05.1988, the deceased workman was entitled for various allowances which were not paid to him and therefore, the application under Section 33(C)(2) of the Industrial Disputes Act was rightly entertained by the labour court. Challenging rejection of the claim for leave encashment to the deceased workman, the learned counsel for the petitioners contends that the labour court appreciated that the deceased workman was similarly situated and he too was entitled to get leave encashement and therefore ought to have directed the deceased workman to mention the amount instead of rejecting the claim of the deceased workman. 4. I have carefully considered the submission of the learned counsel for the petitioners and perused the documents on record. 5. Section 7 of the Industrial Disputes Act, 1947 provides that the Appropriate Government may constitute one or more labour courts for the adjudication of industrial dispute relating to a matter specified in the Second Schedule. In the Second Schedule of the Act, the following matters have been specified: “1. The propriety or legality of an order passed by an employer under the standing orders; 2. The application and interpretation of standing orders; 3. In the Second Schedule of the Act, the following matters have been specified: “1. The propriety or legality of an order passed by an employer under the standing orders; 2. The application and interpretation of standing orders; 3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed; 4. Withdrawal of any customary concession or privilege; 5. Illegality or otherwise of a strike or lockout; and 6. All matters other than those specified in the Third Schedule”. 6. The subject at Sl. No.6 in the Second Schedule namely, “all matters other than those specified in the Third Schedule” restricts the jurisdiction of the labour courts to adjudicate the dispute specified under the Third Schedule. The “compensatory and other allowances”, “bonus, profit sharing, provident fund and gratuity”, and “leave with wages and holidays” are the subjects specified under the Third Schedule. The learned counsel for the management has rightly contended that in application under Section 33(C)(2), the labour court cannot adjudicate a dispute in respect of grant of leave encashment. The award dated 30.05.1988 does not disclose that the claim for leave encashment or other benefits were specifically contested before the labour court. 7. The jurisdiction of labour court under Section 33-(C)(2) is well-defined. It is well settled that the labour court can exercise jurisdiction under Section 33-(C)(2) where the claim of the employee has been admitted by the employer under a settlement or a benefit has accrued to an employee under an award. In “State Bank of India Vs. Ram Chandra Dubey and Others” reported in (2001) 1 SCC 73 [ : 2001 (1) JLJR (SC) 327], the Hon'ble Supreme Court has held that the jurisdiction of labour court under Section 33-(C)(2) extends to computation of a preexisting benefit or one flowing from a preexisting right. In “U.P. State Road Transport Corporation Vs. Birendra Bhandari” reported in (2006) 10 SCC 211 , the Hon'ble Supreme Court has reiterated that the benefit sought to be enforced under Section 33(C)(2) of the Industrial Disputes Act, 1947 is necessarily a preexisting benefit or one flowing from a preexisting right. The provision under Section 33(C)(2) of the Industrial Disputes Act, 1947 is thus, in the nature of an execution proceeding. The provision under Section 33(C)(2) of the Industrial Disputes Act, 1947 is thus, in the nature of an execution proceeding. The proceeding before the labour court in M.J. Case No.75 of 1999 discloses that the deceased workman claimed protection bonus, special allowances, LTA amount, leave encashment, fitment allowance, medical allowance, canteen allowance, dress allowance etc. The order dated 29.09.2011 does not disclose that the deceased workman produced a copy of a circular/guidelines of the management for claiming benefit of the aforesaid allowances. The management disputed the claim raised by the deceased workman. The applicant failed to claim any amount for leave encashment and as such the claim was denied. Moreover, the management of M/s. TISCO Ltd. denied the claim for leave encashment also. 8. Considering the aforesaid facts, I find no merit in the writ petition and accordingly, it is dismissed.