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Jharkhand High Court · body

2018 DIGILAW 200 (JHR)

Ivaturiveera Raju v. Bharat Coking Coal Limited

2018-01-24

RAJESH SHANKAR

body2018
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for setting aside the order dated 2.3.2010 passed by the learned Labour Court, Dhanbad in M.J. Case No. 6 of 2008, whereby the claim of the petitioner for payment of monetary dues amounting to Rs. 1,16,857.14 along with interest and compensation has been refused. The factual background of the case as stated in the writ petition is that the petitioner was an employee of the respondent. He worked at Burugia Project from 20.4.1981 to 10.2.1999 and was dismissed from service on 10.2.1999. During the service period, the petitioner filed a case for payment of dues vide M.J. Case No. 14 of 1998, wherein an order of payment of Rs. 1,23,351/- was passed in his favour and finally, the payment was made. The petitioner's claim is that he has not been paid dues from October, 1998 to 10.2.1999 amounting to Rs. 1,16,857.14 for which he filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 vide M.J. Case No. 6/2008. The learned Labour Court vide order dated 2.3.2010 disposed of the application of the petitioner by observing that the petitioner has not vacated the quarter allotted to him and amount of penal rent is increasing regularly and as such, the applicant may file fresh case for determination of alleged legal dues after vacating the quarter of the Company. 2. The learned counsel for the petitioner submits that the petitioner is a permanent resident of Vijaynagaram at Andhra Pradesh and it is not expected that for recovery of his legal dues of Rs. 1,16,857.14 payable in February, 1999 itself, he would be coming from Andhra Pradesh and then keep on insisting the management of M/s. BCCL for payment of the same. It is further submitted that on the one hand, the BCCL kept withholding the dues amount of the petitioner and on the other hand, demanding the penal rent of the quarter amounting to Rs. 1,60,570/- without any fault on his part. It is further submitted that the petitioner has already spent Rs. 1.00 lakh approximately in keeping the quarter in fit condition. 1,60,570/- without any fault on his part. It is further submitted that the petitioner has already spent Rs. 1.00 lakh approximately in keeping the quarter in fit condition. It is also submitted that the petitioner is suffering mental agony and physical torture due to the action of the employer, Bharat Coking Coal Limited and its officers for which he is entitled to be suitably compensated by payment of cost and compensation, the learned counsel for the petitioner puts reliance on a judgment rendered by a Bench of this Court rendered in the case of "Kusheshwar Lal Das vs. Jharkhand State Electricity Board & Ors." reported in 2009 (1) JLJR 262 and submits that the management should not have insisted for penal rent particularly when the legal dues of the petitioner is pending for payment and as such the employer should charge only normal rent for the period the employee occupies the quarter for long period. 3. The learned counsel for the respondents submits that the petitioner was appointed on 20.4.1981 at Bhurangia Project of Mahuda Area (now Western Jharia) and transferred to Putkee Balihari Project on 27.11.1981. A Committee was constituted by the competent authority of Headquarters for scrutinizing the age dispute of some of the employees including the petitioner and a report was submitted before the competent authority by the Committee for approval. The case of the petitioner was considered and his date of birth was rectified and superannuation notice issued to him was withdrawn vide letter dated 4.1.1995 and he was put back in service. However, two criminal cases being RC-3/84 and RC-9/84(D) were registered against the petitioner by the CBI and vide judgment of the trial court dated 21.12.1998, he was convicted. It is further submitted that on the basis of such conviction, the petitioner was dismissed from service of the Company vide office order dated 10.2.1999. The petitioner also filed an appeal against the order of dismissal from service, but the appeal was also dismissed vide order dated 17.3.1999. The petitioner was directed to vacate the quarter vide letter No. 48 dated 10.2.1999 with an advice to return the materials of the company and to receive the full and final payment. Earlier, M.J. Case No. 14 of 1998 was also filed by the petitioner before the Labour Court, Dhanbad in which a direction was issued to the respondents to pay a sum of Rs. Earlier, M.J. Case No. 14 of 1998 was also filed by the petitioner before the Labour Court, Dhanbad in which a direction was issued to the respondents to pay a sum of Rs. 1,23,351/- to the petitioner which was complied by the respondents. It is further submitted that the petitioner is still in possession of the quarter of the BCCL and as such, he is liable to pay penal rent amounting to Rs. 1,60,570/- which is higher than the alleged dues. The said penal rent is increasing everyday and till the quarter is vacated, the dues of the petitioner cannot be ascertained. It is also submitted that in the earlier order dated 23.4.2004 passed in M.J. No. 14 of 1998, the learned Labour Court had clearly mentioned that in absence of any document, the court is not in a position to determine the amount payable after September 1998 till the date of dismissal. It is further submitted that the learned Labour Court passed the impugned order after appreciating the evidences of the parties and materials produced before it and as such the same needs no interference. It is lastly submitted that the petitioner is not entitled to retain the company quarter after his dismissal from service and as such, he is liable to pay the penal rent. 4. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the order passed by the learned Labour Court in M.J. Case No. 6 of 2008, whereby the claim of the petitioner filed under Section 33-C(2) of the Industrial Disputes Act, 1947 for payment of dues salary from October 1998 to 10.2.1999 amounting to Rs. 1,16,857.14 along with interest and compensation has been rejected. The learned counsel appearing on behalf of the respondents has submitted that in spite of the order of dismissal from service, the petitioner has retained the quarter for which he is liable for penal rent amounting to Rs. 1,60,570/- which is higher than the alleged dues claimed by him, thus, the petitioner is not entitled to any relief in a proceeding under Section 33-C(2) of the Act, 1947. 5. The scope of Section 33-C(2) of the Act, 1947 is quite limited and the court has to act as an executing court. 1,60,570/- which is higher than the alleged dues claimed by him, thus, the petitioner is not entitled to any relief in a proceeding under Section 33-C(2) of the Act, 1947. 5. The scope of Section 33-C(2) of the Act, 1947 is quite limited and the court has to act as an executing court. There has to be a pre-existing right or determination of any monetary claim of a person before invoking Section 33-C(2) of the Act. 6. In the case of "Central Inland Water Transport Corpn. Ltd. vs. Workmen" reported in (1974) 4 SCC 696 , the Hon'ble Supreme Court while discussing the scope of Section 33-C(2) of the Act, 1947 has held as under: "12. It is now well-settled that a proceeding under Section 33-C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. vs. Rameshwar ( AIR 1968 SC 218 ), it was reiterated that proceedings under Section 33-C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the position of an executing court. It was also reiterated that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer." 7. Dealing with the same issue, the Hon'ble Supreme Court in the case of "Chief Supdt., Govt. Livestock Farm, Hissar vs. Ramesh Kumar" reported in (1997) 11 SCC 363 , at paragraph-2, has held as under: "2. We are unable to appreciate how the application of the respondent could be entertained under Section 33-C(2) of the Act. The remedy of Section 33-C(2) is available only in those cases where there is no dispute about entitlement of the workman. We are unable to appreciate how the application of the respondent could be entertained under Section 33-C(2) of the Act. The remedy of Section 33-C(2) is available only in those cases where there is no dispute about entitlement of the workman. The remedy of Section 33-C(2) cannot be invoked in a case where the entitlement is disputed. In the instant case, the entitlement of the respondent to regular scale was disputed by the appellant and, therefore, it was not a case in which the remedy of Section 33-C(2) could be invoked. The proper course for the respondent was to have his entitlement to regular scale determined by a competent court or tribunal and in the event of nonpayment of the amount payable to him as per his entitlement under such determination he could invoke the remedy under Section 33-C(2)." 8. In the case of "State Bank of India vs. Ram Chandra Dubey" reported in (2001) 1 SCC 73 [: 2001 (1) JLJR (SC) 327], the Hon'ble Supreme Court has held as follows: "8. ..................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 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(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 33-C(2) of the Act while the latter does not........." 9. In the present case, on perusal of the order of the learned Labour Court dated 23.8.2004 passed M.J. Case No. 14 of 1998, it transpires that the petitioner had prayed before the Labour Court for payment of dues w.e.f. September 1998 till the date of dismissal, but the said prayer was not considered by holding that due to unavailability of sufficient material on record, the same cannot be determined. The petitioner did not challenge the said order and after about 4 years, filed a fresh M.J. Case No. 6 of 2008 claiming the dues of salary and other benefits from October 1998 to 10.2.1999. The respondents have also not admitted the claim made by the petitioner. Thus, it cannot be said that there was any prior adjudication or settlement of the amount, which was claimed by the petitioner through an application filed under Section 33-C(2) of the Act, 1947. 10. I have also perused the judgment of "Khusheshwar Lal Das" (supra) relied upon by the learned Senior Counsel for the petitioner. The said case was related to withholding of retiral benefits till the quarter is vacated, wherein a Bench of this Court directed for payment of retiral dues without any interest with a further direction to the authority not to realize penal interest for retaining the quarter. The fact of the present case is different from the case cited on behalf of the petitioner. In the case in hand, the petitioner made an application under Section 33-C(2) of the Act, 1947 claiming the amount of salary from October 1998 to 10.2.1999, which the learned Labour Court declined to grant by observing that the determination of the petitioner's claim is not possible, however, the petitioner was given liberty to file a fresh case for determination of his dues after vacating the quarter of the company since the penal rent has been increasing regularly. 11. In the present case, the petitioner appears to be in possession of the quarter of the respondent-BCCL even after his dismissal w.e.f. 10.2.1999. The petitioner by way of filing application under Section 33-C(2) of the Act, 1947 being M.J. Case No. 6 of 2008, claimed for payment of monetary dues amounting to Rs. 1,16,857.14 being the dues of salary w.e.f. October 1998 to 10.2.1999, whereas the respondents contended before the learned Labour Court that the petitioner is liable to pay the penal rent amounting to Rs. 1,60,570/- for illegal retention of quarter which is also increasing everyday till the said quarter is vacated by him. 1,16,857.14 being the dues of salary w.e.f. October 1998 to 10.2.1999, whereas the respondents contended before the learned Labour Court that the petitioner is liable to pay the penal rent amounting to Rs. 1,60,570/- for illegal retention of quarter which is also increasing everyday till the said quarter is vacated by him. The learned Labour Court after considering the rival contentions raised on behalf of the parties, vide impugned order dated 2.3.2010 came to a conclusion that since the applicant is still in possession of the respondent company's quarter and the amount of penal rent is increasing, the determination of the alleged legal dues claimed by the petitioner is not possible. However, the petitioner was given liberty to file fresh case for determination of the legal dues after vacating the quarter of the respondent-BCCL. I find no infirmity in the said order dated 2.3.2010 passed by the learned Labour Court, Dhanbad. Otherwise also, there being claim and counter-claim between the parties, the learned Labour Court had its legal constraint in making full-fledged adjudication over the same under the provisions of Section 33-C(2) of the Act, 1947. Thus, I see no reason to interfere with the impugned order dated 2.3.2010 passed by the learned Labour Court, Dhanbad in M.J. Case No. 6 of 2008. The writ petition being devoid of merit is accordingly dismissed. The petitioner is, however, at liberty to file fresh application under Section 33-C(2) of the Act, 1947, in terms with the order of the learned Labour Court after vacating the quarter of the respondent-BCCL.