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2019 DIGILAW 1537 (JHR)

TRF Ltd. v. Jaideo Ray

2019-09-04

RAJESH KUMAR

body2019
JUDGMENT : 1. Heard learned counsel for the petitioner. Nobody appears on behalf of the respondent- workman. 2. The present writ petition has been filed for quashing the order dated 13.12.2010 passed by the Presiding Officer, Labour Court, Hazaribagh in M.J. Case No. 01 of 2004 under Section 33(C)(2) of the Industrial Disputes Act, 1947 whereby wages for the period 03.02.2003 too 26.07.2003 has been ordered to be released in favour of the respondent- workman. 3. From the pleadings and arguments, it appears that the respondent-workman was a permanent employee of the petitioner-Company and he has been dismissed from service from 28.02.2003. The order of dismissal has been challenged by raising Industrial Dispute, which has been referred as Ref. No. 03/2005 (although Award has not been annexed in the present writ petition, but it has been annexed as Annexure-1 of the connected writ petition being W.P. (L) No. 1524 of 2010). 4. Terms of reference is as follows: “Whether the dismissal of Sri Jaideo Roy, Asstt. Officer (Store), check no. 2504 Kedla Site, Hazaribag from dated 28.02.2003 by the management of T.R.F. (Tata Robins Frazer) Ltd. 11, Burmamines Road, Jamshedpur is justified? If not, whether Sri Jaideo Roy may be reinstated or what other relief he is entitled to?” 5. Reference has been made in following terms: “That the dismissal of the workman was in violation of sec. 25F of the Industrial Disputes Act. The reference is replied in affirmative in favour of the workman and in the facts attached with the case the workman could be given relief of V.R.S. Scheme.” 6. Thus in the Award, petitioner has been given benefit of VRS only. Finally the order has been passed in M.J. Case No. 01 of 2004 in following terms: “15. The powers under the provisions 33-C(2) though is quite large but it has got some restriction. It has been now settled under the dictum of the apex court that under the said provisions the powers is that of an executing court. The claim put under 33-C(2) must be accepted by the management either expressly or impliedly before the filing of the claim. In the instant case though there is no express admission of the employment of the applicant on and from or after 28th February 2003. The claim put under 33-C(2) must be accepted by the management either expressly or impliedly before the filing of the claim. In the instant case though there is no express admission of the employment of the applicant on and from or after 28th February 2003. But at the same time not forcing the applicant in handing over the keys for subsequent long period for about 5 months moreover when from 9th March the entire charge taking efforts itself continued for more than 45 days is an engagement of the workman for the work of the company. If the management has kept mum in taking over the charge for a period of 5 months, then the management is equally liable in not taking charge from his employee who has been terminated by its order. The management also has not produced any documentary evidence as to who was issuing requisition or issuing the stores in day to day need for the next 5 months when in the circumstances the keys were in possession of the applicant. It is not the case of the management that the work of stores was being done through some one else with a duplicate key after taking stock of situation and taking the entire stock in the custody of the management. This is a lapse on the part of the management and in-spite of the termination of the applicant; it appears that the work was going on as it was prior to 28th February 2003 and that is a reason the documentary evidence pertaining to the volume of register etc. that is/was kept in routine course of business are deliberately suppressed. For that reasons adverse inference can be drawn against the management. The record also shows that the applicant has not received the salary for February 2003 as well as the notice pay for the month of March 2003 as apparent from exhibit-F and this is the amount which the applicant is legally entitled to be given without any express order. For that reasons adverse inference can be drawn against the management. The record also shows that the applicant has not received the salary for February 2003 as well as the notice pay for the month of March 2003 as apparent from exhibit-F and this is the amount which the applicant is legally entitled to be given without any express order. But considering simultaneously that management has taken services of the applicant till 26th July 2003 and because of non production of relevant registers as well as the evidence of AW-1 to 4 shows that the applicant was regularly attending the office and that part of evidence of applicant has not been challenged and demolished, thus in the circumstances it appears that the management impliedly has admitted that the applicant/workman/employee was working with the management even after termination till 26th July 2003 and is entitled to be compensated for such work and in the circumstances, the compensation could be the monthly wages of the applicant. So far conveyance allowance, L.T.C. etc. are such type of prayer which requires decision on entitlement and beyond the purview of the 33-C(2), thus that can not be granted.” 7. In the present proceeding initiated under Section 33-C(2) of the Industrial Disputes Act, 1947, the workman has claimed salary after dismissal on the ground that the charge has not been taken from him and as such, he has continued working. 8. Reference can be made to judgment rendered by the Apex Court in the case of D. Krishnan and Another vs. Special Officer, Vellore Cooperative Sugar Mill and Another, (2008) 7 SCC 22 . Para 12, 15 and 16 of the said judgment are quoted herein-below: “12. We have considered the arguments advanced by the learned counsel for the parties. The fact that proceedings under Section 33 C(2) are in the nature of execution proceedings is in no doubt and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case. It will be seen that the reliance of the appellant-workmen is exclusively on documentary evidence placed on record which consisted primarily of the punch time cards and the representations that had been filed from time to time before the respondents. It is also true that the claim raised by the appellants had been hotly disputed by the respondents. It will be seen that the reliance of the appellant-workmen is exclusively on documentary evidence placed on record which consisted primarily of the punch time cards and the representations that had been filed from time to time before the respondents. It is also true that the claim raised by the appellants had been hotly disputed by the respondents. The question that arises in this situation is whether reliance only on the documentary evidence was sufficient to prove the case. 15. In this view of the matter, we find that the judgment reported in Municipal Corporation case (supra) was clearly applicable to the facts of the present case. In this case, it was observed that: (SCC p. 242, para 13) “13. In these matters, the claim of the respondent-workmen who were all daily-rated/causal workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents.” 16. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents.” 16. In Brijpal Singh case (supra), this is what the Court had to say: (SCC p: 63, para 10) “10. It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages (P) Ltd. vs. Suresh Chand held that a proceeding under Section 33-C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or 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 the industrial workman, and his employer.” (Emphasis in original) 9. It is trite that under Section 33-C(2) of the Industrial Disputes Act, 1947, Labour Court has been authorized to compute the pre-existing right/claim in terms of money. The power is akin to the Executing Court. Labour Court has not been authorized to decide any claim/right of the parties. 10. In the present dispute, the claim has been raised by the workman that he is entitled for salary even after dismissal on the ground of not taking charge. This cannot be scope of adjudication under Section 33-C(2) of the Industrial Disputes Act, 1947. Thus the impugned order dated 13.12.2010 passed by the Presiding Officer, Labour Court, Hazaribagh in M.J. Case No. 01 of 2004 under Section 33(C)(2) of the Industrial Disputes Act, 1947 is wholly without jurisdiction and is, hereby, set aside. 11. Accordingly, the present writ petition is, hereby, allowed.