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2020 DIGILAW 607 (JHR)

Central Coalfields Limited v. Siraj Mian

2020-06-17

ANUBHA RAWAT CHOUDHARY, APARESH KUMAR SINGH

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JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. 1. Heard the Learned Counsel appearing for the appellant. 2. Heard the Learned Counsel appearing on behalf of the Respondent Nos. 1, 5, 6, 7, 8 and 17. 3. This appeal has been filed against the judgment and order dated 15.02.2012 passed by the learned writ court in W.P.(L) No. 363 of 2003, whereby the writ petition filed by the present appellant was dismissed. 4. The writ petition was filed for quashing the order dated 23rd September, 2002 passed in M.J. Case No. 03 of 1998 whereby the application filed under Section 33(C) (2) of Industrial Disputes Act, 1947 was allowed and the writ petitioner was directed to give monetary benefits to the extent of 50% of the calculation sheet of each of the applicants and to pay simple interest @ 6% per annum from the date of filing of the M.J. Case. 5. The facts of the case are that the respondent-employees filed an application under Section 33(C) (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) for payment of the difference of wages from 01.01.1982 to March, 1988 and in the said application, it was stated by the Applicants (hereinafter referred to as the employees/Respondents ) that they were initially appointed as Piece Rated Workers and were getting their wages according to the work done under the said category. Later on, they were taken for Time Rated Workers and since then, they were working as Time Rated Workers, but they were not given the minimum guarantee benefits as per the Implementation Instruction No. 26 dated 23.04.1984 of the National Coal Wage Agreement-III. It was also contended by the employees that their prior consent was not taken by the writ petitioner before their conversion to Time Rated Workers. 6. The writ petitioner in its show-cause stated that the proceeding under Section 33(C) (2) of the Act was not maintainable in view of the fact that in the said proceeding, such right cannot be adjudicated and an additional plea was also taken that the application itself was made at a belated stage. It was also contended that the workmen had given undertaking that they will not claim any differences of wages and that mere conversion from Piece Rated to Time Rated will not confer any right to claim anything more than what was applicable to the Time Rated Category. It was also contended that the workmen had given undertaking that they will not claim any differences of wages and that mere conversion from Piece Rated to Time Rated will not confer any right to claim anything more than what was applicable to the Time Rated Category. The further case of the writ petitioner was that in view of letter dated 23rd/29th August, 1995 issued by Coal India Limited, the employees were not entitled to claim the relief as prayed for in the application. 7. The Presiding Officer, Labour Court, Hazaribagh vide order dated 23rd September, 2002 allowed the said application to the extent already stated above. 8. The writ petition was filed challenging the said order dated 23rd September, 2002, interalia, on the ground that the Presiding Officer, Labour Court, Hazaribagh has committed serious error of law failing to take into consideration that the proceeding under Section 33(C) (2) of the Act was not maintainable as the same is in the nature of an execution proceeding and the inter-se rights of the parties could not have been adjudicated in the said proceedings. Further case of the writ petitioner was that the matter involved interpretation of the provisions of Implementation Instruction No. 26 dated 23.04.1984 as well as the letter dated 23rd/29th August, 1995 in order to arrive at a finding regarding the entitlement of the employees which required adjudication. It was also stated that otherwise also, the claim of the employees was a belated claim. 9. A counter-affidavit was filed in the writ petition opposing the prayer and it was the specific case of the employees that National Coal Wage Agreement-III came into effect from 01.01.1983 which covers all categories of employees in the coal industry under the Ministry of Coal and is required to be implemented and is binding on the writ petitioner. Although the employees were working as Time Rated Workers, the Fitment Formula as per National Coal Wage Agreement-III was not being given in spite of Implementation Instruction No.26 dated 23.04.1984 issued as per the National Coal Wage Agreement-III which clarified that the employees who were Piece Rated Workers, but working as Time Rated Workers were entitled to minimum benefits under NCWA-III and were entitled to fitment and this benefit was required to be given to Piece Rated Workers doing Time Rated job with effect from 01.01.1983. It was the specific case of the employees before the learned Labour Court that the Letter dated 23rd/29th August, 1995, was a general letter indicating that the Time Rated Worker would not get the same wage that they were getting while working as Piece Rated Worker in the name of protection of wages and such benefits, if paid, was to be discontinued immediately. It was further the case of the employees that in any case, since the employees were deputed as Time Rated Workers without their consent, the letter dated 23/29.08.1995 was not at all applicable. The employees also relied upon the finding given by the learned Labour Court that no document could be produced by the management to show that prior consent was taken from the workmen before deputing them as Time Rated Workers. It was their case that the said letter dated 23rd/29th August, 1995 has no concern with Implementation Instruction No. 26 dated 23.04.1984, on the basis which, the employees had preferred the claim. 10. On the point of delay, it was the specific case of the employees that the matter was agitated and was under consideration at different levels with the writ petitioner due to which implementation of the instruction got delayed. As no clear commitment was coming from the writ petitioner, the employees were compelled to file the petition under Section 33(C) (2) of the Act. 11. The learned writ court passed the impugned judgment dated 15.02.2012, whereby the writ petition was dismissed on the ground that the learned Labour Court has thoroughly dealt with the case and has considered the claim of the parties and has come to a conclusion that the concerned workmen are entitled to get benefit in terms of circular / instruction dated 23.04.1984 and the learned Labour Court has not adjudicated upon or decided any issue, but has simply said that the concerned employees are entitled to get monetary benefits in terms of provisions of National Coal Wage Agreement-III. Arguments of the appellant 12. It has been argued by the learned counsel for the appellant that the Hon’ble Single Judge has failed to consider that the proceeding under Section 33(C) (2) of the Act is in the nature of execution proceeding and since the claim is disputed, involving complicated question of Law and facts, the Labour Court had no jurisdiction to decide such disputed claim. The Labour Court has no jurisdiction under Section 33(C) (2) of the Act to create a right in favour of employees and to make them receive the amount so claimed. He has submitted that the entitlement of the employees to claim higher wages on the basis of Instruction No. 26 dated 23.04.1984 is highly disputed. It has been also argued that the fact is that those Piece Rated Workers who have opted either verbally or in writing have been converted into Time Rated Workers and accordingly, they were entitled and were accordingly paid as per Time Rated Workers. It is submitted that the aforesaid aspects of the matter have not been properly considered by the leaned Single Judge while dismissing the writ petition. Without prejudice to the aforesaid submissions, the learned counsel submitted that the learned Single Judge also failed to properly consider that the claim itself was a stale claim. 13. During the course of argument, the learned counsel for the appellant while assailing the impugned judgment referred to the evidence of A.W/1. Kali Sao to submit that it was admitted in Paras-3 and 4 of his deposition that applicants were converted into Time Rated Workers w.e.f. 01.01.1982 and they used to get Time Rated wages regularly without any deduction. It is submitted that the Witness No.1 on behalf of the management proved the office order dated 31.12.1981 whereby services of the applicants were converted from Piece Rated to Time Rated and Witness No.2 on behalf of the management had deposed that the applicants were converted into Time Rated and started getting salary as per attendance. 14. The learned counsel for the appellant, on the point of jurisdiction of a Labour Court under Section 33(C) (2) of the Act, relied upon the following judgments: - (1995) 1 SCC 235 , Para- 12 and 28 (2019) 9 SCC 365 , Para- 7 and 8 (2005) 8 SCC 58 , Para- 10, 11 and 12 And on the point of delay and latches, he relied upon the judgment reported in (2015) 15 SCC 1 (Prabhakar Vs. Joint Director, Sericulture Deptt. & Another), Paras- 20, 28, 42.2 to 42.6 and 44. Arguments of the Respondents 15. Joint Director, Sericulture Deptt. & Another), Paras- 20, 28, 42.2 to 42.6 and 44. Arguments of the Respondents 15. The learned counsel appearing on behalf of the respondents made the following submissions: - (i) The application under Section 33(C) (2) of the Industrial Disputes Act, 1947 was maintainable in the light of the fact that the benefit which has been ordered to be extended is a pre-existing benefit which has simply been computed in terms of money by the learned Labour Court. It is submitted that there are plethora of judgments in which the Hon’ble Apex Court and Hon’ble High Court have interpreted Section 33(C) (2) of the Act and have come to a conclusion that an application for extension of a pre-existing right or benefit is competent to be adjudicated under Section 33(C) (2) of the Act. It is submitted that it is also settled that there is a difference between a pre-existing right or benefit and a right or benefit. The entitlement of the former can always be adjudicated under Section 33(C) (2) of the Act. (ii) It is submitted that in the present case also, the benefit which has been extended is a pre-existing right/benefit which flows from the provision enumerated in the National Coal Wage Agreement and an office order for discontinuation cannot supersede the terms and conditions of the National Coal Wage Agreement. (iii) The show cause filed on behalf of the appellant (Annexure-1) is self-contradictory to the Implementation Instruction No. 26 dated 23.04.1984. On the one hand, they say that National Coal Wage Agreement is not applicable and on the other hand, they issue Implementation Instruction No. 26 dated 23.04.1984 for extending wage protection benefit. (iv) On the point of stale claim, it is submitted that no period of limitation has been prescribed under the Industrial Disputes Act, 1947 and the Hon’ble Apex Court has from time to time held that Limitation Act is not applicable in cases of Industrial Dispute. However, the Hon’ble Apex Court in a case reported in (2013) 14 SCC 543 has held that delay in raising industrial dispute is an important circumstance which Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised. However, the Hon’ble Apex Court in a case reported in (2013) 14 SCC 543 has held that delay in raising industrial dispute is an important circumstance which Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised. (v) Thus, the Hon’ble Apex Court observed that the period of limitation should not be completely ignored and in the present case, it was given due consideration and a finding was recorded that the applicants were agitating the issue/claim since very long through the union and representations to that effect were also on record based on which the learned Labour Court came to a conclusion that the claim was not a belated and stale one. (vi) The conversion of the respondents to Time Rated Workers was made purely without their consent which would be evident from the finding portion of the order dated 23.09.2002. Further, similar benefits were extended to all those workers who gave their consent for conversion from piece rated to time rated. (vii) The learned counsel for the employees relied upon the following judgments: - A. JUDGMENTS ON THE POINT OF MAINTAINABILITY 1. AIR 1964 SC 743 (Para – 16,18,19 & 22) 2. (1999) 9 SCC 167 (Para – 3) B. JUDGMENTS ON THE POINT OF LIMITATION 1. (1969) 2 SCC 199 (Para- 3, 5 & 6) 2. (1999) 6 SCC 82 (Para – 5, 6 & 10) 3. (2018) 16 SCC 567 (Para – 31, 34 &35) 16. Points to be considered in this appeal a. Whether the learned Labour Court as well as the learned writ court has correctly appreciated the scope of Section 33(C) (2) of Industrial Disputes Act, 1947 while ultimately allowing the application filed by the employees under Section 33(C) (2) of Industrial Disputes Act, 1947? b. Whether, otherwise also, the claim of the employees was fit to be rejected being stale claims? Findings of this Court 17. After hearing the learned counsels for the parties, this Court finds that neither the principle of law governing the scope of a proceeding under Section 33(C) (2) of the Industrial Disputes Act, 1947 is in dispute, nor there is any dispute on the point that although Limitation Act, 1963 as such does not apply to the proceedings, but at the same time the learned Labour Court cannot entertain stale claims. Findings on Point No. (b) 18. Point No. (b) is being taken up first. If the petition under Section 33(C) (2) of Industrial Disputes Act, 1947 was itself fit to be rejected as stale, there may not be any need to proceed further. This Court finds that the learned Labour Court has specifically considered and dealt with the objection raised by the appellant on this point. After considering the materials on record, the learned Labour Court recorded its findings on this point in Paras- 7, 8 and 9 and rejected the objection of the appellant by citing reasons based on facts. The learned counsel for the appellant has not assailed any of the reasons cited by the learned Labour Court rejecting such plea. 19. This Court finds that before the learned writ court, although the point of stale claim was pleaded in the writ petition, but no such arguments were advanced by the learned counsel for the writ petitioner. Accordingly, the learned writ court has not recorded any finding on the point of stale claim. It is not the case of the learned counsel for the appellant that such point was argued, but was not considered by the learned writ court. Otherwise also, this court is of the considered view that the learned Labour Court has passed a well-reasoned order on the point limitation/stale claim upon appreciating the materials on record which does not call for any interference by this Court in writ jurisdiction as well as in this Letters Patent Appeal. 20. Thus, Point No. (b) is decided in favour of the respondents and against the appellant. Findings on Point No. (a) 21. The findings of the learned Labour Court on this point is in Paras- 20 and 21 of the order which is as under: - “20). In this case, it is admitted position that all the applicants were initially employed as piece rated worker and later on they were converted in time rated and there is a specific provision vide instruction no. 26 dated 23.04.1984 of National Coal Wages Agreement no. III for minimum guarantee benefit. From the record, it also transpires that none of the applicants gave their options for their conversion in to Time Rated Workers. 26 dated 23.04.1984 of National Coal Wages Agreement no. III for minimum guarantee benefit. From the record, it also transpires that none of the applicants gave their options for their conversion in to Time Rated Workers. On perusal exhibit M/I shows that an instruction has been issued by Director (P) & (I.R) for stopping the payment on the basis of protection of wages to those workers who had given prior option for their conversion from piece rated to time rated. In the present case Opposite Party being the management has failed to produce any paper regarding, so called the consent of the applicants for their conversion from piece rated to time rated. The circular/instruction no. 26 dtd. 23.04.1984 of National Coal Wage Agreement-III, has already created an entitlement in favour of the workers for getting pay protection but the applicants have been deprived from the aforesaid benefit by the Opposite Party. (21). Thus, from the aforesaid discussion, I find that applicants are entitled to get computed their money benefits in the light of instruction dated 23.04.1984 of National Coal Wage Agreement-III after giving pay protection. In this case, it is also admitted fact that Opposite Party has not seriously challenged the calculation chart filed by the applicants which has been marked under exhibit W series. However from the perusal of calculation Sheet it appears that claim of the money benefits relates to most of the applicants w.e.f. I.I.1982 while the claim of the applicants is w.e.f. March 1978. Admittedly applicants have raised this matter after passing of a long period and if the claim of the applicants be allowed in toto as per Calculation Sheet of the applicants, the Opposite Party/Management will be put in to heavy financial burden.” 22. The entire dispute revolves around entitlement of the respondents under Implementation Instruction No. 26 dated 23.04.1984. The said instruction is quoted hereinbelow for ready reference: - “JOINT BIPARTITE COMMITTEE FOR THE COAL INDUSTRY COAL INDIA LIMITED 10 NETAJI SUBHAS ROAD CALCUTTA 700 001. No. NCWA III/1.1 No. 26/84)/247 Dated 23rd April 1984. NATIONAL COAL WAGE AGREEMENT-III IMPLEMENTATION INSTRUCTION NO. 26. To: 1. Chairman-MD, ECL, Sanctoria 2. Chairman-MD, BCCL, Dhanbad 3. Chairman-MD, CCL, Ranchi 4. Chairman-MD, WCL, Nagpur 5. Chairman-MD, CMPDIL, Ranchi. 6. Vice President (Admn & Collys) TISCO Jamshedpur 7. General Manager (P&A) IISCO, Burnpur 8. Chairman-MD, SCCL, Kothagudem Collys. Dt. Khamman, A.P. 9. Chairman, DVC, Bhabani Bhawan, Alipore, Calcutta-27. NATIONAL COAL WAGE AGREEMENT-III IMPLEMENTATION INSTRUCTION NO. 26. To: 1. Chairman-MD, ECL, Sanctoria 2. Chairman-MD, BCCL, Dhanbad 3. Chairman-MD, CCL, Ranchi 4. Chairman-MD, WCL, Nagpur 5. Chairman-MD, CMPDIL, Ranchi. 6. Vice President (Admn & Collys) TISCO Jamshedpur 7. General Manager (P&A) IISCO, Burnpur 8. Chairman-MD, SCCL, Kothagudem Collys. Dt. Khamman, A.P. 9. Chairman, DVC, Bhabani Bhawan, Alipore, Calcutta-27. Sub: Fixation benefit to Piece Rated Workers who are doing time rated job. It has been brought to the notice of the members of Standardisation Committee that many piece-rated workers who are working in time-rated job have not been given minimum guaranteed benefit. (Clause 2.8) and fitment in the revised scale of pay (Clause 2.9) as provided in the National Coal Wage Agreement-III. This matter was discussed by the Standardisation Committee at its meetings held on 12th 13th April, 1984 and it was agreed that in all such cases, the management will ensure the minimum guaranteed benefit and fitment in the revised scales of pay as per Clause 2.8 and 2.9 of NCWA III respectively with effect from 1.1.1983, in case it has not already been done. You are requested to take necessary action to implement the above decision. Sd/- (A.V. BRAHMA) MEMBER SECRETARY III J.B.C.C.I.” 23. It is the specific case of the appellant that the Implementation Instruction No. 26 dated 23.04.1984 does not apply to the respondents as the respondents were already converted from Piece Rated Workmen to Time Rated Workmen and they were entitled only to what was payable to Time Rated Workmen and were accordingly paid. It has also been argued that otherwise also, in view of an office order for discontinuation dated 23/29.08.1995, the respondents are not entitled to any claim. 24. On the other hand, the specific case of the respondents is that the benefit which has been ordered to be extended is a pre-existing benefit which has simply been computed in terms of money by the learned Labour Court. 25. 24. On the other hand, the specific case of the respondents is that the benefit which has been ordered to be extended is a pre-existing benefit which has simply been computed in terms of money by the learned Labour Court. 25. In the judgment passed by the Hon’ble Supreme Court reported in (2005) 8 SCC 58 , it has been held that if the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed it would clearly be outside the scope of a proceeding under Section 33(C) (2) of the Act. The Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33(C) (2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof, some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court’s power under Section 33(C) (2) like that of the executing court’s power to interpret the decree for the purpose of its execution. 26. This Court finds that there is a serious dispute regarding applicability of Implementation Instruction No. 26 dated 23.04.1984 on the respondents who have admittedly been converted into Time Rated Workers from Piece Rated Workers and it is not the case of any of the parties that the respondents were Piece Rated Workers and were working as Time Rated Workers. The bone of contention is whether the Piece Rated Workers who have been converted to Time Rate Workers would be treated at par with those Piece Rated Workers who were made to work as Time Rated Workers without any order of conversion. 27. The bone of contention is whether the Piece Rated Workers who have been converted to Time Rate Workers would be treated at par with those Piece Rated Workers who were made to work as Time Rated Workers without any order of conversion. 27. This Court is of the considered view that the applicability of the Implementation Instruction No. 26 dated 23.04.1984 relied upon by the respondents certainly requires adjudication of the inter-se rights and liabilities of the parties and it cannot be said with respect to the respondents, that right arising out of the said circular is a pre-existing right or a right which has already been adjudicated or settled for implementation in a proceeding under Section 33(C) (2) of Industrial Disputes Act, 1947 as an execution proceeding. The benefit sought to be enforced under Section 33(C) (2) of the Act has to be necessarily a pre-existing benefit or one flowing from a pre-existing right. This Court is of the considered view that the claim raised by the respondents on the basis of the said circular requires full-fledged adjudication and cannot be resolved in proceedings under Section 33(C) (2) of the Act. 28. This Court finds that the very basis of the claim or the entitlement of the respondents to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the appellant, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of the proceeding under Section 33(C) (2) of the Act. This Court finds that this aspect of the matter has not been properly considered by the learned writ court while holding that the respondents are entitled to the claim in terms of Implementation Instruction No. 26 dated 23.04.1984 of National Coal Wage Agreement-III and that the learned Labour Court has not adjudicated the claim. 29. The judgments relied upon by the respondents reported in AIR 1964 SC 743 and (1999) 9 SCC 167 do not apply to the facts and circumstances of this case. 30. In the judgment reported in (1999) 9 SCC 167 , the Hon’ble Supreme Court considered the fact that the employer himself had implemented the earlier decision of the Hon’ble Supreme Court and it could not be urged that the employees’ right to receive salary in a particular pay scale should be adjudicated first in the Labour Court. 30. In the judgment reported in (1999) 9 SCC 167 , the Hon’ble Supreme Court considered the fact that the employer himself had implemented the earlier decision of the Hon’ble Supreme Court and it could not be urged that the employees’ right to receive salary in a particular pay scale should be adjudicated first in the Labour Court. In the present case, there is no such corresponding facts and admittedly, there has been no such adjudication and no instance has been pointed out by the learned counsel for the respondents that any person similarly situated as that of the respondents has been granted the benefits as claimed by the respondents on the strength of the said Implementation Instruction No. 26 dated 23.04.1984. 31. In the judgment reported in AIR 1964 SC 743 while considering the scope of proceedings under Section 33 ( C) (2) of Industrial Disputes Act, 1947, in Para-18, it has been held that there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the executing court to interpret the decree for the purpose of execution. It is, of course, true that the executing court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court, but like the executing court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under Section 33(C) (2) of the Act. Therefore, the Hon’ble Supreme Court held that they felt no difficulty in holding that for the purpose of making the necessary determination under Section 33(C) (2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman’s right rests. The aforesaid judgment does not apply to the facts of this case as the very applicability of the Implementation Instruction No. 26 dated 23.04.1984 for the persons like the respondents has been seriously disputed by the appellant. This Court is of the considered view that the same requires full-fledged adjudication. The aforesaid judgment does not apply to the facts of this case as the very applicability of the Implementation Instruction No. 26 dated 23.04.1984 for the persons like the respondents has been seriously disputed by the appellant. This Court is of the considered view that the same requires full-fledged adjudication. This Court refrains from saying any further on the applicability of the said instruction on the respondents as any finding by this Court on the point may prejudice the case of either party, if any such industrial dispute is raised by the respondents. 32. Accordingly, the Point No.(a) is decided in favour of the appellant. 33. As a cumulative effect of the aforesaid findings, the order dated 23rd September, 2002 passed by learned Labour Court in M.J. Case No. 03 of 1998 as well as the judgment and order dated 15.02.2012 passed by the learned writ court in W.P.(L) No. 363 of 2003 dismissing the writ petition are set-aside. 34. Accordingly, this appeal is allowed. 35. However, it is observed that this order will not prejudice the case of either party, if any industrial dispute is raised for adjudication of claim of the respondents.