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2021 DIGILAW 892 (JHR)

Muni Rana v. Central Coalfields Limited

2021-10-21

AMBUJ NATH, SUJIT NARAYAN PRASAD

body2021
JUDGMENT : Sujit Narayan Prasad, J. I.A. No.165 of 2021: 1. This interlocutory application has been filed for condoning the delay of 702 days, which has occurred in preferring this appeal. 2. Heard learned counsel for the appellant. 3. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation. 4. Accordingly, I.A. No.165 of 2021 is allowed and the delay of 702 days in preferring the appeal is condoned. L.P.A. No.94 of 2019: 5. The instant appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 02.02.2017 passed by the learned Single Judge of this Court in W.P.(L) No.1025 of 2008 whereby and whereunder the order dated 27.01.2005 passed by the Labour Court, Hazaribagh in M.J. Case No.5/02, filed under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, 1947), has been quashed and set aside. 6. The brief facts of the lis which is required to be enumerated read as hereunder: The workman was appointed on the post of Helper Category-II on 18.01.1959 as daily rated worker. He was promoted as Operator Grade-I w.e.f. 19.12.1959 and thereafter to the post of Charge-man in the Wage Board Scale of Rs.245-440 w.e.f. 01.03.1973 by the office order dated 20.03.1973. The workman has filed application under Section 33-C (2) of the Act, 1947 claiming therein leave encashment of 180 days. The Labour Court allowed the application and directed the management to release the leave encashment of 180 days treating him to have been appointed or to have come within the monthly cadre between 01.10.1956 to 14.08.1967. The aforesaid order passed by the Labour Court under Section 33-C (2) of the Act, 1947 has been questioned by the management-CCL by filing a writ petition being W.P.(L) No.1025 of 2008 under Article 226 of the Constitution of India wherein the order dated 27.01.2005 passed by the Labour Court, Hazaribagh in M.J. Case No.5/02 has been quashed and set aside, which is the subject matter of the present intracourt appeal. 7. Mr. 7. Mr. Bhaiya Vishwajeet Kumar, learned counsel for the appellant has submitted that there is no dispute in the claim of the workman in view of the fact that his appointment was made on the post of Helper Category-II on 18.01.1959 as daily rated worker but was promoted as Operator Grade-I w.e.f. 19.12.1959, which suggests and clarifies that the workman was promoted as Grade-I w.e.f. 19.12.1959, therefore, he has to be treated under the regular establishment of the erstwhile company and in view thereof, he became entitled for leave encashment and after considering the aforesaid aspect of the matter the Labour Court has passed an order directing the claim to be undisputed, as such, direction upon the respondent management to disburse the amount of leave encashment of 180 days has been passed but the learned Single Judge has not considered the fact about the promotion of the workman as Operator Grade-I w.e.f. 19.12.1959 rather the learned Single Judge has considered the fact about the claim of the writ petitioner of leave encashment admissible from the date when he has been brought under the Wage Board Scale of Rs.245-440 w.e.f. 01.03.1973 by office order dated 20.03.1973, therefore, serious illegality has been committed and hence, the order passed by the learned Single Judge is not sustainable in the eye of law. 8. Per contra, Mr. 8. Per contra, Mr. A. K. Mehta, learned counsel for the respondent-management has submitted by defending the order passed by the learned Single Judge that there is no error since the learned Single Judge has considered the scope of the provision of Section 33-C (2) of the Act, 1947, scope of which is to compute the claim in terms of money if the claim has already been adjudicated but herein the claim of leave encashment is seriously in dispute in view of the fact that the workman was appointed on 18.01.1959 under daily rated capacity and so far as the claim that he has been promoted as Operator Grade-I w.e.f. 19.12.1959 is concerned, no such document has ever been produced before the Labour Court substantiating the fact that the workman was actually promoted on substantive capacity which will further be doubted because the workman when was brought under the Wage Board vide order dated 20.03.1973 he was shown to have been promoted on temporary basis, therefore, the question would be that once the workman has been promoted on substantive capacity as Operator Grade-I w.e.f. 19.12.1959 which is under the same employer how his subsequent promotion will be on temporary basis, therefore, the fact is in dispute which requires adjudication and as such, it is outside the purview of Section 33-C (2) of the Act, 1947. The learned Single Judge after taking into consideration these aspects of the matter is correct in reversing the fact finding on the basis of the factual aspect involved in this case. 9. Mr. Bhaiya Vishwajeet Kumar, learned counsel for the appellant in response to such argument has relied upon the document Exhibit-C and Exhibit-1/A which according to him is the substantive piece of evidence to show that the claim of the workman of the leave encashment for 180 days is not in dispute and taking into consideration such documents along with other documents, the Labour Court has passed an order considering the claim to be simple calculation of the claim in terms of money which is the scope of the provision of Section 33-C (2) of the Act, 1947 and therefore, the interference shown by the learned Single Judge in the order passed by the Labour Court cannot be said to be justified decision. 10. 10. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer the statutory provision as contained under Section 33-C (2) of the Act, 1947 because under the said provision the claim has been filed by the workman for grant of leave encashment for the period of 180 days. Section 33-C (2) of the Act, 1947 is being quoted hereinbelow: “33-C (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.” It is thus evident from the provision of Section 33-C (2) of the Act, 1947 that where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. The Constitution Bench of the Hon'ble Apex Court while dealing with the said provision in Central Bank of India Ltd. vs. P.S. Rajagopalan Etc., (1964) 3 SCR 140 has laid down as under paragraph-16 which reads as hereunder: “16. Let us then revert to the words used in Section 33-C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-section (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? When sub-section (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? According to the appellant, the scope of subsection (2) is similar to that of sub-section (1) and it is pointed out that just as under sub-section (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-section (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-section (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in term of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub-section (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause “Where any workman is entitled to receive from the employer any benefit” does not mean “where such workman is admittedly, or admitted to be, entitled to receive such benefit”. The appellant's construction would necessarily introduce the addition of the words “admittedly, or admitted to be” in that clause, and that clearly is not permissible. The clause “Where any workman is entitled to receive from the employer any benefit” does not mean “where such workman is admittedly, or admitted to be, entitled to receive such benefit”. The appellant's construction would necessarily introduce the addition of the words “admittedly, or admitted to be” in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33-C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2). As Maxwell has observed “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution [Maxwell on Interpretation of Statutes p. 350] ”. We must accordingly hold that Section 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under subsection (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-section (2). Incidentally, it may be relevant to add that it would be somewhat odd that under subsection (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-section (2). On the other hand, sub-section 3 becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-section (2).” It is thus evident from going through the proposition laid down under paragraph-16 of the said judgment that in order to decide what would be its true scope and effect on a fair and reasonable construction by going through the words used in Section 33-C (2) of the Act, 1947. When sub-section (2) refers to any workman entitled to receive from the employer any benefit there specified, specifically mean that he must be a workman whose right to receive the said benefit is not disputed by the employer. It is further evident that if the claim of the workman is not in dispute certainly the claim will be computed in terms of money in exercise of power conferred under Section 33-C (2) of the Act, 1947 by the appropriate forum but if the claim is disputed then it requires adjudication and as such, it will go outside the purview of the provision of Section 33-C (2) of the Act, 1947. Thus, the Hon'ble Apex Court while laying down the proposition in the aforesaid judgment has laid down that even if there is no adjudication of the dispute but the claim is being admitted, the appropriate direction can well be passed in exercise of power conferred under Section 33-C (2) of the Act, 1947. 11. We have proceeded to examine the order passed by the Labour Court as to whether the Labour Court has transgressed its jurisdiction in exercising the power conferred under Section 33-C (2) or not? 11. We have proceeded to examine the order passed by the Labour Court as to whether the Labour Court has transgressed its jurisdiction in exercising the power conferred under Section 33-C (2) or not? The order of the Labour Court will be treated to be transgressing the jurisdiction if in the given facts of the case the claim of the workman about the leave encashment for the period of 180 days is not in dispute but if the claim is in dispute then certainly it will be said that the Labour Court has exceeded its jurisdiction in exercising the power conferred under Section 33-C (2) of the Act, 1947. 12. The admitted fact in the given case is that the husband of the appellant claims to have been appointed on daily rated worker on 18.01.1959 and promoted as Operator Grade-I w.e.f. 19.12.1959. Thus, the workman claims entitlement on the basis of the promotion which has been granted in his favour as Operator Grade-I w.e.f. 19.12.1959 while on the other hand the management has disputed the aforesaid promotion said to have granted as Operator Grade-I w.e.f. 19.12.1959 rather the case of the management is that the workman, for the first time, has been brought under the Wage Board Scale vide order dated 20.03.1973, therefore, Exhibit-C or Exhibit-1/A will not be applicable in the facts of the case basis upon which the Labour Court has passed the order allowing the application filed under Section 33-C (2) of the Act, 1947 and directing the management to disburse the said amount within the stipulated period. 13. This Court, has called for the original records as would be evident from the order dated 03.09.2021. We have perused the original records, more particularly, relevant documents upon which reliance has been placed, i.e., Exhibit A, which is dated 19.10.2001 pertaining to earned leave encashment, gratuity and other dues of Sri R. S. Rana. It is evident therefrom that the husband of the appellant is shown to have been appointed on 18.01.1959 as Helper Category-II subsequently promoted as Operator Grade-I on 19.12.1959. It further appears that he was temporarily promoted to the post of Charge-man in Wage Board Scale of Rs.245-440. 14. It is evident therefrom that the husband of the appellant is shown to have been appointed on 18.01.1959 as Helper Category-II subsequently promoted as Operator Grade-I on 19.12.1959. It further appears that he was temporarily promoted to the post of Charge-man in Wage Board Scale of Rs.245-440. 14. Learned counsel for the appellant has heavily relied upon Exhibit-A, more particularly, contents thereof, to the effect that the workman was promoted to the post of Operator Grade-I w.e.f. 19.12.1959 but the said promotion was under the regular establishment or not, the said exhibit does not stipulate rather the admitted fact which can be gathered from the said document is that, the workman, for the first time was brought under the Wage Board Scale of Rs.245-440 vide order dated 20.03.1973 which was given w.e.f. 01.03.1973, i.e., before the nationalization of the coal companies, and therefore, the workman cannot derive any benefit from Exhibit-A because the provision of Section 33-C (2) can well be applied in a clear cut case, i.e., having no dispute to the claim but herein the fact about the promotion to the post of Operator Grade-I w.e.f. 19.12.1959 was under the regular establishment of the erstwhile company or not, is lacking rather the fact which is very much clear is that he was brought under the Wage Board Scale of Rs.245-440 vide order dated 20.03.1973 and therefore, there is dispute which requires adjudication/determination. 15. The other document, i.e., Implementation Instruction No.23 dated 13.08.1990 pertains to encashment of leave at the time of superannuation or retirement of Ex. NCDC employees who are governed by the Corporation Rules and who opted for Wage Board scales of pay and are continuing in NCWA scales. It requires to refer that the workman was in the services of Ex. NCDC and on nationalization of the coal companies, the services have been taken over by the Central Coalfields Limited. It further appears from the Implementation Instruction No.23 that the decision has been taken with respect to the workmen who were appointed or came over to monthly cadre between 01.10.1956 and 14.08.1967. The word “cadre” denotes that the employees who have come under a specific cadre and having specific pay-scale in the Wage Board. It further appears from the Implementation Instruction No.23 that the decision has been taken with respect to the workmen who were appointed or came over to monthly cadre between 01.10.1956 and 14.08.1967. The word “cadre” denotes that the employees who have come under a specific cadre and having specific pay-scale in the Wage Board. Herein, although the workman is claiming to be promoted as Operator Grade-I on 19.12.1959, he will be treated to come under the monthly cadre between 01.10.1956 and 14.08.1967 and therefore, the claim of leave encashment for the period of 180 days cannot be disputed but we are not in agreement with such submission because the said case would have been admitted if the workman would have got the Wage Board in between 01.10.1956 and 14.08.1967. So far as the claim of the workman that his promotion granted as Operator Grade-I as on 19.12.1959 will be treated under the monthly cadre but it cannot be treated like that unless adjudicated by the appropriate forum since the appellant has failed to bring any document substantiating the claim that the order of promotion dated 19.12.1959 as Operator Grade-I is under the Wage Board or in the monthly cadre, therefore, in anticipation of presumption there cannot be any direction in exercise of power conferred under Section 33-C (2) of the Act, 1947 as per its scope dealt with by the Constitution Bench of the Hon’ble Apex Court in Central Bank of India Ltd. vs. P.S. Rajagopalan Etc. (supra). Exhibit-C and 1/A are also not in support of the claim of the workman since the said document has been issued for some other purposes, therefore, according to our considered view, the claim of the workman about the disbursement of leave encashment for the period of 180 days cannot be treated to be without any dispute requiring the Labour Court to exercise power conferred under Section 33-C (2) of the Act, 1947. 16. We, after having discussed the legal position as also the factual aspect, have gone across the order passed by the learned Single Judge and has found therefrom that the learned Single Judge has come to the finding about the claim being in dispute and therefore, reversed the order passed by the Labour Court. 17. 16. We, after having discussed the legal position as also the factual aspect, have gone across the order passed by the learned Single Judge and has found therefrom that the learned Single Judge has come to the finding about the claim being in dispute and therefore, reversed the order passed by the Labour Court. 17. We, on the basis of the discussion made hereinabove and taking into consideration the scope of Section 33-C (2) of the Act, 1947, are of the view that the order passed by the learned Single Judge requires no interference for the reason that the learned Single Judge has reached to such conclusion that without any adjudication of the right of the workman concerned about allowing the claim of leave encashment for the period of 180 days treating him to have been appointed or to have come under the monthly cadre between 01.10.1956 and 14.08.1967 has been held to be transgressing the jurisdiction conferred under Section 33-C (2) of the Act, 1947, has rightly held so in view of the discussion made herein and the proposition laid down by the Constitution Bench of the Hon’ble Apex Court in Central Bank of India Ltd. vs. P.S. Rajagopalan Etc. (supra) and subsequent judgment rendered in State of U.P. and another vs. Brijpal Singh, (2005) 8 SCC 58 . Accordingly, the instant appeal fails and stands dismissed.