National Aviation Company of India Limited v. Union of India and Raj Kumar

Industrial Adjudicator could have examined and gone into the question whether the agreement dated sth May, 1996 was applicable to the respondents in proceedings under section 33c(2) of the Act. secondly, whether clause 2 of the letter of engagementhasbeenwrong|yinterpretedandwhetherthe respondents are entitled to pay scale mentioned in the letter of engagement or the agreement dated sth May, 1996'

9. Section 33-C(2) of the Act reads as under:- "(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in W.P. (C) Nos, 1 1 385/2009' 1 1 389/2009, 1 1 390/2009, 1 1 391/2009' 1 1 397/2009, 114o2t2oog & '|1404t2009 Page 1 1 of 23 I.n v[5] t \1 I 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 within a period not exceeding three months: Provided that where the Presiding officer of a Labour Court considers it necessary or expedient so to do, he may' for reasons to be recorded in writing' extend such period by such further period as he may think fit."

10. The aforesaid section had come up for consideration before the Supreme Court in East lndia Coal Company Limited yersus Rameshwar and others, AIR 1968 SC 218' ln the said case, the aforesaid provision was interpreted and the following propositions on the scope of the said section as discernible were elucidated:- "(1) The legislative history indicates that the legisiature, after providing broadly for the invest.rgationandsett|ementofdisputeson tlre baiis of collective bargaining' recognised the need of individual workmen of a speedy remedytoenforcetheirexistingindividual rightsandthereforeinsertedSection33-Ain 1950 and Section 33-C in 1956' These two sectionsil|ustratecasesinwhichindividua| workmen can enforce their rights without having to take recourse to Section 10(1) and withouthavingtodependontheirunionto espouse their case' W.P' (C) Nos, 11385/2009' 11389/2009, 11390/2009. 11391/2009, 113g7t2oog,114o2!2oog&1.|4o4l2oo[9] Page'|2of23 rt *r '' ll t t -- t.. (2) In view of this history two considerations are relevant while construing the scope of Section 33-C. Where industrial disputes arise between workmen acting collectively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance under Section 10(1). But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen' Therefore though in determining the scope of Section 33-C care should be taken not to exc|udecaseswhich|egitimatelyfatlwithinits purview, cases which fall, for instance under Section 10(1), cannot be brought under Section 33-C; (3) Section 33-C which is in terms similai to those in section 20 0f the Industrial Disputes (Appellate Tribunal) Act 1950 is a provision in the nature of an executing provision; (4) Section 33-C(1) applies to cases where money is due to a workman under an award or seitlement or under Chapter VA of theActalreadycalcu|atedandascertained and therefore there is no dispute about its computation. But sub-section 2 applies both to non-monetarY as well as monetary benefits.|nthecaseofmonetarybenefitit applies where such benefit though due is not calculated and there is a dispute about its calculation; (5) Section 33-C(2) takes within its purview cases of workmen who claim that the benefittowhichtheyareentitledshouldbe computed in terms of money even though the w.p. (c) Nos. 1 1 385/2009, 1 1 389/2009, 1.t 390/2009, 1 1 391/2009, 1 1 397/2009, 114o22oog & 114o412oo[9] Page 1 3 of 23 '.\..) 1/\ ! right to the benefit on which their claim is based is disputed by their employers. lt is open to the Labour Court to interpret the award or settlement on which the workmen's right rests. (6) The fact that the words of limitation used in Section 2O(2) of the Industrial Disputes (Appellate Tribunal) Act 1950 are oritt"d in Section 33-C(2) shows that the scope of Section 33-C(2) is wider than that of Section 33-C(1). Therefore, whereas subsection 1 is confined to claims arising under an award or settlement or Chapter VA, claims which can be entertained under sub-section are not so confined to those under an award' settlement or ChaPter VA. (7) Though the court did not indicate which cases other than those under subsection 1 would fall under sub-section 2, it pointed out illustrative cases which would not ialt under sub-section 2 viz. cases which would appropriately be adjudicated under Section iOtt j or claims which have already been the 'subject-matter of settlement to which Sections 1B and 19 would apply' (8) Since 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 a workman is in such cases in the position of an executing court' the Labour Gourt like the executing court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33-C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction'" \ \-'.L w.P. (c) Nos. 1 1 385/2009, 1 1 389/2009, 1 ',1390/2009, 1 1 391/2009, 11397 t2OOg, 114O2t2OOg & 1140412009 e

11. Proposition 3 mentioned above clearly states that the aforesaid section is in the nature of execution provision' Proposition 4 states that is applies to both the monetary as well as the non-monetary benefits and covers cases where there is a dispute about their calculation. Proposition 5 states that the section takes within its purview a claim by a workman that the benefits to which they are entitled to should be computed in terms of money, even though the right to the benefits on which their claim is based is disputed. lt further states that it is open to the lndustrial Adjudicator to interpret the award or settlement on which the workmen's claim vests. proposition B, however, clarifies that the proceedings under the said section are analogous to execution proceedings and this determines the jurisdiction and exercise thereof by the Industrial Adjudicator'

12. The scope and jurisdiction of an Industrial Adjudicator underSection33-C(2)WaSconsideredbytheSupremeCourtin the case of Puniab Beverages (P) Ltd' v' Suresh Chand' (1978) 2 SCC 144 wherein it was held that the right to money which is sought to be calculated or the benefit which is sought to becomputedmustbeanexistingone,arightwhichis alreadyacljudicateduponorprovidedforandmustariseinthe course of employment of the workman. The words "adjudicated W.t,'(c)Nos.1.1385/2009,.11389/2009,11390/2009'11391/2009,1139712009,11402t20og&114o4l2oo9Page15of23 t "i L I '$r '7/1 upon" or "prgvided for" are important and have to be examined in the present case. The said aspect and these words were examined by the Supreme Court in Municipal Corporation of Delhi yersus Ganesh Razak, (1995) 1 SCC 235. The said decision is relevant as it peftains to claims which were made by daily rated/casual workers, who had pleaded that they were entitled to wages at the same rates as regular workers' The Supreme Court examined the said aspect whether such a claim could be adjudicated and decided in proceedings under Section 33-C(2) of the Act and held as under:- "12. The High Court has referred to Someofthesedecisionsbutmissedthetrue import thereof' The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no ear|ieradjudicationorrecognitionthereofby the emfloyer, the dispute relating to entitlement is not incidental to the benefit claimedandis,therefore,clearlyoutsidethe 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. lt is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementationorenforcementthereofSome ambiguity requires interpretation that the interfretation is treated as incidental to the Labour Court's power under Section 33-C(2) w.p. (c) Nos. 1.1385/2009, 11389/2009, 11390/2009, 11391/2009' 113s7t2}Og,114OZ2OO}&1140412009 Page',l[6] of23 Jlike that of the Executing Court's power to interpret the decree for the purpose of its execution.

13. ln these matters, the claim of the respondent-workmen who were all dailyrated/casual workeis, 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 realh. 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 adludication of their dispute resulting in acteptance 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 *iit petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the behefit 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. lt must, therefore, be held if'at tt'te 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'" I W.p. (C) Nos. 11385/2009, 11389/2009, 11390/2009, 11391/2009' ttSS|Z/ZOOS, 114O2l2OOs &114O4!2Oos \

13. The supreme court in sfafe Bank of lndia versus Ram Chandra Dubey, (2001) 7 SCC 73 examined several decisions and summed up the law dealing with jurisdiction under section 33-C(2) as under:- "8. The principles enunciated in the decisions referred by either side can be summed uP as follows: Whenever a workman is entitled to receive from his employer any money or any benefitwhichiscapab|eofbeingcomputedin termsofmoneyandwhichheisentit|edto receive from his employer and is denied of such benefit can approach Labour Court underSection33-c(2)oftheAct.Thebenefit sought to be enforced under Section 33-C(2) oftheActisnecessarilyapre-existingbenefit or one flowing from a pre-existing right' The difference between a pre-existing right or benefitononehandandtherightorbenefit, whichisconsideredjustandfairontheother hand is vital. The former falls within jurisdictionofLabourCourtexercisingpowers under Section 33-C(2) of the Act while the latterdoesnot.|tcannotbespe|toutfromthe award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confinedonlytothereinstatementwithout stating anything more as to the back wages' uenc[6] tnit refef must be deemed to have been denied, for what is claimed but not grantednecessaritygetsdenied.injudicialor quasi-judicial proceeding' Further when a questibn arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into,aretobeconsideredinajudicious manner. Therefore, the appropriate forum W.P. (c) Nos. 1 1 385/2009, 1.[1] 389/2009, 1 1390/2009, 1 1 391/2009, 1 1 397/2009, 114o2t2oog & 1140412009 Page 1 8 of 23 I + wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merelY upon reinstatement, a workman would be entitled, underthetermsofaward,toallhisarrearsof pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back Wagesatallandtowhatextent.Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is impliedinthere|iefofreinstatementorthat theawardofreinstatementitselfconferred right for claim of back wages'"

14. TheaforesaiddecisionsWerereferredtobytheSupreme court in sfafe of u.P. and Another versus Briipal singh, (2005) s scc 58 and it was held that under section 33-C(2) of the Act, the Industrial Adjudicator cannot entertain a claim made by a workman which is not based upon an existing right but which can be appropriately made a subject matter of an industrial dispute in a reference under Section 10 of the'Act and undetermined claim or until such claim is adjudicated, cannot be made subject matter of execution under section 33-C of the Act'

15. ln lJnion of India & Another versus Kankuben (Dead) by LRs & others, AIR 2006 sc 7 784 the aforesaid principles have been reiterated. W.P.(c)Nos.11385/2009'11389/2009,11390/2009,1139112009,11397t200g,1140?J2oog&11404t2009 Page19of23

16. ln the light of the aforesaid enunciation, it has to be examined whether in the facts of the present case the lndustrial Adjudicator had jurisdiction to pass the impugned order in exercise of power under Section 33-C(2) or he has exceeded his jurisdiction when it wa's held that the principle of equal pay for equal work was applicable and therefore the agreement dated 5th May, l 996 is applicable to the respondent workmen, even though they were casual or temporary workers appointed for fixed duration and on emoluments as stipulated in the engagement letters.

17. The aforesaid reasoning mentioned in the impugned orders and the contention of the respondents has to be rejected in view of the decision of the Supreme Court in Ganesh Razak (supra). The issue raised in the said case was identical to the issue raised in the present case. In Ganesh Razak's case the casual workers had pleaded in the proceedings under Section 33C(2) of the Act that they were entitled to same wages as regular workers on the principle. of equal pay for equal work. lt was held that this required an earlier adjudication of the said dispute and was not a claim to enforce a pre-existing right and computation thereof. Thus this substantive issue or dispute could not have been decided in proceedings under Section 33- W.p. (C) Nos. I 1 385/2009, 1 1 389/2009, 1 1 390/2009, 1 1 391/2009, 1 1 397/2009, 11412l2o1g & 11404120os a ar' C(2) of the Act. The matter and contention raised did not pertain to the "execution" of the letter of engagement or its interpretation alone, but whether on application of the principle of "equal pay for equal work", the basic pay mentioned in the letter of engagement should be ignored and substituted by the pay scales in the agreement dated sth May, 1996 between the petitioner and the Air lndia Employees Guild. This was a substantive dispute that required prior adjudication.

18. Faced with the above difficulty, learned counsel for the respondents has heavily relied upon clause 2 of the engagement letter, which has been quoted above. lt is submitted that the "settlement with the union" refers to the agreement dated 5th May, 1996 between the petitioner and the Air lndia Employees Guild. The contention is not correct. clause 2 0f the aforesaid letter does not specifically refer to any particular settlement and does not mention date of the agreement. Photocopy of the letter placed on record shows that it is printed format in which the name of the respondent, dates or the period of temporary employment and the basic pay was filled up by hand. ln most cases the letter of engagements relied upon by the respondents are after 5th May, 1996. The basis pay mentioned in the letter of engagement is Rs.11B5/-, whereas in the agreement dated 5th w.p. (c) Nos. 11385/2009, 11389/2009, 11390/2009, 11391/2009, 11397!2oog,114o2l2oo9&1140412009 Page21 ol23 I 9> I May, 1996 the applicable pay scale in respect of the existing Grade-lll employees (i.e. drivers) was Rs.31 40-4480' Thus, clearly the basic pay mentioned in the letter of engagements issued in 1997 was not in accord with and as per the pay scale stipulated for drivers in the agreement dated sth May, 1996' I have reproduced above the findings in Writ Petition (Civil) No' 132611997 as to the nature of employment and the terms of engagement. lt may also be appropriate to reproduce the crossexamination of Raj Kumar, the second respondent in writ Petition (civil) No. 11391 l2OOg in which he has stated as under:- ".....11 is correct agreement dated 5'5'96 WaSbetweenM/s.Air|ndiaandAirlndia Employees Guild' lt is correct that l am not a memberofAirlndiaGuild.|tisa|socorrect that only permanent workers are members of Air India' Employees Guild' Rules and RegulationsofAirIndiaareapp|icab|eto permanent as well as temporary employees' It is correct to suggest that the rules and regulation are not applicable to temporary employees. Vol. that rules and regulations aboutdutiesWereuniformallyapp|icablea|l employees permanent or temporary' There is 'no agreement between us and the management respondent' The agreement dated 5.5.96 was between management and Air|ndiaEmp|oyeesUnion.|tiscorrectthat thebenefitsofagreementdated[5].5.96Were given to the permanent workers and not to the temPorary ones' ' ' "" lg.Therealandcoreissuewaswhatwasagreeduponor W.P'(C)Nos.11385/2009'11389/2009,11390/2009,1139.1/2009,11397/2oo[9],114o2l2oog&.|14o4l2oo9Page22of23 A /f - -'l: 3q provided for in the engagement letter. As noticed above, clause 2 of the letter of engagement does not refer to any agreement of a specific date. lt clearly stipulates the basic pay scale or wages payable. The basic pay scale mentioned in the letter does not correspond to the pay scale which was stipulated and was app|icable to Grade-||| workers, i.e', drivers with effect from 1.t January, 1gg[2]. The agreement dated sth May' 1996 and a reading of clause 2 of the letter of engagement it is apparent that the basic pay scales mentioned in the agreement are not payable to the respondents. The pay/salary fixed was clearly andspecifica||ystipu|atedintheletterofengagement.There was no doubt or ambiguity about the amount payable' 20.lnviewoftheaforesaiddiscussion,thewritpetitionsare allowed and the impugned orders passed by the Industrial Adjudicator are set aside and quashed' In the facts anc circumstances of the present cases, there will be no order as to costs. / - tL SANJM KHANNA, J.' oGTOBER 12,2011 VKR - Ptut, o'6\1?h'4r^ Au&'* +*a@n'de W'P.(C)Nos.11385/2009,11389/2009,11390/2009.11391/2009,11397t2oog,114oz2oog&11404/2009Page23of23