Full Text
CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO. 140 OF 2011
IN
WRIT PETITION NO. 1828 OF 2010
IN
LETTERS PATENT APPEAL NO. 140 OF 2011
IN
WRIT PETITION NO. 1828 OF 2010
M/s. Permanent Magnets Limited ...Appellant
Mr. Mahendra Agvekar a/w Shraddha Chavan i/b. Rajesh Gehnai for Respondent.
ORAL JUDGMENT
1. This Letters Patent Appeal is filed by the Appellant being aggrieved by the Judgment and order dated 19th July 2010 (hereinafter referred to as ‘the impugned order’) passed by the learned Single Judge in Writ Petition No. 1828 of 2010 dismissing the Petition filed by the Appellant/Petitioner, thereby upholding the order passed by the Labour Court dated 1st August 2009 which held that the respondent/workman was entitled to the benefit of his wages in adjudicating proceedings under Section 33C(2) of the Industrial Dispute Act, 1947.
2. Briefly the facts are as follows:i. The Appellant (Org. Petitioner), being the employer, is inter-alia engaged in the manufacture and marketing of industrial magnets. On 20th May 1987, the Respondent joined the employment of the Appellant/Petitioner-Company as a helper in its canteen. There were separate canteens for Supervisors, Executive and Managerial Staff (‘known as managerial canteen’) as well as for visitors (known as ‘Workers’ Canteen’). A separate set of workmen were engaged for these two separate canteens. The service conditions of the workmen working in the managerial canteen were different as they were considered from the beginning, at par with workers working on the shop floor. The employees working in the managerial canteen were paid wages applicable as per the settlements between Union/Kamgar Utkarsh Sabha and the Appellant. However, the workers working in the worker’s canteen were paid as per minimum wages. ii. The Appellant’s contention is that since the Respondent-workman had remained absent from work without intimation, a notice dated 28th December 1995 was served on him, whereby he was called upon to submit a written explanation of his absence from duties. However, the Respondent-workman did not respond to the aforesaid notice and continued to remain absent from duties. The services of the Respondent-workman were therefore terminated on the said date. iii. On 4th April 1996, the Respondent-workman filed Complaint (ULP) NO. 181 of 1996 under Item 1 of Schedule IV to the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971(MRTU & PULP Act) alleging that his services were illegally terminated. iv. On 11th July 1996, an order was passed by the Labour Court directing the Appellant to allow the Respondent-workman to resume duties within three weeks or pay 70% of the last drawn wages from the date of the order during the pendency of the complaint. Thereafter, the Appellant filed a Revision Application No. 94 of 1996 challenging the order dated 11th July 1996 which was rejected. The Appellant did not allow the Respondent-workman to resume his duties, however opted to pay 70% of the wages. On 1st December 1998, the Labour Court held that since the Appellant had a statutory canteen, therefore, there existed an employer-employee relation between the Appellant and the canteen workers, which covered both the canteens. This order of 1st December 1998 has not been challenged by the Appellant and has thus attained finality. On 21st January 1999, the Labour Court passed final order in Complaint (ULP) No. 181 of 1996 holding that the termination of the Respondent-workman was illegal and granted Rs. 75,000/- to the Respondent-workman in lieu of reinstatement. v. In the year 1999, the Respondent-workman challenged the order of denial of reinstatement by filing Revision Application No.31 of 1999. On such proceedings on 11th October 1999, the Industrial Court passed an order directing that the Respondent-workman be reinstated with full backwages and continuity in service. vi. As noted hereinabove, by virtue of the orders passed by the Labour Court dated 1st December 1998, the canteen of the Appellant/Petitioner Company was considered as a statutory canteen and the workers therein were considered permanent employees, however, the workers working in the worker’s canteen were paid minimum wages, on the ground that none of the workers working in the worker’s canteen were covered under the settlement signed between the Appellant and the Union of the regular permanent workers working in the manufacturing process/ factory. The Respondent-workman was re-instated and was allowed to resume duty and he was paid arrears of wages as per other canteen workers of the Appellant/Petitioner Company. vii. The Appellant filed Writ Petition No. 2743 of 1999 challenging the order dated 11th October 1999 passed in Revision Application No. 31 of 1999 and the same was dismissed. viii. On 15th December 1999, the Respondent- workman reported for work but was not allowed to do so and was handed over a letter dated 7th December 1999 stating that the Respondent-workman was treated as an employee but was not required to report for work. ix. On 29th September 2000, the Respondent- workman filed Complaint (ULP) No. 411 of 2000 under Item 9 of Schedule IV of MRTU & PULP Act before the Industrial Court claiming that since he was being paid as per Minimum Wages Act, 1948 and not as per the agreement/settlement, he should be paid at par with other workers working in the managerial canteen. x. On 29th March 2003, the Industrial Court passed an order allowing the Respondent-workman’s complaint (ULP) No. 411 of 2000 and directing the Appellant/Petitioner Company to give work to the Respondent-workman and pay him salary and wages as applicable to the permanent employees, i.e., as per workers working in the managerial canteen. As the said order again was not complied, the respondent-workman in Complaint (ULP) No. 411 of 2000 filed an application under Section 33C(2) of the Industrial Disputes Act, 1947 (‘ID Act’) being Application (IDA) No. 74 of 2004. In the written statement filed by the Appellant, it was inter alia contended that the wages payable to the permanent employees are paid according to the various categories and occupation existing in the managerial canteen of the Appellant. The Respondent-workman was accordingly paid at par with the other employees working in the worker’s canteen, who were similarly treated as permanent employees of the Appellant/Petitioner Company. xi. While such proceedings as initiated by the respondent-workman were pending, being aggrieved by the order dated 29th March 2003 passed in ULP NO. 411 of 2000, the Appellant filed Writ Petition No. 2223 of 2003 challenging the aforesaid order. The said Writ Petition came to be rejected by order dated 25th November 2003 passed by this Court. On 6th January 2004, the Respondentworkman addressed a legal notice to the Appellant to comply with the order dated 29th March 2003, however the Appellant/Petitioner Company failed to do so. xii. On 1st August 2009, the Application (IDA) No. 74 of 2004 was decided by the Labour Court and the Appellant/Petitioner Company was directed to pay an amount of Rs. 6,08,340/- to the Respondent-workman against the difference in wages and an amount of Rs. 50,675/- against bonus with interest @ 12% p.a. since 20th May 1987. xiii. The said order was challenged by the Appellant in Writ Petition No. 7533 of 2009. In the said Petition, the Appellant raised an objection that the issue of maintainability of application filed under Section 33(C)(2) of the ID Act was not decided. This Court, by an order dated 19th November 2009, remanded the matter back by consent of the parties to the concerned Labour Court, Mumbai only on the point of maintainability of the application filed under Section 33(C)(2) of the ID Act since the issue was not dealt with by the Presiding Officer by his order dated 1st August 2009. xiv. On 5th January, 2010, the Labour Court by an order of the even date, held that the application filed under Section 33(C)(2) of the ID Act was maintainable and further reiterated that the Respondent-workman was entitled to recover the amount of Rs. 6,08,340/- and Rs. 50,675/- against bonus with interest at 12% p.a. since 20th May 1987. xv. Being aggrieved by the order passed by the Labour Court dated 5th 2010, the Appellant challenged the aforesaid order by filing Writ Petition NO. 1828 of 2010 before this Court. On 19th July 2010, the learned Single Judge of this Court by the impugned order, rejected the said Petition holding that the Labour Court had not committed any mistake while awarding payment of difference in minimum wages payable and wages paid. The learned Single Judge further held that the provisions of Section 33(C)(2) of the ID Act were not violated and therefore upheld the order of the Labour Court. This impugned order is the subject matter of challenge in the present Letters Patent Appeal. A review application was filed against the impugned order and the same came to be rejected by way of an order dated 14th October 2010 as no case was made out for reviewing the aforesaid order and there was no error apparent on the face of the record.
3. It is in the backdrop of the long and chequered litigious history in the present matter, we are faced with the challenge to the order passed by the learned Single Judge.
4. We have heard Ms. Purav, learned Counsel for the Appellant/Petitioner Company and Mr. Agvekar, learned Counsel for the Respondent-workman. We have also perused the papers and the impugned order passed by the learned Single Judge.
5. Ms. Purav learned Counsel for the Appellant/Petitioner Company contends that the impugned order deserves to be quashed and set aside inasmuch as the learned Single Judge has failed to consider the purport of the provisions of Section 33(C)(2) of the ID Act. It is her submission that the provisions under Section 33(C)(2) of the ID Act are in the nature of execution proceedings where the claims are either admitted claims or already adjudicated claims. It is her contention that in the present matter, the Respondent-workman is claiming the benefits of settlement arrived between the workers of the factory and the management. She therefore contends that the said settlement was not applicable to the Respondent-workman and hence, he was not entitled to receive the same. The Appellant had disputed the entitlement and eligibility of the Respondent-workman to get benefits of those settlement. The entitlement of the Respondent-workman to the said benefit was neither adjudicated before any forum nor were there any pleadings to that effect in the application filed by the Respondent-workman.
6. Ms. Purav further submitted that when there are disputed questions of facts, unless the said disputed questions were adjudicated under Section 10 of the ID Act the Respondent-workman was not entitled to file any complaint under Section 33(C)(2) of the ID Act which were in the nature of execution proceedings. She therefore submitted that it was beyond the scope, power and jurisdiction of the Labour Court to entertain and decide the issue under Section 33(C)(2) of the ID Act and grant relief to the Respondent-workman. She further submitted that under Section 33(C)(2), only those claims which are adjudicated or due under settlement or award can be granted as these are more in the nature of execution proceedings. Therefore, it is her contention that in the present matter, it is a disputed position whether the provisions of settlement were applicable to the Respondent-workman and hence, the Labour Court has acted in excess of its jurisdiction in granting such disputed claims. She therefore contended that the learned Single Judge had failed to appreciate that infact, the Respondent-workman was granted benefit of settlement which was not applicable to him and had erroneously held that the Respondent-workman in his application under Section 33(C)(2) of the ID Act had claimed only the difference in minimum wages, and that such difference can be granted under the aforesaid provisions.
7. On the other hand, learned Counsel for the Respondent-workman contended that the impugned order passed by the learned Single Judge was a wellreasoned order and passed on an appreciation of the correct facts and the legal position. It is, in fact, his contention that this Court by order dated 19th November 2009 had remanded the matter back to the Labour Court only for the limited purposes of deciding the maintainability of the application filed under Section 33(C)(2) of the ID Act. It is his contention that the dues ascertained amounting to Rs. 6,08,340/- and Rs. 50,675/- against the bonus with interest @12% p.a. since 20th May 1987 had become final since Writ Petition No. 7533 of 2009 filed by the Appellant/Petitioner Company challenging the order dated 1st August 2009 had been disposed of by this Court by order dated 19th November 2009. He has further contended that the aforesaid order dated 19th November 2009 specifically remanded the matter back to the Labour Court by consent of the parties only to decide the issue of the maintainability of the application filed under Section 33(C) (2) of the ID Act. The Labour Court therefore rightly by its order dated 5th 2010 held that the Respondent-workman was entitled to recover the amount and the said order was upheld by the learned Single Judge, which according to him was the correct view as taken by the learned Single Judge. Analysis
8. After hearing the contentions as canvassed by both parties, we are of the view that to decide the issue in the present proceedings, it would be beneficial to reproduce the provisions of Section 33(C) of the ID Act inasmuch as the entire controversy hinges on the aforesaid provisions. Section 33(C) of the ID Act is as under:- “33C. Recovery of money due from an employer.—(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of 6 [Chapter VA or Chapter VB], the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (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; [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.] (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. [Explanation.—In this section “Labour Court” includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.]”
9. On a plain reading of the aforesaid Section, it is clear that the said section primarily deals with the recovery of money which is due to a workman from an employer under a settlement or an award. Further, the provisions of section also apply in respect of any money which workman is entitled to receive from employer under the provisions of Section 6 (Chapter VA or Chapter VB) and which is capable of being computed in terms of money. Further, 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 rule that may be made under the ID Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. The procedure for making such a determination has also been envisaged in the aforesaid section.
10. The thrust of the argument of the learned Counsel for the Appellant is primarily that since the provisions of Section 33(C)(2) of the ID Act are in the nature of execution proceedings, first these claims need to be adjudicated and the same according to the Appellant has not been appropriately adjudicated in the facts of the present case. It is therefore her contention that the learned Single Judge has failed to consider this crucial aspect and wrongly upheld the order of the Labour Court dated 5th January 2010. This, in our view, is an incorrect proposition sought to be canvassed on behalf of the Appellant, inasmuch as the adjudication of the claim of the Respondent-workman has been made and further the Labour Court was specifically directed to decide the maintainability of the application filed under Section 33(C)(2) of the ID Act by order dated 19th November 2009 passed by this Court.
11. The order dated 19th November 2009 passed by this Court categorically held that though the issue of maintainability of application under Section 33(C)(2) of the ID Act, was a matter of challenge before the Labour Court in the earlier proceedings, the same was not dealt with by the then Presiding Officer. Hence by consent of the parties, the matter was remanded back to the concerned Labour Court only on the point of maintainability of application under Section 33(C)(2) of the ID Act. Therefore, the Labour Court on such remand was only called upon to decide the maintainability of the application under Section 33(C)(2) of the ID Act. Further, the issue regarding the adjudication or the entitlement of claim made by the Respondent-workman has been adjudicated by the Labour Court by its order dated 1st August 2009, wherein on the basis of the evidence led by the parties, the Labour Court had come to a conclusion that the Respondent-workman was to be paid an amount of Rs. 6,08,340/- against the difference and wages since the year 1998 till 2003 and the amount of Rs. 50,675/- against bonus for the above period with interest @ 12% p.a. since 20th May 1987 when the Respondentworkman was made permanent workman till actual payment of the same to the Respondent-workman within 30 days from passing of the said order.
12. Further, the Labour Court by earlier order dated 1st December 1998 had held that there is an employer-employee relationship between the Appellant/Petitioner Company and the Respondent-workman, and the said order has not been challenged by the Appellant/Petitioner Company. Once this is the case, then, it is our view that the Respondent-workman has to be treated to be at par with the other permanent workers and the Respondent -workman has rightly claimed the amount of difference in the wages paid to him equivalent to minimum wages and wages to permanent workman of the Appellant/Petitioner Company. The contention of the Appellant/Petitioner Company is therefore incorrect that there has not been any adjudication of the claim of the Respondent-workman and hence, the impugned order has been passed without appreciating the facts and law. In fact in the remand proceedings, the Labour Court by its order dated 5th 2010 has also categorically held that the Industrial Court in revision proceedings by its order dated 11th October 1999 had set aside the order of the Fourth Labour Court awarding compensation of Rs. 75,000/- in lieu of reinstatement and held that the Respondent-workman is entitled for reinstatement with continuity in service and full backwages, which the Appellant/Petitioner Company failed to comply with.
13. Moreover, after the order was passed by the Industrial Court in the revision proceedings on 11th October 1999, when the Respondent-workman sought to resume work with the Appellant, he was not taken back on duty. Instead, he was merely required to report for work and was paid only minimum wages, as opposed to the wages paid by the Appellant to its regular workmen. Also, the benefits of the settlement which were arrived between the Appellant and the other workmen were not being given to the Respondent-workman. Further, it is clear from the facts that the Respondent-workman had filed a complaint against this conduct by the Appellant and by order dated 29th March 2003, the Industrial Court had in fact directed the Appellant to pay the Respondent-workman salary and wages as applicable to the permanent employees. Against this order also, Writ Petition NO. 2223 of 2003 filed by the Appellant was rejected and inspite of a series of such orders, the Appellant has still chosen not to pay the Respondent-workman’s dues which he is entitled to.
14. We are, therefore, not inclined to accept the submissions advanced by the learned Counsel for the Appellant that there was no adjudication of the claims and that, since the provisions of Section 33(C)(2) of the ID Act and that the amounts claimed could not have been granted to the Respondent-workman in the absence of such adjudication. This argument fails on the count that adjudication of the claims has already been made by the Industrial Court and the Labour Court in a series of orders passed earlier and also considering that the matter was remanded back to the Labour Court by consent by order of this court dated 19th November 2009 only to decide the issue of maintainability of application under Section 33(C) (2) of the ID Act. The relevant findings of the order dated 5th January 2010 passed by the Labour Court in remand proceedings are as follows:- “14. In support of his case the applicant has adduced his evidence in form of affidavit in lieu of examination-in-chief at Exh.U-9. He is cross-examined by the learned advocate appearing for opponents. The applicant has closed his evidence by pursis at Exh.U-10. In turn the opponents have adduced evidence of one P.G. Athaley at Exh.C-12 but afterwards as the said witness never appeared before the court his affidavit was disregarded. Afterwards the opponents adduced evidence of their senior production engineer by affidavit at Exh.C-18 who is cross-examined by the learned advocate for applicant. In addition to this oral evidence all the Judgment and orders of various courts mentioned in the application are produced on record by the applicant.
15. Now as per the order of Industrial Court in Revision Application No.31 of 1999 dated 11-10-1999 the opponents were required to reinstate the applicant with full back wages and continuity of service. This order of Industrial Court is confirmed by the Hon'ble Bombay High Court which has dismissed the Writ Petition No-2473 of 1999 filed by opponents against the said order of Industrial Court.
16. As instated of order of Bombay High Court which confirmed the order of Industrial Court the Opponents continued to pay only the minimum wages to the applicant he filed Complaint (ULP) No.411 of 2000 before the Industrial Court and the Industrial Court directed the opponents to provide work to the complainant and to pay him salary as applicable to the employees of opponent company alongwith other benefits applicable to the permanent employees of opponent company. This order of the Industrial Court is confirmed by Hon'ble High Court which dismissed the Writ Petition No.2223 of 2003 filed by Opponents against the said order of Industrial Court.
17. It is the case of opponents that they are paying the wages to the applicant as per settlement dated 31.03.2004 with the union viz. Kamgar Utkarsha Sabha. In present case the applicant has claimed difference in the amount of wages since the year 1988 till the year
2003. The above settlement dated 31-3.2004 naturally came into existence after 31-3-2004. Before this date the industrial Court has directed the opponents vide order dated 29-3-2003 in Comp. (ULP) No.411 of 2000 to give work to the complainant and to pay him salary and other benefits applicable to the permanent employee of the opponent company. Thus, the settlement dated 31-3-2004 has no concern at all with the previous order of various courts as stated above. Hence, on 29-3-2003 itself the opponents were liable or pay salary of permanent employees to the applicant. Hence,I held that the applicant is entitled to receive the difference in amount of wages since the year 1983 till the year 2003,
18. I have gone through the cross-examination of the applicant taken by opponents. There is no suggestion to the applicant that he has falsely claimed the said amounts described in annexure D to the application. The Opponents have relied upon below mentioned three cases:
1) P.K. Singh & Ors. vs. The Presiding Officer and Ors. 1988 II CLR page 229:
2) Siemens Limited, Thane vs. Gajanan Vithal Konde & Ors. 1993 I CLR page 3377
3) Himachal Pradesh State Electricity Board vs. Ranjeet Singh 2008 II CLR page 713: I have gone through the above cited cases by the Opponents. Facts of all these three cases are different than the facts in present case. The conduct of opponents in present case shows that they are not ready to follow and obey the order of Court thought they have used all the ways of revision etc. available to them including Writ Petition before Hon'ble High Court. Under Section 33C (2) of the Industrial Disputes Act the adjudicated claims of the workman can be given to him. The applicant workman is entitled to receive amount of difference in the wages paid to him equivalent to minimum wages and wages paid to the permanent workman of the opponents. Accordingly, I answer Issue No.1 as partly affirmative.
19. As discussed earlier as all the court orders are prior to the date of settlement 31-3-2004 I am of the opinion that the amounts claimed by applicant which he was entitled to receive from the opponents by court orders prior to 31-3-2004. Hence, so far as this application is concerned the opponent cannot take benefit of said settlement dated 31-3-2004 accordingly I answer Issue No.2 in Negative.
29. For above reasons I held that the applicant who has secured order of back wages against the opponent company is entitled either to file application under section 50 of the MRTU & PULP Act if he is interested in recovery of back wages as arrears of land revenue through Collector. If he is no so interested then as per the section 50 of the MRTU & PULP itself in which the words without prejudice to any mode of recovery are used he is definitely entitled to file application under section 33C (2) of the Industrial Disputes Act in which the word any money is used. Thus, in my opinion if the workman is entitled to recover any money including the money of back wages then he can file application under section 33C(2) of the Industrial Disputes Act also if he thinks the said remedy as more effective than the remedy available under section 50 of the MRTU & PULP Act. He cannot be forced and asked to file application under section 50 of MRTU & PULP Act only and not to file application under section 33C (2) of the Industrial Disputes Act. Accordingly, I held that the application filed by the application under section 33C (2) is maintainable though in prayer clause he has prayed for wrong relief of issuance of recovery certificate through Collector which relief can be granted under section 50 of MRTU & PULP Act only. The wrong prayer made by the applicant I prayer clause is not fatal for him as the court is bound to grant proper relief under proper provisions of law. Accordingly I answer Issue No. 2A named by me as per remand order of Hon'ble Court in Affirmative and proceed to pass following order. Order Application is partly allowed. The Opponents are hereby directed to pay amount of Rs. 6,08,340/to the applicant against difference in wages since the year 1988 till the year 2003 and amount or Rs.50,675/- against bonus for above period with interest @ 12% per annum since 20.05.1987 when applicant made permanent workman till actual payment of the same to the applicant within 30 days of passing of this order. Copy of above Judgment and order be sent to Labour Commissioner, Tardeo for necessary action. No order as to costs.”
15. The decisions relied upon by the learned Counsel for the Appellant in respect of her contention that the impugned order has been passed in violation to the provisions of Section 33(C)(2) of the ID Act, are not applicable to the facts of the present case and do not assist the Appellant to canvass her contention further. In the case of Municipal Corporation of Delhi v. Ganesh Razak & Anr.1, the facts were different, inasmuch as there had been no earlier adjudication by any forum of the workmen’s claims or their entitlement to be paid wages at the same rate at which the regular workmen of the establishment had been paid. Also, there was no award or settlement to that effect, in short, this claim of the workmen had neither been adjudicated nor recognized by any award or settlement. Hence, the issue which fell for consideration before the Supreme Court in the aforesaid decision was “whether in these circumstances, without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees for computation of the arrears of wages, claim on that basis are maintainable under Section 33(C)(2) of the ID Act”. However, in the facts of the present case, the same is not the issue which has fallen for consideration, as there has been prior adjudication of the claim of the workman i.e. the Respondent-workman and it has been held by the Labour Court and the Industrial Court that the Respondentworkman is entitled to be paid at par with the regular workmen. As stated aforesaid, in fact, in the remand proceedings which were by consent, the Labour Court has computed the difference in the minimum wages payable and the wages paid to the regular workmen and came to the conclusion that the Respondentworkman was entitled to the wages as claimed. The aforesaid Judgment in Municipal Corporation of Delhi (supra) therefore has been passed on a different fact pattern and cannot be applied to the present case. 1 [1995 I CLR 30(S.C.)]
16. Insofar as the decision of Himachal Pradesh State Electricity Board & Anr. Vs. Ranjeet Singh & Ors.[2] is concerned, the same was rendered by the Supreme Court in the context of entitlement to bonus by the workmen under the ID Act. In that context, the Supreme Court held that the High Court appeared to have lost sight of the fact that the Labour Court, while exercising jurisdiction under Section 33(C)(2) of the ID Act, can decide only those matters specified in the Second Schedule. Bonus is not covered by the 2nd schedule. Item 6 of the Second Schedule provides that it covers all matters other than those specified in the Third Schedule. Bonus is expressly included as Item 5 of the Third Schedule. Consequently, the question of entitlement to bonus could not have been adjudicated by the Labour Court. Further, in cases involving pre-existing rights, there must be consensus between the parties regarding the existence of such rights. Where there is a dispute or disagreement, the same must be determined by the competent authority. It is in such facts the Supreme Court held that the High Court had erred in deciding the applicability of provisions under Section 33(C)(2) of the ID Act. In the facts of the present case, as rightly held by the learned Single Judge in the impugned order, the issue was not regarding the bonus or the adjudication of the claim under Section 33(C)(2) of the ID Act. The impugned order has rightly held that the Labour Court had considered the provisions of under Section 33(C)(2) of the ID Act and had rightly computed the difference in the minimum wages payable and the wages paid. The learned Single Judge in the impugned order therefore rightly held that there could be no dispute that the difference in minimum wages can be claimed 2 [2008 II CLR Pg. 713 S.C.] under Section 33(C)(2) of the ID Act, if it is shown by the workman, that he is entitled to the benefit of their wages. Therefore the decision of the Supreme Court in the case of Himachal Pradesh State Electricity Board & Anr. (supra) as relied upon by the learned Counsel for the Appellant is not apposite to the facts of the present case.
17. The question before the court in Balwant Rai Saluja v. Air India Ltd.[3] was whether the workman employed by a contractor to provide services in the statutory canteen of a factory could be deemed to be an employee of the factory. The court had ruled that the workers engaged by a contractor to work in the statutory canteen of a factory would be the workers of the said factory, but only for the purposes of the Factories Act, 1948, and not for other purposes, and further, for the said workers to be called the employees of the factory for all purposes, they would need to satisfy the test of employer-employee relationship and it must be shown that the employer exercises absolute and effective control over the said workers. However, the ruling in Balwant Rai Saluja (supra) was rendered in the context of facts which are completely distinct from the present factual matrix and is not apposite to the facts of the present case, inasmuch as in the present case by order dated 1st December 1998, the employer-employee relationship has already been established between the Appellant and the Respondent- Workman by the learned Labour Court. Therefore, the decision rendered in Balwant Rai Saluja (supra) does not aid the contentions advanced by the Appellant.
18. The Supreme Court in the case of D.N. Krishnappa v. The Deputy general Manager[4] has held that in the facts of the case where the claim of the Appellant was adjudicated upon then the application under Section 33C(2) of the ID Act, for implementation of the award can be made before the Industrial Tribunal. Applying the above principles, the Supreme Court had set aside the order of the High Court which had quashed the order passed by the Central Government Industrial Tribunal cum Labour Court directing the bank to pay the full wages with all emoluments from the date of the order of reinstatement to the date of actual reinstatement. However, after adjusting/deducting the amount already paid under Section 17B of the ID Act. Relevant paragraph of the judgment are reproduced below:- “7.[4] Now reliance placed upon the decision of this Court in the case of Bombay Chemical Industries (supra) considered by the High Court is concerned, as such the High Court has mis-applied the said decision to the facts of the case on hand. In the present case, the claim of the appellant was adjudicated upon. The appellant approached the Industrial Tribunal by way of an application under Section 33-C(2) of the ID Act for implementation of award dated 18.07.2007. Therefore, so far as the order of reinstatement and the wages claimed on the order of reinstatement is concerned, the same were already adjudicated upon. In the case of Bombay Chemical Industries (supra), it is observed and held that un-adjudicated claim cannot be the subject matter of proceedings under Section 33-C(2) and in the proceedings under Section 33-C(2), the Tribunal can only interpret the award or settlement on which the claim is based. Under the circumstances, the said decision shall not be applicable to the facts of the case on hand.
8. In view of the above and for the reasons stated above, the impugned judgment and order passed by the Division Bench of the High Court allowing the writ petition preferred by the respondent bank and quashing and setting aside the order passed by the CGIT under Section 33-C(2) of the ID Act directing the bank to pay the wages from 18.07.2007 to 23.09.2013 is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. It is held that the appellant shall be entitled to the full wages with all emoluments from the date of order of reinstatement i.e., 18.07.2007 to the date of actual reinstatement i.e., 23.09.2013, however, after adjusting/deducting the amount already paid under Section 17B of the 42022 INSC 1273 ID Act. Present appeal is allowed accordingly to the aforesaid extent. No costs.”
19. In view of the aforesaid discussion, we are inclined to accept the stand taken by the learned Counsel for the Respondent-workman that the adjudication of the dues payable to the respondent-workman had already been taken place and the dues payable to the Respondent-workman were ascertained amounting to Rs. 6,08,340 and Rs. 50,675/- against bonus with interest @ 12% p.a. since 20th May 1987, after passing of the order dated 19th November 2009 by this Court and that the matter was only remanded back for the limited purpose for deciding the maintainability of the application under Section 33(C)(2) of the ID Act. In our view, the learned Single Judge has rightly appreciated the facts and law, there is no warrant to interfere in the impugned order passed by the learned Single Judge.
20. The appeal accordingly needs to fail, it is dismissed.
21. Consequent to the dismissal of the Appeal, the orders passed by the Labour Court be complied within four weeks from the date a copy of this order is available. (AARTI SATHE, J.) (G. S. KULKARNI, J.)