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General Manager, Central Railway and anr. Vs. Jankoo Vithal and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Application No. 2107 of 1973
Judge
Reported in(1977)ILLJ235Bom
ActsConstitution of India - Articles 226 and 227; Industrial Disputes Act, 1947 - Sections 33C(2)
AppellantGeneral Manager, Central Railway and anr.
RespondentJankoo Vithal and anr.
Excerpt:
.....of respondent no. 1 passed by respondent no. 2 labour court - petitioner contended that order passed by labour court outside purview of section 33c (2) - according to section 33c (2) labour court can merely calculate amount of money due to workman from his employer or to compute benefit in terms of money - held, order passed by labour court liable to be quashed and set aside. - - in the present case, the 2nd respondent had precisely gone into the question, whether the ist respondent had a right to receive the benefits which he was claiming which the 2nd respondent had no jurisdiction to go into under s. 7. in my view, this contention is well-founded. gangal, can no longer be considered as good law. 33c(2). and yet if its jurisdiction to compute the benefit is conceded, it will..........above provision entitles the labour court to go into the question of calculation or computation of money benefits, where the money benefits proceed on an existing right about which there is no dispute. the labour court has no jurisdiction under the said provision to go in to the question whether the right itself exists. in the present case, the 2nd respondent had precisely gone into the question, whether the ist respondent had a right to receive the benefits which he was claiming which the 2nd respondent had no jurisdiction to go into under s. 33c(2) of the act. 7. in my view, this contention is well-founded. section. 33c(2) of the act reads as under : '33c (2) where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms.....
Judgment:

Sapre J.

1. This writ petition under Art. 226 and/or 227 of the Constitution of India has been filed by (1) the General Manager, Central Railway, Bombay, and (2) The Divisional Superintendent, Central Railway, Bombay, to set aside and quash the order dated March 26, 1973, passed by the 2nd respondent Mr. A T. Zambre, the then presiding Officer, Central Government Labour Court, Bombay, on an application filed before him by the 1st respondent Jankoo Vithal under S. 33C(2) of the Industrial Disputes Act, 1947, hereinafter referred to as 'the Act'' holding that the order of compulsory retirement passed against the 1st respondent with effect from December 8, 1970, was void and he shall be deemed to be in service and is, therefore, entitled to the resultant wages and allowances and other benefits.

2. The relevant facts are these : The 1st respondent was employed by the Great India Peninsula Railway, the predecessors of the Central Railway, on November 2, 1943, as a Running Room Bearer at Victoria Terminus Station, Bombay. All the time of his appointment, the 1st respondent was unable to give his date of birth but represented to the authorities that this age was 28 years. In the service register, the age of the 1st respondent was accordingly entered as 28 years. On May 14, 1970, the 1st respondent made an application to the authorities stating therein that his year of birth was erroneously entered as 1915, on the basis of which his age in the year 1943 was recorded as 28 years, when his correct date of birth was January 15, 1926. The 1st respondent applied to the authorities that his date of birth may be corrected. Along with his application, the 1st respondent produced the necessary copy of the school register. However, the authorities thought that this was not a fit case for recommending to the 1st petitioner for the alternation of the already recorded date of birth of the 1st respondent. In the meantime, the authorities decided not to retain the 1st respondent in service beyond the age of 55 years. By an order dated September 3/5, 1970, the Assistant Personnel Officer, Central Railway, on the basis of the report made in that behalf by the Station Superintendent, V.T., Bombay, after giving the 1st respondent the prescribed three months' notice, served on the 1st respondent on September 8, 1970, compulsorily retired the 1st respondent from service from December 8, 1970.

3. The 1st respondent filed an application against the petitioners before the 2nd respondent under S. 33C(2) of the Act on January 19, 1971. In that application the 1st respondent contended that he was born on January 15, 1926 and he was entitled to remain in service as a matter or right until he reached the age of superannuation. He contented that he was unlawfully retrenched from service from December 8, 1970. He also Contended that the order of compulsory retirement was not passed by the compulsory retirement was not passed by the competent authority. He, therefore, claimed wages, allowances and other benefits from December 8, 1970, on the ground that as the order of compulsory retirement passed against the 1st respondent was void, he must be deemed to be still continuing in service and was entitled to receive all the wages, allowances and other benefits.

4. The petitioners resisted the application filed by the 1st respondent on several grounds. One of these was that the 2nd respondent had no jurisdiction in an application filed under S. 33C(2) of the Act to go into the question whether the order of compulsory retirement passed against the 1st respondent was void.

5. The 2nd respondent overruled the contention and went into the question whether the order of compulsory retirement passed by the authorities against the 1st respondent was valid. Holding that it was void, the 2nd respondent held that the 1st respondent shall be deemed to be in service even after December 8, 1970 and as such would be entitled to wages, allowances and other benefits. The 2nd respondent accordingly directed the parties to file statements of dues to which the 1st respondent was entitled by way of wages, allowances and other benefits. It is this order of the 2nd respondent which has been challenged by the petitioners in this petition.

6. The main point canvassed by Mr. Advani, the learned counsel for the petitioners, it that the impugned order passed by the 2nd respondent is without jurisdiction, as the order passed is outside the purview of S. 33C(2) of the Act. The above provision entitles the Labour Court to go into the question of calculation or computation of money benefits, where the money benefits proceed on an existing right about which there is no dispute. The Labour Court has no jurisdiction under the said provision to go in to the question whether the right itself exists. In the present case, the 2nd respondent had precisely gone into the question, whether the Ist respondent had a right to receive the benefits which he was claiming which the 2nd respondent had no jurisdiction to go into under S. 33C(2) of the Act.

7. In my view, this contention is well-founded. Section. 33C(2) of the Act reads as under :

'33C (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.'

The section thus pre-supposes that the employee has a right to 'receive from the employer any money or any benefit which is capable of being computed in terms of money.' In other words, the section assumes an existing right in the employee to the money or benefit and on the basis of this assumption, if a question were to arise as to the amount of money due or as to the amount at which such benefit should be computed, the section empowers the Labour Court to decide that question. If there is no existing right to the money or benefit or such right has to be adjudicated upon, then the Labour Court has no power under the section to proceed further or adjudicate upon that right. That appears to me to be the plain meaning of the section. In the present case, the right of the 1st respondent to receive wages, allowances and other benefits from the date of his compulsory retirement, that is, December 8, 1970, depends upon the question whether the order of compulsory retirement passed against the 1st respondent is valid or not and whether the 1st respondent can be said to be no longer in service after December 8, 1970, or whether he still continues to be in service even after December 8, 1970. The claim of the 1st respondent to the money or benefit cannot thus be said to be based on an existing right and the matter requires an adjudication of the right itself which question, on the plain language of S. 33C(2) of the Act, in my view, is outside the purview of that section.

8. The scope of S. 33C(2) of the Act came up for consideration before the Supreme Court in a recent case of Central Inland Water Transport Corporation Ltd. v. Workmen, : [1975]1SCR153 . In that case, a reference was made by the State of West Bengal to the Second Labour Court, Calcutta, under S. 33C(2) of the Act. Four issues were referred to the Labour Court for adjudication. The first issue raised the question whether the undertaking of the company had been transferred to the Corporation and, if so, whether the settlement of a certain date between the company and the union was binding on the Corporation. By the second issue, the question was raised whether a certain number of employees who were parties to the settlement were entitled to continue in the employment of the Corporation and, if so, to what amount they were entitled. The Labour Court was further asked to adjudicate whether the amount So computed was money recoverable from the Corporation. By the third issue the question was raised whether a certain number of employees mentioned in certain list, who were not parties to the settlement, were entitled to get compensation under S. 25FF of the Act and, if so, what was the amount to which they were entitled By the fourth issue the Labour Court was invited to adjudicate whether the undertaking of the company had been closed within the contemplation of S. 25FFF of the Act and, if so, what amount of compensation the workmen were entitled to

9. The Supreme Court observed that a proceeding under S. 33C(2) was a proceeding in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. Thus calculation or computation 'follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for.'

10. The Supreme Court held that most of the points referred to the Labour Court in that case under S. 33C(2) of the Act could not be gone into by that Court. All that the Labour Court could do under S. 33C(2) of the Act was to compute the benefit if there was already an adjudication in favour of the workman as against the Corporation or the said benefit was otherwise provided for as payable by the Corporation. The above decision of the Supreme Court thus reiterates what appears to me to be the plain language of S. 33C(2) of the Act that the Labour Court under S. 33C(2) can merely calculate the amount of money due to a workman from his employer, or if the workman is entitled to a benefit which is capable of being computed in terms of money, the Labour Court can proceed to compute the benefit in terms of money. But all the same this calculation or computation can follow only upon an existing right to the money or benefit.

11. Mr. Gangal for the 1st respondent concedes the proposition that under S. 33C(2) of the Act a dispute which does not contemplate 'calculation or computation of money benefits' Cannot be gone into. But his submission is that if for calculating or computing the money benefit it is necessary to go into the question whether a right exists in the employee on the basis of which he is claiming the money or benefit, the Labour Court can go into that question even under S. 33C(2) of the Act. For this view, he first relies upon an unreported decision of a Division Bench of this Court in Special Civil Appln. No. 2710 of 1971, decided on 10-4-1973 (Bom), a copy of which he has annexed to the present petition at Ext. 6. In that case, one of the questions which arose for consideration was whether the applicants who had filed an application under S. 33C(2) of the Act were entitled to Paid Public Holidays. The applicants raised a contention that an order passed by an authority depriving the applicants of Paid Public Holidays was not passed by a competent authority. The question was whether such a dispute could be gone into by the Labour Court under S. 33C(2) of the Act. The Division Bench took the view that such a question could be gone into by the Labour Court under S. 33C(2) of the Act and that Bench remitted certain issues in that behalf for reconsideration by the Labour Court. The above decision of the Division Bench was given before the Supreme Court decision in the case of Central Inland Water Transport Corporation Ltd., (supra). With respect, therefore, the view taken by the Division Bench and relied upon by Mr. Gangal, can no longer be considered as good law.

12. Mr. Gangal next relied upon another decision of the Supreme Court in Central Bank of India Ltd v. P. S. Rajagopalan, : (1963)IILLJ89SC , in support of the proposition that the question, whether the order passed against the 1st respondent of compulsory retirement was void, could be gone into in an application under S. 33C(2) of the Act. That decision was interpreted by the Supreme Court in the case of Central Inland Water Transport Corpn. Ltd., (supra). Under the Shastri Award, Bank clerks operating the adding machine were declared to be entitled to a special allowance of Rs. 10 per month. Four clerks made a claim for computation before the Labour Court, under S. 33C(2) of the Act. The Bank denied the claim that the clerks came within the category referred to in the award and further contended that the Labour Court under S. 33C(2) of the Act had no jurisdiction to determine whether the clerks came within that category or not. Rejecting the contention, the Supreme Court held that the enquiry as to whether the four clerks came within that category was purely 'incidental' and necessary to enable the Labour Court to give the relief asked for. The Supreme Court in the case of Central Inland Water Transport Corporation Ltd., thus explained that case, and I am bound by the interpretation of that case given by the Supreme Court, that what the Labour Court was required to decide was the identity of the claimants as coming within a distinct category of clerks and this enquiry was purely incidental. There was no question of holding any enquiry into an existing right. In the present case, the question, whether the order of compulsory retirement of the 1st respondent was valid or not would be the principal matter for adjudication and computation of wages, allowances and other benefits was just consequential upon that adjudication. As pointed out by the Supreme Court in the case of Central Inland Water Transport Corporation Ltd., it would be wrong to consider the principal adjudication as 'incidental' to the computation, Mr. Gangal cannot, therefore, get any support from the decision of the Supreme Court in the case of Central Bank of India Ltd., (supra).

13. Taking a cue from the language used in the decision of Central Inland Water Transport Corporation Ltd., (supra) that a proceeding under S. 33C(2) of the Act is a proceeding in the nature of an execution proceeding. Mr. Gangal tried to build up an argument that though, ordinarily, an executing Court cannot go behind a decree and has to execute that decree as it is, if a contention is raised that the decree is void, the executing Court is entitled to go into that question and if it finds that the decree is void, it can refuse to execute it. According to him, the 1st respondent had raised a contention that the order of compulsory retirement against the 1st respondent was void and, therefore, even in an application under S. 33C(2) of the Act, which was in the nature of an execution application, the 2nd respondent could go into the question whether the order of compulsory retirement passed against the 1st respondent was void.

14. The following observations of the Supreme Court in the case of Central Inland Water Transport Corporation Ltd., (supra) would squarely answer the argument :

'........... determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and computation of wages just Consequential upon such adjudication. It would be wrong to consider the principal adjudication as 'incidental' to the computation. Moreover, if we assume that the Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have no jurisdiction to direct reinstatement under S. 33C(2). And yet if its jurisdiction to compute the benefit is conceded, it will be like conceding its authority to pass orders awarding wages as many times as the workman comes before it without being reinstated. Therefore the Labour Court exercising jurisdiction under S. 33C(2) has got to be circumspect be before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, incidental to its computation of a benefit under an existing right, which is its principal concern.' The above was a case of dismissal and the question was whether the dismissal was justified. The present case is of compulsory retirement and the question raised is that the order of compulsory retirement was void. Unless the Labour Court makes an investigation of the circumstances in which the order of compulsory retirement was passed, it cannot pronounce that order to be void. But that enquiry, as pointed out by the Supreme Court, cannot be embarked upon by the Labour Court acting on an application under S. 33C(2) of the Act.'

15. I am, therefore, of the view that the impugned order passed by the 2nd respondent on March 26, 1973, was without jurisdiction and the same is liable to be quashed and set aside.

Vimadalal, J.

16. I agree and have nothing to add.

BY THE COURT

17. We allow the petition and issue a writ, direction and order under Art. 227 of the Constitution against the respondents quashing and setting aside the other passed by Mr. A. T. Zambre, Presiding Officer, Central Government Labour Court Bombay, dated March 26, 1973. Ordinarily, costs should follow the event, but in the present case we make no order as to costs as the 1st respondent was petty menial servant to the Central Railway. The Rule will be absolute in terms stated above.


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