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R.L. Kapur Vs. the Punjab National Bank Ltd., New Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 62 of 1966
Judge
Reported in10(1974)DLT282; [1974(29)FLR384]
ActsIndustrial Disputes Act, 1947 - Sections 10
AppellantR.L. Kapur
RespondentThe Punjab National Bank Ltd., New Delhi and anr.
Advocates: B.S.C. Singh and; R.L. Aggarwal, Advs
Cases ReferredSher Singh Verma v. Rup Chandra
Excerpt:
.....well as the counsel for the punjab national bank. '-thus, the argument addressed on behalf of the central bank before the supreme court was the same as the one advanced-by the punjab national bank before the labour court in the preseat case' it is interesting to note what the supreme court held in that case after discussing the various points of view urged by the central bank and its workmen and shri rajagopalan. we would, however, like to indicate some of the claims which would not fall under s. 238).'thus the remarks in question stated above clearly indicate that the supreme court had in mind two types of case? before proceeding to deal with this point, i would like to refer to some other cases that have been cited before me. (4) 'while section 36a of the act deals merely with the..........only fell under section 10(1) of the act, the decision on the judgment of the supreme court in central bank of india ltd. v. rajagopalan (p. s.) and came to the conclusion that two circumstances had to be complied before section 33c of the act could be applied, as stated by their lordships of the supreme court. it quoted the following passage from the judgment:- 'inother words, though in determining the scope of section 33c we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under section 10(1) of the act, for instance, cannot be brought within the scape of section 33c'. the central government labour court then proceeded to analyze whether the present dispute fell within the purview of section 10(1) or.....
Judgment:

D.K. Kapur, J.

(1) The question which arises in this Civil Writ Petition instituted under Article 226 of the Constitution of India, which has been instituted by Shri R. L. Kapur, against the Punjab National Bank and Shri Anand Narain Kaul, Presiding Officer, Central Government Labour Court, is a short one. The applicant had moved an application under Section 33C(2) of the Industrial Disputes Act, 1947, before the Presiding Officer, Central Govt. Labour Court, claiming that he was entitled to certain benefits under the Shastri Award. It seems from the facts stated in the Writ Petition that the petitioner originally joined the Punjab National Bank Limited as a cashier in its branch office at Lahore and was later transferred to its Central Office, Cash Section. He claims that he migrated from Pakistan in September, 1947, and reported for duty in October,1947.He was eventually re-employed as Assistant Cashier in the Civil Line Branch of the Bank with effect from 19th April, 1951. The petitioner seems to have claimed that he was entitled to the benefits of his Pakistan service and thus claimed two additional increments. I have only stated the aspects of the claim as set out in the Writ Petition, because this case is not concerned with the correctness of the claim of the petitioner, nor I am concerned with the facts and circumstances giving rise to the same. I have just stated the mere outlines of the claim for the purpose of stating the facts. There are several details given in the petition, as to why the petitioner is entitled to further benefits under the Shastri Award, which I think, are unnecessary for the purpose or deciding the present petition, It is sufficient to say that when the petition was heard bythe Central Government Labour Court, it was rejected on the summary ground that it did not arise from an existing right and was, thereforee, a case which fell under Section 10(1) of the Industrial Disputes Act, 1947. It was held that the claim was belated, and although, no limitation was prescribed, there was no reason to encourage belated claims. I shall presently deal with the exact scope of the order by which the application was rejected. The order sought to be revised was passed on 20th July, 1966, and the Writ Petition has been pending in the Punjab High Court and in this Court ever since.

(2) When this petition came before me for hearing earlier, it was found that the Punjab National Bank Limited, which was the first respondent had to be substituted by the Nationalised Bank and this was allowed per ord?r dated 21st November, 1973, passed in C.M. No. 2377- W of 1973. I have thus heard the petitioner as well as the counsel for the Punjab National Bank.

(3) I am concerned in this Writ Petition with the rejection of the petitioner's application, not on the merits, but on the summary ground as stated in the order dated 20th July, 1966, passed by the Presiding Officer of the Central Government Labour Court, Delhi, which was then presided over by Shri Anand Narain Kaul, respondent No. 2. The application under Section 33C(2) of the Industrial Disputes Act, 1947 was replied to by the Punjab National Bank Ltd., who raised apreliminary objection claiming that the petitioner's application did not fall within the purview of Section 33C(2) of the Industrial Disputes Act, 1947, as it involved determination of Issues, which only fell under Section 10(1) of the Act, The decision on the judgment of the Supreme Court in Central Bank of India Ltd. v. Rajagopalan (P. S.) and came to the conclusion that two circumstances had to be complied before Section 33C of the Act could be applied, as stated by their Lordships of the Supreme Court. It quoted the following passage from the judgment:-

'INother words, though in determining the scope of Section 33C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under Section 10(1) of the Act, for instance, cannot be brought within the scape of Section 33C'.

The Central Government Labour Court then proceeded to analyze whether the present dispute fell within the purview of Section 10(1) or fell under the purview of Section 33C of the Act. It concluded that the facts of the case showed that the case was not a mere matter of adjustment or the implementation of an existing right. It observed as follows:-

' Whether the petitioner has an existing right to the benefits of enhanced increments which he now claims, in lieu of his past service in Pakistan, appears to be a matter of substantive dispute which will require evidence of records which are not early available. The claim cannot be treated as one arising from an existing right unless the right is first declared as belonging to him. In that sense it is a case which falls under Section 10(1) of the Industrial Disputes Act. '

Thus, the Central Government Labour Court has virtually dismissed the application of the petitioner on the short ground that the case of the petitioner falls under Section 10(1) of the Industrial 'Disputes Act and not under Section 33C. The decision eventually arrived at by the Labour Court is exactly contrary to the one arrived at by the Supreme Court in Central Bank of India Ltd., and others v. Rajagopalan (P. S.), and others' the very judgment which had been relied upon. It thus becomes necessary to analyze the judgment of the Supreme Court more closely to find out whether the Labour Court has acted according to the Supreme Court judgment, or acted exactly contrary to it. The question of limitation, which is the other ground on which the application was rejected, seems to be a secondary question.

(4) In the Central Bank of India Ltd. v. Rajagopalan (P. S.) the appellant was the Central Bank of India Ltd., and the question before the Court was the application of the Shastn Award to certain persons who were employed by the Central Bank of India Ltd. One of the questions raised before the Court was, whether the benefits claimed in the application by the respondent was one, which could be claimed under Section 33C(2) of the Industrial Disputes Act. The Court interpreted the word 'benefit' occurring in Section 33C(2) and came to the conolusion that the benefit prescribed therein could be computed and the recovery of the allowance brought about, by the remedy provided by sub-section (1) of Section 33C. It was urged on behalf of the Central Bank that Section 33C was only available in case the benefit was admitted and not when it was denied. The judgment of Gajendragadkar J. posed the question raised before the Court in the following words : -

'It is urged by the appellant that sub-sec. (2) can be invoked by a workman who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and, could not be a matter of dispute between the parties in cases which fall under Sub-see. (2). The argument is if there is a dispute about the workman's right to claim the benefit,, that has to be adjudicated upon not under Sub-sec. (2), but by other appropriate proceedings permissible under the Act, and since in the present appeals, the appellant disputed the respondents' right to claim the special allowance, the labour court had no jurisdiction to deal with their claim.'-

Thus, the argument addressed on behalf of the Central Bank before the Supreme Court was the same as the one advanced-by the Punjab National Bank before the Labour Court in the preseat case' It is interesting to note what the Supreme Court held in that case after discussing the various points of view urged by the Central Bank and its workmen and Shri Rajagopalan. It was held by the Supreme Court as follows:-

'We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claim that the benefiit to which they are entitled; would 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 Sub-sec. (3), the lalbour court should have been authorised to delegate the work of computing the money value of the benefiit to the commissioner if the determination of the said question was the only task assigned to the labour court under Sub-see. (2). On the other hand. Sub-see. (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.'

The judgment then continued to analyze several aspects in order to determine the exact scope of' Section 33C(2). In the end, the following legal position was stated : -

'It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under S. 33C(2). There is no doubt that the three categories of claim mentioned in S. 33C(1) fallunder. 33C(2) and in that sense, S. 33C(2) can itself be deemed to be a kind of execution proceeding ; but it is possible that claims not based on settlements, awards or made under the provisions of Chap- Va, may also be competent under S. 33C(2) and that may illustrate its wider scope. We would, however, like to indicate some of the claims which would not fall under S. 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present.'

There, then, follows a list of cases which do not fall under Section 33C, which is as follows:-

'If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a cla'm that the dismissal or demotion is wrongful and, thereforee, the employee continues to be the workman of the employer an I is entitled to the benefits due to him under a pre-existing contract, cannot be made under S. 33C(2). If asettlement has been duly reached between the employer and his employees and it falls under S. 18(2) or (3) of the Act and is governed by S. 19(2), it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement has come to anend. If the settlement exists and continues to be operative, no claim can be made under S. 33C(2) inconsistent with the said settlement. If the settlement is intended to beterminated, proper steps may have to be taken in that behalf and a dispute that may arise thereafter may have to be dealt with. according to the other procedure prescribed by the Act. Thus, our conclusion is that the scope of S. 33C(2) is wider than S. 33C(2) and cannot be wholly assimilated with it, those ugh for obvious reasons, we do not propose to decide or indicate what additional cases would fall under S. 33C(2) which may not fall under S. 33C(1). In this connection, we may incidentally state that the observations made by this Court in the-case of Punjab National Bank Ltd. : (1962)ILLJ234SC (vide supra), 'that S. 33C should not be interpreted, to mean that the scope of S. 33C(2) is exactly the same as S. 33C(1) (p. 238).'

Thus the remarks in question stated above clearly indicate that the Supreme Court had in mind two types of case?. If the cause of action of the workman was one which required a determination of some other question such 'as a wrongful termination of service, then Section 33C would not be attracted. But, if the right depended merely on a computation, then the workman was entitled to the benefit under Section 33C. It now remains to be seen whether the right claimed by the petitioner in the present ease is based on a cause of action arising out of disputed facts which require adjudication of a separate question, or it arises on the basis of some computation which may be made without reference to other questions. Before proceeding to deal with this point, I would like to refer to some other cases that have been cited before me..

(5) In Katta Lakshmayya v. Labour Court, Hyderabad the High Court of Andhra Pradesh held that a particular claim did not fall within the scope of Section 33C(2) of the Industrial Disputes Act. on the ground that the claim was based on the fact that the employee was working as a Munshi in charge rather than as a Munshi. The claim for higher salary was based on a claim that the work being performed by the employee was different from that which he was required to do by his appointment. The Court observed as follows :-

'Rut what the worker claims is virtually that he must bedeclared to have occupied a higher grade than what had been assigned to him by the management for a long number of years and that he should during the years be given the higher salary which the higher grade carried. I think his claim does not fall within the ambit of S. 33C(2) It is in effect and substance claiming a promotion to a higher grade with retrospective effect.'

The Court held that this kind of claim could properly form the subject of an industrial dispute. In the present case, it is to be observed that the petitioner claims some extra increments on the basis of the Shastri Award. The only question for decision by the Labour Court is the question whether he is entitled to extra increments or not. This case is, thereforee, quite distinguishable.

(6) In Punjab National Bank, Limited v. Kharbanda (K. L.). the Supreme Court was concerned with a claim under Section 33C(2) made by an employee of the Punjab National Limited, which also was made on para 292 (7) of the Shastri Award. The Punjab National Bank Limited, in that c.ise also, contended that the Shastri Award cou!d not be enforced under Section 33C(2). This claim was rejected by the Supreme Court on the footing that the Shastri Award had conferred a benefit on the respondent which was monetary in nature and, thereforee, capable of being computed by the Labour Court. It is true that the claim of the employee was somewhat different from the one made in the present case,but,ldonotsee why a different principle,is to be applied. Unless the present case is very much distinguishable from Kharbanda's case.

(7) Another case. Which has been referred to, is Mysore Sugar Company, Ltd. v. Manavendra (B. K.), which was decided by the High Court of Mysore. In that' case, relief was claimed that the applicants under Section 33C(2) were entitled to be placed in the higher grade and paid the higher salary on account of 'their qualifications and the nature of their duties. This again was rejected on the ground that it fell within the ambit of an industrial dispute and not' Within the scope of Section 33C(2). It will be seen that the claim to hold a different job or a different grade is quite distinguishable from getting a benefit for doing the same job. The increments granted by the Shastri Award, whatever they may be, have been awarded by a competent Tribunal. An independent claim for being placed in a different job or in ahigher scale..on account of the duties actually performed is in effect a claim fora' novation of the contract which is obviously outside the scope of the word 'benefit, as used in Section 33C(2). That is why this decision and the decision of the Andhra Pradesh High Court, already referred, to, take the view that such a matter falls outside the scope of Section 33C(2). In the present case, the claim is not based on a plea that the petitioner is entitled to be placed in a different grade or to occupy a different post with a different grade, but his claim is for higher salary in the same scale, i. e., the claim is that the petitioner has earned two increments by virtue of the decisionincorporated in the Shastri Award.

(8) The last case referred to was a recent decision of a Division Bench of this Court in Shri Yail Ram, (now represented by his legal representatives) Bir Singh and another. Civil Writ No.- 1278, of 1971 decided -on 11th December, 1973, which judgment decided a number of petitions concerned with the applications under Section 33C(2). which had been rejected by the Labour Court. There, the question raised before the Court was, whether the Labour Court retained a jurisdiction to entertain an application under Section 33C(2), even when the relationship of employer and employee was denied by the management concerned. It was held, reversing the view taken bysome Single Judges of this Court, e.g, S. K. Kapur J. in Sher Singh Verma v. Rup Chandra', that such jurisdiction was not ousted merely by the denial of relationship. The Court had occasion to analyze a number of judgments of the Supreme Court under Section 33C(2) including some of the judgments I have already referred to above to some up the law laid down in them. The Court gave the following summary of the law:-

'(1) The scope of section 33C(2) is wider than that of section 33C(1) inasmuch as claims for money or benefit due otherwise than under settlements, awards or under Chapter Va of the Act are within the purview of the former section ; (2) if the workman's right to receive the benefit is disputed, it may-have to be determined by the specified Labour Court and the jurisdiction under section 33C(2) is not confined to admitted claims; (3) .the specified Labour Court under section 33C(2) can hold an enquiry into the existence of the right before determining the money due even though the right to make such claim is disputed by the employer; (4) ' while section 36A of the Act deals merely with the question of the interpretation of the Award where a dispute arises in that behalf, section 33C(2) deals with cases of imlemeatatioa of individual rights of workmen falling under -its provisions (5) disputes which fall under Section 10(1) of the Act cannot be adjudicated by the specified Labour Court under section 33C(2) like the dispute where the dismissal is challenged as wrongful; (6) a specified Labour Court has jurisdiction to entertain a claim in respect of an existing right arising from the relationship of an industrial workman and his employer ; and (7) section 33C(2) takes within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application.'

This summary- of the law seems to cover the case of the present petitioner also. The petitioner is a claimant of a .benefit under the Shastri Award. It maybe re-called that this benefit has been computed in favor of several employees of the Banks in the past and the decision has been upheld by the Supreme Court, for instance, in Kharbanda's case, referred to above. It is necessary now to state the manner in which the claim of the?petiti oner is disputed before the Labour Court. In this respect, I rely merely on what is stated in the order challenged in this Writ Petition, -without actually having the claim or the reply to the claim before me. It is stated by the Labour Court that the claim of the petitioner is based on-the fact that he as re-employed in Delhi after being an employee of the Bank at Lahore prior to 1947. On the Other hand, it is the-case of the Bank that the petitioner was not re-cmployed but was employed afresh. In my view, this dispute is a very narrow one and depends on the interpretation to be placed on the Shastri Award. The question before the Labour Court is, whether there is any difference between re-employmtent and employment afresh. If the legal effect of 're-emplolyraenf and' empibymsnt afresh' is' exectly the same, then virtually no d;spu'e exists before the Labour Court. All that the Labour Court has to see is, whether the petitioner falls within the terms of Shastri Award, and whether the petitioner is entitled to get the benefit of two increments as a resuit of the fact that he was formerly an employee at Lahore, but was either reemployed or employed afresh, at Delhi. This is certainly a matter of computation of benefit and not a matter requiring an award under the Industrial Disputes Act.

(9) The petitioner .in the present case is claiming a benefit under the Shastri Award ; the terms of that Award are to be interpreted by the Labour'Court and applied to the facts of the case. I do not think that there is any dispute on facts between the parties. But assuming that I am wrong in this assumption, the facts are not so complex as to not enable the Labour Court to ascertain whether the petitioner is a re- employed employee of the Punjab National Bank as claimed by him, or whether he is not a re-employed employee as contended by the Bank. At first sight, and without expressing any definite view, I would feel that when a person who has once been an employee and who leaves the service of the Bank for any reason, becomes a re-employed employee as soon as he is employed again, but quite possibly, the meaning of reemployment may be somewhat different and, thereforee, I refrain from saying anything more than to point out that the difference between 'reemployment' and 'employment afresh' seems to be very slight. In any case, it is for the Labour Court to decide the meaning of 'reemployment' and. also the meaning of 'employment afresh'. There is no doubt on the admitted facts of the case-that the petitioner was at one time an employee of the Punjab National Bank Limited at Lahore and also that he was paid provident fund on ceasing to be an employee. There is also no doubt that some time in 1951, he again became an employee of the Punjab National Bank Limited. I do not know if the word 're-employee' is not a correct term to be used in the case of the petitioner when he rejoined the service of the Punjab National Bank Limited. This depends on what is meant by the term 're-employment' as used in the Shastri Award. If that word has a specialised meaning, which does not cover the case of the petitioner, then the petitioner will fail. If, on the other hand, it merely means a person who is employed again after having been an employee earlier, then the petitioner will be entitled to succeed. This is, thereforee, a matter which is aptly suited to be decided under Section 33C(2) of the Industrial Disputes Act, 1947.

(10) Accordingly, this Writ Petition is granted and the order of the Central Government Labour Court is quashed. The matter will now be remanded back to the Labour Court to decide, whether in fact, the petitioner is a re-employed employee within the meaning of that term as used in para No. 292 of the Shastri Award. If the petitioner is a re-employed employee, then it would also have to be seen whether he is entitled to any benefit under the Desai Award as claimed by: him, for, the petitioner's claim is based on a combination of the Shastri and Desai' Awards. The petitioner will get this costs in his Court.

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