1. This batch of Special Civil Applications arises out of Recovery Application No. 189 of 1982 and others. In these petitions, the Project Manager now headed by Deputy General Manager, Kalol Koba Road, Sabarmati, Ahmedabad and Oil and Natural Gas Commission. The Bhavan, Dehradun, are petitioners. The respondents are truck drivers of the employer, the second petitioner herein. The Recovery Applications were filed under the provisions of S. 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). In one set of applications, the respondents therein are employed as truck drivers with the second petitioner. The second petitioner asked them to perform the duties as Heavy Truck Driver (hereinafter referred to as 'HTD'). According to the petitioners, the HTD is a higher post and has higher pay scale. The respondents contended in the recovery applications that since they were asked to drive heavy vehicles and since they have actually driven heavy vehicles for the period mentioned in the respective applications, they claim to be paid under the pay scale applicable to the Heavy Truck Driver for the said period. Since the petitioners did not concede to the representation made by the respondents herein, the respondents approached the Labour Court under S. 33C(2) in order to get their grievances redressed.
2. The petitioners opposed the recovery applications filed by the respondents herein, inter alia, contending that the applications filed by the respondents were not maintainable at law, that the respondents under the guise of recovery applications are claiming higher post and higher pay scale and that the Labour Court cannot decide this issue under S. 33C(2) application. The petitioners further contended that the dispute raised by the respondents herein is an industrial dispute and it is to be adjudicated by inviting a reference under S. 10(1) of the Act. It is further contended by the petitioners that the post of HTD is a promotion channel post without much difference in duty and that is why they have agreed a separate heavy vehicle driving allowance of Rs. 15/- per month so that any driver who was driving heavy vehicle may get the said allowance irrespective of the fact whether he is TD or HTD.
3. In another set of applications, some of the respondents herein alleged that even though they were employed as fire engine driver, the petitioners herein asked them to perform the duty of Heavy Truck Driver, which is higher post and carrying higher pay scale. Since the respondents have driven heavy vehicles, they claimed that they are entitled to the pay scale of Heavy Truck Driver for the period for which they have driven the heavy vehicles. Since the petitioners have not replied or acted to the representation made by the respondents, the respondents, approached the Labour Court for the purpose of redressing their grievance. The respondents prayed before the Labour Court stating that the Labour Court has to compute the wages on par with the wages of Heavy Truck Driver.
4. The petitioners herein put forth the contentions which they have put forth in the first set of applications and their contentions have already been extracted in the paragraphs (supra).
5. The Labour Court in these two sets of applications by a separate order upheld the contentions of the respondents herein and held that the respondents are entitled to get the pay in the scale of Heavy Truck Driver during the period in which they have driven the heavy vehicles.
6. It is as against these orders the above Special Civil Applications have been filed by the petitioners herein.
7. As far as the facts of these cases are concerned, there is not much difference between the petitioners and respondents as regards the driving of the heavy truck vehicles. No doubt, the petitioners denied the period during which such vehicles were driven by the respondents; but nevertheless they say that even if the respondent has driven one day in the month heavy truck, he is paid the allowance of Rs. 15/- per month payable as per the Circular dated 8th May, 1968. The short question that we have to decide in these Special Civil Applications is an to whether the respondents who were asked to drive the heavy truck vehicle are entitled to the pay scale provided for the driver of the heavy truck vehicle. There is no dispute that the respondents are truck driver and not Heavy Truck Drivers. There is also no dispute that, these respondents were asked to drive the heavy truck vehicles on certain occasions by the authorities concerned, sine they were also holding a licence for driving a heavy truck vehicle. The circular dated 8th May, 1968 was given effect to and the respondents were paid the allowance mentioned therein.
8. Mr. Rajni H. Mehta, the learned Counsel appearing for the petitioners in all these petitions, contended that the post of Heavy Truck Driver is a promotional post from the Truck Driver, that the truck drivers who are the respondents herein cannot claim the pay scales of the Heavy drivers simply on the ground that they have also driven the heavy truck vehicles. According to the learned Counsel, the allowance of Rs. 15/- was paid both to the Heavy Truck Drivers and also to the Truck Drivers if they have driven the heavy truck vehicles. The pay scale and the cadre, according to Mr. Rajni H. Mehta, the learned Counsel appearing for the petitioners, will not depend upon the work done by the respondents but the cadre to which they belong. Firstly, the learned Counsel submitted that this being a disputed question of fact, the Labour Court ought not to have decided and computed the amount payable to the respondents herein under S. 33C(2) of the Industrial Disputes Act. The learned Counsel submitted that there must be a reference under S. 10(1) of the Act and it ought to have been decided by the Court as an 'Industrial Dispute'.
9. Mr. H. B. Shah, the learned counsel appearing for the respondents, submitting decisions rendered by this Court and also by the Supreme Court which we will refer in succeeding paragraphs, submitted that the respondents having done the job of driving the heavy truck vehicles must get the equal pay that is given to the Heavy Truck Driver. According to the learned counsel, even though the scale of pay of Heavy Truck Drivers is higher than the truck drivers who are the respondents herein, the respondents need not be denied the payment in the scale of Heavy Truck Drivers for the period during which they have driven the Heavy Trucks. The respondents further submit that it will not confer upon the respondents herein the cadre held by the Heavy Truck Drivers simply because they are given the pay scales applicable to the Heavy Truck Drivers. The learned counsel also cited the decisions stating that this Court should not interfere with the decision given by the Labour Court under Art. 227 of the Constitution.
10. We have carefully gone through the orders of the Labour Court and also to the evidence on record. The pay scale of the truck drivers and the Heavy Truck Drivers and the cadre of these two employees are definitely different. Heavy Truck Drivers, according to the evidence on record, is a promotional avenue for the, Truck Drivers whose scale of pay is definitely lower than that of the Heavy Truck Drivers. The employees of these petitioners including the respondents herein have entered into a settlement and in accordance with that settlement, a circular was issued by the oil and Natural Gas Commission Directorate on 8th May, 1968. The said circular reads as follows :-
CIRCULAR 'In accordance with the memorandum of settlement between ONGC and Unions and Association, Drivers, Grade I and Heavy Truck Drivers (scale identification No. XI) who are employed on driving vehicles moved by prime movers and attached with low-bed trailers, or of 7 (seven) tons and above will be paid an allowance of Rs. 15/- per month during the period they perform this duty.
2. In this connection, it is clarified that such of the drivers, who posses valid driving licence and are asked to drive heavy vehicles of 7 tons and above, and prime movers attached with low-bed trailors in exigencies of the Commission's work, shall also be entitled for the allowance of Rs. 15/- per month for the period during which this duty is performed by them.
OR DIRECTOR OF ADM.'
The learned counsel for the petitioner has made it clear that the settlement and the circular referred above were given effect to and the respondents have been paid allowance of Rs. 15/- per month even though they might have driven the heavy truck vehicle only for a single day in a month.
11. The respondents contend that they must be given the scale of pay permissible to the Heavy Truck Drivers. According to the respondents, they have performed the duties of Heavy Truck Drivers and they must get the equal work done by them even though they are only truck drivers. We are afraid we cannot appreciate this argument. The respondents are party to the Memorandum of Settlement between the petitioner and the Union concerned. The circular referred above clearly makes out the allowance payable to the truck drivers as and when they drive the heavy truck vehicles. If really the dispute is that these truck driver must get the same scale of pay as that of the Heavy Truck Drivers, the matter cannot be decided under S. 33C(2) by the Labour Court. This is clearly an 'industrial dispute' which requires referred under S. 10(1) of the Act in the light of the Memorandum of the settlement and also the circular referred above. In this connection. we can usefully refer to the decision reported in Central Bank of India Ltd. v. P. S. Rajagopalan etc., (A.I.R. 1964 S.C. 743). The Supreme Court dealing with the scope of S. 33C(2) held :
'For the purpose of making the neccessary determination under S. 33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workmen's right rests. When the Labour Court is given the power to allow an individual workmen to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provisions of the decree. These limitation apply also to the Labour Court, but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under S. 33C(2).'
This well principle has been followed by our High Court in V. M. Vankar (Macwana) v. Indian Farmers fertilizer, 1983 (1) G.L.R. 725. This decision is pressed into service by Mr. H. B. Shah stating that the respondents having done the work of Heavy Truck Driver, they must be paid in the scale of Heavy Truck Driver. In this decision reported in 1983 (1) G.L.R. 725, the dispute arose as to whether the employees are bag filler or bag stitchers. Once it is held the employee is working as a bag filler or a bag stitcher, no further question remained to be decided for the pay scale to be paid to the workman doing that work. In that decision, the question which required to be decided is a factual question which is incidental to the claim made by the employee. According to the settlement arrived at between the parties in that case, the workman who dose a particular work is entitled to the pay scale applicable to that particular type of work. The question fell as to whether the workman involved in that case are bag fillers or bag stitchers and if the question is once decided, the pay scale applicable to that particular work will ensure to that particular workman. That is why the Division Bench in that case correctly observed that the Labour Court was not invited to create new rights in favour of the employees for the first time, but the Labour Court was asked to decide as to whether the workman are bag fillers or bag stitchers. Thus it was merely an incidental or ancillary question the Labour Court has to decide in exercise of its powers under S. 33C(2) of the Act which is analogous to the functions discharged by the Executing Court. In that case, the Labour Court refused to decide the matter raised before it holding that it will not lie within the purview of their powers under S. 33C(2). Repelling that contention, the Division Bench of our High Court, on the facts of that case, held that the Labour Court should decide as to whether the workman are bag fillers or bag stitchers. We do not think that this decision will have any relevance to the facts and circumstances of the present case. Where a claim of a workman involves an adjudication of a dispute which falls within the definition of an 'industrial dispute' as given in the Act, then that dispute cannot be resolved under S. 33C(2). Further, where a workman makes a claim for additional wages which is beyond his contract or relating to the condition of his work, it is a matter beyond the Labour Court's power under S. 33C(2) because the claim falls within the scope of an 'industrial dispute'.
12. As far as the present case is concerned, there was a settlement between the workman and the petitioner herein and by virtue of such a settlement, circular dated 8th May, 1968 was issued. We have absolutely no hesitation in upholding the principles laid down by various High Court including the Supreme court that a workman can definitely claim his existing right by a petition under S. 33C(2) of the Act. This will not, in any way, give right to the workman to decide the disputed question which will definitely fall within the realm of new right to be created in favour of the workman. In the light of the circular referred above and also to the cadre to which the workman belongs, it is too much on the part of the respondents to claim the pay scale application to the cadre which is higher to the cadre to which the respondents belong.
13. In Nizamuddin Sademan v. The New Shorrock Spg. and Mig. Mills Co. Ltd., Nadiad, and anr., reported in 20 G.L.R. 290, a Division Bench of our High Court has clearly stated that a workman can put forward his claim before the Labour Court on the strength of S. 33C(2) only in respect of an existing right he has and not in respect of right which has not been crystalized in his favour or settled in his favour. The Labour Court in this case while dealing with this question has completely gone wrong in observing :
'If a truck driver is enjoined in the exigencies of the Commissioner's work to drive a heavy vehicle, then in my opinion he would be entitled to entire financial remuneration for that work meaning the wages in the scale identification No. 11 of 1967 agreement and additional amount of Rs. 15/- p.m. as stipulated in note No. 3 at page 12 agreement Ex. 8 produced in said Rec. Application No. 404/82.'
Further, the Labour Court has not properly appreciated the principle laid down in 1983 (1) G.L.R. 725 and has misdirected itself by observing that the ruling reported in 1983 (1) G.L.R. at page 725 is more to the point in this case and that the Labour Court is bound by the said rule laid down by the Division Bench.
14. As far as the present case is concerned, the truck drivers who are the respondents herein are entitled to particular scale of pay and scale of pay they enquire now is fixed only for the promotional post from truck drivers to that of Heavy Truck Drivers. In 1983 (1) G.L.R. 725, the agreement between the employer and employee is to the effect that the employee has to be paid according to the position he occupies and the function he discharged. The agreement in that case clearly envisages that the worker who does the particular work is entitled to the pay scale applicable to the particular type of work. As far as the present case is concerned, it is according to the cadre the pay scale is fixed and not according to the work done by the particular employee. It is the employee in the present case who to get the scale of pay fixed for the post he occupies and he cannot claim better scale than the scale for which he is entitled to. As we have referred already, both the Memorandum of Settlement and the circular passed on 8th May, 1968 by virtue of such Memorandum of Settlement make it clear that the truck driver who perform the duty of driving the heavy truck is entitled to get only Rs. 15/- as allowance per month. This allowance of Rs. 15/-, it is made clear by the evidence on record, is paid even to the Heavy Truck Drivers whenever they drive heavy trucks. Thus it is clear that the pay scale fixed by this department has relevance only to the cadre to which he belongs. The prayer by the respondents to get the pay scale of Heavy Truck Drivers, in our opinion, is a dispute which has to be decided by reference under S. 10(1) and cannot be settled by approaching the Labour Court under S. 33C(2). This is a case where a workman makes a claim for additional wages beyond his contract and such matters are beyond the powers vested in S. 33C(2).
15. Mr. H. B. Shah finally contended that this Court cannot interfere with the order of the Labour Court under Art. 227 of the Constitution. For this purpose, he cited Mohd. Yunus v. Mohd. Mustaqim and others (A.I.R. 1984 S.C. 38) and Mrs. labhkuwar Bhagwani Shana and others v. Janardhan Mahadeo Kalan and another (A.I.R. 1983 S.C. 535). In A.I.R. 1984 S.C. 38, the Supreme Court observed :
'A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art. 227. The supervisory jurisdiction conferred on the High Court under Art. 227 of the Constitution is limited 'to seeing that an inferior Court or Tribunal functions within the limits of its authority', and not to correct an error apparent on the face of the record, much less an error of law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior Court of Tribunal purports to be based or to correct errors of law in the decision.'
In A.I.R. 1983 S.C. 535, the Supreme Court observed :
'The question as to what was the actual date of subletting i.e. to say when was the second defendant let in the suit godown as a sub-tenant was purely a question of fact. When both the lower Court had on appreciation of the material placed on record by both the parties come to the conclusion that such subletting was long after 21st May, 1959 and that therefore the second defendant was not protected under the Bombay Rent Act read with the Ordinance, the High Court under Art. 227 could not interfere with the finding recorded by the lower Court on the point. Whether jurisdictional or otherwise it was purely a question of fact requiring adjudication on appreciation of evidence. High Court could not convert it into even a mixed question of fact and law entitling it to interfere. Nor was it any question of proper interpretation of the ordinance for being applied to the facts obtaining in case.'
We do not think that two decisions cited by the learned consel can be applied to the facts of the present case. Here is a case where the Labour Court has not only misdirected itself but has not understood the correct principles laid down in A.I.R. 1964 S.C. 743, which has been clearly followed by a Bench of our High Court in 1983 (1) G.L.R. 725.
16. The question as to whether the employees, who are respondents herein, are entitled to draw emolument at the pay scale applicable to the grade higher to the grade they are holding is definitely a question which cannot be decided under S. 33C(2) application. The Labour Court, in our view, has absolutely no jurisdiction to decided the matter in issue in this case and as such, the High Court has ample power to set right such mistake committed by the Labour Court under Art. 227 of the Constitution. Further, there is absolutely no existing right in favour of the respondents herein for the Labour Court to decide the matter referred to it.
17. The petitioners herein have categorically asserted that the respondents are only truck drivers and the scale of pay they want is applicable to the HTD, which is definitely the higher cadre than that held by the respondents herein. It is also clear from the facts of the case that both the TD and HTD get allowance of Rs. 15/- a month whenever they drive heavy truck vehicles. Further, the facts establish that HTD is created as a promotional avernu to TD workers. In such circumstances, the petitions under S. 33C(2) filed by the respondents are misconceived and as such, the order passed by the Labour Court, which is the subject-matter of these Special Civil Applications, cannot be sustained.
18. For all these reasons, Special Civil Applications are allowed, the orders passed by the Labour Court are set aside with the result that the applications made by the respondents before the Labour Court will stand rejected. Rule in each pettion is made absolute accordingly. Each party will bear its own costs. The deposits made by the petitioners on the direction made by this Court when these petition were pending which are towards the claim made by the respondents herein, may be refunded to the petitioners herein.