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Northern Railway Employees' Co-operative Credit Society and Anr. Vs. Labour Court and Ors. (11.04.1967 - RAJHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Judge
Reported in(1967)IILLJ708Raj
AppellantNorthern Railway Employees' Co-operative Credit Society and Anr.
RespondentLabour Court and Ors.
Cases ReferredSudhindra Kumar Deb and Ors. v. State of Assam and Ors.. The
Excerpt:
.....tribunal went into the matter and reached the conclusion that the order of the employer removing kanraj mehta from service was bad as the latter had not been given a proper opportunity of showing cause against the not for of penalty served upon him inasmuch as the copies of the report of the enquiry committee and the flatling of the board of enquiry were not famished to him. he also claimed provident fund contribution and other minor benefits of like nature for the aforesaid period, but this was all disallowed by the labour court. as it was submitted before the labour court that the employer bad lodged an appeal to the supreme court against the award of the industrial tribunal dated 7 october 1963 and which appeal was till then pending, the labour court ordered that the amount of rs...........to be referred to as the act), by which the labour court determined the benefits accruing: to one kanraj mehta out of an award of the industrial tribunal, bajasthan, jaipur, dated 7 october 1963, on a dispute between the northern railway co-operative credit society, jodhpur (hereinafter to be referred to as the employer) and kanraj mehta and other workers employed by the employer. writ petition no. 61 of 1965 is by the employer and by it is seeks an appropriate writ, direction or order for quashing the order of the labour court awarding a sum of rs. 25,650.50 to kanraj mehta. writ petition no. 384 of 1965 la by kanraj mehta and he seeks an appropriate writ, order or direction for modifying the order of the labour court by awarding him emoluments in accordance with paras. 16 (a) to 16.....
Judgment:

Kan Singh, J.

1. We have before us two writ petitions directed against an order of the labour court dated 16 February 1965 passed under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act), by which the labour court determined the benefits accruing: to one Kanraj Mehta out of an award of the Industrial tribunal, Bajasthan, Jaipur, dated 7 October 1963, on a dispute between the Northern Railway Co-operative Credit Society, Jodhpur (hereinafter to be referred to as the employer) and Kanraj Mehta and other workers employed by the employer. Writ Petition No. 61 of 1965 is by the employer and by it is seeks an appropriate writ, direction or order for quashing the order of the labour court awarding a sum of Rs. 25,650.50 to Kanraj Mehta. Writ Petition No. 384 of 1965 la by Kanraj Mehta and he seeks an appropriate writ, order or direction for modifying the order of the labour court by awarding him emoluments In accordance with Paras. 16 (a) to 16 (f) of the writ petition. Both the writ petitions can conveniently be dealt with together.

2. The relevant facts are shortly these: It appears from the judgment of the Industrial tribunal, dated 7 October 1963, that Kanraj Mehta was the head clerk of the employer-society which was the co-operative credit society of rail way men. He applied for leave on 8 April 1956 and filed a certificate of a vaid la support thereof. Some other employees of the employer also filed similar applications. The general meetings of the employer-society was to be held on 28 April 1956, and consequently the society felt that the employees conspired to interfere with the administration of the saucy by absenting themselves In a body. Kanraj Mehta and Ors. were asked by the employer to appear before the railway doctor for medical examination, but this was not complied with by' the employees. The employer, therefore, served a chargesheet on Kanraj Mehta and other employees. The charges related to a conspiracy to paralyse the working of the society by disobedience of the orders, distribution of certain leaflets against the employer and carrying on a propaganda in connexion with the elections of the employer-society, Afcer the chargesheet was served a board of enquiry was constituted for making au enquiry. The board of enquiry submitted its report and eventually a show-cause not be was issued to Kanraj Mahta why he should not be dismissed from service. Kanraj Mehta asked for a copy of the report of the enquiry and also of the findings arrived at by the board of enquiry. These copies were however not furnished bat even so Kinraj Mehta filed his objections against the show-cause notice and pleaded that the charges were vague and they had not been established. The vice-chairman of the employer-society then considered the case and passed an order removing Kanraj from Bervlce of the employer-society. Then Kanraj Mahtatook steps for getting a dispute referred to the Industrial tribunal through the Intervention (sic) of the question about removal of the employees to the Industrial tribunal under Section 10(1)(6) of the Act. The tribunal went Into the matter and reached the conclusion that the order of the employer removing Kanraj Mehta from service was bad as the latter had not been given a proper opportunity of showing cause against the not for of penalty served upon him Inasmuch as the copies of the report of the enquiry committee and the flatling of the board of enquiry were not famished to him. The tribunal also noted that the charge against Kanraj Mehta was rather vague and he was not wrong in his a verb vat before the board of enquiry that the charges were vague and therefore he could not defend himself on that account. In the result the tribunal hold that the order of removal passed against Kanraj Mehta be set aside. The employer was however left free, if it so desired, to reinatitute the enquiry and to proceed agjainst him according to law. Meanwhile, however, Kanraj was ordered to be restored to the position In which he stood tin 13 September 1956 when the notice of charge was Issued to him. As the main controversy is about the correct Interpretation of the operative part of the order of the Industrial tribunal, it is reproduced below:

The reference partly succeeds and the order of removal passed by the society against Kanraj la set aside and It IB left open to the society, If they so desire to relnstltute the enquiry and to proceed against him according to law; meanwhile the position In which Kanraj stood on 13 September 1956 when notice of charge was Issued against him is restored.

Kanraj then filed a petition under Section 33C(2) of the Act for the computation of the monetary benefits admissible to him under the award of the industrial tribunal. Kanraj took the position that although the employer had put him back on duty on 15 February 1964 In compliance with the award of the industrial tribunal It had simultaneously passed orders that he shall not be entitled to any wages for the past period. The application was opposed by the employer on the following grounds:

(1) That the application was premature as it was filed before the expiry of one month from the date of the publication of tb. 3 award.

(2) That the application was not covered 'by Section 32C(2) of the Act. If at all there was any question of Interpretation of the award, Kinraj should have sought his relief under Section 36A of the Act by approaching the Government.

(3) That the award conferred no monetary benefits on Kanraj prior to 7 October 1963 or even thereafter.

(4) That Kanraj had already filed a claim under the Payment of Wages Act for the same amount and therefore he was not entitled to seek the aid of the labour court under Section 33C(2) of the Act. Then, without prejudice to the other pleas, the employer joined issue regarding the amount of the claim.

3. Regarding point (1), the labour court pointed out the distinction between the date from which the award became final and the date when it becomes enforceable. It observed that the award becomes final on the date of Its publication and as the application was filed after the date of the publication It was competent though the award could be enforced only after one month of its publication. Accordingly It repelled the contention of the employer, In this behalf.

4. As regards point (2), it observed that Section 36A of the Act empowered the appropriate Government In case of difficulty or doubt arising as to the Interpretation of award or settlement to refer the question, to such labour court, tribunal or Industrial tribunal as it deems fit. According to the labour court this section was enacted to meet a situation where the Government felt any difficulty or doubt about the correct interpretation of the award. In the circumstances the labour court came to the conclusion that the employer could not properly Invoke Section 36A of the Act to defeat the application of Kanraj Mehta.

5. As regards point (3), the labour court held that tin award had set aside the order of removal passed by the employer against Kanra, though it left It open to the employer to proceed afresh against him if It so wanted. According to the labour court's view, setting aside the order of dismissal meant that such an order of dismissal rebar existed with the consequence that Kanraj continued to be in service of the employer as if such an order was not passed. In other words, Kanraj had to be treated as if he had been in the service of the employer all along. The labour court also noticed that' when there was an express order of restoring Kanraj to the position he held on 13 September 1956 the necessary consequence flowing from such an order was that Kanraj was entitled to the wages for the period from 13 September 1956 to the date of his reinstatement, viz, 16 February 1964, when he was taken back on duty by the employer In pursuance of the Industrial tribunal's award.

6. As regards point (4), the labour court held that Section 33C(1) was enacted with a view to providing a speedy remedy to an individual workman in respect of the benefits accruing to him under a settlement or an award without prejudice to any other mode of recovery to which the workman may be entitled. The labour court then computed the wages for the period 17 September 1956 to 15 February 1964, at the rate of Ra, 285 per month which Kanraj was admittedly getting on the date he was ordered to be removed. To this the labour court added an amount of Rs. 25 as costs of adjournment given to the employer on 13 May 1964 and It In this way determined the amount payable to Kanraj at Re. 25,560.50. Kanraj claimed that he was entitled to the new grade of the office superintendent at the scale of Ra, 300-5-405. This grade, according to Kanraj, became effective from 1 July 1960 and he maintained that only the post of head clerk was redesignated as office superintendent for the purposes of the higher grade. He also claimed provident fund contribution and other minor benefits of like nature for the aforesaid period, but this was all disallowed by the labour court. As it was submitted before the labour court that the employer bad lodged an appeal to the Supreme Court against the award of the Industrial tribunal dated 7 October 1963 and which appeal was till then pending, the labour court ordered that the amount of Rs. 25,560,50 shall be paid to Ktnraj only on his furnishing a solvent security for the refund of this amount In the event of the Supreme Court reversing; the award of the industrial tribunal.

7. At the threshold of the argument Sri Mridul, learned Counsel for Kanraj, brought it to our notice that the appeal taken by the employer to the Supreme Court against the award of the industrial tribunal had been dismissed on 27 January 1967. He has also placed a copy of the judgment of the Supreme Court before us.

8. In challenging the order of the labour court the employer has revived before us the grounds taken by it before the labour court In opposition to the application of Kanraj. Kanraj, on the other hand, has supported the order of She labour court to the extent It is In his favour and has urged that his claim disallowed by the labour court be ordered to be allowed to him.

9. Sri M. L. Joshi appearing for the employer has contended:

(i) That the application filed by Kanraj before the labour court under Section 33C(2) of the Act was wholly misconceived. Sri Joshi submits that the award of the industrial tribunal did not confer any monetary benefit as contemplated by Section 33C(9) of the Act. According to him it was at best a case falling under Section 36A of the Act. As regards the so-called order of reinstatement. Sri Josh submits that since the employer was left free to reinstitute the enquiry the order of restoration of Kanraj to his previous position was not a final one and Its true character bad to be adjudged on the footing of what followed.

(ii) Sri Joshi next contended that the labour court had no jurisdiction to entertain the application under Section 330 (2) of the Act directly. Sri Joshi submitted that in accordance with Rule 62 of the Rnjisthan Industrial Disputes Rules, 1953, such an application was to be presented to the Secretary to the Government in the Labour Department in triplicate and it was then for the Government to send that application to the labour court. Sri Joshi further submitted that It was necessary for the Government to specify the labour court for entertaining the application In Question. In elaboration of his submission Sri Joshi argued that though the labour court might possess Inherent jurisdiction, that jurisdiction could be enlivened or invoked only at the Instance of the Government by sending that application to the labour court and not otherwise.

(iii) The labour court was in error in treating the award by the industrial tribunal as a benefit conferred under the award.

(iv) That as Kanraj had filed an application under the Payment of Wages Act he should not be allowed to Invoka the jurisdiction of the labour court at the same time.

(v) Lastly Sri Joshi submitted that Kanraj walled away almost three years before the reference came to be made to the Industrial tribunal and therefore the wages for this period should not have been allowed to him by the labour court. Sri Joshi relied on Indian Iron and Steel Co. Ltd., and Anr. v. Treogi Nath and Ors. 1985-I L.L J. 620 ; M. L. Base & Co. v. State of Went Bengal 1964-I L.L.J. 130 and South Indian Bank, Ltd. v. A. R Chacko 1964-I L.L J. 19 In support of his arguments.

10. We may now deal with the points taken by Sri Joshi one by one.

11. The first point urged by Sri Joshi raises a question about the proper scope of Section 33C(2) of the Act. We had an occasion to examine the scope of Section 33C(2) of the Act in Rajasthan State Electricity Board, Jaipur v. Labour Court, Jaipur 1966-I L.L.J. 381, After making a survey of the case-law and following two Supreme Court oases we held as follows at p. 393:

15. The following points emerge from the above observations of their lordships :

(1) The procedure for investigation and settlement of industrial disputes on the basis of collective bargaining being already there, the legislature has given an individual workman a speedy remedy to enforce his individual rights under Section 33C of the Act, without the necessity of taking recourse to the provisions of Section 10(1) of the Act, or without having to wait for the union to espouse the cause of the individual.

(2) Two cautions have been given by their lordships for construing the provisions of Section 33C:

(i) that the construction of this section should not be so broad as to bring within its scope such cases as would normally fall under Section 10(1);

(ii) that having regard to the policy of the legislature in enacting Section 33C which Is to provide a speedy remedy to the individual workmen, It should not be so construed as to exclude from the scope of the section oases of existing rights which are sought to be Implemented by individual workmen.

16. Even if a dispute la raised about the workman's right; to receive the benefit in question, that question can be determined by the labour court.

12. Now there is no manner of doubt that the industrial tribunal bad set aside the order of removal passed by the employer and restored Kanraj to the position he held on 13 September 1956 though when Kanraj was reinstated on 16 February 1964 he was simultaneously suspended at d the disciplinary proceedings were restarted against him. The fact remains that for the period between is September 1953 and 16 February 1964 be was deemed to be in service all along. Sri Joshi bas admitted that during the disciplinary proceedings Kanraj was not under suspension but was actually on duty till he came to be removed. Therefore, it follows as a necessary corollary that he was entitled to his wages for this period. We are not impressed by the submission of Sri Joshi that the character of the order of reinstatement passed by the industrial tribunal has to be adjudged on the basis of what followed. Even so what actually followed does not at all advance Sri Joshi's case. Sri Mridul brought it to our notice that in the paper book of Writ Petition No. 384 of 1965, the order of removal subsequently passed against Kanraj is available and the operative part of that order Is as follows:

I accordingly order your removal from service with Immediate effect. 'Vide Ex. A. 6 at p. 64 of the paper book.

Therefore, when this order of removal does not even purport to be retrospective we are left in no doubt that prior to this order Kanraj was in service, and would be entitled to his salary or wages. To our mind the present is nothing but a case of enforcing 'an existing right' under the award and the labour court could rightly deal with the matter under Section 33C(2) of the Act. We, therefore, reject Sri Joshi's contention on the first point.

13. We may now turn to the second point taken by Sri Joahi. Sri Mrldul has brought to our notice that the Government of Rajasthan had issued the following notification on 19 July 1960 which was published in the Rajisthan Gazatte, dated 25 August 1960, at p. 276:

No. D. 6590/F5 (62) Ind. (C)/60.-In exercise of the powers conferred by Sub-section (2) of Section 330 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947), the State Government hereby specifies the labour court, Rajasthan, constituted-vide this Department Notification No. D. 2585/F. 4(2) Ind. (C) 69, dated 16 April 1959, to determine the money value of a benefit which any workman is entitled to receive from his employer and which la capable of being computed in terms of money.

14. This notification In our view met the requirements of law. The cases cited by Sri Joshi are clearly distinguishable. In West Bengal there were several labour courts exercising jurisdiction in the State. Therefore it was necessary to have a co-coordinating authority for proper distribution of business but this is not be in Rajasthan as there is only one labour court, and the business could therefore be assigned to it by the notification which we have just referred. It is true Rule 62 of the rules lays down that an application under Section 330 shall be delivered personally or forwarded by registered In triplicate to the Secretary to the Government in the Labour Department, Jaipur, but the force of Rule 62, to oar mud is only directory. The underlying object appears to be to keep the Government Informed of the business comics' up before the labour court which acquires jurisdiction to deal with the cases under Section 33C(2) by virtue of the notification which clearly authorizes the labour court to determine the money value of a benefit which any workman la entitled to receive from the employer and which is capable of being computed in terms of money. We are fortified in the view that we are taking by a decision of the Assam High Court in Sudhindra Kumar Deb and Ors. v. State of Assam and Ors.. The following observations clearly epitomize the reasoning and we reproduce them hereuader :

It is only where there are a number of labour courts functioning in a State that specification of the particular labour court under Section 33C(2) to take up the matter on the authorization of Government may be necessary to avoid any conflict of Jurisdiction between them but where there is only one court, no sued conflict arises and that court will have, on the terms of the statute itself, jurisdiction to determine the dispute between the parties and act under the section itself.

Held on facts that both the notifications, namely, specifying the labour court and subsequently canceling the previous notification, were uncalled for and the labour court having had jurisdiction to take up the matter under Section 33(2) Itself, Its dropping up of the proceedings amounted to failure to exercise its jurisdiction.

We, therefore, do not find any force In the second contention raised by Sri Joshi either.

15. As regards the third point It is sufficient to say that this ground was not specifically raised before the labour court, and, therefore, we are not inclined to permit this ground to be taken by the employer for the first time while Invoking our extraordinary Jurisdiction under Article 226 of the Constitution. It may very well be that Kanraj was in a position to explain the delay. It has to be remembered that it Is the Government who has to be prevailed upon to make a reference under Section 10 of the Act and this may have taken some time for which Kanraj may not be responsible.

16. As regards points (4) and (5), Sri Mrldul, learned Counsel for the union, does not oppose the prayer made by Sri Joshi. Sri Mrldul concedes that the direction for the payment of Rs. 25 as adjournment costs awarded by the industrial tribunal may be vacated. He further submits that his client will not pursue the proceedings under the Payment of Wages Act.

17. Now we may turn to the writ petition filed by Kanraj Mehta. Sri Mohanlal Kalla, learned Counsel appearing for him, has made only a feeble attempt to Question the correctness of that portion of the labour court's order by which it disallowed a claim of the petitioner regarding the increased wages or for contribution to provident fund. Fixation from one grade to another is not shown to be automatic. Whether there was only redeslgnatlon of post or one post was abolished and a new one with new nomenclature was created in its place is a question of fact. We are not hearing any appeal or revision against the order of the labour court, and an interference with the order in exercise of our extraordinary Jurisdiction under Article 226 of the Constitution can be justified only when a party convinces us that there was any error of jurisdiction or the tribunal or the inferior court had committed any other error of law which Is apparent on the face of the record. This the writ petitioner has wholly failed to show. This writ petition appears to be more like a counterblast to the employer's writ petition than as a serious effort to get any redress. We are, therefore, unable to find any substance In this writ petition.

18. The result is that we allow the writ petition filed by the employer In part only, and we direct that the labour court shall not give effect to that portion of its order wherein it has awarded Rs. 25 as costs to Kanraj Mehta. As the learned Counsel for the union of workers has undertaken not to press the proceedings under the Payment of Wages Act, we do not think It is now necessary to pass any order for that. Moreover the Payment of Wages Authority is not a party to the present proceedings. We, however, other wise maintain the order of the labour court Intact. We further find that on a stay application filed by the employer he was asked to furnish a bank guarantee for the payment of the amount which he had done. The labour court will now ask the guarantor-bank to produce the amount before it together with Interest which may have accumulated and on receipt of the same the labour court shall pay It to Kanraj Mehta. The writ petition filed by Kanraj Mehta is hereby dismissed. In view of all the circumstances of the case we leave the parties to bear their own costs.


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