1. This petition of filed by the Management of the Presidency Talkies for the issue of a writ of certiorari under Article 226 of the Constitution quashing the order of the second respondent, the Presiding Officer, Labour Court, Madras, directing the payment of Rs. 2,271.82 nP. to the first respondent Mohammed Sheriff, a former employee of the petitioner. The prior circumstances which led to the filing of this writ petition can be set down briefly.
(2) Four persons including the first respondent, Mohammed Sheriff, who were employed by the petitioner as ticket collectors, were retrenched. The said workers and the management entered into a settlement, which was recorded in a memorandum, on 11-1-1961, of a dispute which arose over the retrenchment of the four persons mentioned above. The memorandum recording the terms of the settlement states that the said workers agreed to receive specified amounts in full settlement of their claims. The second clause of the settlement was that the workers gave up their claims for reinstatement. The third clause of the settlement was that the workers should be given preference for reappointment within a period of one year. Mohamed Sheriff, the first respondent, alleged in a petition, which he filed under Section 33-C(2) of the Industrial Disputes Act of 1947 before the Labour Court, Madras, that in contravention of the third clause of the settlement the petitioner had employed five persons by name Shanmugam, Chandian, Louis, Subramaniam and Ramachandran, without giving an opportunity to the first respondent for being appointed to the vacancy. The first respondent alleged that the Government had ordered prosecution of the management for failure to implement the terms of the settlement. The first respondent further alleged that on the complaint made by the Secretary of the South Indian Cinema Employees' Association, the Assistant Inspector of Labour, 19th Circle, Madras, had inspected the petitioner's theatre in August 1961 and found the abovesaid five persons working there. Therefore, the first respondent claimed in his petition under Section 33-C(2) of the Act before the Labour Court, that the wages from August 1961 to April 1963 inclusive of basic pay and dearness allowance, which worked out to Rs. 2,271-81 P., should be ordered to be paid, to him as money value of the benefit which would have accrued to him, if he had been employed by the petitioner in compliance with the third clause of the settlement mentioned above. The Labour Court recorded evidence both for the worker as well as for the management, and by its order passed on 21-8-1964, held that the petitioner had employed three ticket collectors on 30-8-1961 without giving an opportunity to the petitioner, to take up the employment, violating the third clause of the settlement, and that therefore the first respondent would be entitled to the payment of the amount claimed. It is this order of the Labour Court that is attacked by the petitioner, the Proprietor of the Paragon talkies, in this writ petition.
(3) Learned counsel for the petitioner urged firstly as a preliminary ground, that the Labour Court had no jurisdiction under Section 33-C(2) of the Industrial Disputes Act, 1947, to decide the present claim, as it would not strictly fall within the scope of Section 33-C(2). Secondly, he urged that even if the petition is held to be maintainable under Section 33-C(2), the provisions for re-employment of retrenched workmen must be subject to the requirements, provided in Section 25-H of the Act as well Rule 63 of the rules framed by the Madras Government under the Industrial Disputes Act, and these requirements are not satisfied in this case. Section 25-H states that where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rule 63 framed by the Madras Government states that the employer, on the occurrence of vacancies arising after retrenchment, shall give notice of vacancies arising after retrenchment, shall give notice of vacancies in writing to every individual retrenched workman eligible to be considered for the vacancies, such notice being despatched by registered post. The employer shall also send a notice to the registered trade union, of the arising of the vacancy. But these requirements are subject to the restriction that they will not apply if the vacancies are temporary or casual, and are of less than a month's duration or arise after the expiry of a period of one year from the date of the retrenchment. Rule 63(2) states that a retrenched workman on receipt of the notice of the vacancy from the employer, shall offer himself for work or send a reply within a period of ten days from the date on which notice is posted and, if he fails to do so, he shall lose all his claim for preference in future vacancies, and the employer shall be free to fill up the vacancies in all cases when retrenched person do not come forward for re-employment. As a third argument it was urged by the learned counsel for the petitioner that at the time when the first respondent made his application to the Labour Court under Section 33C(2) of the Act, he was no longer a workman as defined in Section 2(s) of the Act, and, therefore, he could not be given any relief.
(4) I will take up first for consideration the first point about the jurisdiction of the Labour Court under Section 33C(2) of the Act, to deal with an application of the present kind. The relevant provisions to be applied in this case in Section 33-C as it stood before its amendment in 1964, because the period in respect of which the petitioner has sought for his relief arose before 1964. Section 33-C(1) and (2) before its amendment read:
'33-C. 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 provision of Chapter 5-A, the workman 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.
2. Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in sub-section (1)'.
It is clear that Section 33C(2) is wider in its scope than Section 33C(1); Section 33C(2) covers both monetary benefits and also non-monetary benefits, but the latter must be capable of being computed in terms of money. Section 33C(1), however, deals with a case where money is actually due to the workman under a settlement, award etc., which is not the case here. Therefore Section 33C(1) can be ruled out, and we have to consider in this case only the applicability of Section 33C(2). The right for his relief claimed under Section 33C(2) was based by the workman, Sheriff, first respondent, on the third clause of the settlement which gave him a preferential right for reappointment to vacancies arising within a period of one year from the date of his retrenchment. This settlement does not purport to operate de hors the statute. Therefore, the preferential right for reappointment thus secured to the retrenched worker, must be viewed as subject to the restrictions which the statutes, namely, Section 25-H and Rule 63 of the rules above considered have imposed. The order of the Labour Court, does not show that this argument was advanced before me by the learned counsel for the petitioner, it was not urged by the learned counsel for the first respondent that the terms of the settlement should be applied de hors the restriction imposed by the statute. In fact, learned, counsel for the first respondent contended that the evidence supplied in this case before the Labour Court was sufficient to establish the finding that the new workmen found working in the petitioner's theatre at the time of the inspection of the Labour Inspector, had been employed permanently and were not casual workmen. I am inclined to agree with this argument. P. W. 2 Natarajan, who was a booking clerk in Paragon Talkies, has deposed that the new entrants Chelliah, Shanmugham and Nurullah Basha were working continuously even though they were given daily wages, and their names were not entered in the muster rolls. They commenced to work one month after the first respondent's retrenchment, and out of them, Chelliah left two months before the witness left the service. Therefore, there is no basis for any possible view that the vacancies were only casual or that they were for periods less than a month's duration, and hence that there was no necessity to make an offer of re-employment to the first respondent.
(5) Next it was urged by the petitioner that what the settlement secured to the retrenched workers is only a preferential right to re-employment in certain contingencies, but such a right cannot be construed as a non-monetary benefit, which is capable of being computed in terms of money. When a person is employed, he offers to the employer benefit in the shape of his services, and he receive from the employer a return in the form of salary or wages, and the salary or wages therefore, is not a benefit, but rather a quid pro quo for services rendered, as remuneration therefor. Learned counsel for the petitioner urged that what the first respondent sought in the application under Section 33C(2), is really compensation for non-employment in accordance with the terms of the settlement, and until and unless a Court or a judicial Tribunal, has determined the right to receive such compensation after it has come before it as an industrial dispute, it cannot be held that a non-monetary benefit, whose value can be computed in terms of money, has accrued to the worker, which can be granted to him by means of an application under Section 33C(2) of the Act.
(6) For this view, learned counsel referred to the decision of the Supreme Court in Punjab National Bank Ltd. v. Kharbanda, : (1962)ILLJ234SC , where at p. 238 of the report (Lab LJ) = (at p. 490 of AIR) the observation is found that Section 33-C is a provision in the nature of execution. Where the amount to be executed is worked out (for example in an award) or where it may be worked out without any dispute, Section 33C(1) will apply. But where the amount due to a workman is not stated in the award itself and there is a dispute as to its calculation, sub-section (2) will apply, and the workman would be entitled to apply thereunder to have the amount computed provided he is entitled to a benefit, whether monetary or non-monetary, which is capable of being computed in terms of money. This decision was followed by the Mysore High Court in Vithal Parappa Murari v. Athani Municipality, 1964 1 LLJ 691, which dealt with a case where a peon claimed that he was retrenched in contravention of Section 25-G of the Industrial Disputes Act, and the question arose whether he was properly retrenched or not. The Mysore High Court held that such a dispute could not be entertained by the Labour Court under Section 33-C of the Act. The Madras High Court in the decision reported in Natarajan v. Lakshmi Mills Co., 1964 2 LLJ 296, dealt with a case where in the claim petition under Section 33C(2) of the Act the employee claimed that the nature of the duties which he performed justified his being placed in a higher category which carried higher wages. He claimed payment of the difference in the salary between the higher and the lower categories. A Bench of this Court consisting of Chief Justice and Ramamurti, J., following a later decision of the Supreme Court in Central Bank of India v. Rajagopalan, : (1963)IILLJ89SC , to which I shall presentely make reference, held that the real question for consideration in that case was whether the claimants had been wrongfully placed in a particular category, which is not appropriate to the work that they had been doing, and that such a dispute was outside the scope of Section 33C(2) of the Act.
(6-A) I am of the opinion that these decisions do not have application to the facts of the present case. The first respondent derived his right under a settlement, which, even if read with the provisions of Section 25-H of the Act as well as Rule 63 of the rules framed by the Madras Government, granted a definite right of re-employment if certain conditions were satisfied. The first respondent alleged that the necessary conditions had been satisfied, that there had been a breach of the terms of the settlement by the petitioner, and he sought for payment to him of a certain sum of money representing the equivalent of the compensation due to him for non-fulfillment of the obligation of re-employment by the petitioner. There was, therefore, no necessity to obtain a prior adjudication from the Labour Court by way of an industrial dispute of the right of re-employment on retrenchment. That right was already granted by the settlement. The first respondent wanted a money benefit to be computed and awarded to him for the deprivation of that right which the petitioner was not prepared to grant to him, because the petitioner claimed that the circumstances justifying the enforcement of that right did not exist. In other words while the petitioner conceded that the source of the right was the settlement, he was not prepared to concede the first respondent's claim that an occasion for enforcement of that right had arisen. The present case bears close analogy to the decision of the Supreme Court reported in : (1963)IILLJ89SC of the report the Supreme Court observed:
'In our opinion, on a fair and reasonable construction of sub-section (2), it is clear that if a workman's right to receive the benefit is disputed, that may have to be determinted by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. if the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise.
x x x x x x x The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2). As Maxwell has observed 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution'. We must accordingly hold that Section 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers'.
A similar view has been taken by this Court in S. A. Elec. Distribution Co., Ltd. v. Md. Khan, : (1963)ILLJ5Mad , to which I was a party, where it was held that a claim for retrenchment compensation (S. 25-FF) in a case where the liability was disputed by the employer on the ground that there was no retrenchment in law or in fact, could be entertained by the Labour Court under Sec. 33C(2) of the Act. in the light of the above decisions, I am of the opinion that the dispute in the present case leading up to the claim made by the first respondent for compensation for non-employment following retrenchment could be decided by the Labour Court in an application under Section 33C(2) of the Act.
(7) Regarding the further ground that the first respondent was not a workman on the date of the petition before the Labour Court, there is no substance in it. In Tiruchi-Srirangam Transport Co., Private Ltd. v. Labour Court, Madurai : (1961)ILLJ729Mad , Ramachandra Iyer, J., as he then was observed:
'................... in a case of retrenchment compensation, a claim could be made only by a discharged worker. That would also be only a case of an individual dispute. Therefore, it is clear that the object of the Legislature is to provide for the adjudication of individual claims not necessarily by persons who are still under the employment of the management but by discharged persons as well'.
In Paragon Talkies v. R. Manickam 1963 1 MLJ 304, Veeraswami, J. held that it is a well-known principle that the status of the party for purposes of relief on the execution side should be determined as on the date when the right accrued and not on the date on which the right is said to be enforced and that when that settlement was entered into which was the source of liability for gratuity in favour of the 1st respondent he was undoubtedly a workman within the meaning of the Act. Here the liability of the petitioner to re-employment or to pay compensation for non-employment arose under the agreement entered into when the workman was still in the service. That right was enforceable in respect of any vacancy which might arise within a period of one year. It is immaterial for enforcing the right thus conferred, if the workman at the time when the vacancy arose was not in actual service, because the relief is traceable to an agreement entered into and a right granted to him at a time when he was in service.
(8) Learned counsel for the petitioner referred to a decision of Rajagopala Ayyangar, J., reported in Odeon Cinema, Madras v. Industrial Tribunal, Madras : (1954)IILLJ314Mad . The facts in that case were entirely different, because the workman there had merely a contract to employment in his favour, but he had not yet been employed. In such circumstances, it was held that the mere existence of a contract to employ, did not constitute a relationship of employer and employee, between the parties to the contract, and the employee in that case could not come within the definition of 'workman' within the meaning of Section 2(s) of the Act.
(9) In view of the foregoing, I am of the opinion that there are no grounds to interfere with the decision of the Labour Court in this case. The writ petition, is, therefore, dismissed with costs of the first respondent. Advocate's fee Rs. 150.
10. Writ Petition dismissed.