Amardeep Talkies vs Raipur Cinema Operators and Karmachari Sangh

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 16.11.2002 (Annexure P/1) passed by the Labour Court in case No. 2/I.D. Act Claim/98 whereby the Labour Court, Raipur, in exercise of its jurisdiction u/s 33-C(2) read with Sub-section (5) of the Industrial Disputes Act, 1947 (for short the I.D. Act'') decided the dispute raised by the respondent and passed the order accordingly.

The indisputable facts, in nutshell, are that the petitioner is engaged in the business of exhibition of cinema shows. The petitioner''s cinema house was showing four daily shows i.e. from 12 noon to 3 p.m., 3 p.m. to 6 p.m., 6 p.m. to 9 p.m. and 9 p.m. to 12 mid-night. However, from 01.01.1997, it was decided by the petitioner to run only three shows i.e. from 12 noon to 3 p.m., 3 p.m. to 6 p.m. and 6 p.m. to 9 p.m on account of heavy losses in running of the late night show i.e. from 9 p.m. onwards. The respondent-Union filed a claim case before the Labour Court under provisions of 33-C.(2) read with Sub-section (5) of the I.D. Act. The respondent-Union claimed an award of Rs. 1,69,785.28/- as wages for the first show i.e. from 12 noon to 3 p.m. on the ground of the same being additional show. The Labour Court, while exercising its power u/s 33-C(2) read with Sub-section (5) of the I.D. Act, passed the award and directed the petitioner to pay a sum of Rs. 1,69,785/- for running additional show from 12 noon to 3 p.m. Thus, this petition.

Shri Manindra Shrivastava, learned Senior counsel appearing for the petitioner submits that the Labour court has passed the award beyond its jurisdiction as Section 33-C(2) read with Sub-section (5) of the I.D. Act, provides for recovery of money due from an employer. It was next contended that the proceedings under provisions Section of 33-C(2) of the I.D. Act is like an execution proceeding wherein the benefits if any, is accrued to the employer on account of settlement of claim or award passed by the Labour Court can be recovered. The dispute with regard to claim cannot be determined/settled by the Labour Court under provisions of Section 33-C(2) of the I.D. Act. The members of the respondent Union were employed to work for three shows and if there was a fourth show in a day, the members of the respondent-Union were entitled to additional payment. M.P. Government notification No. 5404-3429/2-A-(3) dated 10th November, 1960 provides that the standard practice was to screen films daily in three shows all over the country. The standard time fixed for the shows was 3 p.m. to 6 p.m., 6 p.m. to 9 p.m. and 9 p.m. to 12 p.m. If there was any fourth show, the members of respondent-Union may be entitled to additional payment for addition show. Any show starting at 12 noon to 3 p.m. cannot be treated as additional show. Thus, the impugned order is perverse, beyond jurisdiction and deserves to be quashed.

Shri Pradeep Saxena, learned Counsel appearing for the respondent-Union, per contra, would contend in support of the order passed by the Labour Court.

I have heard learned Counsel appearing for the parties, perused the pleadings and documents appended thereto. It is evident that the application was filed under provisions of Section 33-C(2) read with Sub-section (5) of the I.D. Act by the respondent-Union for awarding additional payment for additional show which started at 12 noon. The Labour court observed that the last show of 9 p.m. to 12 mid-night was closed without any intimation to the employees. As per notification, regular three shows of a day were 3 p.m. to 6 p.m, 6 p.m. to 9 p.m. and 9 p.m. to 12 mid night. Thus, closure of the last show starting at 9 p.m. and running the show in place of last show at 12 noon, was additional show. Accordingly, the award was passed. In another case, i.e. 2/IT/1980 (President, Raipur Cinema Operators and Karmachari Sangh Raipur vs. Manager, Amardeep Talkies, Raipur), the Labour Court in reference, passed the award and held as under:

I have gone through the terms of the compromise and they being legal an award in terms of the compromise is ordered to be recorded as under:

(1) That the workers will be paid wages as fixed by the Government of Madhya Pradesh under Minimum Wages Act, as may be notified from time to time for cinema.

(2) That the spread over will be from 12.00 noon to 12.00 midnight for four shows. If the cinema owner run the fourth show, the employees will be paid _ extra wages for the day including additional D.A. In case of exigency, when due to unavoidable reason the fourth show is not run, the workers will not get extra wages for that show, otherwise, they are entitled to wages which shall include D.A. also.

(3) As the workers are covered by the E.S.I. scheme, the workers do not press the demand for insurance scheme.

(4) The workers as they have reached to a compromise with the cinema owner, for all the reference, they do not press their other demands.

(5) That this compromise shall remain in force till 1999.

(6) That this award shall be operative with effect from 1.5.1989.

It was held that the shows run by the petitioner would be from 12 noon to 12 mid night for four shows. If the cinema owner runs the fourth show, the employee will be paid 3/4th extra wages for the day including additional D.A. In case of exigency, due to unavoidable reasons, the fourth show is not run, the workers will not get extra wages for that show. Otherwise, they are entitled to 3/4th extra wages which shall include D.A. also. The Labour Court, in the impugned order has tried to execute the award dated 6th May, 1989 passed in reference No. 2/I.T./1980 (Annexure P/2). It is no where provided in the award that if a show of 9 p.m. to 12 mid-night closes and in place of that, a show starts at 12 noon, the same shall be treated as additional show. The learned Court, it appears has exceeded its jurisdiction in exercise of its power u/s 33-C(2) of the I.D. Act and passed the award, considering claim of the petitioner a fresh.

For benefit, Section 33-C(2) and (5) of the I.D. Act reads as under:

33.C. Recovery of money due from an employer.

(1) xxx xxx xxx (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 [within a period not exceeding three months]:

(3) xxx xxx xxx(4) xxx xxx xxx (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.

The Supreme Court, in Municipal Corporation of Delhi v. Ganesh Razak and Anr. observed as under:

The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding u/s 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen''s entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power u/s 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court''s power u/s 33-C(2) like that of the Executing Court''s power to interpret the decree for the purpose of its execution.

Thus, the Labour Court directed payment of money which has been determined in the facts of the case wherein the Labour Court in earlier reference has not decided that any show which commences at 12 noon be treated as additional show. The dispute requires adjudication which cannot be done in this application filed u/s 33-C(2) read with Section (5) of the I.D. Act. Thus, the order passed by the Labour Court is beyond jurisdiction and is accordingly quashed. The members of the respondent Union are at liberty to take appropriate steps firstly for determination of their claim before taking recourse to provisions of Section 33-C(2) of the I.D. Act.

In U.P. State Road Transport Corporation v. Birendra Bhandari the Supreme Court, observed as under:

The benefit which can be enforced u/s 33-C(2) is a pre-existing benefit or one flowing from a pre-existing right.

In State Bank of India v. Ram Chandra Dubey this Court held as under:

When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made u/s 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.

The principles enunciated in the decisions referred by either side can be summed up as follows: Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court u/s 33-C(2) of the Act. The benefit sought to be enforced u/s 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers u/s 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference u/s 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages.

The ratio as enunciated in UPSRTC (supra) has been referred with approval in Vijay Kumar and Ors. v. Whirl Pool of India Limited and Ors.

For the reasons mentioned hereinabove, this petition is allowed. The amount deposited pursuant to the order dated 25.6.2004 shall be refunded back to the petitioner. Costs easy.