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Judgment
KIRTI SINGH, J. (ORAL)
The present writ petition has been filed under Articles 226/227 of the Constitution of India seeking quashing/modification of the impugned order dated 24.02.2015 (Annexure P-6), passed by respondent No.1, whereby the application filed by the petitioner under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter, 'the Act of 1947') was partly allowed and a sum of Rs. 12,000/- was awarded in his favour.
Learned counsel for the petitioner inter alia contends that the petitioner was appointed as a Welder in respondent No.2-firm on 10.04.1994 and was subsequently promoted as Fitter Maintenance. Initially, the petitioner was posted at the Mohali Unit of the respondent-firm and, in the year 2006, was transferred to the Chanalon Unit, Kurali, through a verbal order on the same terms and conditions of service. It is further submitted that the provisions relating to Employees' Provident Fund and Employees' State Insurance were applicable to the petitioner and that identity cards had been issued by the respective authorities. The petitioner asserts that his services were terminated by the respondent-firm without assigning any reason and without payment of earned leave, three months' salary and other service benefits. Learned counsel submits that the petitioner thereafter approached the respondent-firm for release of his service benefits, but the matter was allegedly lingered on by the respondent-firm, compelling him to approach the Labour Court, Patiala, on 08.04.2008 by filing proceedings under the Industrial Disputes Act, 1947. It is submitted that the matter was referred to the Industrial Tribunal, Patiala, and that the claim of the petitioner was initially allowed vide order dated 02.08.2011 as the respondent-firm had failed to contest the proceedings. Thereafter, the respondent-firm moved an application for setting aside the ex parte order dated 02.08.2011 and, after obtaining no objection from the petitioner, the application was allowed, the matter was restored to its original number and the respondent-firm was permitted to file its written reply. It is further submitted that, on 23.09.2014, the respondent-firm filed its written statement taking the preliminary objections that the petition was not maintainable, that the petitioner had left his job of his own accord and that he had suppressed material facts from the Court. The petitioner thereafter examined himself by tendering his affidavit in evidence. Learned counsel submits that sufficient opportunities were granted to the respondent-firm, but it failed to lead any evidence and, consequently, the evidence of the petitioner remained unrebutted. Learned counsel submits that the learned Tribunal, vide impugned order dated 24.02.2015, partly allowed the claim petition and directed the respondent-firm to pay Rs. 12,000/- within two months, failing which interest at the rate of 6% per annum was to be paid from the date of the order till realization. It is contended that the said order is illegal, wrong, perverse and against the facts on record and is liable to be modified by enhancing the amount claimed by the petitioner.
Learned counsel further submits that the learned Tribunal was required to decide the reference made by the Labour Court for Rs 72,000/-along with 18% interest, which, according to the petitioner, had earlier been granted vide order dated 02.08.2011, but this material fact was ignored by the learned Tribunal. It is also contended that the case of petitioner had remained unrebutted and that no evidence was led by the respondent-firm despite sufficient opportunities. On this basis, learned counsel submits that the petitioner was entitled to the amount claimed in the claim petition. Lastly, learned counsel submits that the learned Tribunal failed to grant interest on the amount claimed for the period from 24.02.2008 till passing of the impugned order, despite the petitioner having specifically claimed interest at the rate of 18% per annum. It is contended that the amount of Rs 12,000/- awarded by the learned Tribunal is very small and is liable to be enhanced along with 18% interest.
Learned counsel appearing for respondent No.2 submits that the impugned order has been passed after proper appreciation of the pleadings and evidence on record and calls for no interference.
I have heard learned counsel for the parties and perused the relevant material on record.
At this stage, it would be apposite to notice the scope of Section 33-C(2) of the Act of 1947, which reads as under::-
"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] [Substituted by Act 36 of 1964, Section 19, for Section 33-C (w.e.f. 19.12.1964). ][within a period not exceeding three months:] [ Inserted by Act 46 of 1982, Section 19 (w.e.f. 21.8.1984).][Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
In this regard, reference can also be made to the judgment of the Hon'ble Supreme Court in M/s Bombay Chemical Industries v. Deputy Labour Commissioner and another, Civil Appeal No.813 of 2022, decided on 04.02.2022, wherein the Hon'ble Supreme Court reiterated that proceedings under Section 33-C(2) of the Act of 1947 are in the nature of execution proceedings. The Labour Court cannot adjudicate a disputed entitlement or the basis of the claim for the first time; the benefit sought to be enforced must be a pre-existing benefit or one flowing from a pre-existing right. Where the very basis of the claim is seriously disputed and requires adjudication, such claim cannot be adjudicated in proceedings under Section 33-C(2) of the Act of 1947. the relevant paras thereof read thus:
"6.At the outset it is required to be noted that respondent No.2 herein filed an application before the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, demanding difference of wages from 01.04.2006 to 31.03.2012. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishment in the post of salesman. Therefore, once there was a serious dispute that respondent No.2 had worked as an employee of the appellant and there was a very serious dispute raised by the appellant that respondent No.2 was not in employment as a salesman as claimed by respondent No.2, thereafter, it was not open for the Labour Court to entertain disputed questions and adjudicate upon the employer-employee relationship between the appellant and respondent No.2. As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court's jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi v. Ganesh Razak and Anr. (1995) 1 SCC 235). In the case of Kankuben (supra), it is observed and held that 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 under Section 33C (2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting 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 under Section 33C (2) of the ID Act while the latter does not.
7.Applying the law laid down by this Court in the aforesaid decisions to the fact of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act."
Adverting to the present case, the petitioner claimed Rs 72,000/- comprising Rs. 6,000/- towards unavailed earned leave, Rs 18,000/-towards three months' notice pay, Rs 42,000/- towards service compensation for 14 years of service and Rs 6,000/- towards bonus, besides interest. The learned Tribunal recorded that respondent No.2 had failed to lead any evidence to rebut the evidence of the petitioner. It accordingly accepted the petitioner's claim to the extent of Rs 12,000/- towards unpaid earned leave wages and bonus. At the same time, the Tribunal specifically recorded that the petitioner had failed to establish that he had challenged his termination or that the termination of his services had been held illegal by a competent Court. In these circumstances, the Tribunal declined to grant notice pay and service compensation.
The claims towards notice pay and service compensation were premised upon the petitioner's case that his services had been illegally terminated. However, in the absence of any prior adjudication holding the termination illegal, the Tribunal cannot be said to have committed any patent illegality in declining to grant such amounts in proceedings under Section 33-C(2) of the Act of 1947.
It is also relevant to notice that the separate order dated 08.03.2013 passed under the Payment of Gratuity Act, 1972 quantified the petitioner's gratuity at Rs. 43,862/- for the period from 10.04.1994 to 24.02.2008. The said order, however, does not record any finding that the termination of the petitioner was illegal. It, therefore, cannot by itself furnish the adjudicated basis for the petitioner's claim towards notice pay or service compensation.
The earlier ex parte order dated 02.08.2011 also does not assist the petitioner. The said order was subsequently set aside on the application of respondent No.2, after obtaining no objection from the petitioner, and the matter was restored to its original number for further proceedings. Consequently, the petitioner cannot rely upon the said ex parte order as a subsisting adjudication of his entire claim.
Learned counsel for the petitioner has not been able to point out any perversity, patent illegality or material misappreciation of the evidence in the findings recorded by the learned Tribunal. The Tribunal considered the unrebutted evidence of the petitioner and, on that basis, granted Rs 12,000/-towards earned leave wages and bonus, while giving reasons for declining the remaining claims.
It is well settled that while exercising jurisdiction under Articles 226/227 of the Constitution, this Court does not ordinarily sit as an appellate Court over the findings of the Labour Court/Tribunal or re-appreciate the evidence merely because another view may be possible. Interference is warranted where the findings suffer from perversity, patent illegality, jurisdictional error or material misappreciation of the evidence. In the present case, no such infirmity has been shown.
In view of the aforesaid discussion, no ground for interference with the impugned order dated 24.02.2015 is made out. The present writ petition is, accordingly, dismissed.
Pending miscellaneous application(s), if any, also stand disposed of.