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Judgment
The legitimacy of the award dated 1.2.1994 passed by the Presiding Officer, Labour Court, Dibrugarh in Misc Case No. 6/90 providing monetary benefit to the workmen on an application u/s 33C(2) of the Industrial Disputes Act. 1947 is the subject matter for adjudication in this writ petition that has arisen in the following circumstances.
2.The respondent No. 2 alongwith 164 workmen presented application u/s 33C(2) of the Industrial Disputes Act claiming the following amount and or monetary benefit as capable or computed in terms of money.
Enhanced wages @ Rs. 2.20 paise per day for the period 1.11.1989 to 31.3.1990 for 130 days in respect of 165 petitioners (Rs. 165 x 30 x 1.20) = 47,190.00.
Wages for paid holidays as on 26th January, 1st May and 15th August @ Rs. 15.30 paise per day (Rs. 165 x 3 x 15.30) = 7,573.50
Cash compensation for ration for the period 1.8.1989 to 30.6.1990 @ 600 gms per day valued @ Rs. 2.40 paise for 131 days (Rs. 165 x 131 x 2. 40) = 51,876.00
Total Rs. 1,06,639.50
The petitioner as opposite party contested the claim in writing wherein it was alleged that most of the petitioners were in dark about filing of the aforesaid petition. The opposite party petitioner also disputed about the claim of the aforesaid persons. It also contended that during the peak season of July, August, September and October in the year 1989 the applicants mentioned therein were employed purely on casual basis and that they worked as such upto 21/ 23.10.1989. Thereafter no casual worker was employed by the employer. As the other workers excluding the workers mentioned in para 2 of the award, the opposite party petitioner asserted, were neither working during the peak season of 1989 nor thereafter and accordingly denied and disputed the claim of the workmen. Four of the workmen besides the Secretary of the Union were examined in support of the workmens'' claim. The management examined Shri Mohan Mahanta an employee under the management. The Labour Court on examining the evidence on record came to a positive conclusion that the workmen established its existing right to the benefit claimed and those rights arose out of and in course of the relationship as employee with the management save and except the claim of Musstt Padumi Tantabai. The Labour Court held that the workmen discharged its burden and in the absence of any contrary evidence rebutting the same by the management the Labour Court accepted the evidence of the workmen. The Labour Court held that when the management took a positive plea in its support it ought to have proved its plea by producing the relevant ''Kamjari'' ledgers and other registers maintained by it showing the employment or non-employment of those persons. The Labour Court on evaluation of evidence reached the conclusion of facts some which are reproduced below:
"The opposite party employer could not substantiate by producing the relevant ''kamjari'' lodgers and other registers maintained by it, its contentions in paras 8 & 9 respectively of its written statement that the workers enumerated in para were employed by it during the months of July, August, September and October on purely casual basis and that they worked in such capacity upto 21/23.10.1989, and that the remaining 48 workers described in para 9 of its written statement were not under its employment either during the peak season of 1989 or thereafter. The opposite party employer also could not substantiate its contention raised in para 10 of its written statement to the effect that the workmen enumerated in para 10 (of the written statement) were not under its employment either on 1.11.1989 or thereafter and that as such their claim for enhanced wages @ Rs. 2.20 paise for 130 days is not sustainable and that since the workmen were not under the employment of the opposite party employer their claim for wages for 26th January, 1st May and 15th August of 1990 are not tenable. The sole witness for the opposite party employer Shri Mohan Mahanta just deposed, merely without referring to any record, that these workers were casual workers employed during the peak season. But the ''hazirababoo'' in respect of those workers was one Naren Kanwar who got their works done and supervised alongwith one ''jugalisardar'' and admittedly the ''hazirababoo'' got their attendances while at work (cross examination of the employer''s witness Mr. Mohan Mahanta. Now if these workers got payments while working in the garden in respect of wages, bonus and leave with wages and if such payments are kept duly recorded in the respective acquittance rolls maintained by the garden (cross examination of witness Mohan Mahanta for the employer), the opposite party employer would have produced these acquittances as counters to the claim of the petitioners. The employer (opposite party) could not produce any such acquittance by way of counter, nor it could examine the concerned Sardar of the Challan Table Singh who got the works done in respect of these workers in the "gootibari" new division of the tea garden (which Sardar Table Singh is alive and subject to the process of Labour Court), Thus from the nature of defence set up by the opposite party employer in its written statement and the evidence led by it in support of its withholding the benefits due to these petitioner/workmen, the conclusion is inevitable that these petitioners have an existing right to these benefits, such a right arising out of and in course of their relationship as employees with the opposite party employer and extending the period of continuation of such a relationship as employer-employees during the relevant period of claim. Of course one petitioner Musstt Padumi Tantabai (witness No. 5 for the petitioners) admitted in cross examination that the employer dismissed her from services w.e.f. the year 1989. The Union Secretary Mr. Mahatta''s submission that this woman worker just slipped in fear while deposing in the Labour Court and that her evidence may be considered alongwith evidence of other petitioners read together, cannot be accepted. This petitioner will not be, therefore, entitled to the benefit claimed for her share which is for the period 1.11.1989 to 31.3.1990 concerning enhanced wages, wages for the paid holidays as on 26th January, 1st May, 15th August of 1990 and cash compensation for rationed food stuff for the period 1.8.1989 to 30.6.1990 when her claim is deleted, a sum of Rs. 286, Rs. 45.90 and Rs. 314.40 only respectively in respect of item Nos. 5, 6 and 7 In the statement of claims Ext-1(1) shall stand struck off all total being Rs. 646,30 paise only in respect of this petitioner, the union has produced the relevant circular dated 20.2.1990 of the State Govt. under No. GLR(RC) 127/87 PT.90 fixing minimum wages of ordinary unskilled workers (daily-rated) employed tea plantations in the different districts of the State of Assam at the rates for different periods as specified under the Schedule thereto and it appears therefrom that for Zone A covering the district of Sibsagar (concerning these workers) the daily rate had been raised to Rs. 15.30 paise as the minimum for adult workers and Rs. 7-65 paise for non-adult workers w.e.f. 1.11.1989 to 30.10.1990 which is the relevant period of claim in the instant case. The opposite party employer could not counter, by producing any acquittances, the assertion of the petitioners that wages at such enhanced rates were not paid to them, The Union relied on the ratio in the case reported in 1985 SCC 940 : 1986 SCC 187 in support of its contention that these workers even as casual workers are entitled to these benefits. It is also urged that any settlement, even if arrived at as between the A.C.M.S. Union and the management, cannot bind the instant Union. But since the question of existing right to the money benefits claimed is already found to be in favour of these petitioners, from the nature of defence set up by the management employer and from the trend of evidence adduced by it, the ratios enunciated in the above two cases need not be gone into further. Workers. Paban Karmakar (examined as witness No. 2) stated that the employer refused weithment of the lea plucked by these workers w.e.f. 13.11.1990 and that works of all these 165 workers were stopped by the employer. If the statement of the worker Paban Karmakar in cross examination is taken into account, then at least upto 13.11.1990 these workers must be held to have been continuing in employment under the opposite party employer, whereas the claim for money benefits vide item Nos. 5, 6 and 7 in the statement of claims. Ext-1(1) is for the period w.e.f. 1.11.1989 to 31.3.1990 (for wages at the enhanced rates) for the paid holidays in the year 1990 and for ration for the period w.e.f. 1.8.1989 to 30.6.1990. The period of work extending admittedly till 13.11.1990 is covered in this schedule. The claim for wages during paid holidays as on 26th January. 1st May and 15th August, 1990 is also similarly covered since these 3 paid holidays are covered much earlier to 13.11.1990. The opposite party employer also failed to substantiate its contention raised in para 11 of its written statement that all these workers were provided with concessional cerels and the claim in respect of concessional cerels is bogus."
The Labour Court accordingly ordered that all the 163 workers except Musstt Padumi Tantabai were entitled to the money benefits claimed amounting to Rs. 1,05,993.20. In respect of the workman Musstt Padumi Tantabai the Labour Court accordingly passed an award together with interest of 6% per annum.
Mr. C. Baruah, learned Sr. counsel appearing for the management petitioner challenging the aforesaid award submitted that the Labour Court fell into serious error in passing the aforesaid award overlooking the scheme of Sec 33C(2) of the Act. Mr. Baruah, the learned counsel submitted that the essential requirement of an award is/was the entitlement of the workmen to receive from employer any money benefit that is capable of being computed in terms of the money. The learned counsel submitted that the learned Labour Court was not competent to adjudicate upon a matter which was disputed. A proceeding u/s 33C(2) is in the nature of execution proceeding. The Labour Court under no circumstances can arrogate to itself the functions of adjudication of rights of the parties. In support of his contention Mr. Baruah, the learned counsel referred to the decisions of the Supreme Court in Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, and the AIR 1994 552 (SC)
Section 33C provides for a speedy remedy to individual employees enabling such employees to enforce their existing rights. The Industrial Disputes Act, 1947, as it was originally enacted, did not provide any such remedy to individual employees. The situation was sought to be taken care of first by enacting Section 20 in the Industrial Disputes (Appellate Tribunal) Act, 1950 (since repealed) for recovery of money, due from employer under an award or decision. By the Industrial Disputes (Amendment) Act, 1953 the Parliament provided additional rights to the workmen by inserting Chapter V-A of the Industrial Disputes Act. There was number of amendments of the Act thereafter also. Section 33C(2) is placed in Chapter VII of the Act in the Head "Miscellaneous" vide Act 36 of 1964. There is a distinction in scope and jurisdiction under Sub-section (1) and (2) of Section 33C of the Act. Under Sub-section (2) where any workman is entitled to receive from the employer any money of 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 to the amount to which such benefit should be computed the question is to be decided by the Labour Court. The Labour Court, if it so thinks fit, may appoint a Commission for the purpose of computing the money value and the benefit to submit a report after taking such evidence as may be necessary. Scheme of the Act contemplates an enquity to the existence of the right and such enquiry is only incidental to the determination that is to be made by the Labour Court. The distinction between Sub-section (1) and (2) came up for consideration before the Supreme Court in The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., In the aforementioned decision the Supreme Court observed Sub-section (2) does not contain any restriction as is imposed in Sub-section 1. The claim u/s 33C(2) is, therefore, not required to be based on settlement of awards. In the aforementioned decision the Supreme Court after pointing to the observations made in Punjab National Bank Limited Vs. K. L. Kharbanda, observed that Section 33C is a provision in nature of execution is not to be interpreted "to mean" that the scope of Section 33C(2) is exactly the same as Section 33C(1). The aforementioned view finds support in the decision of the Supreme Court in Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, the Constitution Bench of the Supreme Court in Kays Construction Co. (P) Ltd. Vs. State of Uttar Pradesh and Others, while dealing with the case u/s 6(8) of the UP Industrial Disputes Act which is/ was analogous to Section 33C observed that the first part of the Section deals with recovery of "money due" to a workman under an award and the second part deals with "benefit" computable in terms of money. The Supreme Court pointedly referred to the contrast between "money due" in Section 1 and "benefit" in Section 2. In U.P. Electric Supply Co. Ltd. Vs. R.K. Shukla and Another, etc., the Supreme Court succinctly brought the distinction in the following observation:
''The legislative intention disclosed by Sections 33C(1) and 33C(2) is fairly clear. u/s 33C(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A, the workman himself, or any other person authorized by him in writing in that behalf, may make an application to the appropriate Government to recover the money due to him. Where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the Labour Court may u/s 33C(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed. Section 33-C(2) is wider than Section 33-C(1). Matters which do not fall within the terms of Section 33-C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of Section 33-C(2).
Section 33-C(2) thus envisages that whenever a workman is entitled to receive from an employer any money or any benefit that is capable of being computed in terms of money, and is denied such benefits, he or she can approach the Labour Court u/s 330(2) for recovery of that monetary and non-monetary benefits that can be computed in terms of money and which is entitled to receive from the employer. The benefits sought to be recovered must necessarily be pre-existing benefit or the benefit flowing from the pre-existing right. In the instant case the benefits sought by the workman are relatable to pre-existing benefit or the benefit flowing from the pre-existing right. The workmen did not seek any new right or benefit in the condition of service or some new benefit neither acquired nor granted. In the instant case the workmen claimed their benefit flowing from the pre-existing right and approached the Labour Court u/s 330(2) for computation of the right in terms of money. The management employer disputed the existence of the right and the Labour Court was within its right and jurisdiction to determine the question to ascertain as to whether right existed and when the existence of right was established, then it proceeded to compute the benefit flowing from the pre-existing right in terms of the money. Whether an application is maintainable or not is to be judged by looking into the claim application and not on words contained in the written statement. The fact that the management in its plea raised some dispute cannot take away the jurisdiction of the Labour Court to deal with the question regarding entitlement of the workmen. The Labour Court rightly addressed its mind to the issues raised and on evaluation of fact adjudicated upon the matter which cannot be said to be perverse, arbitrary or unreasonable. A writ court cannot go to the adequacy and sufficiency of evidence. In the circumstances I do not find any merit in the writ petition and accordingly the same is dismissed with costs. The interim order automatically stands vacated.