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Judgment
A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 02.06.2004 made in Application No. 11/1999.
The respondent herein who was appointed as Probationary Conductor in the petitioner-Corporation had filed an application under Section 33(C)(2) of the Industrial Disputes Act, 1947 (''I.D. Act'' for short) seeking for a direction to the respondent to pay a sum of Rs. 51,001/- with interest from the date of the application till realization. The Labour Court, Bijapur by the order dated 02.06.2004 has directed the petitioner-Corporation to pay the said sum as claimed by the applicant. The petitioner-Corporation is assailing the said order. This Court at the first instance while issuing Rule has granted stay of the said order.
The case as made out by the respondent/applicant before the Labour Court is that he was appointed as Probationary Conductor on 23.03.1993. Though certain charges were alleged against him and an enquiry was held, he was dismissed from service on 17.06.1998, which has been separately assailed and is stated to have been set aside. The case as put forth before the Labour Court was that without any action being taken or being suspended pending enquiry, the applicant/respondent was kept off from the duty for the period from 24.06.1993 to 07.02.1995. It is in that view, the wages for the said period had been sought. The Court below on taking note of the same has granted the relief.
What is necessary to be noticed in the instant case is the purport and scope of consideration to be made in an application filed under Section 33(C)(2) of the I.D. Act. If any claim under Section 33(C)(2) of the I.D. Act is made, there should be a pre-determination of the right before the Labour Court entertains the application seeking computation of the amount. If this aspect of the matter is kept in view, in the instant case, it is not the case of the applicant before the Labour Court that he had discharged his duties during the period from 24.06.1993 to 07.02.1995, yet the employer had not paid the wages. If that was the case, the Labour Court could have considered the application as no further determination was required and all that was necessary to be ordered was the payment of the wages for the period the employee had discharged his duties, but had not been paid the wages.
However, in the instant facts, the very case put forth by the applicant is that he was kept off the duty from 24.06.1993 to 07.02.1995. The appointment no doubt was prior to the same on 23.03.1993. The fact is also that certain misconduct had been alleged against the applicant which was prior to the date which was indicated as the period alleging that the applicant had been kept off from the duty.
In such circumstance, when the applicant had been dismissed from service on 17.06.1998, the earlier period was a stage when the charges had been alleged against him and even though the applicant contended that he had not been kept under suspension, when it was a fact that he had not discharged his duties and there was also a charge alleged against him for which the enquiry was being held, the determination of the right relating to the period from 24.06.1993 to 07.02.1995 is as to whether he was validly kept off from duty, if at all he was kept off from duty, and as to whether he was entitled to be continued in service for the said period was a determination which was required to be made by the Competent Court before an application under Section 33(C)(2) of the I.D. Act was filed before the Labour Court seeking computation of the benefits. The Labour Court while exercising its power under Section 33(C)(2) of the I.D. Act could have only on that basis thereafter computed the wages for the period if there was a predetermined right in favour of the applicant that he had been wrongly kept off from duty for the period from 24.06.1993 to 07.02.1995 and the amount if any, could have been computed in that regard.
In the instant case, it is noticed that even though such contention had been urged on behalf of the respondent before the Labour Court that the Court below did not have the jurisdiction to entertain the application under Section 33(C)(2) of the I.D. Act, the Labour Court has merely taken note of the provision contained in Section 33(C)(2) of the I.D. Act without referring to this aspect of the matter as to whether there is predetermined right in favour of the workman so as to seek computation of the wages for the right which has already been determined in his favour.
Therefore, in such circumstance, I am of the opinion that the Labour Court was not justified in passing the order dated 22.06.2004. The same is accordingly set aside. It is however made clear that since it is also observed in the course of order that the dismissal order dated 17.06.1998 has been subsequently assailed before the Labour Court and the same has been set aside, the respondent would have the liberty of seeking for such benefits for the earlier period in such proceedings, if it is pending for consideration at any stage.
With the said liberty to the respondent, the petition is disposed of.