Suresh Chand Jain vs Central Government Industrial Tribunal-cum-Labour Court II and Others

Rajiv Narain Raina, J.—The petitioner was inflicted with punishment of withholding of two increments with permanent effect following an enquiry into his misconduct. The charge-sheet was issued on 20.5.1976. He was placed under suspension w.e.f. 15.7.1976 and was paid subsistence allowance till the punishment order was passed under Rule 23(B) of the General Insurance (CTA) Rules, 1975. The punishment order was passed on 6.8.1979. In the punishment order itself, it was recorded that the period of suspension from 15.7.1976 to August, 1979 shall not be treated as period spent on duty. Thereafter, he continued to serve till his retirement. He filed an application u/s 33C(2) of the Industrial Disputes Act, 1947 (for short "the Act"), before the Industrial Tribunal-cum-Labour Court-II, Chandigarh claiming amounts due. The application was dismissed in default on 19.2.2002. He preferred a fresh application. The same has been dismissed vide order dated 20.12.2012 (P-2) as not maintainable.

It was the defence of the Management-United India Insurance Company Ltd. Before the learned Labour Court that the petitioner could not be categorized as Inspector Grade II to Grade I from January, 1976 to August, 1979 due to pending disciplinary proceedings when he remained under suspension, and thereafter from 1979 to 1984 also, he could not be categorized as Inspector Grade II or Grade I because of his poor performance measured under the parameters laid down in the Development Staff Scheme, 1976 (for short the 1976 Scheme). He was given opportunity to improve himself to meet the standard of categorization for two successive years i.e. 1985 and 1986. He improved his performance during the aforesaid period and was categorized as Inspector Grade I w.e.f. 1.1.1987. On such categorization, he was fitted in the scale of Rs. 720-2380 and was paid salary accordingly under the 1987 Scheme, then in operation.

The petitioner raised a dispute with respect to designation. He based his claim on an appointment letter issued by the Cooperative General Insurance Society Ltd. which referred to him as an Inspector. However, the Cooperative General Insurance Society Ltd. was a separate entity from the United India Insurance Company Ltd. He claimed that he was categorized as Development Officer and not as Field Worker and he relied on certain documents Ex. W1 and M-1 to prove the point. These letters are of 1976 and 1979. The Management relied on its clear cut communication dated 30.4.1987 duly exhibited on the record of the learned Labour Court vide which he was categorized from Field Worker to Development Officer Grade I w.e.f. 1.1.1987 as adverted to above. The learned Tribunal has noticed that determination of the entitlement of salary of the two respective posts i.e. Inspector/Development Officer and Field Worker has to be adjudicated first so that the competent court first declares the status and only then the petitioner could approach the learned Tribunal for computation of money due in execution proceedings u/s 33C(2) of the Act. In the absence of any clear cut finding or declaration of status, the learned Tribunal has held that the ambiguity cannot be determined through the process of being incidental to the claim raised in the application u/s 33C(2) of the Act which acts only as an executing court of a sort of decree to enforce a pre-existing right. The learned Labour Court relied on the decision of the Supreme Court in Municipal Corporation of Delhi Vs. Ganesh Razak and Another, to reach the conclusion in rejecting the application and calling upon the applicant to get his status as in January, 1973 adjudicated first. The correctness of the order of the learned Tribunal has been assailed in this petition.

Two issues are pressed-(1) that the pay scale of the petitioner has not been rationalized as per the rationalization of pay scales and other conditions of service under the 1976 Scheme nor has any order been passed with regard to salary for the period of suspension.

In Ganesh Razak (supra), the Supreme Court has explained that where the basis of the claim or entitlement of a workman 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 beyond the scope of proceedings u/s 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workman''s entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power u/s 33C(2) of the Act. It is only when there has been an adjudication and recognition of the right by the employer, then for the purpose of implementation or enforcement, if some ambiguity remains or requires interpretation, then the Labour Court would have incidental power like that of a regular executing court arising from a decree of a civil court to interpret the decree for the purpose of its execution with a view to reach relief in the hands of a decree holder. This takes care of the first issue raised.

The second issue is also not within the scope of the jurisdiction of the Labour Court u/s 33C(2) proceedings since the punishment order itself recorded in its body that the period of suspension would not be treated as spent on duty. Therefore, the right to difference of salary beyond the subsistence allowance paid or unpaid salary during the period of suspension ceases to be a pre-existing right. The claim of the petitioner to be treated as an Inspector/Development Officer with the respondent Insurance Company itself requires adjudication u/s 10 of the Act or by any other forum of competent jurisdiction.

The order dated 22.12.1993 (P-1) on which the petitioner depends is itself an order passed in proceedings u/s 33C(2) of the Act filed by him and cannot be taken as an adjudication or declaration of rights either by court exercising plenary jurisdiction or the one u/s 10 of the Act or by any other declaration by a court of competent jurisdiction. The learned Tribunal while dealing with the question under the provisions of the 1976 Scheme does not appear to be a formation of a definite opinion or evidence that the petitioner was not paid according to the scheme of rationalization of pay scales since the designation of posts with duties and responsibilities attached thereto itself was disputed by the Management. The learned Tribunal has noticed the communication dated 30.4.1987 written by the Management categorizing the petitioner from Field Worker to Development Officer Grade I for the first time w.e.f. 1.1.1987. It would not be possible for the Labour Court then in execution proceedings to go behind that administrative order passed on performance appraisal for the year 1986. Before that the petitioner was not approved for categorization to a higher post. Thus prior to 1.1.1987, the petitioner can be held entitled only to salary of the post of Field Worker. This would necessitate active quashing or setting aside of the order dated 30.4.1987 which continues to validly operate till date. The earlier letters dated 20.5.1976 and 6.6.1979 Ex. W1 and M1 are not conclusive of the status of the petitioner. I, therefore, do not find any legal infirmity in the impugned order dated 20.12.2012 (P-2) sufficient to interfere in the matter. The writ petition is consequently dismissed.