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Judgment
Kirti Singh, J.
The present writ petition has been filed under Articles 226/227 of the Constitution of India assailing the order dated 16.12.2016 passed by the learned Industrial Tribunal-cum-Labour Court, U.T. Chandigarh (hereinafter referred to as, ‘the Labour Court’), in LCA No.201 of 2011, whereby the application filed by respondent No.2 under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as, ‘the Act’) has been allowed and the petitioner-management has been directed to pay an amount of Rs.1,44,450/-towards 50% back wages, along with interest of Rs.23,835/- as on the date of filing of the application, besides further interest as directed therein.
Briefly stated, as per the pleaded facts, respondent No.2 had raised an industrial dispute regarding termination of his services, which culminated in Reference No.89 of 2004 before the Labour Court. The said reference was decided by Award dated 14.01.2010, whereby the termination of respondent No.2 was held to be illegal and in violation of Section 25-F of the Act. Consequently, reinstatement in service along with 50% back wages from 06.11.2002 till the date of the Award was directed. The petitioner-management was further directed to comply with the Award within two months of its publication, with interest at the rate of 9% per annum from the date of the Award. The Award was published on 10.03.2010 and was admittedly not subjected to any challenge and, therefore, attained finality. Pursuant to the aforesaid Award, respondent No.2 rejoined the services of the petitioner on 18.05.2010. He, however, remained absent from 11.06.2010 onwards. The management addressed communications dated 28.06.2010 and 02.07.2010 requiring him to explain his absence. Respondent No.2 submitted a reply dated 05.07.2010, attributing his absence to illness and weakness. Thereafter, the management issued a communication dated 14.07.2010 requiring him to appear for medical examination.
Subsequently, respondent No.2 filed an application dated 27.09.2011, invoking Sections 33-C(1) and 33-C(2) of the Act, claiming the monetary benefits flowing from the Award dated 14.01.2010. The petitioner-management contested the application, inter alia, on the ground that the claim was governed by Section 33-C(1) and was beyond the prescribed period of one year; that the Labour Court had no jurisdiction to entertain the claim under Section 33-C(2); that the rate of wages claimed by respondent No.2 was disputed; and that respondent No.2 had abandoned the employment by remaining absent from duty. The Labour Court, however, treated the proceedings as one under Section 33-C(2) of the Act. It noticed the finding in paragraph 9 of the original Award regarding the wages of respondent No.2 and, on that basis, computed the monetary benefit payable towards 50% back wages and passed the impugned order dated 16.12.2016.
Learned counsel appearing for the petitioner has assailed the impugned order primarily on the ground that the application filed by respondent No.2 was, in substance, one for recovery of a quantified amount flowing directly from the Award and, therefore, fell within the ambit of Section 33-C(1) of the Act. It is contended that the application having been filed beyond the period contemplated under the first proviso to Section 33-C(1), and there being no application for condonation of delay or any order condoning the same, the Labour Court could not have circumvented the statutory limitation by treating the proceedings as one under Section 33-C(2). Reliance has been placed upon the judgments of the Hon’ble Supreme Court inFabril Gasosa v. Labour Commissioner, (1997) 3 SCC 150, and as also upon the judgments in M/s. Parekh & Co. v. S.M. Valvi, Writ Petition No.3113 of 2002, decided on 19.06.2003 (Bombay High Court), reported at 2003 Law Finder (Bombay) 1023, and Ragho Singh v. Mohan Singh, 2001 (9) SCC 717. It is further argued that the Labour Court could not have adjudicated upon the disputed question relating to the wage rate or ignored the management’s plea of abandonment.
Per contra, learned counsel appearing for respondent No.2 has supported the impugned order. It is submitted that the Award dated 14.01.2010 had already conclusively determined the entitlement of respondent No.2 to reinstatement and 50% back wages and that the proceedings before the Labour Court were only for computation and recovery of the monetary benefit arising from such pre-existing right. According to learned counsel, the Labour Court was, therefore, well within its jurisdiction under Section 33-C(2) of the Act. It is further submitted that the objection regarding the wage rate was considered with reference to the original Award itself and did not involve adjudication of any fresh entitlement. The subsequent absence of respondent No.2 from duty, according to learned counsel, could not have the effect of taking away the back wages which had already accrued under the Award for the period ending on 14.01.2010.
I have heard learned counsel for the parties and have perused the impugned order as well as the material placed on record.
The principal question which arises for consideration is whether, in the facts and circumstances of the present case, the application filed by respondent No.2 could validly be entertained and adjudicated under Section 33-C(2) of the Act, notwithstanding the objection of the petitioner that the claim was one falling under Section 33-C(1) and was beyond the period prescribed therein.
The distinction between Sections 33-C(1) and 33-C(2) of the Act is well settled. Section 33-C(1) provides a summary mechanism for recovery of money due to a workman under a settlement, award or under the provisions of Chapter V-A. Section 33-C(2), on the other hand, confers a wider jurisdiction upon the Labour Court to compute in terms of money any benefit to which a workman is entitled under an existing right. The jurisdiction under Section 33-C(2) is thus not confined merely to cases where the precise amount is already arithmetically determined.
The Constitution Bench of the Hon’ble Supreme Court in Central Bank of India Ltd. v. P.S. Rajagopalan, AIR 1964 SC 743, explained the distinction between the two provisions and held that while Section 33-C(1) is in the nature of a summary execution proceeding, Section 33-C(2) is wider in scope. The Labour Court exercising jurisdiction under Section 33-C(2) can deal with questions incidental to the determination of the monetary benefit flowing from an existing right. Significantly, the Hon’ble Supreme Court also recognised that matters falling within Section 33-C(1) may also fall within the wider jurisdiction of Section 33-C(2). Therefore, the mere fact that the benefit is capable of being expressed through an arithmetical calculation does not, by itself, render Section 33-C(2) unavailable.
In Fabril Gasosa (supra), relied upon by learned counsel for the petitioner, the Hon’ble Supreme Court observed that proceedings under Section 33-C are in the nature of execution proceedings and that where the amount due is predetermined and can be arrived at by simple arithmetic or verification, recourse to Section 33-C(1) may be appropriate and desirable. The judgment, however, does not lay down a proposition that every claim capable of arithmetical calculation is exclusively within Section 33-C(1), irrespective of the nature of the existing right and the proceedings actually instituted. The wider scope of Section 33-C(2), as explained by the Constitution Bench in Central Bank of India (supra), remains material.
Likewise, the judgments in Municipal Corporation of Delhi v. Ganesh Razak, (1995) 1 SCC 235, and Bombay Chemical Industries v. Deputy Labour Commissioner, (2022) 5 SCC 629, reiterate the fundamental principle that proceedings under Section 33-C(2) are founded upon an existing or pre-determined right and that the Labour Court cannot, in such proceedings, adjudicate upon a fresh entitlement which has not previously been recognised. Thus, where the very basis of the claim requires adjudication of a new right, Section 33-C(2) cannot be invoked as a substitute for the original adjudicatory process.
Tested on the aforesaid principles, the present case stands on a materially different footing. The entitlement of respondent No.2 was not being adjudicated for the first time in the proceedings under Section 33-C(2). His termination had already been held illegal by the Award dated 14.01.2010, and his reinstatement with 50% back wages from 06.11.2002 till the date of the Award had already been directed. The said Award attained finality and was not challenged by the petitioner-management.
The proceedings initiated by respondent No.2 were, therefore, founded upon a right which had already been adjudicated and crystallised by a final Award. What remained to be done was to give monetary effect to that Award. The Labour Court was not called upon to decide whether respondent No.2 was entitled to back wages at all; that question stood concluded by the original Award. Nor was the Labour Court called upon to create a fresh right in favour of respondent No.2.
It is true that the petitioner-management raised an objection regarding the rate of wages. However, the Labour Court did not determine the wage rate dehors the original adjudication. Rather, it examined the relevant finding in paragraph 9 of the Award dated 14.01.2010 and proceeded on the basis of the wage rate recorded therein. Thus, the objection was answered by reference to the final Award itself. The exercise undertaken by the Labour Court was consequently one of giving effect to an existing adjudicated entitlement, and not of granting a new entitlement to respondent No.2.
The fact that the ultimate amount payable under the Award could be arrived at through an arithmetical exercise also does not, in the circumstances of the present case, by itself compel the conclusion that the Labour Court lacked jurisdiction under Section 33-C(2). As noticed above, the Constitution Bench in Central Bank of India (supra) has expressly recognised the wider ambit of Section 33-C(2), including its power to deal with matters incidental to the computation of an existing right.
The reliance placed upon M/s. Parekh & Co. v. S.M. Valvi (supra) does not advance the petitioner’s case any further. In that case, the Bombay High Court was examining proceedings expressly taken under Section 33-C(1). The Court found that the authority had failed to apply its mind to the statutory requirement concerning limitation as well as to the objections raised regarding the calculation of the amount due, and the order was accordingly set aside. The ratio of Parekh & Co. (supra) cannot be read as laying down that whenever the amount flowing from an Award is capable of mathematical calculation, the Labour Court is divested of jurisdiction under Section 33-C(2). The said decision arose in the context of the exercise of jurisdiction under Section 33-C(1) and the failure of the concerned authority to properly consider the objections and the question of limitation. In the present case, the Labour Court exercised jurisdiction under Section 33-C(2), and the entitlement itself had already been crystallised by the final Award. The management’s objection regarding the wage rate was considered by reference to the finding contained in that very Award. The factual and jurisdictional setting is, therefore, materially different.
The judgment in Ragho Singh v. Mohan Singh (supra), relied upon by learned counsel for the petitioner, is also distinguishable. That case concerned an appeal filed beyond the period of limitation prescribed by the governing statutory provision, without an application for condonation of delay, and the Hon’ble Supreme Court held that the appellate authority had no jurisdiction to entertain the time-barred appeal in the absence of condonation in accordance with law.
The present case does not concern an appeal governed by the Limitation Act or a statutory provision prescribing limitation for an appellate remedy. The controversy here is whether the monetary claim based upon a final Award could be entertained under Section 33-C(2). Once the Labour Court is found to have jurisdiction under Section 33-C(2), the limitation specifically prescribed for an application under Section 33-C(1) cannot be mechanically imported so as to defeat the jurisdiction otherwise conferred by Section 33-C(2).
It is also settled that there is no statutory period of limitation prescribed for proceedings under Section 33--C(2) corresponding to the specific limitation contained in the first proviso to Section 33-C(1). The absence of a prescribed period does not mean that delay can never be relevant in any case, but no such circumstance has been demonstrated here which would render the claim founded upon the final Award non-maintainable.
The further objection that the application mentioned both Sections 33-C(1) and 33-C(2) is equally without merit. The jurisdiction of a competent Labour Court does not stand ousted merely because a workman has referred to an incorrect or additional statutory provision, if the substantive relief sought is within the jurisdiction otherwise vested in the authority. The Hon’ble Supreme Court in P.K. Palanisamy v. N. Arumugham and another, (2009) 9 SCC 173, has reiterated that mere non-mention or incorrect mention of a statutory provision is not by itself decisive where the authority possesses the requisite jurisdiction to grant the relief.
The substance of the proceedings, rather than the nomenclature used by the workman, is determinative. In the present case, the substantive claim was for monetary benefits arising out of a final Award which had already determined the entitlement of respondent No.2. The Labour Court, after considering the rival objections, treated the proceedings under Section 33-C(2) and computed the benefit on the basis of the original Award. No fresh adjudication of the legality of termination or of the entitlement to back wages was undertaken.
The plea of abandonment raised by the petitioner-management also does not affect the claim which was the subject matter of the impugned order. The period for which the back wages were directed under the Award ended on 14.01.2010. The subsequent absence of respondent No.2 commenced from 11.06.2010, i.e. after the period for which the back wages in question had already been awarded. Consequently, the alleged subsequent absence could not, by itself, retrospectively extinguish an entitlement which had already accrued under the final Award.
The correspondence dated 28.06.2010, 02.07.2010, 05.07.2010 and 14.07.2010 relates to the subsequent conduct and absence of respondent No.2 after his reinstatement. That issue is distinct from the monetary liability arising under the Award for the period ending on 14.01.2010. In the absence of any subsequent adjudication or order modifying, setting aside or otherwise nullifying the original Award, the management could not, in the proceedings for computation of the awarded benefit, seek to reopen the concluded entitlement on the basis of events occurring subsequently.
This Court, while exercising jurisdiction under Articles 226/227 of the Constitution, is not sitting as an appellate Court over the Labour Court. Interference is warranted where there is a patent jurisdictional error, perversity, violation of settled principles of law or a finding which is wholly unsupported by the record. A possible alternative view on the computation or re-appreciation of the material is not, by itself, sufficient to warrant interference in writ jurisdiction.
In the present case, the Labour Court has proceeded on the basis of a final Award which had conclusively determined the entitlement of respondent No.2 to reinstatement and 50% back wages. It has relied upon the finding regarding the wage rate contained in the original Award and has thereafter computed the monetary benefit. The exercise thus falls within the broad ambit of Section 33-C(2), which enables the Labour Court to compute a benefit flowing from an existing adjudicated right.
It is important to emphasise that permitting respondent No.2 to seek computation of the monetary benefit under Section 33-C(2) does not amount to permitting him to reopen or enlarge the Award. Rather, it gives effect to the adjudication which the petitioner permitted to attain finality. The petitioner cannot, at the stage of computation, reopen the substantive entitlement already determined in the original proceedings.
For the reasons recorded above, this Court finds no jurisdictional error or perversity in the decision of the Labour Court to entertain the application under Section 33-C(2) of the Act and to compute the monetary benefit on the basis of the final Award dated 14.01.2010.
Consequently, the present writ petition is dismissed. The impugned order dated 16.12.2016 passed by the learned Industrial Tribunal-cum-Labour Court, U.T. Chandigarh, in LCA No.201 of 2011 is upheld.
All pending miscellaneous applications, if any, also stand disposed of.