daily wages services = It is not in dispute that the petitioner was only on daily wages by the time he was retrenched or discontinued. The reinstatement can be only in that capacity. The delay in the matter of compliance with the award occurred on account of the insistence by the petitioner that he be employed as Site Engineer. No record was placed before the Labour Court to suggest that he held that post when he was retrenched. Therefore, the petitioner cannot claim the wages for the period during which he was not reinstated. Even otherwise, if the petitioner was of the view that he is entitled to be paid wages for the period between the date of award and 18.12.1996 on which date the E.P. was closed, he ought to have made a request in that behalf in the execution petition itself. He was not entitled to file a separate application for the period that preceded the date of order in the E.P. An application under Section 33(C)(2) of the Act can be filed only in respect of recovery of amount either which was already adjudicated or as regards which there is no dispute. Therefore, the petitioner was not entitled to file the application under that provision. The Labour Court has taken the correct view of the matter.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Writ Petition No. 6622 of 2001

26.07.2012

G. Sammaiah

The Mandal Revenue Officer and others

Counsel for the Petitioner: Smt. S.A.V. Ratnam

Counsel for the respondents: G.P. for Revenue

<Gist:

>Head Note:

? CITATIONS:

ORDER:
       

The petitioner was engaged by the Executive Engineer of
 Warangal District Scheduled Caste Service Co-operative Society Limited, the 2nd
respondent herein, on daily wage basis.  Complaining that he was removed from
service, contrary to Section 25-F of the Industrial Disputes Act, 1947 (for
short 'the Act'), he filed I.D.No.123 of 1991 before the Industrial Tribunal-
cum-Labour Court, Warangal.  An award was passed in the I.D., on 25.06.1994,
setting aside the order of removal and directing reinstatement of the petitioner
into service, without back-wages, but with continuity of service.

The 2nd respondent issued an order for reinstatement of the petitioner on daily
wage basis.  The petitioner did not join the duty on the ground that his
appointment ought to have been
as Site Engineer, with scale of pay.  Therefore, he filed E.P.No.43 of 1994.
The E.P was allowed on 30.10.1996.  Ultimately, the petitioner was issued orders
of appointment on 18.12.1996, and the E.P was closed, in terms thereof.

The petitioner filed Miscellaneous Petition No.2 of 1997, under Section 33(C) of
the Act, claiming a sum of Rs.76,320/-, representing the unpaid wages, from
31.10.1994 to 17.12.1996.  He pleaded that the failure on the part of the 2nd
respondent to reinstate him into service, forthwith, has resulted in loss of
wages, and that he is entitled to be paid the same.  The 2nd respondent opposed
the matter.  Through its order, dated 04.01.2000, the Labour Court dismissed the
M.P.  Hence, this writ petition.

The petitioner contends that the Labour Court was not justified in denying him,
the relief under Section 33(C)(2) of the Act.  He contends that he was entitled
to be reinstated into service, in terms of the award, and the delay on the part
of the respondents in reinstating him into service cannot be countenanced.

The 2nd respondent filed a counter-affidavit.  According to him, though an order
of reinstatement was issued, the petitioner did not report to duty, and he went
on demanding the appointment as Site Engineer, with scale of pay.
Smt.S.A.V.Ratnam, learned counsel for the petitioner, submits that the Tribunal
was not justified in rejecting the application, when undisputedly the
respondents did not pay the salary, for the period from 31.10.1994 to
17.12.1996.  She contends that failure on the part of the respondents to pay the
salary has defeated the directions issued by the Tribunal in its award in the
I.D., as regards reinstatement and continuity of service.
Learned Standing Counsel for the 2nd respondent, on the other hand, submits that
when the very reinstatement was on the strength of an order passed in the E.P.,
the petitioner cannot maintain a separate application under Section 33 of the
Act.
The petitioner challenged the action of the respondents in removing him from
service, in violation of Section 25 of the Act by filing I.D.No.123 of 1991.  In
its award, dated 25.06.1994, the Labour Court directed reinstatement with
continuity of service.  Some uncertainty prevailed, in the context of
reinstatement of the petitioner.  While the respondents insisted that the
petitioner was only on daily wages, when he was discontinued from service, the
petitioner insisted that he must be reinstated as Site Engineer.  Ultimately,
the petitioner filed E.P.No.43 of 1984 and he came to be reinstated, on
18.12.1996 on the basis of the orders passed in the E.P., on 30.10.1996.
        It is not in dispute that the petitioner was only on daily wages by the
time he was retrenched or discontinued.  The reinstatement can be only in that
capacity. The delay in the matter of compliance with the award occurred on
account of the insistence by the petitioner that he be employed as Site
Engineer. No record was placed before the Labour Court to suggest that he held
that post when he was retrenched.  Therefore, the petitioner cannot claim the
wages for the period during which he was not reinstated.  Even otherwise, if the
petitioner was of the view that he is entitled to be paid wages for the period
between the date of award and 18.12.1996 on which date the E.P. was closed, he 
ought to have made a request in that behalf in the execution petition itself.
He was not entitled to file a separate application for the period that preceded
the date of order in the E.P. An application under Section 33(C)(2) of the Act
can be filed only in respect of recovery of amount either which was already
adjudicated or as regards which there is no dispute.  Therefore, the petitioner
was not entitled to file the application under that provision.  The Labour Court
has taken the correct view of the matter.
        Hence, the writ petition is dismissed.  There shall be no order as to
costs.

The miscellaneous petition filed in this writ petition also stands disposed of.

_____________________  
L.NARASIMHA REDDY,J    

Dt:26.07.2012.