HON'BLE Ms. JUSTICE G. ROHINI AND THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
WRIT APPEAL NO.412 OF 2011
05.10.2012
M. Narasimha Reddy S/o Balireddy And another.
The Management, A.P Dairy Development Co-Operative Federation Ltd, Lalapet,
Hyderabad Rep. by the General Manager (M.P.F)And another.
<GIST:
HEAD NOTE:
!Counsel for Appellant Sri K.K. Chakravarthy
Counsel for 1st Respondent: Sri M. Dilip Rao, Standing counsel for APDDCFL.
Counsel for 2nd Respondent: G.P. for Labour.
?Cases referred
1 AIR (SC) (1964) 743
2 2003 (2) LLN 702
3 2006 - III - LLJ
4 AIR 2006 SC 3220
5 2001 (1) SCC 73
ORDER:
(Per CPK, J)
1 The short questions that arise for consideration in this Writ Appeal are
1) whether the Industrial Tribunal-cum-Additional Labour Court has exceeded its
jurisdiction in entertaining the application made by the appellants herein under
Section 33 C (2) of Industrial Disputes Act, 1947 (for short 'the Act') and 2)
Whether the Voluntary Retirement Scheme notified by the Respondents herein vide
circular No.1947/per.V-2/89 dated 03.09.1996 cover the service rendered by the
employee/appellant on casual basis.
2 Few facts which are necessary for disposal of the case are as under:
The appellant was an employee of the A.P. Dairy Development Co-operative
Federation Limited (hereinafter referred to as 'Federation'). He joined in the
service initially on casual basis with effect from 01.04.1971 and thereafter he
was absorbed into regular service in a time scale. He was there in service till
17.05.1997. While the appellant was in service, the Government of Andhra Pradesh
vide Memo No.1038/PE.1/A2/94-4 dated 23.01.1996 issued consolidated guidelines
for a Voluntary Retirement Scheme to the employees of Public Enterprises, Co-
Operative Institutions and other State undertakings. It is apt to mention that
under Clause 4, the scheme was not made applicable to
a) Employees who are due to retire on superannuation within a year from the date
of application,
b) Deputations,
c) Temporary or Casual Employees and employees on consolidated wages,
d) Employees on contract Basis,
e) Employees where proceedings for termination of employment on disciplinary
grounds of unsatisfactory performance while in service is in progress.
The said guidelines were also implemented by the respondent Federation
vide circular dated 03.09.1996 and called the applications from its employees
from 01.09.1996. The appellant opted for Voluntary Retirement Scheme and his
application was accepted. As such he was allowed to retire voluntarily as per
scheme by extending all the benefits which he is entitled to. Consequently he
retired on 17.05.1997 after receiving all the benefits.
3 Having retired in the year 1997, the appellant slept over his rights and
for reasons best known, approached the Labour Court in the year 2005 by way of
filing M.P.No.18 of 2005 claiming an amount of Rs.29,170/- with interest towards
exgratia, gratuity and notice pay of one month. According to him the
calculation for the benefits under the scheme has to be made from his initial
date of appointment i.e. 01.04.1971. The respondent Federation contested the
same on the ground that an application under Section 33 C (2) of the Act is not
maintainable as the claim made is in dispute and the Voluntary Retirement Scheme
cannot be extended to casual employees. In substance it is the contention of the
Federation that the period during which the employee was on contract / casual
basis cannot be taken into account for calculating the benefits under Voluntary
Retirement Scheme.
4 The Labour Court by its order dated 11.06.2007 allowed the M.P.No.18 of
2005 for recovery of Rs.29,170/- along with interest at 9% p.a from the date of
order till its realization.
5 Assailing the said order, the Federation filed Writ Petition No.188 of
2008 before this Hon'ble Court reiterating the same stand taken before the
Labour Court. A learned Judge of this Hon'ble Court by his order dated
14.06.2010 allowed the Writ Petition and consequently set aside the order dated
11.06.2007 passed by the Labour Court in M.P.No.18 of 2005.
6 Aggrieved by the same, the employee is before us, contending that the
learned single Judge did not consider the ratio laid down by a Constitution
Bench of Supreme Court in Central Bank of India Vs. P.S. Rajagopalan1 and also a
judgment of Jarkhand High Court in Laljit Bhuiya Vs. Bharat Coking Coal, Ltd and
others2 for the proposition that the Labour Court has jurisdiction to deal with
the question as to whether the workman has a right to receive the benefit when
the said benefit is under dispute. It is further contended that Voluntary
Retirement Scheme applies even to a workman appointed on casual basis as the Act
makes no distinction between a permanent employee and a temporary employee. On
the other hand, the learned counsel for the Federation would contend that the
learned single Judge has considered the aspects and the said order warrants no
interference from this Court.
7 A look at Section 33 C (2) of the Act may be necessary to decide as to
whether the Labour Court has exceeded its jurisdiction in entertaining the
application filed under Section 33 C (2) of the Act. The said Section reads as
under:
(2) Where any workman is entitled to receive from the employer any money or
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 as to the amount at which such
benefit should be computed, then the question may, subject to any rules that may
be made under this Act, be decided by such Labour Court as may be specified in
this behalf by the appropriate Government (within a period not exceeding three
months)
(PROVIDED that where the presiding officer of a Labour Court considers it
necessary or expedient so to do, he may, for reasons to be recorded in writing,
extend such period by such further period as he may think fit.)
A reading of the said section clearly indicates that any workman is
entitled to receive from the employer any money or any benefit which is capable
of being computed in terms of money, such amount can be claimed by way of an
application under that provision. The emphasis is obviously on the words
'entitled to receive'.
8 The judgment of High Court of Jharkhand in Laljit Bhuiya (2 supra) relied
upon by the learned counsel for the appellant was dealing with a situation where
an employee was engaged on casual status in 1973 and continued as such till
1989. Taking into consideration the fact of employee being in service for 16
years as casual workers, the Court took the view that the benefit under
Voluntary Retirement Scheme should be extended. The judgment of High Court of
Delhi in Delhi Cantonment Board Vs. Central Government Industrial Tribunal and
others3 relied upon by the learned counsel for the appellant will not apply to
the case on hand. It was a case where a Division Bench of High Court of Delhi
was dealing with the applicability of Section 25 F of the Act to workman. The
Court having found that the employees therein were workman under the Act, held
that their services cannot be terminated without following the procedure
contemplated under Section 25 F of the Act. The judgment of the Constitution
Bench of Supreme Court in Central Bank of India case (supra) was a case where
the employee of the Bank, besides attending to his routine duties as clerk, had
been operating the adding machine provided for use in the cleaning department of
the branch. They claimed RS.10/- as special allowance for operating the adding
machine as provided for under paragraph 164 (b) (1) of Sastry Award. The
Supreme Court while negating the claim of employees, dealt with Section 33 C (2)
of the Act and remanded the matter back to the Labour Court to decide whether
the nature of duties and responsibilities of the post held by the employees
legitimately justify the contention that they are Comptists. Therefore, the
judgment relied upon by the learned counsel will not apply to the case on hand.
9 On the other hand the learned counsel for the respondent relied on U.P.
State RTC Vs. Shri Birendra Bhandari4. It was a case where a claim petition
under Section 33 C (2) of the Act was filed for payment of arrears relating to
difference of salary, leave encashment, arrears of dearness allowance arising
out of implementation of recommendations of 5th Pay Commission are binding on
the Corporation and therefore dues are payable. The Supreme Court while holding
that the benefit which can be enforced under Section 33 C (2) should be a pre-
existing benefit or one flowing from a pre-existing right and by referring to
State Bank of India Vs. Ram Chandra Dubey5 summed up the findings as under:
The principles enunciated in the decisions referred by either side can be
summed up as follows: Whenever a workman is entitled to receive from his
employer any money or any benefit which is capable of being computed in terms of
money and which he is entitled to receive from his employer and is denied of
such benefit can approach Labour Court under Section 33C(2) of the Act. The
benefit sought to be enforced under Section 33C(2) of the Act is necessarily a
pre-existing benefit or one flowing from a pre-existing right. The difference
between a pre-existing right or benefit on one hand and the right or benefit,
which is considered, just and fair on the other hand is vital. The former falls
within jurisdiction of Labour Court exercising powers under Section 33C(2) of
the Act while the latter does not. It cannot be spelt out from the award in the
present case that such a right or benefit has accrued to the workman as the
specific question of the relief granted is confined only to the reinstatement
without stating anything more as to the back wages. Hence that relief must be
deemed to have been denied, for what is claimed but not granted necessarily gets
denied in judicial or quasi-judicial proceeding. Further when a question arises
as to the adjudication of a claim for back wages all relevant circumstances
which will have to be gone into, are to be considered in a judicious manner.
Therefore, the appropriate forum wherein such question of back wages could be
decided is only in a proceeding to whom a reference under Section 10 of the Act
is made. To state that merely upon reinstatement, a workman would be entitled,
under the terms of award, to all his arrears of pay and allowances would be
incorrect because several factors will have to be considered, as stated earlier,
to find out whether the workman is entitled to back wages at all and to what
extent. Therefore, we are of the view that the High Court ought not to have
presumed that the award of the Labour Court for grant of back wages is implied
in the relief of reinstatement or that the award of reinstatement itself
conferred right for claim of back wages.
10 An analysis of the above judgments would show that invoking the
jurisdiction of the Labour Court under Section 33 C (2) of the Act would depend
on the circumstances of the case more particularly with regard to the
entitlement of the employee over the claim made by him. Only the benefits
flowing from an existing right can be computed under Section 33 C (2) of the
Act.
11 In order to seek any benefit under Section 33 C (2) of the Act, primarily
the employee has to establish his entitlement to al the benefits under the
Voluntary Retirement Scheme. As stated above, the appellant worked till
17.05.1997. On the eve of his retirement under Voluntary Retirement Scheme he
took all the benefits which he was entitled to without disputing even the
quantum of money. After eight long years he approached the Labour Court
alleging that there was a mistake in calculating the benefits and his period of
service as casual employee should be reckoned with while calculating the
benefits. It may be noticed that in the present case, the Voluntary Retirement
Scheme notified by the Government specifically excludes the employees who were
appointed on temporary and casual basis. Clause 4 of the circular, as extracted
above, read with other provisions of the circular, clearly excludes the
employees who were appointed on temporary and casual basis and the benefit was
made applicable only for the employees who rendered regular services in the time
scale. Further the differential amount of Rs.29,170/- claimed by the appellant
is disputed by the Respondents. Disputed facts, where decision for
ascertainment of disputes is necessary, such matters cannot be decided under
Section 33 C (2) of the Act. In view of the above, it is clear that the
appellant is not entitled to any benefit of Voluntary Retirement Scheme where
the eligibility of the claimant and the claim for differential amount under
scheme is in dispute, the Tribunal could not have entertained the application
under Section 33 C (2) of the Act.
12 Further, as observed by the learned single Judge, the appellant having
subjected himself to the terms of the scheme and having accepted the benefits
under the scheme, cannot turn around after eight years and go back against
Voluntary Retirement Scheme claiming benefits which are beyond the scope of the
scheme. This practice of approaching the Courts at their whims and fancies have
to be deprecated more so when the appellant was aware of the situation in
question in 1997 itself.
13 In view of the above, we feel that there are no grounds to interfere with
the order of the learned single Judge and as such the Writ Appeal is dismissed.
No order as to costs.
______________
G. ROHINI, J.
_________________________
C. PRAVEEN KUMAR, J.
.10.2012
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