Admittedly, the 2nd respondent has not challenged the orders placing him under "put off duty". The claim of the 2nd respondent before the 1st respondent was on the basis that he was entitled to wages during the period he was "put off duty", which is disputed by the petitioner-Corporation. In an application under Section 33-C(2) of the Act, the correctness of the decision of the petitioner- Corporation in placing the 2nd respondent on put off duty and denying him wages for the said period, cannot be gone into. But the 1st respondent has gone into the said issue and acted as if it is deciding the question as to whether wages for the said period could be denied to the 2nd respondent by the petitioner- Corporation, which could only be decided in a proceeding when a reference under Section 10 of the Act is made to it. Therefore, the 1st respondent acted without jurisdiction in deciding the said issue and in directing payment of wages for the put off duty period and also ex-gratia to the 2nd respondent. Moreover, an application under Section 33-C of the Act has to be made within a period of one year from the date of on which the money became due to the workmen from the employer as per the proviso to Section 33-C(1) of the Act. In the present case, assuming for the sake of argument, without conceding that an application under Section 33-C of the Act can be made by the 2nd respondent, he should have made that application within one year from 7.11.1989 i.e. the day on which he was reinstated. Instead, the application has been filed by him more than nine years after the amounts allegedly became due to him. Therefore, the application itself is hopelessly barred by time. On the above analysis, this writ petition is allowed and the impugned order dated 25.02.2000 in M.P.No.4 of 1998 passed by the 1st respondent is set aside.

HON'BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE          

WRIT PETITION No.13683 OF 2000  

29-10-2012

APSRTC REP. BY ITS MANAGING DIRECTOR MUSHEERABAD, HYDERABAD AND OTHERS                                

LABOUR COURT II, HYDERABAD REP. BY ITS PRESIDING OFFICER AND ANOTHER              

Counsel for the petitioner: Standing Counsel for APSRTC

Counsel for the respondents: GOVT. PLEADER FOR LABOUR      

<Gist:

>Head Note:

?CITATIONS:

ORDER:

        This writ petition has been filed by the Andhra Pradesh State Road
Transport Corporation challenging the order dated 25-02-2000 in M.P.No.4 of 1998
passed by the 1st respondent-Labour Court II, Hyderabad.

The said Miscellaneous Petition was filed by the 2nd respondent under Section
33-C(2) of the Industrial Disputes Act, 1947 (for short 'the Act') contending
that he was working as a conductor in the petitioner-Corporation on daily wages;
that on 14-11-1988 there was a check by a TTI and a charge memo was issued to  
him; that the petitioner had issued orders keeping him under put off duty from
15.11.1988; that after an enquiry by the petitioner, the order putting the 2nd
respondent off duty was lifted and he was taken back on duty on 8.11.1989. The
2nd respondent, therefore, claimed that the relationship of an employer and an
employee was subsisting during the period from 14.11.1988 to 7.11.1989 and
therefore he was entitled to Rs.17,039-40 ps towards wages from 15.11.1988 to
7.11.1989 and ex-gratia of wages from 4.10.88 to 7.11.1989.

        The petitioner-Corporation filed a counter affidavit stating that the 2nd
respondent/petitioner was working only as a conductor on daily wage basis, that
he was therefore not an employee of the Corporation and hence he is not entitled
to claim any amount for the period during which he did not perform any duty. It
also contended that the services of the 2nd respondent/petitioner were not
utilised      on line as he was involved in serious cash and ticket
irregularities and that as per the terms and conditions of 2nd respondent's
appointment, he is not entitled to wages on the days when his services were not
utilised.

The Labour Court by an order dated 25.2.2000 in M.P.No.4 of 1998 allowed the
application in-part holding that the 2nd respondent is entitled to (a) a sum of
Rs.12,188/- towards wages for the put off duty period and period of depot spare
after deducting an amount of Rs.1,356/- towards Provident Fund and (b) to a sum
of Rs.1,283-50 ps towards ex-gratia of wages for the period from 4.10.1988 to
7.11.1989. Challenging the same the present writ petition has been filed by the
Corporation.

        Even though notice has been served on the 2nd respondent, there is no
representation on his behalf either in person or through counsel.

        On 9.11.2000 the writ petition was admitted and in WPMP.No.7423 of 2000
this court granted interim suspension of the impugned order on condition of the
petitioner-Corporation depositing half of the amount awarded by the Labour Court
within six weeks from that day and permitted the 2nd respondent to withdraw the
same without furnishing any security.

        Heard Sri.H.Venugopal, learned Standing Counsel for the petitioner-
Corporation. He contended that the 2nd respondent was engaged as a casual
conductor on daily wage basis at Narayankhed Depot of the petitioner-
Corporation; that on 14.11.1988 a check was conducted by the checking officials
and it was detected that the        2nd respondent committed cash and ticket
irregularities; that the check officials issued a charge memo to the 2nd
respondent on the spot and also sent a memo to the concerned Depot to withdraw
the                 2nd respondent from duty and that the Depot Manager,
Narayankhed Depot withdrew the 2nd respondent from duty and kept him under put
off duty w.e.f. 15.11.1988. It is also contended that a detailed enquiry was
conducted into the charges, but subsequently the put off duty was lifted on
humanitarian grounds and the 2nd respondent was posted to Zaheerabad Depot for
re-engagement as a casual conductor on daily wage basis w.e.f.8.11.1989. It is
further contended that after a long lapse of ten years the 2nd respondent filed
M.P.No.4 of 1998 before the 1st respondent under Section 33-C(2) of the Act
claiming amount towards wages allegedly payable to him for the period from
15.11.1988 to 7.11.1989 and also ex-gratia  and that the                  1st
respondent on an erroneous and perverse view of the matter wrongly allowed the
petition and passed the impugned order dated 25.2.2000.

        In the grounds raised in the writ petition it is contended,          inter
alia, (a) that M.P.No.4 of 1998 is barred by time as an application under
Section 33-C(2) of the Act can be made only within one year from the date on
which the money became due and that no explanation for the delay was furnished
by the 2nd respondent and therefore the 1st respondent should have rejected the
petition under Section 33-C(2) of the Act as having become barred by time; (b)
that the application under Section 33-C(2) is only in the nature of an execution
application, but not one for determination of rights and unless the rights of
the 2nd respondent were already determined in an adjudication by the appropriate
forum, an application for recovery of the amount under Section 33-C(2) cannot be
filed; (c) that where the right to claim the amount is disputed, the claim can
only be settled under Section 10 of the Act and that an application under
Section 33-C(2) of the Act would not lie; (d) that the 2nd respondent was
admittedly put off duty from 15.11.1988 to 7.11.1989 and that this order has not
been challenged by the 2nd respondent and as long as that order stands, the 2nd
respondent is not entitled to claim wages/ex-gratia for the period from
15.11.1988 to 7.11.1989.

        I find force in the contentions raised by the learned counsel for the
petitioner-Corporation. Section 33-C of the Act reads as follows:

"  33-C. Recovery of money due from an employer: 

(1) Where any money is due to a workman from an  employer under a settlement or 
an award or under the provisions of 4*[Chapter VA or Chapter VB], the workman
himself or any other person authorised by him in writing in this behalf, or, in
the case of the death of the workman, his assignee or heirs may, without
prejudice to any other mode of recovery, make an application to the appropriate
Government for the recovery of the money due to him, and if the appropriate
Government is satisfied that any money is so due, it shall issue a certificate
for that amount to the Collector who shall proceed to recover the same in the
same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date
on which the money became due to the workman from the employer:   

Provided further that any such application may be entertained after the expiry
of the said period of one year, if the appropriate Government is satisfied that
the applicant had sufficient cause for not making the application within the
said period.

(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; 1[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.]

(3) For the purposes of computing the money value of a benefit, the Labour Court
may, if it so thinks fit, appoint a commissioner who shall, after taking such
evidence as may be necessary, submit a report 
to the Labour Court and the Labour Court shall determine the amount after
considering the report of the commissioner and other circumstances of the case.

(4) The decision of the Labour Court shall be forwarded by it to the appropriate
Government and any amount found due by the Labour Court may be recovered in the  
manner provided for in sub-section (1).

(5) Where workmen employed under the same employer are entitled to receive from 
him any money or any benefit capable of being computed in terms of money, then,
subject to such rules as may be made in this behalf, a single application for
the recovery of the amount due may be made on behalf of or in respect of any
number of such workmen.  

Explanation--In this section "Labour Court" includes any court constituted under
any law relating to investigation and settlement of industrial disputes in force
in any State."


        In CENTRAL INLAND WATER TRANSPORT CORPORATION LTD. v. WORKMEN1, the                 
Supreme Court held as follows:
        "       12.     It is now well settled that a proceeding under Section 33C (2)
is a proceeding, generally, in the nature of an execution proceeding wherein the
Labour Court calculates the amount of money due to a workman from his employer, 
or if the workman is entitled to any benefit which is capable of being computed
in terms of money, the Labour Court proceeds to compute the benefit in terms of
money. This calculation or computation follows upon an existing right to the
money or benefit, in view of its being previously adjudged, or, otherwise, duly
provided for. In CHIEF MINING ENGINEER EAST INDIA COAL CO. LTD. v. RAMESWAR2 it         
was reiterated that proceedings under Section 33C(2) are analogous to execution
proceedings and the Labour Court called upon to compute in terms of money the
benefit claimed by workmen is in such cases in the position of an executing
court. It was also reiterated that the right to the benefit which is sought to
be computed must be an existing one, that is to say, already adjudicated upon or
provided for and must arise in the course of and in relation to the relationship
between an industrial workman and his employer."

This view has been reiterated in MUNICIPAL CORPORATION OF DELHI v. GANESH RAZAK3        
and also in STATE BANK OF INDIA v RAM CHANDRA DUBEY4.        

        Admittedly, the 2nd respondent has not challenged the orders placing him
under "put off duty". The claim of the 2nd respondent before the 1st respondent
was on the basis that he was entitled to wages during the period he was "put off
duty", which is disputed by the petitioner-Corporation. In an application under
Section 33-C(2) of the Act, the correctness of the decision of the petitioner-
Corporation in placing the 2nd respondent on put off duty and denying him wages
for the said period, cannot be gone into. But the 1st respondent has gone into
the said issue and acted as if it is deciding the question as to whether wages
for the said period could be denied to the 2nd respondent by the petitioner-
Corporation, which could only be decided in a proceeding when a reference under
Section 10 of the Act is made to it. Therefore, the 1st respondent acted without
jurisdiction in deciding the said issue and in directing payment of wages for
the put off duty period and also ex-gratia to the 2nd respondent. Moreover, an
application under Section 33-C of the Act has to be made within a period of one
year from the date of on which the money became due to the workmen from the 
employer as per the proviso to Section 33-C(1) of the Act. In the present case,
assuming for the sake of argument, without conceding that an application under
Section 33-C of the Act can be made by the 2nd respondent, he should have made  
that application within one year from 7.11.1989 i.e. the day on which he was
reinstated. Instead, the application has been filed by him more than nine years
after the amounts allegedly became due to him. Therefore, the application itself
is hopelessly barred by time.

        On the above analysis, this writ petition is allowed and the impugned
order dated 25.02.2000 in M.P.No.4 of 1998 passed by the 1st respondent is set
aside.

(M.S.RAMACHANDRA RAO,J)