2005 Supreme(SC) 1251

2005(6) Supreme 692
Supreme Court of India
(From Allahabad High Court)
Mrs. Ruma Pal, Dr. AR. Lakshmanan & R.V. Raveendran, JJ.
State of U.P. & Anr. —Appellants
versus
Brijpal Singh —Respondent
Civil Appeal No. 5910 of 2005
(Arising out of SLP (Civil) No. 182 of 2003)
Decided on 27-9-2005
Counsel for the Parties :
For the Appellants : Dileep Tandon and Praveen Swarup, Advocates.
For the Respondent : Mrs. Shyamla Pappu, Sr. Advocate, R. Krishnamoorthi and Mohan Pandey, Advocates.

Important point
Where High Court in a writ petition challenging order of termination of services passed interim order staying operation of order, workman would not be entitled to prosecute claim for salary and other benefit under Section 33C(2) of Industrial Disputes Act merely on ground that order of termination had been stayed by interim order.

Headnote:Labour Law—Industrial Disputes Act, 1947—Section 33C(2)—Recovery of money due from an employer—Respondent was appointed as Seasonal Clerk on temporary and ad hoc basis in office of Senior Marketing Inspector on stop gap arrangement—Services were terminated on 3.7.1987—Workman filed writ petition and by interim order High Court stayed operation of order of termination—Respondent workman filed application for payment of salary and bonus from July 1987 to July 1993 in Labour Court—Labour Court allowed the application and High Court dismissed the writ against that order—Appeal—Workman could proceed u/s 33C(2) of the Act only after the Tribunal had adjudicated on a complaint under Section 33A or on a reference under Section 10 of the Act—Labour Court had no jurisdiction to adjudicate the claim made by respondent in an undetermined claim—Impugned order was liable to be set aside—High Court to decide workman’s writ petition against termination order within three months.

       Held : It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. Vs. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or 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 the industrial workman, and his employer. (Para 10)

       Thus it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shymala Pappu that the respondent-workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33C(2) of the I.D. Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court. The High Court has also equally committed a manifest error in not considering the scope of Section 33C(2) of the I.D. Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23.8.1995 and the order dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995 as illegal and uncalled for. We do so accordingly. (Para 13)