Important PointBenefit sought to be enforced u/s. 33-C(2) of Industrial Disputes Act is necessarily a pre-existing benefit or one flowing from a pre-existing right.

Judgment

Arijit Pasayat, J.—Challenge in these appeals is to the common judgment rendered by a Division Bench of the Gujarat High Court holding that the applications of the respondents before the Labour Court (Central) Ahmedabad, in terms of Section 33-C(2) of the Industrial Disputes Act, 1947 (in short ‘the Act’) were maintainable.

2. Background facts in a nutshell are as follows :

By a common judgment and order dated 4.5.2000 the Labour Court allowed the claims made by the respondents-workmen in the recovery applications filed under Section 33-C(2) of the Act in respect of certain claims of overtime allowance which according to them was payable in view of what is called as ‘on and off duty’ for taking out and bringing in locomotives from the shed as was required to be done for the purpose of operating them at and from different stations. Apart from questioning the legality of the claims preliminary objection to the maintainability of the applications under Section 33-C(2) of the Act was raised. The Labour Court, however, did not accept the same and held that the applications were maintainable, relying on certain earlier adjudications by the Labour Court and the High Court. Writ petitions were filed under Articles 226 and 227 of the Constitution of India, 1950 (in short ‘the Constitution’) by the appellants questioning correctness of the Labour Court’s award. Learned Single Judge held that on the basis of materials on record the entitlements were rightly worked out and, therefore, the recovery applications were maintainable. Letters Patent Appeals were filed before the High Court which by the impugned judgment dismissed them. It was held that instructions issued under Section 71-A to 71-H of the Indian Railways Act, 1890 (in short ‘the Railways Act’) and the Railway Servants (Hours of Employment) Rules, 1961 (in short ‘the Employees Rules’) did not in any way help the case of the appellants and in any event the applications under Section 33-C(2) of the Act were maintainable, as held by the High Court earlier.

3. In support of the appeals, learned counsel for the appellants submitted that the true scope and ambit of Section 33-C(2) of the Act has not been kept in view. Learned counsel for the respondents on the other hand submitted that in similar cases reliefs have been granted and the challenge thereto had been repelled by the High Court. The respondents were similarly situated and, therefore, the appeals deserve to be dismissed. Reliance is placed on a decision of this Court in Director General (Works), C.P.W.D. v. Ashok Kumar and Ors. 1999(9) SCC 167) in support of the stand.

4. In the case of State Bank of India vs. Ram Chandra Dubey & Ors., (2001) 1 SCC 73), this Court held as under :

"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.

8. 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 emplo