Point of Law : Labour Law – Default n payment of Back wages – Instead of paying amount as decided in Section 33C(2) of ID Act court do not hold that it has made default in payment of money to respondent.

JUDGMENT :

Abhijit Gangopadhyay, J .

1. This writ application by the employer is directed against the order passed by the Second Labour Court in connection with an application under Section 33C(2) of the Industrial Disputes Act, 1947, (ID Act, in short). The contention of the employee/petitioner is that the Labour Court while deciding the said application has acted going beyond the jurisdiction as it has virtually made out a case and consequently have granted some relief which was not granted by the Tribunal while passing the award in respect of reference made to it by the Government of West Bengal.

2. The writ petitioner has submitted that while the award says payment of full back wages etc., the Court under the 33C(2) application (2nd Labour Court) has awarded certain amounts in respect of VDA (variable dearness allowance), medical allowance and bonus. According to the petitioner the award did not say anything about the VDA, medical allowance and bonus but the 2nd Labour Court has granted those benefits to the employee. The 2nd Labour Court has also gone wrong while awarding interest on the amount due to the employee.

3. The employee was a Security person/Darwan in the Oil Mill of the petitioner. The employee/respondent therein was on unauthorised leave for some time. As it was unauthorised leave, disciplinary proceeding was initiated against him wherein he on the first day appeared with an outsider and therefore not allowed to participate and on next dates he remained absent and the proceeding was continued ex-parte and ultimately the employee was terminated.

4. This termination was challenged by the employee and thereupon a reference was made by the Government of West Bengal. The matter was heard by the 7th Industrial Tribunal wherein oral evidence was adduced by the parties and documents were exhibited.

5. The writ petitioner submits that as the 2nd Labour Court has gone beyond its jurisdiction and have recalculated the amount to be paid as wages to the employee/respondent and has included in the wages the VDA, medical allowance and the bonus, the order passed by the said court dated 31.07.2015 should be set aside. Placing the definition of wages as given in Section 2(rr) of the ID Act the petitioner has submitted that the wages can never include the VDA, the bonus and the medical allowance. It has further been submitted that the wages as is understood from the award has already been paid to the employee and no further amount is required to be paid as he is not entitled to it.

6. The employee/respondent has submitted that the definition of wages includes the dearness allowance and medical allowance as these components can be calculated in money value which comes within the meaning of wages as has been defined in Section 2(rr) of the ID Act, 1947. And bonus is consequence of wages and he is entitled to it. The employee/respondent further submitted showing his affidavit-in-opposition wherein the evidence adduced by the Company’s (i.e. the petitioner’s) witness has been recorded that the companies witness (two witnesses) nowhere in their evidence stated that the employee is not entitled to VDA, medical allowance and bonus. By referring to the evidence adduced it has also been submitted by the employee/respondent that the Company withheld the salary statement etc. to suppress it from the Tribunal that the employee was getting VDA, medical allowance and bonus.

He was also getting house rent which he could not prove and therefore it has not been included in the order passed by the 2nd Labour Court. In respect of the 2nd Labour Court’s decision in calculating the amount the employee/respondent has stated that the said Court under Section 33C(2) of the ID Act has never exceeded its jurisdiction, it only calculated the amount which comes within the definition and meaning of wages. The “consequential benefit” was included in the award and if something is calculated, what was given in the award, it can never be alleged that by making the ca