1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The petitioners, Western Coalfields Limited (WCL), a Central India undertaking, is aggrieved by the judgment of the Labour Court dated 5.5.2018, by which, application (IDA) No. 31/2014, filed by the respondent employee under section 33(C) (2) of the Industrial Disputes Act, 1947 (ID Act), was partly allowed and the following direction was issued by the Court:
1] The application is partly allowed.
2] The non-applicants are hereby directed to determine and calculate the arrears of difference of wages from 9.1.1974 to 31.3.2014 (till retirement of applicant) and to pay the same to the applicant.
3] No order as to costs”.
3. I have considered the strenuous submission of the learned Advocates for the petitioner and the sole respondent, who was the original applicant.
4. The applicant was appointed by the petitioners as a Steno/Personal Assistant on 9.1.1974. The order was issued by petitioner No. 3 Sub-area Manager, WCL, Silewara Sub-area. He was placed in the pay scale of Rs. 305-15-395-20-575. He claims to have been regularized on a post available to a Senior Stenographer in the higher grade pay scale. He was posted in grade-C and he contended before the Labour Court that as the management misplaced his service record, he was continued in grade-C, instead of grade-B. If the service book was available, the management would have posted him in grade-B, which is a higher grade pay scale of a Senior Stenographer. Initially, he was posted in grade-D in 1975 and after completion of 240 days, he acquired the right to be posted in grade-B. It was specifically contended in the claim before the Labour Court that he was regularized as a Junior Stenographer grade-C and was continued as such when he superannuated on 31.3.2014. The management should have posted him in grade-B and his grade pay scale should have been increased to Rs. 510-27-726-32-854. The Labour Court, should therefore, calculate the difference of his pay scale in between grade-C and grade-B from 9.1.1974 till 2014 and direct the management to make such payments.
5. The petitioners establishment filed its written statement and submitted that the applicant was initially appointed on the post of Mine Majdoor, Category-1 on 9.1.1974, in the pay scale of Rs. 5.00 – 0.10-6-00. He was thereafter, regularized and promoted as per the rules and was paid wages for the post that he had occupied. Promotion as Personal Assistant T&S – grade-B, was not granted by the management due to non fulfillment of a requisite grade test which was mandatory. He was time and again, called upon to appear for the trade test on several occasions and he absented on each occasion. The applicant has been granted up-gradation in pay after every eight years as per the scheme of Service Linked Up-gradation/ Promotion as per the National Coal Wage Agreement.
6. The management specifically took an objecting stand that the claim of the applicant based on the following averments that he had made before the Labour Court under section 33(C)(2), was not tenable:-
(a) The management misplaced his service record;
(b) The management should have granted him higher grade pay scale fixation;
(c) The management should have placed him in higher grade stenographer;
(d) The management should have posted him in grade -B;
(e) The management, by continuing him in grade-C instead of grade-B, has committed an illegality, and therefore his pay scale should be fixed and pursuant thereto, the difference in the unpaid amount, should be assessed and the application under section 33(C)(2), should be allowed.
7. The respondent original applicant, party in person, who is now a practicing advocate pursuant to his retirement, submits that the management did not allow him to appear in the trade test and it was because the management did not relieve him from duties, that he was not able to take the said test. He further submits that he has worked for 40 years as a senior stenographer in grade-B and the management has always deprived him of the actual grade- B and has failed to fix his higher grade pay scale. He had approached the Assistant Commissioner, Labour (Central) at Nagpur by moving an application under section 33(C)(2) of the ID Act in 2014. The ACL Central issued him a communication dated 5.1.2015, stating that since his application is filed under section 33(C)2, the ACL did not have jurisdiction and he should approach the Labour cum Industrial Court, for an appropriate remedy.
8. I do not find that the ACL Central has committed any error since the application filed by the applicant was under section 33(C)(2) and the ACL Central has no jurisdiction under the said provision. The ACL Central would have jurisdiction under section 33(C)(1) of the ID Act and not under section 33(C)(2). Nevertheless, it appears that the ACL Central had advised the applicant to approach the Labour cum Industrial Court.
9. The petitioner management pursued it’s objection to the maintainability of the proceedings vide application Exh.C-2. As the said application was pending, the petitioners approached this Court in Writ Petition No. 7754/2017. By order dated 10.1.2018, this Court permitted the petitioner to withdraw Exh. C- 2 and directed the Labour Court to decide the issue of maintainability along with all other issue.
10. In the above backdrop, I have perused the judgment impugned in this petition. An issue at A-1 was framed by the Labour Court as regards the maintainability of the proceedings. Despite having been cited the judgments delivered by the Hon’ble Apex Court in the matter of State of U.P. & Anr Vs. Brijpal Singh [(2005)8 SCC 58], East Coal India Co. Ltd Vs. Rameshwar [1968(1) Lab.I.C.6] and Dr. Krishnan & Anr vs. Special Officer, Vellore Co-operation Sugar Mill & Anr, [(2008)7, SCC 22], the Labour Court did not even consider the record and the disputed issues raised before it and concluded that as there were long term agreements between the employees and the petitioner industry, the application filed by the applicant under 33(C)(2), was maintainable. To say the least, the Labour Court has completely ignored the disputed questions, as have been recorded in the foregoing paragraph.
11. It is settled law that the Labour Court, under section 33(C)(2), can decide ancillary issues when it comes to calculating the unpaid amounts payable to an employee. A preexisting right would indicate that such a right either flows from the service conditions of the employee or through certain orders issued to him or under a judgment or award delivered earlier in any particular proceeding. In the instant case, the contentions of the applicant, at the cost of repetition, are as under:
(a) His appointment and various promotional orders indicate that he travelled from the position of a Majdoor to P.A. grade-C.
(b) At no point in time, was he selected by the Departmental Promotion Committee (DPC), so as to be granted the position of P.A. grade-B.
(c) He claims to have been discharging duties equivalent to P.A. grade-B which is a disputed issue and has not been crystallized by any authority or Court since the applicant did not raise the said issue during his service of 40 years.
(d) He did not pass the requisite trade test for any reason whatsoever, which would dis-entitle him to higher grade pay scale fixation equivalent to P.A. grade-B.
(e) His claim was based on his assumption that if his service book was traced out, the management could have granted him P.A. grade-B and then he would have acquired higher grade pay scale fixation which would have enhanced his pensionary benefits and these issues should be dealt with by the Labour Court under section 33(C)(2).
12. I find that the scope of section 33(C)(2), is not to entertain disputed issues as above and exercise jurisdiction as if it is dealing with an industrial dispute under section 2(k) of the ID Act referred to a tribunal or by treating the application under section 33(C)(2) to be a ULP complaint under Item 5 and 9 of Schedule IV of the MRTU & PULP Act, 1971. It is also a matter of circumspection as to whether a claim could fall under the MRTU & PULP Act, keeping in view that the petitioner is a Central Government undertaking and the appropriate Government under section 2(a) would be the Central Government.
13. It is very unfortunate that the applicant has approached the Labour Court under section 33(C)(2), which remedy was not be available to him. Having spent 40 years in service and 6 years in litigation, he had to suffer hardships. A judgment delivered without jurisdiction would be non-est and unsustainable. The Labour Court completely ignored the above aspects and has casually concluded that it had jurisdiction.
14. Considering the above, though I am interfering in the impugned judgment, I find it appropriate to permit the respondent employee to approach the Assistant Commissioner, Labour (Central) by raising a dispute under section 2(k) at Nagpur so that he could raise all above stated issues before the appropriate authority / conciliation officer.
15. In view of the above, this petition is allowed. The impugned judgment of the Labour Court dated 5.5.2018, is quashed and set aside. Application (ID
Please Login To View The Full Judgment!
A) No. 31/2014 stands rejected on account of being untenable. I, however, find it appropriate to record that the learned Advocate for the petitioners has made a statement that the benefits available to the applicant under the Memorandum of Agreement Exh. U-53 and other agreements that succeeded the earlier agreement, have been paid to him. 16. If the respondent approaches the appropriate authority in view of the liberty granted as above, the conciliation officer shall ensure that the conciliation proceedings are concluded within four months from the date of the dispute under section 2(k) and if he finds that the case can be resolved, he shall endeavour to do so. However, if he is constrained to file a failure report and notices that the dispute raised by the employee deserves adjudication, he would refer the same to the appropriate Industrial Tribunal and in this situation, the Industrial Tribunal would endeavour to decide the said reference within two years from the date of it’s registration. 17. Rule is made absolute accordingly.