W. P. No. 2751 of 1987

14th November, 1990.

Petitioner Counsel: P. M. Patel
Respondent Counsel: S. M. Shah, Smt. Meena H. Doshi

JUDGMENT

JUDGMENT :- This Petition is directed against order dated 23rd September 1987 passed by the Assistant Commissioner of Labour, Bombay (Shri A. G. Naik), a copy whereof is Exhibit 'K' to the Petition. The short facts and circumstances leading to the filing of this Petition are as under :

2. On 19th March 1957, the Petitioner No. 2 was employed as clerk by Kohinoor Mills Co. Ltd. (Respondent No. 4 herein). On 1st October 1960, the Petitioner No. 1 was employed as clerk by the very same Company, i.e. Respondent No. 4 herein. On 18th October 1983, the President of India issued an Ordinance known as "The Textile Undertakings (Taking Over of Management) Ordinance, 1983" whereby the management of several textile undertakings, including Kohinoor Mills, was taken over by the Central Government. The National Textile Corporation (South Maharashtra) Ltd., Bombay (Respondent No. 3 therein), is an Additional Custodian of the Undertaking known as "Kohinoor Mills".

3. On 13th February 1985, the Rashtriya Mill Mazdoor Sangh, a representative Union for the local areas of the cotton textile industry in Greater Bombay, sent an approach notice under section 42(4) of the Bombay Industrial Relations Act, 1946, in respect of 1,654 employees, including the Petitioners, on the basis that the management had illegally refused to assign work to the said workmen. Ultimately, on 1st April 1985, Rashtriya Mill Mazdoor Sangh filed an application under sections 78 and 79 of the above-referred Act against the management and applied for interim relief. By an order dated 26th August 1986, the Presiding Officer, 3rd Labour Court, Bombay, passed an interim order on the said application, which reads as under :-

'The application is partly allowed.

It is hereby directed that the Opposite Parties should assign or give the usual work in the various departments of the Kohinoor Mills Nos. 1 and 2 on the pay, wages or salaries as before 18-1-1982 to 'these employees' mentioned in Annexure 'A' during the pendency of the main application and subject to its final decision. The Opposite Parties are given the period of 2 months from today to make the necessary arrangement of giving the work to these employees. On any date to be intimated well in advance by the Opposite Parties to the Union before expiry of the period of 2 months on 25-10-1986, the Opposite Parties should give the work to those employees from the list Annexure A whosoever would remain present. If it is not possible for the Opposite Parties to give the work to all those employees whosoever would remain present on the dates fixed by them or at the most on 25-10-1986 then it will be treated that all the employees are on duty with full back wages and accordingly they would be entitled to get the wages."

4. The Petitioners seek to recover a sum of Rs. 1,01,636.15 P. and Rs. 1,01,567.32 P. jointly and severally from the National Textile Corporation (South Maharashtra) Ltd., Bombay (Respondent No. 3 herein) and Kohinoor Mills Co. Ltd., Bombay (Respondent No. 4 herein) for the period 1st January 1982 to 30th April 1987 in execution of the said interim order dated 26th August 1986. The Petitioners also claimed salary for the month of June 1987 by addressing letters to the Chief Executive Officer of Kohinoor Mills Unions Nos. 1 and 2 on 12th July 1987. Copies of the said letters are annexed to the Petition as Exhibits 'H' and 'I'. The Petitioners approached the Assistant Commissioner of Labour for issue of recovery certificate, under section 33C(1) of the Industrial Disputes Act, 1947.

5. On 18th August 1987, the Petitioners filed this Petition for issue of a writ of mandamus directing the Assistant Commissioner of Labour, Bombay (Respondent No. 2 herein) to issue recovery certificates for the amounts claimed by the Petitioners for the period 1st January 1982 to 30th April 1987 and for the months of May and June 1987. Since there was some delay on the part of the Commissioner of Labour in processing the application of the Petitioners for issue of recovery certificates, the Petitioners applied to this Court for issue of necessary direction to the authority concerned to decide the said application expeditiously. By an order dated 24th August 1987, Kurdukar, J., directed the Respondent No. 1-State and the Respondent No. 2-Assistant Commissioner of Labour to decide the application of the Petitioners expeditiously. The Petitioners have and had made it clear that the Petitioners had made the said application to the Commissioner of Labour invoking section 33C(1) of the Industrial Disputes Act, 1947. By an order dated 23rd September 1987, the Assistant Commissioner of Labour rejected the said application on various grounds, including the ground of lack of jurisdiction.

6. The Petitioners thereafter amended the Petition and the challenge which now survives for consideration of this Court is the challenge to order dated 23rd September 1987 passed by the Assistant Commissioner of Labour.

7. At this stage, it would be convenient to refer to section 33C(1) of the Industrial Disputes Act, 1947, invoked by the Petitioners. The said section reads as under :-

"33C. (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of 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 money due to him, and if the appropriate Government is satisfied that any money is 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."

8. It is, therefore, obvious that section 33C(1) of the Industrial Disputes Act, 1947, can be invoked for issue of recovery certificate for recovery of the amount claimed through the Collector only, if the amount is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB. Chapter VA or Chapter VB of the Industrial Disputes Act provides for payment of compensation for lay off, retrenchment, closure, etc. It is common ground that Chapter VA or Chapter VB of the Industrial Disputes Act is not at all attracted.

9. The only question which, therefore, arises for my consideration is as to whether the interim order dated 26th August 1986 (Exhibit 'A' to the Petition) passed by the Labour Court in the application under sections 78 and 79 of the Bombay Industrial Relations Act, 1946, can be described as a settlement or an award. If the said interim order can be described as a settlement or an award within the meaning of the said expressions used in section 33C(1) of the Industrial Disputes Act, 1947, the Commissioner of labour will have the requisite jurisdiction to consider the application for issue of recovery certificate. If, however, the said interim order cannot be described as a settlement or an award, it would then become obvious that the Petitioners have misconceived their remedy and the Commissioner of Labour, in that event, would have no jurisdiction to issue recovery certificate under section 33C(1) of the Industrial Disputes Act. It may be stated, even at this stage in passing, that section 33C(2) of the Industrial Disputes Act is wider in its scope and ambit. If any workman makes a monetary claim or claims computation of any benefit in terms of money, he can approach the Labour Court for such computation under section 33C(2) of the Industrial Disputes Act. It is also well settled that the Labour Court exercising jurisdiction under section 33C(2) of the Industrial Disputes Act can incidentally go into even disputed question and can issue necessary directions for payment after the exercise of computation is completed. A claim under section 33C(2) of the Industrial Disputes Act need not necessarily be a claim arising out of a settlement or an award or under the provisions of Chapter VA or Chapter VB of the Industrial Disputes Act. The Commissioner of Labour has stated in the impugned order dated 25th September 1987 that the correct remedy of the Petitioners was to invoke the jurisdiction of the Labour Court under section 33C(2) of the Industrial Disputes Act.

10. At the outset, I requested Shri Patel, learned counsel for the Petitioners, to concentrate on the applicability of section 33C(1) of the Industrial Disputes Act, 1947, and endeavour to satisfy the Court that the Commissioner of Labour had requisite jurisdiction to issue recovery certificate. Shri Patel submitted, in the first instance, that the interim order passed by the Labour Court on application for interim relief in the application made under sections 78 and 79 of the Bombay Industrial Relations Act, 1946, was a settlement. Shri Patel has relied upon the judgment of the Hon'ble Supreme Court in the case of S. G. Chemical and Dyes Trading Employees' Union vs. S. G. Chemical and Dyes Trading Ltd. and another reported in 1986 Lab.I.C. 863. In this case the question before the Court was as to whether the closure of the Churchgate Division of the 1st respondent-Company was illegal and whether the workmen concerned were entitled to receive their full salary and all other benefits under the settlement dated 1st February 1979. In paragraph 23 of the said judgment, Madon, J., speaking for the Hon'ble Supreme Court, observed as under :-

"It is an implied condition of every agreement, including a settlement, that the parties thereto will act in conformity with the law. Such a provision is not required to be expressly stated in any contract. If the services of a workman are terminated in violation of any of the provisions of the Industrial Disputes Act, such termination is unlawful and ineffective and the workman would ordinarily be entitled to reinstatement and payment of full back wages. In the present case, there was a settlement arrived at between the Company and the Union under which certain wages were to be paid by the Company to its workmen. The Company failed to pay such wages from September 18, 1984 to the eighty four workmen".

In this case, the Hon'ble Supreme Court was concerned with the question as to whether the employer had illegally closed down the Churchgate Division and whether such closure was in contravention of section 25-O of the Industrial Disputes Act. Shri Patel, the learned counsel for the petitioners, has submitted that under the said interim order dated 26th August 1986 the management was required to assign work to the workmen within a period of two months from the date of the said order. The said interim order dated 26th August 1986 provided that if work was not assigned to the workmen by the date fixed, it will be treated that all the employees were on duty with full back wages and accordingly they would be entitled to get the said wages. Shri Patel submits that the application to execute the said interim order should be viewed as an application to recover amounts due and payable under the settlement, as the right to wages claimed by the applicant had the necessary nexus with the settlement arrived at between the textile mills and the Rashtriya Mill Mazdoor Sangh. In my judgment, the interim order passed by the Labour Court is an application under sections 78 and 79 of the Bombay Industrial Relations Act cannot be viewed as a settlement. The said interim order is an order in invitum and not a settlement. The management raised several contentions in the main proceedings and in the proceedings before the Commissioner of Labour and also in response to the application under sections 78 and 79 of the Bombay Industrial Relations Act. The main proceeding is pending before the Labour Court. The observations in the said judgment are being relied upon by Shri Patel out of context and are of no assistance to me to determine the question as to whether an application to execute the interim order Exhibit 'A' to the Petition can be considered as an application to enforce the money claim under a settlement. The recovery proceedings adopted by the Petitioners on the basis of the said order Exhibit 'A' to the Petition cannot be construed as recovery proceedings to enforce the said settlement as such.

11. In the alternative, Shri Patel, the learned counsel for the Petitioners, submits that the order Exhibit 'A' to the Petition should be viewed as an award, if not as a settlement. Section 2(b) of the Industrial Disputes Act, 1947, defines the expression 'award' as under :-

"2. In this Act, unless there is anything repugnant in the subject or context, -

(b) 'award' means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A;"

It is well settled that every interlocutory order cannot be viewed as an interim award. It is common ground that the order Exhibit 'A' to the Petition was never published as an award. Even otherwise, on its true construction, it cannot be treated as a determination of a dispute. The said order does not specify all the ingredients of an award. On this aspect, the learned counsel for the Petitioners has relied upon the judgment of the High Court of Calcutta in the case of Sk. Samser Ali vs. Kesoram Industries Cotton Mills Ltd. and another reported in (1988) I CLR 60. In this case, the question arose as to whether an order passed under section 33(2)(b) of the Industrial Disputes Act could be termed as an award for the purpose of section 17B of the said Act. This case has no application to the situation which is being considered in this case. An interim order is an application under sections 78 and 79 of the Bombay Industrial Relations Act, 1946, cannot be viewed as an award. It is not necessary to examine this authority in detail, as the said authority, with respect, has no application to the facts of the present case. Whether an order under section 33(2)(b) of the Industrial Disputes Act amounts to an award or not for the purpose of section 17B of the said Act is irrelevant for determination of the issue as to whether an interim order of the land relied upon in this case amounts to an award and can be executed straightway by seeking issue of a recovery certificate and invoking the provisions of section 33C(1) of the Industrial Disputes Act. I am not convinced by the above-referred submission of Shri Patel. If the Petitioners invoke the provisions of section 33C(2) of the Industrial Disputes Act, contentions of both sides would be considered by the Court. All contentions and remedies of both sides are kept open. In my opinion, the Petitioners are pursuing the wrong remedy.

12. In this view of the matter, I have no choice left other than to dismiss this Petition, as I find that the Commissioner of Labour has no jurisdiction to entertain an application for execution of the interim order Exhibit 'A' to the Petition under section 33C(1) of the Industrial Disputes Act, 1947. The Petitioners shall be at liberty to pursue other remedies available to them under the law, as they deem fit. Accordingly, I am upholding the impugned order on the limited ground of "lack of jurisdiction" and non-applicability of section 33C(1) of the Industrial Disputes Act.

13. Hence, the Rule is made absolute to the extent mentioned above. Having regard to the facts and circumstances of the case, there shall be no order as to the costs of the Petition.