2009(1) ALL MR 534
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.Y. CHANDRACHUD, J.

Shri. Saptashrung Niwasini Devi Trust Sevakanchi Pat Sanstha Ltd.Vs.Nandkumar Motiram Chitte & Anr.

Writ Petition No.7342 of 2008

1st December, 2008

Petitioner Counsel: Mr. SURESH S. PAKALE
Respondent Counsel: Mr. ANILKUMAR PATIL

Industrial Disputes Act (1947), S.33-C(2) - Claim under S.33-C(2) - Seeking entitlement to benefit of 5th Pay Commission filed by respondent - Same was disputed by petitioner - Respondent had no pre-existing right on basis of which recourse to S.33-C(2) could be taken - Under circumstances order of labour court adjudicating the dispute in proceedings under S.33-C(2) - Without jurisdiction. (Paras 6, 7)

JUDGMENT

JUDGMENT :- Rule, by consent of the learned counsel made returnable forthwith. Counsel appearing for the Respondent waives service. With the consent of the learned counsel and at their request, the matter is taken up for hearing and final disposal.

2. The Petitioner before the Court is a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960. The First Respondent is in the employment of the Petitioner and holds the post of Secretary since 7th June, 1995. The First Respondent instituted proceedings under Section 33-C(2) of the Industrial Disputes Act, 1947 claiming the benefit of a difference in wages between September, 1999 and June, 2005 on the basis that he was entitled to the benefit of the recommendations of the 5th Pay Commission. The Labour Court allowed the application and directed the Petitioner to pay a sum of Rs.1,57,175/- before 31st October, 2008 failing which the amount was to carry interest at the rate of 6% per annum.

2A. Counsel appearing for the Petitioner submitted that in allowing the claim of the First Respondent which admittedly was founded on an assertion that the First Respondent was entitled to the benefit of the 5th Pay Commission recommendations - an assertion which was disputed by the Petitioner - the Labour Court has acted in excess of its jurisdiction under Section 33-C(2). It was urged that Section 33-C(2) is in the nature of an execution proceeding where all that remains is a quantification on the basis of an established right whereas in the present case the entitlement of the First Respondent was in dispute, and the Labour Court could not have adjudicated thereon in proceedings under Section 33-C(2).

3. On the other hand, it was urged on behalf of the First Respondent that the entitlement of the First Respondent stands concluded in terms of an order passed by the Industrial Court in a judgment dated 9th September, 2004 passed in Complaint (ULP) 17 of 2004. Hence, it was urged that all that has been done by the Labour Court in proceedings under Section 33-C(2) is to quantify the amounts due and payable to the First Respondent in terms of an entitlement that flows out of the previous judgment dated 9th September, 2004 in a complaint of unfair labour practices.

3A. In order to appreciate the rival submissions, it would be necessary at the outset to note that the First Respondent had instituted a complaint of unfair labour practices, Complaint (ULP) 596 of 1998, under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. During the pendency of the complaint, a resolution was passed by the managing committee of the Petitioner on 16th September, 1998 and in pursuance thereof agreed terms came to be filed before the Labour Court. Clause 2 of the Consent Terms records that the First Respondent was being granted a scale of Rs.950/- on which he would be entitled to Dearness Allowance to the extent of 100% until 1st September, 1999 and that thereafter he would be entitled to Dearness Allowance in accordance with the rules. The complaint was disposed of by the Industrial Court as settled out of Court by an order dated 27th November, 1998. In 2004 the First Respondent instituted a fresh complaint of unfair labour practices contending that the Petitioner had failed to comply with the agreement that was arrived at between the parties in the earlier proceedings. The second complaint was allowed in the following terms :

"It is hereby declared that the respondent has engaged in and continued to engage in unfair labour practices under Item-9 of Sch-IV of the MRTU & PULP Act, 1971.

The respondents are directed to cease and desist from continuing to engage in unfair labour practices by granting the relief as per the Resolution passed on 16-09-1998 under Subject No.8 and Resolution No.8 in the meeting No.5 of the Respondent No.1 society."

4. The First Respondent instituted proceedings under Section 33-C(2) in August, 2005 seeking the benefit of wages in accordance with the recommendations of the 5th Pay Commission. The contention of the First Respondent is that as a Secretary of the Petitioner, his appointment has been approved by the Registrar of Co-operative Societies and that he is therefore entitled to the benefit of the 5th Pay Commission wages. It may be noted at this stage that in the reply which was filed by the Assistant Registrar, the position that was taken was that though the State Government has adopted the recommendations of the 5th Pay Commission, these were applicable to only government employees or to holders of civil posts and that the benefit of the aforesaid recommendations had not been granted to employees of co-operative societies. The Labour Court while disposing of the application under Section 33-C(2) observed that the resolution that was passed by the Petitioner on 16th September, 2008 only stipulated that the First Respondent would be paid Dearness Allowance in accordance with the rules, but this did not clarify as to whether the reference to rules related to the rules of the government or of the Petitioner. The Labour Court was, however, of the view that the subsequent conduct of the Petitioner evinced an intent to allow the benefit of the 5th Pay Commission to the First Respondent and it was on that ground that the application came to be allowed. The conduct of the Petitioner which was relied upon by the Labour Court consisted of certain letters which were addressed to the First Respondent by the chairmen of the Petitioner accepting his request for the grant of 5th Pay Commission scales. Before the Labour Court, the contention of the Petitioner was that these letters were fabricated. The Labour Court, however, rejected the contention holding that the Petitioner had not examined its chairmen in evidence in order to substantiate its case that the letters upon which reliance is placed by the First Respondent were fabricated.

5. Counsel appearing for the Petitioner submitted that the question as to whether the First Respondent was entitled to the benefit of the 5th Pay Commission scales could not have been adjudicated upon in proceedings under Section 33-C(2) and the defence that the letters upon which the First Respondent placed reliance were fabricated was one that would require adjudication in appropriate proceedings. On the other hand, as already noted earlier, it has been urged on behalf of the First Respondent that the entitlement of the First Respondent stands concluded by the prior judgment dated 9th September, 2004 in complaint (ULP) 17 of 2004.

6. Proceedings under Section 33-C(2) are in the nature of execution when the right on the basis of which the claim has been preferred is an established right. In the present case, the First Respondent sought the benefit of wages payable in accordance with the recommendations of the 5th Pay Commission. The terms of agreement that were arrived at between the parties in complaint (ULP) 596 of 1998 allowed the First Respondent a pay scale of Rs.950/- and Dearness Allowance after 1st September, 1999 in accordance with rules. The entitlement of the First Respondent to the benefit of the 5th Pay Commission wages was therefore not accepted in the terms of settlement which were arrived at between the parties or in the underlying resolution of the management dated 16th September, 1998. Similarly, in the subsequent complaint of unfair labour practices the Industrial Court by its judgment of 9th September, 2004 directed the management to grant relief in terms of its resolution dated 16th September, 1998. That resolution again did not accept the entitlement of the First Respondent to the 5th Pay Commission wages. The First Respondent purported to rely upon certain letters executed by the chairmen of the Petitioner as recognizing his right to receive the 5th Pay Commission emoluments. The contention of the Petitioner was that the letters were fabricated and that in any event without a resolution of the co-operative society, it was not within the authority of the chairpersons to grant the benefit of a wage revision. The Labour Court manifestly acted in excess of its jurisdiction by adjudicating upon this dispute in proceedings under Section 33-C(2). The First Respondent has no pre-existing right on the basis of which recourse could have been taken to proceedings under Section 33-C(2). In these circumstances, it was for the First Respondent to seek an adjudication into his claim to receive the benefit of the recommendations of the 5th Pay Commission. That the First Respondent did not have a pre-existing right was also evident from the reply filed by the Assistant Registrar, Co-operative Societies before the Labour Court.

7. In these circumstances, the impugned order of the Labour Court passed in proceedings under Section 33-C(2) of the Industrial Disputes Act, 1947 is in excess of jurisdiction and is unsustainable. The Petition will have to be allowed and is accordingly allowed. Rule is made absolute in terms of prayer clause (A). The judgment of the Labour Court dated 29th July, 2008 is set aside. Application (IDA) 13 of 2005 shall stand dismissed. The Petition is accordingly disposed of.

There shall be no order as to costs.

Petition allowed.