Brihanmumbai Municipal Corporation through the General Manager, Brihanmumbai Electric Supply and Transport Undertaking v. Bhausaheb B. Sangle

Judgment

1. The above Petition filed by the Petitioner-Undertaking impugns an order dated 9th March, 2006 passed by the Labour Court which decided a preliminary issue, holding that it has jurisdiction to entertain the claim of the Respondent- employee under section 33-C(2) of Industrial Disputes Act, 1947. The impugned order was passed on an Application filed by the Respondent-employee under section 33-C(2) of the I.D. Act claiming that he had met with an accident on duty and was entitled to benefits in the form of wages for 73 days amounting to Rs. 33,726/- towards accidental leave, which was denied to him by the Petitioner- Undertaking. 2 wp2131.06.sxw

2. The Petitioner-Undertaking is a statutory Corporation constituted under the provisions of Mumbai Municipal Corporation Act 1988. The Petitioner- Undertaking (hereinafter referred to as 'the Undertaking”) was engaged at the relevant time in supplying electricity in Greater Mumbai and Mumbai suburbs. The Respondent-employee (hereinafter referred to as “the employee”)was in the employment of the Undertaking at its Malvani Depot as a Starter.

3. On 4th February, 2002 the employee after performing his duty at Malvani Depot, walked out of the gate of the said Depot and stepped upon an open gutter, due to which he lost his balance and fell. The employee was taken to the Bhagwati Hospital, where he was treated and allowed to go home. The employee did not report for work from 5th February, 2002 to 18th April, 2002. On 24th April, 2002, the employee made an Application for leave for the period from 5th February, 2002 to 18th April, 2002. The employee claimed compensation, which claim was examined by the Accidents and Claims Department of the Undertaking. After recording the Statement of the employee and examining material on record, the Competent Authority passed an order dated 7 th September, 2002 holding payment of compensation to the employee was not recommended essentially on the ground that leave could not be sanctioned since the employee had met with an accident on account of his own negligence outside the premises of the Malvani Depot and his case was covered under Service Regulation No. 4.4.5 v(a). 3 wp2131.06.sxw

4. The employee thereafter filed the Application under Section 33-C(2) of the Industrial Dispute Act, 1947 before the Labour Court. The Undertaking resisted the claim and filed its Written Statement contending that the employee did not have any existing right to claim the amount. It was averred that employee had left work 30 minutes early unauthorizedly which indicated that he was very much in hurry to go home and did not walk carefully on the public road and put his leg in the open gutter which was outside the premises of the Malvani Depot. It was contended that the employee has no cause of action against the Undertaking. The Undertaking prayed that the issue regarding maintainability be framed and tried as preliminary issue. Accordingly the preliminary issue was framed by the Labour Court and after hearing the parties, the Labour Court passed the impugned order holding that it has jurisdiction to entertain and try the claim of the Applicant under Section 33-C(2) of the I.D. Act. 1947.

I have heard learned Senior Counsel Mr. Talsania on behalf of the Undertaking and Mr. Ganguly on behalf of the employee.

6. The issue which arises for consideration in this Petition essentially is whether the employee has an existing right of entitlement to leave with wages upon meeting with the accident and whether the Labour Court ought to have entertained the Application of the employee under Section 33-C(2) of the employee. The learned Senior Counsel for the Undertaking submitted the 4 wp2131.06.sxw employee had no existing right of automatic entitlement to leave with wages upon the said accident. Learned Senior Counsel submitted that once the leave applied for was rejected it required adjudication in the matter since it involved complicated question of law and facts which did not fall within jurisdiction of the Labour Court to adjudicate under Section 33-C(2). He submitted that the Labour Court has no jurisdiction to sit in appeal over the decision of the Undertaking to reject the leave Application of the employee. Learned Senior Counsel submitted that power of the Court in an Application under Section 33-C(2) of the I.D. Act is akin to that of an Executing Court and that the Labour Court cannot adjudicate upon the dispute claimed. The learned Senior Counsel also pointed the Service Regulations of the Undertaking and in particular relied upon Regulation 4.4.5 (v) (a) and submitted that the Labour Court ought not to have entertained the Application of the employee as it has no jurisdiction. The learned Senior Counsel relied upon the following decisions: (1) Municipal Corporation of Delhi Vs. Ganesh Razak (1995) 1 SCC 235 (2) D. Krishnan Vs. Special Officer, Vellore Cooperative Sugar Mill, (2008) 7 SCC 22.

7. Mr. Ganguali, learned Counsel for the employee, on the other hand, supported the impugned order and submitted that the Labour Court has the power to decide an incidental issue under Section 33-C(2) and in the present case the entitlement of the employee was only an incidental issue which is required to be decided by the Labour Court. The learned Counsel for the employee relied upon the following Judgments (i) Central Bank of India Ltd. 5 wp2131.06.sxw Vs. V. Rajgopalan, 1963, II LLJ 89 of Constitution Bench of the Hon'ble Supreme Court. (ii) Central Group Vs. Narayan Gangaram Patil through United Mazdoor Union, 2009-I- LLJ 851 (Bom), of a Division Bench of this Court. (ii) State of Orissa Vs. Sudhansu Sekhar Misra AIR 1968 SC 647. (iii) Commissioner of Income Tax Vs. M/s Sun Engineering Works (P) Ltd., AIR 1993 SC 43.

8. I have considered the rival contentions raised on behalf of the parties.

9. At the outset it would be apposite to make a reference to Regulation

4.4.5 of the Service Regulations of the Undertaking, which reads as under: “4.4.5 Accident leave (i) In cases where any member of staff is absent as a result of an accident occurring in the direct performance of his duties in the Undertaking's services, the General Manager may sanction full pay or less and allowances as admissible during the period of incapacity. Payment made in this regard shall consists of (a) Obligatory payments under the Workmen's Compensation Act, 1923; (b) Provided that in case of members of staff covered by the Employees' State Insurance Act they will be entitled to prescribed disablement benefit only from the Employees' State Insurance Corporation and shall not be eligible for any benefit from the Undertaking. Provided further that cases of 'A' Grade officers shall be referred to the Committee for Accidental Leave in excess of three months. and/or voluntary payments by the Undertaking. (ii) In cases, however, where the cause of the accident is attributable beyond any reasonable doubt to the negligence of a member of staff concerned, no Accident Leave shall be admissible. However, compensation in accordance with the provisions of the Workmen's Compensation Act, if applicable, 6 wp2131.06.sxw shall be paid in such cases. (iii)Members of staff must report within a reasonable time if they meet with an accident while on duty; otherwise they will be liable to lose their claim for compensation and/or Accident Leave. (iv) Members of staff exposed to personal risks in the performance of their duties shall make use of safety devises provided for them. The Undertaking will not be responsible for payment of Workmen's Compensation and/or grant of Accident Leave for failure to use such safety devices. (v) (a) In case where any “A” or “B” Grade and Staff not covered by the Workmen's Compensation Act, Employee's State Insurance Act, or any Social Security Scheme, has to be away from work as a result of an injury due to an accident and/or an assault arising out of and in the course of employment or connected with the performance of his duty in the Undertaking, the General Manager, may at his absolute discretion, sanction Special Leave with full pay and allowances during the period of incapacity, provided that the cases of 'A' Grade Officers shall be referred to the Committee for grant of Special Leave in excess of three months. (b) In cases other than those covered by '(a)' above, the General Manger, may at his absolute discretion, sanction payment of compensation not exceeding an amount equivalent to three months basic salary and dearness Allowance. The cases of 'A' and 'B' Grade Officers and staff shall be referred to the Committee for grant of compensation, where it exceeds an amount equivalent to three months basic salary and Dearness Allowance. The Compensation may be paid in one lump-sum or by periodical payments.” (Emphasis supplied)

10. From the aforequoted Regulation, it would be apparent that the claim of the employee as regards full pay for accidental leave is not a vested right of the employee. First and foremost, the employeee needs to satisfy the Competent Authority of the Undertaking that the accident occurred in direct performance of 7 wp2131.06.sxw his duties. Moreover, for the discretion to be exercised in his favour by the Competent Authority to grant full pay or less, the other conditions as highlighted above (underlined portion) also need to be satisfied. Pertinently, on the basis of the above Regulation, the claim of the employee was examined by the Accident Claim Department of the Undertaking and was rejected by the Competent Authority by passing an order dated 7th September, 2009 holding that the payment of compensation to the employee was not recommended. Evidently, there is no reference to this order dated 7th September, 2009 in the Application or in the present proceedings and the said order has not been subjected to challenge.

11. In Municipal Corporation of Delhi Vs. Ganesh Razak (supra), the Hon'ble Supreme Court held as follows: “Where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. The power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the workman's right rests.” In the aforesaid judgment, the Hon'ble Supreme Court has referred to the 8 wp2131.06.sxw Constitution Bench Judgment in Central Bank of India Ltd Vs. Rajgopalan (supra). While interpreting the Constitution Bench judgment, the Hon'ble Supreme Court further observed as under: “This decision itself indicates that the power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the workman's right rests, like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determine of the dispute of entitlement or the basis of the claim, if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of leaned Counsel for the respondents.” The Hon'ble Supreme Court also noted the judgment of Chief Mining Engineer, East India Coal Co. Ltd. V. Rameswar (1968) 3 SCR 140, wherein it was held- “Right to the benefit which is sought to be computed under Section 33-C(2) must be “an existing one, that is to say, already adjudicated upon or provided for.”

12. In D.Krishna's case (supra), the Hon'ble Supreme Court reiterated that the proceedings under Section 33-C(2) are in the nature of execution proceeding and such proceedings presuppose some adjudication leading to determination of a right which has to be enforced.

13. In the present case, as indicated above, the claim of the Respondent- employee was examined by the Accident Claim Department of the Undertaking and the Competent Authority by an order dated 7th September, 2002 held that the payment of compensation to that employee was not recommended. This 9 wp2131.06.sxw finding was arrived at after summary inquiry and on the basis of an accident Report. Neither the findings nor the inquiry nor the accident Report have been called in question by the employee. As noted earlier, the Service Regulation

4.4.5 also sets out that, it is interalia required to be shown that the absence of the employee was as a result of an accident occurring in the direct performance of his duties in the Undertaking. In fact, no accident leave was admissible where the cause of accident was attributable beyond any reasonable doubt to the negligence of the employee. In these circumstances, in absence of adjudication, it cannot be said that the claim of the employee was only incidental.

14. Now coming to the impugned order, in para 9 of the Labour Court has observed as follows: “The Opponent filed on record, the copy of the accident report, copy of report of accident and claim department and summary enquiry. After perusal of those documents, it reveals that, his claim came to be rejected on the ground that he had not met with an accident during the course of his employment, and there is no eye witness of the incident. It is also mentioned that Applicant has not taken care while walking by the open gutter which clearly shows his negligence. Therefore, payment of compensation to him is not recommended. Thus, the question is, whether the Applicant is entitled for compensation as per the rules and regulations of the BEST Undertaking or not? To decide the entitlement, it is necessary to entertain the Application.” In my view, the Labour Court had clearly fell in error in observing that to decide the entitlement, it is necessary to entertain the Application. Applying the principles laid down in the judgment of the Apex Court in Ganesh Razak's case to the facts of the present case, in my opinion there was no pre-existing right in 10 wp2131.06.sxw favour of the Applicant for the Labour Court to entertain the Application of the employee under Section 33C(2) of the I.D. Act and it cannot be said that the claim of the employee was only incidental, inasmuch as the very basis of the claim of the employee was disputed and in fact rejected by the Competent Authority of the Accidental Claims Department of the Undertaking. There is clearly a dispute about the entitlement of the benefit which requires adjudication after considering the facts and law and that dispute cannot be determined in exercise of the powers under Section 33-C(2) of the I.D. Act. The claim of the employee fell outside the scope of Section 33C(2) of the I.D. Act and the Application of the employee was therefore not maintainable..

15. For the aforesaid reasons, the impugned order of the Labour Court cannot be sustained and is required to be set aside. Rule is made absolute in terms of prayer clause (b) of the Petition with no order as to costs.

16. Needless to say that this order/judgment would not shut out the employee from seeking redressal elsewhere, if so permissible in law. ( A.A. SAYED, J. ) 11 wp2131.06.sxw