Writ Petition No. 3462 of 1998 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 10.02.2005CoramThe Honourable Mr. Justice P.K.MISRAWrit Petition No.3462 of 19981.Senior Divisional Personnel Officer, Southern Railway, Tiruchirapalli – 620001.2.Divisional Railway Manager, Southern Railway, Tiruchirapalli -620001. .. Petitioners vs.

R.Lakshmipathi2.The Presiding Officer, The Central Government Labour Court, Chennai – 600104. .. RespondentsWrit Petition filed under Article 226 of the Constitution of India for the issue of Writ of Certiorari to call for the recordsrelating to C.P.No.41/95 dt.9.1.1997 from the file of the 2ndrespondent and to quash the same. For petitioner: Mr. M.Sekar For respondent: Mr.K.M.Ramesh for R1

O R D E RHeard the learned counsel appearing for the parties.

The present Writ Petition has been filed by the SeniorDivisional Personnel Officer and the Divisional Railway Manager, Southern Railway against the order dated 9.1.1997 in C.P.No.41/95passed by the Central Government Labour Court, Madras in purportedexercise of jurisdiction under Sec.33-C(2) of the Industrial DisputesAct, 1947 (hereinafter referred to as the 'Act'). https://hcservices.ecourts.gov.in/hcservices/

The present respondent had filed a Claim Petition in C.P. No.41/95before the said Labour Court. The respondent, who had entered serviceon 17.8.1958 as Kalasi in course of time had become Assistant Guard, was removed from the service on 5.7.1994. Such removal was apparentlyon the ground that the respondent had been punished in a criminal caserelating to unauthorised possession of railway properties. It is notin dispute that such order of removal has not been set aside by anyauthority. The applicant in the Claim Petition claimed that someother employees who were similarly penalised had been subsequentlygiven the benefits and therefore, there is no reason why it should notbe made available to him.

A counter was filed by the present petitioners in the said ClaimPetition, wherein it was indicated that the claimant was convicted on18.3.1993 in Crime No.18/92 for having committed the offence under Sec.3(a) of the Railway Properties - Unlawful Possession Act andsubsequently, upon such order of the punishment of Criminal Court, theorder of removal from the service has been passed with effect from5.7.1994. It was further indicated that a proceeding under Sec.33-C(2) of the Act was not maintainable. In respect of other employees, it was indicated that, the cases were pending and had not beenfinalised and in respect of one employee, upon acquittal, the benefitswere given. The Presiding Officer of the Labour Court held that thepresent respondent was discriminated against being deprived of thebenefits inasmuch as similar benefits had been given to some otherpersons and therefore, the benefits should be made available to thepresent respondent. This order has been challenged in the presentWrit Petition.

Learned counsel appearing for the petitioner has contended that ina proceeding under Sec.33-C(2), the Labour Court acts as an ExecutingCourt and in the absence of any determination of the entitlement ofthe person concerned, the Labour Court under Sec.33-C(2) is notauthorised to decide about the entitlement of the concerned workmanfor the aforesaid purpose. He has placed reliance upon the decisionreported in 1995 (1) Supreme Court Cases 235 (Municipal Corporationof Delhi vs. Ganesh Razak and another) in the aforesaid context, wherein after referring to several other decisions of the SupremeCourt, it was observed that,"12. The High Court has referred to some of thesedecisions but missed the true import thereof. The ratioof these decisions clearly indicates that where the verybasis of the claim or the entitlement of the workmen to acertain benefit is disputed, there being no earlieradjudication or recognition thereof by the employer, thedispute relating to entitlement is not incidental to the https://hcservices.ecourts.gov.in/hcservices/ benefit claimed and is, therefore, clearly outside thescope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide theworkmen's entitlement and then proceed to compute thebenefit so adjudicated on that basis in exercise of itspower under Section 33-C(2) of the Act. It is only whenthe entitlement has been earlier adjudicated orrecognised by the employer and thereafter for the purposeof implementation or enforcement thereof some ambiguityrequires interpretation that the interpretation istreated as incidental to the Labour Court's power under Sec.33-C(2) like that of Executing Court's power tointerpret the decree for the purpose of its execution. "

In the present case, there is no dispute that the order of removalhas not been set aside by any competent forum, nor it is declared tobe illegal by any competent Court. The observation of the LabourCourt that some other employees were given similar benefits cannot bea ground for the Labour Court for exercising jurisdiction under Section 33-C(2) and direct payment of such benefits, the right towhich is yet to be decided by the competent forum. It is quiteobvious that the Presiding Officer has exceeded his jurisdiction ingiving direction for payment of the terminal benefits even when theorder of removal of the present respondent has not been set aside byany competent Court and the entitlement of the applicant before the Labour Court was seriously disputed. Such order cannot be sustainedand is hereby quashed.