…. Project Officer, Basta Cola Colliery of M/s Bharat Coking Coal Limited, PO & v. Rajendra Nath Kalindi, Trammer, Basta Cola Colliery of M/s BCCL, Basta Cola Area No
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (L) No. 1647 of 2019 …. Project Officer, Basta Cola Colliery of M/s Bharat Coking Coal Limited, PO & PS- Jharia, District-Dhanbad, PIN-828111, through Sri Udhaw Prasad, aged about 57 years, son of Kunj Bihari Prasad, Project Officer, Basta Cola Colliery, resident of Bunglow No. 1, Burragarh Officer’s Colony, PO-Bhagaband, PS- Jharia, District- Dhanbad, PIN-828111 …… Petitioner Versus Rajendra Nath Kalindi, Trammer, Basta Cola Colliery of M/s BCCL, Basta Cola Area No. 9, PO & PS-Jharia, District- …… Respondent Dhanbad, PIN-828111 ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Petitioner : Mr. Anup Kumar Mehta, Advocate For the Resp. Mr. Amit Kumar Sinha, Advocate : Mr. Ashutosh Anand, Advocate …… ORAL ORDER IN COURT 16/24.07.2024 Heard learned counsel for the petitioner and the learned counsel for the sole respondent. 2. The instant writ petition has been filed on behalf of the petitioner-company challenging the impugned Judgment dated 23.07.2018 passed in M. J. Case No. 29 of 2016 [Annexure-4] by Sri Virendra Kumar Tiwari, learned Presiding Officer, Labour Court, Dhanbad by which the learned Labour Court has held that the respondent-workman is entitled to get SPRA from August, 2004 to December, 2015 within 60 days from passing of this order failing which the petitioner-company is liable to pay entire due amount along with simple interest @ 12 % per annum from the expiry of said 60 days till the date of actual payment. 3. Learned counsel for the petitioner has submitted that the impugned judgment dated 23.07.2018 passed by the learned Court 1 below is illegal and arbitrary and not sustainable in law. It is submitted that the application filed by the workman under Section 33C(2) of the Industrial Disputes Act is vague and workman has not shown difference of SPRA amount for the period December, 1993 to December, 2015. It is submitted that as per Section 33C(2) of the Industrial Disputes Act, learned Court below has to compute the amount and under Section 33C(3) of the Industrial Disputes Act, confers power upon the Labour Court to appoint a Commissioner, who shall submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case. It is further submitted that no interest can be levied upon the amount in question and the same is contrary to the provisions of Section 33C(2) of the Industrial Disputes Act, which does not confer power to Award interest by the learned Labour Court. It is submitted that the case was filed after delay of 23 years and hence, the same is not tenable. 4. Learned counsel for the petitioner, in support of his contention, has placed reliance upon the order dated 19.06.2023 passed by the Co-ordinate Bench of this Court [Hon’ble Mrs. Justice Anubha Rawat Choudhary] in the case of Bharat Coking
Legal Reasoning
Coal Ltd. Versus Smt. Shail Kumar Devi and Anr. in W. P. (L) No. 6969 of 2017 and in the case of Executive Engineer, Electricity Transmission Division Versus Mahesh Chandra and Another
Decision
reported in 2024 SCC Online All 1214. In view of the above, it is submitted that the impugned judgment passed by the learned Court below may be set aside or the matter may be remitted to the learned Court below for deciding the matter afresh. 5. On the other hand, learned counsel for the respondent has submitted that the impugned judgment passed by the learned Court 2 below is fit and proper and no illegality has been committed by the learned Court below while passing the judgment and as such, no interference is required from this Court. It is submitted that the petitioner-company had denied difference of SPRA amount to the respondent–workman for the period December, 1993 to December, 2015. It is submitted that the respondent is a poor workman and it was the duty of the Management to pay different of SPRA amount to the workman even if he has not shown any calculation. It is submitted that the petitioner-company has all the record of the respondent –workman and hence, the petitioner-company should have come out with the case showing exact calculation. It is submitted that as the respondent –workman is not having the possession of the documents for the period December, 1993 till July, 2004 and as such, he could not file supportive documents in support of his case. However, he has filed the supportive documents i.e. some pay slips from August, 2004 to December, 2015. It is submitted that the learned Labour court has awarded the interest on the amount in question only after passing of 60 days. It is submitted that interest has not been levied, had the judgment was complied within time by the petitioner-company. It is submitted that the judgments cited on behalf of the petitioner are not applicable on the facts and in the circumstances of this case as it relates to payment of interest on account of the death of the deceased-workman and hence, no illegality has been committed by the learned Labour Court while passing the impugned judgment and hence, this writ petition may be dismissed. 6. Perused the Lower Court Records and considered the submission of both the sides. 7. It transpires that the respondent-workman had filed an 3 application under Section 33 C (2) of the Industrial Disputes Act on 25.10.2016 for payment of dues amount. 8. From perusal of the records, it would appear that the respondent-workman had filed the claim difference of SPRA for the period of 12/93 [i.e. December, 1993] to 12/2015 [ i.e. December, 2015] and stated to have enclosed one chart, but Lower Court Records does not reveal that any chart was enclosed with the plaint by the respondent-workman. The workman has also claimed interest since 12/1994 [i.e. December, 1994] till the actual payment on account of SPRA admissible. 9. The petitioner- Management has also appeared and filed written statement and stated that the claim is barred by limitation of 23 years and raised other contention also. They have also taken the plea that the workman has failed to establish his genuinity of claim as he has not given any proof regarding non receipt of the amount and/or wrong calculation of the SPRA by the management. The burden of proof to establish his claim also lies on the applicant -workman first. 10. Thereafter the learned Court below has framed following issues:- “(i) Whether the instant case is maintainable under the provision of the Industrial Dispute Act, 1947 ? (ii) Whether applicant deserves the amount as claimed ?” 11. It transpires that the workman has been examined as AW-1 and he has filed following documents in support of his case:- (i) Ext. A-1:- Copy of application dated 01.07.2016, (ii) Ext. A-2:- Copy of application dated 09.02.2016, (iii) Ext. A-3:- Copy of office order dated 26.05.2001 and 4 (iv) Ext. A-4/1 to A-4/11:- Original pay slip of different months. 12. Neither any witnesses was examined nor any documents has been produced on behalf of the petitioner company. 13. It further transpires that learned Court below after hearing both the sides, only referred issue no. 2 in one paragraph only and has merely observed that AW-1 workman has supported his case and crossed examined by the opposite party and the opposite party has not adduced any oral or documentary evidence to support his case and no document has been filed regarding payment of SPRA from December, 1993 to December, 2015. 14. It further transpires that the learned Court below has merely concluded his finding in one paragraph only and allowed the claim of the applicant-workman from August, 2004 to December, 2015, although he has himself observed that no documents have been filed by the applicant-workman to substantiate his claim for the period i.e. from December, 1993 to July, 2004 under the head of SPRA. 15. At this stage, it is relevant to quote Section 33 C (2) of the Industrial Disputes Act and Section 33 C (3) of the Industrial Disputes Act, which reads as under:- “Section 33-C (2) :- Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months:] [Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]” 5 Section 33-C (3) :-For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case.” 16. From going through the conjoint reading of provisions of Section 33C(2) of the Industrial Disputes Act and Section 33C(3) of the Industrial Disputes Act, it is evident that the learned Court below has failed to notice the statutory provisions of under Section 33 C (2) of the Industrial Disputes Act by which a duty is cast upon the Court to compute the wages, which is to be payable to the workman. 17. It further transpires that even Section 33C(3) of the Industrial Disputes Act empowers the learned Labour Court to appoint a Commissioner to calculate the wages for appointing the Private Accountant and who shall submit the report to the learned Court below and which has also not been done. 18. It further transpires that the learned Court below has awarded interest for the difference of SPRA for the period of August, 2004 to December, 2015 after expiry of sixty (60) days from the date of passing of the judgment. 19. It has been held in the case of Bharat Coking Coal Ltd. Versus Smt. Shail Kumar Devi and Anr. vide order dated 19.06.2023 in W. P. (L) No. 6969 of 2017 passed by the Co-ordinate Bench of this Court, at para- 27, 28 and 29 as follows:- “Para-27:- So far as the payment of interest is concerned, the learned court below has directed for payment of simple interest @ 6% from the date of death till the date of actual payment within 60 days from the date of the order and on default interest @ 9% has been directed to be paid from the date of expiry of 60 days. As per the provisions of Industrial 6 Disputes Act, Section 33C deals with recovery of money from an employer which becomes due from the employer under a settlement or under an award. Such provision is without prejudice to any other mode of recovery and if the appropriate government is satisfied that the money is so due, a certificate is to be issued for the amount to the Collector who is to proceed to recover the amount in the same manner as an arrear of land revenue. Sub-Section 2 of Section 33C of the Act further provides that if a question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question is to be decided by the labour court. This Court finds that provisions of Section 33C deals with recovery of money which has already been quantified or if so required, capable of being computed by the labour court and is in the nature of execution proceedings. Para-28:- This Court is of the considered view that there is no scope for passing an order for payment of interest over and above whatever is due under the settlement or over and above whatever is due as per the award. If the settlement or award provides for payment of interest, the same would be computed in terms of Section 33C, but the court would have no jurisdiction to direct payment of any amount over and above whatever is computed as per the settlement or as per the award. Para-29:- The award of interest by the learned labour court in the instant case is not arising out of any settlement or award and even as per the learned counsel for the Respondent No.1, interest has been awarded only as a part of equitable relief. This court is of the considered view that the learned court below had no jurisdiction to award any interest in equity as it was bound to determine and quantify payable amount only in terms of the pre-existing right on the basis of any award or settlement. In absence of any such pre-existing right to claim any interest on ex-gratia amount of Rs.5 lakhs in terms of the aforesaid provisions of National Coal Wage Agreement and the circular, which is the basis of the claim, the award of interest by the learned court below on payment of ex-gratia amount of Rs.5 lakhs is wholly without jurisdiction and is accordingly not sustainable in the eyes of law. Accordingly, the impugned order directing payment of interest in exgratia amount of Rs.5 lakhs is set-aside. However, in case the computed amount is sought to be recovered through any certificate proceedings, the statutory interest, as applicable to the certificate proceedings will be payable in accordance with law.” 20. It has been held in the case of Executive Engineer, 7 Electricity Transmission Division Versus Mahesh Chandra and Another reported in 2024 SCC Online All 1214 by Allahabad High Court, at para- 3 and 18 as follows:- “Para-3:- Learned counsel for the petitioner submitted that in proceedings under Section 33C(2) only the execution of award or settlement has to be done, and the workman is entitled to receive any money or any benefit which is capable of being computed in terms of money. The Labour Court does not have power to grant interest. According to him, as there was outstanding balance against respondent no. 1 and No Dues Certificate was not provided, there was delay in payment of the retiral dues which were however paid to respondent no. 1 once No Dues Certificate was received. Reliance has been placed upon decision of Apex Court rendered in case of M/s Bombay Chemical Industries vs. Deputy Labour Commissioner and another, (2022) 5 SCC 629 and judgment of Apex Court rendered in case of Municipal Corporation of Delhi vs. Ganesh Razak and another, (1995) 1 SCC 235 and also judgment of Apex Court rendered in case of Union of India and another vs. Kankuben and others, (2006) 9 SCC 292. Para-18:- Thus, in view of above, I find that Labour Court was completely misled in granting interest @ 18 % for the delayed payment. It was beyond the competence of Labour Court to have awarded interest, as under the scheme of Section 33C(2) granting of interest does not find any place.” 21. Therefore, it is evident that learned Court below has passed the impugned judgment, which is in complete violation of Section 33C(2) of the Industrial Disputes Act and Section 33C(3) of the Industrial Disputes Act and also contrary to the order passed by the Co-ordinate Bench of this Court in the case of Bharat Coking Coal Ltd. Versus Smt. Shail Kumar Devi and Anr. vide order dated 19.06.2023 in W. P. (L) No. 6969 of 2017 and in the case of Executive Engineer, Electricity Transmission Division Versus Mahesh Chandra and Another reported in 2024 SCC Online All 1214. 8 22. This Court further finds that the Judgment passed by the learned Labour Court is non-speaking and proper adjudication has not been made and no proper computation of amount has been made. It also appears that even the learned Court below has not discussed the properly Ext.- 4/1 to 4/11 and even also appears that the document August, 2004 to December, 2015 has not been properly filed. 23. Under the circumstances, the impugned Judgment dated 23.07.2018 passed in M. J. Case No. 29 of 2016 [Annexure-4] by Sri Virendra Kumar Tiwari, learned Presiding Officer, Labour Court, Dhanbad is set aside and the matter is remitted back to the learned Presiding Officer, Labour Court, Dhanbad/ or its Successor Court for passing speaking and reasoned order in accordance with law after hearing both the sides within a period of four (4) months from the date of receipt of the copy of this order and it will be open to the petitioner to file entire supporting documents, if any and the petitioner-Management should also co- operate and it will be open to the respondent –workman to refute the claim of the petitioner-company by examining further any evidence or filing the documents, if any. The entire exercise must be done within a period of four (4) months from the date of receipt of a copy of this order. If either side fails to comply with the direction of this Court, the learned Labour Court will be at liberty to decide the issue in absence of defaulting party. 24. Thus, this W. P. (L) No. 1647 of 2019 is allowed with the observations mentioned above. Kamlesh/ (Sanjay Prasad, J.) 9