The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 3076 OF 2016 (An application under Articles 226 and 227 of the Constitution of India) ***** Nilamadhab Sahu …… Petitioner -Versus- 1. Chief Engineer, Minor Irrigation, Odisha, Bhubaneswar, 2. Superintending Engineer, S.MI. (C), Berhampur, Dist: Ganjam, 3. Executive Engineer, Minor Irrigation Division, Ganjam Circle-1, Berhampur, Dist: Ganjam, 4. Presiding Officer, Labour Court, Odisha, Bhubaneswar Advocates appeared: .…… Opp. Parties For Petitioner : Mr. Ramanath Acharya, Advocate For Opp. Parties : Mr. Subha Bikas Panda, Additional Government Advocate CORAM :
Legal Reasoning
Counsel, rather makes the position of law clear to the extent that a proceeding under section 33-C (2) of the ID Act is in the nature of an execution proceeding. Thus, it should follow that an W.P.(C) No. 3076 OF 2016 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 investigation of the nature of determinations, i.e., (i) the workman’s right to relief; (ii) the corresponding liability of the Management, including, whether it is, at all, liable or not is, normally, outside the scope of Section 33-C (2) of ID Act. Thus, it leaves no iota of doubt that the claim of the Petitioner is not within the jurisdiction of learned Labour Court under Section 33- C (2) of the ID Act. Paragraph Nos. 11 and 12 of the said judgment, being relevant, are reproduced below:- “11. In Central Inland Water Transport Corporation Ltd. v. The Workmen & Anr., 1975 (1) SCR 153, it was held with reference to the earlier decisions that a proceeding under Section 33C (2) being in the nature of an execution proceeding, it would appear that an investigation of the alleged right of reemployment is outside its scope and the Labour Court exercising power under Section 33C (2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating the claim of re-employment. Distinction between proceedings in a suit and execution proceedings thereafter was pointed out. It was indicated that the plaintiff’s right to relief against the defendant involves an investigation which can be done only in a suit and once the defendant’s liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the function of an execution proceeding. This distinction is clearly brought out in that decision as under:- to involves an the defendant “In a suit, a claim for relief made by the plaintiff against investigation directed to the determination of (i) the plaintiff’s right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant’s liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant’s liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the W.P.(C) No. 3076 OF 2016 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 that functions of a suit and not an execution proceeding. Since a proceeding under section 33(C)(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under section 33 (C)(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a is merely that score. But challenge on ‘incidental’. To call determinations (i) and (ii) ‘incidental’ to an execution proceeding would be a perversion, because execution proceedings in which just the extent of liability is worked out are consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under section 33(C)(2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions – say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as ‘incidental’ to its main business of computation. In such cases, determinations (i) and (ii) are not ‘incidental’ to the computation. The is consequential upon and computation subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur vs R.L. Khandelwal, 1968 L.L.J. 589, that a workman cannot put forward a claim in an application under section 33(C)(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject- matter of an industrial dispute which requires a reference under section 10 of the Act.” itself 12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that 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 W.P.(C) No. 3076 OF 2016 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C (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 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and 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 33C (2) like that of the Executing Court’s power to interpret the decree for the purpose of its execution. thereafter for (Emphasis supplied) 11. Thus, from the admitted facts on record so also settled position of law, as detailed above, this Court is of the considered opinion that the learned Labour Court, in exercise of power under Section 33-C (2) of the ID Act, had no jurisdiction and competence to compute the disputed claim of the Petitioner and issue direction to pay the same, as the same was disputed and denied by the Management. As such, learned Labour Court has committed no error in dismissing the application filed by the Petitioner under Section 33-C (2) of the ID Act. 12. Hence, the writ petition, being devoid of any merit, stands dismissed. But in the facts and circumstances of the case, there shall be no order as to cost. Orissa High Court, Cuttack, Dated 28th February, 2025/s.s.satapathy W.P.(C) No. 3076 OF 2016 (K.R. Mohapatra) Judge (S.K. Mishra) Judge Page 9 of 9
Arguments
MR. JUSTICE K.R. MOHAPATRA & MR. JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------ Heard and disposed of on 28.02.2025 ---------------------------------------------- JUDGMENT By the Bench; 1. 2. This matter is taken up through hybrid mode. Petitioner in this writ petition prays to set aside the order dated 16th October, 2014 (Annexure-1) passed in ID Misc. Case No.56 of 2012, wherein, learned Presiding Officer, Labour Court, Bhubaneswar W.P.(C) No. 3076 OF 2016 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 rejected an application filed by the Petitioner under Section 33-C(2) of the Industrial Disputes Act, 1947 (for brevity ‘ID Act’). 3. Mr. Acharya, learned counsel submits that the Petitioner was initially appointed as a work-charged employee. He was subsequently promoted as work-charged Concrete Mixture Driver in the scale of pay of Rs.625-12-709-EB-12-745-15-790- EB-15-940/- vide order dated 29th December, 1991 under Annexure-7 issued by the Superintending Engineer, Southern Minor Irrigation Circle, Berhampur, Ganjam. The scale of pay of Concrete Mixture Driver was subsequently revised and fixed at Rs.3050-4590 vide order dated 12th November, 1999 (Annexure-5) issued by the Chief Engineer, Minor Irrigation, Odisha, Bhubaneswar. Hence, the Petitioner submitted representations to revise his scale of pay accordingly. However, his repeated representations were not considered. Finding no other alternative, the Petitioner filed an application under Section 33-C(2) of the ID Act before the Labour Court, Bhubaneswar, which was dismissed vide order under Annexure-1. 4. It is further submitted by Mr. Acharya, learned Counsel that the Petitioner had a pre-existing right to receive the revised scale of pay in view of his order of promotion vide Annexure-7 with effect from 29th December, 1991 and the revision in the scale of pay vide Annexure-5 dated 12th November, 1999 (Annexure-5). Although the Petitioner joined the promotional post on 3rd January, 1992 and was discharging his duties as such till the date of his superannuation, i.e., 30th June, 2010, but he W.P.(C) No. 3076 OF 2016 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 was not paid his arrear salary as per the revised scale of pay. The application being filed under Section 33-C(2) of the ID Act, learned Labour Court should have computed the same and directed the Management to pay the legitimate entitlement of the Petitioner. Instead, his application was dismissed ex-parte vide order under Annexure-1. Hence, this writ petition has been filed to set aside the said order dated 16th October, 2014 and direct the Authorities to pay the legitimate dues of the Petitioner as per the revised scale of pay. 5. Mr. Acharya, learned Counsel for the Petitioner, placing reliance on the following decisions of different High Courts, submits that since the Petitioner had a pre-existing right to receive the revised scale of pay, his application under Section 33-C (2) of ID Act was very much maintainable. The case laws relied upon by Mr. Acharya, learned Counsel are as follows; i) Sayal Mal Bhansali Vs. Judge, Labour Courts, Udaipur and another; 1995 (I) LLJ 914, Rajsthan (para-14) ii) Management of Tingal Ibam Tea Estate Vs. Presiding Officer, Labour Court and another; 2002 (I) LLJ 177 Gauhati (para-6 and 7) iii) Uttar Pradesh State Road Transport Corporation, Meerut; 2012 (III) LLJ 461 (All) (para-6) 6. Mr. Acharya, learned Counsel further submits that when there was no dispute with regard to revision of scale of pay, W.P.(C) No. 3076 OF 2016 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 learned Labour Court, exercising its power under Section 33- C(2) of the ID Act, ought to have computed the legitimate dues of the Petitioner and granted relief sought for by issuing appropriate direction to release his arrear salary. 7. Per contra, Mr. Panda, learned AGA submits that the proceeding under Section 33-C (2) of the ID Act, is in the nature of an execution proceeding. Hence, the entitlement, if any, of the Petitioner, which needs adjudication, could not have been gone into in such a proceeding. Since there was a dispute as to entitlement of the Petitioner regarding the revised scale of pay and the same being denied by the Employer, the Labour Court has rightly dismissed the application of the Petitioner as the same being beyond its jurisdiction. In support of his submission, Mr. Panda, learned AGA places reliance on the judgment of Hon’ble Supreme Court in Municipal Corporation of Delhi Vs. Ganesh Razak and another; reported in (1995) 1 SCC 235. 8. Mr. Panda, learned AGA further submits that, the representations submitted by the Petitioner for drawal of his arrear salary in the revised scale of pay were rejected. Thus, the claim of Petitioner for arrear salary in the revised scale of pay requires adjudication. As held by Hon’ble Supreme Court in Ganesh Razak and another (supra) the Industrial Adjudicator cannot assume jurisdiction to adjudicate a disputed question of fact in exercise of power under Section 33-C (2) of the ID Act. Further, as is detailed in the impugned order, the Petitioner, after his retirement, had also filed OA No.1492 of 2011 before the W.P.(C) No. 3076 OF 2016 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 Odisha Administrative Tribunal, Bhubaneswar to fix his pension taking into consideration the period of his employment in regular establishment as per Rule 18 (3) of the OCS Pension Rules, 1992. No claim for arrear salary in the revised scale of pay was raised in the said Original Application. Thus, learned trial Court has committed no error in in dismissing the application filed by the Petitioner in ID Misc. Case No.56 of 2012 filed under Section 33-C (2) of the ID Act. 9. Upon hearing learned Counsel for the parties and on perusal of record, this Court finds that the Petitioner initially joined under the work-charged establishment on 15th January, 1972. Subsequently, his service was regularized in the post of Helper on 17th January, 1977 after five years of continuous service vide office order No.5237 dated 28th April, 1988 (Annexure-2) issued by the Superintending Engineer, S.M.I. Circle, Berhampur. The Petitioner was promoted to the post of work-charged Concrete Mixture Driver with scale of pay of Rs.625-940/- with usual DA and other allowances vide order dated 29th December, 1991 (Annexure-7) issued by the Superintending Engineer, S.M.I. Circle, Berhampur. He joined in the said post in the afternoon of 3rd January, 1992. While continuing as such, the salary of Concrete Mixture Driver was revised and was fixed at Rs.3050-4590/- with initial scale of pay at Rs.950-1500/-. The said revision in the scale of pay was pursuant to an order of the Chief Engineer, Minor Irrigation, Odisha, Bhubaneswar vide notification dated 12th November, W.P.(C) No. 3076 OF 2016 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Mar-2025 18:43:45 1999 (Annexure-5). Thus, the Petitioner claimed revised scale of pay. His grievance was allegedly not paid any heed. As such, the Petitioner filed ID Misc. Case No.56 of 2012 under Section 33-C (2) of the ID Act for computation of his arrear salary in terms of the revised scale of pay and to pay the same. Learned Labour Court, Bhubaneswar, taking into consideration the rival contentions of the parties and documents on record, came to hold that the representations of the Petitioner for revision in the scale of pay were turned down by the Authority. Thus, it appears from the admitted facts and documents on record that there is an existing dispute as to what should have been the Petitioner’s scale of pay as a work-charged Concrete Mixture Driver. 10. The contention of Mr. Acharya, learned Counsel for the Petitioner cannot be accepted on the ground that the claim of the Petitioner for revision in the scale of pay was turned down by the Authority. There appears no material on record to show that said refusal and inaction with regard to release of arrear salary on revision of scale of pay was challenged before any competent Court of law by the Petitioner. Further, the case laws relied upon by Mr. Acharya, learned counsel are of no assistance to the case of the Petitioner, as the same do not deal with a disputed claim, as that of the Petitioner. However, the ratio in the case of Ganesh Razak and another (supra), relied upon by the learned State