High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C). NO. 271 OF 2013 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) ******* Orissa Forest Development Corporation Limited … Petitioner -versus- Purna Chandra Parida and another … Opposite Parties Advocate for the Parties For the Petitioner : Mr. Santosh Kumar Patnaik, Senior Advocate being assisted by Mr. U.C. Mohapatra, Advocate For Opp. Party
Legal Reasoning
: Mr. Satyabrata Mohanty, Advocate CORAM: JUSTICE KRUSHNA RAM MOHAPATRA JUSTICE RADHA KRISHNA PATTANAIK -------------------------------------------------------------------------------
Decision
Heard and disposed of on 26.09.2023 ------------------------------------------------------------------------------ JUDGMENT 1. This matter is taken up through hybrid mode. 2. Order dated 15th September, 2012 (Annexure-10) passed by learned Presiding Officer, Labour Court, Bhubaneswar in Industrial Dispute Misc. Case No.59 of 2010 is under challenge in this writ petition, whereby allowing an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (For brevity ‘the Act’), the Petitioner-Management has been directed to pay a sum of Rs.52,924/- to the Opposite Party No.1-Workman within a period W.P.(C) NO.271 OF 2013 Page 1 of 6 // 2 // of three months from the date of the order failing which it would carry interest at the rate of 10% till realization. 3. Mr. Patnaik, learned Senior Advocate appearing for the Petitioner-Management submits that for shortage of trees and receipt of advance salary, the amount of Rs.52,924/- was directed to be recovered from the unutilized leave salary of the Opposite Party No.1-Workman. Assailing the same, Opposite Party No.1- Workman preferred an appeal before the Managing Director, Orissa Forest Development Corporation Limited. The said appeal has been rejected since 14th September, 2009. After dismissal of the appeal holding the Petitioner is liable to pay the aforesaid amount, the Opposite Party No.1 filed an application under Section 33-C(2) of the Act in Industrial Dispute Misc. Case No.59 of 2010 for release of his unpaid leave salary. Learned Presiding Officer, Labour Court, Bhubaneswar held that the Opposite Party No.1-Workman is entitled to the aforesaid amount. 4. Mr. Patnaik, learned Senior Advocate submits that a proceeding under Section 33-C(2) of the Act is in the nature of an execution proceeding. Only the admitted/settled dues of a workman which is capable of being computed may be entertained under Section 33-C(2) of the Act. In the instant case, learned Presiding Officer, Labour Court, Bhubaneswar exceeded his jurisdiction in adjudicating upon the claim of the Petitioner which is not due to the Opposite Party as held by the Competent Authority. In support of his submission, Mr. Patnaik, learned Senior Advocate relied upon the case of Divisional Manager, Orissa Forest Development W.P.(C). NO.271 OF 2013 Page 2 of 6 // 3 // Corporation Ltd., Baripada vrs. Umamani Nayak and others reported in 2020 (2) OLR 977, in which it is held as under: “8. In view of the settled law we have no hesitation to hold that the learned Labour Court lacks jurisdiction to adjudicate upon the undetermined claim of the workman, under Section 33C(2) of the ID Act, be it for back wages or other dues. It being in the nature of execution proceeding, the Industrial Adjudicator can only compute the same on the basis of previous determination/settlement. As such, learned Labour Court has exceeded its jurisdiction in adjudicating the claim of the workman. ……...” the 5. It is submitted that while arriving at the aforesaid conclusion, this Court has taken into consideration the settled law in the field. Learned Presiding Officer, Labour Court, Bhubaneswar failed to appreciate the same and passed the impugned order which is not sustainable and thus liable to be set aside. 6. Mr. Mohanty, learned counsel for the Workman submits that the Opposite Party-1 (Workman) filed the aforesaid proceeding under Section 33-C(2) of the Act for determination of the entitlement to the unpaid leave salary for 300 days amounting to Rs.68,400/-. Out of the said amount, the Opposite Party No.1 was admittedly paid a sum of Rs.15,476/-. As such, he is entitled to the rest of the amount of Rs.52,924/-. The Petitioner-Management has also admitted that the Opposite Party-1- Workman is entitled to the aforesaid unpaid leave salary, but the said amount was withheld on the plea that it was deducted from the unpaid leave salary for shortage of trees and receipt of advance salary. Although a notice to show-cause was issued to the Opposite Party No.1 for recovery of such amount, but without conducting any inquiry or affording W.P.(C). NO.271 OF 2013 Page 3 of 6 // 4 // opportunity to the Opposite Party No.1, the said amount was directed to be recovered. Since the process of recovery was violative of principles of natural justice and procedure prescribed, the entire process of recovery is non est in the eye of law. As such, Opposite Party No.1 is entitled to the said amount. 7. Learned Labour Court, while adjudicating the matter, has categorically held that the notice to show-cause was not issued by the Appointing Authority and no opportunity of hearing was given to him before an order of recovery was made. Thus, holding the recovery to be bad in the eye of law learned Labour Court held that Opposite Party No.1 is entitled to the aforesaid amount. 8. It is his submission that the Petitioner-Management has never disputed the amount as due to Opposite Party No.1. Thus, the case of the Opposite Party No.1 is squarely covered under the provision under Sub-Section 2 of Section 33-C of the Act. Hence, he submits that the writ petition, being devoid of any merit, should be dismissed. 9. Taking into consideration the submission made by learned counsel for the Parties, this Court finds that the Opposite Party No.1 had filed the proceeding under Section 33-C(2) of the Act for release of Rs.52,924/- recovered from his unpaid leave salary for 300 days. It is not disputed that the Opposite Party No.1 was entitled to a sum of Rs.68,400/- towards unpaid leave salary for 300 days. He was admittedly paid a sum of Rs.15,476/-, but he was not paid a sum of Rs.52,924/-. When the Opposite Party No.1- Workman claims that he is entitled to the aforesaid amount, but the W.P.(C). NO.271 OF 2013 Page 4 of 6 // 5 // Petitioner-Management took a stand that the said amount was recovered from the Petitioner due to shortage of trees and receipt of advance salary. 10. In a proceeding under Section 33-C(2) of the Act as held by this Court in the case of Divisional Manager, O.F.D.C. (supra), that learned Labour Court/Industrial Tribunal lacks jurisdiction to adjudicate upon any undetermined claim of the Workman under Section 33-C(2) of the Act be it for the back wages or other dues. It is also held that the proceeding under the said provision is in the nature of execution proceeding. Thus, the Industrial Adjudicator under the said provision is only competent to compute the entitlement of a workman on any previous determination/settlement. In the instant case, the Petitioner- Management directed to recover an amount of Rs.52,924/- from the unpaid leave salary of the Opposite Party No.1. The Opposite Party No.1, being aggrieved, preferred an appeal which has already been dismissed vide order dated 14th September, 2009. Thus, the entitlement of the Opposite Party No.1 to the aforesaid amount requires an adjudication by the Competent Authority/Court. The said power is not available to an Industrial Adjudicator exercising power under Section 33-C(2) of the Act. As such, direction to pay the aforesaid amount to Opposite Party No.1 is without jurisdiction and hence is not sustainable. 11. Accordingly, the impugned order under Annexure-10 is not sustainable and is accordingly set aside. There shall be no order as to costs. W.P.(C). NO.271 OF 2013 Page 5 of 6 // 6 // 12. The LCR be sent back to learned Labour Court, Bhubaneswar immediately. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge (R.K. Pattanaik) Judge Rojalin Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Oct-2023 13:09:39 W.P.(C). NO.271 OF 2013 Page 6 of 6