Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) No.9361 of 2023 An application under Articles 226 & 227 of the Constitution of India The Koraput Central Co-operative Bank Ltd. : Petitioner -Versus- Sudesna Tripathy & Ors. : Opposite Parties For Petitioner For Opposite Party Nos.1 to 4 : M/s. B. Sahoo, G.N. Sahu, A.K. Choudhury : None (Pre-admission stage) For Opposite Party No.5 : Mr. S. Mishra, ASC J U D G M E N T CORAM : JUSTICE BISWANATH RATH JUSTICE M.S. SAHOO Date of hearing & Date of Judgment : 21.06.2023 Per Biswanath Rath, J. 1.
Legal Reasoning
Heard the submissions of Mr. Baidhar Sahoo, learned counsel for Petitioner and Mr. Sonak Mishra, learned ASC for Opposite Party No.5. 2. This Writ Petition involves a challenge to the order of the Presiding Officer, Labour Court, Jeypore, Dist.-Koraput in I.D. Miss Case No.05/2020 vide Annexure-1 and further also involves a claim for dismissal of the I.D. Misc. Case No.05/2020. Page 1 of 8 // 2 // 3. Short background involved in this case is that deceased workman (Bhagaban Tripathy) in his lifetime approached the Presiding Officer, Labour Court in the district of Koraput. This Bhagaban Tripathy died during pendency of the proceeding and he was substituted by his legal heirs here appearing as Opposite Party Nos.1 to 4 in a proceeding under the provisions of Section 33-C(2) of the I.D. Act, 1947 herein after in short be reflected as “the Act, 1947” claiming therein that the workman Bhagaban Tripathy had the undisputed dues particularly the retiral benefits and arrear withhold salary along with interest amounting to the tune of Rs.25,00,171/-. Detailing in the claim petition the legal heirs claimed that there has been withholding of arrear salary of Rs.11,76,120/- for the period from 21.10.2011 to 31.03.2014, further withholding of the leave salary towards the retiral benefit amounting to Rs.3,40,080/- along with interest @ 10% for an amount of Rs.9,93,971/- thereby sub-totaling the sum of Rs.25,00,171/-. Upon filing of Section 33-C(2) application, Opposite Party No.5-the Management on its appearance filed its counter affidavit vide Annexure-3 disputing the claim of entitlement of the workman. In another proceeding in I.D. Misc. Case No.37 of 2013 the Labour Court after providing opportunity to both sides passed an order on 27.10.2014 giving the direction, as follows:- “10. On perusal of the case record, it appears that, the petitioner was working under the O.P.Bank and he has violated fair lending code as also the procedure of disbursement of loan amount for which he was placed under suspension vide Reference No.2594 dt. 4.8.2010 or the O.P. Bank. And accordingly, the departmental proceeding was initiated against him vide No.3391 dt. 16.9.2010 and Pending Finalisation of disciplinary proceedings by the Appointment Committee of the Bank, the petitioner was reinstated in Service vide Ref. No.189/ 11-12 dt. 3.5.2011 by the O.P. Bank. He ws retired from service on dated 31.3.2012 an attaining the age of superannuation. Before finalization of disciplinary proceedings No. 3391 dt. 16.9.2010 and as such during the pending of the proceeding the petitioner claims for retirement benefits from the O.P. In the present case, the O.P. challenged the claim of the petitioner basing on this application as there has been no earlier Page 2 of 8 // 3 // adjudication or recognisation of the claim of the petitioner. On the other hand a disciplinary proceeding has not been finalized till today of the said proceeding is not finally decided and requires consideration or is still to be adjudicated, it can not be said that it is actually stage to approached before this court basing on this applications. As already stated the departmental proceeding was initiated against the petitioner which has not been finalized. The petitioner’s right depends upon the validity of the said proceeding. On the other hand there has been no settlement of Award of the claim of the petitioner and as such there is no existing right. In this context, law is well settled that, if there is no existing right to the money or benefit or if such right has to be adjudicated upon, then the Labour Court U/s.13-C(2) has no power to proceed further or to adjudicate upon that right. Keeping in view the above facts and circumstances of the 11. case, I am of the Opinion that the petitioner is no entitled for arrear dues from the O.P. Hence Order- Order.
Decision
In the result the Misc. Case is dismissed on contest against 12. the O.P. without costs.” 4. Pursuing its writ remedy the Management through Mr. Sahoo, learned counsel for Petitioner taking this Court to the grounds in challenge to the impugned order at Annexure-6 raised the following two grounds:- (i) For the workman having been retired since 31.03.2014 the relationship between the employer and employee has come to cease from the aforesaid date and therefore, no dispute U/s.33-C(2) of the Act, 1947 could have been entertained. (ii) The second limb of argument of the Management appears to be; for there is specific plea in paragraph nos.8 & 9 of the counter affidavit, the entitlement claimed by the legal heirs of the deceased workman remains disputed leaving no scope to the authority for taking up such exercise. In the above circumstance, Mr. Sahoo, learned counsel submitted that there is no scope for considering the claim of the legal heirs of the deceased workman under the provisions of Section 33-C(2) of the Act, 1947. Page 3 of 8 // 4 // 5. Advancing his submission and in reference to the plea of the Management in the counter affidavit at Annexure-3, further also taking this Court to the grounds raised in the writ petition and to substantiate his submission Mr. Sahoo, learned counsel for Petitioner further also taking this Court to a decision of this Court in the case of Divisional Manager, O.F.D.C Ltd, Baripada Vrs. Umamani Nayak & Ors. : 2020 (II) OLR- 977 more particularly taking this Court to the observation of the Court in paragraph no.8 therein, attempted to submit that the decision hereinabove has clear support to the stand of the management. 6. Mr. Sonak Mishra, learned State Counsel in his defence to the impugned order involved herein, reading through the provision at Section 33-C(2) of the Act, 1947 attempted to take out the grounds at the instance of the Management and contended that there is clear application of the provision at Section 33-C(2) of the Act, 1947 to the case at hand. Further Mr. Mishra, learned State Counsel urged that for the claim made for the period the workman had worked, there is no scope for non-application of provision at Section 33-C(2) of the Act, 1947. Again taking this Court to the plea of the Management through Annexure-3 particularly at paragraph nos.8 & 9 therein Mr. Mishra, learned State Counsel further contended that there has been no plea even disputing any of the claim except taking plea that since the claim was put up post retirement of the workman, dispute remains outside the scope of the Industrial Dispute Act, 1947 more particularly of the provision at Section 33-C(2) of the Act, 1947. Mr. Mishra, learned State Counsel thus claims for dismissal of the Writ Petition in the approval of the impugned order involved herein. 7. Considering the rival contentions of the parties, this Court from the claim application moved at the instance of the workman himself for his death during pendency of the proceeding being continued through the Page 4 of 8 // 5 // legal heirs finds, the workman has made the following specific plea in his claim application U/s.33-C(2) of the Act, 1947 “2. Brief facts of the case of the applicant is as follows; The applicant Bhagaban Tripathy, has filed this application U/s.33-C(2) of the Industrial Disputes Act, 1947 praying to direct the Opposite party (Koraput Central Cooperative Bank Ltd., Jeypore) to pay his retiral benefit and arrear withheld salary along with interest to the tune of RS.25,00,171/- which he is entitled to, being an employee of the O.P. During the pendency of the proceeding, the original applicant had died and his LRs. are substituted and now are pursuing the case. The applicant claims withheld salary from 21.10.2011 to 31.10.2014 for an amount of Rs. 11,76,120/-, withheld leave salary as retrial benefit amount for Rs. 3,40,080/-, interest @10% for an amount of Rs. 9,93,971/-, sub-total a sum of Rs. 25,00,171/-. 8. It is keeping this factual aspect in view, this Court reading through the counter affidavit filed by the Management in the proceeding U/s.33- C(2) of the Act, 1947 at Annexure-3 finds, the objection of the Management runs through paragraph nos.8 & 9 reads as follows: “8. As stated above, the petitioner retired from service on Dtd.31.03.2014 after attaining the age of superannuation. After retirement the employer and employee relationship ceased to exist from Dt.31.03.2014. Under law a retired employee doesn’t come within the purview of “workman” as defined under I.D Act. Hence, at the threshold the application filed under Section 33 C (2) of the I.D. Act is not maintainable and as such without going into the merits of the case, the House Court after hearing on this issue, dismiss the case of the petitioner. That it is admitted case of the parties that the petitioner is 9. retired employee to the Bank which is constituted and registered under the provisions of OCS Act. Hence, being an Ex-Servant, the petitioner can pursue his remedy before the appropriate authority by filing a dispute case under relevant provisions of OCS Act and the Hon’ble Court has not jurisdiction to entertain the case of the petitioner.” 9. It also appears, it is only on this plea both sides have submitted before the Presiding Officer, Labour Court that the impugned order is an outcome of such process. Reading the specific plea and the material produced before this Court, this Court finds, the workman claims his entitlement through Section 33-C(2) application for the period of withholding of arrear salary from 21.10.2011 to 31.03.2014 and Page 5 of 8 // 6 // withholding of the leave salary towards the retiral benefit. It is now considering the objection of the Management before the competent authority and reading through paragraph nos.8 & 9 therein also taken care of by the Presiding Officer in his impugned order, this Court finds, there is no denial to the fact that the claim of the workman pertains to the aforesaid period with the specific plea by the Management. Petitioner herein in paragraph no.8 claimed that relationship between the workman and the employer came to be ceased from 31.03.2014 when the workman got superannuated. While keeping the above factual aspect in mind this Court at this stage examines the provision at Section 33-C(2) of the Act, 1947, which reads as follows:- “33-C. Recovery of money due from an employer.- (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:] 10. Reading the aforesaid legal provision and the period of claim, this Court finds, there should not be any doubt that the proceeding U/s.33- C(2) of the Act, 1947 undisputedly involves computation of the entitlement of the employee, while he was undisputedly a workman. The provision also enables the authority to take into account the question relating to such subject. 11. In the circumstance and for there is no whisper of pleading on the disputed nature of claim and for the submission that the proceeding was not entertainable for the reason the workman was already retired by the time of filing of the application U/s.33-C(2) of the Act, 1947, this Court Page 6 of 8 // 7 // finds, the grounds raised herein on non-application of the provision at Section 33-C(2) of the Act, 1947 does not apply to the case at hand. 12. This Court at this stage takes into account the decision cited at Bar by the Petitioner in Divisional Manager, O.F.D.C Ltd, Baripada (supra) in his attempt to take out the applicability of the provision at Section 33- C(2) of the Act, 1947. On perusal of judgment referred to hereinabove this Court finds, the dispute therein involves; for specific dispute raised by the Management on the entitlement of the workman therein with clear specific plea disclosed in the paragraph 3 of the judgment therein, the Court came to hold that in the event there is dispute on the entitlement of the workman, then the competent authority lacks jurisdiction to decide such issue under the provision at Section 33-C(2) of the Act, 1947 for it’s being a nature of execution. In the case at hand there was dispute on the amount claimed and the only dispute remains, the Petitioner since retired, is no more as a workman. In the circumstance, the decision cited (supra) by the Petitioner has no application to the case at hand. Coming to the second question raised by the Management and as taken note hereinabove, this Court here looking to the stand of the Management through the paragraph nos.8 & 9 finds, there was no cessation of relationship between the employee and the employer as the period of entitlement claimed remains pre-superannuation, further there was no dispute on the entitlement of the Petitioner-workman in the entire objection. Both the questions are decided against the Petitioner herein. 13. Perused the reasons given by the Presiding Officer, Labour Court in the impugned order. This Court finds, impugned order is a reasoned one and has the support of law and therefore, the impugned order requires no interference in exercise of power under Articles 226 & 227 of the Constitution of India. Page 7 of 8 // 8 // 14. Writ Petition stands dismissed. There is, however, no order as to costs. (M.S. Sahoo) Judge Orissa High Court, Cuttack. The 21st day of June, 2023// Ayaskanta Jena, Senior Stenographer (Biswanath Rath) Judge Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Reason: Authentication Location: High Court of Orissa Date: 23-Jun-2023 13:22:37 Page 8 of 8