Section 33-C(2) I.D. Act Is Similar To Execution Provision, Liability To Pay Should Be Pre-Decided : Punjab & Haryana HC

A single bench of Punjab & Haryana High Court comprising of Justice Jagmohan Bansal held that the employee cannot approach Labour Court under the Section 33-C(2) of the I.D. Act, in absence of already determined liability of the employer to pay the retrenchment compensation. Background Facts The respondent joined petitioner-Corporation as Junior Engineer in the year 1982. The Corporation came to be closed w.e.f. 30.06.2002. The Corporation paid retrenchment compensation to all the workers while respondent was paid 3 months salary considering him an employee instead of workman. The Corporation claimed that respondent did not fall within the definition of workman as defined under Section 2(s) of Industrial Disputes Act (I.D. Act). The respondent preferred an application under Section 33-C(2) of I.D. Act before Labour Court seeking direction to Corporation to pay him compensation. The Labour Court directed the Corporation to pay a sum of Rs.83,360/- along with interest @ 8% per annum as retrenchment compensation. Aggrieved by the same, the Corporation filed the writ petition to set aside the order of Labour Court. It was contended by the Corporation that Labour Court had no jurisdiction to adjudicate disputed questions while exercising power under Section 33-C(2) of I.D. Act. Further that Section 33-C of I.D. Act is a sort of execution provision and under Sub-section (2), the Labour Court can interfere if entitlement is already determined. On the other hand it was contended by the respondent that Labour Court had rightly exercised its jurisdiction. And if Labour Court had no jurisdiction, then respondent may be granted liberty to avail any other remedy as permissible by law. Findings of the Court The Section 33C(2) of ID Act was referred by the court. It was observed that the labour court can determine the amount of salary but cannot decide whether workman is entitled to salary or not. It means the said sub-section is applicable where workman is undisputedly 'entitled' to money or benefit which can be computed in terms of money. The case of State Bank of India v. Ram Chandra Dubey, (2001) was relied upon by the court wherein the Supreme Court held that a workman can approach the Labour Court under Section 33-C(2) of the I.D. Act to enforce a pre-existing benefit or right, and not the one which is deemed just or fair. The back wages must be specifically adjudicated, considering the relevant circumstances, and cannot be presumed as implied in reinstatement awards. The case of MCD v. Ganesh Razak, (1995) was also relied upon by the court wherein the Supreme Court held that Section 33-C(2) of the I.D. Act applies only when a workman's entitlement to a benefit has been previously adjudicated or recognized by the employer. If the entitlement itself is disputed, then the Labour Court lacks jurisdiction to decide it under this section. Further the case of Bombay Chemical Industries v. Labour Commr., (2022) was relied upon by the court wherein the Supreme Court held that when a workman's employment status is disputed and lacks prior adjudication, the Labour Court cannot proceed under Section 33-C(2) of the Industrial Disputes Act. It was observed by the court that there should be prior confirmed liability of the employer to invoke jurisdiction of Labour Court under the Section 33-C(2). In the absence of already determined liability to pay, the employee cannot approach Labour Court under the said sub-section. It was further observed by the court that the question of whether respondent was workman or not, could not be adjudicated by Labour Court while exercising power conferred under Section 33-C(2) of I.D. Act. Further that the Labour Court in exercise of power under Section 33- C(2) cannot determine entitlement of retrenchment compensation. It can order to employer to pay already determined compensation. It was held by the court that Section 33-C(2) of I.D. Act is sort of execution provision and in the absence of already adjudicated entitlement to retrenchment compensation, the Labour Court could not ask the corporation to pay retrenchment compensation like other workers. The order of the labour court was set aside. With the aforesaid observations, the writ petition was allowed. Case No. : CWP-19395-2017 Counsel for the Petitioners : Pritam Singh Saini; Sanchi Bindra, Counsel for the Respondent : Raj Kaushik, Advocate and Harsh Vardhan, AdvocateClick Here To Read/Download The Order

Section 33-C(2) I.D. Act Is Similar To Execution Provision, Liability To Pay Should Be Pre-Decided : Punjab & Haryana HC

Namdev Singh

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