Labour Court Cannot Arrogate To Itself Functions of An Industrial Tribunal U/S 33C(2) of ID Act: Gujarat High Court

"It is held that the workmen can proceed under Section 33C(2) of the I.D.Act only after the Tribunal has adjudicated on a complaint under section 33A or on a reference under section 10 of the I.D. Act," the Bench comprising Justice AS Supehia has opined recently. The Gujarat High Court was hearing writ petitions seeking the quashment of orders passed by the Labour Court in recovery applications filed by the Respondent-Employees who were serving as drivers and conductors at Delhi Public School. Background The Respondent-Employees, appointed at the school, were being paid a monthly salary of INR 750 which was less than minimum wages as per the Minimum Wages Act, 1948. Petitioner No. 3, the contractor, was also taking services of the driver/conductor but was not paid minimum wages since 2003. Accordingly, the Respondent-Employees prayed for the payment of the differential amount from the date of appointment till 2011 along with interest at 18%. Additionally, details dearness allowance, working hours, basic salary were presented to bolster the claim. The Labour Court, subsequently, awarded INR 1,29,034 as differential amount of wages under Section 33C(2). Thereafter, the Respondent-Employee filed an application under Section 33C(1) under the ID Act for issuance of recovery certificate which was allowed. The primary contention of the Petitioners was that the Respondent-Employee had joined Anmol Education Service for providing services and therefore, the liability of the minimum wages lay with that organisation. Further, per the contract entered into between the Principal of the school (Petitioner No. 2) and Petitioner No. 3, the Respondents were paid minimum wages till May 2011 and their provident fund was also deducted. Therefore, the Labour Court could not have passed the award without even joining the contractors in the proceedings. Significantly, it was contested that the provisions of Section 33C(2) of the ID Act were in the form of execution proceedings and therefore, the application claiming the amount under this provision were not maintainable. To bolster this averment, the Petitioners relied on State of Uttar Pradesh and Anr. Vs. Brijpal Singh, (2005) 8 S.C.C. 58 and other precedents. Per contra, the Respondent-Employee averred that the Labour Court had duly examined documentary evidence to conclude that differential amount must be paid. Reliance was placed on Manganese Ore India Ltd. Vs. Chandi Lal Saha, AIR 1991 SC 520 by the party. Judgement The Bench identified the primary issue worth consideration was whether the Labour Court had the jurisdiction to entertain the application filed under Section 33C(2) of the ID Act and thereby order the grant of differential wages to the Respondent-Employee. To address this question, Justice Supehia referred to Brijpal Singh wherein it was held: "It is well settled that the workman can proceed u/s. 33C(2) only after the Tribunal has adjudicated on a complaint u/s. 33A or on a reference u/s. 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman." It was further observed in Brijpal Singh: "It is not competent to the Labour Court exercising jurisdiction u/s. 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference u/s. 10 of the Act." Reference was also made to State Bank of India V/s. Ram Chandra Dubey & Ors., 2001 1 SCC 73, wherein the Supreme Court had remarked: "Thus it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made." Significantly, the High Court drew a distinction between pre-existing benefits and benefits flowing from a pre-existing right. The benefit sought under Section 33C(2) is a pre-existing benefit which the employee can seek from the employee as a matter of right from the Labour Court. However, the right accrued to the employee regarding a specific question of relief is confined only reinstatement and not back wages. The latter constitutes benefits flowing from a pre-existing right. Keeping in view this distinction and the lack of jurisdiction of the Labour Court, the High Court allowed the writ petitions and quashed the order. However, it was clarified that the Respondent-Employee could approach the appropriate forum by filing appropriate applications claiming differential amount of wages. Case Title: SANSKRUIT EDUCATION SOCIETY, & 2 other(s) Versus PRAVINBHAI AMBALAL VASAVA Case No.: C/SCA/223/2018Click Here To Read/Download Order

Labour Court Cannot Arrogate To Itself Functions of An Industrial Tribunal U/S 33C(2) of ID Act: Gujarat High Court

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