# Madan v. Smt. Achala Madan) decided

- **Citation:** (2012) 2 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-29
- **Case number:** Civil Misc. Writ Petition No. 18865 of 1997
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madan-v-smt-achala-madan-decided-42324
- **Pages:** 4

## Headnote

C.S.C.
Sri K P Agarwal
Sri S.N. Dubey
Suman Sirohi
Sri V.K. Singh
Ms. Sumati Rani Gupta
Sri S.K. Singh

U.P. Industrial Dispute Act 1947 Section
33-C-(2)-Award of Labor Court regarding
payment of wages-without adjudication of
reference-order under Section 33-C-(2)
execution
in
nature-in
absence
of
adjudication-order passed u/s 33-C-(2)-
held-exercise of excessive of power-not
sustainable.

Held: Para 14

There being no such determination by a
court of competent jurisdiction with regard
to termination or dispensation of services
of the respondent no.2, the provisions of
Section 33-C (2) of the Industrial Disputes
Act were not applicable and therefore, the
award dated 10.03.1997 suffers from the
vice of excessive jurisdiction and is
accordingly, set aside. The writ petition is
allowed.
Case law discussed:
(1978) 2 SCC in Para No. 4; (1995) 1 SCJ 177;
(2001) 1 SCC 73; (2005) 8 SCC
990 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

## Text

2 All] The District Co-operative Bank Ltd. Jaunpur V The Labor Court, & another
989
7 will be subject matter of appeal under
Section 19 of the Family Court Act.

10. We have taken similar view in
First Appeal No. 46 of 2007 (Rajiv
Madan Vs. Smt. Achala Madan) decided
on 30.7.2012. The relevant paragraph is
quoted below:

We have given careful consideration
to the above submission of the learned
counsel for the appellant but it is difficult
to agree with him. Indisputably, the order
under appeal has been passed on the
execution side by civil court. Even if a
decree or order is passed by the Family
Court for the purposes of execution, the
remedy under section 19 of the Family
Court shall not be available and the only
remedy to an aggrieved party will be to
challenge the order passed by the
executing court in the same manner as is
prescribed by the Code of Civil Court
while executing a decree.

11. In view of the above, we are of
the opinion that the present appeal is not
maintainable. It is dismissed accordingly.

12. At the end, learned counsel for
the appellant submits that the appellant
may be permitted to convert the appeal
into revision. We provide that the
appellant may seek appropriate remedy
before the appropriate forum and seek
condonation of delay.

13. The office is directed to return
the certified copies of the judgment and
order of the court below within a week.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 18865 of 1997

The
District
Cooperative
Bank
Ltd
Jaunpur

 ...Petitioner
Versus
The Labor Court, U.P. at Varanasi and
another

 ...Respondents

Counsel for the Petitioner:
Sri Devendra Pratap Singh

Counsel for the Respondents:
C.S.C.
Sri K P Agarwal
Sri S.N. Dubey
Suman Sirohi
Sri V.K. Singh
Ms. Sumati Rani Gupta
Sri S.K. Singh

U.P. Industrial Dispute Act 1947 Section
33-C-(2)-Award of Labor Court regarding
payment of wages-without adjudication of
reference-order under Section 33-C-(2)
execution
in
nature-in
absence
of
adjudication-order passed u/s 33-C-(2)-
held-exercise of excessive of power-not
sustainable.

Held: Para 14

There being no such determination by a
court of competent jurisdiction with regard
to termination or dispensation of services
of the respondent no.2, the provisions of
Section 33-C (2) of the Industrial Disputes
Act were not applicable and therefore, the
award dated 10.03.1997 suffers from the
vice of excessive jurisdiction and is
accordingly, set aside. The writ petition is
allowed.
Case law discussed:
(1978) 2 SCC in Para No. 4; (1995) 1 SCJ 177;
(2001) 1 SCC 73; (2005) 8 SCC
990 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. By this petition, the petitioner is
challenging the award dated 10.03.1997
passed by the Labour Court, Varanasi in
Misc. Case No.85 of 1995 and 60 of 1996.

2. The claim of the respondent no.2 is
that he was employed in the petitionerDistrict Cooperative Bank, Jaunpur on the
post of Clerk in the year 1963-1964. He was
placed under suspension by order dated
23.04.1967 and thereafter neither any
charge sheet was given to him nor any
inquiry was held but he was never reinstated
in service. He also submitted an application
claiming a sum of Rs.6,68,576/- as arrears
of wages for the period from 23.04.1967
upto 30.06.1995. The respondent no.2
further
submitted
that
several
representations were made by him all of
which went unheeded.

3. On behalf of the petitioner-Bank, it
is submitted that the respondent no.2
studied L.L.B. course and thereafter he was
registered with the U.P. Bar Council and his
registration number is 26/1971 and with
effect from January, 1971 the respondent
no.2 has been practicing as a lawyer. The
submission of the management is that if the
petitioner had completed his legal studies
and did his three years L.L.B. course and
thereafter was also registered with the U.P.
Bar Council and was a practicing Advocate
from January, 1971, the question of his
being a workman under the management
upto 30.06.1995 does not arise, therefore,
the very case set up by the respondent no.2
was false and fictitious.

4. I have heard Sri D.P. Singh, learned
counsel for the petitioner, Ms. Sumati Rani
Gupta, learned counsel for the respondent
no.2 and learned Standing Counsel for the
respondent no.1.

5. The contention of the learned
counsel for the respondent no.2 throughout
is that with effect from 23.04.1967 the
respondent
no.2
was
placed
under
suspension and thereafter he has not worked
under the petitioner-bank. On the other
hand, the submission of the learned counsel
for the petitioner is that the petitioner was
never interested in working in the bank and
instead during this period he completed his
three years L.L.B. course and he was
registered with the U.P. Bar Council and his
registration number is 26/1971 and that he
started practice with effect from January,
1971.

6. These facts are not disputed and
also find mention in the award of the
Labour Court and have not been dislodged
by the respondent no.2 before the Labour
Court. The question, therefore, is manifestly
settled that if the respondent no.2 had done
his L.L.B. course which ordinarily would
have taken at least three years to complete
and he starting practice in January, 1971
and was also registered with the U.P. Bar
Council this only further buttresses the
contention of the petitioner is that the
respondent no.2 was never interested in
service and he never worked with effect
from 23.04.1971.

7. The question with regards to the
dispensation of service of respondent no.2
with effect from 1967 has not been
adjudicated by any court of competent
jurisdiction and unless it is held by a court
of
competent
jurisdiction
that
the
dispensation of services of respondent no.2
with effect from 23.04.1967 was in fact bad
in law, it cannot be presumed that the
respondent no.2 was in the services of the
2 All] The District Co-operative Bank Ltd. Jaunpur V The Labor Court, & another
991
management particularly in the light of the
fact that the respondent no.2 during this
period also completed his three years L.L.B.
course and started legal practice in January,
1971,
therefore,
by
no
stretch
of
imagination it shows that the respondent
no.2
continued
working
under
the
management with effect from 23.04.1967 to
30.06.1995.

8. Unless and until the services of the
respondent no.2 are held to have been
terminated or dispensed with validly by any
court of competent jurisdiction, no claim for
wages could be made under the provisions
of Section 33-C (2) of the Industrial
Disputes Act.

9. The proceedings under Section 33C (2) of the Industrial Disputes Act have
been held to be in the nature of execution
proceedings, as such, the proceedings can
only be resorted to if the rights of aggrieved
parties are adjudicated by a court of
competent jurisdiction through a decree,
order or award.

10. The Supreme Court in the case of
M/s Punjab Beverages Pvt. Ltd. Vs.
Suresh Chand and another reported in
(1978) 2 SCC in Para No.4 held as
follows:-

"4..............It is now well settled, as a
result of several decisions of this Court, that
a proceeding under section 33C(2) is a
proceeding in the nature of execution
proceeding in which the Labour Court
calculates the amount of money due to a
workman from his employer, or, if the
workman is entitled to any benefit which is
capable of being computed in terms of
money, proceeds to compute the benefit in
terms of money. But the right to the money
which is sought to be calculated or to the
benefit which is sought to be computed must
be an existing one, that is to say, already
adjudicated upon or provided for and must
arise in the course of and in relation to the
relationship
between
the
industrial
workman, and his employer. (Vide Chief
Mining Engineer, East India Coal Co. Ltd.
v. Rameshwar) It is not competent to the
Labour Court exercising jurisdiction under
section 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 under section 10 of
the Act."

11. The Supreme Court in the case of
Municipal Corporation of Delhi Vs.
Genesh Razak & and another reported
in (1995) 1 SCJ 177 in Para No.12 held as
follows:-

"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 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 33-C(2)
of the Act. It is only when the entitlement
has been earlier adjudicated or recognised
by the employer and thereafter for the
purpose of implementation or enforcement
thereof
some
ambiguity
requires
interpretation that the interpretation is
992 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
treated as incidental to the Labour Court's
power under Section 33- C(2) like that of
the Executing Court's power to interpret the
decree for the purpose of its execution."

12. The Supreme Court in the case of
State Bank of India Vs. Ram Chandra
Dubey and others reported in (2001) 1
SCC 73 in Para No.8 held as follows:-

"The principles enunciated in the
decisions referred by either side can be
summed up as follows:

Whenever a workman is entitled to
receive from his employer any money or
any benefit which is capable of being
computed in terms of money and which he is
entitled to receive from his employer and is
denied of such benefit can approach Labour
Court under Section 33C(2) of the Act. The
benefit sought to be enforced under Section
33C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the
right or benefit, which is considered just
and fair on the other hand is vital. The
former falls within jurisdiction of Labour
Court exercising powers under Section
33C(2) of the Act while the latter does not.
It cannot be spelt out from the award in the
present case that such a right or benefit has
accrued to the workman as the specific
question of the relief granted is confined
only to the reinstatement without stating
anything more as to the back wages. Hence
that relief must be deemed to have been
denied, for what is claimed but not granted
necessarily gets denied in judicial or quasijudicial proceeding. Further when a
question arises as to the adjudication of a
claim
for
back
wages
all
relevant
circumstances which will have to be gone
into, are to be considered in a judicious
manner. Therefore, the appropriate forum
wherein such question of back wages could
be decided is only in a proceeding to whom
a reference under Section 10 of the Act is
made."

13. The principle of law enunciated by
the Supreme Court in the case of Genesh
Razak (Supra) and in the case of Ram
Chandra
Dubey
(Supra)
have
been
reiterated in Para Nos.11 and 12 by the
Supreme Court in the case reported in
(2005) 8 SCC State of U.P. Vs. Brij Pal
Singh.

14. There being no such determination
by a court of competent jurisdiction with
regard to termination or dispensation of
services of the respondent no.2, the
provisions of Section 33-C (2) of the
Industrial Disputes Act were not applicable
and therefore, the award dated 10.03.1997
suffers
from
the
vice
of
excessive
jurisdiction and is accordingly, set aside.
The writ petition is allowed.

15. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE S.V.S. RATHORE, J.

Writ Petition No. 1048 (S/B) of 2011

Janmejai Singh

 ...Petitioner
Versus
State of U.P. and another

 ...Opposite parties

U.P.
Recruitment
of
Dependants
of
Government Servant Dying in Harness
Rules 1974-compassionate appointmentclaimed directly on Class II post-on
ground of equality-as other dependents