# U.P. Cooperative Union Ltd v. Presiding Officer Labour Court

- **Citation:** (2014) 1 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-10
- **Case number:** Service Single No. 6412 of 1999
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-cooperative-union-ltd-v-presiding-officer-labour-court-42829
- **Pages:** 6

## Headnote

Constitution
of
India-Art.-226-claim
for
arrears of salary-of higher post-workman
being employee of co-operative societies Act
1961-provisions of Industrial Tribunal Act
1947-not applicable-order passed by Labor
Court-held
without
jurisdiction-order
quashed.

Held: Para-18
The impugned order dated 20.09.1999
cannot be sustained in the light of the law
stated herein above. The labour court did not
have jurisdiction to entertain the application
as U.P. Co-operative Societies Act, 1965
being special Act and Chapter IX of the Act
provides for settlement of dispute including
claims for amounts due. The order impugned
passed by the labour court is also without
jurisdiction as the entire mechanism for
redressal of dispute is provided under
Chapter IX of the U.P. Co-operative Societies
Act, 1965. The impugned order dated
20.09.1999 passed by the respondent no. 1,
Presiding Officer, Labour Court, Lucknow
cannot be sustained either on merit or on the
ground of jurisdiction and is hereby quashed.

Case Law discussed:
(2008)7 SCC 22; 2007AIR SCW 956; 2006 AIR
SCW 4901; (2005)8 SCC 58; (1997)5 SCC 59;
(1995) 1 SCC 235; [2008(3) LBESR 363 (All)];
[2001(1)SCC 73]; [2005(8) SCC 58]; 2006 SC
1784:2006 LLR 494(SC); AIR 2008 SC 968.

## Text

1 All] U.P. Cooperative Union Ltd.Vs. Presiding Officer Labor Court
369
whom neither cognizance has been taken
nor any process issued."

10. For the aforesaid reasons and the
settled legal position on the issue, I have
no hesitation in holding that the Chief
Judicial Magistrate, Raebareli clearly
exceeded his jurisdiction in rejecting the
application moved by the applicant before
him after considering the objection filed
before him by the proposed accused,
opposite party no. 2.

11. In view of the above, the
impugned order dated 21.10.2013 passed
by the Chief Judicial Magistrate, court no.
9, Raebareli is set aside. The matter is
remitted back to the C.J.M., Court no. 9,
Raebareli for passing a fresh order in the
matter keeping in view the settled legal
position on the issue.

12. Accordingly, this application is
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Service Single No. 6412 of 1999

U.P. Cooperative Union Ltd. Petitioner
Versus
Presiding Officer Labour Court. Respondent
Counsel for the Petitioner:
Sri Rakesh Kumar

Counsel for the Respondents:
C.S.C., Sri B.S. Yadav

Constitution
of
India-Art.-226-claim
for
arrears of salary-of higher post-workman
being employee of co-operative societies Act
1961-provisions of Industrial Tribunal Act
1947-not applicable-order passed by Labor
Court-held
without
jurisdiction-order
quashed.

Held: Para-18
The impugned order dated 20.09.1999
cannot be sustained in the light of the law
stated herein above. The labour court did not
have jurisdiction to entertain the application
as U.P. Co-operative Societies Act, 1965
being special Act and Chapter IX of the Act
provides for settlement of dispute including
claims for amounts due. The order impugned
passed by the labour court is also without
jurisdiction as the entire mechanism for
redressal of dispute is provided under
Chapter IX of the U.P. Co-operative Societies
Act, 1965. The impugned order dated
20.09.1999 passed by the respondent no. 1,
Presiding Officer, Labour Court, Lucknow
cannot be sustained either on merit or on the
ground of jurisdiction and is hereby quashed.

Case Law discussed:
(2008)7 SCC 22; 2007AIR SCW 956; 2006 AIR
SCW 4901; (2005)8 SCC 58; (1997)5 SCC 59;
(1995) 1 SCC 235; [2008(3) LBESR 363 (All)];
[2001(1)SCC 73]; [2005(8) SCC 58]; 2006 SC
1784:2006 LLR 494(SC); AIR 2008 SC 968.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Matter has been taken up in the
revised list.

2. Heard Sri Rakesh Kumar, learned
counsel appearing for the petitioner for
U.P. Cooperative Union Limited.

3. This writ petition has been
preferred
against
the
order
dated
20.09.1999 passed by the respondent no.
1, Presiding Officer, Labour Court,
Lucknow in exercise of its power under
Section 6(H) of the U.P. Industrial
Disputes Act, 1947 which is pari materia
to Section 33-C(2) of the Industrial
Disputes Act, 1947. The respondent no. 2
i.e. Workman had approached Labour
Court making an application under
370 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 33-C(2) stating therein that
though he was a clerk he was working on
the post of Assistant Receptionist from
1989 to 1992 and thereafter he was
transferred as clerk, therefore, he has
claimed arrears of salary amounting to Rs.
65,572.45 paisa for the post of Assistant
Receptionist.

4. The petitioner filed their
objections to the claim stating therein that
respondent no. 2 was clerk and at no point
of time he was transferred or appointed as
Assistant Receptionist. The claim is not
maintainable under Section 33-C(2) as
claim of the workman is disputed and the
same has not been adjudicated upon.

5. Sri Rakesh Kumar further states
that U.P. Co-operative Societies Act,
1965 is a special enactment and the
remedies for redressal of dispute is
provided in the Act itself and is a self
contained code, U.P. Industrial Disputes
Act is not applicable to the employees of
Co-operative Societies.

6. In support of his contention,
learned counsel for the petitioner has
relied upon the following decisions:-

"D. Krishnan and another versus
Special Officer, Vellore Cooperative
Sugar Mill and another, (2008) 7 Supreme
Court Cases 22, Ghaziabad Zila Sahkari
Bank
Ltd.
Versus
Addl.
Labour
Commissioner and others, 2007 AIR
SCW 956, U.P. State Road Transport
Corporation
versus
Shri
Birendra
Bhandari, 2006 AIR SCW 4901, State of
U.P. and another versus Brijpal Singh,
(2005) 8 SCC 58, Union of India versus
Gurbachan Singh and another, (1997) 5
SCC 59, Municipal Corporation of Delhi
versus Ganesh Razak and another, (1995)
1 SCC 235 and Sahkari Ganna Vikas
Samiti Ltd., Bijnor versus Jitendra Mohan
and another, [2008(3) LBESR 363 (All)]."

7. In D. Krishnan's case (supra), the
Hon'ble
Supreme
Court
held
that
proceedings under Section 33-C(2) are in
the nature of execution proceedings. Such
proceedings
presupposes
some
adjudication leading to determination of a
right, which has to be enforced.

8. In Ghaziabad Zila Sahkari Bank
Limited's case (supra), the Supreme Court
has held that the U.P. Co-operative
Societies Act, 1965 will apply to persons
in the employment of Co-operative
Societies, to the exclusion of all other
labour laws including U.P. Industrial
Dispute Act, 1947. Paragraph 60 is
reproduced:-

"60. The general legal principle in
interpretation of statutes is that 'the
general Act should lead to the special
Act'. Upon this general principle of law,
the intention of the U.P legislature is
clear, that the special enactment UP Cooperative Societies Act, 1965 alone
should apply in the matter of employment
of Co-operative Societies to the exclusion
of all other Labour Laws. It is a complete
code in itself as regards employment in
co-operative societies and its machinery
and provisions. The general Act the UPID
Act, 1947 as a whole has and can have no
applicability and stands excluded after
the enforcement of the UPCS Act. This is
also clear from necessary implication that
the legislature could not have intended
'head-on-conflict and collision' between
authorities under different Acts"

9. The Hon'ble Supreme Court
further stated that in case the ingredients
of section 6(H) are not satisfied then also
1 All] U.P. Cooperative Union Ltd.Vs. Presiding Officer Labor Court
371
there is no adjudicated claim but only a
highly disputed claim of workman. The
scope of section 6(H) was discussed in
paragraph 64 which is reproduced:

"64. In the alternative if we are to
presume that the ingredients of S.6H are
not satisfied then also there is no
adjudicated claim but only a highly
disputed claim of the workman. In this
connection, one can refer to the decision
of this court in the case of Central Inland
Water Transport Corporation vs. The
Workmen and Another (supra) wherein
this court opined that:

"11. The only question which arises
for determination in this Court is whether
the Labour Court has jurisdiction to
adjudicate on the issues referred to it
under Section 33(C)(2) of the Industrial
Disputes Act. Sub-section (2), which is
part of Section 33C dealing with "the
recovery of money due from an employer"
reads as follows:

(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.

12. It is now well-settled that a
proceeding under Section 33(C)(2) is a
proceeding, generally, in the nature of an
execution proceeding wherein 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, the Labour Court proceeds to
compute the benefit in terms of money.
This calculation or computation follows
upon an existing right to the money or
benefit, in view of its being previously
adjudged, or, otherwise, duly provided
for. In Chief Mining Engineer, East India
Coal Co. Ltd. v. Rameswar and Ors. it
was reiterated that proceedings under
Section
33(C)(2)
are
analogous
to
execution proceedings and the Labour
Court called Upon to compute in terms of
money the benefit claimed by workmen is
in such cases in the position of an
executing court. It was also reiterated
that the right 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
an
industrial
workman and his employer.

13. In a suit, a claim for relief made
by the plaintiff against the defendant
involves an investigation directed to the
determination of (i) the plaintiff's right to
relief; (ii) the corresponding liability of
the defendant, including, whether the
defendant is, at all, liable or not; and (iii)
the extent of the defendants liability, if
any. The Working out of such liability
with a view to give relief is generally
regarded as the function of an execution
proceeding.
Determination
No.
(iii)
referred to above, that is to say, the extent
of the defendant's liability may sometimes
be left over for determination in execution
proceedings. But that is not the case with
the determinations under heads (i) and
(ii). They are normally regarded as the
functions of a suit and not an execution
proceeding. Since a proceeding under
Section 33(C)(2) is in the nature of an
execution proceeding it should follow that
an
investigation
of
the
nature
of
determinations (i) and (ii) above is,
372 INDIAN LAW REPORTS ALLAHABAD SERIES
normally, outside its scope. It is true that
in a proceeding under Section 33(C)(2),
as in an execution proceeding, it may be
necessary to determine the identity of the
person by whom or against whom the
claim is made if there is a challenge on
that score. But that is merely 'Incidental'.
To call determinations (i) and (ii)
'Incidental' to an execution proceeding
would be a perversion, because execution
proceedings in which the extent of
liability
is
worked
out
are
just
consequential upon the determinations (i)
and (ii) and represent the last stage in a
process leading to final relief. Therefore,
when a claim is made before the Labour
Court under Section 33(C)(2) that court
must clearly understand the limitations
under which it is to function. It cannot
arrogate to itself the functions--say of an
Industrial Tribunal which alone is entitled
to make adjudications in the nature of
determinations (i) and (ii) referred to
above, or proceed to compute the benefit
by dubbing the former as 'Incidental' to its
main business of computation. In such
cases determinations (i) and (ii) are not
'Incidental' to the computation. The
computation itself is consequential upon
and subsidiary to determinations (i) and
(ii) as the last stage in the process which
commenced with a reference to the
Industrial Tribunal. It was, therefore, held
in State Bank of Bikaner and Jaipur v.
R.L. Khandelwal, that a workman cannot
put forward a claim in an application
under Section 33(C)(2) in respect of a
matter which is not based on an existing
right and which can be appropriately the
subject-matter of an industrial dispute
which requires a reference under Section
10 of the Act.

14. The scope of Section 33(C)(2)
was illustrated by this Court in The
Central Bank of India Ltd. v. P.S.
Rajagopalan etc.. Under the Shastri
Award, Bank clerks operating the adding
machine were declared to be entitled to a
special allowance of Rs. 10/- per month.
Four clerks made a claim for computation
before the Labour Court. The Bank
denied the claim that the clerks came
within the category referred to in the
award and further contended that the
Labour Court under Section 33(C)(2) had
no jurisdiction to determine whether the
clerks came within that category or not.
Rejecting the contention, this Court held
that the enquiry as to whether the 4 clerks
came within that category was purely
'incidental' and necessary to enable the
Labour Court to give the relief asked for
and, therefore, the Court had jurisdiction
to enquire whether the clerks answered
the description of the category mentioned
in the Shastri Award, which not only
declared
the
right
but
also
the
corresponding liability of the employer
bank. This was purely a case of
establishing the identity of the claimants
as coming within a distinct category of
clerks in default of which it would have
been impossible to give relief to anybody
falling in the category. When the Award
mentioned the category it, as good as,
named every one who was covered by the
category and hence the enquiry, which
was necessary, became limited only to the
clerks' identity and did not extend either
to a new investigation as to their rights or
the Bank's liability to them. Both the latter
had been declared and provided for in the
Award and the Labour Court did not have
to investigate the same. Essentially,
therefore, the assay of the Labour Court
was in the nature of a function of a court
in execution proceedings and hence it was
held
that
the
Labour
Court
had
jurisdiction to determine, by an incidental
enquiry, whether the 4 clerks came in the
1 All] U.P. Cooperative Union Ltd.Vs. Presiding Officer Labor Court
373
category which was entitled to the special
allowance.

15. It is, however, interesting to note
that in the same case the court at page
156 gave illustrations as to what kinds of
claim of a workman would fall outside the
scope of Section 33(C)(2). It was pointed
out that a workman who is dismissed by
his employer would not be entitled to seek
relief under Section 32(C)(2) by merely
alleging
that,
his
dismissal
being
wrongful, benefit should be computed on
the basis that he had continued in service.
It was observed "His ... dismissal may
give rise to an industrial dispute which
may be appropriately tried, but once it is
shown that the employer has dismissed ...
him, a claim that the dismissal ... is
unlawful and, therefore, the employee
continues to be the Workman of the
employer and is entitled to the benefits
due to him under a preexisting contract,
cannot be made under Section 33(C)(2)".
By merely making a claim in a loaded
form the workmen cannot give the Labour
Court
jurisdiction
under
Section
33(C)(2)."

10. In U.P. State Road Transport
Corporation's case (supra), the Hon'ble
Supreme Court relying upon the State
Bank of India versus Ram Chandra Dubey
and others, (2001(1) SCC 73) and a threeJudge Bench decision in State of U.P. and
another versus Brijpal Singh, (2005 (8)
SCC 58), discussed the scope of Section
33-C(2), holding, that the benefits to be
enforced under section 33-C(2) of the Act
must be a preexisting benefit or one
flowing from preexisting right and there is
a difference beween the 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 the Labour Court
exercising powers under section 33-C(2)
of the Act while the latter does not.

11. In Gurubachan Singh's case
(supra), Hon'ble Supreme Court held that
the power under Section 33-C(2) does not
extend to adjudication of a fresh case
treating a part of service rendered by
workman as a re-employment after
retirement.

12.

Similarly,
in
Municipal
Corporation of Delhi's case (supra), the
Supreme Court held that the Labour
Court's jurisdiction under Section 33-C(2)
cannot be invoked to adjudicate dispute of
entitlement of the workman, it can only
interpret the award or settlement on which
the claim is based. The jurisdiction is like
that of the Executing Court.

13. In Union of India Vs. Kankuben
AIR 2006 SC 1784: 2006 LLR 494 (SC) the
Apex Court referring to earlier decisions
observed that the benefit sought to be
enforced under Section 33-C(2) is necessarily
"a pre-existing benefit or one flowing from a
pre existing-right". The difference between a
pre-existing right and benefit on the one hand
and right and benefit which is considered just
and fair on the other hand is vital. The former
comes within the ambit of Section 33-C(2)
while latter does not.

14.

Considering
pari
materia
provision in
Section 6-H
of
U.P.
Industrial Disputes Act, 1947 (hereinafter
referred to as "U.P. Act, 1947") in
Hamdard Laboratories Vs. Deputy Labour
Commissioner AIR 2008 SC 968, the
Court said that Section 6-H (1) of the U.P.
Act, 1947 is in the nature of an execution
proceedings. It can be invoked inter alia
in the event any money is due to workman
under an award but cannot be invoked in a
374 INDIAN LAW REPORTS ALLAHABAD SERIES
case where ordinarily an industrial dispute
can be raised and can be referred to any
adjudication
by
the
appropriate
Government to an industrial Court. The
authorities under Section 6-H cannot
determine any complicated question of
law and also cannot determine in regard
to existence of legal right. The Court went
to observe that it cannot usurp the
jurisdiction of the State Government
under Section 11-B of the U.P. Act, 1947.
The Court said in paras 38 and 39 that the
jurisdiction of Labour Court under
Section 33-C(2) is limited and if existence
of right itself is disputed the provisions
may not be held to have any application.

15. This Court in Sahkari Ganna Vikas
Samiti's case (supra), set aside the order of
labour court on the ground that it had no
jurisdiction to adjudicate the dispute of the
employees of co-operative societies.

16. In view of the exposition of law,
stated herein above and considering the facts
that by order dated 25.07.1989, respondent
no. 2 was attached as Assistant Receptionist
but was not paid the salary of the Assistant
Receptionist nor over time charges was paid
for
the
additional
shifts
and
the
workman/respondent no. 2 prayed for
computing the amounts towards salary and
over
time
charges.
The
petitionerCooperative Society disputed the claim of
the respondent no. 2. It was categorically
stated that the respondent no. 2 was never
appointed as Assistant Receptionist nor any
service was taken from the respondent no. 2
in shifts. The labour court by the impugned
order partially allowed the application
holding that the respondent did not work in
shifts but since he was transferred as
Assistant
Receptionist,
therefore,
the
workman was entitled to the salary of
Assistant Receptionist. The order dated
25.07.1989
clearly
states
that
the
workman/respondent no. 2 was not posted as
Assistant Receptionist, but he was attached
with the receptionist and subsequently he
was transferred as a clerk.

17. From the pleadings of the
parties, it is evident that the claim of the
respondent no. 2 is not based upon any
adjudication, the post as well as the
amount was itself disputed which needed
adjudication. The labour court erred in
adjudicating the dispute as it was beyond
its scope under Section 33-C(2) of the
Industrial Disputes Act.

18. The impugned order dated
20.09.1999 cannot be sustained in the
light of the law stated herein above. The
labour court did not have jurisdiction to
entertain the application as U.P. Cooperative Societies Act, 1965 being
special Act and Chapter IX of the Act
provides
for
settlement
of
dispute
including claims for amounts due. The
order impugned passed by the labour
court is also without jurisdiction as the
entire mechanism for redressal of dispute
is provided under Chapter IX of the U.P.
Co-operative Societies Act, 1965. The
impugned order dated 20.09.1999 passed
by the respondent no. 1, Presiding
Officer, Labour Court, Lucknow cannot
be sustained either on merit or on the
ground of jurisdiction and is hereby
quashed.

19. The writ petition is allowed.

20. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2014

BEFORE
THE HON'BLE TARUN AGARWALA, J.