# Vishnu Kumar v. Presiding Officer, Labour Court Faizabad and another

- **Citation:** (2012) 2 ILRA 980
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-30
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishnu-kumar-v-presiding-officer-labour-court-faizabad-and-another-42320
- **Pages:** 7

## Text

980 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

11. Thus, in view of the aforesaid
facts and also taking into consideration
that the land in question is a banzar/barren
land of Gaon Sabha, which is not of
public utility, so in the interest of justice
writ petition is disposed of with a
direction that the petitioner shall offer a
land equal to the area of land which is the
subject matter of the present case on
which the petitioner's school is running at
the same circle rate as per the provisions
provided under Section 161 of the U.P.
Z.A. & L.R.Act, 1950 within a period of
four weeks from today to the opposite
party no.3/Sub-Divisional Officer, Tehsil
Sandila, District-Hardoi and the said
authority shall pass appropriate order
within a further period of four weeks and
if the Sub-Divisional Officer, Tehsil
Sandila, District-Hardoi/opposite party
no.3 accepts the proposal in question, land
in dispute will be vested with the
petitioner.

12. For a period of two months or
till the decision is taken by the SubDivisional
Officer,
Tehsil
Sandila,
District-Hardoi/opposite party no.3 no
coercive measure shall be taken against
the petitioner.

13. If the petitioner fails to offer the
proposal in question within the statutory
period as stated herein above, the
authorities are at liberty to proceed
against him in accordance with law.

14. With the above observations,
writ petition is disposed of.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2012

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 1567 of 1997 (S/S)

Vishnu Kumar

 ...Petitioner
Versus
Presiding Officer, Labour Court Faizabad
and another

 ...Opp. Parties

U.P. Industrial Dispute Act 1947-Section
33-C(2)-claim for arrears of wagesalleging to be Seasonal Chaukidar-status
of petitioner still under considerationunless until status, nature of duty
adjudicated-proceeding under
Section
33-C-(2) not maintainable.

Held: Para 20

In the light of the observations made
above without disputing the definition of
seasonal workman as given under the
Standing Order, I find that the petitioner's
status of Seasonal Chaukidar is yet to be
determined
by
the
Labour
Court.
Therefore, I am of the view that until and
unless same is determined finally, the
petitioner has no right to claim any benefit
arising out of the said status under Section
33 C(2) of the Industrial Disputes Act.
Therefore, I do not find error in the award
dated 26.10.1996, passed by the Presiding
Officer, Labour Court, Faizabad.
Case law discussed:
1999 (82) FLR 137; C.M.W.P. No. 6878 of 1992;
2009 (123) FLR 773; AIR 1964 Supreme Court
743; 1996 (2) Supreme Court 562; 2010 (125)
FLR 523; 1983 Supreme Court Cases (L&S) 527
(1983) 4 SCC 293; AIR 1964 Supreme Court
752; (1995) 1 Supreme Court Cases 235; AIR
1968 SC 218

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr Radhey Shyam Mishra
, learned counsel for the petitioner and
2 All] Vishnu Kumar V. Presiding Officer, Labour Court Faizabad and another
981
Mr P.K. Sinha, learned counsel for the
respondents.

2. Petitioner has challenged the
order dated 26.10.1996, passed by the
Labour Court Faizabad in Case No. 22 of
1994 under Section 33 -C of the
Industrial Disputes Act, 1947 with the
prayer to compute his wages in terms of
notification dated 31.1. 1991 whereby
wage structures of the different kind of
employees in the Vaccum Pan Sugar
Factories have been revised.

3. The petitioner claims his status
as a Seasonal Guard in the factory of
opposite party no. 2. It is stated that he
worked during the crushing season 198283 to 1992-93, but he was not paid the
wages as was admissible to the Seasonal
Guards of the factory. He claimed
difference
of
salary
amounting
to
Rs.41723. 25. The claim was referred for
its adjudication under Section 33-C (2)
of the Industrial Disputes Act, 1947 and
was registered as Case No. 22/1994.

4. The respondents contested the
matter and contended that the petitioner
was purely a Daily Wages employee. He
was never engaged as a Seasonal Guard
in the mill, therefore, he was not entitled
for the revised pay applicable to the
seasonal guard. It was also stated that the
recommendation of the Wage Board is
not applicable to the daily wager
employees. Their matter is covered under
the payment of Minimum Wages Act. It
is further stated that so far as payment of
minimum wages is concerned, same has
been
paid
to
the
petitioner.
The
respondent also raised objection against
the maintainability of the case. After
hearing both the parties the Labour Court
framed preliminary question as follows;

" Whether the instant case is legally
maintainable under Section 33-C(2) of
the Industrial Disputes Act?"

5. Petitioner's case before the
Labour Court was that at the time of
engagement he was paid Rs.200/- per
month. Subsequently the same was
increased to Rs.600/- per month. He also
claimed that he worked as a Guard alike
to seasonal permanent employee. He also
admitted that till that time he was not
declared
as
seasonal
permanent
employee. Moreover, he also produced
two witnesses ,namely, Madhav Raj
Awasthi and Shri Ram in his support,
who also admitted that the petitioner was
not declared by any court as seasonal
permanent guard.

6. In defence the employer
produced a document brought on record
in the case of C.B. Case No. 23 of 1993
which reveals that before Concillation
Officer the petitioner prayed to declare
him as a Seasonal Guard and pay the
wages
in
accordance
with
the
recommendation of Third Wage Board.

7. The Labour Court adjudicated
upon the matter and on the basis of
averments of the employer as well as
employee it held that the petitioner was
not a seasonal permanent employee.
Therefore, he is not entitled for the
payment under the pay structure fixed by
the
said
notification
on
the
recommendation of the wage board. That
being so the petitioner has no right to
claim the determination of wages under
Section 33-C of the Industrial Disputes
Act. Before this Court also, the learned
counsel for the petitioner Mr Radhey
Shyam Mishra took the same stand as
was taken earlier.In support of his
982 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
submission he also cited following
decisions;

(I) Ajaib Singh Vs. Sirhind Cooperative marketing -cum-Processing
Service Society 1999 (82) FLR 137,

(ii) Awadhesh Singh Vs. The
Kisan Sahkri Chini Mills U.P. Ltd.
and others( Allahabad High Court)
C.M. W.P.No.6878 of 1992,

(iii) Purshottam and others Vs.
Managing Director U.P. State Sugar
Corporation Ltd. 2009(123) FLR 773,

(iv) The Central Bank of India Vs.
P.S. Rajgopalan AIR 1964 Supreme
Court 743,

(v) National Council for Cement
and Building Materials Vs. State of
Haryana and others 1996(2) Supreme
Court 562

(vi) Dwarikesh Sugar Industries
Ltd. Vs. Presiding officer, Labour
Court Rampur 2010 (125) FLR523,

(vii) D.P. Maheshwari Vs. Delhi
Administration
and
others
1983
Supreme Court Cases (L&S) 527
(1983) 4 SCC 293.

8. In the cases of D.P. Maheshwari
and Dwarikesh Sugar Industries (
supra)
should
make
an
effort
to
adjudicate upon the issue finally instead
of taking preliminary issue . In the case
of Ajaib Singh ( supra) Hon'ble
Supreme Court held that the provisions
of Article 137 of the Schedule to
Limitation Act, 1963 are not applicable
to the proceedings under the Act and that
the relief under it cannot be denied to the
workman merely on the ground of delay.

9. In the case of the Central Bank
of
India
Ltd.(supra),
Hon'ble
the
Supreme Court has held that policy of
the Legislature in enacting Section 33 C
is to provide a speedy remedy to the
individual
workman
to
enforce
or
execute their existing rights. It was
further held that the claim under Section
33-C (2) clearly postulates that the
determination of the question about
computing the benefit in terms of money
may in some cases have to be preceded
by an enquiry into the existence of the
right and such an enquiry must be held to
be incidental to the main determination
which has been assigned to the Labour
Court by sub-section (2). The Court
further held that Section 33 C(2) takes
within its purview cases of workmen
who claimed that the benefit to which
they are entitled should be computed in
terms of money, even though the right to
the benefit on which their claim is based
is disputed by their employers.

10. In the case of Purshottam and
others ( supra) this Court considered the
definition of " seasonal workmen" as
defined in para B 1(II) of the Standing
Order, 1972 applicable in the sugar
factories. The definition of ''Seasonal
Workman' is quoted hereunder:-

"(II) '' A Seasonal Workman' is one
who is engaged only for the crushing
season provided that if he is a retainer,
he shall be liable to be called on duty at
any time in the off-season and if he
refuses to join or does not join, he shall
lose his lien as well as his retaining
allowance. However, if he submits a
satisfactory explanation of his not
2 All] Vishnu Kumar V. Presiding Officer, Labour Court Faizabad and another
983
joining duty, he shall only lose his
retaining allowance for the period of his
absence."

11. In light of the aforesaid
provisions this Court observed that there
is no category like " casual" employees
rather there is classification of workmen
under para B of the said order ,namely,
permanent,
seasonal,
temporary,
probationers, apprentices and substitutes
and considering the fact that it is not a
case of the respondent that the petitioners
were not engaged in a season, this court
declared the petitioners as seasonal
workmen and further held that the word"
casual" mentioned in the impugned order
means seasonal employees.

12. In the case of Awadhesh
Singh( supra) this Court further dealt
with the standing order 1988 and held
that it is not possible to accept the
respondent's case that the petitioner was
engaged to meet any casual requirement
of the mill. The word" casual" in the
context of employment normally means
irregular or a happening by chance.
Having allowed the petitioner to work as
sheet
writer/
weighment
clerk
successively during the major part of
three crushing seasons, the respondents
cannot be permitted in absence of any
material to say that the appointment of
the petitioner was made to meet any
casual requirement occurring by chance.
The petitioner has to be treated as a
seasonal workman entitled to the reliefs
claimed in the writ petition .

13. In order to discuss the scope of
Section 33 C(2) of the Industrial
Disputes Act (in short ''the Act'), Mr P.K.
Sinha,
learned
counsel
for
the
respondents drew the attention of his
Court towards the provisions of Section
33-C (2) of the Act which is reproduced
hereunder;

"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
questions 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).

14. He further drew the attention of
this Court towards the Full Bench
decision in the case of the Bombay Gas
Co. Ltd. Vs. Gopal Bhiva and others
reported in AIR 1964 Supreme Court
752. Hon'ble Suprme Court discussed the
scope and effect of the provisions of
Section 33-C (2) of the Act and the
extent of the jurisdiction conferred on the
Labour Court by it in light of the
decision given in the case of Central
Bank of India (supra).

15. On the point of limitation
Hon'ble the Supreme Court held that the
words" Section 33-C(2) are plain and
unambiguous and it will be duty of the
Labour Court to give effect to the said
provisions without any consideration of
limitation. On the question of right of the
employee for entitlement of claim the
Hon'ble Suprme Court expressed the
opinion as under;

"It is true that in dealing with claims
like bonus, industrial adjudication has
generally discouraged laches and delay,
984 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
but
claims
like
bonus
must
be
distinguished from claims made under S.
33 C(2). A claim for bonus, for instance,
is entertained on grounds of social justice
and is not based on any statutory
provisions. In such a case, it would, no
doubt be open to industrial adjudication
to have regard to all the relevant
considerations before awarding the claim
and in doing so, if it appears that a claim
for bonus was made after long lapse of
time, industrial adjudication may refuse
to entertain the claim, or Government
may refuse to make reference in that
behalf, But these considerations would
be irrelevant when claims are made
under S.33 C(2) where these claims are,
as in the present case, based on an award
and are intended merely to execute the
award. In such a case, limitation cannot
be introduced by industrial adjudication
on academic ground of social justice. It
can be introduced, if at all, by the
legislature. Therefore, we think that the
Labour Court was right in rejecting the
appellant's contention that since the
present claim was belated, it should not
be awarded."

16. In the case of Municipal
Corporation of Delhi Vs. Ganesh
Razak and another, reported in (1995)
1 Supreme Court Cases 235 Hon'ble the
Supreme Court discussed the nature of
proceeding under Section 33-C(2) of the
Act and after considering its constitution
Bench decision given in the case of
Central Bank of India (supra) Hon'ble
Supreme Court held that the power of the
Labour Court under Section 33 -C(2)
extends to interpretation of the award or
settlement on which the workman's right
rests, like the Executing Court's power to
interpret the decree for the purpose of
execution, where the basis of the claim is
referable to the award or settlement, but
it does not extend to determination of the
dispute of entitlement or the basis of the
claim if there be no prior adjudication or
recognition of the same by the employer.
The Hon'ble Supreme Court further
referred to another decision of Bombay
Gas Co. Ltd Vs. Gopal Bhiv ( supra)
and
held
that
the
proceedings
contemplated by Section 33-C(2) are
analogous to execution proceedings and
the Labour Court, like the Executing
Court in the execution proceedings
governed by by the Code of Civil
Procedure , would be competent to
interpret the award on which the claim is
based. It is obvious that the power of the
Executing Court is only to implement the
adjudication already made by a decree
and not to adjudicate a disputed claim
which requires adjudication for its
enforcement in the form of the decree. It
also refers the decision of Chief Mining
Engineer, East India Coal Co. Ltd. Vs
Rameshwar AIR 1968 SC 218 in the
following manner;

"It was held that the right to the
benefit which is sought to be computed
under Section 33-C(2) must be " an
existing one, that is to say, already
adjudicated upon or provided for". The
propositions on the question as to the
scope of Section 33 C (2) deducible from
the earlier decisions of this Court were
summarized and they including the
following namely (SCR pp.142-144).

(1)The legislative history indicates
that the legislature, after providing
broadly
for
the
investigation
and
settlement of disputes on the basis of
collective bargaining, recognized the
need of individual workmen of a speedy
remedy
to
enforce
their
existing
2 All] Vishnu Kumar V. Presiding Officer, Labour Court Faizabad and another
985
individual rights and therefore inserted
Section 33-A in 1950 and Section 33-C
in 1956. These two sections illustrate
cases in which individual workman can
enforce their rights without having to
take recourse to section 10 (1) and
without having to depend on their union
to espouse their case.

(3) Section 33-C which is in terms
similar to those in Section 20 of the
Industrial Disputes( Appellate Tribunal)
Act, 1950 is a provision in the nature of
an executing provision.

(5) Section 33-C (2) takes within its
purview cases of workmen who claim
that the benefit to which they are entitled
should be computed in terms of money
even though the right to the benefit on
which their claim is based is disputed by
their employees. It is open to the labour
Court to interpret the award or settlement
on which the workman's right rests.

(7) Though the court did not
indicate which cases other than those
under sub-section (1) would fall under
sub-section (2), it pointed out illustrative
cases which would not fall under subsection (2) viz, cases which would
appropriately
be
adjudicated
under
Section 10(1) or claims which have
already been the subject matter of
settlement to which Sections 18 and 19
would apply.

(8)Since 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 a workman is in such
cases in the position of an Executing
Court, the Labour Court like the
Executing
Court
in
execution
proceedings governed by the Code of
Civil Procedure, is competent under
Section 33-C (2) to interpret the award or
settlement where the benefit is claimed
under such award or settlement and it
would be open to it to consider the plea
of nullity where the award is made
without jurisdiction."

17. Ultimately Hon'ble the Supreme
Court held that 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
adjudication
in
the
nature
of
determinations (1) plaintiff's right to
relief(ii) corresponding liability of the
defendant
including
whether
the
defendant is, at all, liable or not or
proceed to compute the benefit by
dubbing the former as '' Incidental' to its
main business or computation. Hon'b;e
Supreme Court further held that Labour
court has no jurisdiction to first decide to
workmen's entitlement and then to
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 entitlement has been
earlier adjudicated or recognized by the
employer and thereafter for the purpose
of
implementation
or
enforcement
thereof
some
ambiguity
requires
interpretation that the interpretation is
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.

18. The respondent has also filed a
supplementary counter affidavit stating
986 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
therein that the petitioner filed C.B. Case
before the Concillation Officer, Faizabad
through Shramik Kalyan Union, Chini
Mill Nawabganj, Gonda for declaring
him as a seasonal chaukidar in 1993
which was registered as C.B. Case No.
23 of 1993. The Concillation Officer on
2.9.1994 issued directions to keep the
petitioner
in
engagement
in
the
forthcoming crushing season and ensure
the payment of wages. The respondent
challenged the said order before this
Court
through
writ
petition
being
W.P.no. 5616(S/S) of 1994. This Court
by means of order dated 5th April, 2012
quashed the directions issued by the
Concillation Officer and directed the
Concillation officer to proceed further
with concillation proceedings which is
pending consideration.

19. In light of the aforesaid fact,
learned counsel for the respondent
submitted that thus petitioner's claim to
declare
his
status
as
a
Seasonal
Chaukidar is yet to be adjudicated upon.
Therefore, at this stage , until and unless
his status is finally determined, he cannot
claim any benefit arising out of the status
as
claimed
under
the
proceedings
initiated under Section 33-C(2) of the
Industrial Disputes Act.

20. In the light of the observations
made above without disputing the
definition of seasonal workman as given
under the Standing Order, I find that the
petitioner's status of Seasonal Chaukidar
is yet to be determined by the Labour
Court. Therefore, I am of the view that
until and unless same is determined
finally, the petitioner has no right to
claim any benefit arising out of the said
status under Section 33 C(2) of the
Industrial Disputes Act. Therefore, I do
not find error in the award dated
26.10.1996, passed by the Presiding
Officer, Labour Court, Faizabad.

21. Accordingly the writ petition
stands dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2012

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

First Appeal No. - 364 of 2011

Smt. Prem Jyoti and others ...Petitioner
Versus
Smt. Sushila Goel and another

 ...Respondents

Counsel for the Petitioner:
Sri Sami Ullah Khan
Sri V.M. Zaidi

Counsel for the Respondents:
Sri Ram Krishna Mishra

Family Courts Act 1984-Section 19Appeal against order passed by Civil
Court-execution
proceeding
subsequently
transferred
to
Family
Court-shall be treated to be possessed
by competent jurisdiction-appeal against
order passed by execution Court-heldnot
maintainable-except
the
order
passed under Section 7 of Family Court
Act.

Held: Para 9

The Family Courts Act 1984 has been
enacted to provide for the establishment
of family courts with a view to promote
cancellation in, and secure speeding
settlement
of
disputes
relating
to
marriage and family affairs and for
matters connected therewith. Section-7
of the Act deals with the jurisdiction of