Industrial Disputes Act, 1947 - Section 33C - Recovery of money due
from an employer - Limitation - Even if some reasonable period of limitation is to be read in to the provision, since the provision itself is silent on that score, then it could be taken to be a period of three years after the conclusion of the proceedings in the Labour Court.
It is not in dispute that the Appellant Workman filed the application under Section 33-C of the Act in the Labour Court on 7th November 2013 within three years from 11th May, 2012 and therefore even by that yardstick, it could not be said that his application was barred by laches or delay. Therefore the Court is unable to agree with the view taken by the Labour Court, which has been affirmed by the learned Single Judge in the impugned judgment, that the Appellant Workman‟s application before it under Section 33-C (2) of the Act was time barred.
Facts of the Case
Question of Law
Whether the Appellant has only one remedy available to him for the recovery of an amount due under an award which has a specified amount and that is to go before the Appropriate Government under Section 33-C (1) of the Act or can he also approach a Court for that purpose?
Indeed, the Act is a beneficial piece of legislation and has to be interpreted as such. The Appellant/ Workman who has an award in his favour appears to have more than one mode of recovery available to him. He could either go before the Appropriate Government in which case he has to make an application, in terms of the first proviso to Section 33-C(1) “within one year from the date on which the money became due”. If he is unable to adhere to this limitation, then in the terms of the second proviso to Section 33-C (1), he can demonstrate to the Appropriate Government that there was sufficient cause for him not to make an application within time.
Industrial Disputes Act, 1947 - Section 33-C(2) requires any of the following conditions to be satisfied before a Workman can approach the Labour Court: i) A Workman is entitled to receive money from an employer; or ii) to receive any benefit which is capable of being computed in terms of money; and iii) a question arises as to the money due or about the amount at which the benefit should be computed.
Industrial Disputes Act, 1947 - Sections 11 (9) and (10) - the award can be construed to be a civil decree and therefore be executable as such - the period of limitation for enforcement of an award does not in all cases have to be restricted to an outer limit of one year.
CORAM: JUSTICE S.MURALIDHAR JUSTICE SANJEEV NARULA
Decided on: 16th November, 2018
LPA 148/2017
ATUL
KANTI TRIPATHI ..... Appellant Through: Mr. Pankaj Vivek with Mr.Shashank
Shekhar Jha and Ms. Bidya Rani, Advocates. Versus KUBER MEDIA LTD. .....
Respondent Through: Mr. Asim Naeem, Advocate.
J U D G M E N T
Dr. S. Muralidhar, J.
1. This appeal is directed against the order dated 25th November, 2016
passed by the learned Single Judge dismissing WP (C) No. 6008/2014 filed by the
Appellant/Workman and upholding an order dated 7th June, 2014 passed by the Labour
Court rejecting the Appellant‟s execution petition (Ex. No. 50/2013) on the
ground that it was filed beyond the period of limitation.
2. The background facts relevant to the present appeal are that an award
was passed by the Labour Court on 10th March, 2010 directing the Respondent Management to
reinstate the Appellant with full back wages, continuity of service and
consequential benefits within thirty days from the publication of the award. The
failure to make such payment would make the management liable to pay interest @
12% p.a. till the actual date of payment to the Appellant. The award was
published on 17th August, 2010 and became enforceable, 30 days after
publication, on 16th September, 2010.
3. On 7th November 2013, the Appellant filed an execution
petition under Section 33-C of the Industrial Disputes Act, 1947 („Act‟). The
said application was captioned as being under Section 33-C, without specifying
whether it was under sub-section (1) or sub-section (2) of Section 33-C of the
Act. In his writ petition before the learned Single Judge, the Appellant has
stated that sometime in November 2013, he learnt that the liquidation
proceedings against the Respondent Company had come to an end with the High
Court, by an order dated 11th May 2012, withdrawing its earlier order appointing a
liquidator.
4. In the written statement filed, in opposition to the execution
petition, the Respondent management raised a preliminary objection as regards
limitation. Thereupon, at the hearing on 7th
April 2014, the Labour Court framed a
preliminary issue as to whether the claim of the Appellant was maintainable
beyond limitation. The Appellant filed an application for condonation of delay,
out of abundant caution, stating clearly therein that his basic plea was that
his application was under Section 33-C (2) of the Act; and that if the Court
was of the view that Section 33-C (1) applied, then the delay in filing the
execution petition may be condoned.
5. The Labour Court by its order dated 7th June, 2014 agreed with the
management. The Labour Court was of the view that since the award itself was
clear and unambiguous and the last drawn wages had been set out therein with
the rate of interest also provided, “there should have been no difficulty in
computing the liquidated amount which has even been calculated by the Workman
and has been mentioned in the petition to be Rs.70,48,146/-.” Since it was not
a disputed amount, the petition had to be “treated to be under Section 33-C (1)
of the ID Act.”
6. The Labour Court then analysed Section 33-C (1) in light of Sections
19 and 17-A thereof and concluded that only the Appropriate Government had the
power to extend the time for enforcement up to a maximum of three years and
that “this Court has no power to extend the period of limitation for the
execution of the award.”
7. The learned Single Judge concurred with the Labour Court on its
interpretation of Section 33-C (1) of the Act and observed “there was no
occasion for the trial Court to adjudicate upon or compute the amount or treat
the petition under Section 33-C (2) of the Act.” The learned Single Judge
observed that since the execution petition had to be treated as one under
Section 33-C (1) of the Act and it was filed beyond the period of limitation,
the Labour Court was justified in upholding the preliminary objection of the
management. The learned Single Judge further observed that if the Appellant
wanted to keep alive the decree “he could have done so by taking appropriate
steps”. It was observed that as far as an application under Section 33-C is
concerned, “unless sufficient cause for the inordinate delay in filing the
application is explained by the party, the application would inexorably be
rejected.”
8. This Court has heard the submissions of learned counsel for the
parties. On behalf of the Appellant, Mr. Pankaj Vivek, Advocate submitted that
the Labour Court erred in treating the application as one under Section 33-C
(1) of the Act. That sub-section could be invoked only when the Workman was
approaching the Appropriate Government for execution of the award. Referring to
the wording of Section 33-C (2) of the Act, he submitted that it was not
confined to those cases where the amount payable under the award was in dispute
or not quantified. There was no warrant for such a restricted interpretation of
Section 33-C (2) of the Act. In other words, he urged that even where the award
spelt out the amount to be paid unambiguously, a workman could invoke Section
33-C (2) of the Act. Admittedly, there was no period of limitation specified in
Section 33-C (2) of the Act and even otherwise, as long as there was sufficient
explanation for the laches/inordinate delay, there should be no difficulty for
a Labour Court entertaining such an application.
9. Mr. Vivek urged that this Court should keep in view the purpose and
object of the Act which is a beneficial piece of legislation as far as the
workman is concerned. The execution of an award in favour of the workman should
not be allowed to be defeated on technical grounds. Mr. Vivek relied on a large
number of decisions including Bombay Gas Company v. Gopal Bhiva AIR 1964
SC 752, Fincap Financial Corporation Limited v. Prem Singh 2011 SCC Online Del
1912 and King Airways v. Captain Manjit Singh (2013) 198 DLT 749.
10. Mr. Vivek referred to Section 19 (3) of the Act and submitted that the
award could remain, in terms of the second proviso thereto, enforceable even
after the expiry of the period of one year. In support of this proposition, he
relied on the decisions in Annamma Thomas v. T.Joseph 2 LLN (1984) 813
(Kerala) and S. Kumaraswamy v. The South Travancore Electric Workers’
Union AIR 1958 Kerala 286. He also referred to the judgment of the
Punjab & Haryana High Court in Punjab General Mazdoor Federation v.
Union of India 2012 (134) FLR 649. Mr. Vivek submitted that since the
Act is a beneficial piece of legislation intended to benefit the workman, the
provisions relating to limitation are to be read as granting maximum leverage
to the workman to enforce the award by initiating other modes of recovery and
not limit his right to execute the award only within one year.
11. Mr. Asim Naeem, learned counsel appearing for the Respondent, on the
other hand, supported the impugned judgment of the learned Single Judge and
submitted that the award here was explicit as to the amount payable to the
Workman. There was no occasion for the Labour Court to adjudicate upon any
issue arising in connection with the computation of the amount payable
thereunder. Accordingly, there was no occasion for the applicability of Section
33-C(2) of the Act. He drew attention to Section 19 (3) of the Act which stated
that the award would remain in operation only for a period of one year and this
provision read with Section 33-C(1) of the Act reflected the legislative intent
to limit the time period available to a Workman for enforcement of an award. He
submitted that from the application filed by the Workman before the Labour
Court for condonation of delay, it was clear that the Appellant himself was
aware that his execution petition was time barred.
12. Mr. Naeem submitted that although the management did not challenge the
award since it was caught up in liquidation proceedings, it did not accept the
legality of the said award. Nevertheless as far as the petition was concerned,
the legal position as explained by the Supreme Court in Jagatjit
Industries v. Labour Officer [2012 (132) FLR 124] was clear. He
referred to the decisions in Punjab National Bank Ltd. v. K.L.Kharbanda
AIR 1963 SC 487, The Central Bank of India Ltd. v. P.S. Rajagopalan AIR 1964 SC
743, Kays Construction Co. Pvt. Ltd. v. The State of Uttar Pradesh AIR 1965 SC
1488, East India Coal Company v. Rameshwar (1968) I LLJ 6 and finally
the decision of the Calcutta High Court in Jessop and Co. v. M. Mukherjee
(1975) ILR 1 Cal 704.
13. In order to appreciate the above submissions, the Court would first
like to examine Section 33-C of the Act which reads as under:
“33C. Recovery of money due from an employer – (1) Where any money is
due to a Workman from an employer under a settlement or an award or under the
provisions of 4 Chapter VA or Chapter VB, the Workman himself or any other
person authorised by him in writing in this behalf, or, in the case of the
death of the Workman, his assignee or heirs may, without prejudice to any other
mode of recovery, make an application to the appropriate Government for the
recovery of the money due to him, and if the appropriate Government is
satisfied that any money is so due, it shall issue certificate for that amount
to the Collector who shall proceed to recover the same in the same manner as an
arrear of land revenue: Provided that every such application shall be made
within one year from the date on which the money became due to the Workman from
the employer:
Provided further that any such application may be entertained after the
expiry of the said period of one year, if the appropriate Government is
satisfied that the applicant had sufficient cause for not making the
application within the said period.
(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 within a period not
exceeding three months Provided that where the presiding officer of a Labour
Court considers it necessary or expedient so to do, he may, for reasons to be
recorded in writing, extend such period by such further period as he may think
fit.
(3) For the purposes of computing the money value of a benefit, the
Labour Court may, if it so thinks fit, appoint a commissioner who shall, after
taking such evidence as may be necessary, submit a report to the Labour Court
and the Labour Court shall determine the amount after considering the report of
the commissioner and other circumstances of the case.
(4) The decision of the Labour Court shall be forwarded by it to the
appropriate Government and any amount found due by the Labour Court may be
recovered in the manner provided for in sub- section (1).
(5) Where workmen employed under the same employer are entitled to
receive from him any money or any benefit capable of being computed in terms of
money, then, subject to such rules as may be made in this behalf, a single
application for the recovery of the amount due may be made on behalf of or in
respect of any number of such workmen.”
14. The scheme of the above provision envisages more than one mode of
recovery of amount payable under an award or settlement. A workman can approach
the Appropriate Government with an application under Section 33-C (1) of the
Act for enforcement of an award. Further, on a collective reading of Section
33-C(1) and 33-C (2) of the Act, it becomes apparent that Section 33-C(1) would
apply when there is no dispute as to the computation of the amount payable
under an award. Whenever there is a dispute and where the money due is not
specified or not being capable of being computed on a reading of the award
itself, the workman can approach the Labour Court with an application under
Section 33-C (2) of the Act. This much stands established from the decisions
cited by the learned counsel for the Respondent and which have been summarised
by the Calcutta High Court in Jessop and Co. v. M.Mukherjee (supra).
15. However, the issue that arises here is different. The question is
whether the Appellant has only one remedy available to him for the recovery of
an amount due under an award which has a specified amount and that is to go
before the Appropriate Government under Section 33-C (1) of the Act or can he
also approach a Court for that purpose? Indeed, the Act is a beneficial piece
of legislation and has to be interpreted as such. The Appellant/ Workman who
has an award in his favour appears to have more than one mode of recovery
available to him. He could either go before the Appropriate Government in which
case he has to make an application, in terms of the first proviso to Section
33-C(1) “within one year from the date on which the money became due”. If he is
unable to adhere to this limitation, then in the terms of the second proviso to
Section 33-C (1), he can demonstrate to the Appropriate Government that there
was sufficient cause for him not to make an application within time.
16. Now turning to Section 33-C(2) of the Act the language is indicative
of the fact that it is not restricted to only those cases where there is a
dispute about how much money is payable or its computation thereunder. Section
33-C(2) requires any of the following conditions to be satisfied before a
Workman can approach the Labour Court: i) A Workman is entitled to receive
money from an employer; or ii) to receive any benefit which is capable of being
computed in terms of money; and iii) a question arises as to the money due or
about the amount at which the benefit should be computed.
17. The contention of the management in the present case is that the
Workman can approach the Labour Court only if there is a dispute as to the
computation of money. Although a plain reading of Section 33-C (2) of the Act
might seem to support such interpretation, given the object and purpose of the
Act, and considering that the Act is a beneficial piece of legislation, such an
interpretation would be too restrictive and would defeat the legislative
intent. The conditions at (i), (ii) and (iii) above do not have to exist
cumulatively for the workman‟s application to be maintainable under Section
33-C (2) of the Act. Further, there is no express period of limitation provided
for filing such application.
18. If one turns to Section 19(3) of the Act again, it talks of the
enforcement of an award by the Government and not by the Court. In this context
the following observations of the Supreme Court in Bombay Gas Company
Ltd. v. Gopal Bhiva (supra) are relevant:
“.....The failure of the legislature to make any provision for
limitation cannot, in our opinion, be deemed to be an accidental omission. In
the circumstances, it would be legitimate to infer that legislature
deliberately did not provide for any limitation under s. 33C (2). It may have
been thought that the employees who are entitled to take the benefit of s. 33 C
(2) may not always be conscious of their rights and it would not be right to
put the restriction of limitation in respect of claims which they may have to
make under the said provision. Besides, even if the analogy of execution
proceedings is treated as relevant, it is well known that a decree passed under
the Code of Civil Procedure is capable of execution within 12 years, provided,
of course, it is kept alive by taking steps in aid of execution from time to
time as required by art. 182 of the Limitation Act, so that the test of one
year or six months' limitation prescribed by the Payment of Wages Act cannot be
treated as a uniform and universal test in respect of all kinds of execution
claims.”
19. Sections 11 (9) and (10) of the Act are also relevant in this context.
They provide that the award can be construed to be a civil decree and therefore
be executable as such. This too indicates that the period of limitation for
enforcement of an award does not in all cases have to be restricted to an outer
limit of one year.
20. In the present case, the application of the Appellant Workman in the
Labour Court was plainly not under Section 33-C (1) of the Act. Therefore,
there was no question of the Court entertaining the application under that
provision. There was no occasion for the Labour Court to extend the period for
filing such application under Section 33-C (1) of the Act. That was exclusively
within the domain of the Appropriate Government. It is therefore futile to
contend that because the Workman himself was confused, he should be held to
have made an application only under Section 33-C (1) and not under Section 33-C
(2) of the Act.
21. The application filed by the Workman made it clear that he was not
waiving his right to have the application considered under the provision under
which it was maintainable i.e. Section 33-C (2) of the Act. His contention was
that if the Labour Court was of the view that his application was under Section
33-C (1) of the Act and was, therefore, time barred, then it should consider
favourably the explanation offered by him in his application for the delay and
condone it.
22. The fact of the matter is that the application filed by the Appellant
was maintainable before the Labour Court only under Section 33-C (2) of the Act
and ought to have been considered only under that provision. The Court finds no
warrant for the restrictive interpretation that since the award itself is clear
as to the amount payable to the Workman, he was precluded from approaching the
Labour Court under Section 33-C (2) of the Act. In the considered view of the
Court the legislative intent appears to be otherwise. The additional avenue
available to the Workman to approach the Labour Court for enforcement of the
award, without any restriction as to limitation, was certainly available to him
in the present case.
23. Even if some reasonable period of limitation is to be read in to the
provision, since the provision itself is silent on that score, then it could be
taken to be a period of three years after the conclusion of the proceedings in
the Labour Court. It is not in dispute that the Appellant Workman filed the
application under Section 33-C of the Act in the Labour Court on 7th November
2013 within three years from 11th May, 2012 and therefore even by that
yardstick, it could not be said that his application was barred by laches or
delay.
24. Therefore the Court is unable to agree with the view taken by the
Labour Court, which has been affirmed by the learned Single Judge in the
impugned judgment, that the Appellant Workman‟s application before it under
Section 33-C (2) of the Act was time barred.
25. Consequently, this Court sets aside the impugned judgment of the
learned Single Judge as well as that of the Labour Court and restores the
application of the Workman to the file of the Labour Court for further
proceedings in accordance with law. The application will be listed before the
Labour Court on 1st December, 2018. The Labour Court will proceed to dispose of
the claim on merits not later than three months thereafter in accordance with
law. Needless to state that the Labour Court will not entertain any further
plea of the Respondent/management as to the maintainability of the application
before it.
26. The appeal is allowed in the above terms with costs of Rs.10,000/-
which shall be paid by the Respondent to the Appellant within four weeks.
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