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TMI Blog1963 (4) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealt with on the merits. Civil Appeals 823 to 826 of 1962 arise out of applications made by four respondents under s. 33C(2) of the Act. The case for each one of the respondents was that besides attending to his routine duties as clerk, he had been operating the adding machine provided for use in the clearing department of the Branch during the period mentioned in the list annexed to the petition and it was alleged that as such, he was entitled to the payment of ₹ 10/-per 'month as special allowance for operating the adding machine as provided for under paragraph 164(b)(1) of the Sastry Award. On this basis, each one of the respondents made his respective claim for the amount covered by the said allowance payable to him during the period specified in the calculations. 'The appellant disputed the respondent's claims. It urged three preliminary objections against the competence of the applications. According to it, the respondents could claim only non-monetary benefits under the Award that were capable of computation and so, s. 33G(2)was inapplicable to their claim. It was also contended that without a reference made by the Central Government, the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to the Collector who shall proceed to recover the same' in the same manner as an arrear of land revenue. (2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of ,money., the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in sub-section (1). (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. It is common ground that s. 33C(1) provides for a kind of execution proceedings and it contemplates that if money is due to a workman under a settlement or an award, or under the provisions of Chapter VA, the workman is not compelled to take resort to the ordinary course of execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Bank Ltd. V.K.L. Kharbanda (1962 (1) L.L.J.284). The question which arises for our decision is, however, slightly different. It is urged by the appellant that sub-s.. (2)can be invoked by a workman Who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and could not be a matter of dispute between the parties in cases which fall under sub-s. (2). The argument is, if there is a dispute about the workman's right to claim the benefit, that has to be adjudicated upon not under sub-s. (2), but by other appropriate proceedings permissible under the Act, and since in the present appeals, the appellant disputed the respondent's right to 'claim the special allowance, the Labour Court had no jurisdiction to deal with their claim. In other words, the contention is that the opening words of sub-s. (2) postulate the existence of and admitted right vesting in a workman and do not cover cases where the said right is disputed. On the other hand, the respondents contend that sub-s. (2) is broad enough:I to take in all cases where a workman claims some benefit and wants the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award or decision of an industrial tribunal, it may be recovered as arrears of land revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the said money. Section 20(2) then dealt with the cages where any workman was entitled to receive from the, employer any benefit under an award or decision of an industrial tribunal which is capable of being computed in terms of money, and it provided that the amount at which the said benefit could be computed may be determined. subject to the rules framed in that behalf, by that industrial tribunal and the amount so determined may be recovered as provided for in sub-s. (1). In other words, the provisions of s.20 (2) roughly correspond to the provisions of s.33C(2) of the Act. There are, however, two points of distinction. Section 20(2) was confined to the benefits claimable by workmen under an award or decision of an Industrial tribunal; and the application to be made in that behalf had to be filed before the industrial tribunal which made the said award or decision. These two limitations have not been introduced in s. 33C(2). Section 20(3) corresponds to s.33C:(3). It would thus be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Chapter VA which are numbered as s. 25FF and s. 25FFF. This Act came into force on June 6, 1957. The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted s. 33-A in the Act in 1950 and added s. 33-C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to s. 10(1) of the Act, or without having to depend upon their Union to espouse their cause. Therefore, in construing s. 33-C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of s. 33-C cases which would fall under s. 10(1). Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under s, 10(1). These disputes cannot be brought within the purview of s. 33C. Similarly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry computation can arise. It seems to us that the opening clause of subs. (2)does not admit of the construction for which the appellant contends unless we add some words in that clause. The Clause Where any workman is entitled to receive from the employer any benefit does' not mean where such workman is admittedly, or admitted to be, entitled to receive such benefit. The appellant's construction would necessarily introduce the addition of' the words admittedly, or admitted to be in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellants construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on 'the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under s. 33 C (9,) 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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise present difficulty in construction. It is in such cases that s. 3CA can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties resolved and that remedy is now provided by s. 36A. But the scope-of s. 36A .is different from the scope of s. 33C (2), because s. 36A is not concerned with the implemention or execution of the award at all, whereas that is the sole purpose of s. 33C (2). Whereas s. 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, s. 36A deals merely with a question of interpretation of the award where a .dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under s. 36A. Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his` existing individual rights, it is virtually exercising execution powers in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under s. 33G (2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal Or demotion 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 s. 33 C (2). If a settlement has been, duly reached between the employer and his employees and it fails under s. 18 (9.) or C3) of the Act and is governed by s.(19) 2 it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative no claim can be made under s. 33C(2) inconsistent with the said settlement. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sawa tram Ramprasad Mills Co. Ltd., Akola v. Baliram (1962) 65 Bom. L.R. 91). In support of the very broad construction which they seek to place on the provisions of s. 33C (2). In that case, the High Court was dealing with a claim made under Chapter VA of the Act, and there can be. no doubt that such a claim together with .all a question incidental 'to its decision can be properly determined under s. 33C (2). In reaching its conclusion, the High Court has no doubt made certain broad and general observations in regard to the scope of the jurisdiction conferred on the Labour Court under s. 33G (2). Those observations are in the nature of obiter dicta and in so far as they may be inconsistent with our present decision, they should be held to be not justified by the terms of s. 33C (2). In the result, the preliminary point raised by the appellant that the Labour Court had no jurisdiction to entertain the respondents' applications fails and must be rejected. That takes us to the merits of the respondents' claim. We have already seen that the main basis on which the respondents have claimed the special allowance under paragraph 164 (b) (1) of the Sastry Award is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to avoid disputes between banks and their employees as to whether a particular category of employees is entitled to a special allowance under the' Award or not the, Tribunal asked the banks to supply it with statements of different names given to the categories of employees for whom special allowances have been 'provided by the Sastry Award. Accordingly, some of the banks supplied the necessary information. The Tribunal then set out eight of the categories the equivalents of which had been supplied in the statements of the banks. As against the Comptists, Statement No. B-247 which had been supplied by the Imperial Bank of India, showed that the nomenclature adopted by the said Bank in respect of the said category was adding machine operators, Addressographers. Having set out these equivalents,1. the Tribunal took the precaution of adding that the equivalents set out by it were helpful, but did not exhaust the subject, and so, in the absence of data, it had to be left to the banks to pay the appropriate allowances having regard to the duties and responsibilities of a post. That is how the matter ended. In the present proceedings, the respondents seem to base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated by a clerk with half an hour's practice. It only does additions mechanically. Operating a comptometer, however, involves complicated calculations and in order to handle it efficiently, the employee has to take three months training and practising. He added that about two hours' work is put on the adding machine by the several respondents, but it is included in their normal working hours. There has been some discussion at the Bar in the present appeals as to the nature of the work which is done on the comptometer and on the adding machine, but there can be no doubt that compared to the comptometer, the adding machine is a simple mechanism and for operating on it, not much experience or technical training is required; in fact, it may not even require that amount of skill and efficiency which is expected of a typist and it is significant that a claim made by the typists for special allowance was rejected by the Sastry Tribunal. That shows how the respondents' claim for special allowance as Comptists solely on the ground that they can be described as adding machine operators, cannot be sustained. Therefore, -the sole basis on which the respondents' claim has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Comptists as properly understood in the banking industry, then it should proceed to determine the respondents' claim on that basis. We have already referred to the fact that the Labour Appellate Tribunal made it perfectly clear that the particular nomenclature was not decisive and that what mattered in these cases was the nature of the duties and responsibilities of a post. If the nature of the duties and responsibilities of the posts held by the respondents legitimately Justify the conclusion that they are comptists, then the special allowance can be claimed by them. It is in the light of these observations that the Labour Court should proceed to deal with these cases after remand. If the parties want to amend their pleadings, they should move the Labour Court in that behalf within a fortnight after the receipt of the record in that Court. Then the Labour Court should fix an early date for taking evidence and should deal with these matters as expeditiously as possible. The result is, the appeals are allowed, the orders passed by the Labour Court are set aside and the matters sent back to that Court for disposal in accordance with law. There would be no order as to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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