TMI Blog1974 (4) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... e River Steam Navigation Co. Ltd. (hereinafter called the Company) which used to operate a river service from West Bengal to Assam through what was formerly East Pakistan. It had employed for its business about 8,000 workmen, including clerical staff. Due to conflict with Pakistan in 1965 the Company came to grief and had to suspend a major part of its operations. Retrenchment was undertaken on a large scale because the Company had been incurring heavy losses for several years inspite of the Government of India acquiring a controlling interest in it to prevent its voluntary liquidation. In the course of conciliation proceedings the Management of the Company arrived at a settlement with the respondent Union on August 25, 1965 whereby it was agreed, inter alia, that the settlement was valid for 5 years till the end of 1969, that the retiring age of the workmen would be 57 years and that there would be no retrenchment for 5 years. The Company's fortunes did not improve, and, therefore, in 1966 owing to its indebtedness to various creditors, including the Union of India, the State Bank of India, the Chartered Bank etc. to the tune of several crores of rupees, a winding up petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f enforcement, should all be left open for the rival contentions to be pursued in the proper forum and on proper materials and in the proper jurisdiction. I am of opinion that if any claim be made in the proper jurisdiction it will be a matter for enforcement of that claim in properly constituted proceedings. It is needless to say that unless there is adjudication there cannot be any enforcement of the claim and such adjudication has to be made in a proper forum. 5. The scheme, as already pointed out, was sanctioned by Order dated May 3, 1967 and, as envisaged in the scheme itself, the Company on that very day issued a notice of closure. Thereafter the Corporation issued fresh letters of appointment, and out of about 8,000 former employees of the Company, the Corporation employed about 5173. 6. This left a larger body of employees of the former Company unemployed. On September 12, 1968 the Government of West Bengal made two orders of reference purporting to be under Section 33(C)(2) of the Industrial Disputes Act. By the first order of reference it asked the Labour Court to compute the benefits covered by the settlement dated August 25, 1965 between the Union and the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to which the following issues are referred for adjudication. Issues : (1) Whether the undertaking or the business of M/s. Rivers Steam Navigation Company Limited has been transferred to Messrs. Central Inland Water Transport Corporation Limited. If so, whether the settlement dated the 25th August, 1965 is binding on Messrs. Central Inland Water Transport Corporation Limited ? (2) Whether the workmen mentioned in list No. I, bound by the Settlement, dated the 25th August, 1965 are, entitled to continue in employment under Messrs. Central Inland Water Transport Corporation Limited ? If so, what amount of money are they entitled to ? Is that money recoverable from Messrs. Central Inland Water Transport Corporation Limited ? (3) Whether the workmen mentioned in last No. II are entitled to get retrenchment compensation under Section 25F, read with Section 25FF of the Industrial Disputes Act, 1947 ? If so, what amount of money are they entitled to ? (4) Whether the undertaking or the business of Messrs. Rivers Steam Navigation Company Limited has been closed within the meaning and contemplation of Section 25FFF of the Industrial Disputes Act, 1947 ? If so, what amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich issue No. 4 was struck down. But the Corporation went in appeal against the order of the learned Judge in so far as he had held that the Labour Court had jurisdiction to adjudicate, upon issues 1, 2 and 3. The court of appeal by its order dated December 14, 1972 dismissed the appeal. The Corporation asked for a certificate to appeal to this court, but on its dismissal, this Court gave special leave and that is how the present appeal arises. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 33(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). The workman who has been dismissed would no longer be La the employment of the employer. It may be that an industrial tribunal may find on an investigation into the circumstances of the dismissal that the dismissal was unjustified. But when he comes before the Labour Court with his claim for computation of his wages under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as if the workmen are retrenched under Section 25F and is available only against the owners of the undertaking, that is to say, the transferor of the undertaking. The liability of the transferor to pay compensation does not arise only when (i) there has been a change of employers by reason of the transfer and (ii) the 3 Sub-clauses (a), (b) and (c) of the proviso of that section come into play. It is pointed out in South Arcot Electricity Co. v. N.K. Khan (1970)IILLJ44SC that each one of the 3 conditions in Clauses (a), (b) and (c) is to be satisfied before it can be held that the right conferred by the principal clause does not accrue to the workmen. La the present case there is no actual change of employers by reason of the transfer, nor do the 3 sub-clauses apply. Therefore, prima facie, the claim of the workmen, would be for compensation under Section 25FF, directed, not against the Corporation, but against the Company of which they were formerly the employees. As a matter of fact the scheme itself shows that the employees of the Company who were not taken over by the Corporation were to be paid by the Company all money due to them under the law. The scheme further shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees in List I were entitled to continue uninterrupted service, without retrenchment, till at least December 31, 1969 and this stipulation, it was claimed, was binding on the Corporation which became the successor of the Company from the date of the transfer of the undertaking, that is to say, May 3, 1967. The further contention was that the Corporation's refusal to continue the employees in service as the Corporation's employees from the date vas wrongful and hence it must be held, in law, that the employees continued in the service of the transferee Corporation and on that basis the Labour Court could compute the benefit under Section 33(C)(2). 19. The several problems raised by the above contentions involve in effect a major industrial dispute, an investigation into which is quite outside the scope of Section 33(C)(2). Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the Corporation was liable to satisfy the same. The other question which would be- necessary to decide is whether the Corporation was a successor of the defunct Company. As pointed out in Anakapalli Co-operative case, alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o compute the benefit if there was already an adjudication in favour of the workmen as against the Corporation or the said benefit was otherwise provided for as payable by the Corporation. A moment's reflection will show that it would be impossible for the Labour Court to compute any benefit unless the Court, after considering all the matters which an Industrial Tribunal has to consider, ultimately decides upon one or the other of the several alternative reliefs which the Industrial Tribunal alone has a right to determine. By saying that the Labour Court would determine the alternative reliefs as 'incidental' to computation, one cannot conceal the fact that it is actually exercising the function of an Industrial Tribunal. The investigation is not 'incidental' to computation, but the computation itself is consequential upon the main finding as to the nature of relief the workmen are entitled to in an industrial dispute. The situation is the same as when a workman who is discharged wants relief, as shown in the case of the Central Bank of India v. Rajagopalan-already referred to. The discharged workman can obtain relief by way of Section 10 only and not by an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
