SUDHINDRA KUMAR DEB AND ORS. Vs. THE STATE OF ASSAM AND ORS.
LAWS(GAU)-1958-7-5
HIGH COURT OF GAUHATI
Decided on July 10,1958

Sudhindra Kumar Deb And Ors. Appellant
VERSUS
The State Of Assam And Ors. Respondents





Cited Judgements :-

N.N. CHAKRAVARTY, I. A. S. (RETD.) VS. STATE OF ASSAM AND ORS. [LAWS(GAU)-1959-7-3] [REFERRED TO]
MANAGEMENT OF SOCKLATINGA TEA ESTATE VS. N.J. KOREAN AND ANR. [LAWS(GAU)-1968-2-6] [REFERRED TO]


JUDGEMENT

Sarjoo Prosad, C.J. - (1.)THIS is an application for a writ of certiorari and/or mandamus for quashing the order of the Labour Court dated 26 -4 -1958, and for preventing the respondent, the State of Assam from taking any action under its notification dated 10 -4 -1958, whereby it purported to cancel a notification of an earlier date, dated 28 -11 -1957, under Section 33C(2) of the Industrial Disputes Act, 1947 (Act No. XIV of 1947), as amended (hereinafter called the Act).
(2.)IT appears that the petitioner was serving as a head clerk in the Martycherra Tea Estate, which is also a respondent to this application represented by its management. For reasons to which it is not necessary to refer, he was dismissed from service by the Manager of the Tea Estate on 1 -3 -1955. An attempt was made to effect conciliation of the dispute, which followed the dismissal of the petitioner, between the Union to which the petitioner belonged and the Tea Estate in question but it proved ineffective and the Government of Assam by notification dated 25 -7 -1955, referred the matter in dispute for adjudication to the Judge, Industrial Tribunal.
The said reference was made under Section 10(1)(c) of the Act. The Tribunal by an award dated 7 -11 -1956, which was published by the Government in the Assam Gazette on 5 -12 -1956, found that the dismissal was not justified. It was, however, of opinion that it was not in the interest of the Tea Estate to direct the reinstatement of the petitioner, but allowed the alternative relief of compensation to be paid by the management to the petitioner on account of his dismissal. The relevant portion of the said award, which has led to the present application, is as follows:

"If Deb is put back to his old post he will again be in trouble and that will disturb the peace and harmony in that Estate. The presence of Deb in Martycherra Tea Estate as Head Clerk will not at all be conducive to the well being of the Industry. Deb's position as Head Clerk will always be embarrassing to the Company and as well as to Deb. I, therefore, allow the alternative relief of compensation. Sri S.K. Deb, the ex -Head Clerk of Martycherra Tea Estate will be entitled to his back wages from the date of his dismissal till the date of payment with all allowances and other benefits that accrued to him during the period of his forced unemployment.

The Company will calculate the amount and pay to Deb within a month from the date of its publication in the Assam Gazette. He will also be entitled to all the money that stands to his credit. These two issues are also answered in favour of the workman and the case is disposed of."

The petitioner claims that the terms of the award were not implemented by the management of the Tea Estate and he, therefore, moved the State Government for action under Section 33C of the Act, As a result the Government by its notification dated 28 -11 -1957, issued under Sub -section (2) of Section 33C of the Act (as amended by Act XXXVI of 1956), authorised the Labour Court to go into the dispute between the management of the Tea Estate and the petitioner and to determine the amount payable to the workman, if not already paid according to the terms of the Award.

The Labour Court registered a miscellaneous proceeding in respect of this dispute and called upon the parties to submit their statements. The management in a counter affidavit states that it discharged its obligations within the time stated in the Award and although it made efforts to make the payment of the amount due, the petitioner avoided accepting the amount with the result that the management filed a petition on 19 -12 -1956 before the Tribunal who made the Award, seeking permission to deposit the amount payable to the petitioner. The management claimed that as the petitioner bad been employed elsewhere with effect from 1 -7 -1955, the company was liable to pay the petitioner's wages only upto 30th June, 1955.

It is further stated that the Tribunal verbally directed the management to remit the calculated amount to the last known address of the petitioner, which was done by the management under a registered cover, but the cheque covering the amount was returned to the management on 10 -1 -1957 as the addressee could not be traced. Apparently, there is a dispute between the parties as to the amount actually payable under the Award in question, in which it is not necessary for me to enter at this stage. After the case before the Labour Court had proceeded to ascertain stage, there was the notification dated 10 -4 -1958 issued by the Government, which is now in question in this application, cancelling the previous notification. The Labour Court then on 26 -4 -1958 recorded the order, which is also sought to be quashed by the petitioner. The order is as follows :

"Considered letter dated 16 -4 -58 from the Eastern Tea Estates Ltd., and telegram dated 15 -4 -58 from the Union praying for stay of proceedings. Also seen copy of Union's petition to Government.

Since Government cancelled the initial order of authority, I do not see any reason as to why I should keep this matter pending.

In this view, the case is dropped and disposed of accordingly. Inform parties."

The petitioner challenges the authority of the Government cancelling the previous notification after once a reference had been made to the Labour Court and he further submits that the Labour Court should not have acted upon that illegal order of cancellation and proceeded to exercise its jurisdiction to deal with the matter instead of dropping the proceedings as it purports to have done by the said order. The two questions, therefore, which arise for consideration in this case, are whether, after having made a reference under Section 33C(2) of the Act, the Government had jurisdiction to cancel the notification and thereby remove the case from the jurisdiction of the Labour Court. In this connection, it has been further urged that the order of cancellation was made without any opportunity being given to the petitioner to be heard in the matter. If it is found that the impugned notification is without jurisdiction, it would follow that the order of the Labour Court terminating the proceedings on the authority of the said notification would equally be bad and would amount to failure to exercise jurisdiction which the Labour Court possessed in disposing of the matter according to law.

The other question, which has also been argued with great persistence by the learned counsel for the respondent, is that Sub -section 3(2) of Section 33C had no application to the case and therefore, the Government had no jurisdiction to make any such reference to the Labour Court; and when the Government realised the error, they were justified in cancelling the previous notification. These questions, therefore require to be answered.

(3.)IT would be convenient to dispose of the second question first, because if Section 33C(2) itself had no application to the matter in dispute between the parties, then obviously the previous notification making a reference to the Labour Court was without jurisdiction, because then, in any case, the Labour Court will have no jurisdiction to determine the matter. Mr. Choudhury for the respondent Tea Estate has relied upon the terms of Sub -section 3(1) of that section to indicate that this was a matter in which the appropriate Government, if satisfied, alone had authority to issue a certificate to the Collector to recover any amount found due.
He contends that this was merely a matter of calculation of the amount of money payable to the petitioner under the Award, which had been given by the Labour Tribunal. As such, this could be done by the Government. It is better to quote the relevant provisions of Section 33C at this place:

"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 Chapter VA, the workman 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 a certificate for that 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."

If it had been a pure case of calculation of money or wages payable under the award, then the contention of the learned counsel would be well -founded; but the argument apparently proceeds upon a misconception of the directions in the award itself. Under the terms of the award, the petitioner was entitled not only to back wages from the date of the dismissal to the date of payment with all allowances, but he was also held entitled to other benefits that accrued to him during the period of his forced unemployment.

The words "other benefits" clearly take the case out of Sub -section (1) of Section 33C and it is within the purview of Sub -section (2) of that section. These other benefits have to be calculated in terms of money payable to the petitioner and for this purpose, in our opinion, an action under Section 33C(2) of the Act was perfectly justified.

In other words, after the entire amount payable under the Award has been so computed and determined that the amount could be recovered as provided by Sub -section (1) of the section. The decision of the Supreme Court in S.S. Shetty v. Bharat Nidhi Ltd. (A) to which the respondent referred in this context was a case falling under Sub -section (1) of Section 33C and not under Sub -section (2). It follows, therefore, that the notification previously issued by the Government specifying the Labour Court, which had jurisdiction to deal with the matter was not out of order.

Mr. Choudhury has further contended that even the first notification in that case was unnecessary, because in Assam there is only one Labour Court and if that Labour Court could deal with the matter, no specification of the Labour Court was necessary. Of course, Sub -section (2) speaks of Government specifying the Labour Court to deal with the matter; nevertheless, the statute confers jurisdiction on the Labour Court to act under Sub -section (2) of Section 33C and no other Tribunal. It is admitted here that there is only one Labour Court and thus there is substance in the argument that where there is only one Labour Court, apparently that Court alone will have jurisdiction to deal with the matter irrespective of any notification by the Government.

It is only where there are a number of Labour Courts functioning in a State that specification of the particular Labour Court to take up the matter on the authorisation of Government may be necessary to avoid any conflict of jurisdiction between them; but where there is only one Court, no such conflict arises and that Court will have, on the terms of the statute itself, jurisdiction to determine tile dispute between the parties and act under the section aforesaid.

If this argument prevails, as in my opinion it should, then obviously both the Government notifications were uncalled for and the Labour Court had jurisdiction to proceed to dispose of the matter according to law. Consequently, the order passed by the Labour Court dropping the proceedings is clearly misconceived; and, irrespective of the notifications published by the Government, amounts to failure to exercise jurisdiction, which that Court possessed under the law. We have, therefore, no option but to quash the said order of the Labour Court dated 26 -4 -1958 dropping the proceedings.

I have already said that I am inclined to hold this contention of the learned counsel for the respondent as well -founded and on this argument alone the petition for a writ of certiorari against the order in question and for a further direction to the Labour Court to dispose of the. matter according to law, should succeed.



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