- (1.) 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. 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 1982-83 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.
(2.) 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?" 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. 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.
(3.) 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 submission he also cited following decisions; (i)Ajaib Singh Vs. Sirhind Co-operative marketing -cum- Processing Service Society 1999 (82) FLR 137, (ii) (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) (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. 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. 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.;