D.K. Seth, J. - (1.) The petitioners had applied for computation of their claim under Sec. 33 -C(2) of the Industrial Disputes Act claiming Intermediate Selection Grade scale of pay on the basis of notification No. 10303 -F dated 19th February, 1974. By an order dated 18th February, 1992 passed by the Presiding Officer, 1st Labour Court, West Bengal the said application was allowed. It is contended on behalf of the petitioners that despite the said order the respondents are not making payment in terms of the said order dated 18th of February, 1992. Therefore, by means of this writ petition the petitioners are claiming that mandamus be issued commanding the respondents to pay the benefits payable to them in terms of the said order. The learned counsel for the petitioner contends that in view of the award dated 18th February, 1992 the respondents are bound to pay the monetary benefit as computed in the said order. Since the petitioners are legally entitled to it under the award and the respondents being the State within the meaning of Article 12 of the Constitution of India, writ jurisdiction should be exercised by this Court to secure such payment. The objection raised by the respondents cannot be sustained in view of the fact that this court cannot go behind the award since the same, has reached finality. It is no more open to the respondents to contended that the award is a nullity and that the respondents are not bound by it. He has also contended that some of the workmen who were parties to the said proceedings under Sec. 33 -C(2) have been given the benefit in terms of the said award, though however, under orders of Court. Therefore, they cannot deny same benefit to the other workmen entitled thereto. After having accepted the award it is no more open to the respondents to challenge the same. Their objection is hit by the principle of estoppel, acquience and waiver as well as constructive res judicata. He has also cited a few decisions in support of his contention. He has relied on Newa Singh & Ors. vs. Siromani Gurdwara Prabandhak Committee, : JT 1998(8) SC 503: 1999(2) SC 60; State of Rqjasthan & Ors. vs. Dr. Lakshmi & Ors., : 1996(6) SCC 445 and V.S. Charati vs. Hussain Nhanu Jamadar,, 1991(1) SCC 273.
(2.) The learned counsel for the respondents on the other hand has contended that the writ jurisdiction cannot be invoked for the purpose of execution of an award passed by the Industrial Tribunal/Labour Court, since there are adequate provisions provided in the Act and the rules for execution of an award. The second contention that was raised is that the Labour Court had exceeded its jurisdiction in passing the award, inasmuch as the Labour Court in exercise of jurisdiction under Sec. 33 -C(2) is not empowered to determine any entitlement it can only compute monetary benefit flowing from an entitlement. In the present case the entitlement of the individual workmen was dependent on the circular dated 19th November, 1974 which prescribes that 15 per cent of the total strength of the cadre would be the maximum number of posts for which intermediate selection grade scale would be available, provided such candidate completes 10 years of service in the grade next below. In the present case the benefit has been computed on the basis of the 100 percent candidates of the grade next below as entitled to intermediate selection grade scale of pay. Thus it in fact determined the entitlement of the persons who are ineligible to get the said benefit. Thus, the Labour Court had exceeded its jurisdiction. According to him the 15 percent of the candidates of the cadre who had completed 10 years of continuous service in the grade next below only were entitled to the selection grade scale of pay and the rest are not. But without any finding that each of the workmen had completed 10 years service in the grade next below and are within 15 per cent of the cadre, there cannot be any question of computation. Though incidentally Labour Court can determine the question, which cannot be disputed, that the particular number of workmen came within the 15 per cent of the cadre having completed 10 years service in the grade next below which is an incidental finding but it cannot, without any such finding, decide that each of the workmen being 100 percent of the cadre are entitled to the benefit. Therefore, the finding is a nullity. An award which is a nullity is inexecutable . In support he has relied on Municipal Corporation of Delhi vs. Ganesh Rqjak, : 1995(1) SCC 235. He further contended that the acceptance of the case of one of the workmen by reason of orders passed by this court would non disentitle the respondent to raise the question of validity of the award. An award which is a nullity is always a nullity and is nonest in the eye of law. Therefore, compliance of order of this court will not amount to an (sic) if an award which is otherwise nonest. The question of nullity can be set up at any time whenever, it is sought to be enforced. An award which is a nullity cannot be validated even by consent of parties. To support his contention he relied on Kiran Singh vs. Chaman Paswan : AIR 1954 SC 340 and official Trustee vs. Sachindranath Chatierjee, : AIR 1969 SC 823; Kannan vs. S.K. Nayar, : 1991(1) SCC 544. He then contends that the court cannot direct Government to act contrary to law. In the present case the Government would be acting contrary to law by granting selection grade scale of pay to persons who are not eligible or otherwise not entitled in view of the conditions contained in the circular dated 19th of November. 1974. He cited Life Insurance Corporation of India us. Asha Ramchandra Ambekar, : 1994(2) SCC 718, to support his contention.
(3.) In reply Mr. Kalyan Banerjee, learned counsel for the petitioner contended that the validity of the award cannot be challenged by the Government in the writ petition filed by the petitioner. The point of nullity having not been taken in the affidavit in opposition the same can no more be raised. Unless the award is declared a nullity by a competent Court the same cannot be challenged in these proceedings. Even on merits he contends that the Labour Court has not determined the entitlement but has only computed the entitlement. The notification dated 19th February, 1974 is very much applicable. Under the said notification each of the petitioners were eligible and entitled to selection grade scale of pay since they have fulfilled the conditions laid down therein as they came within the 15 percent of the cadre having completed 10 years of service in the grade next below. Therefore, this petition should be allowed and the relief sought for be granted.;