RAFIQ, J. - (1.) THE petitioners have filed this writ petition with the prayer that the order dated 29. 7. 1992 passed by the Central Labour Court, Jaipur be quashed and set aside.
(2.) THE facts necessary for deciding the present writ petition are that the petitioners-Bank of Baroda allowed the advance credit facility to M/s. Shydari Steel Private Limited, Bharatpur. When the said firm did not return the amount, a civil suit was filed by the Bank in the Court of District Judge, Bharatpur for recovery of its dues. THE asserts of M/s. Shydari Steel Private Limited were attached and lock were put on its landed properties and buildings. In order to ensure safety and security of the property of the firm, the petitioners engaged respondent No. 2 Rama who was already in another employment in village Jagina. According to the petitioners, he promised to keep watch over locks of the factory while coming and going for his job and sometimes used to stay in the evening for an hour or two. A sum of Rs. 10/- per day was settled as his remuneration as per his own demand. No relationship of master and servant was created by such contract. THE respondent No. 2 was given the job of ensure the compliance of the Court's direction. Payment to respondent No. 2 was not to be disbursed from the budgetary head of the salary of bank but the said amount was to be charged from the account of M/s. Shydari Steel Pvt. Ltd. In fact respondent No. 2 Rama was engaged on their behalf to ensure safety of the locks and was not shown as Watchman/chowkidar on the rolls of the Bank. Respondent No. 2 Rama filed an application under Section 33- C (2) of the Industrial Disputes Act, 1947 (for short, "the Act of 1947") for recovery of his unpaid wages in sum of Rs. 7,68,800/ -. He demanded a sum of Rs. 92,000/- on the principle of `equal pay for equal work', a sum of Rs. 5,83,740/- as overtime wages, a sum of Rs. 77,832/- in lieu of national and festival holidays and a sum of Rs. 15,228/- as payment of weekly off. When notice of the said application was issued on the petitioner Bank, it filed reply thereto. In the reply, it was submitted that the learned Labour Court had no jurisdiction to entertain such a disputed claim particularly when relationship of master and servant between the petitioners Bank and the respondent No. 2 was under serious dispute. The Bank denied that the respondent No. 2 was ever instructed to discharge the duties round the clock i. e. for 24 hours. It also denied that respondent No. 2 did the job on any festival or national holiday or for that matter, any weekly off day was being given to him. It was also averred that respondent No. 2 was already in employment in some neighbouring village. He was being paid a sum of Rs. 300/- as a lump sum amount @ Rs. 10/- per day to check the locks while going and coming back to the said village and if ever found otherwise, report to the Bank. There was no contract of employment ever entered between the parties nor the work of respondent No. 2 was supervised by the Bank authorities. In fact, the Bank had no control and supervision over the respondent No. 1. The bank authorities never required him to mark attendance nor did the respondent No. 2 submit any leave application to them as he was not expected to do so. The bank could not also take any disciplinary action against him because no relationship of master and servant was existing between them. The bank also submitted an application before the learned Lower Court requesting that before proceeding on the merits of the case, all these issues be decided as preliminary objections. Respondent No. 2 submitted an application on 9th December 1991 to the learned Labour Court, Jaipur on the premises that since he was resident of Bharatpur, his case should be taken up at Bharatpur. Accordingly, the learned Labour Court posted the case to the Court camp at Bharatpur on 21. 12. 1991. The Presiding Officer however did not go to Bharatpur on 21. 12. 1991 and in these circumstances the case was adjourned to 30th December, 1919. No information was given to the petitioners-bank about the newly fixed ate. In the circumstances when the case was taken up on 30th December, 1991, the matter went unattended from the side of the petitioners-bank and therefore, ordered to proceed ex- parte against them. The case was again taken up at Bharatpur on 4. 1. 1991. This time again to information was given to the petitioner in this regard although the respondent No. 2 sought adjournment and the matter was fixed on 17. 3. 1992 on which date also the case was again adjourned for 5. 5. 1992 on the request of the respondent No. 2. On 5. 5. 1992 the matter was again adjourned on the request of the respondent No. 2 and finally the case was heard and decided ex-parte on 29. 7. 1992 whereby the claim of the respondent No. 2 was allowed and a sum of Rs. 5,40,000/- were computed for being paid by the petitioners to him. It is this order which is impugned in the present writ petition. The respondent No. 2 has contested the writ petition and filed reply. In the reply, it has been stated that the respondent No. 2 was employed by the petitioners-bank and he has still working with it in that capacity. it was denied that respondent No. 2 was employed elsewhere in village Jagina. It has been reiterated that he worked for 24 hours at the factory where the petitioners-bank employed him. He was therefore, entitled to be paid minimum wages payable to unskilled, Semi Skilled and Skilled workman. In the proceedings of 9th December, 1992 the next date was fixed on 21. 12. 1991 at Camp Court, Bharatpur in presence of both the parties without there being any objection from the side of the petitioners-Bank. The Presiding officer however was on leave therefore the Camp Court could not held at Bharatpur on 21. 11. 1991. The matter was again listed at Jaipur on 30. 12. 1991 on which date also the petitioners-Bank or its representative were not present and, therefore, the matter was ordered to proceed ex-parte. Again 4. 1. 1992 was fixed as next date at Camp Court, Bharatpur. Finally the matter was heard on 29th July, 1992. It has been submitted that the petitioners-bank if it wanted, could move an application for setting aside ex-parte award on any date during the period of seven months from the date 30. 12. 1991 to 29. 7. 1992. Having not done so, they cannot now be permitted to take such plea at this belated stage. It has therefore been submitted that the learned Labour Court has not committed any error in passing the impugned order dated 29. 7. 1992. Since the respondent No. 2 has worked for 24 hours at the factory premises, he was entitled to be paid minimum wages accordingly for the period from October, 1977 to April, 1987 as unskilled/skilled workman. The respondent No. 2 has placed on record certain documents such as letters dated 3. 9. 1984, 6. 11. 1980, 7. 7. 1979, 19. 11. 1988 and 30. 10. 1988 which he has addressed to local police describing himself as Chowkidar of the petitioner-bank. It has been submitted that the petitioner-bank has not taken any plea before the Labour Court nor has it cross- examined the respondent No. 2 on his affidavit. In these circumstances, the evidence given by him in his affidavit would stand proved because his rights in these circumstances cannot be said to be disputed. It has been submitted that petitioner-bank has been required to pay only minimum wages payable to daily, casual, temporary workman employed in the bank and not the pay scale for class IV employees of the bank and therefore, the amount as awarded by Labour Court was reasonable requiring no interference by this Court. I have heard Mr. R. K. Kala, learned counsel for the petitioners and Mr. Suresh Kashyap, learned counsel for the respondent No. 2.
(3.) MR. R. K. Kala, learned counsel for the petitioners has argued that the Labour Court within scope of Section 33-C (3) of the Act of 1947 could grant computed in terms of money. Proceedings under Section 33-C (3) are skin to execution proceedings. There should be a pre-existing claim to the benefit which must not require any adjudication thereupon. The learned Labour Court in computing such benefits has to take into consideration terms and conditions of employment. He has argued that the Labour Court under the scope of Section 33-C (2) could not have awarded the amount to the respondent No. 2 on the principle of 'equal pay for equal work'. In order to apply principle of 'equal pay for equal work', it was necessary to examine nature of work, condition of service job evaluation, performance of a work to equate one employee with another with whom he was claiming parity. Without examining all these aspects, the learned Labour Court has allowed a sum of Rs. 80,500/- for the period from October, 1977 to April, 1987 as if the respondent No. 2 was appointed as Security Guard. It has been argued that functions of Security Guard are entirely different from those of the respondent No. 2. Security Guards are required to safe-guard the treasury of the Bank whereas the work of respondent No. 2 was only to seek lock and keys of M/s. Shydari Steels Pvt. Ltd. , Bharatpur and that too while coming and going to his regular place of work at village Jagina. MR. R. K. Kala has further assailed the validity of the order passed by the Labour Court on the ground that when the respondent No. 2 did not do any overtime, the Labour Court erred in law in awarding the alleged wages to him at double the rate calculation of which was made and a sum of Rs. 4,60,000/- allowed to him on this head alone. Learned Labour Court did not indicate as to for how many days the amount has been calculated and whether it was humanly possible for any person to do the job for 24 hours a day. He has argued that even in th Factories Act, a fixed period for allowing overtime has been prescribed. Beyond that, no employee can be given any additional work. Payment of an enormous amount of Rs. 4,60,000/- as overtime allowance was therefore illegal. Learned Labour Court did not even take note of the fact that no person can work for round the clock. He has to devote some time to his personal needs like he sleeps in the night and he goes for natural calls etc. , it has been argued that learned Labour Court could not entertain such disputed questions of facts within the limited scope of Section 33-C (3) without ascertaining the nature of employment, relationship between master and servant and duty hours etc. Learned Labour Court in spite of preliminary objections raised by filing an application did not decide those questions first but proceeded to allow the application. In order to buttress his arguments, Mr. R. K. Kala relied on series of judicial pronouncements both of Hon'ble Supreme Court and various High Courts on the scope of jurisdiction u/s. 33-C (2) of the Act and relying on them argued that kind of controversy involved in this case could not be decided in the scope of Section 33-C (2) and it could be decided only if a reference of such dispute was made to the Labour Court. Mr. R. K. Kala has also argued that in the manner in which the first date has been fixed at Jaipur and thereafter again at Bharatpur and lastly at Jaipur and the fact that on many of these dates the respondent No. 2 had been taking adjournments, the bank was mislead resultantly, the matter went unattended from its side which ultimately culminated into passing of the impugned order. The sequence with which the dates and sittings of the Court were changed and the very fact that on the date fixed at Bharatpur, the Presiding Officer himself did not attend the proceedings, thus leaving no clue on the question which ultimately led the petitioners loosing track of all subsequent dates. The petitioners in these circumstances were prejudiced and could not property defend their case. He has referred to various dates when inspite of change of place, no intimation was given to the petitioners which ultimately lead to passing of the ex-parte award. On the other hand, Mr. Suresh Kashyap, learned counsel for the respondent No. 2 has supported the order passed by the learned Labour Court and reiterated his arguments made in the reply to the writ petition. He argued that the petitioner was the only Chowkidar who worked at the factory premises round the clock. His appointment was made by the petitioners and his salary was also paid by them. There existed relationship of master and servant between petitioners and the respondent workman. Having not contested this position before the learned Labour Court, the petitioners cannot be allowed to agitate this issue now. On facts, which were not disputed and could not be disputed, the learned Labour Court was well within its jurisdiction in entertaining and deciding application u/s. 33-C (2) of the Act. He has argued that during the proceedings conducted on 9. 12. 1992, next date of the matter was fixed as 21. 12. 1991 at Camp Court, Bharatpur in presence of the parties. This should attribute knowledge of all subsequent dates to the petitioners and if they failed remain present during the proceedings, they cannot blame either the respondent-workman or the Court. He has submitted that on 21. 12. 1991 when the Presiding Officer was on leave and the matter was again listed at Jaipur on 30. 12. 1991 on which date also no-one appeared from the side of the bank. The Labour Court was therefore perfectly justified in proceeding ex-parte against the petitioners. Thereafter again the matter was posted at Jaipur on 17. 3. 1992. The case was then adjourned to 5. 5. 1992 and finally heard and decided on 29. 7. 1992 and on none of these dates either the petitioners or any of their representative appeared. In these circumstances, the petitioners now cannot complain of any prejudice being caused to them. Mr. Suresh Kashyap cited number of rulings on maintainability of the application u/s. 33-C (2) of the Act and with their help argued that Labour Court was fully justified in entertaining application under the provision in the present matter. ;