UNION OF INDIA Vs. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-GUM-LABOUR COURT 724 NAPIER TOWN JABALPUR

JUDGEMENT

(1.) SHIV Kant Shukla respondent No. 2 in this petition, was employed as a P. L. Fitter in South Eastern Railway. The respondent was convicted for an offence under section 323 of the Indian Penal Code. As a result of his conviction, the respondent was compulsorily retired as a matter of punishment from 24th March 1965. The respondent was re-employed on compassionate grounds as a Khalasi from 1st July 1970. The respondent challenged the order of his compulsory retirement in the High Court in miscellaneous Petition No. 378 of 1974 which was dismissed on 13th november 1975. The High Court refused to go into the merits of the respondent's case and dismissed the petition on the ground of delay. The respondent retired from Railway service on superannuation from 1st July 1976. The respondent made an application on 4th September 1976 to the Labour Court, jabalpur under section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') for award of wages as P. L. Fitter from 1st september 1964 to 1st July 1976 and for getting the retirement benefits on the footing that his compulsory retirement as P. L. Fitter was invalid and void and he all along continued to hold that post. This application was allowed by the Labour Court by order, dated 28th February 1977. By this petition under Article 226 of the Constitution, the Union of India and the Divisional engineer, South Eastern Railway challenge the said order.

(2.) THE argument of the learned counsel for the petitioners that under section 33-C (2) of the Act the Labour Court had no jurisdiction to go into the question of the validity of the order of compulsory retirement and award wages and benefits by holding it to be invalid. The argument of the learned counsel appearing for the respondents, on the other hand, is that the order of compulsory retirement was void a b initio, being in contravention of rule 1719 of the Railway Establishment Code, Volume I, and, therefore, it was open to the Labour Court to ignore that order and treat the respondent entitled to the wages and benefits as P. L. Fitter.

(3.) THE law seems to be well settled that the proceeding under section 33-C (2) of the Act is a proceeding in the nature of an execution proceed-ing wherein the Labour Court calculates the amount of money due to a workman from his employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, it proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. A workman will normally not be entitled to ignore the order dismissing or terminating his employment and to seek relief under section 33-C (2) on the footing that the dismissal or termination was wrongful and that the wages or benefits should be calculated on the basis that he continued in service. In The Central Bank of India Ltd. v. P. S. Rajagopaian, (AIR 1964 S C 743.) the Supreme Court observed: "if an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under section 33-C (2 ). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion 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 pre-existing contract cannot be made under section 33-C (2 ). " The same point was considered by the Supreme Court in central Inland Water Transport Corporation Ltd. v. The Workmen, (AIR 1974 S C1604, at p. 1610. ). The following observations of the Court are pertinent on this point: