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VIJAYA BANK Vs. SHYAMAL KUMAR LODH

VIJAYA BANK Vs. SHYAMAL KUMAR LODH

                                              REPORTABLE

            IN THE SUPREME COURT OF INDIA

             CIVIL APPELLATE JURISDICTON

        CIVIL APPEAL NOs. 4211 & 4212 OF 2007

 

VIJAYA BANK                               ...APPELLANT

                          VERSUS

SHYAMAL KUMAR LODH                        ...RESPONDENT

 

                      JUDGMENT

 

C.K. PRASAD, J.

1.   These appeals, by grant of leave arise out of a common

judgment of the Division Bench of the Gauhati High Court

dated 10th January, 2007 in Writ appeal No.381 of 2001 and

Writ Appeal No.11 of 2002, whereby it had set aside the order

of the learned Single Judge dated 22nd August, 2001 and 24th

August, 2001 passed in Civil Rule No.3735 of 1995 and Civil

Rule No.2771 of 1997 respectively.

2.   Facts lie in a narrow compass :-
                                       2


       Shyamal Kumar Lodh-respondent herein is an employee

of the appellant-Vijaya Bank. It is a Nationalised Bank. The

employee filed application before the Labour Court, Dibrugarh

constituted by the State Government under Section 7 of the

Industrial Disputes Act, 1947 for an award computing his

suspension/subsistence allowance under Section 33C(2) of the

Act.

3.     It is not in dispute that the appropriate Government in

relation to an employee is the Central Government and the

employee had filed the application before the Labour Court

constituted by the State Government. It is further not in

dispute that the Labour Court before whom the employee had

filed the application has not been specified by the Central

Government.        On the application so filed the Labour Court

issued    notice    to    the    appellant-employer.       The       appellant

appeared    before       the    Labour      Court   and    questioned      its

jurisdiction to adjudicate the dispute on the ground that the

said   Court   having          not   been    specified    by   the    Central

Government under Section 33C(2) of the Industrial Disputes

Act, 1947 it had no jurisdiction to entertain the application.
                                 3


4.   The Labour Court by its order dated 19th August, 1995

over-ruled that objection and held that its jurisdiction to

adjudicate the dispute is not ousted. Employer aggrieved by

the aforesaid order dated 19th August, 1995 preferred writ

application which was registered as Civil Rule No. 3735 of

1995. A learned Single Judge of the Gauhati High Court by its

judgment dated 22nd August, 1995 passed in Civil Rule

No.3735 of 1995 upheld its contention and while doing so

observed as follows :

     "As the Labour Court at Dibrugarh was not specified
     by the appropriate Government they have no
     jurisdiction to issue notice to the Petitioner in both the
     cases."


5.   During the pendency of the proceeding before the Labour

Court, the employee filed application seeking enhancement of

the subsistence allowance and the Labour Court by order

dated 17th Ocober,1996 directed the employer to deposit

recurring subsistence allowance in Court. Employee had also

preferred writ petition against the aforementioned order dated

17thOctober, 1996 which was registered as Civil Rule No. 2771

of 1996.Following its earlier judgment dated 22nd August 1995
                                4


passed in Civil Rule No. 3735 of 1995, the learned Single

Judge by its order dated 24th August, 2001 allowed the writ

petition and quashed the aforesaid order dated 17.10.1996.


6.   Employee, aggrieved by the aforesaid orders of the Single

Judge, preferred separate appeals, which were registered as

Writ Appeal No. 381 of 2001 and Writ Appeal No. 11 of 2002.

Both the appeals were heard together and a Division Bench of

the High Court by its common judgment dated 10th January,

2007 allowed the appeals and set aside both the orders of the

Single Judge.   While    doing so it concurred with the Single

Judge that as the Labour Court at Dibrugarh has not been

specified by the Central Government, it had no jurisdiction to

entertain the petition preferred by the employee. However, on

its finding that claim of subsistence allowance falls within

Section 10A(2) of the Industrial Employment(Standing Order)

Act, and the    Branch of the Bank where the employee was

working, fell within the limits of jurisdiction of Labour Court in

question, it shall have jurisdiction to decide the claim. While

doing so, it observed as follows :
                          5


        "In the instant case, the Labour Court at
Dibrugarh has not been `specified' by the Central
Government for the said purpose and accordingly,
we are unable to agree with the first submission
advanced by the learned counsel for the appellant
that the Labour Court at Dibrugarh would have
jurisdiction to entertain the application filed by the
Appellant only on the basis of the provisions under
the Act.

      However, the provisions of the Standing Orders
Act appear to indicate that a Labour Court
constituted under the 1947 Act, whether by the State
Government or Central Government, would have
jurisdiction to entertain a claim of subsistence
allowance payable to a workman on an application
made to such Labour Court by the concerned
workman. The provisions of Section 10A(2) of the
Standing Orders Act is a special provision
incorporated only for adjudicating on claim relating
to payment of subsistence allowance.

      Having regard to the special provision under
Section 10A(2) of the Standing Orders Act, we feel
that the Labour Court of Dibrugarh, although
constituted by the State Government, would have
jurisdiction to entertain a claim for subsistence
allowance even in respect of employees under a
nationalized banks. It is not specified in Section
10A(2) of the Standing Orders Act that the Labour
Court constituted under the 1947 Act has to be a
Labour Court constituted by an appropriate
Government.     It is also not stipulated that the
appropriate Government has to `specify' such a
Labour Court for entertaining on application under
Section 10A(2) of the Standing Orders Act. The only
requirement for assumption of jurisdiction by a
Labour Court under Section 10A(2) of the Standing
Orders Act is that the Labour Court has to be one,
which has been constituted under the 1947 Act and
                               6


     the concerned establishment must be functioning
     within the local limits of the jurisdiction of such
     Labour Court.

           Having noted the provisions as above, we are of
     the view that the entertainment of the application by
     the Labour Court at Dibrugarh was proper in respect
     of the claim for subsistence allowance put forward
     by the Appellant, we hold that with regard to the
     claim for subsistence allowance put forward by the
     Appellant against the Respondent bank, the Labour
     Court at Dibrugarh has jurisdiction. We accordingly
     declare that the Labour Court at Dibrugarh was
     competent and had jurisdiction to entertain the claim
     for subsistence allowance put forward by the
     Appellant. The impugned decision of the learned
     Single Judge to the contrary is accordingly interfered
     with."

7.   Employer is assailing this common order in these

appeals.

8.   Mr. Jagat Arora, learned counsel appearing on behalf of

the appellant submits that in view of clear and unambiguous

language employed in Section 33C(2) of the Industrial

Disputes Act, the money due to an employee can be

adjudicated by a Labour Court specified by the appropriate

Government.    He points out that the appropriate Government

admittedly is the Central Government and it having not

specified the Labour Court where the employee had brought

the action, it had no jurisdiction to entertain and adjudicate
                             7


the claim of the employee.    In support of the submission

reliance has been placed on a decision of this Court in the

case of Treogi Nath and others vs. Indian Iron and Steel

Co.Ltd. and others (AIR 1968 SC 205) and our attention has

been drawn to the following passage from paragraph 4 of the

judgment which reads as follows:

     "The language of S.33-C(2) itself makes it clear that
     the appropriate Government has to specify the
     Labour Court which is to discharge the functions
     under this sub-section. The use of the expression
     "specified in this behalf" is significant. The words
     "in this behalf" must be given their full import and
     effect. They clearly indicate that there must be a
     specification by the appropriate Government that a
     particular Court is to discharge the function under
     S.33-C(2) and, thereupon, it is that court alone
     which will have jurisdiction to proceed under that
     provision. The mere fact that a Labour Court has
     been constituted under S.7(1) of the Act for the
     purpose of adjudication of industrial disputes as
     well as for performing other functions that may be
     assigned to it under the Act does not mean that that
     Court is automatically specified as the Court for the
     purpose of exercising jurisdiction under S.33-C(2) of
     the Act. S.33-C(2) confers jurisdiction only on those
     Labour Courts which are specified in this behalf,
     i.e., such Labour Courts which are specifically
     designated by the State Government for the purpose
     of computing the money value of the benefit claimed
     by a workman."
9.   Mr. A.K. Panda, learned Senior Counsel, however,

appearing on behalf of the employee-respondent submits that
                               8


in view of the explanation appended to Section 33C of the

Industrial Disputes Act, Labour Court includes any Court

constituted under any law relating to investigation and

settlement of industrial disputes in force in any State and the

Labour Court before which employee laid his claim has been

constituted for investigation and settlement of industrial

disputes, it will have jurisdiction to entertain and adjudicate

the money claim of the employee.

10.   Before we advert to the rival submissions it is expedient

to go into the legislative history of the enactment in question.

The Industrial Disputes Act, 1947 as originally enacted did not

provide for any remedy to individual employee to enforce his

existing rights and only way to enforce the existing rights was

to raise an industrial dispute. The legislature inserted Section

20 in the Industrial Disputes (Appellate Tribunal) Act, 1950

(since repealed) which provided for the recovery of the money

due from the employer under an award or decision. Further,

by the Industrial Disputes (Amendment) Act, 1953 the

legislature inserted Chapter 5A to the Industrial Disputes Act,

1947, and for the recovery of money due to an employee from
                                9


his employer Section 25-I was enacted. The aforesaid insertion

confined to the dues under Chapter 5A of the Act only but did

not apply to moneys or benefits due under any award,

settlement or any other provision of the Act. Taking note of the

aforesaid   lacunae   the   legislature   passed   the   Industrial

Disputes (Amendment and Miscellaneous Provisions) Act,

1956.     This Act repealed the Industrial Disputes (Appellate

Tribunal) Act, 1950 as also Section 25-I in Chapter 5A of the

Industrial Disputes Act, 1947 and inserted Section 33C in the

later Act. Section 33C as inserted by Amending Act, 1956

made provision for recovery of money due to an employee from

his employer not only under the provision of Chapter 5A but

also under settlement and awards. However, it did not

prescribe any period of limitation and further only the

workman entitled to a money or benefit himself could make an

application. With a view to obviate this lacuna Section 33C of

the Industrial Disputes Act, 1947 was recast by Section 23 of

the     Industrial Disputes (Amendment) Act, 1964(Act 36 of

1964). Section 33C of the Industrial Disputes Act, 1947 as

stood before the amendment by Act 36 of 1964 read as follows:
                                10


      "Section 33C. Recovery of Money Due from an
      Employer - (1) Whey any money is due to a
      workman from an employer under a settlement or
      an award or, under the provisions of chapter 5A, 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 purpose 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."

11.   Section 33C of the Industrial Disputes Act, as amended

by Section 23 of the Amendment Act 36 of 1964 made

substantial changes in law with which we are not concerned in
                               11


the present appeals, except explanation inserted in Section

33C, the effect whereof shall be considered in this judgment.

Section 33C(2) and (5) of Industrial Disputes Act, as it stands

today read as follows :

     "33C. Recovery of money due from an employer -

     (1)   xxx       xxx        xxx       xxx

     (2) Where any workman is entitled to receive from the
     employer any money or any benefit which is capable
     of being computed in terms of money and if the
     question arises as to the amount of money due or as
     to the amount at which such benefit should be
     computed, then the question may, subject to any
     rules that may be made under this Act, be decided
     by such Labour Court as may be specified in this
     behalf by the appropriate Government.

     (3)   xxx       xxx        xxx       xxx

     (4)   xxx       xxx        xxx       xxx

     (5) Where workmen employed under the same
     employer are entitled to receive from him any money
     or any benefit capable of being computed in terms of
     money, then subject to such rules as may be made in
     this behalf, a single application for the recovery of
     the amount due may be made on behalf of or in
     respect of any number of such workmen.

     Explanation.--In this section "Labour Court" includes
     any court constituted under any law relating to
     investigation and settlement of industrial disputes in
     force in any State."
                                  12


12.   From a plain reading of Section 33C(2) it is evident that

money due to a workman has to be decided by such Labour

Court "as may be specified in this behalf by the appropriate

Government." Section 7 of the Industrial Disputes Act, 1947

inter alia confers power to the appropriate Government for

constitution of one or more Labour courts for the adjudication

of industrial disputes.     It also prescribes             qualification for

appointment      as   Presiding    Officer       of    a    Labour      Court.

Explanation appended to Section 33C of the Act provides to

include any Court constituted under any law relating to

investigation and settlement of industrial disputes               in     force

in any State as Labour Court. The underlying object behind

inserting   explanation    seems       to   be    varying      qualification

prescribed for    appointment of Presiding Officers of Labour

Court by different State enactments.             The       Parliament    took

note of the fact while inserting        explanation          that there are

different   kinds of      Labour        Courts         constituted under

Industrial Disputes Act and State Acts                     and a question

may arise whether a Labour Court constituted under Acts,
                              13


Central or State could entertain a claim made under Section

33C(2) of the Act.

13.   An explanation is appended ordinarily to a section to

explain the meaning of words contained in that section. In

view of the explanation aforesaid Labour Court shall include

any Court constituted under any law relating to investigation

and settlement of industrial disputes in force in any State.

Money due to an employee under Section 33C(2) is to be

decided by "Labour Court as may be specified in this behalf by

the appropriate Government".       Therefore, the expression

"Labour Court" in Section 33C(2) has to be given an extended

meaning so as to include Court constituted under any law

relating to investigation and settlement of industrial disputes

in force in any State. It widens the choice of appropriate

Government and it can specify not only the Labour Courts

constituted under Section 7 of the Industrial Disputes Act,

1947 but such other Courts constituted under any other law

relating to investigation and settlement of industrial disputes

in force in any State.
                               14


14.   But this does not end the controversy.     The power to

adjudicate money claim is to the Labour Court "as may be

specified in this behalf by the appropriate Government". Every

word used by the Legislature carries meaning and therefore

effort has to be made to give meaning to each and every word

used by it. A construction brushing aside words in a Statute

is not a sound principle of construction. The Court avoids a

construction, if reasonably permissible on the language, which

renders an expression or part of the Statute devoid of any

meaning or application. Legislature never waste its words or

says anything in vain and a construction rejecting the words

of a Statute is not     resorted to, excepting for compelling

reasons.    There does not exist any reason, much less

compelling reason to adopt a construction, which renders the

words "as may be specified in this behalf" used in Section

33C(2) of the Act as redundant. These words have to be given

full meaning. These words in no uncertain terms indicate that

there has to be specification by the appropriate Government

that a particular court shall have jurisdiction to decide money

claim under Section 33C(2) of the Act and it is that court alone
                               15


which shall have the jurisdiction.    Appropriate Government

can specify the court or courts by general or special order in

its discretion. In the present case, there is nothing on record

to show that the Labour Court at Dibrugarh has been specified

by the appropriate Government, i.e., Central Government for

adjudication of the disputes under Section 33C(2) of the

Industrial Disputes Act.    This question in our opinion has

squarely been answered by this Court in the case of Treogi

Nath (Supra).    True it is that rendering this decision, this

Court did not consider the explanation appended to Section

33C of the Act, as the lis pertained to period earlier to

amendment but in view of what we have said above, excepting

the widening of choice pertaining to Courts, explanation does

not   dispense with the requirement of specification of court by

appropriate Government.

15.   Having said so the next question which falls for

determination is as to whether Labour Court at Dibrugarh

could have entertained the application under Section 10-A of

Industrial Employment (Standing Orders) Act, 1946. Section

10A of the Act reads as follows:
                         16


"10-A. Payment of subsistence allowance.--
(1) Where any workman is suspended by the
employer pending investigation or inquiry into
complaints or charges of misconduct against him,
the employer shall pay to such workman
subsistence allowance-

     (a) at the rate of fifty per cent of the wages
which workman was entitled to immediately
preceding the date of such suspension, for the first
ninety days of suspension; and

     (b) at the rate of seventy-five per cent of such
wages for the remaining period of suspension if the
delay in the completion of disciplinary proceedings
against such workman is not directly attributable to
the conduct of such workman.

      (2) If any dispute arises regarding the
subsistence allowance payable to a workman under
sub-section (1), the workman or the employer
concerned may refer the dispute to the Labour
Court, constituted under the Industrial Disputes
Act, 1947 (14 of 1947), within the local limits of
whose jurisdiction the industrial establishment
wherein such workman is employed is situate and
the Labour Court to which the dispute is so referred
shall, after giving the parties an opportunity of
being heard, decide the dispute and such decision
shall be final and binding on the parties.

     (3) Notwithstanding anything contained in the
foregoing provisions of this section, where
provisions relating to payment of subsistence
allowance under any other law for the time being in
force in any State are more beneficial than the
provisions of this section, the provisions of such
other law shall be applicable to the payment of
subsistence allowance in that State."
                                 17

 

16.   From a plain reading of the Section 10A(2) of the

aforesaid Act it is evident that the Labour Court constituted

under the Industrial Disputes Act, 1947 within the local limits

of whose jurisdiction the establishment is situated, has

jurisdiction to decide any dispute regarding subsistence

allowance. Here in the present case undisputedly dispute

pertains to subsistence allowance and the Labour Court where

the workman had brought the action has been constituted

under Section 7 of the Industrial Disputes Act, 1947 and

further the appellant bank is situated within the local limits of

its jurisdiction. The workman had, though, chosen to file

application under Section 33C(2) of the Industrial Disputes

Act but that in our opinion shall not denude jurisdiction to

the Labour Court, if it otherwise possesses jurisdiction.

Incorrect label of the application and mentioning wrong

provision neither confers jurisdiction nor denudes the Court of

its jurisdiction. Relief sought for, if falls within the jurisdiction

of the Court, it can not be thrown out on the ground of its

erroneous label or wrong mentioning of provision. In the

present case the Labour Court, Dibrugarh satisfies all the
                              18


requirements to decide the dispute raised by the employee

before it.

17.   As the matter is pending before Labour Court since long,

it shall make endeavour to finally decide the dispute within 6

months from today. Appellant as also respondent are directed

to appear before the Labour Court, within four weeks from

today.

18.   In the result, both the appeals are dismissed with cost,

quantified at Rs.25,000/- to be paid by the appellant to the

respondent.

 


                                    ........................................J.
                                   ( G.S. SINGHVI )

 


                                    ........................................J.
                                   ( C.K. PRASAD )
New Delhi,
July 6, 2010.

 

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Industrial Disputes Act, 1947: s.33C(2) - Subsistence allowance - Application for suspension/subsistence allowance filed under s.33C(2) before the Labour Court, Dibrugarh constituted under s.7 of the Act - Employer situated within the local limits of its