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 :-
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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.
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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
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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
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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
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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:
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"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."
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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.
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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
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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:
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"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."
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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
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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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