HARI PRAKASH SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioners had claimed computation of pension payable to them under section 33C(2) of the Industrial Disputes Act after their retirement, having failed to obtain the relief by resorting to section 33C(1) of the said Act. The Labour Court had rejected the claim on the ground that the basis for the claim is an agreement dated 31st August, 1962, which is not a lawful agreement within the meaning of section 2(p) of the Industrial Disputes Act. A review was sought for, which was also dismissed. These orders have, since, been challenged in this writ petition. Submission of the petitioner:

(2.) Learned counsel for petitioners contends that the agreement dated 31st August, 1962 is an agreement within the meaning of section 2(p) of the Act, which had since been acted upon. The Company had addressed a letter to each of the workmen that they will be entitled to pension as per existing agreement, as is apparent from one of such letters, which is at page 46 of this writ petition. He also relies on Exhibit '2' series, one of which is at page 51 of this writ petition, by which one of the workmen, who had accepted voluntary retirement, was awarded pension, after having been approved by the Management of the company. According to him, this is an agreement between the employer and the employee concerned, which has reference to the agreement dated 31st August, 1962. Having accepted the same, he employer cannot now deny the benefit after retirement. The right of the workmen flows from this agreement, which can be computed under section 33C(2) of the Industrial Disputes Act. Submission of the respondents:

(3.) Learned counsel for the employer on the other hand contends that there is nothing to show that the agreement dated 31st August 1962 was ever sent to any officer, authorized in this behalf by the appropriate Government. Therefore, it is not a settlement or agreement within the meaning of section 2(p) of the said Act, under which the workman can claim, by reason of section 18(1) of the said Act. Thus, the company having disputed the very entitlement of the petitioners, the question does not remain within the purview of jurisdiction under section 33C(2) of the said Act. He relied on the decision in Jhagrakhan Collieries (P) Ltd. v. G.C. Agarwal, reported in 1975 Lab IC 137 = AIR 1975 SC 171, in order to contend that this agreement is not a settlement within the meaning of section 2(p) of the said Act. He also relied on the decision in Municipal Corporation of Delhi v. Ganesh Razak, reported in 1995 Lab IC 330, in order to contend that as soon as the question became a question of determination of the entitlement, it is no more a subject matter, which can come under section 33C(2), under which only computation of entitlement, flowing from existing right, can be made. According to him, the agreement dated 31st August, 1962 was an agreement between the two employers at the time when one of the employers had transferred the establishment to the employer, who took over the same. It was not an agreement between the employer and the workmen, though the workmen were represented through their representative and the agreement was also signed on behalf of the workmen. There is nothing to show that this agreement was ever sent to the authorized officer, as is required under section 2(p) of the said Act. As such the very basis of the agreement having been disputed, the question does not remain a question of computation. It becomes a question of determination as to whether the workmen can claim under the agreement itself. He further contends that the letters contained in pages 46 and 51 of this writ petition, were issued by mistake. Then again it cannot stand independent of the agreement dated 31st August, 1962. These two documents cannot form the basis of the claim. Inasmuch as these have no binding force, within the meaning of section 18(1) of the said Act. Therefore, it is no more a computation of a claim flowing from existing right. On the other hand, it is a dispute with regard to the determination of the entitlement, outside the scope of section 33C(2) of the said Act. Therefore, the learned tribunal was justified in refusing the claim. The settlement: