MUNICIPAL BOARD Vs. THE LABOUR COMMISSIONER

JUDGEMENT

(1.) This petition challenges the order of 31st January, 1973 passed by respondent No. 1, Labour Commissioner Rajasthan Ex P.19 by which he has ordered that a certificate for the amount claimed by respondent Nos. 6 to 31 (the employees of the petitioner Board) be issued in favour of the Collector, Nagpur for recovery of the said amount from the petitioner. The petitioner had a power house which generated electricity and supplied it to the town of Merta. Respondents Nos. 6 to 31 were the employees of the petitioner. The power house was taken over by the Rajasthan State Electricity Board, respondent No. 2 and respondents Nos. 6 to 31 were thereafter transferred to respondent No. 2. On 6 -4 -71 an application was moved by respondent Nos. 6 to 31 under Sec. 33C(1) of the Industrial Disputes Act (hereinafter to be called "the Act") to the Board respondent No. 1 claiming that they were entitled to retrenchment compensation from the petitioner and that order may be passed in that connection. A statement showing the compensation due to each of the respondents was attached along with the petition which showed a total of Rs. 28,353/ - at retrenchment compensation. On a notice having been issued by respondent No. 1 the petitioner Board did not file any reply though a reply was filed by respondent No. 2 Electricity Board in which it was pleaded that if the employees are entitled to any compensation the same could only be recovered from the Municipal Board and not from the respondent No. 2. Respondent No. 1 considered this matter by its order dated 18 -12 -71 and took the view that the respondents Nos. 6 to 31 could raise this dispute either as an industrial dispute or under Sec. 33C(2) of the Act and that their application for payment of retrenchment benefit was not maintainable as he had no jurisdiction to do so. It seems however that the next day it was brought to his notice that some orders had been passed in the case of power house, Barmer and he therefore decided to review the matter in the light of that. On 16 -9 -72 the petitioner Board appeared before respondent No. 4 and took the stand that it had no jurisdiction in the matter in view of the decision of : 1969 LLJ Vol. II 728, U.P. Electricity Supply Co. Ltd. vs. Shukla and another. Thereafter the matter was adjourned to 13 -10 -72 and thereafter to 24 -10 -1972 No one appeared on behalf of the petitioner and the matter had to be adjourned to 24 -11 -1972. On that day also no one appeared on behalf of the petitioner and a telegram was sent for adjournment of the case and the respondent No. 1 therefore adjourned the matter. The next date fixed was 31 -1 -1973 and on that day also nobody appeared on behalf of the petitioner out the Chairman. Municipal Board sent a telegram for adjournment of the case without specifying the reason for adjournment. As respondent No. 1 did not see any justification to adjourn this request was refused and the respondent No. 1 after considering the merits of the case and considering that no liability arose to pay retrenchment benefit to the former employees of the Municipal Board who had been transferred to the new employer respondent No. 2 it held that retrenchment benefit was to be paid to respondents Nos. 6 to 31 by the petitioner. It therefore directed that a certificate for recovery of the said amount be issued. It appears that subsequently the petitioner approached the respondent No. 1 for staying the certificate of recovery but the same was refused by respondent No. 1 by his order dated 4 -7 -74. Thereafter the petitioner has filed the present writ petition on 15 -7 -74 impugning the order of respondent No. 1 dated 31 -1 -73.

(2.) The main contention of the petitioner is that an application under Sec. 33C(1) of the Act was not maintainable as the said provision applies only if there is an admitted liability and the amount had been ascertained and that the same cannot be said in the present case because the petitioner was disputing that be was liable to pay any retrenchment compensation. Now sec. 25F lays down the condition which have to be fulfilled before an employee can be retrenched and requires the employer to pay compensation provided in the said section. Sec. 25F provides that where the ownership or management of an undertaking is transferred whether by agreement or by operation of law from the employer in relation to that undertaking to a new employer every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Sec. 25F as if the workman had been retrenched. The proviso to Sec. 25F provides the eventuality in which the retrenchment compensation will not have to be paid One of the conditions being that the service of the workman has not been interrupted by such transfer. It is clear that the main part of Sec. 25FF lays down a liability to pay retrenchment compensation on the employer who by agreement or by operation of law transfers the undertaking. In the present case the respondent Nos. 6, to 31 were undoubtedly the employees of the petitioner. If Sec. 25FF, applies then evidently so far as the liability to pay retrenchment compensation under the Act is concerned the same will lie on the petitioner. It is a different aspect if petitioner's plea is that in fact it is entitled to reimbursement for the amount paid by it from the new employer, that plea obviously cannot form the subject matter of proceedings under the Act and necessarily will have to be taken separately if the old employer so feels. Sec. 33C(1) provides that where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA the person may apply to the appropriate Government for the recovery of 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. Sec. 25FF of the Act forms a part of chapter VA of the Act. Thus on a plain reading of Sec. 33C(1) if any money is due to a workman under the provisions of chapter VA he can apply to the appropriate Government under Sec. 33C(1). This is what the respondents Nos. 6 to 31 did. The argument of the counsel for the petitioner Mr. Vyas however is that Sec. 33C(1), only, encompasses cases where there is no dispute about the liability of the employer or certainty of amount and it is not attracted when the petitioner was disputing his liability. It may be mentioned that section, 33C(2) provides for an application being made to the Labour Court when a workman claims that he is entitled to receive any money or any benefit which is capable of being computed in terms of money. The interpretation of Sec. 33C(1) and 33C(2) has come; up before the Supreme Court in a number of cases. It is unnecessary to make a reference to all of them and it is enough to refer to East India Coal Co. Vs. Rameshwar (AIR 1998 SC 218) where the various propositions as to the scope of Sec. 33C(2) were deduced from the prior decisions. From the those propositions it is clear that Sec. 33C is a provision in the nature of execution proceeding and that the scope of Sec. 33C(2) is wider than that of Sec. 33C(1). Proposition 4 was stated as under: - -

(3.) Similarly in Ramkrishna Ramnath v/s. Presiding Officer, Nagpur : (1970 Vol. II LLJ 306) the earlier case of : 1969 II LLJ 728 was distinguished and it was pointed out that the observation in the case cannot be considered dissociated from the setting in which they were made and the court held that the examination of the claim under Sec. 33C(2) may in some cases have to be preceded by an inquiry it the existence of the right and that mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the labour court.