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Calcutta High Court (Appellete Side)
The Bloomfield Tea Co. Ltd vs Amarnath Chatterjee on 11 June, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS
CO 1528 OF 2012
THE BLOOMFIELD TEA CO. LTD.
VS
AMARNATH CHATTERJEE
For the Petitioner : Mr. Shounak Mukhopadhyay, Adv.
Mr. Sayantan Bose, Adv.
Ms. Priyanka Gope, Adv.
For the Opposite Party : Mr. Jayanta Dasgupta, Adv.
Mr. Balaram Patra, Adv.
Last Heard on : 22.05.2025
Judgement on : 11.06.2025
CHAITALI CHATTERJEE DAS, J:-
1. This revisional application is directed against an order of affirmation dated
29th February, 2012 passed by the learned Judge Kolkata in compensation
case number 15 of 1999. The brief fact of the case is that the respondent
was engaged by the petitioner sometimes in the year 1968 as an Export
Assistant for a period of 6 months as probationer and subsequently
terminated on 1st February 1972, taking into consideration that his service
was no longer required.
Page 1 of 23
Brief Resume of the case.
2. A proceeding was initiated before the 7th Industrial Tribunal at the
instance of the Opposite Party /employee praying for setting aside such
order of termination. This case has a chequred history .The initial attempt of
the opposite party was turned down but later on by virtue of direction of the
High Court at Calcutta, was treated as an Industrial Disputes within the
meaning of section 20 A of the Industrial Disputes Act. The Government of
West Bengal by its order dated 20.9.82 referred the dispute to the Tribunal
Application treating the same within the meaning of section 20 A of
Industrial Disputes Act, 1947 and a proceeding was registered. An award
was passed on 7th September 1990 by the said court whereby, the order of
termination was set aside and direction was given to reinstate the opposite
party with full back wages and other financial benefits. It was further
directed by the Tribunal that the opposite party shall be deemed to be in
service from the date of termination that is 1st February 1972. The said
award was challenged by the present petitioner company before this Hon’ble
High Court being W.P. No. 290 of 1992.
3. An order of stay of the operation of the award was directed by the High
Court but the petition was dismissed for default and then application for
recalling of such order was filed by the present petitioner which is pending
as of now. On 1st March 1999 the opposite party filed an application under
Section 33C-(2) of the Industrial Dispute Act, 1947 before the 1st labour
court, West Bengal, as compensation case number 15 of 1999 with the
prayer for computation of monetary benefits in terms of the award dated 7th
September, 1990 . Vide an order dated 20th April, 2006 the said court
Page 2 of 23
allowed the claim of the respondent taking into consideration the monthly
increment at the rate of ₹8/- per month. Accordingly, the amount
determined was ₹8, 50, 754. 65 as payable by the petitioner company to the
Opposite Party.
4. Being aggrieved by such order a writ petition being WP number 16793 (W) of
2006 was filed by the present petitioner for setting aside the order of the
Tribunal. The Hon’ble court by virtue of an order passed on 4th September,
2006 quashed the order with a direction to the petitioner to deposit the sum
of ₹2, 00,000 and also directed the learned labour court to hear out the
application under Section 33-C (2) Industrial Disputes Act, 1947 afresh after
giving opportunity of hearing to the parties.
5. Accordingly, fresh application was filed and the present petitioner also filed
additional written statement. After taking evidence and after going through
the pleadings, by a judgement and order dated 29th February, 2012 the
labour court held that the opposite party is entitled to a further sum of ₹5,
16, 431 in addition to the sum of ₹2, 00, 000 and ₹41, 280 already paid by
the petitioner, to the opposite party calculating the salary amount with rs
8/- per month as increment .Challenging such order of the learned labour
court Kolkata, this revisional application under Article 227 of the
Constitution of India has been filed by the company.
6. The learned advocate, appearing on behalf of the petitioner company
submits that the case of the petitioner/workman is hit by principles of
waiver and estoppel and therefore is prima facie not maintainable. Secondly,
against the order of reinstatement of the present opposite party, the
petitioner company moved one writ petition which was dismissed for default
Page 3 of 23
and the application for recalling of such order is still pending, so the award
is still under challenge and no computation case is maintainable. The
opposite party by suppressing such fact filed the subsequent application
under Section 33-C (2) of the Industrial Dispute Act and did not come before
the court with clean hand.
7. The specific argument advanced by the learned advocate that the opposite
party in course of his employment was offered ₹10 per year as increment,
which was all along accepted. His salary was ₹200 in the year 1968 and
enhanced to ₹240 in January, 1972 with annual increment of ₹10.
Therefore, increment in the salary of the opposite party at all material time
was at the rate of ₹10 per annum and not at the rate of ₹8 per month as
claimed by him. It is also submitted that the amount stated in the
appointment letter of ₹8 per month was erroneous and typographical
mistake and the parties never acted on the same. It is further argued that
the learned judge failed to consider that the original claim made by the
Opposite Party, was consequent upon passing of the award dated 7th
September 1990 by cover of the letter dated 11th September, 1995, was
computed by the opposite party on the basis of an annual increment of ₹10
per annum and not by treating a monthly increment of ₹8 per month. The
learned counsel draws the attention of this court to the award, whereby the
order of termination was set aside, with the observation that the workman
should be deemed to be in service on and from 1.2.72, and he is entitled for
reinstatement in service with full pay from that onward at the rate drawn by
him on 31.1.72 along with all other benefits from the company, he was
entitled to from the period onward till reinstatement in service.
Page 4 of 23
8. It is strenuously argued that the labour court, while considering application
for computation of the total amount to be paid had limited scope of
adjudication like executing court and cannot go beyond the award.
Unfortunately, the learned court went a step further, and considered the
statement of the workman who for the first time raised that his increment
was ₹8 per month and not Rs. 10/- per annum and came to a finding that
the claim of the applicant regarding increment at the rate 8/-per month is
not unjustified and accordingly calculated such amount at ₹5, 16, 431,
which is without any jurisdiction and colourable exercise of the power.
Hence the company prayed for setting aside the order passed by the labour
Court.
9. In refuting the contention of the petitioner the learned advocate, appearing
on behalf of the Opposite Party argued that the inaction on the part of the
petitioner company gives a grim scenario about the prolong exploitation by
the companies to the poor workers . It is submitted that the opposite party
was appointed in the year 1968 and in terms of the letter of employment, he
was entitled to ₹8 per month as increment, but the increment was given at
the rate of ₹10 per annum and the opposite party never raised protest to the
same in writing. It is submitted that in the year 1968/1970 when an unrest
situation was prevailing and employment was a big issue, the Opposite Party
was obviously not in a position to raise a voice against the employer being
the company, in black and white, against their unlawful act, in deprivation
of legitimate claim, however verbally asked the management for the same. It
is argued on behalf of the opposite party that the point taken by the learned
advocate of the petitioner is not tenable in the eye of law as the learned
Page 5 of 23
labour Court never exercised power going beyond the award. The opposite
party challenged the order of termination as a workman before Industrial
Dispute Tribunal which was referred to the learned 7th Industrial Tribunal
for adjudication. Pursuant to the judgement and order the said court
directed the company to reinstate the workman with full pay from the date
onwards at the rate drawn by him on 31.1.72 and at that point of time, his
salary was ₹240/-. It is also argued that the full wages last drawn means
the full wages which the workman was entitled to draw pursuant to the
award. In terms of the letter of appointment the respondent was entitled to
draw the increment of Rs. 8/- per month but he was paid salary only on the
basis of ₹10 per annum arbitrarily .More so the relief under section 17 B of
the Industrial Disputes Act 1947 is an independent right available to
workman during pendency of the proceeding .Since It was his last drawn
salary the workman obviously could not deviate from the said amount and
thereby committed no wrong on his part.
10. Therefore, when by filing the application under Section 33 C (2) of the Act
he raised the issue, the question of waiver does not arise. It is undisputed
that in the letter of appointment, it was clearly mentioned that ₹8 per month
is to be paid along with the wages, but it was denied to the opposite party
for which the opposite is fighting for his lawful entitlement. The letter of
appointment as has been annexed with this revisional application was
issued in accordance with shops and establishment act so there was no
question of deviation from the same rather the denial of agreed increment by
the petitioner shows the arbitrariness and colourable exercise of the power
on their part. Therefore, after adjusting ₹2 lakhs as awarded the total
Page 6 of 23
amount was payable pursuant to the order of learned labour court is ₹5, 16,
431/- which is to be paid by the petitioner company. It is also contended
that the workmen is now aged about 92 years and the fight is still going on
since 1972 and excepting ₹2 lakhs, no amount has been paid to this
Opposite Party . It is therefore prayed that the petition filed by the petitioner
should be rejected with exemplary cost and the market at the rate of interest
should be paid along with the said amount.
Heard the submission of the learned advocates
Anaysis
11. In view of the argument of both the learned advocate and after going
through the materials on record and the order impugned the moot question
falls for consideration is whether the Labour Court exceeded his jurisdiction
while computing the amount to be paid to the opposite party pursuant to
the direction of the Award and or the learned labour court rightly assess the
quantum of back wages considering the lawful entitlement of the Opposite
Party.
12. This is a dispute between an employee and an employer, potentially
related to unpaid legal dues or benefits that have been outstanding for long
53 years. While hearing this revision application, I put this question to
myself what exactly is the meaning of justice delayed justice denied. As per
mandate of Article 21 of the constitution, speedy trial is implicit and is one
of the facets of the fundamental right to life and liberty as enshrined in
Article 21. The principles emphasizes that delays in legal process can deny
the individuals their rightful justice, causing further harm and injustice.
Page 7 of 23
The concept of a speedy trial is essential to ensure that Justice is served
fairly and efficiently. Therefore it is essential to prioritize the rights and
interests of litigants, ensuring early disposal of the cases.
13. Sri Amarnath Chatterjee the opposite party herein was appointed by virtue
of a letter of appointment dated 23 April 1968 as Export Assistant on
probation basis for six months temporarily up to 22.10.1968 at the rate of
Rs. 8 per month increment in wages per month and would draw a total wage
of ₹200 as consolidated, per month. The salary of the opposite party was
enhanced to ₹210 in the year 1969, after giving an annual increment of ₹10
per annum instead of Rs 8/- per month. Similarly in the year 1970, it was
enhanced to ₹20 after giving an annual increment of ₹10 and ₹230 in the
year 1971 and in 1972, his salary was ₹240 with the annual increment of
₹10 per annum and then his service got terminated with effect from 1st
February 1972 On the ground of he being surplus. The Opposite Party
challenged such order of termination under section 10 (1) read with section
28 of the Industrial Dispute Act for adjudication on the issue whether the
termination of service of the respondent Sri Amarnath Chatterjee was
justified or not .The petitioner here in did not appear and an Ex parte award
was passed on 26. 6. 88.
14. The petitioner company challenged the said order before this Hon’ble
court and the order was set aside, directing the Tribunal to hear the matter
afresh. Before the learned Tribunal both the parties adduced evidence and
on the basis of the pleadings the Tribunal was of the view that the order of
termination of service of the workman by the second party company,
through the letter dated 31.1.72 is illegal, against natural justice, unjust,
Page 8 of 23
and void, and an issue of the violation of provisions of section 260 of the
Industrial Dispute Act 1947, and such termination is retrenchment per se,
accordingly held that the first party should be deemed to be in service on
and from 1.2.72 and the workman is entitled to be reinstated in service with
his full pay from the date onwards, at the rate, drawn by him on 31.1.72
and all other financial benefits from the company as entitled to from that
period onward till reinstatement in his service. Direction was given to the
first party company to comply with such within a period of one month from
the date on which the award became enforceable.
15. The company did not accept the award and filed writ petition against the
same before this Hon’ble Court. The said writ petition was admitted for
hearing and directions were given for filing Affidavits however an order of
stay of the operation of the award was passed with an interim direction to
pay the Opposite Party a sum of Rs 240/- per month that was the last
drawn salary, On 29th June, 1995 the writ petition got dismissed for default
followed by an application to recall the said order on 15th September, 1995.
16. According to the petitioner the said petition was never heard as it got
misplaced and then filed another application being C.A.N 4863 of 2006 for
recalling such order of dismiss for default. Therefore from the factual
scenario it can be said that, the award passed by the Tribunal was not acted
upon on the plea of pendency of the appeal filed by the company. It is
evident that firstly the petitioner allowed the writ petition to be dismissed for
default then filed restoration application after 2 and 1/2 months, which was
said to be misplaced. Interestingly without pursuing the said application for
Page 9 of 23
long 11 years suddenly the petitioner company thought it prudent to file
another application for restoration of said order of 29th June, 1995.
17. The dispute originally pertained to reinstatement of service and payment
of the salary of an employee which was a paltry sum of Rs. 240/- , his last
drawn salary but the company, instead of taking any step to comply with
the order only tried to cause delay so as to disentitled the employee to be
reinstated. Though before this Court the dispute is about the scope and
power of Labour Court as per Section 33-C (2) of the Industrial Disputes Act
This Court finds considering chequered history certain facts raised before
the Tribunal should be discussed in order to understand the plight of the
Opposite Party for long 5 years.
18. The respondent before the Tribunal i:e the petitioner herein M/S Bloom
Field Tea company had four sister concern and it was asserted before the
Tribunal by the present opposite party that he was asked to work in BK
Tushar, one of the sister concern apart from doing his work without any
extra remuneration or facility for such extra work. The employee when
demanded in the year 1971 extra remunerations for the service as accorded
to him on 31.1.72, he was given his usual pay for the month of January,
1972, and was also served with the letter of termination, without giving any
letter of show cause or intimation that he was surplus in the establishment
of the company. It was the specific case of the opposite party that he
verbally protested on 2nd and 3rd February 1972 regarding his termination
of service and refused to accept the cheque of ₹720 sent to him by the
company. The company took the stand that the service of the employee was
never confirmed in writing and was appointed on probation for a period of
Page 10 of 23
six months. He was never given any confirmation letter; rather, he was given
warning letters on account of habitual absence. The company took the
specific stand that in the year 1972, the workload relating to export
decreased and the company was not in a position to allow Chatterjee to
continue to work and he was found surplus and hence his service was
terminated with effect from 1st February, 1972. The learned Tribunal did
not accept the argument of the company and observed that the confirmation
was explicit by the conduct of the company as he continued in service, given
an incentive of ₹10 per annum with effect from 1 April 1960 by letter dated
1.8.69, in consideration of the workman’s, satisfactory performance of the
duty in the company in the past year.
19. The Learned Tribunal did not find any proof presented by the company to
establish that the workmen became surplus to the establishment at the
material time. The most important point raised was that in terms of the
relevant provision of industrial disputes act, 1947, the workman was not
given one month’s notice in writing, indicating the reasons for termination.
Furthermore the tribunal considered the termination as retrenchment and
accordingly held that at the time of retrenchment, the workman is to be paid
compensation equivalent to 15 days average pay for every completed year of
continuous service or any part of in excess of six months and notice in the
prescribed manner on the appropriate government regarding retrenchment.
The award also explicit that the letter of termination was conspicuously
silent about the reason for the termination of service. More so no evidence
brought on record by the company to show that the notice in the prescribed
form was served on the appropriate government about the termination of
Page 11 of 23
service of this workman. The company also vide its letter dated 1.2.72,
asked the workman to collect ₹720 as his dues, including retrenchment
compensation, therefore, the said amount was offered after date of
termination of service of the workman. The Tribunal was therefore of the
opinion that the mandatory provisions of section 25 C of the Industrial
Disputes Act 1947 was not complied with, before such order of the
retrenchment .
20. This court is unable to appreciate the stand taken by the petitioner
company for long pendency of the application for recalling the order of
dismissal of the appeal .The company made no effort to expedite the hearing
of such application which is still pending and so far miming of application
no document was filed. The entire facts would suggests that probably the
petitioner company intended to kept the matter pending in order to restrain
the Opposite Party to put the Award in execution and also to disentitle him
from reinstatement of service. It is undisputed that the opposite party was
aged about 35 when he joined but in the whirl of litigation he grew
older.However meantime, the opposite party filed the application under
Section 33-C (2) of the Industrial Disputes Act, 1947 for computation of
monetary benefits in terms of award dated 7th September, 1990 and in the
said application he stated about the exact rate of increment he was entitled
to from the company which was all along denied .He further claimed the 15
days privilege leave on the basis of such rate.
21. The company left no- stone unturned before the labour Court to refute the
claim and even took a peculiar stand before the labour court that the
increment of Rs. 8 per month as mentioned in the letter of appointment was
Page 12 of 23
erroneous and a typographical mistake. This fact was never raised before
the Tribunal nor was intimated to the opposite party. The workman/
Opposite Party claimed an amount of ₹8, 23, 402, calculating the increment
at the rate of Rs. 8 per month in terms of the letter of employment which
according to the company was beyond his entitlement as he abandoned the
said rate of increment by accepting the rate of Rs.10 per annum. It was
highly contested as the company filed the written objection to the same,
taking the further point of maintainability that the Labour court had no
jurisdiction to determine anything beyond the scope of Award. The company
took the point regarding pendency of the appeal before the Hon’ble court
and prayed no computation can be calculated during pendency of the same.
22. The learned labour court after hearing the parties duly considered the
point regarding abandonment of the claim of getting ₹8 per month as his
increment, and also that it was not the subject matter of the award as
assailed by the company. After considering the evidences and the objections
raised by the company allowed the prayer of the applicant with the direction
that he is entitled to get ₹5, 16, 431 from the opposite party company. The
bone of contention of the petitioner company before this Court is about the
scope and authority of the learned labour Court while implementing the
award. In this regard, the learned advocate has relied upon a decision
reported in1 ( Municipal Corporation of Delhi vs Ganesh Razak and another)
where it was specifically observed by the Hon’ble Supreme Court that the
labour court cannot adjudicate dispute of entitlement or basis of claim of
workman. It can only interpret the award or settlement on which the claim
1
(1995) 1 SCC 235
Page 13 of 23
is based. Its jurisdiction is like that of executing court’s power to interpret
the decree for the purpose of its execution.
23. On careful perusal, of the said case it transpires that the challenge before
the Hon’ble Supreme Court was the refusal of the Labour Court followed by
an order of affirmation by the High Court about the maintainability of the
application under section 33-C (2) of the Act on the claim that workmen to
be paid at the same rate as the regular workmen. Admittedly no earlier
adjudication was there by any forum regarding such entitlement and
therefore the question was whether in such circumstances without prior
adjudication or recognition of the disputed claim, the payment of wages to
the workmen at the same rate with the regular employees can be considered
for computation under section 33-c (2) of The Industrial Act of 1947.
24. ‘The Hon’ble court considered the various judicial pronouncement and ratio
of those decisions and observed ” The ratio of these decisions clearly indicates
that where the very basis of the claim or the entitlement of the workmen to a
certain benefit is disputed, there being no earlier adjudication or recognition
thereof by the employer, the dispute relating to entitlement is not incidental to
the benefit claimed and is, therefore clearly outside the scope of a proceeding
under Section 33-C(2) of the Act. The labour court has no jurisdiction to first
decide the Workmen’s entitlement and then proceed to compute the benefit so
adjudicated on that basis in exercise of its power under Section 33-C(2) Of the
act. It is only when the entitlement has been earlier adjudicated or recognised
by the employer and thereafter for the purpose of implementation or
enforcement thereof some ambiguity requires interpretation that the
interpretation is treated as incidental to the labour court’s power under
Page 14 of 23
section 33-C (2) like that of the executing court’s power to interpret the decree
for the purpose of execution’
So from the above observation it is clear that there must be an earlier
adjudication of the claim raised in the application filed under section 33-C
(2) of the Act of 1947,The labour court has no jurisdiction to first decide the
entitlement and then to proceed to compute .In case of previous
adjudication of the entitlement or recognition by the employer the labour
court can interpret for the purpose of implementation if any ambiguity
requires interpretation which will be treated as incidental to the labour
court’s power .
25. In the instant case in terms of the letter of appointment the opposite party
was to be paid the increment at the rate of Rs. 8 per month when he was
paid Rs.10 per annum, which he accepted without raising objection in
writing but never took any other advantages in order to keep silent. So by
any means it cannot be said that the opposite party was not legally entitled
to the increment at the rate of Rs.8 per month but fact remains that
entitlement was denied without any reason. It can very well be said that
refusal to accept the amount paid by the employer even if it was lessor
would have been considered as insubordination and could have been fatal
and therefore it was not one easy thing to do against the employee.
Furthermore the order of termination against the opposite party was set
aside directing the company to reinstate and to pay all the back wages on
the basis of his entitlement of last drawn salary and filed the application
under Section 33-C (2) of the Act disclosing the rate of increment as per
month As per letter of appointment for the purpose of computation and the
Page 15 of 23
labour court also considered the same refuting the stand taken by the
company that it was a typographical error.
26. The learned advocate of company further relied on a decision reported in2
(Kalparaj Dharamshi and another vs Kotak Investment Advisors Limited and
another) where it was held that a waiver cannot always in every case be
inferred merely from the failure of the party to take the objection. Waiver
can be inferred only if, after it is shown, that the party knew about the
relevant facts and was aware of right to take the objection in question. The
waiver or acquiescence, like election, pre suppose, that the person to be
bound is fully cogent of his rights, and that being so, he neglects to enforce
them or chooses one benefit instead of another.
27. In Paragraph 123 of the said decision the case in Krishna Bahadur vs
Poorna Theatre was considered .In that case the Industrial Tribunal set
aside the dismissal order with full back wages and compensation, which was
not paid and a petition under Section 33C-2 of the Industrial Disputes Act
was initiated and was ended in amicable settlement, The workman agreed to
receive said amount of ₹39,000 as full and final settlement. The matter came
up before the Supreme Court, where it was held that.’ The principle of
waiver, although is akin to the principle of estoppel, the difference between
the two, however, is that whereas the estoppel is not a cause of action; it is a
rule of evidence; waiver is contractual and may constitute a cause of action;
it is an agreement between the parties and a party fully knowing of its rights
has agreed not to assert right for a consideration.
2
2021(10) SCC401
Page 16 of 23
28. The facts and circumstances of the above case were very different than that
of the instant case where there was no settlement between the workman and
no consideration was extended to the employee rather it is the petitioner
Company who denied the agreed amount as per letter of appointment. In the
above decision it was further observed that ‘A right can be waived by the
party for whose benefit certain requirements or conditions had been
provided for by a statute, subject to the condition that no public interest is
involved therein. Whenever waiver is pleaded it is for the party pleading the
same to show that an agreement waving the right in consideration of some
compromise came into being. Statutory right, however, may also be waived
by his conduct.’
29. This court cannot be oblivion of the unrest situation prevailing in the state
of West Bengal in the year 1969/70 as the State’s economy was affected on
account of huge influx of refugees after partition and there was a surge of
socialism and anti-establishment ideology .At that crucial time a young man
was given an appointment by a company with the terms and condition as
stipulated in the letter of appointment. Subsequently, the company deviated
from the amount agreed in the appointment letter and paid lessor amount
and the person accepted the same without raising any voice against the
mighty employer and this continued till 1972 with an enhancement of salary
from Rs. 200 /- to Rs. 240/- with the rate of increment at ₹10 per annum in
lieu of Rs. 8/- per month. Then all on a sudden the said employee was
served with notice of termination on the score that he has become surplus.
30. In such backdrop this court is likely to consider the factors as to; Whether
the employee’s acceptance of the lessor amount was voluntary or under
Page 17 of 23
duress, Whether The employee’s silence can be interpreted as a waiver of
their right to claim the full amount, Whether the company’s deviation from
the agreed -upon terms constitute a breach of contract. In the instant case,
the Award passed by the Tribunal and the order passed by the labour court
unequivocally established that the opposite party was no more a temporary
employee since he completed his probation period successfully and was
continued with yearly increment. Therefore his termination without given a
notice to show cause or in non-compliance of the mandatory provisions of
the industrial disputes act pertaining to termination of employee was
arbitrary. No clear and transparent procedure was adopted at any point of
time or any attempt was made on behalf of the petitioner company to
withdraw the letter of appointment or to modify the terms of the
appointment, but taking advantage of the silence of the employee, continued
to pay much lesser amount than what was agreed between them. The award
was passed considering that the first party workman, should be deemed to
be in service on and from 1st February 1972, and he is entitled to
reinstatement in service and to get his full pay from that date onwards at
the rate drawn by him on 31st, January 1972 and all other financial
benefits from the company he is entitled to from that period onward till
reinstatement in the service. Admittedly, his last drawn pay was Rs. 240/-
in the year 1972 after having four increment on the basis of the increment
given at the rate of ₹10 per annum instead of ₹8 per month as agreed upon
by the parties. The award said about the entitlement of the respondent, and
accordingly he claimed the compensation at the rate of Rs.8/-per month as
an increment. It is pertinent to mention here in that the company did not
Page 18 of 23
pay the Opposite Party even as directed to be paid in terms of the said
award and paid ₹2 lakhs after the direction was passed by the Hon’ble court
in WP 16 793 (w) of 2006, while remanding the matter for hearing afresh of
the application filed under section 33C (2). In fact if the service of employee
to be considered as permanent the company had to comply with the
statutory requirement before retrenchment. The opposite party refused to
accept the amount of Rs. 750/- as given to him by issuing a cheque
calculated on the basis of the rate of increment of Rs 10/- per annum.
Therefore it will not be proper to say that the opposite party never raised
protest.
31. Therefore in this peculiar facts and circumstances the order of the
learned labour court can be construed only as an interpretation of the
Award for the purpose of proper computation and can no way be said to be a
new adjudication of the claim of the opposite party. In the above facts and
circumstances, this court is unable to accept the contention of the learned
advocate of the petitioner that the Opposite Party waived his right to have
the increment at the rate of Rs. ₹8/- per month by accepting the increment
at the rate of ₹10 per annum. Furthermore I do not find any illegality or
impropriety in the order of the learned labour court who, while computing
the quantum of compensation considered such increment at the rate of ₹8
per month even though it was not so specifically discussed by the learned
Tribunal. This court is unable to agree with the petitioner that the learned
labour court exceeded his jurisdiction by considering ₹8 per month while
calculating the quantum of compensation in place of ₹ 10 per annum in view
of the fact that the letter of appointment was very specific about the said
Page 19 of 23
increment at the rate of ₹8 per month and the opposite party was entitled to
have the said amount which was denied but certainly the said denial cannot
become the right of the employer to deny perpetually.
32. Section 33 C (2) of the Act deals with the jurisdiction of the labour court
which is subject to fulfilment of two requirements.
A) workman must be entitled to receive from the employer, any money or
benefit, which is capable of being computed in terms of money and
B) a question should have a reason about the amount of money due, or as to
the amount at which such benefit should be computed.
These questions may be decided by the labour court as may be specified by
the appropriate government within a period of not three months; did that
where the presiding officer of a labour court consider it necessary or
expedient so to do, he may, for reasons to be recorded in writing, extend
such period by such further period as he may think fit.
33. Therefore, the labour court has jurisdiction to decide not only the right of
a work man to receive from the employer any money, but also the exact
amount of to be paid by the employer. In this case, certainly, the workmen
claimed his compensation in respect of an existing right as entered into or,
agreed upon between the employer and the workman in the letter of
appointment.
34. Therefore, the question of equity certainly goes with the workman and the
company cannot take advantage of the silence of the workman in not
claiming his lawful dues and entitlement and take the point of waiver and
Page 20 of 23
estoppel. In a decision reported in3 Central bank of India Ltd. versus P. S
Raja Gopalan, where it was observed as taken note of by the Hon’ble
Supreme Court in Municipal Corporation of Delhi versus Ganesh Rajak and
another. (Supra), which is as follows.
‘ besides, there can be no doubt that when the labour court is given the power
to allow an individual workmen to execute or implement his existing individual
rights, it is virtually exercising execution powers in some cases, and it is well
settled that it is open to the executing court to interpret the decree for the
purpose of execution. It is, of course true that the executing court cannot go
behind the decree, nor can it add to or subtract from the provision of the
decree. These limitations apply also to the labour court but like the executing
court, the labour court would also be competent to interpret the award or
settlement, on which a work man base his claim under Section 33-C2, it
would, inappropriate cases be open to the labour court to interpret the award
or settlement on which the work man’s right rests’
35. It must be keep in mind that it is an entitlement as agreed upon and
promised to pay by the company and not a mercy grant to the petitioner, in
fact the conduct of the company amounts to breach of contract. The
supervisory jurisdiction of the High court under Article 227 of the
constitution of India was discussed by the Hon’ble Supreme court in Mohd
Yunus vs Mohd Mustaquim4 whereby it was observed in exercising the
supervisor power under article 227; the High Court does not act as an
appellate Court or tribunal. It will not review or reweigh upon which the
3
AIR 1964 SC 743
4
1983 4 SCC 566
Page 21 of 23
determination of the inferior court or tribunal to be based or to correct
errors of law in the decision.
Conclusion
36. Therefore in view of the entire facts and circumstances this court finds no
merit in the submissions of the petitioner and hence this revisional
application is liable to be dismissed. At this stage this court considering the
mode and manner how the company dealt with the matter, express
displeasure. The company fixed the increment at the rate of Rs. 8/- per
month but denied the same and continue to pay at the rate of Rs. 10/- per
annum and never informed the workman that such rate was a typographical
error or mistake. As no objection was raised on behalf of the employee he
was paid with that amount. The company challenged the award on the score
that the workman was given warning letter and he is engaged in other
company etc. and allowed the said writ petition to be dismissed. He filed
restoration application and on account of lack of supervision the same was
not traced out.
37. The company waited for long 11 years and filed second application but it
is still pending since the Company did not take any step. The company
strongly contested the application under 33 -C (2) filed by the Opposite
Party and then first time said about the error committed in the letter of
appointment and that the employee waived his right to claim since he never
claimed the agreed amount .The learned Court did not consider the said
plea and allowed the compensation against which this revisional application
has been filed. In the meantime only 53 years have passed since 1972 and
the employee grew older and is now aged about 92 years but still have the
Page 22 of 23
tenacity to continue with this proceeding in order to receive his legitimate
claim. This is a classic example of justice delayed justice denied but the
cannons of justice as enshrined in the constitution empowers the Court to
ensure that justice must be done on the principles of justice equity and good
conscience .Accordingly this Court direct the company to pay the amount
as commutated by the labour court within a period of fortnight .The
company is further directed to pay the said amount with interest at the rate
of 10 % per annum since 29.12.12 when the order of computation was
passed and the entire amount is to be paid within a period of fortnight from
the date of server copy of the order in default the company will pay a further
interest of 6%. Per annum till such payment is made.
38. Accordingly this revisional application is dismissed.
39. Let a copy of this order be sent to the learned Trial Court for information.
Urgent Photostat copy of the order be supplied upon compliance of all
formalities.
(CHAITALI CHATTERJEE DAS,J.)
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