Delhi District Court
Worker Filed An Application U/S 33 C (2) ... vs Director on 9 February, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
LCA.376/2006
BETWEEN
SH. S.S. PRASAD C/O SH. DINESH GUPTA, R/O E-2/19, BUDH
VIHAR, PHASE-I, DELHI-41.
AND
THE MANAGEMENT OF : M/S SOM DUTT BUILDERS LTD. 56-58,
COMMUNITY CENTRE, EAST OF KAILASH, NEW DELHI.
ORDER
1. Worker filed an application U/s 33 C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) making therein following averments :
2. He joined the management in November 1999 as a Foreman at wages of Rs.7,260/- besides rent allowance of Rs.1,000/- per month. He was retrenched without any reason, cause or notice. He is unemployed since the date of termination of his services. Apart from reinstatement, he is entitled to an amount of Rs.1,16,382/- out of which Rs.1,750/- is towards bonus, Rs.25,168/- is towards salary, Rs.15,000/- is towards compensation, Rs.24,684/0- is towards P.L., Rs.20,000/- is towards D.A., Rs.8,000/- is towards Rent allowance and Rs.21,780/- is towards notice.
3. Management contested his claim vide its written statement. It is stated that the applicant is not a workman U/s 2 (s) of the Act as he was a 1 Supervisor/Sr. Mechanic. Therefore, his claim is not maintainable U/s 33 C (2) of the Act. It is further stated that this court has no jurisdiction to entertain such a claim, the proceedings being in the nature of execution proceedings. Even territorial jurisdiction of the court is disputed by stating that applicant was only selected by the Delhi office for his appointment at Tirupati and that he never worked at Delhi office of the respondent. It is denied that his services were retrenched. It is stated that claimant was simply transferred to Thangellapalam workshop where the plaint operation was in progress vide order dated 1.7.2002 which was refused by the applicant. It is denied that the court can adjudicate on his claim of reinstatement and other monetary benefits in these proceedings.
4. In rejoinder the applicant had admitted that he was only selected at Delhi office and was working at Tirupathi project. He has not specifically denied averments made in para 2 of page 3 of the written statement that he never worked at Delhi. He also did not specifically deny the averments made in para 4 page 3 of the written statement that he was transferred to Thangellapalam workshop and he refused to go. He has not dealt with para 5 of page 3 of the written statement in which territorial jurisdiction of the court is disputed.
5. Following issues were framed by my Ld. Predecessor on 23.7.2003 :
1. To what amount the workman is entitled to?
2. Whether the LCA is not maintainable?2
3. Relief.
6. Further orders of Ld. Predecessor are reproduced below :
"7.1.2005 Present : Workman in person.
AR for management.
AR for management states that this court has no territorial jurisdiction to try the matter. AR for workman is not available to reply the contention of the AR for management.
Put up for arguments on 11.1.2005.
POLC:IV 7.1.2005 1.3.2005 Present : ARs for the parties.
The matter cannot be disposed off without leading evidence. Put up for cross-examination of workman on 28.4.2005.
POLC:IV 1.3.2005"
7. Workman examined himself as WW-1 and thereafter closed his evidence. Case was received in this court at the stage of ME. Ld. AR for management stated that the maintainability of the claim is itself disputed by the management and therefore the management did not want to lead any evidence.
8. I have carefully perused the material available on record and also heard Ld. ARs for both sides.
Issue No. : 2
9. The management vide its reply has vehemently objected to the 3 maintainability of the claim inter alia on the grounds that the claimant is not a workman U/s 2 (s)of the Act and that the Court lacks territorial jurisdiction to entertain the claim in as mush as the claimant admitted that he never worked at its Delhi office; that the management never retrenched his services as alleged; he was simply transferred to Thangellapalam workshop vide order dated 1.7.2002 which he refused; that the claim of reinstatement does not lie U/s 33 C (2) of the Act which is not adjudicatory in nature but in the nature of execution proceedings.
10. The question of maintainability of the claim U/s 33 C (2) of the Act should be decided at the threshhold as observed by Hon'ble Apex Court in Tara & Ors. Vs. Director, Social Welfare & Ors., 1998 LLR 882, wherein it was held :
"It is clear that the question of maintainability of the applications under section 33C(2) was required to be determined at the threshold and the question of examining the appellants' claim on merits relating to their status could have been gone into only thereafter if the applications were held to be maintainable under Section 33C(2)."
11. In the present case certain objections go to the root of the matter. First management has taken an objection to the status of the applicant. It is stated that he is not a workman being Supervisor/Sr. Mechanic. It is also stated that this court lacks territorial jurisdiction as 4 the claimant never worked at Delhi and he was working as Tirupathi. It is also pleaded that his services were never terminated he was simply transferred. These issues can certainly not be adjudicated in the present proceedings being in the nature of execution proceedings.
12. The very status of the claimant is disputed. It is disputed that he is a workman. The Court U/s 33 C (2) of the Act cannot adjudicate whether he is a workman or not as is clear from the following judgments :
13. In Central Group and Others And Motiram S. Thakare 2005 - II - LLJ 492, Labour Court's jurisdiction under section 33-C(2) of the Act read with Rule 62 of the Industrial Dispute (Central) Rules, 1957 to decide the status of the claimant as workman arose for consideration. The Hon'ble High Court observed that Labour Court could not adjudicate upon the status of the claimant as a workman under section 33- C(2) of the Act. I quote the relevant observations :
12."But the Labour Court does not enjoy the power to decide about the status of the claimants approaching the Labour Court under the said provisions of Law, nor the issue in relation to the status of the claimants can be said to be an incidental one.
13.The issue relating to the status of the claimant as the workman is not 5 dependent upon the issue of entitlement of the amount and on the contrary, the issue relating to entitlement of amount claimed depends upon the status of the claimant as that of the workman.
14. Considering the provisions of law, the scope of powers of the Court under Section 33-C(2) of the said Act and the law laid down by the Apex court, therefore, it is apparent that the issue relating to the status of the claimant as being the workman or employee of the opponents in such proceedings cannot be adjudicated upon the Labour Court in such proceedings on the assumptions that such an issue is an incidental issue.
18. It is, therefore, to be held that the Labour Court while dealing with the application under Section 33-C(2) of the Industrial Dispute Act, 1947 cannot deal with the issue relating to the status of the applicant as the workman and such an issue is not an incidental issue in such proceedings but it relates to jurisdictional fact and in the absence of such jurisdictional fact, the Court is not empowered to entertain the application under section 33-C(2) of the said Act.
21.Obviously, therefore, in terms of law 6 on the point, the Labour Court could not have proceeded to adjudicate the issue relating to the status of the applicant and also regarding the right of the respondent, as the same was squarely beyond the scope of powers of the Labour Court under section 33-C(2) of the said Act. Besides, the Labour Court also erred in holding that such issues are incidental to the main issue under Section 33-C(2). Hence, the impugned order cannot be sustained and is liable to be set aside, and the application under Section 33-C(2) of the said Act is liable to be dismissed."
14. In South Central Railway, Secunderabad vs. Labour Court, Hyderabad, And Another 1983 FJR Vol- 63 p 171 it was held that the jurisdiction of Labour Court is different from that of a Civil Court and it must be shown to have jurisdiction which depends on the status of the claimant as workman. It was further held that proceedings U/s33 C (2) of the Act are in the nature of execution proceeding. Therefore, Labour Court cannot go into the question whether the claimant is a workman in these proceedings. I quote the relevant observations:
"The scope of a Labour Court's 7 jurisdiction under section 33-C(2) of the Act has been held to be in the nature of an execution proceeding. If so, when the right of the petitioner to a particular status is denied, that cannot form the subject - matter of an execution proceeding and, therefore, cannot form the subject - matter of a petition under section 33-C(2). Though the Labour Court may initially entertain the petition, when the employer denies that the petitioner is a workman, it cannot go into that question, for, under section 33-C(2) a right vested in a workman may be enquired into even if that right is denied, but not whether a person claiming the right is a "workman" at all. If the status of the "workman" is determined in some proceeding, or is admitted and only the right to the benefit accruing to the workman under any award, settlement or statute is denied, notwithstanding the denial, the right to that benefit may be determined and the amount computed in terms of money and awarded under section -33C(2). When a right to a benefit due to a workman is denied, not on the ground that he is not a workman at all, but on the ground that such a benefit did not accrue to him, then, notwithstanding the denial of the right, since proceeding 8 under section 33-C(2) is said to be in the nature of an execution proceeding, that right may be enquired into,. In that sense it is not entirely in the nature of a mere execution proceeding. To that extent, the scope of section 33-C(2) may be slightly wider than that of strict execution proceedings before a Civil Court. But, that does not certainly go further than that and clothe the Labour Court with the jurisdiction to enquire into the status of the person as to whether he is a workman or not. Section 33-C(2) proceeds on the basis that the application is made by a workman and does not comtemplate an enquiry as to whether he is a workman or not.
...
So, on the terms of the Section itself, the question whether a workman is entitled to receive from the employer any money or benefit, may be enquired; but not whether he is a "workman" at all or not."
15. In the case of East India Coal Co. v. Rameshwar, [1967] 33 FJR 90 it was held by the Hon'ble Apex Court as under:
"It is clear that the right to the benefit which is sought to be computed must be 9 an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer." (Emphasis mine)
16. In the case of Management, Elko Computers (P) Ltd., Chennai v. C.K. Jayachandran and another 2006 LLR 979 claimant who was Assistant Manager (Marketing) of the company filed a claim petition under section 33-C(2) of the Act claiming wages for two months. The employer disputed his status as a workman. It was held that Labour Court does not have jurisdiction to adjudicate upon the disputed status of the claimant. It was held that it enjoys very limited jurisdiction under section 33-C(2) of the Act and it cannot arrogate to itself the functions of the Tribunal under Reference under section 10 of the Act. I quote the relevant observations :
9. "In the instant case, the Labour Court has proceeded to adjudicate the petition filed under S. 33-C(2) inspite of the fact that the management has disputed the fact that the first respondent is not a workmen, but a senior marketing executive and would not fall under the definition of section 2(s) of the Act.
When the petitioner has categorically 10 disputed this fact, the Labour Court ought not to have proceeded to adjudicate the petition under section 33-C(2).
10.In view of the fact, that the claim petition has been filed under S. 33(2) even before adjudication of the issue as to whether the first respondent is a workmen or not and whether by the nature of his appointment, the first respondent will be entitled to claim the right as workmen as defined under S.2(s), the order of the second respondent has to set aside as without jurisdiction."
17. In Life Insurance Corporation of India, Agra Vs Presiding Officer, Central Government Industrial Labour Court, Kanpur 2004 (101) FLR 338, the Corporation denied the relationship of master and servant on payment of wages. The Hon'ble court observed as follows :
"There is no document to prove his
employment conclusively...The corporation
denies relationship of master and servant on payment of wages... This controversy cannot be decided without evidence and is out-side the scope of section 33-C of the Industrial Disputes Act. The controversy falls in the ambit of section 10 of the Industrial Disputes Act. The Labour Court could not have computed the 11 wages under section 33-C of the Industrial Disputes Act unless the question of his employment was adjudicated by competent Court in a reference..."
18. It is further in dispute whether this court has territorial jurisdiction or not. It is the situs of employment which determines the territorial jurisdiction of the Court as is clear from M/s D.L.F. Universal Ltd. v. The Government of National Capital Territory, Delhi & others 2002 LLR 407 in which respondent no.5 had been working at Gurgaon as an Architect from day one. Termination letter dated 30.4.1998 was also issued at Gurgaon which was a cause for respondent no.5 to raise the dispute and consequently seek reference. Government of NCT of Delhi referred the dispute for adjudication. Petitioner filed writ petition challenging that the impugned order of reference dated 9.11.1999 was without jurisdiction. Impugned order of reference was quashed. Referring to Full Bench Decision of Patna High Court in Paritosh Kumar Pal v. State of Bihar & others 1984 Lab IC 1254 our Hon'ble High Court observed that the situs of employment and cause of action will determine territorial jurisdiction.
Hon'ble High Court further referred to Rangavilas Motor's case AIR 1967 SC 1040. In that case although the original order of transfer and subsequent order of termination of the services of the 12 worker was passed at Krishnagiri yet in fact it operated at Bangalore where the worker was employed. It was held that on the anvil of the principle where the impugned order operates situs of employment where the worker is employed is patently significant and tribunal at the situs of employment will have territorial jurisdiction.
19. Applicant has further contended that his services were terminated whereas management has contended that his services were not retrenched but he was simply transferred from Tirupathi to Thangellapalam workshop on 1.7.2002 which was refused by the claimant.
20. Claimant certainly cannot ask reinstatement in execution proceedings.
21. Relief sought by the claimant in these proceeding depends on adjudication on all the aforesaid contentious issues which are not yet determined. There being no prior determination on the status of the claimant as a workman of the respondent, the claim is not maintainable here.
22. In L.K.P. Merchant Financing Ltd. v. Government of NCT of Delhi & Ors. 2003 LLR 367 even in a Reference U/s 10 of the Act our own Hon'ble High Court directed :
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"the Labour Court to frame a preliminary issue on the question as to whether or not the respondent no.2 is a workman and decide the same before deciding the dispute on merits."
In other words even Reference was U/s 10 of the Act, Labour Court was directed to decide the status of the claimant first before proceeding to adjudicate his claim on merits.
23. In Hussan Mithu Mhasvadkar vs Bombay Iron & Steel Labour Board, 2001 LLR 1083 even Hon'ble Apex Court was of the view that when there is a dispute about the status of the applicant as workman within the meaning of Section 2 (s) of the Act, the Court is first to decide the status of the applicant at the threshold and it was only if the findings are in the favour of the applicant, the Court should adjudicate on larger issues. It was observed that in case the findings of the Court regarding status of the applicant are against him, the Court should refrain from adjudicating on large issues. I quote the relevant observations as under :
"5. On a careful consideration of the respective submission of the learned counsel on either side, we are of the view that in a case of the nature where the Labour Court as well as the High Court entertained doubts 14 about the status of the appellant as a workman within the meaning of Section 2(s) of the I.D. Act, instead of embarking upon an adjudication in the first instance as to whether the respondent Board is an industry or not so as to attract the provisions of the Industrial Disputes Act, ought to have refrained from doing so and taken up the question about the status of the appellant for adjudication at the threshold and if only the finding recorded was against the appellant refrained from adjudicating on the larger issue affecting the various kinds of other employees, as to the character of the Board, as an industry or not. The larger issue should have been entertained for consideration only in case where it is absolutely necessary and not when the claim before it could have been disposed of otherwise without going into the nature and character of the Undertaking itself. For the said reason and also having regard to the submission made by the learned senior counsel for the respondents itself that the question as to whether the appellant falls 15 within the definition of 'workman' may itself be considered on the supposition that the Board is an industry, we propose to deal with the status of the appellant as to whether he is a workman or not at the first instance and if necessitated on account of our decision on that issue, undertake the larger issue for our consideration and decision."
24. In view of the aforesaid claim is held to be not maintainable U/s 33 C (2) of the Act. Issue is accordingly decided in favour of the management and against the applicant. Since the claim itself is not maintainable, the court cannot adjudicate upon his claim on merits. Ordered accordingly. File be consigned to record room.
DATE : 09.02.2007 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS DELHI.
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