Punjab-Haryana High Court
Amrik Singh vs P.O. I.T Gurdaspur & Anr on 15 September, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No. 13380 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 13380 of 2014
Date of decision: 15.09.2014
Amrik Singh ...Petitioner(s)
Versus
Presiding Officer, Industrial Tribunal, Gurdaspur and another
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Ms. Aditi Girdhar, Legal Aid Counsel,
and Ms. Anju Arora, Advocate,
for the petitioner.
G.S.SANDHAWALIA, J. (Oral)
Challenge in the present writ petition is to the order dated 03.04.2014 (Annexure P-2) passed by the Industrial Tribunal, Gurdaspur, whereby, the application filed under Section 33-C(2) of the Industrial Disputes Act, 1947 (in short 'the Act') has been dismissed.
The dispute in the application filed was that the respondent had given a contract for raising construction of a kothi on the plot situated at Ranjit Nagar, Qadian Road, Batala for a total contract of `1,75,000/- which was @ `45 per ft. Some construction had been raised but the petitioner- applicant, who was the contractor, was not paid his dues and resultantly, the claim was filed for a sum of `1,92,000/-.
The defence taken was that earlier a civil suit was filed before the Court at Batala, which was dismissed under Order 9 Rule 8 of CPC and that there was no relationship of master-servant in between the parties. The petitioner had already been paid more than his dues and he was not a SHIVANI GUPTA 2014.09.23 15:29 I attest to the accuracy and integrity of this document Chandigarh CWP No. 13380 of 2014 2 licensed approved contractor. The petitioner had mis-utilized and misappropriated the material and more than 70 bags of cement had been taken away.
The Labour Court took into account the fact that the construction was not raised as per the map furnished by the respondent and, therefore, the petitioner could not be allowed to agitate that the respondent had engaged a new mason for the construction of his house. No details of the work carried out had been furnished nor any receipt regarding purchase of material had been produced. Nothing had been shown as to how many labourers were employed and their names had also not been furnished before the Labour Court. It was held that there was no evidence to establish the fact that the petitioner was entitled for `1,92,000/- and on the basis of oral submissions, he could not be granted the said relief. The civil suit which was dismissed also weighed with the Labour Court and accordingly, the application was rejected, as noticed above.
Counsel for the petitioner has vehemently argued that the finding is not correct and as per the evidence on record, basement had been constructed and, therefore, the petitioner was entitled for his arrears for engaging labour etc. It is also submitted that the suit was only for permanent injunction which was dismissed in default and at that time, no cause of action had arisen for recovery of the amount which was the dispute in the application under Section 33-C(2) of the Act.
After hearing counsel for the petitioner, at the first blush, the argument seems to be attractive regarding the right to recover the dues. However, a perusal of the Award would go on to show that the issue was also framed regarding the maintainability of the application under Section SHIVANI GUPTA 2014.09.23 15:29 I attest to the accuracy and integrity of this document Chandigarh CWP No. 13380 of 2014 3 33-C(2) of the Act. A reading of the said Section would go on to show that the entitlement of the workman to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due, the Labour Court would have jurisdiction. The respondent had raised an objection regarding the relationship of master-servant inter se the parties also. It is apparent from the pleadings, as noticed above, that it was not a relationship of an employer-employee which was essential to file a claim under the Industrial Disputes Act, 1947 which could have been adjudicated upon. It was a contract inter se the parties for building a house at a specified rate. The claim under Section 33-C(2) of the Act thus was totally misconceived as such and the Labour Court would have no jurisdiction. It is settled principle that the proceedings under Section 33-C(2) of the Act are in the nature of execution of pre-existing rights and there has to be some predetermination or existence of a right which is to be enforced.
In the present case, the petitioner is seeking firstly determination of the damages or the wages due on account of labour spent for the construction undertaken and without any such predetermination, an application under Section 33-C(2) could not have been filed. Reliance can be placed upon the judgment of the Apex Court in D. Krishnan and another vs. Special Officer, Vellore Coop. S.M. And another, 2008 (7) SCC 22 to support the said reasoning. The relevant observations of the Apex Court read thus:-
"5. We have considered the arguments advanced by the learned counsel for the parties. The fact that proceedings under Section 33 C(2) are in the SHIVANI GUPTA 2014.09.23 15:29 nature of execution proceedings is in no doubt, and I attest to the accuracy and integrity of this document Chandigarh CWP No. 13380 of 2014 4 such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case. It will be seen that the reliance of the appellant-workmen is exclusively on documentary evidence placed on record which consisted primarily of the punch time cards and the representations that had been filed from time to time before the respondents. It is also true that the claim raised by the appellants had been hotly disputed by the respondents. The question that arises in this situation is whether reliance only on the documentary evidence was sufficient to prove the case. We are of the opinion that the reference to Municipal Corporation's case (supra) is completely misplaced as in that matter, the fact that different categories of workers were doing identical kind of work was virtually admitted but different scales of pay were nevertheless being paid to them. It is also relevant that oral evidence had been adduced by the workmen to supplement the documentary evidence and it was in that situation that the Court felt that an application under section 33 C(2) was maintainable. We find that the claim by the appellants herein has been disputed from the beginning and that the documents filed by the appellants themselves suggest that they were unsure of their own status. We have also perused the representations which have been filed as additional documents. A perusal of the letter dated 10th February 1996 from S.Karuthiah Pandian, Special Officer shows that the appellant D.Krishnan was being posted as a Canteen Manager. The subsequent letters dated 20th May 1996, 20th January 1997, 20th February 1997, 15th April 1998 and 6th August 1998 were all written by the appellant D.Krishnan identifying his post as that SHIVANI GUPTA 2014.09.23 15:29 I attest to the accuracy and integrity of this document Chandigarh CWP No. 13380 of 2014 5 of Manager of the canteen and in the body of the last letter, a specific plea has been made that amongst the several duties entrusted to him, he had to instruct workers to come in the morning, to prepare breakfast and a complaint that on one particular day, one C. Uttharakumar, a Clerk working under him had refused to follow his orders. We also find similar letters written by the second appellant, K. Shanmugam and they too are on the record as additional documents. We are, therefore, of the opinion that in the light of the categorical statements time and again in the very documents relied upon by the appellants in support of their case, that they were, primafacie, Managers and it would, therefore, be beyond the jurisdiction of the Labour Court to determine their status in proceedings under Section 33 C(2) of the Act."
In such circumstances and in view of the settled position of law, the issue that the application itself not being maintainable was rightly also decided against the petitioner while adjudicating on issue no. 3, which was the claim of the amount in question. Once the Industrial Tribunal had no jurisdiction as such to adjudicate upon the claim under Section 33-C(2) of the Act, this Court is of the opinion that there is no scope for interference in the well reasoned order passed by the Labour Court. Accordingly, the present writ petition is dismissed in limine.
15.09.2014 (G.S. SANDHAWALIA)
shivani JUDGE
SHIVANI GUPTA
2014.09.23 15:29
I attest to the accuracy and
integrity of this document
Chandigarh