Orissa High Court
Secretary, Larambha Service ... vs Suresh Chandra Chhuria And Anr. on 5 February, 1998
Equivalent citations: (1999)IILLJ419ORI
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.C. Naik, J.
1. What is assailed in this writ application is the maintainability, legality and propriety of the order passed by the Presiding Officer, Labour Court, Sambalpur, granting relief to opposite parry No. 1 Suresh Chandra Chhuria in a proceedings under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').
2. The facts giving rise to this petition are that Suresh (opposite parry No. 1), who was designated as an Assistant Secretary of the petitioner-Society, was suspended with effect from October 4, 1986. A departmental proceeding was initiated against him and after enquiry, he was dismissed from service on September 20, 1989. On April 26, 1990, he filed an application under Section 33C(2) of the Act claiming Rs. 40,388 as money due to him from the petitioner. The claim was resisted by the petitioner, inter alia on the ground that as Suresh had failed to attend the Office during the period of his suspension, he was not entitled to payment of subsistence allowance. Objection to the maintainability of the application under Section 33C(2) was also raised on the ground that Suresh not being a workman, his application was not maintainable. Alternatively it was submitted that having been dismissed from service with effect from September 20, 1989, Suresh had no right to take recourse to the proceeding under Section 33C(2) of the Act.
3. While dismissing the claim of Suresh for Bonus, the Labour Court overruled the objections raised by the petitioner-Society and directed it to pay a sum of Rs. 33,100 to Suresh Chandra Chhuria (O.P. No. 1) towards subsistence allowance for the period in question. This is how the matter is before this Court.
4. The first question that calls for consideration is, whether Suresh Chandra Chhuria was a workman and as such, entitled to relief under Section 33C(2) of the Act. It is the contention of the learned counsel for the petitioner that Suresh being an Assistant Secretary was not a workman within the meaning of Section 2(s) of the Act and as such, his application was not maintainable. Alternatively, it is contended that even if for the sake of argument it is accepted that Suresh was a workman, he could not maintain a proceeding under Section 33C(2) after his termination from service.
5. The contention of the learned counsel for the petitioner proceeds on the assumption that as opposite party No. 1 was doing office work, may be in managerial or in administrative capacity, he could not be said to be a workman. In our view, however, a there reference to the designation of an employee would not by itself be sufficient to determine whether the said person was or was not a workman. What is to be seen is that de hors his designation what was the nature of duty that was assigned to the person in question and what was practically required to be done by him. Therefore, the true test would be to see the nature of the main duties of the employee or in other words, it will have to be seen what in substance the work he does or for what he was, in substance employed. There may be instances where a person may be mainly engaged to do or mainly doing a supervisory, managerial or administrative work, he may occasionally or incidentally be asked to do or may be doing some manual or technical work. On the other hand, there might be a case where a person is mainly employed to do manual, unskilled, skilled, technical or operational work, he may incidentally be asked to do or doing supervisory, managerial or administrative work. In the first case, by incidentally doing operational work, the person concerned, cannot call himself a workman while in the second case, merely because a person is doing some managerial or administrative work, will not amount to mean that he was employed for managerial or administrative work. Thus, it is not casual or occasional work which a particular employee does which is decisive of what is the nature of his employment, nor is decisive of the question whether he falls within the definition of workman. In the case at hand, the Presiding Officer, Labour Court on the basis of material produced before him has clearly held that though Opposite Party No. 1 was designated as the Assistant Secretary, he was in fact, all along performing the duty of a salesman and was dealing with the sales of fertilizers. No material whatsoever was adduced or has been adduced by the petitioner to show that Opposite Party No. 1 was, in fact, discharging the duties in the managerial or administrative capacity. On the contrary, it was more or less an admitted position that he was dealing with the sale of fertilizer. The Labour Court, therefore, was of the opinion that as Opposite Party No. 1 was discharging the duties of salesman, all along, he was a workman within the meaning of the Act.
6. On a consideration of the submissions advanced before us and the material on record, we are of the view that the finding arrived at by the Labour Court that Opposite Party No. 1 was a workman, does not suffer from any infirmity and as such, calls for no interference in this petition. This brings us to the second submission advanced by the learned counsel for the petitioner that after termination Opposite Party No. 1 ceased to be a workman and as such, was not entitled to lay a claim under Section 33C(2) of the Act. Obviously, this contention is advanced on the basis of definition of 'workman' contained in Section 2(s) of the Act which lays down that workman includes not only a person who is employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward for the purpose of any proceedings in relation to an industrial dispute, but also includes any such person who has been dismissed, discharged or retrenched in connection with or consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute. What the learned counsel for the petitioner intends to convey is that as a proceeding under Section 33C(2) is not an industrial dispute, a person who has been dismissed, discharged or retrenched, cannot fall within the definition of 'workman' under the Act.
7. The submission though attractive cannot be accepted, in view of the pronouncement of the Apex Court in the case of National Buildings Construction Corporation Ltd. v. Pritam Singh Gill, AIR 1972 SC 1579 wherein while considering similar contention, their Lordships observed thus :
"Now, it is noteworthy that Section 2 of the Act, which is the definition section being, as is usual with most of the definition sections with the clause, unless there is anything repugnant in the subject or context. This clearly indicates that it is always a matter for argument whether or not this statutory definition is to apply to the word 'workman' as used in the particular Clause of the Act which is under consideration, for this work may both be restricted or expanded by its subject matter. The context and the subject matter in connection with which the word 'workman' is used are accordingly important facts having a bearing on the question. The propriety or necessity of this construing the word 'workman' is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of Section 33C of the Act. This section was enacted for the purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33C of the Act has accordingly been described as a provision which clothes the Labour Court with the powers similar to those of an executing Court that the workman concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing Court it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief......"
It was further observed that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workman in getting relief in respect of their existing rights without having resort to Section 10 of the Act. According to the Apex Court to accept the contention that a dismissed, discharged or retrenched workman cannot maintain an application under Section 33C(2) would always be (sic) an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by Section 33C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the Act thereby defeating the very purpose and object of enacting this provision. It was accordingly held that Section 33C(2) must be so construed as to take within its fold a workman who was employed during the period in respect of which he claims relief even though he was no longer employed at the time of application as by adopting this construction alone, the Court can advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33C in the Act.
8. The application under Section 33C(2) was confined to determination of amount that was due to him from the employer during the time he was in employment. There is no challenge to his dismissal nor to any amount claimed by way of compensation. Admittedly, Opposite Party No. 1 was appointed on December 1, 1978 whereafter he continued in the employment till his dismissal from service on September 20, 1989. It is admitted that he was suspended on October 4, 1986 and remained suspended till the date of his dismissal. His claim before the Labour Court was for payment of salary for the month of June and July, 1986, subsistence allowance for the entire period during which he remained on suspension and bonus for the relevant period. Thus, the total claim was for a sum of Rs. 40,338. Therefore, the benefits claimed are those to which he was entitled during the course of his employment prior to his dismissal. There is no dispute to the fact that the salary and subsistence allowance was paid or is not payable to the workman. In this view of the matter, the Labour Court, in our opinion, did not commit any illegality in entertaining the application filed under Section 33C(2) of the Act. This, therefore, brings us to the question what is the amount to which the Opposite Party No. 1 is entitled.
9. According to the learned counsel for the petitioner, the Labour Court committed an error in taking the salary of Opposite Party No. 1 at Rupees 970.80 paise per month which has to be accepted. From the material on record, we find that at the time of his suspension Opposite party No. 1 was being paid a sum of Rs. 716.86 paise per month as wages and this is not seriously disputed by Opposite party No. 1. The accquittance roll for the month of February, 1986 also indicates this. Thus, the monthly wages of Opposite Party No. 1 has to be taken as Rs. 716.86 paise. Accordingly, modifying the order of the Labour Court, we hold that Opposite Party No. 1 is entitled to wages for two months and the amount due towards subsistence allowance for the period from a October 1, 1986 to September 20, 1989 is to be calculated on the basis of wages on Rs. 716.86 paise per month and that would be the amount to which Opposite Party is rightly entitled.
10. In the result, the writ petition is allowed in part to the extent indicated. The management shall pay to Opposite Party No. 1 Workman, a sum of Rs. 22,629.46 suspension allowance for the period from October 4, 1986 to September 20, 1989@ 50% of a monthly wage of Rs. 716.86 which comes to Rs. 24,038.71 paise less Rs. 1,409.25 paise (suspension allowance paid during the period) towards suspension allowance and a sum of Rs. 1,433.72 paise towards the unpaid wages for July and August, 1986. Thus, the petitioner is entitled to an amount of Rs. 24,063.18 paise which shall be paid within a period of two months from the date of receipt of our order.
K. Mohanty, J.
11. I agree.