Bombay High Court
M/S. Central Group vs Shri Ig Narayan Gangaram Patil on 19 September, 2008
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, D.B.Bhosale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO. 318 OF 2004
WITH
CIVIL APPLICATION NO. 324 OF 2004
1. M/s. Central Group
2. Shri Dinesh Chunilal Jain
3. Shri Lalit Chunilal Jain
4. Shri C.S. Jain
5. Smt. V.C. Jain
All residing at Behind
Rameshwar Mandir, Kaneri,
Agra Road, Bhiwandi,
District - Thane. ..Appellants
Vs.
Shri ig Narayan Gangaram Patil
Through United Mazdoor Union
Sampat Maruti Tupe Building,
2nd floor, Behind Balsara Co.
Kisan Nagar-2, Wagle Estate,
Thane - 400 604. ..Respondent
Mr. S.M. Oak i/by Mr. Ambar Joshi for appellants.
CORAM: B.H. MARLAPALLE &
D.B. BHOSALE,JJ.
Reserved on : September 02, 2008.
Pronounced on: September 19, 2008.
JUDGMENT:(Per B.H. Marlapalle,J.).
1. This intra court appeal is directed against the order passed by the learned Single Judge on 9/6/2004 thereby rejecting Writ Petition No. 1041 of 2004. The writ petition was filed under Article 226 ::: Downloaded on - 09/06/2013 13:52:33 ::: :2: and 227 of the Constitution so as to challenge the award dated 18/11/2002 passed by the Fourth Labour Court at Thane in Application (IDA) No. 208 of 1999 filed under Section 33C(2) of the Industrial Disputes Act, 1947 (for short the I.D. Act).
2. The respondent-workman had approached the Labour Court on or about 23/4/1999 by filing Application (IDA) No. 208 of 1999 and claimed the recovery of legal dues, namely, (a) overtime for the year 1990 to ig 1998, for four hours extra duty on every day, (b) 21 days leave pay for every year of service from 1990 to 1998 and (c) bonus at the rate of 8.33% for the period from 1990 to 1998. It appears around the same time the workman also filed Complaint (ULP) No. 231 of 1999 challenging the termination of service with effect from 25/2/1999 and the complaint was filed under Section 28 read with Item 1 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971.
The employer, on receipt of the notice from the Labour Court in both the cases, appeared and opposed the claim contending that (a) the workman was never employed by the appellant no.1 - Central Group, (b) though appellant nos.2 to 5 owned 18 powerlooms, ::: Downloaded on - 09/06/2013 13:52:33 ::: :3: none of the appellants were running the same and the powerlooms were rented out to one Shri Kantilal Rajput by way of an agreement, (c) the shed in which the powerlooms were installed was demolished by the Bhiwandi Nijampur Municipal Council for widening of the road on 21/11/1998 and as there was no employer-employee relationship between the workman and the appellants, the claim for recovery of statutory dues or the complaint for reinstatement was not maintainable. It is also clear from the record that Complaint (ULP) ig No. 231 of 1999 came to be withdrawn subsequently by the workman. However, he pursued the application for recovery of statutory dues. The workman examined himself, whereas on behalf of the appellants, Shri Lalit Chunilal Jain was examined.
The Labour Court by its judgment and order dated 18/11/2002 held that it had the jurisdiction to decide the issue of employer-employee relationship between the parties and it allowed the application by directing the appellants to pay an amount of Rs.4,97,064/- towards overtime wages, leave wages and bonus. As noted earlier, the appellants' challenge to the said order dated 18/11/2002 failed before the learned Single Judge in Writ Petition No. 1041 of ::: Downloaded on - 09/06/2013 13:52:33 ::: :4: 2004.
3. At the first instance, we must note that Complaint (ULP) No. 231 of 1999 was disposed as withdrawn by the First Labour Court at Thane on 12/6/2003 with liberty to the workman to raise an Industrial Disputes for reinstatement in service. The withdrawal of the complaint has no bearing on the award impugned in the writ petition.
4. Mr.Oak the learned counsel for the appellants reiterated his arguments advanced before the learned Single Judge and emphasised that the Labour Court did not have the jurisdiction to decide the issue of employer-employee relationship in an application filed under Section 33C(2) of the I.D. Act. In support of this sole ground, he has relied upon the decisions in the case of Municipal Corporation of Delhi vs. Ganesh Razak and anr. [(1995) 1 SCC 235] and Tara and ors.
vs. Director, Social Welfare and ors. [(1998) 8 SCC 671].
5. Section 33C(2) of the I.D. Act reads as ::: Downloaded on - 09/06/2013 13:52:33 ::: :5: under:-
"33C. Recovery of money due from an
employer.- (1) .......
(2) Where any workman is entitled 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 or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months.
. Provided that where the presiding officer of a Labour Court considers 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."
::: Downloaded on - 09/06/2013 13:52:33 ::: :6:6. The Constitution Bench in the case of The Central Bank of India Ltd. vs. P.S. Rajagopalan [AIR 1964 SC 743] has dealt with the scope of Section 33C(2) of the I.D. Act and it would be appropriate to reproduce the following observations in this regard:-
"16. ..........In our opinion, on a fair and reasonable construction of sub-sec. (2) it is clear that if a workman's right to receive the benefit ig is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point ::: Downloaded on - 09/06/2013 13:52:33 ::: :7: in favour of the workman than the next question of making the necessary computation can arise............. The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour ig Court by sub-sec. (2)......."
. Whereas, in the case of Ganesh Razak (Supra) the maintainability of application under Section 33C(2) was disputed on the ground that the claim of the workman to be paid at the same rate as the regular workman was not adjudicated earlier by any competent forum and in fact it was disputed. It was under these circumstances, the Supreme Court held, "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 ::: Downloaded on - 09/06/2013 13:52:33 ::: :8: Section 33C(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 Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
7. It is thus well settled that while deciding the application under Section 33C(2) of the I.D. Act, the Labour Court has the power to decide incidental issues. The application filed under Section 33C(2) of the I.D. Act is akin to the executing proceedings.
If the applicant's entitlement is not preadjudicated or based on a statutory claim or claim arising from a settlement, the Labour Court cannot entertain the claim. There is a distinction drawn between the terms "entitlement" and "status". It is well settled that if in an application under Section 33C(2) of the I.D. Act, the employer claims that the applicant is not a ::: Downloaded on - 09/06/2013 13:52:33 ::: :9: workman within the meaning of Section 2(s) of the I.D. Act, the same can be decided by the Labour Court as an incidental issue. Similarly, if the employer disputes the employer-employee relationship, the Labour Court has the jurisdiction to decide the same as an incidental issue while deciding an application filed under Section 33C(2) of the I.D. Act.
8. In the instant case, the workman examined himself and stated that he was employed by the appellants and ig more particularly appellant no.1 and the appellant nos.2 to 5 were the partners of the said firm. When the employer-employee relationship is disputed, the onus to prove the same also falls on the disputing party. The appellants examined Shri Lalit Jain. In his examination-in-chief he stated, "The above said powerlooms were given on contract basis for running to Mr. Kantilal Rajput on 1.11.91 by executing a separate individual agreement, and the above said looms were run by him after 1.11.91. At present looms are not running because the shed was demolished by the Bhiwandi Corpn on 21.11.98.
::: Downloaded on - 09/06/2013 13:52:33 ::: :10: I have filed zerox copy of demolition
punchanama dt. 21.11.98 on record.
Demolished punchanama was prepared in the
presence of Banehal. Exh.16 is a zerox copy
of demolition punchanama. The powerlooms were
given to Kantilal Rajput for running on rental
basis for a period of 11 months and thereafter
leave and licence period was extended from
time to time till 28.2.99...."
. On 19/8/2002 Shri Jain was in the witness box
and after his examination-in-chief was concluded, he
offered himself for cross-examination for a short time
and admitted that the four motors installed in the
shed bearing No. 264 were in the name of the
applicants and the said shed was taken on rent by his
father i.e. original opponent no.4 after executing
leave and licence agreement. The cross-examinatino
was deferred and after 19/8/2002 Mr.Jain did not offer
himself for further cross-examination and, therefore,
rightly the Labour Court did not consider the
depositions in examination-in-chief of Shri Jain. The
Labour Court noted that the so called agreement
between the appellants and Kantilal Rajput was never
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brought on record and what was brought on record was a
xerox copy and as it was not proved, it was not
exhibited. Thus beyond a bald oral statement that the
powerlooms were rented out to Mr.Kantilal Rajput,
there was no evidence in that regard and Mr.Kantilal
Rajput was not examined by the appellants to support
their case that in fact he was running the 18
powerlooms installed in shed No.264. If Mr. Kantilal
Rajput was examined before the Labour Court he could
have been called upon to produce the muster-rolls,
wage register ig and other record in respect of his
employees. The appellants did not discharge their
onus to prove that the powerlooms were being run by
Mr.Kantilal Rajput on rental basis from 1190 to 1998.
Obviously, the contentions that the workman was not
employed by the appellants was only to defeat the
application and the appellants could not prove the
same. On merits i.e. computation of the benefits of
the overtime wages, leave wages and payment of bonus,
there was absolutely no opposition or dispute raised
by the appellants before the Labour Court. The Labour
Court passed a reasoned award and allowed the claim
application. The learned Single Judge has considered
the rival arguments and rightly confirmed the award
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passed by the Labour Court. In our considered
opinion, the order passed by the learned Single Judge
does not suffer from any errors apparent on the face
of the record and, therefore, it does not call for any interference in this appeal.
9. In the premises, this LPA fails and the same is hereby dismissed with costs.
10. Civil Application No. 324 of 2004 does not survive and the same shall stand disposed as such.
(D.B. Bhosale,J) (B.H. Marlapalle,J.) ::: Downloaded on - 09/06/2013 13:52:33 :::