Delhi District Court
An Application Under Section33C(2) Of ... vs Director on 7 April, 2007
1
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
LCA NO. 131/2006
BETWEEN
WORKMAN
SH. JAMIRULLAH, S/O SH. ABDUL MAZID,
C/O ALL INDIA GENERAL MAZDOOR TRADE UNION (REGD.)
170, BAL MUKUND KHAND, GIRI NAGAR,
KALKAJI, NEW DELHI - 19.
AND
MANAGEMENT
1. M/s GURU EXPORT 2. M/s KARN CREATION
I - 1617, GANGA RAM VATIKA,
P. O. TILAK NAGAR, NEW DELHI - 18.
ORDER
1. An application under section33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) was filed by the applicant pleading therein the following facts :
He worked with the management since June 2000 as a 'Tailor' at the last drawn wages of Rs.3208/ per month. He worked honestly and diligently. There was no complaint against him. An amount of Rs.24,236/ is due to him from the management out of which Rs.9800/ is on account of earned wages w.e.f. 01.06.2003 to 18.12.2003, Rs.9624/ is on account of bonus w.e.f. June 2000 to 2003, and Rs.4812/ is on account of Leave encashment for the period from June 2000 to 2003. Management has not paid the same hence the application. LCA NO. 131/2006 2
2. Management has contested his application vide its written statement. It is stated that claimant never worked with it at any point of time in any capacity, so there is no relationship of employer and employee between the parties and therefore, no cause of action accrued. It is stated that the claim is not maintainable u/s 33 C (2) of the Act.
3. Following preliminary issue needed adjudication before proceeding further :
1. Whether the petition is not maintainable ?
4. I have carefully perused the material available on record and have heard arguments of the AR for the parties.
Preliminary Issue :
5. In Tara & Ors. Vs. Director, Social Welfare & Ors., 1998 LLR 882, the Apex Court has held as under :
"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 LCA NO. 131/2006 3 be maintainable under Section 33C(2)."
6. In this case the applicant has claimed to have worked with the management since June 2000. Management has denied the same and has pleaded that the applicant never worked with it any point of time in any capacity.
7. Now a question arises whether disputed status of the claimant as workman of the respondent can be adjudicated in proceedings U/s 33C (2) of the Act.
8. It was held in Tara & Ors. (Supra) that claim under section 33C(2) of the Act is not maintainable when the status and the nature of employment of the appellant is itself disputed and unless there is a prior adjudication on the status which is the foundation for making the claim for wages at specified rates The very foundation of the claim of the applicant is that he should be an employee of the respondent / management. In other words the relief prayed for by the applicant flows from his status as workman of the respondent. Hence for granting him the relief, it is necessary to adjudicate upon the fact whether he was a workman of the respondent. The same can not be adjudicated under section 33C(2) of the Industrial Disputes Act.
LCA NO. 131/2006 4
9. Following judgments state that if there is a dispute as to whether the claimant was a workman of the respondent, the same cannot be adjudicated U/s 33 C (2) of the Act as the said proceedings are in the nature of execution and not adjudicatory.
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 :
"...The corporation denies relationship of master and servant or payment of wages... This controversy cannot be decided without evidence and is outside the scope of section 33C 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 wages under section 33C of the Industrial Disputes Act unless the question of his employment was adjudicated by competent Court in a reference..." (Emphasis mine)
10. In Central Group and Others And Motiram S. Thakare 2005 II LLJ 492, Labour Court's jurisdiction under section 33C(2) of the Act read with Rule 62 of LCA NO. 131/2006 5 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 33C(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 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 33C(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 LCA NO. 131/2006 6 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 33C(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 33C(2) of the said Act.
21. Obviously, therefore, in terms of law 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 33C(2) of the said Act. Besides, the Labour Court also erred in holding that such issues are incidental to the main issue under Section 33C(2).
Hence, the impugned order cannot be sustained and is liable to be set aside, and the application under Section 33C(2) of the said Act is liable to be dismissed." (Emphasis added) LCA NO. 131/2006 7
11. In South Central Railway, Secunderabad vs. Labour Court, Hyderabad, And Another 1983 FJR Vol63 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 under section 33C(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 jurisdiction under section 33C(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 33C(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 LCA NO. 131/2006 8 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 under section 33C(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 33C(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 LCA NO. 131/2006 9 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."
(Emphasis added)
12. 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 an existing one, that is to say, already adjudicated upon or rovided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer."
13. 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 33C(2) of the Act claiming wages for two months. The employer disputed his status 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 33C(2) of the Act and it cannot allocate to itself the functions of the Tribunal under Reference under section 10 of the Act. I quote the relevant observation : LCA NO. 131/2006 10
9. "In the instant case, the Labour Court has proceeded to adjudicate the petition filed under S. 33C(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 disputed this fact, the Labour Court ought not to have proceeded to adjudicate the petition under section 33C(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."
14. In the case of State Bank of India V. Ram Chandra Dubey and Others, 2000 (87) FLR 849, Supreme Court has held as under :
"that the benefit sought by the respondent to be enforced under section 33C(2) of the Act, would be necessarily a preexisting benefit or one flowing LCA NO. 131/2006 11 from a preexisting right."
15. In case Smt. Pakkiyam v. Executive Engineer/C.N. Southern Railway, Salem & others 2002 (94) FLR 1207 the Kerala High Court observed as follows :
"In the instant case the status of the workman is in dispute and unless the status is decided, it will not be possible for the Labour Court under Section 33 C (2) to compute the benefits. Therefore, on that ground also the rejection of the petition cannot be said to be improper."
16. Thus, the Courts have clearly stated that status of the applicant, if disputed, cannot be determined in proceedings under section 33C(2) of the Act. So, this court cannot determine his claim on merits in the absence of any prior determination on his status as workman of the respondent management.
17. As such, the claim is held to be not maintainable under section 33C(2) of the Act without prior determination on the status of the claimant as workman of the respondent management. Ordered accordingly. File be consigned to record room.
LCA NO. 131/2006 12
Announced in the open PRESIDING OFFICER
court today LABOUR COURT NO. XIII
Date : 07.04.2007 KARKARDOOMA COURTS
DELHI
LCA NO. 131/2006