Bombay High Court
Searsole Chemicals Limited vs H.C. Shah And Ors. on 11 February, 1988
Equivalent citations: (1995)IIILLJ584BOM
JUDGMENT H.H. Kantharia, J.
1. The first respondent filed application (IDA) No. 928 of 1979 before the 8th Labour Court, Bombay presided over by the second respondent Labour Judge under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") claiming his dues as under:
Rs.
"(a) Salary for the month of March upto 26th Marc. 1979 1,656.50
(b)
2 months salary as leave salary for unenjoyed privilege leave to my credit on 26.3. 1979.
3.950.00
(c) Retrenchment Compensation for 3 years' service at 45 days salary the amount will be 2.962.50
(d) Outstanding Bills
(i) Upto 15.1.1979 Rs.1009.30 less Rs.799.30 received.
210.00
(ii) from 16.1.1979 to 28.2.1979 (Bill already sent) 563.50
(iii) for the Month of March (Bill enclosed herewith) 303.05 9645.55
2. His contention was that he was working as Area Sales Organiser with the petitioner company and the third respondent-company from 22nd September, 1975 till his services were terminated with effect from 26th March, 1979, and as such he was entitled to the dues enumerated hereinabove. His application was resisted by the petitioner-company and the third respondent-company. It was the case of the third respondent-company that the first respondent was never in their employment. This contention was accepted by the learned Labour Judge and it was specifically held that he was not in the employment of third respondent-company at all. However, the petitioner-company raised two contentions in its defence opposing the application under Section 33C(z) of the Act that the Labour Court had no territorial jurisdiction to deal with the application and secondly, the first respondent was not a workman within the definition of Section 2(s) of the Act. The learned Labour Judge rejected both these contentions of the petitioner company and also rejected the major portion of the claim preferred by the first respondent but granted his claim for retrenchment compensation amounting to Rs. 2,962.50 by his judgment and order dated 25th October, 1982 which has been impugned in this writ petition under Article 226 of the Constitution by the petitioner-company.
3. The first respondent was served with a notice before admission but he did not remain present in this Court at that time. After recording that fact this Court (Bharucha, J.) issued rule nisi and also granted interim reliefs in terms of prayer clause (b) of the petition by an order dated 26th April, 1983. Thereafter, the first respondent was once again served with rule nisi regarding which an affidavit has been filed on behalf of the petitioner-company of a Clerk and Special Bailiff by name M.V. Parab in the office of Sheriff of Bombay. And despite the service of rule nisi on the first respondent, for the reasons best known to him, he has remained absent in this Court at the time of hearing of this writ petition.
4. Mr. Damania, learned counsel appearing on behalf of the petitioner-company, took me through the entire record and submitted that when there were two genuine disputes raised before the Labour Court by the petitioner-company that the Labour Court had no territorial jurisdiction and that the' first respondent was not a workman, it was not proper for the Labour Court to have decided an application under Section 33C(2) of the Act before the points raised by the petitioner-company were adjudicated upon. The submission of the learned counsel is that, therefore, the Labour Court exceeded its jurisdiction vested in it under Section 33C(2) of the Act. I find lot of substance in the argument advanced by Mr. Damania for I find from the record that very substantial disputes were raised by the petitioner -company that the Labour Court had no territorial jurisdiction inasmuch as the petitioner-company's factory and head office and management are all situate in Dehradun in the State of Uttar Pradesh and that the first respondent was employed for Bombay area from Dehradun and his services were terminated from Dehradun office. It was also contended that the first respondent's services were controlled from the head office in Dehradun. The record further shows that the first respondent was a technically qualified person having obtained a B.Sc. degree with Honours with Chemistry as his subject and was employed as Area Sales Organiser in Bombay. His work was to promote sales of Company's products by visiting customers in Greater Bombay and his work was neither clerical nor technical. It was the contention of the Company that he was working in an administrative capacity. It is no doubt true that all these contention's raised by the petitioner-company were denied by the first respondent. But in my opinion, these contentions should have been first adjudicated upon and till that was done it cannot be said that the first respondent had an existing right which could be executed in proceedings under Section 33C(2) of the Act. After considering various judgments of the Supreme Court and other High Courts, a Division Bench of this Court (Bharucha and Tipnis, J.J.) in the case of Indu d/o Vishnu Mahajan v. National Safety Council and Ors. (1987 II C.L.R.259) held that in the case before them there was a dispute between the parties as to whether the first respondent therein was an "industry" and whether the appellant was a "workman" and further as to whether the conditions of Rule 16 of the National Safety Council Service Rules and of Section 25F of the Industrial Disputes Act were complied with and that until those questions were adjudicated upon and decided in favour of the appellant therein, she could not have contended that the order of termination of her services was void ab initio and she had no existing right upon which she could base her claim under Section 33C(2) and further held that the Labour Court was, therefore, right in holding that it did not have the jurisdiction under Section 33C(2) to decide the appellant's application. In our case also till the two contentions raised by the petitioner-company, as stated hereinabove, were adjudicated upon and decided, proceedings under Section 33C(2) could not have been taken by the first-respondent. In the facts and circumstances of this case, I am, therefore, of the opinion that the second respondent -Labour Judge exceeded his jurisdiction in dealing with an application under Section 33C(2) of the Act. That being so, the impugned order passed by him suffers from error apparent on the face of the record and deserves to be quashed and set aside.
5. In this view of the matter, the petition succeeds and the same is allowed. Rule is accordingly made absolute but with no order as to costs.