Kerala High Court
Smt. Latha E.C., President, Kolathara ... vs Ms. Bahini U., D/O. Vasu And The ... on 10 April, 2002
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT M. Ramachandran, J.
1. The Labour Court, Kozhikode in proceedings under Section 33 C(2) of the Industrial Disputes Act, by Ext. P1 order dated 18/7/1997, (in C.P. No. 34/1993) had held that the petitioner in the claim petition who is the first respondent herein is entitled to recover from her employer Rs. 58750/- towards the arrears of salary for the period from 1/12/1989 to 31/11/1993 and also interest at the rate of 12 percent per annum from 31st October, 1993 till the date of realisation.
2. The respondents before the Labour Court, namely, the President of Kolathara Mahila Samajam and Secretary, are respectively the first and second petitioners in the original petition. Sri. Salil Narayanan appearing for the petitioners submits that the Labour Court has committed an error while passing a direction as has been made. According to him, the application under Section 33C(2) of the Industrial Disputes Act would not have been maintainable at all. The power was only a computation of admitted dues or payment arising out of a settlement or award. The issue, according to him, at the most could have been subjected for adjudication under Section 10 of the Industrial Disputes Act. Therefore, the order required intervention of the High Court.
3. Even though two other contentions had been raised, one, that the first respondent was not a workman coming under the purview of the Industrial Disputes Act, and another that the petitioners were not running an industry, they were not seriously pursued. The first respondent had been appointed as an Instructor in the Vocational Training Centre conducted by the Kolathara Mahila Samajam on 1/12/1989. The training centre was imparting training in needle work to students, and it has come out in evidence that monthly fees were collected from such students at the rate of Rs. 10/- to Rs. 20/-. The number of students is stated to be twenty six. According to the first respondent, during her entire tenure, no salary had been paid to her, and the fee collected were duly remitted. It is also stated that grants had come to the society from the Kerala State Social Welfare Advisory Board as also Central Social Welfare Board and whatever amounts earmarked for payment to the Instructors were also withheld and thus there was a case of misappropriation even. The claim petition proceeded on the basis that she was entitled to a monthly salary of Rs. 1250/-. Such payments were never made and the amount that had been shown as payable to her was on the above basis for the entire period of her employment.
4. According to the petitioners management, the primary aspect which was to be examined was as to whether there were stipulations or agreements between the parties as to the amount of salary that was payable to the Instructor, thus suggesting that it was not an employment of a workman in the real sense of the term. In this region, the Labour Court had committed a mistake. The Labour Court had referred to and relied on Ext.P3 which was but a letter from the Central Social Welfare Board sanctioning grant fro running the vocational course on 20/9/1991. The grant was subject to certain conditions and inter alia it also referred to the method of utilisation of the grant. One of stipulations was the salary payable to the Full Time Instructor was Rs. 1250/- per mensem and Part Time Instructor at the rate of Rs. 750/- per mensem. The petitioners submit that the court took this as a condition of service as applicable to the employee which entitled her to claim salary at the rate of Rs. 1250/- per mensem. Ext.P3 was a communication, long after the engagement of the worker and could not by itself confer a right on her to get a salary at a rate referred to therein. The maximum that could be gatherable from Ext.P3 was that it was a condition for payment of grant. The grant by the State Social Welfare Advisory Board was received only for one year and the g rant from the Central Social Welfare Board also was confined to one year. Petitioners also submit that from the amount earmarked as teachers' salary, proportional payment had been offered to the employee, but this had been refused to be accepted, and they were always willing to make this payment. The error, according to them committed by the labour court was that this irrelevant document has been construed as governing the relationship between the worker and the Samajam.
5. The argument appears to be formidable. Seeing Ext.P3 and the earlier appointment order, I find it difficult to accept the stand taken by the Labour Court that there was a condition of service as far as the workman was concerned, that the will be entitled to be paid Rs. 1250/- per mensem as salary. The basic dispute is as regards the entitlement of salary, as also the quantum. Ext.P3 advised a payment of Rs. 1250/- to a full timer, but it did not create a contract as between petitioners and the respondent.
6.In such circumstances, powers of computation under Section 33C(2) could not have been readily employed. The quantum of the salary that was payable to the workman necessarily required to be initially decided. In so far as this has not been satisfactorily done, as rightly contended by the petitioners, the application under Section 33C(2) could not have been successfully maintained. If the employment was a scheduled employment under the Minimum Wages Act, and the salary had been prescribed, recourse to such provision, perhaps might have been resorted to. That is also not the case here. The order thus suffers from basic error of jurisdiction and Ext.P1 is liable to be set aside.
7. The workman has another difficulty as well which has not been satisfactorily explained. If as a matter of fact, salary was not paid to her, from month to month, in the normal course she ought to have claimed such salary within a reasonable time, and without waiting for the amount to grow to a lumpsum. According to her, through out her service period she had not received salary. Application under Section 33C(2) had been filed, well after she left her employment in the Samajam. This conduct itself casts doubts about her assertion and consequently the veracity of the claim.
8. Sri. Harish appearing for the respondent of course submits that there is no limitation prescribed for preferring claim under Section 33C(2) of the I.D. Act. But this can be taken only with a pinch of salt. Normally, for payment of wages, the remedy provided is a petition under Payment of Wages Act. The limitation prescribed there is twelve months. Application for payment of minimum wages is also to be filed within six months. Instead an omnibus claim is attempted to be brought under Section 33C(2). Under the section, any workman who is entitled to any money, can file an application and the labour court may decide the question as to the amount of money due. The Court can also compute the amount at which any benefit to which he is entitled to, which is capable of being computed. The claims here do not come within either of the category. Of course, if the eligibility is not disputed, the employer cannot plead limitation. But, it is different from urging that the issue of delay can altogether be ignored. As the delay has not been satisfactorily explained in any case, it was not proper for the labour court to order the claim in full plus interest at the rate of 12 percent. The unnatural nature of the claim ought not have escaped the attention of the court.
9. I set aside Ext.P1 order. I also record the submission of the petitioners in this original petition that whatever amounts payable to the first respondent as remuneration coming out of Exts.P1 and P2, will be paid to her in addition to the amount which has already been paid (as a pre-condition for stay). The petitioners' rights, if any, for resorting to an adjudication are also not foreclosed.
The Original Petition is allowed as above. No order as to costs.