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[Cites 12, Cited by 0]

Delhi District Court

Application Was Filed By The vs Director on 12 January, 2007

                                               1

IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA
                COURTS:  SHAHDARA : DELHI

                                    LCA NO. 338/2006

BETWEEN
WORKMAN
SH. SHAAISTA BHATT
C/O  JANVADI GENERAL KAMGAR MAZDOOR,
UNION, E - 26, RAJA BAZAR (OLD QTRS),
BABA KHARAK SINGH MARG,
NEW DELHI ­ 110001

AND
MANAGEMENT OF
M/S ANDROMEDA MARKETING PVT. LTD.
E - 3, GREEN PARK EXTENSION,
NEW DELHI - 110016.



ORDER

1. Application was filed by the claimant under section 33­C(2) of the Industrial Disputes Act, 1947 (hereinafter called as Act) making therein the following averments :

2. She was employed on 02.01.2001 by the management. She was designated as 'Supervisor' but she was performing duties of clerical nature as an accountant. She was compelled to resign due to sexual harassment at working place by Sh. Anant Bawa, who was a senior manager. She has claimed an amount of Rs. LCA NO. 338/2006 2 60,500/­ from the management out of which Rs.8,500/­ is on account of earned wages for the month of April 2002, Rs. 35,000/­ on account of arrears of assured incentive from October 2001 to July 2002 @ Rs.3500/­ per month, Rs.3,000/­ on account of medical reimbursement, Rs.8,500/­ on account of bonus, Rs.4,500/­ on account of salary w.e.f. 25.06.2002 to 11.07.2002 and Rs.1,000/­ on account of petty cash expenses.

3. Management contested her claim vide its written statement pleading on the following averments:

4. Her claim is not maintainable section 33­C(2) of the Act as she is not at all a workman as defined under section 2(s) of the Act. She resigned voluntarily from her service and management has cleared all her dues. She has filed the present application just to extort money from the management. She was appointed as a Supervisor. The nature of her duties were to contact potential / existing customers in her capacity as Sales Executive Supervisor. She was supervising tele marketing executives and various departments of the management. She used to interview and recruit candidates for suitable positions in the company. She never performed any duty of clerical nature as an accountant as claimed by her. She resigned from the management on 05.02.2002 voluntarily. She was not LCA NO. 338/2006 3 compelled to resign as alleged. Dues payable to her at that time were computed at Rs.4440/­ which were sent to her vide pay order no. 675910 dated 27.08.2002, which she refused. The aforesaid amount consisted of her salary, medical reimbursement subject to submission of bills @ Rs.1200/­ per annum. She failed to produce any medical bills to claim medical reimbursement. Regarding bonus claimant was being paid ex gratia @ 8.33% subject to clause 20 of her appointment letter, so the same is not due.

5. In rejoinder claimant reiterated her averments made in the statement of claim and denied those made in the reply.

6. On the pleadings of the parties following issues were framed by my Ld predecessor vide his order dated 04.06.2003 :

1. To what amount, if any, workman is entitled to ?
2. Relief.

7. Applicant examined herself as WW1 and thereafter closed her evidence. Management examined Sh. Deepika Sur as MW1 and thereafter closed its evidence.

LCA NO. 338/2006 4

8. I have carefully perused the material available on record and have heard AR for the parties.

ISSUE NO. 1

9. Applicant has claimed to be a workman of the respondent whereas the respondent has disputed her status as a workman. Applicant has stated that she was discharging the duties of clerical nature whereas the respondent has stated that she was working as a Sales Executive Supervisor supervising telemarketing, interviewing and recruiting candidates for suitable positions in the company, conducting appraisals and advising the management regarding people related problems and further that she never performed any duties of clerical nature.

10. Hence in this case the very status of the applicant is disputed. It is disputed that she is a workman of the respondent management. Management has stated that she being not a workman cannot file the present claim under section 33­C (2) of the Act which are in the nature of execution proceedings. LCA NO. 338/2006 5

11. 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 be maintainable under Section 33C (2)."

12. The very foundation of the claim of the applicant is that she should be a workman of the respondent / management. In other words the relief prayed for by the applicant flows from her status as workman of the respondent. Hence for granting the relief prayed for by her, it is necessary to adjudicate upon the fact whether she was a workman of the respondent. The same can not be adjudicated under section 33C(2) of Act.

LCA NO. 338/2006 6

13. The present case was received in this court only after my Ld. predecessor had completed evidence of both sides and listed the case for final arguments.

14. It is well settled law, as is clear from the following judgments, that when the very status of the claimant or nature of his employment is disputed claim does not lie under section 33­C(2) of the Act.

15. In Tara & Others Vs. Director, Social Welfare and Others, (Supra) the Hon'ble Supreme Court has held that the 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 question of moving an application under section 33C(2) for computation of wages does not arise.

16. In case Smt. Pakkiyam v. Executive Engineer/C.N. Southern Railway, Salem & others 2002 (94) FLR 1207 the Kerala High Court observed as follows :

LCA NO. 338/2006 7

"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."

17. In the case of State of U.P. & Anr. vs. Brijpal Singh, 2005 LLR 1191 Hon'ble Apex Court observed as follows :

"The right to the money by a workman which is sought to be computed must be an existing one, e.g. which has already been adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the workman and his employer."

(Emphasis mine)

18. In the case of 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 the Industrial Dispute (Central) Rules, 1957 to decide the status of the claimant as workman arose for consideration. The Hon'ble High LCA NO. 338/2006 8 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 LCA NO. 338/2006 9 adjudicated upon the Labour Court in such proceedings on the 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 LCA NO. 338/2006 10 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."

19. In the case of 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 U/s33 C (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 33­C(2). Though the Labour Court may initially entertain the LCA NO. 338/2006 11 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 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 33­C(2) may be slightly wider than that of strict execution proceedings before LCA NO. 338/2006 12 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 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."

20. 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 provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer."

(Emphasis mine) LCA NO. 338/2006 13

21.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 as 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 arrogate to itself the functions of the Tribunal under Reference under section 10 of the Act. I quote the relevant observations :

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 LCA NO. 338/2006 14 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."

22. In view of the aforesaid judgments it is crystal clear that proceedings under section 33­C(2) of the Act are in the nature of execution proceedings and when the very status of the claimant being a workman is disputed the Court cannot adjudicate upon the status first and thereafter compute the benefits on that basis.

23. Learned AR for the workman has relied upon Central Bank Of India v. P. S. Rajgopalan Etc. 1964 Vol - III SCR 140. In this case the Hon'ble Apex Court has held that there is no period of limitation provided for adjudication under section 33­C(2) of the Act and further that the scope of section 33­C(2) is wider than that of section 33­C(1) and negated the contention that Section 33 C (2) of the Act postulates the existence of admitted right vested in workman and LCA NO. 338/2006 15 do not cover the case where the said right is disputed. This judgment is of no help to the applicant in this case as the facts are different.

24. When this court does not have jurisdiction to determine the very status of the claimant on which rests her claim for minimum wages, bonus, gratuity, etc., such claim cannot be adjudicated on merits without first adjudicating her status as workman which cannot be determined here. So this court cannot determine her claim on merits in the absence of any prior determination of her status as workman of the respondent.

25. In L.K.P. Merchant Financing Ltd. v. Government of NCT of Delhi & Ors. 2003 LLR 367 even in a Reference U/s 10 of the Act our own Hon'ble High Court directed :

"the Labour Court to frame a preliminary issue on the question as to whether or not the respondent no.2 is a workman and decide the same before deciding the dispute on merits." LCA NO. 338/2006 16

26. As such the claim is held to be not maintainable without prior adjudication upon her status being that of a workman by a court of competent jurisdiction. File be consigned to record room. 

Announced in the open                                   PRESIDING OFFICER
court today.                                         LABOUR COURT NO. XIII
Date : 12.01.2007                                  KARKARDOOMA COURTS
                                                                DELHI 




LCA NO. 338/2006