Delhi District Court
The vs Director on 2 May, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
LCA NO. 479/2006
BETWEEN
SH. SANJAY KUMAR THAKUR S/O SH. UMESH THAKUR C/O
RASHTRIYA GENERAL MAZDOOR UNION REGD. RAILWAY ROAD,
SAMAYPUR, DELHI-42.
AND
MANAGEMENT OF : M/S JASBIR SINGH RANA R/O HAZARI LAL
PUBLIC SCHOOL, VILLAGE KHERA GARHI, DELHI-82.
ORDER
1. The applicant filed the present application under section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), in which applicant has claimed an amount of Rs.2,64,000 from the management alleging therein that he did construction work at the house and godown of the proprietor of the respondent w.e.f. 1.10.2005 to 20.2.2006 at rate of Rs.200/- per day. He further alleged that his dues were Rs.28,000/- and the respondent paid him only Rs.4000/-. It is stated that balance of Rs.24,000/- is liable to be paid with 10 times penalty amounting to Rs.2,64,000/-.
2. Respondent contested his claim vide its written statement. It is stated that claimant never worked with the respondent and there existed no relationship of employer and employee between the parties. As such claim is not maintainable U/s 33 C (2) of the Act. It is denied that applicant did 1 construction work at the house of the respondent. It is denied that he was engaged for doing work of plaster and flooring from 1.10.2005 to 20.10.2006 @ Rs.200 per month. It is denied that respondent paid Rs.4000/- to him and balacne of Rs.24,000/- is due. It is stated that since respondent never engaged him for anywork, there is no question to make any payment to him.
3. Following preliminary issue needed adjudication before proceedings further :
1. Whether the claim is maintainable U/s 33 C (2) of the I.D. Act?
4. 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)."
It was also 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 merits of the status which is the foundation for making the claim for wages at 2 specified rates, the question of moving an application under section 33C(2) for computation of wages does not arise.
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 flow 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 (hereinafter referred to as Act in short) as is evident from the following judgments.
5. 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 :
"There is no document to prove his employment conclusively...The corporation denies relationship of master and servant on payment of wages... This controversy cannot be decided without evidence and is out-side the scope of section 33-C 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 33- C of the Industrial Disputes Act unless the question of his employment was adjudicated 3 by competent Court in a reference..."
(Emphasis mine)
6. In the case of Central Group and Others And Motiram S. Thakare 2005 - II - LLJ 492, Labour Court's jurisdiction under section 33-C(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 Court observed that Labour Court could not adjudicate upon the status of the claimant as a workman under section 33-C(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 4 Section 33-C(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 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 33-C(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 33-C(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 33-C(2) of the said Act. Besides, the Labour Court also erred in holding that such issues are incidental to the main issue under 5 Section 33-C(2). Hence, the impugned order cannot be sustained and is liable to be set aside, and the application under Section 33-
C(2) of the said Act is liable to be dismissed."
(Emphasis added)
7. In the case of South Central Railway, Secunderabad vs. Labour Court, Hyderabad, And Another 1983 FJR Vol-63 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 33-C(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 6 petitioner is a workman, it cannot go into that question, for, under section 33-C(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 33- C(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 7 a workman or not. Section 33-C(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."
(Emphasis mine)
8. 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."
9. 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 33-C(2) of the Act claiming 8 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 33-C(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. 33-C(2) inspite of the fact that the management has disputed the fact that the first respondent is not a workman, 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 33-C(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 9 second respondent has to set aside as without jurisdiction."
10. 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 pre-existing benefit or one flowing from a pre-existing right."
1. 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. (Emphasis mine)
2. Thus, the Courts have clearly stated that status of the applicant, if disputed, cannot be determined in proceedings U/s 33 C (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.
3. As such, claim is held to be not maintainable U/s 33 C (2) of the 10 Act without prior determination on the status of the claimant as workman of the respondent management.
4. Ordered accordingly. File be consigned to record room. Announced in the open PRESIDING OFFICER Court on 02.05.2007 LABOUR COURT NO. XIII KARKARDOOMA COURTS, DELHI 11