Bombay High Court
Dilip Singh Parocha And Ors. vs Mahalaxmi Co-Op. Housing Society Ltd. ... on 16 August, 2002
Equivalent citations: 2002(6)BOMCR581, (2002)1BOMLR732, [2003(96)FLR1114], 2002(4)MHLJ554
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. The petitioners are aggrieved by the judgment and order of the Labour Court dated 13th November 1995 in application under Section 33-C(2) of the Industrial Disputes Act, 1947 filed by the petitioners praying for determination and computation of the monies due from the respondent No. 1 society. According to the petitioners, they were entitled to get difference in minimum wages payable under the Minimum wages Act, 1948 and the actual wages paid by the respondent No. 1 society, wages in lieu of weekly offs, leave wages, national paid holidays and overtime wages. The application filed by the petitioners reflect that they are claiming the aforesaid monies due from 1961 onwards in their application dated June 1987. The petitioners appeared to have dared to file such a stale claim for the period from 1961 onwards as there is no statutory limitation under Section 33-C(2) of the Industrial Disputes Act. From such applications the employers must guard themselves and must preserve the account books and every piece of record, may be for a period of 50 years as any of their employees would wake up and file such claims as there is no limitation under the aforesaid provision.
2. The respondent No. 1 society appeared before the Labour Court and filed its written statement contesting the claim of the petitioners on the following grounds:--
(a) That the Co-operative Housing Society is not an industry. (b) That the Co-operative Housing Society is not a commercial establishment within the meaning of Section 2(4) of the Bombay Shops and Establishments Act. (c) That there is no employer employee relationship between the applications and the opponent Housing Society; (d) That the Applicants are/was the independent contractors engaged in the work of cleaning and sweeping on sharing basis. Further the applicant No. 1 was such a contractor in the year 1974 but himself terminated the said contract. (e) That since the Co-operative Housing society is neither a commercial establishment nor an industry the provisions of Industrial Disputes Act as well as Minimum Wages Act are not applicable to it. (f) That since the Co-operative Housing Society is not a commercial establishment or an industry, this Hon'ble Court has no jurisdiction to entertain and try the present application. (g) That in sum and substance, the applicants are asking for difference of Minimum Wages but since, the Minimum Wages Act in a Special stature, this Court does not have jurisdiction to try and entertain an application under Section 33-C(2) of the I.D. Act. The Labour Court framed the points for determination as under :--
1. Does the applicant prove that they are entitled for the relief as prayed for;
2. What order?
Additional Issues:--
1A. Does the opponent prove that the Opponent is not an industry? 1B. Does the applicant prove that they are the workmen of the opponent?
On the basis of the pleadings and the oral and documentary evidence, the Labour Court held that the petitioners did not prove that they were entitled for the reliefs as prayed for and dismissed the application, without answering the other issues which obviously according to the Labour Court did not survive. The Labour Court dismissed the application only on the ground of jurisdiction as the respondent society had raised an issue that it was not an industry as contemplated under Section 2(j) of the I.D. Act and, therefore, the application filed by the petitioners under Section 33-C(2) of the I.D. Act was not maintainable and that the Court had no jurisdiction to go into any other issues.
3. Shri Patel, the learned Advocate for the petitioners submits that the Labour Court has committed a grave error of law by throwing the application at the threshold of the proceedings without deciding the question whether the respondent society was or was not an industry under Section 2(j) of the I.D. Act. Shri Patel submits that the Labour Court accepted the contention of the respondent society that according to it was not an industry and, therefore, whether it was an industry or not was not the issue which could be decided by the Labour Court under Section 33-C(2) of the Act. Shri Patel submits that the Labour Court ought to have decided the question whether the respondent was an industry or not and after holding that it was not an industry, in that case, it ought to have dismissed the application as not maintainable.
4. According to Shri Patel, merely because the respondent whispered or raised a contention that the application was not maintainable as it was not an industry will certainly not oust the jurisdiction of the Labour Court under Section 33-C(2) of the I.D. Act. Shri Patel has relied upon the following judgments :--
i) Ramakrishna Ramnath v. The State of Maharashtra and Ors., 1975 Mh.LJ. 212 = 1975 Lab.I.C. 1561; ii) Namer Ali Choudhery and Ors. and Central Inland Water Transport Corporation Ltd. and Anr., 1978 I LLJ 167 Shri Patel submits that the question whether the respondent society was an industry or not was an incidental question, which fall within the parameters of the jurisdiction under Section 33-C(2) of the I.D. Act. Shri Patel submitted that the issues like whether the applicants are or were not workmen or whether the employer was or was not an industry or whether the act of the employer amounts to lock out or closure and whether the workmen are entitled to get retrenchment compensation under Section 25F of the I.D. Act can be decided by the trial Court under the aforesaid provision. What cannot be decided is the legality or otherwise of the aforesaid issues. The workman cannot call upon the Labour Court under Section 33-C(2) of the Act to decide that his retrenchment was illegal or the employer had declared an illegal lock out and, therefore, full wages should be computed and awarded. The Labour Court cannot enter into that controversy under the said provisions. Shri Patel has a serious grievance against the judgment of the Labour Court that the Labour Court has ousted its jurisdiction by merely accepting the contention of the society that it was not an industry. Shri Patel submits that the Labour Court ought to have decided whether it was an industry or not and, thereafter, ought to have proceeded further to pass appropriate orders.
4-A. Shri Kuldeep Singh, the learned Advocate appearing for the respondent society supports the judgment of the Labour Court and submits that the question whether the respondent society was or was not an industry was not an incidental question but was a foundational one which goes to the root of the jurisdiction of the Labour Court. According to Shri Singh the said question required investigation and full fledged adjudication under Section 10 of the Industrial Disputes Act. Such question, according to Shri Singh, cannot fall within the jurisdictional parameters of the executing Court under Section 33-C(2) of the I.D. Act. Shri Singh has relied upon the following judgments in support of his contentions.
i) Municipal Corporation of Delhi v. Ganesh Razak and Anr., 1995 I CLR 171 ii) Tarn and Ors. and Director, Social Welfare and Ors., 1998 II LLJ 632
5. In my opinion, the impugned judgment and order of the Labour Court cannot be sustained. The Labour Court has misunderstood the scope and jurisdiction under Section 33-C(2) of the Act to be extremely narrow, without any scope for deciding the issue such as whether the applicants are or are not the workmen or the employer is or is not an industry. All such questions or issues or contentions raised by the other side have to be decided by the Labour Court at the threshold and such applications cannot be dismissed merely at the whisper of the employer that the applicants are not the workmen or that the employer is not an industry. The Labour Court must decide the issue as to on what basis, the applicants could be held to be workmen or under what circumstances the employer cannot be termed as industry to be covered by the provisions of the I.D. Act. If finally, the Labour Court comes to the conclusion that the applicants do not fall within the definition of the workman or the employer is not an industry as defined under Section 2(j) of the Act, in that case, the Labour Court can take appropriate decision to proceed further with the application or to reject the application if both or either of the points are decided against the applicants. In the present case, the Labour Court has adopted a curious approach and has accepted the contention of the respondent society that the application was not maintainable and that the Labour Court has no jurisdiction because the respondent was not an industry. The Labour Court ought to have further probed into the matter to find out why the respondent society could not be called an industry in accordance with law. If the Labour Court had decided that question that the respondent society was not an industry on the basis of its activities and, thereafter, the Labour Court was justified in rejecting the application. But the Labour Court could not deny itself the jurisdiction which is legitimately vested under the provisions to determine and compute the money due from the employer. There is no doubt about the scope and parameters of the aforesaid provisions which is known as executing jurisdiction. The applicant has to establish that he has an existing right to invoke the said jurisdiction to claim money due from the employer. In the present case, the applicants have claimed difference in the wages actually paid and which they are alleging that they are entitled to get under the Minimum Wages Act. The aforesaid and all other claims are made on the basis of the averments made by the applicants that they have an existing right. Whether they have or they do not have the existing right will have to be gone into by the Labour Court on the basis of evidence and material adduced by both the parties. The applicants, however, could not be thrown on the threshold merely because the respondents raised a plea that it was not an industry. The Labour Court ought to have further decided it as an incidental question whether the respondent society was an industry or was not an industry. The judgment of the Supreme Court in the case of Municipal Corporation of Delhi (supra), the facts were totally different, the applicants in that case claimed equal wages for equal work on the basis that the claimants were also doing the same work which was being done by the regular employees. They filed an application under Section 33-C(2) of the I.D. Act to claim the difference and computation of the arrears. The Supreme Court has held that such application under Section 33-C(2) was not maintainable. In the said decision of the Supreme Court, the claimants had no existing right to claim the wages which they were claiming. Their claim was to be adjudicated, however, before getting their claim adjudicated, they claimed wages on par with the regular employees. In that case, the claim of the daily rated casual workers were not settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The said judgment, therefore, does not help Shri Singh to oust the jurisdiction of the Labour Court on the threshold of the application.
6. Similarly the other judgment of the Supreme Court in Tara and Ors. (supra) does not also help Shri Singh. Even in that case, there was no prior adjudication of the status and nature of the employment of the claimants who moved an application under Section 33-C(2) for computation of wages. Following the judgment of the Municipal Corporation of Delhi (supra), the Supreme Court dismissed the special leave petition filed by the workmen.
7. Shri Patel has rightly relied upon the judgment of the Division Bench of this Court in the case of Ramkrishna Ramnath v. State of Maharashtra (supra). In a very exhaustive and analytical manner, the Division Bench has held that the incidental question can always be decided under Section 33-C(2) of the Act. The Division Bench has held that the jurisdiction of the Labour Court cannot be ousted merely by disputing the status of the person invoking its jurisdiction. Para 7 of the said judgment sets out the scope and parameters of Section 33-C(2) of the I.D. Act, which is reproduced hereinbelow :--
"7. The Punjab and the Delhi High Courts in the decisions relied upon by the petitioner have taken a view that the Labour Court cannot be go into the question whether a person is a workman or not. In Sher Singh Verma's case (1967) 2 Lab. LJ. 682 (Punj), the learned Single Judge referred to Section 33-C(2) and observed as follows :--
"The reading of the section shows that it is only where a workman is entitled to certain benefits that the Labour Court can compute them. But, where the existence of relationship of workman and employer is itself in dispute, the matter would fall under Section 10 of the Industrial Disputes Act and consequently, the remedy available to an employee would be to raise an industrial dispute.
The Labour Court under Section 33-C(2) is primarily given power to execute or implement his existing individual right and it may therefore, be necessary in some cases to determine such right. Such determination, however, must be confined to matters incidental to the main issue, namely, the computation of benefits to which workman is entitled. The question whether the claimant is a workman at all or not would not be incidental to the determination of the main question."
The learned Judge has taken the view that if Section 33-C(2) is so construed as to enable the Labour Court to go into the question, whether the claimant is a workman at all or not, could fall under Section 33-C(2) then the provisions of Section 10 would, at least to a considerable extent, be reduced to silence. With respect we are unable to agree with the view taken by the learned Judge. By enacting Section 33-C(2), the Legislature wanted to provide for a speedy remedy to an individual workman in working of his existing rights. If on a mere raising of the objection of the employer that the employee who has made an application under Section 33-C(2) is not a workman, the Labour Court is to be divested of the jurisdiction vested in it under that provision the very object of enacting sec. 33-C(2) could be frustrated by the employer. While it is true that the scope of Section 33-C(2) could not be so widened as to enable the Labour Court to decide the dispute which can legitimately be described as industrial dispute between the employer and the employee, it must be borne in mind that the jurisdiction of the Labour Court which functions as an executing Court cannot be ousted merely by disputing the status of the person invoking its jurisdiction. Since the question whether a person is a workman or not relates to the jurisdiction of the Labour Court, as already pointed out by us, it must be open to that Court to decide the facts on which it gets the jurisdiction or the jurisdiction is ousted. In the other case in Tek Chand v. The Labour Court Delhi, (1973) 1 Lab.LJ. 470 (Delhi), a learned single Judge of the Delhi High Court following the decision in Sher Singh Verma's case (1967) 2 Lab.LJ. 682 (Punj) has observed that where the very status of the petitioner was in dispute, it could not be urged that it was open to the Labour Court to adjudicate upon the question of the petitioner's status as a workman. However, in a later decision, a Division Bench of same High Court has taken a contrary view and did not follow the decision in Shersingh's case and the decision in Tek Chand's case was overruled."
8. The Division Bench has also followed another judgment of the Supreme Court in the case of R.B. Bansilal Abirchand Mills Co., 1972 LIC 285 where the question arose whether it was an illegal lay off or closure. It was argued on behalf of the employer that question could not be decided under Section 33-C(2) of the I.D. Act. The Supreme Court negatived the said contention and held that it was an incidental question and, therefore, it could be decided under the said provision. The Division Bench has taken the stock of the decisions of the Supreme Court in the following para 11:--
"..........The decision, therefore, is clearly an authority for the proposition that where the claim is founded on the statutory provisions such claim is contested on the ground that there was no retrenchment or that there was no closure, then merely on such a plea the jurisdiction of the Labour Court cannot be ousted and the Labour Court was competent to go into the question firstly, whether there was a retrenchment or not or closure or not; and in case finding was in favour of the employee, then to proceed further to compute the benefit in terms of rights given in Chapter V-A of the Act. The present case falls squarely within the dictum of the Supreme Court in R.B. Bansilal Abirchand Mitts Co., 1972 Lab.I.C. 285. The whole case of the employee is that there had been a closure and it is the benefit to which she is entitled under the provisions of Section 25FFF that she wants to be computed. The Labour Court in such circumstances would clearly have jurisdiction to go into the question of the closure the factum of which does not now seem to be disputed. The question whether there was closure or not, therefore, does not arise. The claim which then survives is merely one for computation, if the employee proves her entitlement or title to the benefit, for which she relies on the statutory provisions. We may refer to a decision of the Supreme Court in Ramkrishna Ramnath v. The Presiding Officer Labour Court, Nagpur, (1970) 2 Lab.LJ. 306 = 1973 Lab.I.C. 57, where the employees had made a claim for retrenchment compensation for some period and those claims were contested on the ground that the claimants were not employees but independent contractors and that there was closure to attract the provisions of Section 25FFF of the Act and that the dispute could not be referred to the Labour Court. It does not appear that the challenge which is now made, viz., that the claimant was not a workman was raised in that case. The Labour Court allowed the claims of all the applicants barring three and held that they were entitled to compensation under the provision to Section 25FFF and pay in lieu of notice as per schedule attached to the order. The points agitated before the Supreme Court were (1) the disputes which were referred to the Labour Court fell within the jurisdiction of an Industrial Tribunal. The jurisdiction under Section 33-C(2) was a limited one and could not embrace a dispute of the nature in the case which could only fall under Section 10 of the Act; (2) the issue raised in each case was a fundamental one not limited to mere computation of a benefit in respect of a right envisaged by Section 33-C (2), (3) There was really no closure of the appellant's business but only a lock out or a temporary stoppage of work not attracting the operation of Section 25FFF. The fourth question which was raised before the Supreme Court was that in order to entitle the applicant to the benefit of Section 25F it was obligatory on her to show that she had worked for 240 days in each year of service for which the claim was made. The Supreme Court held that the Labour Court had jurisdiction to make a preliminary enquiry as to whether there had been a closure of the business and the text of the notice made the determination of the question quite a simple affair. It was pointed out that the examination of the claim under Section 33-C(2) may in some cases have to be preceded by an enquiry into the existence of the right and a mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the Labour Court. On facts it was found that the employer had failed to show that the undertaking was closed down on account of the unavoidable circumstances beyond the control of the employer and as such he was liable to pay the compensation under the principal part of the Sub-section (1) of Section 25FFF of the Act. We are now informed that the petitioner had applied for the review of the finding that the closure was not covered by the provisions of Section 25F and the Supreme Court, has reviewed its finding and the operative finding in that case was that the closure fell within the provisions of Section 25FFF of the Act. That, however, was relevant only for the purposes of quantum of compensation and it would not change the basic finding that an application made for computation of the benefit under Section 25FFF could be enquired into by the Labour Court."
9. The law laid down by the Division Bench is still a good law, and, therefore, I have no hesitation in concluding that the impugned judgment and order of the Labour Court holding that it had no jurisdiction to entertain and try the application filed by the petitioners merely because the respondent society had raised an issue that it was not an industry, does not sustain. The impugned order is, therefore, quashed and set aside. Rule is made absolute with no orders as to costs. The matter is remanded back to the Labour Court for decision in accordance with law.
10. The Labour Court shall decide all the issues which arise in the process of determination and computation of the money claim made by the petitioners in accordance with law.