Delhi District Court
The vs Director on 21 March, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
LCA NO. 341/2006
BETWEEN
SMT. EKTA LASKAR W/O SH. HEMANT LASKAR, ANNEXE SECOND
FLOOR, 24, BANARSI DASS ESTATE, TIMARPUR, DELHI-54.
AND
MANAGEMENT OF :
1. M/S HINDUSTAN THOMPSON ASSOCATES LIMITED, REGISTERED
OFFICE AT LAXMI BUILDING, SIR P.M. ROAD, P.O. BOX 541,
MUMBAI. THROUGH ITS MANAGING DIRECTOR /PRESIDENT.
2. M/S INDIAN MARKET RESEARCH BUREAU (IMRB), DIVISION OF
HINDUSTAN THOMPSON ASSOCIATES LTD. 209-A, MASJID
MOTH, II, N.D.S.E. PART -II, NEW DELHI-49. THROUGH ITS VICE
PRESIDING/GENERAL MANAGER.
ORDER
1. The applicant filed the present application under section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), pleading therein the following facts :
She was appointed as Assistant Field Executive on probation for one year with respondent no.2 on 26.7.1991 with direction to report for duty on 1.8.91. She worked honestly and diligently. There was no complaint against her. The management withheld her wages for April 2001 to October 2001. Respondents were not allowing her to enter the office premises. She sent a demand notice dated 29.10.2001 vide which she 1 demanded her withheld wages and further that she should not be stopped from preforming her normal duties. Management neither replied her notice nor released her withheld wages. She has claimed an amount of Rs.10,25,550/- out of which Rs.1,13,050 is on account of wages from April 2001 to October 2001, Rs.96,900 on account of earned leave w.e.f. 1.8.1991 to october 2001, Rs.5,67,000/- on account of overtime allowance, Rs.35,000/- is towards incentive from April 2001 to October 2001, Rs.1,65,150 on account of gratuity from 1991 to 2001 and Rs.48,450/- on account of bonus for the period 1999-2001. She filed a suit for permanent injunction in which an application U/s 33 (1) (2) of the CPC was dismissed by LD. Civil Judge vide his order dated 17.9.2001 and an appeal is pending in the court of Senior Civil Judge.
2. Respondent contested her claim vide their written statement. It is pleaded that applicant is not a workman as defined U/s 2 (s) of the Act as she was working in the management as manager and her work and duties were supervisory in nature. It is further submitted that a civil suit on the same facts and circumstances was dismissed by the court of Civil Judge vide his order dated 1.10.2002 and it is stated that it is not open to the applicant to raise the same issue again in these proceedings. It is denied that there is unlawful termination of her services. It is submitted that she joined the services of the respondent in 1991 after accepting the terms and service conditions in her appointment letter dated 26.7.1991. It is further pleaded that clause 6 of her appointment letter specifically provides for termination. It is submitted that services of the applicant were terminated 2 in accordance with clause 6 of the appointment letter w.e.f. 19.4.2001. It is further stated that all her legal dues were settled within the due date at serial no.I, II, IV and V as per company's rules and regulations. It is further stated that claim against items no. III is not applicable to her being a management staff. Claim against VI is denied as no incentive is paid. It is further stated that no financial benefit is due and payable after 19.4.2001 as she no longer remained in the service of the management thereafter. It is also stated that her claim is barred by limitation as well as resjudicata as her claim for permanent injunction was dismissed by the Civil Judge and the appeal has also been dismissed.
3. Following issues were framed by my Ld. Predecessor on 7.8.2003:
1. To what amount workman is entitled to?
2. Relief.
4. Applicant examined himself as WW1 and management examined Hemant Kumar Bansal as MW-1 and thereafter parties closed their evidence before my Ld. Predecessor.
Issue No. 1 :
5. Respondents have in the very first paragraph of their written statement took an objection that the claim is not maintainable as the applicant is not a 'workman' as defined in the Act. 3
6. 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 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.
7. It is consistently held by the Courts that this court cannot adjudicate upon the status of the claimant if disputed in proceedings U/s 33 C (2) as the same are in the nature of execution and not adjudicatory as is evident from the following judgments.
8. 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 : 4
"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 by competent Court in a reference..."
(Emphasis mine)
9. 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 5 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 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 6 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 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)
10. 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 7 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 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 8 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 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)
11. 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 9 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."
12. 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 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 10 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 second respondent has to set aside as without jurisdiction."
13. 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) 11 to compute the benefits. Therefore, on that ground also the rejection of the petition cannot be said to be improper. (Emphasis mine)
2. It is therefore clear that once status of the applicant is disputed, the Court cannot proceed U/s 33 C (2) of the Act which reads as follows :
Section 33 C (2) :
"Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules tht may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government (within a period not exceeding three months).
[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]"
3. This provision presumes that relationship of employer and employee exists between the parties. The same cannot be adjudicated in these proceedings.
12
4. During the course of arguments AR for management placed on record an award of Labour Court No.XVI. I have seen the same. Vide the said award the Labour Court had adjudicated upon the status of the applicant while answering the Reference made to by Secretary Labour to the said court to the effect whether termination of services of the claimant by the management is illegal/unjustifiable. Ld. Court after appriasal of the evidence brought on record by the parties held that the applicant is not a workman.
5. In proceedings U/s 33 C (2) the status of the workman could not have been determined but as is clear from the award of Labour Court XVI her status has already been determined by the appropriate court and she is held not to be a workman. So she cannot invoke Section 33 C (2).
6. As such, she is not entitled to any relief prayed for. Ordered accordingly. File be consigned to record room. Announced in the open PRESIDING OFFICER Court on 21.03.2007 LABOUR COURT NO. XIII KARKARDOOMA COURTS, DELHI 13