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Tukaram Kisan Nanaware Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 819 of 1980
Judge
Reported in1985(2)BomCR264; (1984)86BOMLR502; 1984MhLJ924
ActsIndustrial Disputes Act, 1947 - Sections 33C(2)
AppellantTukaram Kisan Nanaware
RespondentState of Maharashtra and anr.
Appellant AdvocateP.D. Kamerkar, Adv.
Respondent AdvocateN.D. Bhatkar, A.G.P., for respondent No. 1
DispositionAppeal allowed
Excerpt:
.....33c(2) - scope and ambit of -- workman paid salary of mukadam when in substance he is performing work and duties of a clerk -- workman's claim for difference in emoluments between salary of mukadam and that of a clerk whether outside ambit of section 33c (2).;when in substance, the applicant, all throughout the relevant period is proved to be performing and carrying out in fact work and duties of a clerk which are unlike that of a mukadam, his application under section 33c(2) of the industrial disputes act, 1947 claiming the difference in emoluments between the salary of a mukadam which he was being paid and the salary of a clerk to which he was entitled does not fall outside the ambit of section 33c (2). what is important and relevant is not any technical distinction or the..........the diesel and credit memos of the diesel purchased on credit.3. though, aforesaid was in fact the work and duties performed by the petitioner all throughout the relevant period and though this work was of a clerk, the petitioner was paid not the salary of a clerk in whose purview the work fell but only the salary of a mukadam in whose purview the aforesaid work and duties or in any event most of them would not fall. the petitioner, therefore, filed application under section 33-c(2) of the industrial disputes act (hereinafter the act) inter alia claiming the difference in emoluments between the salary of a mukadam which he was being paid and the salary of a clerk to which he was entitled to. to this application several defences were raised.4. the labour court held that the first.....
Judgment:

S.C. Pratap, J.

1. This petition arises out of proceedings under section 33-C(2) of the Industrial Disputes Act.

2. The petitioner is employed in the establishment of the Mula Canal Division of respondent No. 1 State Government. He was recruited as a mukadam on or about 21st February, 1964. However, though he was recruited as mukadam, the actual work that he carried out since inception of his recruitment as mukadam was as follows :---

He used to record the attendance of the workers in the Muster-Roll. He would then send the daily report of the work done by the mazdoors to his superiors. He maintained the density register and registers of Nominal Moisture Content and Optimum Moisture Contents. At the end of each month he had to prepare the pay register. It was his function to receive leave application of the workers and submit them to the superiors for sanction. He maintained the Weight Register and records of permeability test from time to time. He also maintained the register under the Employment Guarantee Scheme. He also maintained the register of distribution of diesel oil to the drivers and prepared indent cards for the diesel and credit memos of the diesel purchased on credit.

3. Though, aforesaid was in fact the work and duties performed by the petitioner all throughout the relevant period and though this work was of a clerk, the petitioner was paid not the salary of a clerk in whose purview the work fell but only the salary of a mukadam in whose purview the aforesaid work and duties or in any event most of them would not fall. The petitioner, therefore, filed application under section 33-C(2) of the Industrial Disputes Act (hereinafter the Act) inter alia claiming the difference in emoluments between the salary of a mukadam which he was being paid and the salary of a clerk to which he was entitled to. To this application several defences were raised.

4. The Labour Court held that the first respondent was an industry. It also held that the petitioner's application was maintainable. It also held that the petitioner has done the work of karkun or clerk during the relevant period. Despite these findings petitioner's application was rejected as falling outside the ambit of section 33-C(2) of the Act. Hence this petition.

5. Hearing rival submission of the respective Counsel Mr. P.D. Kamerkar for the petitioner and Mr. N.D. Bhatkar, learned Assistant Government Pleader for respondent No. 1, and going through the impugned order I am unable to agree with the reasoning and conclusion depriving the petitioner workman of the difference in the emoluments claimed by him. Unchallenged position is that the petitioner has right since the inception of his recruitment been performing several duties which are preliminary the duties of clerk and unlike the duties of a mukadam. It is also a categorical finding of the Labour Court that the petitioner has been in fact performing all these duties. However, on the ground that the scope of section 33-C(2) of the Act is limited, the petitioner was denied the relief to which he was otherwise entitled to. I do not see any difficulty in bringing the relief claimed by the petitioner within the four corners of section 33-C(2) of the Act. Though proceedings under section 33-C(2) of the Act are of a limited nature, nothing beyond this limited nature is asked for here. Claim of the petitioner that he has been doing the work and duties of a clerk has been accepted. There is also no dispute on the quantum of wages of clerk. If so, it would not be just and fair to deprive the workman of the wages legitimately due to him for duties to be performed by him consistently and continuously for the entire relevant period. In a matter such as this, what is important and relevant is not any technical distinction or the nomenclature attached to the workman but the substance of the matter. And when one turns to the substance, one finds the case of the petitioner unanswerable. When in substance he has been all throughout the relevant period performing and carrying out duties of a clerk, he was in law entitled to the wages of a clerk.

6. As observed by the Supreme Court in Central Bank of India v. S. Kumar Shaw, Labour Law Journal, 90, if a workman though not called a special assistant carries out certain duties and functions requiring greater skill and responsibilities over and above routine duties and function of a workman, such workman would be entitled to special allowance. The Supreme Court further held that the fact that the workman there was not called a special assistant does not make any difference. In the same ruling contention that such an application was not maintainable under section 33-C(2) of the Act was also rejected. The crux on the dispute herein is covered by the ratio of the Supreme Court ruling supra.

7. Mr. Bhatkar invited this Court's attention to a ruling of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. The Workman and another, : [1975]1SCR153 which holds that proceeding under section 33-C(2) of the Act is a proceeding, generally in the nature of an execution proceeding. As already indicated, relief sought for herein, and which this Court is inclined to grant, does not fall outside the ambit of section 33-C(2) of the Act.

8. In the result, this petition succeeds and the same is allowed. The impugned order dated 8th November 1978 dismissing the petitioner's application under section 33-C(2) of the Act is set aside. The said application is granted. The matter will now go back to the Labour Court only for the purpose of computing the difference between the wages of a mukadam and that of a clerk and then for passing and award accordingly in favour of the petitioner workman.

9. Rule is made absolute in terms aforesaid. In the circumstances of the case there will be no order as to costs.


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