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Mohd. Akil Vs. R.K. Baweja, Etc. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 922 of 1970
Judge
Reported in[1982(45)FLR363]; ILR1983Delhi814; 1983RLR300
ActsIndustrial Disputes Act, 1947 - Sections 33C(2)
AppellantMohd. Akil
RespondentR.K. Baweja, Etc.
Advocates: S. Mukherjee and; L.D. Adlakha, Advs
Cases ReferredKays Construction Company (P) Ltd. v. State of Uttar Pradesh and
Excerpt:
the industrial disputes act - 1947 -- whether a petty blacksmith working by himself could be described as an 'industry' within the meaning of the act so as to give jurisdiction to the labour court? --section 33c(2) as amended in 1964, empowering labour court to compute money due also in addition to computing benefits -- notification issued by the government specified the labour court for computing benefits only, whether labour court had jurisdiction to determine amount of money due?; accepting the petition,; 1. applying the test laid down by the supreme court in bangalore water supply and sewerage board v. a. aajappa and ors., air 1978 s.c. 548, a petty blacksmith's shop cannot be considered a systematic activity organized by co-operation between the employeer and employee so as to..........did work at the shop of the respondent from his childhood for 7 or 8 years but only to learn the work of a blacksmith. the petitioner used to pay some money for the subsistence of the respondent whenever the pupil needed. but subsequently, when he refused to pay even this amount, a dispute arose which was referred to the panchas but the labour court rejected the case of the respondent that in pursuance of a decision of the panchayat rs. 650 were paid to him on 18-9-1967. the learned labour court found that the relationship of employer and employee did not subsist between them when the respondent joined the petitioner, but it seems that subsequently the petitioner started treating him as his employee. it held that the petitioner was bound by the settlement and under section 33c(2) of.....
Judgment:

M.L. Jain, J.

(1) The respondent Farid Ahmed alleged that he had been in the employment of Haji Mohd. Akil, a blacksmith from 1957. For the first three years he was paid at Rs. 45 p.m. and then at Rs. 90 per month. The petitioner paid him in all-an amount of Rs. 1036 and there remained a balance of Rs. 6524 of unpaid wages for the period ending 31-5-1967. When the respondent demanded this money in June, 1967, the petitioner terminated his service on or about 10-6-1967 without any show cause notice. He filed a claim on 19-10-1967 before the Conciliation Officer alleging wrongful termination of service. The case was discussed and the parties arrived on 28-11-1967 at the following agreement : (i) The management agree to re-instate the workman with immediate effect on the existing terms and conditions. (ii) 50% wages shall be paid for the period workman remained unemployed. (iii) The workman will be paid earned wages if due at the existing terms.

(2) On the basis of this settlement the respondent made an applications on 26-12-1967 and 6-1-1969 to the Labour Court under Section 33(2) of-the Industrial Disputes Act, 1947 that the reported for duty, but the petitioner did not permit him to resume duty and he' was entitled to recover certain amounts in pursuance of the aforesaid settlement.

(3) The petitioner in his reply before the Labour Court denied that the applicant was ever in his employment. He also repudiated the conciliation settlement as was alleged. The learned Labour Court found that some disputes arose between the parties as a result of which the matter was referred to a Panchayat in the first instance. Farid Ahmed made a statement before the Panchayat on 2-8-1967 that formerly he was being paid 12 annas per day. Thereafter it was increased to Re. 1 per day and then again his wages were increased. During the course of the alleged employment he did leave his service several times and went to his village, and also took service of some other person during that period. On 9-8-1967 Haji Mohd. Akil stated before the Panchayat that the respondent had engaged him for the purpose of turning the wheel at his workshop on 10 annas per day. The father of the respondent however, requested him to train him as a blacksmith and for that purpose he allowed him to work at his shop. He also gave him meals. There was no agreement for payment of any wages, though whenever the respondent required some money, he used to pay. The Labour Court, thereforee, found that the applicant did work at the shop of the respondent from his childhood for 7 or 8 years but only to learn the work of a blacksmith. The petitioner used to pay some money for the subsistence of the respondent whenever the pupil needed. But subsequently, when he refused to pay even this amount, a dispute arose which was referred to the Panchas but the Labour Court rejected the case of the respondent that in pursuance of a decision of the Panchayat Rs. 650 were paid to him on 18-9-1967. The learned Labour Court found that the relationship of employer and employee did not subsist between them when the respondent joined the petitioner, but it seems that subsequently the petitioner started treating him as his employee. It held that the petitioner was bound by the settlement and under section 33C(2) of the Industrial Disputes Act directed payment: (1) From 29-11-1967 to 31-12-1968 Rs. 1170 @ Rs. 90 p.m. (2) From 1-6-1967 to 9-6-1967 Rs. 27 @ Rs. 90 p.m. (3) From 10-6-1967 to 28-11-1967 @ Rs. 45 p.m. Rs. 253. 50 Total Rs. 1450-50

(4) The order of the Labour Court is dated 25-4-1970, which is challenged in this writ petition filed on 19-8-1970.

(5) An order was made by Kirpal J. on 8-5-1981 allowing the writ petition ex-parte. This order was, recalled on 9-2-1982. Hence, the matter has been put up for rehearing before me.

(6) The very first question that stares one in the face in this petition is whether the petitioner can be described as an 'industry' so as to give jurisdiction to the Labour Court. In his reply the petitioner had stated before the Labour Court on 9-4-1969 that he was a petty blackmith and has been working by himself only. He has no establishment or servants. His place of work has also been resumed by the Government for the last 4 months. In his replication of 16-4-1969 the respondent did not deny that the petitioner runs a shop of blacksmith. In his present petition, the petitioner stated that he is a petty blacksmith with no establishment and repairs the iron utensils in a khoka shop earlier in Jama Masjid area and later on in Jhandewalan. There is no counter affidavit to the writ petition. It appears to me that there is no reason to disbelieve that the petitioner is a petty blacksmith working by himself.

(7) In Bangalore Water Supply ond Sewerage Board v. A. Rajappa and others, : (1978)ILLJ349SC the Supreme Court held that 'industry' means, (i) systemaic activity, (ii) organized by co-operation between employer and employee, (iii) for the production and/or distribution of goods and services calculated to satisfy human wants. Applying this test. it appears to me that the petitioner's shop cannot be considered a systematic activity organized by co-operation between the employer and employee. This is placed beyond doubt by Kishan Iyer J. in para 111:

'THEimage of industry or even quasi-industry is one of a plurality of workman, not an isolated or single little assistant or attendant. The latter category is more or less like personal avocation for livelihood taking some paid or Dart time from another. The whole purpose of Industrial Disputes Act is to focus on resolution of industrial disputes and regulation of industrial relations and not to meddle with every little carpenter in a village or backwith in a town who sits with his son or assistant to work for the customers who treck in. 'The ordinary spectacle of a cobbler and ihs assistant or a cycle repairer with a helper, we come across in the payments of cities and towns, repies the idea of industry and industrial dispute. For this reason, which applies all along the line. to small professions, petty handicraftsmen, domestic servants and the like, the solicitor or doctor or rural engineer, even like the butcher. the baker and the candle-stick maker, with an assistant or without does not fall within the definition of industry.'

(8) It is clear from the above observations that the Industrial Disputes Act shall not apply to blacksmith in town who sits with his son or an assistant to work. The case of the petitioner is squarely covered by these observations.

(9) Mr. Adlakha objected that this is a new point depending upon evidence and cannot be allowed to be raised here at this stage. I do not agree because it is the basic question of law and could be raised only after the Judgment in Bangalore Water Supply (supra) was delivered and has got to be allowed to be raised. Though the original record could not be called because it was consumed by fire, it is obvious from the application made by the petitioner and other papers of the case which are available on the record that the petitioner was a petty blacksmith. Mr. Adlakha next urged that the petitioner's workshop was registered under the Shops and' Establishments Act and moreover there was a valid settlement between the parties which cannot be allowed to be undone. Both these submissions are without force because neither of them can confer jurisdiction on the Labour Court.

(10) Mr. Mukherjee, learned counsel for the petitioner, submitted that there was no employer-employee relationship between the parties because the Labour Court itself has found that to begin with the respondent started as a pupil. But this argument cannot' prevail because the Labour Court has held that the petitioner started treating the respondent as an employee with effect from 31-5-1967 that will give jurisdiction to the Labour Court.

(11) The third objection as to jurisdiction raised by Mr. Mukherejee is that Labour Court of Shri Baweja was not specified for determining the amount of money recoverable by the workman but for determining the quantum of benefits that any workman maybe entitled to receive from his employer and which is capable of being computed in terms of money, vide the relevant Government notification of 10-5-1968. The Labour Court was not specified for computing any money which it has but could not have done. The argument runs like this Section 33C(2) as initially enacted empowered the Government to specify a Labour Court for computing benefits only. It was by an amendment made in 1964 that this power was extended to specify a court for computing money, as well. Yet in the notification of 1968, the Government choise to specify the Labour Court of Shri Baweja for the purpose of computing benefits and not money. Mr. Adlakha, on the other hand, contended that even before the amendment of Section 33C(2) of the Industrial Disputes Act, in 1964 the word 'benefit' included the monetary benefits and, thereforee, even if money was not specifically mentioned in the notification, it made no difference and the Labour Court had jurisdiction to compute money wages of the workman. He relied upon Central Bank of India Ltd. v. P.S. Rajagopalan, etc. : (1963)IILLJ89SC . This judgment was dated 19-4-1963. But in Kays Construction Company (P) Ltd. v. State of Uttar Pradesh and others, 1965 11 Lij 429 decided on 26-11-1964, it was held that benefit contemplated in sub-section (2) of Section 33C is not money due, but some advantage or perquisite which can be reckoned in terms of money. Though Rajagopalan (supra) was not referred to in this case yet being later in time, it must prevail. I thereforee uphold the contention of Mr. Mukherjee that the nofication as issued, did not confer jurisdiction on the Labour Court to determine the amount of money due.

(12) I, thereforee, accept this petition and quash the impugned -order of the Labour Court dated 25-4-1970. In the circumstances, there shall be no order as to costs.


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