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Shri Tek Chand Vs. the Labour Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Judge
Reported in(1973)ILLJ470Del
AppellantShri Tek Chand
RespondentThe Labour Court and ors.
Cases ReferredOm Parkash Jhumman Lal v. Labour Court
Excerpt:
.....and the labour court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court, the labour court, like the executing court in execution proceedings governed by the code of civil procedure,,is competent under section 33c(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction'.it was further observed, 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..........preliminary objection and the management be permitted to amend and add the said objection in its written statement.2. the respondent no. 2 was allowed to amend the written statement. accordingly, respondent no. 2 filed amended written statement, annexure 'f' to the petition. the petitioner filed replication, annexure 'g', to the amended written statement of the respondent no. 2.3. on the pleadings of the parties, the labour court framed the following issues:(1) whether the applicant is a workman ?(2) whether application is not legally maintainable ?(3) whether the applicant is entitled to any of the benefits?4. the petitioner contends that by application dated 2nd september, 1971, annexure 'h', he prayed for amending issue no. 1 so as to place the onus on respondent no. 2. respondent.....
Judgment:

Prithivi Raj, J.

1. By this petition under Article 227 of the Constitution of India, the petitioner has impugned the order dated 5th October, 1971, Annexure T, passed by the Labour Court, Delhi, Respondent 1, whereby the Labour Court held that in view of the denial of management about the petitioner's status as a workman the claim of the petitioner could not be tried by the Labour Court for want of jurisdiction as the disputed question about the status of the petitioner as a workman could not be gone into by the Labour Court. The petitioner who was employed as bus driver by respondent No. 2 was placed under suspension from 22nd July, 1966 to 31st January, 1967, pending a domestic enquiry. For this period a sum of Rs. 763.32 was deducted by respondent No. 2 out of the wages of the petitioner. The petitioner filed an application dated the 12th February, '970, Annexure 'A', along with which he filed a copy of the statement showing the benefits to which he was entitled. Respondent No. 2 in its reply dated 16th April, 1970, Annexure 'C', amongst other grounds, contested the application on the ground that the claim of the petitioner was outside the scope of Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter to be called 'the Act') and as such the Labour Court was not competent to entertain the application. The petitioner filed replication, Annexure 'D', and averred that the application was maintainable. However, the management of respondent No. 2 by application dated 4th September, 1970, Annexure 'E', took objection to the jurisdiction of the Labour Court on the ground that the petitioner was not a workman as denned under Section 2(s) of the Act with a prayer that the objection be treated as preliminary objection and the management be permitted to amend and add the said objection in its written statement.

2. The respondent No. 2 was allowed to amend the written statement. Accordingly, respondent No. 2 filed amended written statement, Annexure 'F' to the petition. The petitioner filed replication, Annexure 'G', to the amended written statement of the respondent No. 2.

3. On the pleadings of the parties, the Labour Court framed the following issues:

(1) Whether the applicant is a workman ?

(2) Whether application is not legally maintainable ?

(3) Whether the applicant is entitled to any of the benefits?

4. The petitioner contends that by application dated 2nd September, 1971, Annexure 'H', he prayed for amending issue No. 1 so as to place the onus on respondent No. 2. Respondent No. 2, the petitioner contends, did not file any objection to the said application and the Labour Court ordered for hearing of the application on the 16th September, 1971, on which date the hearing was adjourned to 4th October, 1971. The petitioner further contends that on the said date arguments were heard on the application seeking amendment of the issue and that arguments in the main application, Annexure 'A', were not heard. The case, it is alleged by the petitioner, was fixed for 5th October, 1971, for pronouncing orders on application, Annexure 'H', but on the said date, the petitioner avers that not only his application dated 2nd September, 1971, Annexure 'H', was dismissed but also the main application, Annexure 'A', was dismissed by the impugned order, Annexure T, without giving any opportunity to the petitioner and his representative to argue the main application.

5. The impugned order has further been assailed on the ground that the Labour Court allowed amendment of the written statement filed by respondent No. 2 on payment of Rs. 10 as costs vide its order dated the 4th September, 1967, which costs were never paid either to the petitioner or his representative and as such the written statement filed on the 16th September, 1970, was neither maintainable nor the Labour Court would hear the objection taken in the amended written statement.

6. The petitioner accordingly prays that (i) the order dated the 5th October, 1971 Annexure T, be set aside, (ii) the written statement dated the 16th September, 1970, Annexure 'F', be expunged as costs were not paid and (iii) the application dated the 12th February, 1970, Annexure 'A', be remanded to the Labour Court for further hearing in accordance with law.

7. Respondent No. 2 has contested the present petition on a host of grounds and, amongst others, has contended that the petitioner does not answer the description of a 'workman' as defined in Section 2(s) of the Act and that determination of such an issue was beyond the jurisdiction of a Labour Court specified under Section 33C of the Act.

8. It would be relevant here to examine the provisions of Section 33C(2) of the Act. The said section is as follows:

(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 that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.

9. A perusal of the above section reveals that a workman can move a Labour Court by resorting to the provisions of the said section when he is entitled to certain benefits which are required to be computed or worked out only. In such an event the jurisdiction of the Labour Court can be invoked to compute in terms of money the benefits which a workman claims. However, resort to this section cannot be made by a person who is not a workman. In other words, if the status of an applicant (sic) for the Labour Court to grant relief under the aforesaid section as the provisions thereof envisage that the person making the application should be a workman entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and it is only when the question involved is as to what amount of money is due to such a workman or as to the amount at which any benefit to which a workman is entitled can be computed that the Labour Court can be called upon lo decide the matter and determine the amount due.

10. There is a catena of authorities in which the scope of Section 33C(2) of the Act had been considered and it would be relevant to examine a few of them.

11. In Sher Singh Verma v. Rup Chandra and Anr. 1965 D.L.T. 327, while dealing with the scope of Section 33C(2) of the Act it was observed, '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.'

12. In a case between East India Coal Co. Ltd. (by Chief Mining Engineer), Bararee Colliery, Dhanbad v. Rameshwar and Ors. 1968 1 L.L.J. 6, their Lordships of the Supreme Court observed, 'Since proceedings under Section 33C(2) are analogous to execution proceedings, and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court, the Labour Court, like the executing court in execution proceedings governed by the Code of Civil Procedure,, is competent under Section 33C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction'. It was further observed, '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.'

13. The principle deducible from the above cited Supreme Court authority is that it is the existing right which has already been adjudicated upon or provided for which alone can be computed by the Labour Court. In the instant case since the very status of the petitioner was in dispute it, thereforee, cannot be urged that it was open to the Labour Court to adjudicate upon the question of petitioner's status as a workman.

14. In Saran Motors v. E. Krishna Murti and Ors. C.W. 302-D of 1959 decided on 20th January, 1967 by K.S. Hegde, C.J., (as his Lordships then was) it was observed that the question whether respondent No. 4 in that case was a workman under the petitioner of not could not be gone into in an application under Section 33C(2) of the Act and that the said question could appropriately be gone into in proceedings under Section 10 of the Act. A similar view was taken by S. N. Shankar, J., in Flow more (Private) Ltd. v. Shri Ram Parkash and Anr. C.M. (M) 15 of 1971 decided on 26th May, 1971.

15. The learned Counsel for the petitioner, however, placed reliance upon the case Om Parkash Jhumman Lal v. Labour Court, Tis Hazari, Delhi and Anr. 1970 1 L.LJ. 143. In that case the workman whose services were terminated filed an application under Section 33C(2) of the Act for 9 months' wages as retrenchment compensation for fifteen years' service. The firm opposed the application on the ground that the business carried on by the firm was not an 'industry' within the meaning of Section 2(j) of the Act. In that connection, a Division Bench of this Court observed that for the purpose of invoking the provisions of Section 33C of the Act, the question as to whether there was an industrial dispute within the meaning of the Act was irrelevant. Further, it was observed that all that had to be seen was whether the person making application under Clause (2) of Section 33C was a 'workman' within the meaning of Section 2(s) and the person from whom the benefit was to be derived was an 'employer' within the meaning of Section 2(g) of the Act. It was in that context that it was observed, 'Looking at the definition of 'workman' and 'employer', one finds that the expression 'industrial dispute' has not been used. The expression that has been used is 'industry'.'

16. No help can be derived by the petitioner from the above-cited authority. The question raised in that case was entirely different, viz., that the respondent contended that the business carried on by it was not an 'industry' within the meaning of Section 2(j) of the A ct. The Division Bench, on the facts of the case, observed that all that was to be seen in an application under Section 33C(2) was whether the person making application under the aforesaid section was a workman. It is, thereforee, evident that even the Division Bench took the view that application under Section 33C(2) of the Act could be made only by a workman. In other words, if the applicant was not a workman or his status as workman was disputed, he could not resort to the provisions of Section 33C(2) of the Act.

17. In view of the matter, other contentions raised in the petition need not be considered as it is not competent for the petitioner to maintain this petition in view of specific denial of the respondent No. 2 that he was not a workman.

18. For the reasons stated above, there is no merit in this petition and the same is dismissed, but with no order as to costs.


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