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Chhotu Kalu and Ors. (imperial Tobacco Company of India Ltd., Employees' Union, Ahmedabad) Vs. Labour Court and Anr. (10.09.1963 - GUJHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application Nos. 988 of 1960 and 47-48 of 1961
Judge
Reported in(1965)ILLJ150Guj
ActsIndustrial Disputes Act, 1947 - Sections 10(1), 18(2), 18(3), 19(2), 33, 33C, 33C(1) and 33C(2)
AppellantChhotu Kalu and Ors. (imperial Tobacco Company of India Ltd., Employees' Union, Ahmedabad)
RespondentLabour Court and Anr.
Cases ReferredCentral Bank of India v. Rajagopalan
Excerpt:
.....to receive benefit in dispute - dispute should be determined by labour court - determination of benefit in terms of money has to be preceded by enquiry into existence of benefit - jurisdiction of court implies all acts essentially necessary for execution - court must enquire about dispute. - - the company's contention was that the companies well as the union had never intended that the terms of the settlement of 29 march 1954 were to apply to the gardeners. 33c(2) could not be defeated merely because the employer raised a question of status if, prima facie, the claim of the applicants as the workers was well-founded. the appellant's construction would necessarily introduce the addition of the words 'admittedly, or admitted to be' in that clause, and that clearly is not..........(1) whether the gardeners were the employees of the company, (2) whether they were covered by the terms of settlement, and (3) whether they had acquiesced in the arrangement under which their services with the company were terminated on 1 february 1951 and by which they became domestic servants of the occupants of the bungalows, are all questions on merits which have to be gone into by the labour court and which were not gone into by the labour court because of the view that it took about the provisions of s. 33c(2) of the act. we wish to confine our conclusion only to this that the view of the labour court regarding the provisions of s. 33c(2) was erroneous and we do not wish to express any opinion regarding the conclusion that it arrived at even on a preliminary consideration of the.....
Judgment:

Divan, J.

1. These three special civil application raise common questions. The three matters from which they arise were dealt with by the Judge of the labour court Ahmedabad, by one and the same judgment and we will and also dispose of all the three of them by this common judgment. The respective petitioner in each of these three special civil applications was working prior to 31 January 1951, as gardener at the residential quarters of the officers of the Imperial Tobacco Company of India, Ltd., which has been joined as respondent 2 in each of these three special civil applications. According to these petitioners they had been employed by the company as gardeners and were entrusted their duties of working and looking after the gardens in the company's premises abutting on the residential quarters of the officers of the company. Till 31 January, 1951, their names appeared on the company's musters but thereafter, i.e. with effect from 1 February 1951, their names were removed from the muster-rolls of the company but the company continued to pay them as before on the same terms by means of vouchers. These three petitioners continued to perform their duties as before under the control and direction of the company. From 1 March 1957, instead of paying them by vouchers the company adopted a different system, viz., paying the amount exactly equal to the salary of the petitioners to the officers and officers in their turn passing on the same amount to the petitioners. The three gardeners were paid at the same rates of pay throughout the period from January 1951 onwards. According to them, they were entitled to be paid basic wages and dearness allowance in accordance with a settlement arrived at between the company and its workmen at its Ahmedabad depot on 29 March 1954. They had not been paid at these rates and they, therefore, applied to the labour court at Ahmedabad by three different application in the month of December 1959, approaching the Court under S. 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), praying that the Court may compute the amounts payable to them from 1 April 1954 to 12 November 1959, and issue certificates for the recovery of the amounts.

2. In each of these three applications before the labour court, the company filed written statements and later on supplementary written statements were also filed. By their written statements the company contended, firstly, that there was no relationship of employer and employee between the gardeners, and the company. According to the company, these applicants before the labour court had always worked as domestic servants under the direction and control of the different occupants of the bungalows in which its officers were residing. The company had never directed or controlled their work and the company, therefore, contended that the labour court had no jurisdiction to entertain these applications under S. 33 of the Act. The company further contended that the applicants before the labour court in these three applications were in the private employment of the occupants of the bungalows in question since 1 February 1951, and that these gardeners were not covered by the settlement, dated 29 March 1954, and hence the terms of the settlement between the company and its workmen at the Ahmedabad depot were not applicable to them. According to the company these three applicants had acquiesced in the arrangement under which their services with the company were terminated from 1 February 1951 on which date they had become domestic servants of the occupants of the bungalows. According to the company it was not until the union made a demand by its letter, dated 2 March, 1959, asking for the benefits under the settlement, dated 29 March 1954, and for the gardeners being treated as company's employees that the company became aware of any dispute as regards this arrangement. According to the company, after their acquiescence in the aforesaid arrangement for more than eight years, no relationship of employer and employee could be created between the company and the gardeners. The company also contended that the Court had no jurisdiction to take action under S. 33C of the Act as the claims of the applicants were disputed by the company. The company contended that it was not open to the Court to examine the merits of the claims set out by the three applicants before the labour court, which were being disputed in their entirety by the company. The company further contended that the provisions of S. 33C(2) were also not applicable as the claim of the respective applicant was not in respect of a benefit capable of being computed in terms of money but was in fact a monetary claim. In any event, according to the company, the applicants' claims were liable to be rejected on the ground of inordinate delay and laches. The company's contention was that the companies well as the union had never intended that the terms of the settlement of 29 March 1954 were to apply to the gardeners. Throughout the period from 1 February 1951 till the presentation of the applications before the labour court, the respective applicant had been entirely under the control and direction of the persons by whom he had been respectively employed. The company contended that the settlement, dated 29 March 1954, related only to the clerical staff, salesmen, general workers (office sweepers and godown employees), chowkidars, office peons, case-makers, drivers station sircars and canvassers. The category of mali was not mentioned in this settlement; and the applicants before the labour court were, therefore, not entitled to wages and dearness allowance as claimed by them.

3. Before the labour court, the learned counsel appearing on behalf of the company contended that the applications were not legally tenable under S. 33C of the Act and technical objections were raised as to the maintainability of the applications. The learned judge heard these technical objections as preliminary issues without going into the merits of the case.

4. Formerly, there was some controvarsy regarding whether monetary benefits can be included within the word 'benefit' used in S. 33C(2) of the Act, but the Supreme Court in its decision in Punjab National Bank v. K. L. Kharbanda [1962 - I L.L.J. 234 (S.C.)], has held that the word 'benefit' used in that sub-section is not confined to non-monetary benefit which can be converted in terms of money but is concerned with all kinds of benefits whether monetary or non-monetary to which a workman may be entitled, say for example, under an award, and that the sub-section comes into play when the benefits have to be computed or calculated and there is a dispute as to the calculation or computation. Since that position has been finalized by the judgment of the Supreme Court, no attempt was made before us to urge that the claim for monetary benefit could not fall under S. 33C(2) of the Act. The labour court followed a judgment of the Bombay High Court in Special Civil Application No. 1111 of 1959, decided on 8 January 1960 [1961 - I L.L.J. 581] laying down the same proposition regarding inclusion of monetary benefits in the word 'benefit' in S. 33C(2).

5. The main controversy before the labour court turned on the scope of an inquiry under S. 33C(2). The company contended firstly by its written statement that these applicants were not employees of the company at the date of the settlement and hence the settlement in question made no reference to them and did not apply to them. The, company contended that the applications had been preferred to the labour court on the assumption that the three applicants were the employees of the company and were covered by the settlement. The company was seriously disputing their status as workers of the company and as question of this type of status was a substantial question for decision, such a question could not be agitated in an application under S. 33C(2) of the Act. The learned Judge of the labour court held that such a question of status could not be agitated in an application under S. 33C(2). He further held that a bona fide application under S. 33C(2) could not be defeated merely because the employer raised a question of status if, prima facie, the claim of the applicants as the workers was well-founded. But the learned judge held that in the instant case there was no prima facie claim of the applicants as the workers of the company. The learned judge went into the terms of the settlement and came to the conclusion that the applicants were not covered by the settlement on which they specially relied and, therefore, they were not entitled to any benefit under the settlement and hence their applications were not tenable. The learned advocate, who was appearing on behalf of the three gardeners before the labour court urged there that the settlement was really applicable to the gardeners although they were not specifically mentioned therein and he contended that if the applications were to be heard on merits, this contention could be established by other evidence. The learned Judge held that the question whether any other evidence besides the settlement could be admitted in view of the existence of the settlement, which was silent on the point, was also a substantial question which would arise for consideration and he felt that such a substantial question fell outside the scope of S. 33C(2).

6. The learned advocate for the gardeners also contended that the gardeners were in reality paid by the company and that the allegations made in the applications that the company paid the amount of the salary to the officers and the officers in their turn pass it on the gardeners was not disputed by the company and the learned judge felt that if that were so, the contention of the gardeners that they were the employees of the company had considerable force. But he felt that these were substantial questions which fell outside the scope of S. 33C(2) of the Act. The learned judge of the labour court held that not only was the question of status involved but there was also a question of wages and if the applicants were not covered by the settlement in question, the question of the fixation of the wages apart from the settlement in question would also arise. Under S. 10(1)(d) of the Act, the question of wages was within the jurisdiction of industrial tribunal and, therefore; the question of wages could not be dealt with by the labour under S. 33C(2). The learned judge of the labour court held that in the guise of simple recovery application under S. 33C of the Act, the applicants wanted to agitate substantial questions of their alleged status as workmen of the company and the wages and dearness allowance payable to them as such workmen but the labour court under S. 33C(2) of the Act was not the proper forum for a decision of these substantial questions and for all these reasons, he came to the conclusion that these applications were not maintainable for the reliefs claimed therein and hence the labour court had no jurisdiction under S. 33C(2) of the Act to go into the various questions mentioned earlier, which would necessarily arise for decision before any relief could be granted to the applicants and he, therefore, held that the applications were not maintainable under S. 33C of the Act and dismissed them. It is against this decision of the labour court that the present three special civil applications under Art. 227 of the Constitution have been filed in this Court.

7. About the scope of an inquiry under S. 33C(2) of the Act the position has now been clarified by the decision of the Supreme Court in the case of Central Bank of India v. Rajagopalan [1963 - II L.L.J. 89]; in that case after comparing the provisions of Sub-section (2) of S. 33C with the provisions of Sub-section (1) of that section and also in the light of history of similar provisions in earlier pieces of legislation, the Supreme Court held as follows :

'In our opinion, on a fair and reasonable construction of Sub-section (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the labour court. Before proceeding to compute the benefit in terms of money, the labour court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the labour court can proceed to compare the value of the benefit in terms of money, but if the said right is disputed, nothing more proceed to compute the value of the benefit in terms of money, but if the said right is disputed, the labour court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the labour court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of Sub-section (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause 'where any workman is entitled to receive from the employer any benefit' does not mean where such workman is admittedly, or admitted to be entitled to receive such benefit. The appellant's construction would necessarily introduce the addition of the words 'admittedly, or admitted to be' in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by Sub-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the labour court to entertain the workman's application. The claim under S. 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of that right and such an enquiry must be held to be incidental to the main determination which has been assigned to the labour court by Sub-section (2). As Maxwell has observed :

'Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.' [Maxwell on Interpretation of Statutes, p. 350.] We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employees.'

8. The Supreme Court also considered Sub-section (3) and held that the provisions of Sub-section (3) became intelligible if it was held that what can be assigned to the commissioner includes only a part of the assignment of the labour court. The Supreme Court also held in that case that the provisions of Sub-section (2) of S. 33C are wider and cover a larger number of cases than those contemplated by Sub-section (1) of S. 33C and to that extent the scope of S. 33C(2) is undoubtedly wider than that of S. 33C(1). But the Supreme Court felt that there were some limitations even on this wider scope of S. 33C(2). In that case the Supreme Court has not laid down what other categories of claims cannot fall under S. 33C(2) but the Supreme Court has indicated in that case that there are two matters which do not fall within the purview of an inquiry under S. 33C(2). One such case is of a workman who alleges that he has been wrongfully dismissed or demoted. The Supreme Court pointed out that if an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C(2). It was also pointed out by the Supreme Court that if a settlement has been duly reached between the employer and his employees and it falls under S. 18(2) or (3) of the Act and is governed by S. 19(2), it would not be open to an employee, notwithstanding the said settlement, to claim a benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative, no claim can be made under S. 33C(2) inconsistent with the said settlement. If the settlement is intended to be terminated, proper steps may have to be taken in that behalf and a dispute that may arise thereafter may have to be dealt with according to the other procedure prescribed by the Act. These are the two exceptions, which, the Supreme Court has pointed out, do not fall within S. 33C(2) of the Act.

9. In the instant case, the labour court felt that because of the provisions of S. 33C(2) as interpreted by it in the light of the legal position then understood, it was not open to it to go into the question whether the gardeners, who were the applicants before the labour court, were the employees of the company or not and the labour court at that date felt that the question about leading evidence as to whether the gardeners were the employees of the company was a substantial question, which could not be gone into under S. 33C(2) of the Act. This judgment of the Supreme Court, which we have discussed above, indicates that the view taken by the labour court was erroneous and, therefore, there is an error apparent on the face of the record. We must, therefore, exercise our powers under Art. 227 of the Constitution and quash the order of the labour court in each of these three petitions.

10. In the judgment delivered by the labour court in these three applications, which were consolidated before it, the labour court has gone into the terms of the settlement and though on a preliminary issue about the maintainability of the application, it has considered the terms of the settlement and held that it was quite clear that he applicants were not covered by the settlement on which they specifically relied and they were, therefore, not entitled to any benefit under this settlement and hence their applications were not tenable. Now, this opinion was expressed by the labour court on a prima facie view of the matter without considering the evidence, which the applicants wanted to lead, and was adopted by the labour court without going into the merits of the question. It was for the purpose of deciding whether the preliminary objecting raised on behalf of the company was correct or not that the labour court went into a prima facie consideration of the terms of the settlement. We must, therefore, hold that the view expressed by the labour court regarding the merits of the question was a result of the view that it took about the scope of its powers under S. 33C(2) of the Act. Since that view is now found to be erroneous in the light of the judgment of the Supreme Court, the opinion expressed by it, even on a prima facie consideration of the terms of the settlement, would no longer be binding. The questions -

(1) whether the gardeners were the employees of the company,

(2) whether they were covered by the terms of settlement, and

(3) whether they had acquiesced in the arrangement under which their services with the company were terminated on 1 February 1951 and by which they became domestic servants of the occupants of the bungalows,

are all questions on merits which have to be gone into by the labour court and which were not gone into by the labour court because of the view that it took about the provisions of S. 33C(2) of the Act. We wish to confine our conclusion only to this that the view of the labour court regarding the provisions of S. 33C(2) was erroneous and we do not wish to express any opinion regarding the conclusion that it arrived at even on a preliminary consideration of the terms of the settlement. The three points, which we have indicated above, have been specifically left open by us because those points have to be decided by the labour court on the merits of the matter, after considering all the materials that may be placed before it for decision on merits.

11. In the result, we allow each of these three special civil applications and quash and set aside the order of the labour court and direct the labour court to dispose of each of these three applications on merits in the light of the legal position that we have explained. Rule in each of the three matters is made absolute. There will be no order as to costs in view of the special circumstances of the case.

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