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Chimanlal B. Joshi Vs. Nagrashna (M.N.), Second Labour Court, Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 600 of 1961
Judge
Reported in(1965)ILLJ318Guj
ActsIndustrial Disputes Act, 1947 - Sections 33C and 33C(2)
AppellantChimanlal B. Joshi
RespondentNagrashna (M.N.), Second Labour Court, Ahmedabad and ors.
Cases ReferredQueen v. Commissioner
Excerpt:
.....jurisdiction to decide that petitioner falls under definition of 'workman' - r1 failed to exercise jurisdiction vested in him of deciding such question - impugned order quashed - proceedings remitted back to r1 with direction to decide application of petitioner under its original number in accordance with law. - - we have satisfied ourselves that petitioner has not raised any question regarding the legality or propriety of any discharge order. even if, however, we proceed on the basis that an argument may be regarded to be an implied admission on the part of a party, we are not satisfied from the record of the case that any such implied admission was made by petitioner. 5 of the petition, petitioner has distinctly stated that the question of illegality or otherwise of the order made..........paid his salary from 1 march 1958 to 30 september 1959 and that, therefore, he had presented the aforesaid application under s. 33c of the act. this application was made by him on 21 october 1959. respondent 2, 3 and 4 appeared before the labour court presided over by sri m. n. nagrashan, respondent 1 herein, and opposed the application. one of the grounds on which the application was opposed was that the labour court had no jurisdiction to entertain the aforesaid application and to decide the dispute between the parties. this preliminary objection was taken up for decision by the labour court and, by the impugned order, that court upheld the preliminary objection and held that it had no jurisdiction to decide the dispute raised the petition and consequently it dismissed the.....
Judgment:

Miabhoy, J.

1. This is a petition by Chimanlal B. Joshi under Art. 227 of the Construction of India paying for the issuance of a writ of or in the nature of certiorari or any other writ, order or direction for calling for the records of the case, to be presently mentioned, and to quash or suitably correct the order, dated 17 July 1961, passed by the presiding officer, second labour court, Ahmedabad, in Recovery Application No. 522 of 1959. The petitioner arises out of an application made by petitioner before the aforesaid labour court under S. 33C of the Industrial Disputes Act, 1947 (hereafter called 'the Act'), for recovering a sum of Rs. 6,650 on the allegation that that amount was the arrears of his wages from 1 March 1958 to 30 September 1959. The facts leading upto the presentation of that application may first be briefly stated. Respondent 2, Kilachand Devachand & Co. (Private), Ltd., is a private limited company doing business inter alia at Mehasana. Tulsidas Kilachand, respondent 3 herein, is one of the directors of that company. In or about 1953, an association of persons brought into existence an institution known as North Gujarat Development Board of which respondent 3 is the president. According to petitioner, respondent 3 acting for himself and on behalf of respondent 2 proposed in 1953 to petitioner that he should work as honorary secretary of respondent 4 and proposed that petitioner should be paid a salary of Rs. 300 per month from the funds of respondents 2. Petitioner alleges that accordingly he was appointed as honorary secretary of respondent 3, his appointment being subsequently ratified by the managing committee of respondent 4 by a resolution passed on 8 August 1953. According to petitioner, he was also provided with free accommodation at Mehasana, food allowance and conveyance facilities. According to petitioner, he continued to render services as a secretary to respondent 4 till 28 March 1958 when on that day he received a letter purporting to have been given by respondent 2 and signed by one Fakirchand Lallubhai in which he was informed that his services had been terminated with immediate effect and in which he was required to collect his salary for the month of March 1958 and for the month of April 1958 in lieu of notice. Petitioners averred that his purported termination of his service by respondent 2, who was not his employer, did not, in fact, terminate his services and that all along he still continued to be in the employment of his employer, respondent 4. Petitioner further alleged that he had not been paid his salary from 1 March 1958 to 30 September 1959 and that, therefore, he had presented the aforesaid application under S. 33C of the Act. This application was made by him on 21 October 1959. Respondent 2, 3 and 4 appeared before the labour court presided over by Sri M. N. Nagrashan, respondent 1 herein, and opposed the application. One of the grounds on which the application was opposed was that the labour court had no jurisdiction to entertain the aforesaid application and to decide the dispute between the parties. This preliminary objection was taken up for decision by the labour court and, by the impugned order, that court upheld the preliminary objection and held that it had no jurisdiction to decide the dispute raised the petition and consequently it dismissed the application. The application was dismissed by respondent 1 on two grounds. The first ground was that petitioner was claiming the benefit of salary under a contract and not under a settlement or an award and that, therefore, he had no jurisdiction to deal with the matter. The second ground was that the application raised a question regarding the legality and property of a discharge order and that he had no jurisdiction to deal with such a question under S. 33C of the Act. It is the validity of these two findings recorded by respondent 1 which falls to be decided in the present petition. The first ground is now covered by a direct decision of their lordships of the Supreme Court in Central Bank of India, Ltd. v. P. S. Rajagopalan, etc. [1963 - II L.L.J. 89]. In that case, it was decided that a labour court has got jurisdiction to decide claims arising out of a contract provided the claim arose from a pre-existing right. In view of this pronouncement by the Supreme Court, Sri Nanavati did not dispute that the first ground, on which the application aforesaid was dismissed, cannot be sustained. As regards the second ground, on the basis of the same authority. Sri Daru did not contest the position that, if the application did raise a question as to whether the purported discharge was rightful or wrongful, then, respondent 1 would have no jurisdiction to entertain the application. Sri Daru's contention, however, was that respondent 1 was in error in holding that any such question was raised in the petition at all. Sri Daru contends that petitioner had nowhere contended that he had been discharged in fact by his employer and any such discharge was unlawful. Sri Daru contends that, in substance, the allegations of petitioner were that, at all material times, he continued to be in the employment of his employer, respondent 4, and that the purported discharge by a total stranger, respondent 2, terminating his services did not, in fact, amount to a disruption of the relationship of master and servant between him and respondent 4 and that, therefore, the real question which respondent 1 was called upon to determine was whether, during the relevant period, petitioner did or did not continue to be in the employment of respondent 4 and that no question about the alleged legality or illegality of any discharge order arose at all. Before we discuss the submissions which Sri Daru made in this behalf, we may mention that Sri Nanavati tried to argue that though, in the pleadings, the question had not been raised in that form, at least, in the course of the arguments addressed before respondent 1, the position had been conceded by petitioner or on his behalf that the question of legality or propriety of the discharge order given by respondent 2 had been raised. The pleadings were not before us and we wanted to ascertain for our own satisfaction as to what exactly had been contended by petitioner. In order to ascertain the exact scope of the application of petitioner we have taken on record a copy of petitioner's application with the consent of both the sides. Sri Nanavati, however, contended that, if that were so done, then, a copy of his written statement must also be taken on record and both the application and the written statement must be read together with a view to finding out what exactly were the rival contentions of the parties. Again with the consent of both the sides, we have taken also on record a copy of respondents 2 to 4's written statement. We have been taken through the pleadings by both the sides and we are unable to see anything in the pleadings which would show that the allegations which have been made in this petition were not justified. We have satisfied ourselves that petitioner has not raised any question regarding the legality or propriety of any discharge order. In substance, the application of petitioner appears to be that he was an employee of respondents 3 and 4, that his salary was in arrears and that the same had not been paid to him though demanded from them. It is true that petitioner has made a reference to the letter, dated 28 March 1958, signed by one Fakirchand Lallubhai on behalf of respondent 2 in which it is stated that petitioner's services had been terminated. But, this reference has been made by petitioner not with a view to challenging the legality or propriety of that discharge order. The reference is made with a view to showing that the letter of discharge was not written by his own employer but by a total stranger. Thus, in effect, petitioner's case was that that particular letter had not the effect of terminating his services and snapping the bond of master and servant which existed between him and his employers, respondents 3 and 4. On this position becoming clear, Sri Nanavati took up the attitude that whatever may have been the pleadings between the parties at the time of the arguments, the question was sought to be decided on the basis that the legality or the propriety of the aforesaid order was in question and that, therefore, this Court exercising the high prerogative jurisdiction ought not to decide the question on any other basis. Now it is true that the whole order of respondent 1 is written on the aforesaid basis. But, in our judgment, there is a clear distinction between an admission and an argument urged before a tribunal. If any admission is made on a question of fact by one of the parties, then, that will be certainly a material on the basis of which a tribunal can act. It is not the case of Sri Nanavati that any such admission was made by petitioner to the effect that his services had been terminated by his own employers and that he was entitled to receive the salaries on the ground that that discharge was unlawful or unjustified. Even if, however, we proceed on the basis that an argument may be regarded to be an implied admission on the part of a party, we are not satisfied from the record of the case that any such implied admission was made by petitioner. In this connexion, it is important to notice that the present petition is entirely based on the allegation that respondent 1 had misunderstood the case of petitioner and that the question about the legality or propriety of the letter written by respondent 2 was not in issue at all. In Para. 5 of the petition, petitioner has distinctly stated that the question of illegality or otherwise of the order made by respondent 2 did not arise at all and that the question before respondent 1 was not whether that letter of discharge was illegal but whether it was at all relevant. In grounds (e) and (f), the same idea

2. has been put forward in prominence. It is significant to notice that none of the respondents has filed any affidavit in reply contesting the aforesaid allegations so prominently put forward in the petition. Under the circumstances, we have no doubt whatsoever that the case has been decided not on the basis of any admission, express or implied, made by petitioner, but has been decided entirely on a misapprehension by respondent 1 as to what the exact contention of petitioner was and what was the exact scope and ambit of his application. From the aforesaid discussion, it is quite clear, therefore, that the main question which arose in order to decide the question of jurisdiction was as to whether respondent 1 had or had no jurisdiction to decide the question whether petitioner was a workman who continued to be in the employment of respondents 3 and 4 by reason of the fact that he had not been discharged in fact by them. Sri Daru contends that the latter question is one which falls within the jurisdiction of the Court on two grounds. Firstly, he contends that the real question which arose for decision before respondent 1 was whether petitioner had or had no right to receive the arrears of salary and the question as to whether a relationship of master and servant existed between respondents 3 and 4 on the one hand and petitioner on the other was a question which fell incidentally to be decided in order to determine the existence of the aforesaid right of petitioner. Sri Daru contends that, from this point of view, respondent 1 had jurisdiction to decide the question as to whether petitioner was or was not in the employment of respondents 3 and 4 at the relevant point of time. Sri Nanavati seriously disputes this proposition. The second ground on which Sri Daru supported the present petition was that, even if the aforesaid question is not regarded to be a question incidentally arising out of the determination of the right to receive the salary, that question was one which did directly arise for determination in order to decide whether respondent 1 had or had no jurisdiction to entertain the application. Sri Daru contends that in an application under S. 33C(2) of the Act, mainly two questions would arise for consideration if any dispute arises between the parties. The first question would be whether the applicant in such an application is a workman and, second whether that workman had a right to any benefit which is capable of being computed. Therefore, Sri Daru contends that the question as to whether petitioner was or was not a workman at the relevant time is a jurisdictional fact and that, though respondent 1 may be a Court with limited jurisdiction, every Court or tribunal had an implied power for determining a jurisdictional fact, Sri Nanavati, though, as already stated, he seriously disputed the first proposition of Sri Daru, did not dispute the second proposition, though he introduced a qualification, which qualification, in our judgment, is not a material point to be considered at the present stage. Sri Nanavati with frankness stated that he did not want to take up the time of this Court by disputing a proposition which, on the authorities, appeared to be well-settled and he admitted that the following was the correct legal position which he stated was based upon the authority in Chaube Jagdish Prasad and another v. Ganga Prasad Chaturvedi [A.I.R. 1959 S.C. 492 at 496 and 497]. The position which Sri Nanavati admitted we will reproduce in his own words. This is what Sri Nanavati admitted before us. Whether petitioner is a workman who continues in employment of respondents 3 and 4 by reason of the fact that he has not been discharged in fact by them is a collateral fact which falls to be considered by respondent 1 in order to proceed further or not, though that being a finding as to a collateral fact giving rise to the jurisdiction of respondent 1, the finding will not be final. From the aforesaid position admitted by Sri Nanavati, it is quite clear that the point which Sri Nanavati disputes is as to whether any finding on the jurisdictional fact which may hereafter come to be recorded by respondent 1 is or is not a final finding. Sri Nanavati seems to contend that that finding will not be final and is liable to be revised by a superior Court in the exercise of its powers of superintendence or revision or under Art. 226 of the Constitution. But really, in our judgment, that question does not fall to be decided in the present proceeding at all. That question can arise for determination only if respondent 1 records a finding one way or the other on the question in issue between the parties. Till such a finding comes to be recorded by respondent 1, the question does not arise at all as to whether that particular finding falls within the first category of the cases mentioned by Lord Esher in Queen v. Commissioner for Special Purposes of the Incometax [(1888) 21 Q.B.D. 313 at 319], on the basis of which all such questions are usually decided. In our judgment, it is premature to express any opinion as to whether the decision as to whether petitioner is or is not a workman will be subject to the powers of superintendence of this Court or otherwise. But, having regard to the position of law which is admitted by Sri Nanavati and which appears now to be well-settled in view of the authority in Ebrahim Aboobaker and another v. Custodian-General of Evacuee Property [1952 S.C. 696 at 702 and 703] and a decision of this Court recorded on 10 September 1963 by a Division Bench consisting of Bhagwati and Divan, JJ., in Special Civil Applications Nos. 988 of 1960 and 47 and 48 of 1961, there is no doubt whatsoever that respondent 1 had jurisdiction to decide the preliminary question as to whether petitioner was or was not a workman in the employment of respondents 3 and 4 during the relevant period. That being the legal position, there is no doubt whatsoever that respondent 1 had failed to exercise jurisdiction vested in him of deciding that question and, therefore, the impugned order requires to be quashed on that ground and proceedings sent back to respondent 1 with a direction that he shall proceed further to decide the application of petitioner under its original number and dispose it of in accordance with law.

3. Rule made absolute to the extent mentioned above. No order as to costs.


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