AN ARTICLE ON SECTION 33C(2) INDUSTRIAL DISPUTES ACT,1947 : A CONTEMPORARY APEX JUDICIAL DICTUM, PART- I

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : SECTION 33C (2) INDUSTRIAL DISPUTES ACT,1947 : CAN A LABOUR COURT ADJUDICATE UPON AN APPLICATION MADE UNDER THE SECTION WHEN THE EMPLOYER DISPUTES THE EXISTENCE OF EMPLOYER AND EMPLOYEE RELATIONSHIP ? : AN APEX JUDICIAL DICTUM

AJAYA KUMAR SAMANTARAY

PRELUDE : In this case, the employer, M/s Bombay Chemical Industries, having felt? ?aggrieved and dissatisfied with the judgment and order dated 14th November 2018 passed by the Hon’ble High Court of Judicature at Allahabad in Writ Petition No.33482 of 2018, by which the High Court had dismissed the said writ petition preferred by the appellant (employer) and had confirmed the order passed by the Presiding Officer, Labour Court IV, U.P., Kanpur Nagar, under Section 33(C) (2) of the Industrial Disputes Act, the original writ petitioner has preferred the present appeal.

THE CASE-LAW :

M/S. BOMBAY CHEMICAL INDUSTRIES vrs. DEPUTY LABOUR COMMISSIONER AND ANOTHER [2022 LiveLaw (SC) 130? =? (2022) 5 SCC 629] DoJ : 4 FEBRUARY 2022

THE FACTUAL MATRIX :

???????? Respondent No.2, the workman in this case moved an application before the Labour Court under Section 33(C)(2) of the Industrial Disputes Act in Misc. Case No.26 of 2012 demanding the difference of wages from 1st April 2006 to 31st March 2012. The said application was contested by the appellant ?denying any relationship of employee-employer.

It was the categorical stand of the appellant that respondent No.2 was never engaged by it. Before the Labour Court respondent No.2 ?relied upon the documents exhibit W1 to W6 in support of his case that he had worked in the establishment as a salesman. That by order dated 28th November 2017 the learned Presiding Officer, Labour Court allowed the said application and directed the appellant ?to pay the difference of wages from 1st April 2006 to 31st March 2012 as claimed in the application.

WRIT PETITION TO THE HIGH COURT :

?????? ?Feeling aggrieved and dissatisfied with the impugned order passed by the learned Presiding Officer, Labour Court under Section 33(C)(2) of the Industrial Disputes Act, the appellant ?preferred a writ petition before the High Court. By the impugned judgment and order the High Court had dismissed the said writ petition.

SPECIAL LEAVE PETITION TO THE SUPREME COURT :

???????? Having lost the writ petition, the employer moved the Hon’ble Supreme Court by filing a special leave petition which on grant of special leave, became Civil?Appeal?No.813?of 2022.?

?????? The Counsel appearing on behalf of the appellant ?vehemently submitted as follows :

(i) that in the facts and circumstances of the case the High Court has erred in dismissing the writ petition and confirming the order passed by the Labour Court under Section 33(C)(2) of the Industrial Disputes Act.

(ii) that the High Court ought to have appreciated that when there was a serious issue raised with respect to the employer-employee relationship between the appellant and respondent No.2 and that it was seriously disputed that respondent No.2 was at any point of time in employment as a salesman, the Labour Court ought not to have entertained/allowed the application under Section 33(C)(2) of the Industrial Disputes Act as the same could have been decided in the reference under Section 10 of the Industrial Disputes Act.

It was therefore submitted that the order passed by the Labour Court is completely without jurisdiction. Therefore, the High Court ought to have set aside the same. Reliance was placed on the decisions of the Hon’ble Apex Court in the following cases:

(i) Municipal Corporation of Delhi vrs. Ganesh Razak and Anr., (1995) 1 SCC 235 and

(ii) Union of India and another vrs. Kankuben (Dead) By Lrs. and Others, (2006) 9 SCC 292,

in support of his submissions that in a proceeding under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court cannot adjudicate the dispute of entitlement or the basis of the claim and it can only interpret the award or settlement on which the claim is based.

?????? ?Making the above submissions and relying on the above decisions, it is prayed to allow the present appeal.

Counter-submissions :

??????? The present appeal was vehemently opposed by the counsel appearing on behalf of the respondent(s) as follows :

(i) that in the present case respondent No.2 placed on record voluminous record namely exhibit W1 to W6 to show that respondent No.2 was working as a salesman with the appellant.

(ii) ?that the appellant came out with a false case to get out of the obligation difference in salary to be paid as claimed in the application.

(iii) that when on appreciation of evidence and considering the material available on record the Labour Court held that respondent No.2 was employed as a salesman and thereafter directed the appellant to pay the difference of wages it cannot be said that the Labour Court exceeded in its jurisdiction.

(iv) that when on the face of the record available it was found by the Labour Court that respondent No.2 was in employment of the appellant as a salesman, and in the claim before the Labour Court there was found a difference in the salary/pay for the period from 1st April 2006 to 31st March 2012, the Labour Court has not committed any error. The High Court has rightly dismissed the writ petition.

THE ADJUDICATION :

?????? On taking up the civil appeal for adjudication, the Hon’ble Apex Court stated, at the outset it is required to be noted that respondent No.2 herein filed an application before the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, demanding difference of wages from 1st April 2006 to 31st March 2012. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishment in the post of salesman.

Therefore, once there was a serious dispute that respondent No.2 had worked as an employee of the appellant and there was a very serious dispute raised by the appellant that respondent No.2 was not in employment as a salesman as claimed by respondent No.2, thereafter, it was not open for the Labour Court to entertain disputed questions and adjudicate upon the employer-employee relationship between the appellant and respondent No.2.

THE SETTLED POSITION OF LAW :

?????? The Hon’ble Apex court stated, as per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court's jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court.

As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi vrs. Ganesh Razak and Anr. (1995) 1 SCC 235).

In the case of Kankuben (supra), it is observed and held that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C (2) of the ID Act.

It was further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not.

ADJUDCATION ON THE STATUS OF THE RESPONDENT :

?????? The Hon’ble Apex Court stated, applying the law laid down in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act.

ERROR COMMITTED BY ?LABOUR COURT AND ?HIGH COURT :

?????? The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act.

THE VERDICT :

?????? Coming to the conclusion, the Hon’ble Apex Court stated, ?in view of the above and for the reasons stated above,

1. The present appeal succeeds.

2. The impugned judgment and order passed by the High Court as well as that of the order passed by the Labour Court under Section 33(C)(2) of the Industrial Disputes Act in Misc. Case No.26 of 2012 are hereby quashed and set aside.

3. Respondent No.2 is relegated to avail any other remedy which may be available under the Industrial Disputes Act, including that of reference to adjudicate his right as an employee of the appellant as claimed by him.

The Hon’ble Apex Court further stated,

As and when such proceedings are initiated the same to be considered in accordance with law and on its own merits and without in anyway being influenced by the present order, as this Court has not expressed anything in favour of either of the parties on the aspect of employer-employee relationship between the appellant and respondent No.2. The present appeal is allowed with the above observations and to the aforesaid extent.

No costs.

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