- 1 - WP No.7032 of 2022 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE13H DAY OF APRIL, 2023 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.7032 OF2022(L-RES) BETWEEN: THE MANGEMENT OF DR AMBEDKAR PARA MEDICAL EDUCATION SOCITY (R) REGISTERED UNDER KARNATAKA REGISTRATION ACT, 1960 RENUKA COMPLEX, BASAVESHWARA CIRCLE, BHADRAVATHI57730. REPRESENTED BY ITS SECRETARY, MR. GANESH S. ... PETITIONER (BY SMT. KAVERI THIMMAIAH, ADVOCATE) AND: SRI SHAMBHU GOWDA S/O LATE HUCHECHE GOWDA, AGED ABOUT77YEARS, OFFICE ASSISTANT-CUM-STENO/ ADMINISTRATIVE OFFICER, DR.AMBEDKAR PARA MEDICAL EDUCATION SOCIETY, RENUKA COMPLEX, BASAVESHWARA CIRCLE, BHADRAVATHI, RESIDING AT WDWC-189/A, HUTTA COLONY, BHADRAVATHI57730. … RESPONDENT - 2 - WP No.7032 of 2022 (BY SRI. A.J.
SRINIVASAN, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND/ OR ANY OTHER WRIT OR
ORDERAND CALL FOR THE LOWER COURT RECORD IN APPLICATION12014 AND ETC.. THIS WRIT PETITION COMING ON FOR
ORDERS AND HAVING BEEN RESERVED FOR
ORDERS ON1002.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER1 The petitioner-employer is before this Court seeking for the following reliefs: i. Issue a Writ in nature of Certiorari and/or any other writ or order and call for the lower court records in Application 1/2014. ii. Set aside the Order dated 11.01.2022 passed by the Hon’ble Presiding Officer, Labour Court, D.K. Mangaluru in Application No.01/2014 produced as Annexure-A.
2. The Labour Court, Dakshina Kannada, Mangaluru by way of order dated 11.1.2022 in application No.1/2014 had passed the following order: - 3 - WP No.7032 of 2022
ORDERThe application filed under section 33(C) (2) of Industrial Disputes Act, 1947 is allowed in part. The Applicant is entitled for salary at the rate of Rs. 3,000/- per month from 22.06.2000 to 31.05.2007 from the respondent. The applicant already received part of such salary shown in Ex.A15 and therefore, the amount already paid has to be deducted and remaining amount is to be paid by the respondent to the applicant along with interest at the rate of 9% per annum. Such interest has to be calculated whenever each month salary falls due. The applicant is entitled for salary at the rate of Rs.5,000/- per month from 01.06.2007 to 31.12.2007. The applicant already received part of such salary shown in Ex.A15 and therefore, the amount already paid has to be deducted and remaining amount is to be paid by the respondent to the applicant along with interest at the rate of 9% per annum. Such interest has to be calculated whenever each month salary falls due. The applicant is entitled for salary at the rate of Rs.6,000/- per month from January to December 2008, salary at the rate of Rs.7,000/- per month from January 2008 to December 2009, salary at the rate of Rs.8000/- per month from January 2010 to December 2010 salary at the rate of Rs. 9,000/- per month from January 2011 to December 2011 and salary at the rate of Rs.10,000/- per month from January 2012 to November 2012 from the respondent. The applicant already received part of such salary shown in Ex.A15 and therefore, the amount already paid has to be paid by the respondent to the applicant along with interest at the rate of 9% per annum. Such interest has to be calculated whenever each month salary fall due.-. 4 - WP No.7032 of 2022 The relief claimed in respect of leave salary, gratuity, three months notice are hereby rejected.
3. The respondent-workman had filed the proceedings in application No.1/2014 claiming that:
3. 1. he had been appointed as an Assistant-cum- Steno on 18.6.2000 with a monthly salary of Rs.3,000/- and had carried out his duties from 22.6.2000. 3.2. The founder of the petitioner being Dr. H.C. Kaveri her husband, and sons were other members of the executive body, the petitioner was running two institutions, namely the School of Nursing and Para Medical services. 3.3. It was claimed that Dr. H.C. Kaveri expired on 16.3.2011 thereafter, the management of the petitioner was reshuffled, and a new committee was formed.-. 5 - WP No.7032 of 2022 3.4. It was contended that the workman had not been paid full wages from the year 2000, as per the terms of the appointment made on 18.6.2000, which has been marked as Exhibit- A1 as also the memo dated 1.6.2007 marked as Exhibit-A4 where under his salary was fixed at Rs.5,000/- with effect from 1.6.2007, he being entitled for additional increment of Rs.1,000/- per annum commencing from January of every year till his services in the institution. 3.5. On the said basis, a memo of calculation was submitted by the workman who placed on record the amounts to be paid and actual payment made and thereby deriving the balance amount due and payable, on which basis the workman sought direction to the employer to make payment of the said amount under section 33(C)(2) of the Industrial Dispute Act, 1947.-. 6 - WP No.7032 of 2022 4. On service of notice the employer entered appearance and submitted that 4.1. the employer has come into the picture recently, the employer does not have any documents in its possession. 4.2. the workman was working in an administrative capacity and as such could not claim the status of workman under Section 2(s) of the Industrial Dispute Act, 1947. 4.3. It was denied that there was any salary due and payable by the employer to the workman, the claim made by the workman was denied as false. It was contended that the employer has duly paid the due salary of the workman. 4.4. it is only the Managing Director of the employer who has the power to issue an appointment order as also grant promotion. The order at Exhibit-A3 not having been signed by the - 7 - WP No.7032 of 2022 Managing Director, the same was not a proper document all other claims were denied.
5. It is on the said rival contention that the Labour Court took up the matter and decided partly in the favour of the workman by issuing the directions aforestated. It is aggrieved by the same the employer is before this Court seeking for the aforesaid releifs.
6. Ms. Kaveri Thimmaiah., learned counsel appearing for the employer would submit that 6.1. the respondent is not a workman within the meaning of Section 2(s) of the Industrial Dispute Act even according to the workman, the workman is claiming to be appointed as an Administrative Officer, which is in the management cadre. He was discharging the said activities, which would disentitle him from claiming himself as a workman. 6.2. That the claims which have been made have been denied by the employer, and on such - 8 - WP No.7032 of 2022 denial, the Labour Court acting within the purview of Section 33 (C)(2) of the Industrial Dispute Act could not have given a finding on the disputed question of fact, the Labour Court ought to have dismissed the claim made by the workman and relegated him to a Civil Court. 6.3. The Labour Court has, in fact adjudicated a disputed claim which was not permissible under Section 33(C)(2) and in this regard she relies upon the following decisions. 6.4. Bombay Chemical Industries v. Labour Commr.,1 more particularly para 10 and 11 thereof, which are reproduced hereunder for easy reference.
10. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether Respondent 2 herein was in employment as a salesman as claimed by Respondent 2 herein and there was a serious dispute raised that Respondent 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 1 2022 (2) LLJ53(SC) - 9 - WP No.7032 of 2022 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. The Labour Court ought to have relegated Respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalised and/or adjudicated upon.
11. 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. 6.5. Relying on the above, she submits that where the very employment as a salesman by the employer was disputed, the Labour Court would not have the power under Section 33(C)(2) to decide a claim made by such persons whose employment itself is disputed.-. 10 - WP No.7032 of 2022 6.6. State Bank of India v. Ram Chandra Dubey2 more particularly para 8 thereof, which is reproduced here under for easy reference.
8. The principles enunciated in the decisions referred by either side can be summed up as follows: 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 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre- existing benefit or one flowing from a pre- existing right. The difference between a pre- existing 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 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all 2 2001 (1) SCC73- 11 - WP No.7032 of 2022 relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages. 6.7. Relying on the above she submits that the benefit which is sought to be enforced under Section 33(C)(2) is necessarily a pre existing benefit or one coming within the meaning of pre-existing rights. In this case there is no such pre-existing right in as much as Annexure- A3 on which basis the workman has raised a claim is denied by the employer.-. 12 - WP No.7032 of 2022 6.8. Ashok U. Nikam v. Tata Power Company Ltd3 more particularly para 4 thereof, which is reproduced here under for easy reference.
4. In case of a reference under Section 10 of the Industrial Disputes Act, the Labour Court is not empowered to travel beyond the terms of reference. Either it must be shown that it is a specific term of reference on which the particular relief is claimed before the Court or that consideration of such matter is incidental to the terms of reference and the reliefs claimed thereupon. Unless that is shown, the Industrial Court cannot go into the question. In this case, as I have noted above, the question whether on the date of his last termination, the employee was a permanent employee of the Respondent by virtue of any previous engagement cannot be considered as an incidental matter having regard to the terms of reference. The question to be considered by the Court was whether the employee proved 240 days of continuous service in a period of twelve months preceding his last termination. 6.9. By relying upon the above, she submits that the Labour Court has travelled beyond what it could adjudicate under section 33 (C)(2), therefore, the impugned order passed by the Labour Court is required to be set aside. 3 2018 (3) LLJ611(Bom) - 13 - WP No.7032 of 2022 7. Sri. A.J.
Srinivasan., learned counsel appearing for the workman, would submit that 7.1. The claim of the workman, apart from several other documents, was based on Exhibit-A1 and A4, A1-being the appointment letter, A4-being the letter fixing the salary of Rs.5,000/- with effect from 1.6.2007 with an additional increment of Rs.1,000/- per annum commencing from January of every year. 7.2. His contention is that from 18.6.2000, the full salary was not paid in terms of Exhibit-A1 where under the amount of Rs.3,000/- was to be paid as monthly salary and in terms of Exhibit-A4, the agreed sum of Rs.5,000/- has not been paid nor have the increments been paid on time. 7.3. This being a preexisting document prior to the claim made by the workman, the workman has calculated the same in terms of Exhibit-A15 and - 14 - WP No.7032 of 2022 placed the same on record before the Labour Court giving details of the payment required to be made, the actual payment made and balance due. This has been taken into account by the Labour Court, and as such, the finding of the Labour Court is proper and correct and is not required to be disturbed. 7.4. In the alternative, he further submits that the statements having been placed on record by the workman in term of Exhibit-A15 it was for the employer to have countered and/or rebutted the evidence on record the same not having been done, a mere denial by the employer will not inure to the benefit of the employer. The amount claimed is bonafide and calculated on the basis of Exhibit-A1 and A4, which has been taken into consideration by the Labour Court. 7.5. The pre-existing right and Exhibit-A1 and A4 being in terms of the documents the same - 15 - WP No.7032 of 2022 could be adjudicated in terms of Section 33(C)(2), the adjudication is basically the calculation which has been done by the Labour Court and the claim made contrary thereof by the employer not having been countenanced by any evidence on record the order passed by the Labour Court is proper and correct. 7.6. In support of his contention, he relies upon Central Bank of India Ltd. v. P.S. Rajagopalan4 more particularly para 5, 9, 11, 16, 18 and 19 thereof, which are reproduced here under for easy reference.
5. The principal contention which has been urged before us by the appellant is one of jurisdiction. It is argued that the Labour Court has exceeded its jurisdiction in entertaining the applications made by the respondents because the claims made by the respondents in their respective applications are outside the scope of Section 33-C(2) of the Act. In dealing, with this point, it is necessary to read Section 33-C: “(1) Where any money is due to a workman from an employer under a settlement or an award or 4 AIR1964SC743- 16 - WP No.7032 of 2022 under the provisions of Chapter V-A, the workman may without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue. (2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in sub-section (1). (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case.
9. The question which arises for our decision is, however, slightly different. It is urged by the appellant that sub-section (2) can be invoked by a workman who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and could not be a matter of dispute - 17 - WP No.7032 of 2022 between the parties in cases which fall under sub- section (2). The argument is, if there is a dispute about the workman's right to claim the benefit, that has to be adjudicated upon not under sub- section (2), but by other appropriate proceedings permissible under the Act, and since in the present appeals, the appellant disputed the respondents' right to claim the special allowance, the Labour Court had no jurisdiction to deal with their claim. In other words, the contention is that the opening words of sub-section (2) postulate the existence of and admitted right vesting, in a workman and do not cover cases where the said right is disputed.
11. Before dealing with the question of construction thus raised by the parties in the present proceedings it would be material to refer briefly to the legislative history of this provision. The Act, as it was originally passed made relevant provisions on the broad basis that industrial disputes should be adjudicated upon between trade unions or representatives of labour on the one hand and the workmen's employer's on the other. That is why Section 10(1) which deals with the reference of disputes to boards, courts or tribunals, has been interpreted by this Court to mean that the disputes which are referable under Section 10(1) should be disputes which are raised by the trade unions to which the workmen belong or by the representatives of workmen acting in such a representative character. It was, however, realised that in denying to the individual employees a speedy remedy to enforce their existing rights, the Act had failed to give due protection to them. If an individual employee does not seek to raise an industrial dispute in the sense that he does not want any change in the terms and conditions of service, but wants only to implement or enforce his existing rights, it should - 18 - WP No.7032 of 2022 not be necessary for him to have to take recourse to the remedy prescribed by Section 10(1) of the Act; that was the criticism made against the omission of the Act to provide for speedy enforcement of individual workman's existing rights. In order to meet the criticism, an amendment was made by the legislature in 1959 by Section 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950). Section 20 of this Act provided for recovery of money due from an employer under an award or decision. This provision filled up the lacuna which was discovered, because even after an award was made individual workmen were not given a speedy remedy to implement or execute the said award, and so, Section 20 purported to supply that remedy. Section 20(1) provided that if money was due under an award or decision of an Industrial Tribunal, it may be recovered as arrears of land revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the said money. Section 20(2) then dealt with the cases where any workman was entitled to receive from the employer any benefit under an award or decision of an Industrial Tribunal which is capable of being computed in terms of money, and it provided that the amount at which the said benefit could be computed may be determined, subject to the Rules framed in that behalf, by that Industrial Tribunal and the amount so determined may be recovered as provided for in sub-section (1). In other words, the provisions of Section 20(2) roughly correspond to the provisions of Section 33C(2) of the Act. There are, however, two points of distinction. Section 20(2) was confined to the benefits claimable by workmen under an award or decision of an Industrial Tribunal; and the application to be made in that behalf had to be filed before the Industrial Tribunal which made the said award or decision. These two - 19 - WP No.7032 of 2022 limitations have not been introduced in Section 33C(2). Section 20(3) corresponds to Section 33C(3). It would thus be noticed that Section 20 of this Act provides a speedy remedy to individual workmen to execute their rights under awards or decisions of Industrial Tribunals. Incidentally, we may add that Section 34 of this Act made a special provision for adjudication as to whether conditions of service had been changed during the pendency of industrial proceedings at the instance of an individual workman and for that purpose inserted in the Act Section 33A. Act 48 of 1950 by which Section 20 was enacted came into force on May 20, 1950.
16. Let us then revert to the words used in Section 33C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-section (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer?. According to the appellant, the scope of sub- section (2) is similar to that of sub-section (1) and it is pointed out that just as under sub-section (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-section (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. 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 - 20 - WP No.7032 of 2022 to be determined by the Labour Court. Before proceeding to compute the benefit in term 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 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 Section 33-C(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 the right and such an enquiry must be held to be incidental to the main determination - 21 - WP No.7032 of 2022 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 Section 33-C(2) takes within its purview cases of workmen who claimed 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 employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-section (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-section (2). On the other hand, sub-section 3 becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-section (2).
18. Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the executing court to interpret the decree for the purpose of execution. It is, of course true that the executing court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under Section - 22 - WP No.7032 of 2022 33-C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under Section 33-C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests.
19. We have already noticed that in enacting Section 33-C the legislature has deliberately omitted some words which occurred in Section 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable that similar words of limitation have been used in Section 33- C(1) because Section 33-C(1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter V-A. It is thus clear that claims made under Section 33- C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter V-A. These words of limitations are not to be found in Section 33-C(2) and to that extent, the scope of Section 33-C(2) is undoubtedly wider than that of Section 33-C(1). It is true that even in respect of the larger class of cases which fall under Section 33-C(2), after the determination is made by the Labour Court the execution goes back again to Section 33-C(1). That is why Section 33-C(2) expressly provides that the amount so determined may be recovered as provided for in sub-section (1). It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under Section 33-C(2). There is no doubt that the three categories of claims mentioned in Section 33-C(1) fall under Section 33-C(2) and in that sense, Section 33-C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V-A, may also be - 23 - WP No.7032 of 2022 competent under Section 33-C(2) and that may illustrate its wider scope. We would, however, like to indicate some of the claims which would not fall under Section 33-C(2), because they formed the subject-matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. 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 Section 33- C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made under Section 33-C(2). If a settlement has been duly reached between the employer and his employees and it falls under Section 18(2) or (3) of the Act and is governed by Section 19(2), it would not be open to an employee, notwithstanding the said settlement, to claim the 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 Section 33-C(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 to be dealt with according to the other procedure prescribed by the Act. Thus, our conclusion is that the scope of Section 33-C(2) is wider than Section 33-C(1) and cannot be wholly assimilated with it, though for obvious reasons, we do not propose to decide or indicate what additional cases would fall under Section 33-C(2) which may not fall under Section 33-C(1). In this connection, we may - 24 - WP No.7032 of 2022 incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd. [1962 (1) LLJ234 that Section 33-C is a provision in the nature of execution should not be interpreted to mean that the scope of Section 33- C(2) is exactly the same as Section 33-C(1) (p. 238). 7.7. Relying on the above he submits that the adjudication of a claim to the benefit made by the workman is permissible under the Act and can be invoked by the workman who is entitled to receive from the employer a benefit which is specified. He submits that in the earlier section 22 there was a restriction and/or further requirements to be proved but in terms of the Section 33(C)(2) of the Industrial Dispute Act, 1947 those restrictions have been done away with. Under Section 22 it was only an amount fixed under a settlement which could be sought to be recovered, but under Section 33(C)(2) a speedy remedy has been provided to the individual workman to execute their rights as - 25 - WP No.7032 of 2022 per existing agreements in contra distinction with that under an award or a settlement. 7.8. the Labour Court under Section 33(C)(2) can determine and compute the benefit in terms of money and necessary enquiry could be carried out for that limited purpose. 7.9. He relies upon the decision in Ram Kewal vs. Labour Court,5 more particularly para 4 thereof, which is reproduced here under for easy reference.
4. A reading of the above provisions clearly shows that they are independent of each other. Section 33-C(2) is not dependent on S. 33-C(1). The remedies provided under Ss. 33C(1) and 33-C(2) are quite independent. It is no doubt true that the claims arising out of an award or settlement under Chaps. V-A and V-B can be dealt with under Sub- sec. (1) of S. 33-C. Every claim can be entertained under Sub-sec. (2) of S. 33-C. A reading of both the provisions clearly shows that scope of S. 33- C(2) is wider than that of S. 33-C(1). When the order of termination has been set aside the petitioner was directed to be reinstated with full back-wages, a right has been accrued to the petitioner to get the back-wages under the award and the claim of the workman for the monetary benefits is capable of being computed and, 5 1997 (2) LLJ605- 26 - WP No.7032 of 2022 therefore, the claim of the petitioner for back- wages, bonus and leave salary will fall within Sub- sec. (2) of S. 33-C. No further adjudication is required in regard to the claims made by the workman. As already stated, the scope of S. 33- C(2) is wider than that of S. 33-C(1). Therefore, a petition under S. 33-C(2) of the Act is maintainable where an individual workman or workmen claim amount of money due or amount at which the benefit should be computed, but such claim must be based on an existing right. The existing right itself should have vested either under a settlement of an award or under the provisions of Chap. V-A or Chap. V-B or conferred under the provisions of any statute. Once the right is shown to be existing under any of the above, the Labour Court would have jurisdiction to entertain the petition and; ascertain the money due or the amount at which the benefit is to be computed. The mere denial of such an existing right by the employer does not take away the jurisdiction of the Labour Court to entertain a petition under Sub-sec. (2) of S. 33-C. Section 33- C(1) applies to cases where money is due to a workman under an award or settlement or under Chap. V-A of the Act already calculated and ascertained and, therefore, there is no dispute about its computation. But Sub-sec. (2) applies both to non-monetary as well as monetary benefits. Section 33-C(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 employers. Just as executing Court is competent to interpret the decree, so also the Labour Court is competent to construe the settlement, award or a statute under which the right is claimed.-. 27 - WP No.7032 of 2022 7.10. By relying on the above he submits that under Section 33(C)(1) there is a requirement for an award or settlement but under Section 33(C)(2) the claim of the workman for the benefit to be computed in terms of money even though that claim is disputed by the employer can be considered by the Labour Court. 7.11. He relies upon on the decision of Management of International Travel Service v. A.S. Devaraja,6 more particularly para 8 thereof, which is reproduced here under for easy reference; 8. In the case of Ram Kewal v. Presiding Officer, Labour Court, Faridabad & Anr [1997 (2) LLJ605 , it is held that S.33(c)(1) and (2) applications under the Industrial Disputes Act are independent of each other and the scope under S.33(c)(2) is wider and takes within its purview the case of the workman who claims any benefit which could be computed in terms of money just as an executing Court is competent to compute the dues. The Labour Court is also competent to construe the 6 2010 (3) LLJ528- 28 - WP No.7032 of 2022 settlement, award or a statute under which the right is claimed. 7.12. By referring to the above, he submits that this Court has applied the decision in Ram Kewal case5 and held that the provision of Section 33(C)(2) is wider and takes within its purview the case of the workman who claims any benefit which could be computed in terms of money just as an executing court is competent to compute the dues the Labour Court is competent to decide on those issues. 7.13. He relies on the decision of this Court dated 31.8.2009 in the case of M/S International Travel Service Vs. Sri.A.S.Devaraja7 more particularly para 14 thereof, which is reproduced here under for easy reference.
14. The Labour Court has held that on the basis of the claim of the respondent disputed by the appellant/employer on the grounds referred to supra and also alternative plea of the employer that the claim of the respondent 7 Writ Appeal No.2588/2009 - 29 - WP No.7032 of 2022 is settled, is rightly not accepted by the Labour Court by recording its reasons. The Labour Court has recorded a finding of fact on the contentions points that arose in the proceedings and partly allowed the claim in respect of payment of difference of minimum wages, leave with wages and the bonus along with interest at 6% p.a. The monetary claim of the respondent was sought to be disputed on the various technical plea of limitation disputed for the first time in this appeal. The same is rejected by us for the reasons stated. 7.14. By relying on the aforesaid decision, he submits that even a claim for leave with wages and/or bonus could be made under Section 33(C)(2). 7.15. He refers to the Arkal Govind Raj Rao v. Ciba Geigy of India Ltd.,8 more particularly para 6 and 16 thereof, which are reproduced here under for easy reference.
6. Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. In other words, the 8 1985 (3) SCC371- 30 - WP No.7032 of 2022 dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant.
16. The test that one must employ in such a case is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth. 7.16. By referring to the above decision, he submits that the primary test to determine whether a person is a workman or an administrative staff so has to decide whether the said workman would come within the purview of Section 2(s) of the Industrial Dispute Act would be - what is the primary or basic or dominant nature of duties which are performed by a person, a few - 31 - WP No.7032 of 2022 extra duties would not be relevant to determine the status of a person to be that of an Administrative Officer and not as a workman. 7.17. He refers to the statement of the objection filed by the employer before the Labour Court more particularly para 5 thereof, which is reproduced hereunder for easy reference:
5. . Without prejudice to the above averments this respondent humbly begs to submit the following true set of facts before this Honorable Court. a]. The Applicant has falsely claimed the salary and other benefits payable to the Administrative Officer of the Institution. In fact the Applicant has never worked in the capacity of the Administrative officer in the institution and moreover the Applicant is not a qualified person to be appointed as Administrative Officer of the Institution. Hence at no stretch of imagination the Applicant is entitled to the benefits as claimed by him in the application. b]. That, there is no salary due payable by this Respondent to the Applicant. T salary claimed in the annexed table is totally false. The Respondent has duly p the salary of the Applicant. c]. Memo dated 20-06-2008 is a concocted document. It is apparent in the me that, the said memo is not signed by the authorized signatory of the Institution - 32 - WP No.7032 of 2022 Thus the claim of the Applicant that, he has been promoted to the post of t Administrative Officer is per se false and self serving statement made with intention of making unlawful gains if possible. The Managing Director of the Respondent Society alone is having the power to make appointments and to issue promotion order. d]. The Applicant is not entitled to leave salary and arrears of salary as claimed in the petition. There is no due payable by this Respondent Society to the Applicant. e]. This Respondent disputes the very maintainability of the present petition before this Honorable Court as the Administrative Officer is not covered within the definition of workman under the Act. On this ground alone the petition is liable to be dismissed in limine. 7.18. By referring to the above, he submits that the employer is approbating and reprobating in as much as the claim of the employer is that because the post occupied by the workman is designated as Administrative, he would not come under Section 2(S) of the Industrial Dispute Act. 7.19. In para 5(a) of the objections the employer himself has categorically stated that the workman has never worked in capacity of an - 33 - WP No.7032 of 2022 Administrative Officer in the institution and that he was not qualified to be appointed as an Administrative Officer of the institution. 7.20. He submits that the employer cannot take advantage of the situation on the one hand contenting that the Labour Court has no jurisdiction on the ground of the workman being an Administrative Officer and on other hand contend that he was not qualified to be an Administrative Officer and as such not entitled to the monies. 7.21. This submission made by the employer in the statement of the objection enures to the benefit of the workman is the contention on the ground that the workman did not have the qualifications to be appointed as an administrative or managerial officer.-. 34 - WP No.7032 of 2022 7.22. He refers to Mahajan Borewell Company v. Rajaram Bhat,9 more particularly para 10 thereof, which is reproduced here under for easy reference.
10. The question as to whether a particular person was a workman or not is a pure question of fact which is normally not interferred with by this Court in exercise of writ jurisdiction, unless such finding is shown to be perverse or based upon no evidence. The Supreme Court in Dharangadhra Chemical Works Ltd. v. State of Saurashtra [AIR1957SC p. 264.]. held that the question whether the relationship between the parties is one as of employer and employee or that of the master and servant is a pure question of fact. The decision of the Industrial Tribunal on the question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless at the least it is shown to be fully unsupported by the evidence. Where there existed material on record, on the basis of which the labour Court could come to the conclusion that the person employed was a workman, the High Court in exercise of its jurisdiction under Article 226 and 227 of the Constitution was not competent to set aside the finding of the fact recorded by the Labour Court. Mere possibility of arriving at a different conclusion was held to be no ground to interfere with the finding of fact arrived at by such labour Court. In Andhra Scientific Co. Ltd. v. A. Seshagiri Rao [AIR1967SC p. 408.]. it was held:— 9 ILR1998KAR172- 35 - WP No.7032 of 2022 “What functions were actually being performed by the employee is a question of fact and the High Court has rightly pointed out that when the Labour Court has on a consideration of the evidence come to a conclusion as regards these functions and has on the basis thereof held that the employee comes within the definition of workman in Section 2(s) of the Act, the High Court would not interfere under Article 226 except in cases where there is clear error on the face of the record. The High Court, however, proceeded to consider the evidence itself and held that the correct picture of the functions that were being performed by Shri Seshargiri Rao was afforded by Ex. A-10 in these terms:— ‘Maintenance of general stores-packing and despatching stock-accounts and effective check over them-stock requisitions”. Similarly in Hindustan Antibiotics v. Workmen [AIR1967SC948]. the Court declined to interfere with the findings of fact arrived at by the Tribunal constituted under the Act. There has, therefore been a consistent view of the constitutional Courts not to interfere with the findings of fact arrived at by the Boards, Courts or Tribunals constituted under the Act. 7.23. He submits that the Labour Court having come to a conclusion that the applicant before the Labour Court was a workman, this Court in exercise of powers under article 226 of the - 36 - WP No.7032 of 2022 constitution or 227 of the constitution ought not to set aside the finding of the facts recorded by the Labour Court and said finding of the fact is required to be confirmed.
8. In rejoinder of Ms. Kaveri Thimmaiah., learned counsel for the petitioner would again reiterate the submissions made but further submits that none of the ledgers were available with the employer since the employer is now under a new management and it is for that reasons that the earlier ledgers from the year 2000-2010 could not be produced. However, ledgers post 2011 when the new management took over has been produced which has been taken note by the Labour Court in para 13 of the judgment when reference to Exhibit-A31 and 32 has been made but merely on coming to the conclusion there are no payment which are reflected therein, the Labour Court has come to a wrong conclusion that payments has not been made and it ought to have come to a - 37 - WP No.7032 of 2022 conclusion that there is no payment which is due to paid. It is on that basis, she again reiterates that the writ petition is required to be allowed and the impugned order passed by the Labour Court is required to be set aside.
9. Heard Ms. Kaveri Thimmaiah., learned counsel for the petitioner and Sri. A.J.
Srinivasan., learned counsel for the respondent. Perused the papers.
10. The points that would arise for determination in the present matter are that:
1. What are the powers of the Labour Court under section 33(C)(2) of the Act to decide on the claims made by a workman before it?.
2. Whether the contention of the employer that there are no dues liable to be paid to the employee would be sufficient enough for the Labour court to dismiss the claim made by the workman on the grounds that they are disputes between the parties which cannot be adjudicated under section 33 (C)(2) of the I.D.Act?. - 38 - WP No.7032 of 2022 3. Whether in the present case, the respondent is a workman within the meaning of Section 2(s) of the I.D.Act of 1947?.
4. Whether the order passed by the Labour Court suffers from any legal infirmities?.
5. What order?.
11. I answer the above points as under:
12. Answer to Point No.1: What are the powers of the Labour Court under Section 33(C)(2) of the Act to decide on the claims made by a workman before it?. 12.1. Section 33(C) of the I.D.Act reads as under:- 33C. Recovery of money due from an employer.- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover - 39 - WP No.7032 of 2022 the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (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; Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]. (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, - 40 - WP No.7032 of 2022 after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub- section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. 12.2. A perusal of the above provision would indicate that essentially there are two distinct portions to the said provision. 12.3. Section 33(C)(1) of the I.D.Act deals with the situation where money is due to a workman - 41 - WP No.7032 of 2022 under a settlement or an award or under the provision of Chapter V-A or Chapter V-B. 12.4. Section 33(C)(2) of the I.D.Act deals with all claims made by a workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. 12.5. Section 33(C)(3) of the I.D.Act provides a methodology of calculation or computing the money value of a benefit, when the Labour Court could appoint a Commissioner who could take evidence as may be necessary and submit a report to the Labour Court for the purpose of determination of the amount. 12.6. Section 33(C)(4) of the Act provides for the decision of the Labour Court to be forwarded to the appropriate Government as also the manner in which the application can be filed by - 42 - WP No.7032 of 2022 a single workman or as also by number of workmen. 12.7. In terms of Section 33(C)(5) of the Act, a single application could also be made by several workmen. 12.8. The contention of Ms.Kaveri Thimmaiah, learned counsel for the employer is that the claim of the workman was not maintainable since the same required computation and determination which could not be done by the Labour Court. It is this aspect which is required to be adjudicated by this Court. 12.9. In Bombay Chemical Industries case, the Hon’ble Apex Court has held that where the employment of a salesman was seriously disputed on the ground that documents are forged and false, any claim made by such - 43 - WP No.7032 of 2022 employee would not come within the ambit of Section 33 (C) (2) of the Act. 12.10. In Ram Chandra Dubey’s case, it was held that unless there is a pre-existing right, no claim under Section 33 (C)(2) of the Act could be made. Merely because a claim is just and fair, the same cannot be considered under Section 33(C)(2) of the Act. 12.11. In Rajagopalan’s case, the distinction between Sections 33(C)(1) and 33(C)(2) of the I.D.Act has been categorically made and the Hon’ble Apex Court has held that in terms of 33(C)(1) of the Act, a settlement having been arrived at can be enforced and in terms of 33(C)(2) of the Act, if there is a benefit which can be computed in terms of money, the Labour Court could compute the said benefit in terms of money and then pass necessary orders for payment of the same.-. 44 - WP No.7032 of 2022 12.12. Again in Ram Kewal’s case, the distinction between Section 33(C)(1) and 33(C)(2) of the Act has been explained. In Devaraja’s case, wherein it has categorically held that Section 33(C)(2) of the Act is wider and takes within its purview the case of the workman who claims any benefit which could be computed in terms of money. 12.13. In the present case, the claim of the workman is that he had been appointed as a steno on 18.06.2000 on a monthly salary. Over a period of time, necessary amounts were not paid and it is on that basis that a claim was made and along with the said claim, a statement showing the amounts due month on month was placed. The amounts paid and the amount required to be paid was placed on record. Despite the same being made known to the employer, the employer did not lead any rebuttal evidence, - 45 - WP No.7032 of 2022 more so, when the petitioner being the employer is deemed to have in its possession all the documents relating thereto. 12.14. Ms.Kaveri Thimmaiah, learned counsel for the employer submitted that the same could not be produced on account of the management having changed and new management not having the documents. I am of the considered opinion that an employer cannot take such a defence and contend that because there is a change in the management, they do not have the document and therefore, it could not be produced. 12.15. The workman having placed the statements in terms of Ex.A-15, being the aforesaid statements, has discharged his burden on the claim made by him. It was therefore required of the employer to counter the same, failure - 46 - WP No.7032 of 2022 thereof, would result in the version of the workman being accepted. 12.16. The claim of the workman flowing from the fact that the workman being appointed by the employer, such appointment and employment not being disputed, I am of the considered opinion that the decision in Bombay Chemical Industries’s case would not be applicable to the present facts and situation. 12.17. The claim of the workman being in furtherance of the employment by the employer, such employment giving raise to a claim made by a workman under Section 33(C)(2) of the Act would amount to a claim being made on a pre- existing benefit viz., the amounts due under a pre-existing right viz., the employment. Thus, the test laid down by the Hon’ble Apex Court in Ram Chandra Dubey’s case having been - 47 - WP No.7032 of 2022 fulfilled, an application in this case being made by the workman is sustainable. 12.18. Section 33 (C)(3) of the Act as referred to supra also provides for the Labour Court to appoint a Commissioner who can take such evidence as may be necessary and submit a report to the Labour Court and the Labour Court could determine the amount after considering the report. Section 33 (C)(3) of the Act would apply to both Section 33 (C)(1) of the Act and Section 33 (C)(2) of the Act. 12.19. The object and purport of the I.D.Act being to provide speedy and effective justice to a workman and speedy resolution of the dispute between the employer and the workmen so as to maintain peace at the industrial place, the claim made by a workman under Section 33 (C)(2) of the Act are required to be summarily considered and either allowed or rejected.-. 48 - WP No.7032 of 2022 12.20. The computational power under sub-Section (3) of Section 33 of the Act would indicate that the Labour Court would have powers to decide on the amounts due by computing and calculating the amounts which have been paid and the amounts which were required to be paid thereby arriving at the amounts which were due. 12.21. Thus, it is not only a situation where the amount is quantified and/or crystalised that the provision of Section 33(c)(2) of the Act can be invoked, in my considered opinion, the Labour Court would have enough and more powers to determine if there is an employer and employee relationship and thereafter determine what are the amounts which are due to the workman and after taking into consideration the amounts paid, if there are amounts due, direct the payment thereof.-. 49 - WP No.7032 of 2022 13. Answer to Point No.2: Whether the contention of the employer that there are no dues liable to be paid to the employee would be sufficient enough for the Labour court to dismiss the claim made by the workman on the grounds that they are disputes between the parties which cannot be adjudicated under section 33 (C)(2) of the Act?. 13.1. The contention of Ms.Kaveri Thimmaiah, learned counsel for the employer is that the dues which have been claimed by the workman are disputed by the employer and according to the employer, the amounts are not due and on that basis, she submits that the Labour Court ought not to have proceeded with the matter under Section 33 (C)(2) of the Act and ought to have dismissed it. If such a submission is accepted, I am afraid in all cases the employer would dispute the amounts due resulting in any claim filed by the workman being required to be dismissed, which according to me would not satisfy the purport and intent of Section 33 (C) - 50 - WP No.7032 of 2022 of the Act let alone the purport and ambit of the Industrial Disputes Act. 13.2. The fact that the workman was required to approach the Labour Court under Section 33 (C)(2) of the Act would indicate that there is a dispute. If there was no dispute, then the employer would have made payment of the monies and the workman would have received the money and there would have been no requirement to agitate any claim or right of the workman before any forum. The reason why the workman could approach Labour Court either under Section 33 (C)(1) of the Act or Section 33 (C)(2) of the Act is on account of the amounts due not having been paid by the employer. 13.3. It is in those circumstances, as answered to Point No.1 above, the Labour Court would have to determine whether the workman is entitled to claim any amount. If so, then the Labour - 51 - WP No.7032 of 2022 Court could determine the amount, which is required to be paid. Merely because the employer denies the claim, the same would not amount to the claim not being there and/or requiring the workman to be relegated to the Civil Court. It is for the employer to produce cogent evidence to dispute the claim made by the workman. In the present case, as observed above, the workman had produced the dues claimed by him in terms of Ex.A-15 which was required to be countered by the employer. The only counter offered by the employer is that the documents are not available with the employer. As referred to supra, the same is not a ground to reject the claim of the workman. 13.4. As such, I answer Point No.2 by holding that the mere contention of the employer that there are no dues liable to be paid to an employee would not be sufficient to dismiss the claim made by the workman nor would the contention - 52 - WP No.7032 of 2022 of the employer alleging that there are disputes would require the rejection of the claim.
14. Answer to Point No.3: Whether in the present case, the respondent is a workman within the meaning of Section 2(s) of the I.D.Act of 1947?. 14.1. Section 2(s) of the Act reads as under:- “"Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees]. per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” - 53 - WP No.7032 of 2022 14.2. The contention of Ms.Kaveri Thimmiah, learned counsel for the employer is that the workman himself claiming to be a person working as an Administrative Officer and he would not come within the purview of Section 2(s) of the Act to make any claim before the Labour Court. 14.3. A perusal of the objection statement filed by the employer before the Labour Court more particularly Para 5 would indicate that the contention of the employer before the Labour Court was that the workman had never worked in the capacity of the Administrative Officer in the institution and that the workman was not qualified to be appointed as an Administrative Officer in the institution. This being a categorical submission made by the employer, the employer cannot now contend that the claimant is not a workman within the meaning of Section 2(s) of the Act on the ground that - 54 - WP No.7032 of 2022 the said workman was discharging his role as an Administrative Officer. No party to a litigation can approbate or reprobate or put it in other words blow hot or blow cold. Any party to a litigation is put to election as to the stand he intends to take. The employer having taken the stand that the workman could not have been appointed as an Administrative Officer and that he did not have the capacity to work as an Administrative Officer cannot now in an appeal contend that the claim filed by the workman before the Labour Court could not have been considered since he was not a workman but was appointed as an Administrative Officer. Thus, the said contention also stands rejected.
15. Answer to Point No.4: Whether the order passed by the Labour Court suffers from any legal infirmities?. 15.1. In view of the answers to Point Nos.1 to 3 above, it is clear that there was an employer employee - 55 - WP No.7032 of 2022 relationship between the petitioner and the respondent. The respondent-workman had made a claim for certain amounts of money which had not been paid. This amount was not rebutted by the employer by producing cogent evidence. The claimant coming within the purview of Section 2(s) of the ID Act, the Labour Court has rightly considered the matter and allowed the claim of the workman. Hence, I do not find any infirmity in the said order.
16. Answer to Point No.5: What order?. 16.1. For all the aforesaid reasons, the Writ Petition stands dismissed. Sd/- JUDGE SR/Prs List No.:
1. Sl No.:
14.