Central Group and ors. Vs. Shri Narayan Gangaram Patil Through United Mazdoor Union - Court Judgment

Excerpt:
labour and industrial - recovery of statutory dues - computation of benefit - claim of - section 33c(2) of the industrial disputes act, 1947 - respondent-workman employed by the appellant, claimed the recovery of legal dues before the labour court - appellants refuted any employeremployee relationship with the respondent as the power looms in which the respondents were working were running on rental basis - labour court by its order held that it had the jurisdiction to decide the issue of employeremployee relationship between the parties directed the appellants to pay an amount towards overtime wages, leave wages and bonus - appellant challenged the order of the labour court by a writ petition which was dismissed by the single judge - hence, the present intra court appeal - held, claim under section 33c(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the labour court by sub-section (2) - when the employer-employee relationship is disputed, the onus to prove the same also falls on the disputing party - appellants did not discharge their onus to prove that the power looms were running on rental basis - computation of the benefits of the overtime wages, leave wages and payment of bonus, there was absolutely no opposition or dispute raised by the appellants before the labour court - labour court passed a reasoned award and allowed the claim application - no infirmity in the order passed by the single judge in confirming the award passed by the labour court and therefore does not call for any interference - appeal dismissed - - as noted earlier, the appellants challenge to the said order dated 18/11/2002 failed before the learned single judge in writ petition no. ..the claim under section 33c(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the labour court by sub-section (2)..whereas, in the case of ganesh razak (supra) the maintainability of application under section 33c(2) was disputed on the ground that the claim of the workman to be paid at the same rate as the regular workman was not adjudicated earlier by any competent forum and in fact it was disputed. it is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the labour courts power under section 33c(2) like that of the executing courts power to interpret the decree for the purpose of its execution. 7. it is thus well settled that while deciding the application under section 33c(2) of the i. there is a distinction drawn between the terms 'entitlement' and 'status'.it is well settled that if in an application under section 33c(2) of the i.b.h. marlapalle, j.1. this intra court appeal is directed against the order passed by the learned single judge on 9/6/2004 thereby rejecting writ petition no. 1041 of 2004. the writ petition was filed under article 226 and 227 of the constitution so as to challenge the award dated 18/11/2002 passed by the fourth labour court at thane in application (ida) no. 208 of 1999 filed under section 33c(2) of the industrial disputes act, 1947 (for short the i.d. act).2. the respondent-workman had approached the labour court on or about 23/4/1999 by filing application (ida) no. 208 of 1999 and claimed the recovery of legal dues, namely, (a) overtime for the year 1990 to 1998, for four hours extra duty on every day, (b) 21 days leave pay for every year of service from 1990 to 1998 and (c) bonus at the rate of 8.33% for the period from 1990 to 1998. it appears around the same time the workman also filed complaint (ulp) no. 231 of 1999 challenging the termination of service with effect from 25/2/1999 and the complaint was filed under section 28 read with item 1 of schedule iv of the m.r.t.u. & p.u.l.p. act, 1971. the employer, on receipt of the notice from the labour court in both the cases, appeared and opposed the claim contending that (a) the workman was never employed by the appellant no. 1 -central group, (b) though appellant nos. 2 to 5 owned 18 powerlooms, none of the appellants were running the same and the powerlooms were rented out to one shri kantilal rajput by way of an agreement, (c) the shed in which the powerlooms were installed was demolished by the bhiwandi nijampur municipal council for widening of the road on 21/11/1998 and as there was no employer-employee relationship between the workman and the appellants, the claim for recovery of statutory dues or the complaint for reinstatement was not maintainable. it is also clear from the record that complaint (ulp) no. 231 of 1999 came to be withdrawn subsequently by the workman. however, he pursued the application for recovery of statutory dues. the workman examined himself, whereas on behalf of the appellants, shri lalit chunilal jain was examined. the labour court by its judgment and order dated 18/11/2002 held that it had the jurisdiction to decide the issue of employer-employee relationship between the parties and it allowed the application by directing the appellants to pay an amount of rs. 4,97,064/-towards overtime wages, leave wages and bonus. as noted earlier, the appellants challenge to the said order dated 18/11/2002 failed before the learned single judge in writ petition no. 1041 of 2004.3. at the first instance, we must note that complaint (ulp) no. 231 of 1999 was disposed as withdrawn by the first labour court at thane on 12/6/2003 with liberty to the workman to raise an industrial disputes for reinstatement in service. the withdrawal of the complaint has no bearing on the award impugned in the writ petition.4. mr. oak the learned counsel for the appellants reiterated his arguments advanced before the learned single judge and emphasised that the labour court did not have the jurisdiction to decide the issue of employer-employee relationship in an application filed under section 33c(2) of the i.d. act. in support of this sole ground, he has relied upon the decisions in the case of municipal corporation of delhi v. ganesh razak and anr. : (1995)illj395sc and tara and ors. v. director, social welfare and ors. : air1999sc1508 .5. section 33c(2) of the i.d. act reads as under:33c. recovery of money due from an employer.(1) ...(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 within a period not exceeding three months.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.6. the constitution bench in the case of the central bank of india ltd. v. p.s. rajagopalan : (1963)iillj89sc has dealt with the scope of section 33c(2) of the i.d. act and it would be appropriate to reproduce the following observations in this regard:16. ...in our opinion, on a fair and reasonable construction of sub-section (2) it is clear that if a workmans right to receive the benefit is disputed, that may have to be determined by the labour court. before proceeding to compute the benefit in terms of money, the labour court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. if the said right is not disputed, nothing more needs to be done and the labour court can proceed to 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 than the next question of making the necessary computation can arise.... the claim under section 33c(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the labour court by sub-section (2)....whereas, in the case of ganesh razak (supra) the maintainability of application under section 33c(2) was disputed on the ground that the claim of the workman to be paid at the same rate as the regular workman was not adjudicated earlier by any competent forum and in fact it was disputed. it was under these circumstances, the supreme court held,the labour court has no jurisdiction to first decide the workmens entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33c(2) of the act. it is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the labour courts power under section 33c(2) like that of the executing courts power to interpret the decree for the purpose of its execution.7. it is thus well settled that while deciding the application under section 33c(2) of the i.d. act, the labour court has the power to decide incidental issues. the application filed under section 33c(2) of the i.d. act is akin to the executing proceedings. if the applicants entitlement is not preadjudicated or based on a statutory claim or claim arising from a settlement, the labour court cannot entertain the claim. there is a distinction drawn between the terms 'entitlement' and 'status'. it is well settled that if in an application under section 33c(2) of the i.d. act, the employer claims that the applicant is not a workman within the meaning of section 2(s) of the i.d. act, the same can be decided by the labour court as an incidental issue. similarly, if the employer disputes the employer-employee relationship, the labour court has the jurisdiction to decide the same as an incidental issue while deciding an application filed under section 33c(2) of the i.d. act.8. in the instant case, the workman examined himself and stated that he was employed by the appellants and more particularly appellant no. 1 and the appellant nos. 2 to 5 were the partners of the said firm. when the employer-employee relationship is disputed, the onus to prove the same also falls on the disputing party. the appellants examined shri lalit jain. in his examination-in-chief he stated,the above said power looms were given on contract basis for running to mr. kantilal rajput on 1.11.91 by executing a separate individual agreement, and the above said looms were run by him after 1.11.91. at present looms are not running because the shed was demolished by the bhiwandi corpn on 21.11.98.i have filed zerox copy of demolition punchanama dt. 21.11.98 on record. demolished punchanama was prepared in the presence of banehal. exh.16 is a zerox copy of demolition punchanama. the power looms were given to kantilal rajput for running on rental basis for a period of 11 months and thereafter leave and licence period was extended from time to time till 28.2.99....on 19/8/2002 shri jain was in the witness box and after his examination-in-chief was concluded, he offered himself for cross-examination for a short time and admitted that the four motors installed in the shed bearing no. 264 were in the name of the applicants and the said shed was taken on rent by his father i.e. original opponent no. 4 after executing leave and licence agreement. the cross-examinatino was deferred and after 19/8/2002 mr. jain did not offer himself for further cross-examination and, therefore, rightly the labour court did not consider the depositions in examination-in-chief of shri jain. the labour court noted that the so called agreement between the appellants and kantilal rajput was never brought on record and what was brought on record was a xerox copy and as it was not proved, it was not exhibited. thus beyond a bald oral statement that the powerlooms were rented out to mr. kantilal rajput, there was no evidence in that regard and mr. kantilal rajput was not examined by the appellants to support their case that in fact he was running the 18 power looms installed in shed no. 264. if mr. kantilal rajput was examined before the labour court he could have been called upon to produce the muster-rolls, wage register and other record in respect of his employees. the appellants did not discharge their onus to prove that the power looms were being run by mr. kantilal rajput on rental basis from 1190 to 1998. obviously, the contentions that the workman was not employed by the appellants was only to defeat the application and the appellants could not prove the same. on merits i.e. computation of the benefits of the overtime wages, leave wages and payment of bonus, there was absolutely no opposition or dispute raised by the appellants before the labour court. the labour court passed a reasoned award and allowed the claim application. the learned single judge has considered the rival arguments and rightly confirmed the award passed by the labour court. in our considered opinion, the order passed by the learned single judge does not suffer from any errors apparent on the face of the record and, therefore, it does not call for any interference in this appeal.9. in the premises, this lpa fails and the same is hereby dismissed with costs.10. civil application no. 324 of 2004 does not survive and the same shall stand disposed as such.