M/S BOMBAY CHEMICAL INDUSTRIES versus DEPUTY LABOUR COMMISSIONER & ANR. on 4 February 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 14.11.2018 passed by the High Court of Judicature at H

Allahabad in Writ Petition No.33482 of 2018, by which the High Courthas dismissed the said writ petition preferred by the appellant herein andhas confirmed the order passed by the Presiding Officer, Labour CourtIV, U.P., Kanpur Nagar, under Section 33(C)(2) of the Industrial DisputesAct, the original writ petitioner has preferred the present appeal.

2. That respondent No.2 herein moved an application before theLabour Court under Section 33(C)(2) of the Industrial Disputes Act inMisc. Case No.26 of 2012 demanding the difference of wages from01.04.2006 to 31.03.2012. The said application was contested by theappellant herein denying any relationship of employee-employer. It wasthe categorical stand of the appellant that respondent No.2 herein wasnever engaged by it. Before the Labour Court respondent No.2 hereinrelied upon the documents exhibit W-1 to W-6 in support of his case thathe had worked in the establishment as a salesman. That by order dated28.11.2017 the learned Presiding Officer, Labour Court allowed the saidapplication and directed the appellant herein to pay the difference ofwages from 01.04.2006 to 31.03.2012 as claimed in the application.

2.1 Feeling aggrieved and dissatisfied with the impugned orderpassed by the learned Presiding Officer, Labour Court under Section33(C)(2) of the Industrial Disputes Act, the appellant herein preferred awrit petition before the High Court. By the impugned judgment and orderthe High Court has dismissed the said writ petition which has given riseto the present appeal.

3. Shri Vishal Yadav, learned counsel appearing on behalf of theappellant has vehemently submitted that in the facts and circumstancesof the case the High Court has erred in dismissing the writ petition andconfirming the order passed by the Labour Court under Section 33(C)(2)of the Industrial Disputes Act.

3.1 It is submitted by Shri Yadav appearing on behalf of the appellantthat the High Court ought to have appreciated that when there was aserious issue raised with respect to the employer-employee relationshipbetween the appellant and respondent No.2 and that it was seriouslydisputed that respondent No.2 was at any point of timein employment asa salesman, the Labour Court ought not to have entertained/allowed theapplication under Section 33(C)(2) of the Industrial Disputes Act as thesame could have been decided in the reference under Section 10 of theIndustrial Disputes Act. It is therefore submitted that the order passedby the Labour Court is completely without jurisdiction. Therefore, the A

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AHigh Court ought to have set aside the same. Reliance is placed on thedecisions of this Court in the case of Municipal Corporation of DelhiVs. Ganesh Razak and Anr., (1995) 1 SCC 235 and Union of Indiaand another Vs. Kankuben (Dead) By Lrs. and Others, (2006) 9SCC 292, in support of his submissions that in a proceeding under Section33(C)(2) of the Industrial Disputes Act, the Labour Court cannotBadjudicate the dispute of entitlement or the basis of the claim and it canonly interpret the award or settlement on which the claim is based.3.2 Making the above submissions and relying on the abovedecisions, it is prayed to allow the present appeal.

C4. The present appeal is vehemently opposed by Dr. Vinod KumarTewari, learned counsel appearing on behalf of the respondent(s).

4.1 It is submitted that in the present case respondent No.2 placedon record voluminous record namely exhibit W-1 to W-6 to show thatrespondent No.2 was working as a salesman with the appellant. It isDsubmitted that the appellant came out with a false case to get out of theobligation difference in salary to be paid as claimed in the application. Itis therefore submitted that when on appreciation of evidence andconsidering the material available on record the Labour Court held thatrespondent No.2 was employed as a salesman and thereafter directedthe appellant to pay the difference of wages it cannot be said that theELabour Court exceeded in its jurisdiction.

4.2 It is submitted that when on the face of the record available itwas found by the Labour Court that respondent No.2 was in employmentof the appellant as a salesman, and in the claim before the Labour Courtthere was found a difference in the salary/pay for the period fromF01.04.2006 to 31.03.2012, the Labour Court has not committed any error.The High Court has rightly dismissed the writ petition.

5. We have heard the learned counsel appearing on behalf of therespective parties at length.

6. At the outset it is required to be noted that respondent No.2Gherein filed an application before the Labour Court under Section 33(C)(2)of the Industrial Disputes Act, demanding difference of wages from01.04.2006 to 31.03.2012. It was thus the case on behalf of respondentNo.2 that he was working with the appellant as a salesman. However,the appellant had taken a categorical stand that respondent No.2 wasHnever engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishmentin the post of salesman. Therefore, once there was a serious disputethat respondent No.2 had worked as an employee of the appellant andthere was a very serious dispute raised by the appellant that respondentNo.2 was not in employment as a salesman as claimed by respondentNo.2, thereafter, it was not open for the Labour Court to entertain disputedquestions and adjudicate upon the employer-employee relationshipbetween the appellant and respondent No.2. As per the settled propositionof law, in an application under Section 33(C)(2) of the Industrial DisputesAct, the Labour Court has no jurisdiction and cannot adjudicate disputeof entitlement or the basis of the claim of workmen. It can only interpretthe award or settlement on which the claim is based. As held by thisCourt in the case of Ganesh Razak and Anr. (supra), the labour court’sjurisdiction under Section 33(C)(2) of the Industrial Disputes Act is likethat of an executing court. As per the settled preposition of law withoutprior adjudication or recognition of the disputed claim of the workmen,proceedings for computation of the arrears of wages and/or differenceof wages claimed by the workmen shall not be maintainable under Section33(C)(2) of the Industrial Disputes Act. (See Municipal Corporationof Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235).

In the case of Kankuben (supra), it is observed and held thatwhenever a workman is entitled to receive from his employer any moneyor any benefit which is capable of being computed in terms of moneyand which he is entitled to receive from his employer and is denied ofsuch benefit can approach Labour Court under Section 33-C(2) of theID Act. It is further observed that the benefit sought to be enforcedunder Section 33-C (2) of the ID Act is necessarily a pre-existing benefitor 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 isconsidered just and fair on the other hand is vital. The former falls withinjurisdiction of Labour Court exercising powers under Section 33-C (2)of the ID Act while the latter does not.

7. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, when there was no prioradjudication on the issue whether respondent No.2 herein was inemployment as a salesman as claimed by respondent No.2 herein andthere was a serious dispute raised that respondent No.2 was never inemployment as a salesman and the documents relied upon by respondent AB

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ANo.2 were seriously disputed by the appellant and it was the case onbehalf of the appellant that those documents are forged and/or false,thereafter the Labour Court ought not to have proceeded further withthe application under Section 33(C)(2) of the Industrial Disputes Act.The Labour Court ought to have relegated respondent No.2 to initiateappropriate proceedings by way of reference and get his right crystalizedBand/or adjudicate upon. Therefore, the order passed by the Labour Courtwas beyond the jurisdiction conferred under Section 33(C)(2) of theIndustrial Disputes Act. The High Court has not appreciated the aforesaidfacts and has confirmed the same without adverting to the scope andambit of the jurisdiction of the Labour Court under Section 33(C)(2) ofCthe Industrial Disputes Act.

8. In view of the above and for the reasons stated above thepresent appeal succeeds. The impugned judgment and order passed bythe High Court as well as that of the order passed by the Labour Courtunder Section 33(C)(2) of the Industrial Disputes Act in Misc. CaseDNo.26 of 2012 are hereby quashed and set aside. Respondent No.2 isrelegated to avail any other remedy which may be available under theIndustrial Disputes Act, including that of reference to adjudicate his rightas an employee of the appellant as claimed by him. As and when suchproceedings are initiated the same to be considered in accordance withlaw and on its own merits and without in anyway being influenced by theEpresent order, as this Court has not expressed anything in favour ofeither of the parties on the aspect of employer-employee relationshipbetween the appellant and respondent No.2. The present appeal isallowed with the above observations and to the aforesaid extent. Nocosts.

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Devika Gujral

Appeal allowed.

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