Bombay High Court
Sahebrao Narayanrao Chaure vs Vijay Arjun Dhage on 10 June, 2016
Bench: P.R. Bora
1 WP NO.2937 OF 2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2937 OF 2016
Sahebrao s/o Narayanrao Chaure,
Age 55 years, Occu: Service,
r/o. At Post Shirad, Tq. Hadgaon,
Dist.Nanded.
...PETITIONER
(Ori. Respondent
VERSUS
Vijay s/o Arjun Dhage,
Age 35 years, Occu. Mason,
R/o. Near Ginning Press,
Datta Bardi, Hadgaon,
Tq. Hadgaon, Dist. Nanded.
...RESPONDENT
(Ori. Applicant)
...
Shri S.D.Kamble, Advocate for petitioner.
Shri R.K.Ingole Patil, Advocate for respondent /
sole.
...
CORAM: P.R.BORA, J.
DATE: June 10th, 2016
...
JUDGMENT:
1. Heard. Rule. Rule made returnable and
heard forthwith with the consent of learned Counsel for the
parties.
2 WP NO.2937 OF 2016
2. Aggrieved by the order dated 10.8.2015,
passed by the Labour Court at Nanded in Application
( IDA) No.12/2011, the petitioner has filed the present
petition.
3. Respondent herein had filed the aforesaid
application invoking the provisions under Section 33-C(2)
of the Industrial Disputes Act, 1947, claiming an amount of
Rs.72,146/- with interest thereon at the rate of 16% per
annum, and the cost of the application. It was the
contention of the respondent in the said application that
the present petitioner had provided him the work of
constructing his house, and had agreed to pay him his
labour charges at the rate of 127/- per Square Feet. It
was the further contention of the respondent that he
accordingly carried out the construction work but the
petitioner did not pay him his labour charges as agreed by
him. According to the respondent, amount of Rs.72,148/-
was balance towards the petitioner and since he refused to
pay the same, he was constrained to file a complaint
before the Labour Court under the provisions of the
Industrial Disputes Act, 1947.
3 WP NO.2937 OF 2016
The application so filed by the respondent was
opposed by the present petitioner on factual as well as
legal grounds. The petitioner had raised a specific
objection that the application so filed by the respondent
was not maintainable before the Labour Court under the
provisions of the Industrial Disputes Act, 1947. Learned
Labour Court, however, partly allowed the application filed
by the respondent and directed the petitioner to pay to the
respondent an amount of Rs.17,650/- with interest at the
rate of 9% per annum from the date of filing of the
application till actual realization of the amount.
Aggrieved by the aforesaid order, the petitioner has filed
the present petition.
4. Heard learned Counsel appearing for the
parties. Perused the impugned order. Perusal of the
application filed by the respondent before the Labour
Court, Nanded, reveals that the petitioner and the
respondent had entered into an agreement for construction
of the house of the petitioner. As per the said agreement,
the labour charges to be paid to the respondent by the
petitioner were determined at the rate of Rs.127/- per
4 WP NO.2937 OF 2016
Sq.Ft. Respondent has contended in paragraph no.2 of
his application that he has been carrying out the work of a
Mistri and taking up the contracts of construction of houses
of different persons. It is, thus, evident that respondent
is a private Mason who undertakes the masonry work on
contract basis. The averments in the complaint apparently
reveal that neither the petitioner is an industry nor is the
respondent an employee.
5. For invoking the provisions under the Industrial
Disputes Act, 1947, a person claiming any relief under the
said Act, must be a `workman' and against whom such
relief is claimed must be an 'employer' as defined under
the Act. The definition of `workman' as provided in
Section 2(s) in the said Act reads thus:
"2(s) "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 -
... ..."
5 WP NO.2937 OF 2016
Thus, to fall in the definition of a workman, the person
must have been employed in any industry. As defined in
Section 2(j) of the said Act, the `industry' means any
business, trade, undertaking, manufacture or calling of
employers and includes any calling, service, employment,
handicraft, or industrial occupation or avocation of
workmen. Since in Section 33-C (2) of the Act, word
`employer' is used, it would be useful to see the definition
of `employer' also which is provided under Section 2(g) of
the said Act and reads thus:
"2 (g) "Employer" means-
(i) In relation to any industry carried on by or under the
authority of any department of [the Central Government
or a State Government,] the authority prescribed in this
behalf, or where no authority is prescribed, the head of
the department;
(ii) In relation to an industry carried on by or on behalf of
a local authority, the chief executive officer of that
authority; .... "
From the plain reading of the definitions of `employer',
`industry' and `workman', as are provided under the
Industrial Disputes Act, 1947, there remains no doubt that
neither the respondent can be said to be a workman, nor
the petitioner can be branded as the industry, or the
employer.
6 WP NO.2937 OF 2016
6. The respondent is admittedly a Mason who
privately carries out the masonry work on contract basis.
Similar such contract was entered into between the
petitioner and the respondent. In the circumstances, if at
all it was the grievance of the respondent that the
petitioner did not pay him his labour charges in terms of
the contract entered into between them, the remedy
available for the respondent was elsewhere but certainly
not under Section 33-C(2) of the Industrial Disputes Act.
It is surprising that the learned Labour Court could not
appreciate these basic aspects and proceeded with the
application filed before it and also partly allowed the said
application. The order passed by the Labour Court is
without jurisdiction and hence deserves to be set aside
Hence, the following order:
ORDER
1) The Writ Petition is allowed.
2) The order dated 10.8.2015, passed by the
Labour Court at Nanded in IDA No.12/2011 is quashed
and set aside.
7 WP NO.2937 OF 2016
3) No order as to costs.
4) Rule made absolute in above terms.
(P.R.BORA)
JUDGE
...
AGP/2397-16wp
