Murari Lal vs M/S. D.C.M. Ltd. & Anr.
2015 Latest Caselaw 4737 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) 3829/2002

                                   Judgment reserved on: 19.05.2015
                                   Judgement pronounced on: 07.07.2015

      MURARI LAL                                          ..... Petitioner
                          Through:      Mr.S.B.S. Vashistha, Advocate with
                                        petitioner in person.

                          versus

      M/S. D.C.M. LTD & ANR.                              ..... Respondents
                     Through:           Mr. Harvinder Singh, Advocate.

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. The brief background of the case is that the respondents M/s Delhi

Cloth Mills had filed the writ petition no. 2476/1988 challenging the legality

of the order of the Lieutenant Governor and others whereby the permission

to close down the company under Section 25(O) of the Industrial Disputes

Act was denied.

2. During the pendency of the said writ petition before the full court, the

parties had reached to a settlement dated 26.11.1998 which settlement was

confirmed by the full Bench of this court. In that settlement, the respondent

had agreed to pay the retrenchment compensation and other benefits to its

workmen as defined in Clause 10 (1) of the Settlement.

3. The petitioner moved CM No. 3224/89 before the full Bench of this

court in the said writ petition claiming the compensation in terms of the said

settlement. The necessity of filing the said application arose since the

respondent did not treat the petitioner as the workman of the mill.

4. The full Bench of this court issued the following directions:-

"The Full Bench was only concerned with the legality of the order of the Lt.Governor. Thus, the grievances which are raised by these various applicants cannot be redressed in this writ petition and this is not the proper forum to determine individual claims of workmen. The validity and legality of transfer orders made by the Mills and the question whether a particular employee of the Mill is a workman or not cannot be gone into in this writ petition. The two advocates, one representing the management and the other representing the workmen/Unions have been appointed to go into the individual grievances of the employees claiming to be workman. The question of their entitlement, if any, under the settlement will be considered by these two advocates."

5. The petitioner thereafter filed the application under Section 33-C(2)

of the Act which was registered as CCA No. 82/94 before the Labour Court.

In the said application, the petitioner had claimed the benefit accrued to him

under the said settlement agreement. His plea in the application was that he

alongwith other 31 workmen through Sh. Mahesh Srivastava, Advocate,

moved an application no. 3224/19889 in writ petition No. 2476/1988

wherein he was directed to approach the two Advocates appointed to go into

the individual grievances of the employees claiming to be workman. His

further contention was that two Advocates in the Arbitration Panel were

Sh.Ram Murthi and Sh. Rajiv Sawhni and on demise of Sh. Ram Murthi, Sh

Rajendera Sacchar, Retd. Judge High Court of Delhi became member of the

Arbitration Panel. He alongwith other workers in compliance of the order of

the High Court of Delhi, made an application before the Arbitration Panel in

the year 1991. He had been assured by his counsel Sh. Mahesh Srivastava,

Advocate, that the Arbitration Panel was hearing the matter. He waited but

when nothing happened for a long time, he inquired from his Advocate, Sh.

Mahesh Srivastava and asked him to return his case papers on 16th January,

1993. The papers were returned to him on 20th June, 1993. He thereafter

moved an application before the Labour Commissioner on 11th March, 1993

on which the ALC Sh. K.R. Verma gave his report dated 4th February, 1994.

He sent the demand notice to both the members of the Arbitration Panel

besides the management which were duly served but no reply was received.

He claimed that he was entitled for a sum of Rs.1,14,756/- towards its

retrenchment compensation, notice pay and 72 months wages Ex-Gratia.

6. The Labour Court, after completion of the trial before it, passed the

impugned order dated 30th January, 2002 wherein the court had held that the

applicant under Section 33-C(2) of the ID Act was not maintainable in view

of the fact that the applicant's entitlement to this money had been objected

to by the employer and that his entitlement had not yet been determined by

the Arbitration panel pursuant to directions of the court in Civil

Miscellaneous Application No. 3224/89 in Writ Petition No. 2476/88 of the

petitioner. The Labour Court in support of its conclusion has relied upon the

findings of Supreme Court in the case of Municipal Corporation of Delhi

Vs. Ganesh Razak and Anr reported in (1995) 1 SCC 235.

7. The present writ petition has been filed by the petitioner/workmen,

aggrieved by the said impugned order of the Labour Court. In the present

writ petition, the petitioner has contended that he was appointed as a weaver

w.e.f. 11.09.1982 by the management of respondent No.1 and he had

worked with the management till the closure of the mill on 1.02.1989. He

has alleged that he was covered under the settlement and entitled to get

compensation as per paras 14.1 to 15.6 of the said Settlement. He has also

recorded the fact that he had filed CM No. 3224/89 in writ petition

No.2476/88 before the Full Court and on dismissal of his application moved

an application before the panel of lawyers as per para 23 of the settlement in

the year 1991 and that his Advocate, Sh. Mahesh Srivastava, had never

informed him about the fate of his application. He moved an application

before the Labour Commissioner but no settlement was arrived at before the

Assistant Labour Commissioner, District North and then he filed an

application under Section 33 C (2) of the ID Act before the Labour court on

which the impugned order had been passed.

8. He has further contended that he had also moved an application in

January, 1996 for the recovery of gratuity before the Controlling Authority

appointed by the Government of NCT under the Payment of Gratuity Act,

1972 and the Controlling Authority on merits after recording evidences and

hearing both the parties, had held that petitioner was in regular service of the

management for the period w.e.f. 11.09.82 to 22.04.89 and awarded gratuity

to him.

9. The respondent had challenged the said order before the appellate

authority but the appeal of the respondent was dismissed by the appellate

authority vide its order dated 26.11.98. The issue that petitioner was the

workman and was in continuous service of the respondent has thus become

final which means that he is covered under the settlement and thus is entitled

for the benefits under the said settlement.

10. It is further contended that the ld. Labour Court has erred in law by

holding that the application of the petitioner was still pending before the

Arbitrator Panel and had failed to consider the order of the Controlling

Authority under the Payment of Gratuity Act.

11. It is further contended that ld. Labour Court was erred in holding that

the findings in the case of Jeetlal Sharma Vs. P.O. Labour Court-4,2000

LLR page 443 is of no help in the present case and that the remedy lies

under Section 10 of the I.D. Act. On these facts, it is submitted that the

impugned order is liable to be set aside.

12. The petition is contested by the respondent. It is submitted that the

petitioner was engaged for intermittent period as a purely temporary

employee for fixed period at a time and was not on the muster roll of the

mills on 27th March, 1985 and was also not served with any notice of closure

in March, 1985. Hence, he was not covered under the settlement, thus, not

entitled for any compensation under the settlement. The petitioner had

approached two lawyers of the Company and the Unions, as per clause 23 of

the settlement dated 01.02.1989 and they had not given any decision in

favour of plaintiff till date holding him entitle for closure compensation and

additional compensation under the settlement.

13. It is submitted that the Controlling Authority under the Payment of

Gratuity Act has given him gratuity by treating him as being deemed to be in

continuous service, as per the definition under Section 2 (a) of the Payment

of Gratuity Act, 1972. The definition of continuous service under Section 2

(a) of Payment of Gratuity Act and under Section 25-B of the Industrial

Disputes Act, 1947 are not the same and their scopes are entirely different

and the findings of the Authority under the Payment of Gratuity Act, 1972

for the purpose of gratuity are not binding on the Labour court but the

definition of the 'workman' relevant in the case of the petitioner was as

provided under clause 10.1 of the settlement dated 26.11.1998 on which the

petitioner has relied while raising claim of closure compensation and

additional compensation under the settlement.

14. It is contended by respondent that the petitioner is not entitled for the

compensation as his entitlement has not been determined and therefore he is

not entitled to claim compensation under Section 33-C(2) of ID Act and the

ld. Labour Court has rightly rejected his claim and that the present petition is

liable to be dismissed.

15. The petitioner has filed the rejoinder to the counter affidavit in which

the petitioner had taken a complete somersault. While in his petition before

this court as well as in his application under Section 33-C(2), the petitioner

had taken a plea that he had approached the Arbitrators Forum as per the

direction of the High Court in CM No. 3224/89 in writ petition No 2476/88

and since no order had been passed on that application of his, he had taken

his case file from his Advocate and thereafter moved the office of Assistant

Labour Commissioner for settlement with the respondent, in the rejoinder,

the petitioner has completely changed his version. His plea in rejoinder is

that he was never informed about the existence of the Arbitrators Forum by

respondent no.1 and the same was not disclosed to him and so he had

approached the Labour Court under Section 33-C(2) of the ID Act.

16. In his rejoinder, he has further taken the plea that the formation of

Arbitrators Forum was not as per Section 10(A) of the ID Act and his

entitlement under the settlement was not to be considered by Arbitrators

tribunal. It is also denied that he was required to get his entitlement for

compensation determined by Arbitrators forum. He claims that the

impugned order is illegal and is liable to be set aside.

17. I have heard the arguments and have given due consideration to the

rival contentions.

18. In the present case, the plea of the petitioner is that he was appointed

as a Weaver w.e.f. 11.09.1982 and continued to work till the closure of the

respondent mill on 1.02.1989. This fact is contested by the respondent by

stating he was never appointed as a weaver on any permanent post on

continuous basis and that he had been intermittently engaged on a purely

temporary /causal basis for fixed periods at a time for one or two months

depending upon the temporary exigencies of the work and there were breaks

in his such temporary engagements ranging from one month to 10 months

and that he was not on the muster roll of the establishment on 27.03.1985.

19. In support of his claim and to belie the contentions of the respondents,

the petitioner has highly relied on the order dated 26.11.1999 of the

Controlling Authority under the Payment of Gratuity Act , which was passed

on the application of the petitioner claiming gratuity. It is argued on behalf

of the petitioner that the finding of the Controlling Authority acts as res-

judicata and is binding on the courts and rests its contention upon the

findings in the case titled as R.C Tiwari vs. M.P. State Cooperative

Marketing Federation Ltd. and Ors. reported in AIR 1997 SC 2652. There

is no dispute that principle of res-judicata is also applicable in the

proceedings under the Industrial Disputes Act. The principle of res-judicata

however is applicable when the fact in issue between the same parties had

been determined finally by a court of competent jurisdiction. Fact in issue

between the parties in this case is whether the petitioner was workman under

Clause 10 (1) (a) of the Settlement dated 26.11.1998. The petitioner can be

said to have an existing right to compensation in view of the settlement

dated 26.11.1998, if he fulfils the conditions set out therein. On this issue,

while claim of the petitioner is that he was in continuous service with effect

from 11.09.1982 till closure of establishment on 01.02.1989, the contention

of the respondent is that he was not on the muster roll of the mills and he

had been intermittently engaged as a temporary/casual weaver for fixed

period for a month or two months depending upon the exigencies of the

work and that there were long gaps between his re-employment ranging

from one month to 10 months. While giving its finding on this issue, the

Controlling Authority under the Payment of Gratuity Act in its order dated

26.11.1999 has clearly observed as under:-

"The main contention raised by the appellant company is that the respondent employee was not in continuous services of more than 5 years with the company. As such, he was not entitled to the payment of gratuity as has been held by the Controlling Authority. It is an admitted fact that the respondent employee was in the employment of the company from 11.09.82 to 22.04.89 but was being given the attendance as and when the work was available. This is also on record that the workman has not been employed with the management for a period arranging from 2 days to 9 months. It is also an admitted fact that the workman was never discharged or was paid any retrenchment compensation etc. during this tenure whenever the work was not available with the management."

20. The finding of fact of the Controlling Authority under the Payment of

Gratuity Act itself is that although the petitioner had worked between the

period from 11.09.1982 to 22.04.89 but he was given the attendance as and

when the work was available for him and that there were gaps between two

engagement of the workman of the periods ranging from two days to 9

months and on discontinuance or discharge of service of workman, he was

not paid any retrenchment compensation.

21. The conclusion of fact thus is that the workman had been engaged by

the respondent as weaver during this off period and depending on

availability of work and his period of absence from work had ranged from 2

days to 9 months at a stretch. The Controlling Authority, however, on

applying Section 2(a) of the Payment of Gratuity Act which defines

continuous service for the purposes of grant of gratuity, held that the

petitioner was entitled for gratuity. The finding of the fact which can be said

to operate as res-judicata however is that petitioner herein had worked with

the management for intermittent period and his absence from the work had

ranged from 2 months to 9 months at a stretch.

22. These findings of fact, however, are conclusive findings of the fact.

23. Now, the question comes whether he has existing right to claim

benefit under the settlement.

Clause 10 (1) of the Settlement reads as under:-

"10.1 For the purposes of this settlement:

(a) The expression "workmen"shall mean all workmen of the Undertaking including:-

             (i)       All permanent, temporary and badli workers.
             (ii)      Clerks
             (iii)     Supervisory staff whose wages/salary was below
                       Rs.1600 p.m. as on 27th March, 1985.
             (iv)      Workmen who were dismissed after April, 1985 todate
                       and they shall be deemed for the purposes of this

settlement only to have been reinstated w.e.f. the dates of their dismissal with back wages.

provided their names were on the Undertaking's muster rolls as on 27th March, 1985 and/or who were served notices of closure retrenchment in March, 1985. The said expression shall, however, not include those workmen who have ceased/cease to be in the employment of the company or on the rolls of the undertaking after 27th March, 1985 and upto the date of its closure."

24. As per this clause, only those workers who were permanent,

temporary or badli workers and the workers dismissed after April 1985 but

whose names were on the muster roll on 27.03.1985, were entitled for the

benefit under the said settlement.

25. Now, the question of fact for determination is whether the petitioner

was on the muster roll of the respondent on 27.03.1985. This fact is

disputed by the respondent. Their contention is that the petitioner was not a

muster roll employee.

26. Unless this disputed question of fact is determined, it cannot be said

that the petitioner has an existing right to claim benefit under the said

settlement.

27. The next question that arises is as to who will determine the said

question of fact. Does the Labour Court acting under Section 33-C(2) of the

ID Act has the jurisdiction to determine this question of fact i.e. entitlement

of the petitioner?

28. The Supreme Court in the case of Central Inland Water Transport

Corporation Ltd. vs. Workmen reported in (1974) 4 SCC 696 has answered

this question while holding as under:-

"In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the correspondent liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution

proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33-C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and (ii) 'Incidental'to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33-C(2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions-say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases, determinations

(i) and (ii) are not 'Incidental' to the computation. The computation itself is consequential process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L. Khandelwal that a workman cannot put forward a claim in an application under Section 33-C( 2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute which requires a reference under Section 10 of the Act."

29. Following the findings of the Supreme Court in the case of Central

Inland (supra), the Supreme Court in subsequent judgment in Ganesh

Razak's case (supra) has clearly held that the Labour Court has no

jurisdiction under Section 33 -C(2) to adjudicate the dispute of entitlement

or basis of claim of the workman. It can only interpret the award or

settlement of which claim is based.

30. The jurisdiction of the labour court under Section 33-C(2) is of the

nature of executing court. In that case, the workman had claimed the wages

at the same rate as that of regular employees and the court had held that

without the prior adjudication or recognition of disputed claim of the

workman on his claim for equal pay for equal work, the application under

Section 33-C(2) was not maintainable.

31. History of this case also shows that the petitioner had moved an

application no. C.M.3224/89 before the Full Bench of this court in WP(C )

No.2476/1988 claiming compensation in terms of Settlement dated

26.11.1998 and full bench of this court had issued the directions of the

workman to approach the two Advocates appointed under Clause 23 of the

Settlement to go into the individual grievances of the employees claiming to

be workman. In his application under Section 33-C(2) of the Act and also in

the petition before this court, the petitioner had claimed that he did approach

the two advocates but in his rejoinder, had changed his stand stating that he

was not aware of any such Arbitral Forum of two Advocates. The matter of

fact however remains that the disputed claim of the workman that he is

entitled for the compensation under the Settlement, has not yet been

determined by any competent forum.

32. The Labour Court has thus rightly held that it had no jurisdiction to

determine the entitlement of the petitioner for retrenchment compensation

under the settlement dated 26.11.1998. The impugned order does not suffer

with any illegality or infirmity.

33. The writ petition has no merit and the same is dismissed.

DEEPA SHARMA (JUDGE) 7th JULY, 2015 sapna