M/S Bhagwan Mahavir Hospital vs Krishan Kumar & Ors.
2015 Latest Caselaw 7130 Del

$~R-43

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision: September 18, 2015

+                            W.P.(C) 2357/2001

      M/S BHAGWAN MAHAVIR HOSPITAL           ..... Petitioner
                  Through: Mr. A.K. Jain and Mrs. Santosh
                           Jain, Advocates
                    versus

      KRISHAN KUMAR & ORS.                                .....Respondents
                  Through: Nemo

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

% (ORAL)

In proceedings under Section 33C (2) of The Industrial Disputes Act, 1947 (for short 'I. D. Act'), the challenge was made by petitioner to the very maintainability of the application under Section 33C (2) of I. D. Act and vide impugned order trial court has disposed of petitioner- Management's application while leaving the question open.

Impugned order of 16th November, 2000 is assailed in this petition by learned counsel for petitioner on the ground that the very maintainability of the application under Section 33C (2) of I. D. Act needs no trial as the relationship of Employer-Employee between the parties is very much disputed.

W.P.(C) 2357/2001 Page 1 At the hearing, learned counsel for petitioner had placed reliance upon Apex Court's decisions in State of U.P. and Brijpal Singh 2005 (107) FLR 604 and State Bank of India v. Ram Chandra Dubey and Ors. AIR 2000 SC 3734 to submit that there is no pre-existing benefit or right in favour of respondents as the relationship between the parties is clearly disputed and thus, it is submitted that the impugned order deserves to be set aside and the application under Section 33C (2) of I. D. Act preferred by respondents deserves to be dismissed and the respondents ought to be relegated to avail of the remedies as available under Sections 10 and 33A of I. D. Act.

It stands noted in the order of 9th February, 2007 that despite numerous opportunities granted to respondents, counter affidavit is not forthcoming. Court Notices were issued to respondents and as per order of 30th October, 2007, respondents were served but none had appeared on their behalf. This petition was dismissed in default and before restoring it, the contesting respondents were again put to notice and it is evident from the order of 10th April, 2015 that the contesting respondents No.1 to 17 were served by way of speed post and despite service, none had appeared on their behalf and accordingly, this petition was restored for regular hearing.

This matter was earlier taken up for regular hearing on three occasions i.e. 21st May, 5th August and 2nd September, 2015 but none had appeared on behalf of contesting respondents. Even today, none appears on behalf of contesting respondents.

In this background, this petition is taken up for final hearing and disposal. The issue raised in this petition is no longer res integra. The

W.P.(C) 2357/2001 Page 2 ratio of Apex Court's decision in Brijpal Singh (supra) and Ram Chandra (supra) squarely applies to the instant case as the application under Section 33C (2) of I. D. Act by respondents (Annexure-C) simply avers that respondent-employee is working as a Sweeper with petitioner. In response to this application, it is categorically denied by petitioner- Management that respondents are not their employees and were infact employed by a Contractor. Alongwith the rejoinder filed, no copy of the appointment order or the like has been appended. In such a situation, leaving the preliminary issue raised by petitioner open by the trial court, is unwarranted as the rigmarole of trial would be a futile exercise as the relationship of Employer-Employee is very much disputed. Once petitioner-Management denies the relationship of Employer-Employee, then so-called employee has to resort to Section 33A of I. D. Act by seeking a Reference under Section 10 of I. D. Act.

In view of the aforesaid, the impugned order of 16th November, 2000 is hereby set aside and respondents' application under Section 33C(2) of I. D. Act stands dismissed with liberty to respondents- Employees to file application under Section 33A of I. D. Act and to seek Reference under Section 10 of I. D. Act.

This petition stands disposed of accordingly.

                                                       (SUNIL GAUR)
                                                          JUDGE
SEPTEMBER 18, 2015
s




W.P.(C) 2357/2001                                                    Page 3