Madras High Court

M.K.T.Engineering & ... vs G.Purushothaman ... 1St on 14 June, 2021

                                                                               W.A.Nos.215 to 217 of 2017

                                   IN THE HIGH COURT OF JUDICIATURE AT MADRAS

                                                     DATED : 14.06.2021

                                                             CORAM :

                                        THE HONOURABLE MR.JUSTICE T.RAJA
                                                     and
                                    THE HONOURABLE MR.JUSTICE V.SIVAGNANAM

                                              W.A.Nos.215 to 217 of 2017 and
                                              C.M.P. Nos.3532 to 3537 of 2017


                     M.K.T.Engineering & Construction
                     78, Bharathidasan Salai,
                     Kavery Street,
                     Appar Nagar,
                     Saidapet,
                     Chennai – 600 015.                           ... Appellant in all the appeals

                                                              versus

                     1.G.Purushothaman                            ... 1st respondent in W.A.

No.215 of 2017

1.M.Thirunavukkarasu ... 1st respondent in W.A.

                                                                      No.216 of 2017

                     1.M.Elumalai                                 ... 1st respondent in W.A.
                                                                      No.217 of 2017

                     2.The Presiding Officer,
                       II Additional Labour Court,

Chennai – 600 104. ... 2nd respondent in all the appeals Prayer in all the appeals: Appeals filed under Clause 15 of Letters Patent against the order dated 23.03.2016 passed in W.P. Nos.10877, 10876, 10878 of 2016 by His Lordship Mr.Justice T.S.Sivagnanam.



https://www.mhc.tn.gov.in/judis/
                                                                          W.A.Nos.215 to 217 of 2017

                               For Appellant            :    Mr.N.Nithianandam

                               For R1 in all appeals    :    No appearance

                               For R2                   :    Court

                                                 COMMON JUDGMENT

(Judgment of this Court was delivered by T.RAJA,J.)

These writ appeals have been filed against the impugned

common order dated 23.03.2016 passed in W.P. Nos.10877, 10876,

10878 of 2016.

2.Mr.N.Nithianandam, learned counsel appearing for the

appellant argued that first respondent in all the appeals, who have

been employed by the appellant, have filed Computation Petitions in

C.P. Nos.355, 355A, 356 of 2011 on the file of the second

respondent under Section 33C(2) of the Industrial Disputes Act,

1947 (hereinafter referred to as 'the Act') to compute the money

value under Section 33-C(2) of the Act. Learned counsel appearing

for the appellant submitted that the appellant filed detailed counter

affidavit in all three petitions raising objections namely, the petitions

filed under Section 33-C(2) are neither maintainable in law nor on

facts; the claim of the petitioners therein in the Computation

Petitions filed under Section 33-C(2) of the Act cannot be

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adjudicated since the same are not falling within the purview of

Section 33-C(2) of the Act; the claim of the petitioners therein that

they were workmen of the respondent therein are being denied; and

the petitioners therein have not established their pre-existing right

to make their claim on the respondent therein in the Computation

Petitions. During the pendency of the petitions before the second

respondent, respective first respondent have filed three I.A.

Nos.303 to 305 of 2014 seeking direction to the appellant to

produce appointment order, salary slip and bonus register and leave

salary register of the respective first respondent and regulations of

the company, which was in the custody of the appellant and in the

said I.As, the appellant filed detailed counter affidavit stating that

(a)there was no employer - employee relationship between the

appellant and the respective first respondent; (b)there was an

in-ordinate and un-explained delay of six long years in filing the

petitions under Section 33-C(2) of the Act; (c)respective first

respondent have not filed any document in support of their

employment with the appellant; (d)Computation Petitions filed by

respective first respondent under Section 33-C(2) of the Act were

barred by limitation; and e)respective first respondent have not

established their pre-existing right to make their claim on the

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appellant in the Computation Petitions. Despite the same, the II

Additional Labour Court, Chennai, while entertaining the above I.As,

although clearly admitting the fact that the Labour Court cannot go

into the question as to whether the respective first respondent are

entitled to any benefits and whether they were workmen during the

claim period, vide order dated 05.05.2015, partly allowing the

applications filed by them, directed the appellant to produce register

of particulars of payment of bonus and register of particulars of

payment of leave salary. Being aggrieved by the order passed by

the II Additional Labour Court, Chennai, the appellant has come to

this Court with W.P. Nos.10876 to 10878 of 2016. This Court, while

confirming the orders passed by the II Additional Labour Court,

Chennai, disposed of the petitions holding that the Labour Court has

got jurisdiction to decide the incidental question as to whether there

is any pre-existing right vested with the workmen to claim those

monetary benefits during the period when they were employed in

service of the petitioner/management. Aggrieved by the same, the

appellant is before this Court.

3.Placing before us two judgments, reported in 1995 (1) SCC

235 in the case of Municipal Corporation of Delhi vs. Ganesh Razak

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and another and in the case of M.Vadivelu vs. Rajkishan and

Company and others, against the reasoning given by the Labour

Court, as confirmed by the learned Single Judge, learned counsel for

the appellant argued that the benefit sought to be enforced under

Section 33-C(2) of the Act is necessarily a pre-existing benefit or

one flowing from a pre-existing right. Learned counsel for the

appellant further clarified that the difference between a pre-existing

right or benefit on one hand and the right or benefit, which is

considered just and fair on the other hand is vital because the

former falls within jurisdiction of Labour Court exercising powers

under Section 33-C(2) of the Act while the latter does not.

4.Drawing our attention to Section 33-C(2) of the Act, learned

counsel for the appellant pleaded that where any money is due to a

workman from an employer under a settlement or an award or

under the provisions of [Chapter V-A or Chapter V-B], the workman

himself or any other person authorised by him in writing in this

behalf, or, in the case of the death of the workman, his assignee or

heirs may, without prejudice to any other mode of recovery, make

an application to the appropriate Government for the recovery of

the money due to him, and if the appropriate Government is

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satisfied that any money is so due, it shall issue a certificate for that

amount to the Collector, who shall proceed to recover the same in

the same manner as an arrear of land revenue.

5.Based on the legal provision as mentioned above, it is

contended by the learned counsel for the appellant that without a

prior adjudication or recognition of the disputed claim of the

workmen to be paid at the same rate as the regular employees,

proceedings initiated under Section 33-C(2) of the Act are wholly

unsustainable in law and this aspect has been completely

overlooked by the Labour Court. Therefore, learned counsel for the

appellant prays for allowing the appeal.

6.No appearance on behalf of the first respondents, though

notices have been served and names have been printed.

7.A perusal of the portion of the Computation Petitions filed by

the respective first respondent would show that no detail regarding

the employment of the respective first respondent with the

appellant is given to establish the relationship of employer and

employee. Secondly, there is no mention in the said petitions as to

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on what date the respective first respondent have joined with the

appellant and on what date they were terminated or refused from

employment. Thirdly, there was no mention as to whether the

respective first respondent were employed as daily wager or

monthly salaried. Therefore, the Computation Petitions would clearly

show that they are bereft of any particular to invoke Section

33-C(2) of the Act.

8.Although counter affidavits were filed by the appellant

raising serious objections with regard to the maintainability of the

Computation Petitions stating that the said petitions filed under

Section 33-C(2) of the Act were barred by limitation of un-explained

and inordinate delay of six long years, it is not known why the

Labour Court has not considered that aspect. It is relevant to refer

to Section 33-C as under:

'33-C.Recovery of money due from an employer.

(1)Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter V-A or Chapter V-B], the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate

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Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (emphasis supplied)

9.The above provision makes it clear that any application can

be made only within one year or little more than a year, whereas in

the present case, when there was a huge and un-explained delay of

6 long years in moving a petition before the Labour Court, the

Labour Court, having agreed with the appellant that in the

application filed under Section 33-C(2) of the Act, cannot go into the

question whether the workman is entitled to any benefits and that

the workman must have a pre-existing right to the benefits which

can be computed in terms of money and without any iota of

evidence to show their employment under the appellant or any

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appointment order, pay slip, identity card of the first respondents,

the Labour Court wrongly directed the appellant to produce register

of particulars of payment of bonus and register of particulars of

payment of leave salary.

10.This issue has been directly covered by the judgment of

the Hon'ble Apex Court in the case of Municipal Corporation of

Delhi vs. Ganesh Razak and another reported in 1995 (1) SCC

235. The relevant paragraph is extracted as under:

'12.The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act.

The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(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

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ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.'

11.When it is a well settled legal position that the Labour

Court has no jurisdiction to first decide the workmen's entitlement

and then proceed to compute the benefit so adjudicated on that

basis in exercise of its power under Section 33-C(2) of the Act and

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 Court's

power under Section 33-C(2), the claim made in the Computation

Petitions, which are filed with a huge and unexplained delay of 6

years, is not based on a prior adjudication made in the petitions.

12.While considering the similar issue, the Delhi High Court in

its judgment dated 25.08.2014 in the case of M.Vadivelu vs.

Rajkishan & Company and others holding that the Labour Court

would not entertain dispute with regard to entitlement or adjudicate

the existence of a pre-existing right, has observed as follows:

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'18.....It is well settled that under Section 33C(2) of the Act, the Labour Court would not entertain dispute with regard to entitlement or adjudicate the existence of a pre-existing right but only proceed to compute the wages and adjudicate other attendant disputes that may arise in that regard. A pre-existing right must be established before an application under Section 33C(2) of the Act can be entertained by a Labour Court.

21.In my view, the dispute in this case is, plainly, as to the entitlement of the petitioner to his wages and this inextricably linked to the question whether the petitioner was a workman under the Act. The dispute thus goes to the root of the petitioner's entitlement and therefore, is outside the scope of Section 33C(2) of the Act. The Labour Court rightly held that, in the given facts and circumstances of the case, it had no jurisdiction to decide the question whether the petitioner was a workman under the Act.'

13.When it is a well settled legal position that under Section

33-C(2) of the Act, the Labour Court would not entertain disputes

with regard to entitlement or adjudicate the existence of a

pre-existing right, but only proceed to compute the wages and

adjudicate other attendant disputes and the relationship of

employer and employee is questioned by the appellant, without

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T.RAJA,J.

and V.SIVAGNANAM,J.

vga establishing their claim satisfactorily to the Court, the respective

first respondent are not entitled to the protection under Section

33-C(2) of the Act and they ought not to have approached the