Madras High Court
The Management Of vs The Presiding Officer on 13 April, 2023
Writ Appeal No.932 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 13/4/2023
CORAM
The Hon'ble Mr.Justice S.VAIDYANATHAN
and
The Hon'ble Ms.Justice R.KALAIMATHI
Writ Appeal No.932 of 2022
The Management of
M/s.Jafra Insoles India Limited
rep. By its Authorised Signatory
Mr.D.C.Ravi
Gudiyatham Road, Thuthipet, Ambur
Thirupattur District
(Previously Vellore District) ... Appellant
Vs
1. The Presiding Officer
Principal Labour Court
Vellore.
2. R. Ramani
3. The Management
M/s. Alhamra Leatherware Private Limited
Gudiyatham Road
Thuthipat, Ambur
Thirupattur District
(Previously Vellore District) ... Respondents
PRAYER : Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 28/1/2022 made in W.P.No.6428 of 2015.
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For appellant ... Mr.N.V.N.Margandeyan
For respondents ... R. 1 – Labour Court
Mr.E.Srinivasan
for R.2.
-----
JUDGMENT
(Judgment of the Court was delivered by S.VAIDYANATHAN, J)
The present appeal has been preferred by M/s.Jafra Insoles India
Limited, questioning the order of the learned Single Judge in W.P.No.6428
of 2015, confirming the order of the labour Court, dated 8/8/2014 in
C.P.No.189 of 2013.
2. The sum and substance of the issue on hand is that the employee
concerned in this appeal approached the labour Court, claiming monetary
benefits which is said to be due to him from Alhamra Leatherware Private
Limited, has sold the property to Jafra Insoles India Limited and that the
appellant is the successor in interest. He would further submit that
Mr.Mecca Ahmed Iqbal is one of the common Directors in both the
Company. Admittedly, no proof has been filed. That apart, employee has
also not let in any evidence to show there is a transfer and that other
employees who worked with him has been taken in service by the appellant
herein.
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3. A petition filed under Section 33 (C) (2) of the Industrial Disputes
Act, is maintainable, provided there is an accrued right which can be
determined by the labour Court, to extend the monetary compensation while
deciding the Computation Petition. If there is any dispute of fact, which is
not incidental to the computation petition, the only remedy is to raise
Industrial Dispute.
4. In the present case on hand, the employee without getting the issue
adjudicated that the appellant Company is a transferee Company and that
erstwhile Management i.e., Alhamra Leatherware Private Limited is due to
him and in terms of agreement between the two Management, appellant has
a right to pay the amount due to the Management. In the counter filed by the
second respondent in C.P., there is a categorical averment to the effect that
Jafra Insoles India Private Limited and Alhamra Leatherware Private
Limited are completely distinct. When there is no iota of evidence to show
that the respondent is not a new Establishment and that their successor in
interest of Alhamra Leatherware Private Limited, computation petition is not
maintainable.
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5. The Hon'ble Apex Court in a decision reported in MUNICIPAL
CORPORATION OF DELHI Vs. GANESH RAZAK AND ORS
(C.A.No.7138 of 1994), (1995) 1 SCC 235, has categorically held that the
labour Court/Tribunal cannot entertain the disputed question of fact and
adjudicate upon the issue unless the claim is based on award or settlement.
Of course, the instant question can be gone into by the labour Court. It is
relevant to extract paragraph Nos.11 and 12:-
“11. In Central Inland Water Transport
Corpn. Ltd. v. Workmen and Another
MANU/SC/0292/1974 : (1975) 1 SCR 153, it was
held with reference to the earlier decisions that a
proceeding under Section 33-C(2) being in the
nature of an execution proceeding, it would appear
that an investigation of the alleged right of re-
employment is outside its scope and the Labour
Court exercising power under Section 33-C(2) of
the Act cannot arrogate to itself the functions of
adjudication of the dispute relating to the claim of
re-employment. Distinction between proceedings
in a suit and execution proceedings thereafter was
pointed out. It was indicated that the plaintiff's
right to relief against the defendant involves an
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investigation which can be done only in a suit and
once the defendant's liability had been adjudicated
in the suit, the working out of such liability with a
view to give relief is the function of an execution
proceeding. This distinction is clearly brought out
in that decision 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 corresponding 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
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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 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 upon and subsidiary to
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determinations (i) and (ii) as the last stage in the
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
MANU/SC/0372/1967, 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
IO of the Act."
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
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has been earlier adjudicated or recognised by tile
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) like that of
the Executing Court's power to interpret the decree
for the purpose of its execution. “
6. This decision has been followed by the subsequent Bench of the
Hon'ble Apex Court in BOMBAY CHEMICAL INDUSTRIES Vs.
DEPUTY LABOUR COMMISSIONER AND ORS (2022) 5 SCC – 629,
holding that the labour Court is empowered to interrupt the award or
settlement based on which the claim is passed. Paragraph No.6 is extracted
hereunder:-
“At the outset it is required to be noted that
respondent No.2 herein filed an application before
the labour Court under Section 33 (C) (2) of the
Industrial Disputes Act, demanding difference of
wages from 1/4/2006 to 31/3/2012. It was thus the
case on behalf of respondent No.2 that he was
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working with the appellant as a salesman.
However, the appellant had taken a categorical
stand that respondent No.2 was never engaged by
the appellant. It was specifically the case on behalf
of the appellant that respondent No.2 had never
worked in the establishment in the post of
salesman. Therefore, once there was a serious
dispute that respondent No.2 had worked as an
employee of the appellant and that there was a very
serious dispute raised by the appellant that
respondent No.2 was not in employment as a
salesman as claimed by second respondent,
thereafter, it was not open for the labour Court to
entertain disputed questions and adjudicate upon
the employer-employee relationship between the
appellant and respondent No.2. As per the settled
proposition of law, in an application under Section
33 (C) (2) of the Industrial Disputes Act, the labour
Court has no jurisdiction and cannot adjudicate
dispute of entitlement or the basis of the claim of
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workmen. It can only interpret the award or
settlement on which the claim is based. As held by
this Court in the case of Ganesh Razak and Anr.
(supra), the labour Court's jurisdiction under
Section 33 (C) (2) of the Industrial Disputes Act is
like that of an executing Court. As per the settled
preposition of law, without prior adjudication or
recognition of the disputed claim of the workmen,
proceedings for computation of the arrears of
wages and/or difference of wages claimed by the
workmen shall not be maintainable under Section
33 (C) (2) of the Industrial Disputes Act. (See
Municipal Corporation of Delhi Vs. Ganesh Razak
and Anr. (MANU/SC/0532/1995: (1995) 1 SCC
235).
In the case of Kankuben (supra), it is
observed and held that whenever a workman is
entitled to receive from his employer any money or
any benefit which is capable of being computed in
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terms of money and which he is entitled to receive
from his employer and is denied of such benefit
can approach labour Court under Section 33 (C) (2)
of the I.D.Act. It is further observed that the
benefit sought to be enforced under Section 33 (C)
(2) of the ID Act is necessarily a pre-existing
benefit or one flowing from a pre-existing right.
The difference between a pre-existing right or
benefit in one hand and the right or benefit, which
is considered just and fair on the other hand is
vital. The former falls within jurisdiction of labour
Court exercising powers under Section 33 (C) (2)
of the ID Act while the latter does not.”
7. In view of the aforesaid pronouncements, issue raised by the
workmen cannot be considered as an incidental question and hence, the
order of the learned Single Judge and the award of the labour Court are
interfered with.
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S.VAIDYANATHAN,J
and
R.KALAIMATHI,J
mvs.
8. Accordingly, this Writ Appeal is allowed. We make it clear that it
is open to the employee to raise the Industrial Dispute either individually if
permissible or through the Union depending upon the nature of the dispute,
it can be decided by the appropriate labour forum in case of failure on
conciliation. The amount lying in deposit shall be returned to the
Management, within a period of one month from the date of receipt of a
copy of this order. No costs.
(S.V.N.,J) (R.K.M.,J)
th
13 April, 2023
mvs.
Index: Yes/No
Neutral Citation: Yes/No
To
1. The Presiding Officer
Principal Labour Court
Vellore.
Writ Appeal No.932 of 2022
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