Uttarakhand High Court
M/S Bombay Hospital vs Anil Gupta on 10 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 519 (MS) of 2014
M/s Bombay Hospital
& Research Centre. .................Petitioner.
-Versus-
Anil Gupta
and another. .........Respondents.
Present:
Shri Amar Shukla, Advocate for the petitioner.
Shri Suyash Pant, Standing Counsel for the State / respondent no. 2.
Sri S.K.Mishra, J.
Date of Hearing and Judgment: 10.11.2021
1. Shri Amar Shukla, learned counsel for the petitioner and
Shri Suyash Pant, learned Standing Counsel for the State are
present.
2. This is an old matter and despite sufficient service, none
appears on behalf of the respondent no. 1, therefore, this Court
has left with no other option except to proceed with the matter ex
parte.
3. Heard learned counsel for the parties.
4. In this writ petition, filed under Article 227 of the
Constitution, the petitioner has assailed final order dated
03.01.2014 passed by the Presiding Officer, Labour Court,
Haldwani, District Nainital in Misc. Dispute Case No. 12 of 2012.
An application was filed by the respondent no. 1 - Anil Gupta
under Section 33 C of the Industrial Disputes Act, 1947
(hereinafter referred to as "the Act") for recovery of money due
from employer. The application was allowed.
5. The applicant - respondent no. 1, herein, before the Labour
Court prayed that he has not been paid two months' salary; he is
an employee of petitioner herein, and his monthly salary is Rs.
11,000/- only.
6. Learned counsel for the petitioner has drawn attention of
this Court to the provision of Section 33 C of the Act, which
provides for recovery of money due from the employer. Sub-
Section 1 of Section 33 C provides that where any money is due to
a workman from an employer under a settlement or an award or
under the provisions of Chapter VA or Chapter VA, the workman
himself or any other person authorised by him in writing in this
behalf, or, in the case of 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 satisfied that any money is so due, it shall issue
certificate for that amount to the Collector who shall proceed to
recover the same in the same manner as arrear of land revenue. It
is further 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. It is further provided 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.
7. Relying upon Section 2 (s) of the Act, learned counsel for
the petitioner submits that since respondent no. 1 was drawing a
monthly salary of Rs. 11,000/-, and was discharging supervisor
functions, he did not fall under the definition of workman, as
given in Section 2 (s) of the Act.
8. For the purpose of proper appreciation of the argument, the
relevant portion of Section 2 (s) is quoted as under:
"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-
(i) xxx
(ii) xxx
(iii) xxx
(iv) who, being employed in a supervisory capacity,
draws wages exceeding [ten thousand rupees] per
mensem or exercises, either by the nature of the
duties attached to the office or by reason of the
powers vested in him, functions mainly of a
managerial nature."
9. The respondent no. 1 was working as Marketing Executive,
which is a supervisory post and was drawing a monthly salary of
Rs. 11,000/-, therefore, he does not fall within the definition of
workman and consequently, the application under Section 33 C
of the Act is not maintainable. In that view of the matter, writ
petition is allowed. Impugned order dated 03.01.2014 passed by
the Labour Court is hereby set aside. There shall be no order as to
costs.
10. Urgent copy of this judgment be provided to the counsel for
the parties, as per Rules. No order as to costs.
(S.K.Mishra)
Judge
SKS
