Delhi District CourtThe vs Director on 4 April, 2007IN THE COURT OF MS. REKHA RANI : POLC - XIII :
            KARKARDOOMA COURTS : SHAHDARA : DELHI

                               LCA NO. 312/2006


BETWEEN


SH. RAM PAL S/O SH. TEJ RAM C/O RASHTRIYA GENERAL
MAZDOOR UNION REGD., RAILWAY ROAD, SAMAYPUR, DELHI-42.


AND

MANAGEMENT OF : M/S MAHESH KUMAR S/O SH. SURAJ BALI, R/O
H. NO. 13, ALIPUR, DELHI-36.


                                     ORDER1.            The applicant filed the present application undersection 33C(2)of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), in

     which applicant has claimed an amount          of Rs.4,04,800/-    from the

     management alleging therein that he did construction work at the house and

     godown of the proprietor of the management @ Rs.160/- per day w.e.f.

     1.9.2003 to 31.8.2004. He has claimed Rs.36,800/- on account of balance

     of labour charges and 10 times penalty of Rs.3,68,000/- for non payment of

     the same.2.            Respondent contested his claim vide its written statement.     It is

     stated that claimant is not a workman withinsection 2 (s)of the Act and

     therefore claim is not maintainable. It is also stated that he never worked

     with the respondent and there existed no relationship of employer and

     employee between the parties.     It is alleged that construction work was1given to one Chand Singh contractor to whom full and final payment has

     been made by the respondent.      It is stated that since the claimant never

     worked with the respondent, there is no question to make any payment to

     him.3.            Following      preliminary   issue   needed    adjudication    before

     proceedings further :1. Whether the claim is maintainable U/s 33 C (2)

                of theI.D. Act?4.InTara & Ors. Vs. Director, Social Welfare & Ors., 1998 LLR

     882, the Apex Court has held as under :"It is clear that the question of maintainability of
                   the applications undersection 33C(2)was
                   required to be determined at the threshold and the
                   question of examining the appellants' claim on
                   merits relating to their status could have been
                   gone into only thereafter if the applications were
                   held to be maintainable underSection 33C(2)."It was also held that the claim undersection 33C(2)of the Act is

     not maintainable when the status and the nature of employment of the

     appellant is itself disputed and unless there is a prior adjudication on merits

     of the status which is the foundation for making the claim for wages at

     specified rates, the question of moving an application undersection 33C(2)for computation of wages does not arise.2The very foundation of the claim of the applicant is that he should

be an employee of the respondent / management. In other words the relief

prayed for by the applicant flow from his status as workman of the respondent.

Hence for granting him the relief, it is necessary to adjudicate upon the fact

whether he was a workman of the respondent. The same can not be

adjudicated undersection 33C(2)of the Industrial Disputes Act (hereinafter

referred to as Act in short) as is evident from the following judgments.5.InLife Insurance Corporation of India, Agra Vs Presiding

     Officer, Central Government Industrial LabourCourt, Kanpur 2004 (101)

     FLR 338, the Corporation denied the relationship of master and servant on

     payment of wages. The Hon'ble court observed as follows :"There is no document to prove his
                  employment conclusively...The corporation
                  denies relationship of master and servant on
                  payment of wages... This controversy cannot
                  be decided without evidence and is out-side
                  the scope ofsection 33-Cof the Industrial
                  Disputes Act. The controversy falls in the
                  ambit ofsection 10of the Industrial
                  Disputes Act. The Labour Court could not
                  have computed the wages undersection 33-
                  Cof the Industrial Disputes Act unless the
                  question of his employment was adjudicated
                  by competent Court in a reference..."(Emphasis mine)36.           In the case of Central Group and Others         And Motiram

     S. Thakare 2005 - II - LLJ 492, Labour Court's jurisdiction undersection 33-C(2)of the Act read with Rule 62 of the Industrial

     Dispute (Central) Rules, 1957 to decide the status of the claimant

     as workman arose for consideration. The Hon'ble High Court

     observed that Labour Court could not adjudicate upon the status

     of the claimant as a workman undersection 33-C(2)of the Act. I

     quote the relevant observations :12."But the Labour Court does not enjoy the

              power to decide about the status of the
              claimants approaching the Labour Court
              under the said provisions of Law, nor the
              issue in relation to the status of the
              claimants can be said to be an incidental
              one.13.The issue relating to the status of the

                 claimant   as   the     workman    is     not

                 dependent upon the issue of entitlement
                 of the amount and on the contrary, the
                 issue relating to entitlement of amount
                 claimed depends upon the status of the
                 claimant as that of the workman.14. Considering the provisions of law, the
                 scope of powers of the Court underSection 33-C(2)of the said Act and the
                 lawlaid down bythe Apex               court,4therefore, it is apparent that the issue
  relating to the status of the claimant as
  being the workman or employee of the
  opponents in such proceedings cannot be
  adjudicated upon the Labour Court in
  such proceedings on the                 assumptions
  that such an issue is an incidental issue.18.    It is, therefore, to be held that the
Labour    Court while dealing                   with       the
application underSection 33-C(2)of the
Industrial Dispute Act, 1947 cannot deal
with the issue relating to the status of the
applicant as the workman and such an
issue is not an incidental issue in such
proceedings but it relates to jurisdictional
fact    and      in     the        absence      of        such
jurisdictional        fact,       the   Court        is    not
empowered to entertain the application
undersection 33-C(2)of the said Act.21. Obviously, therefore, in terms of law on

the point, the Labour Court could not have
proceeded to adjudicate the issue relating to
the    status of the applicant and also
regarding the right of the respondent, as
the same was squarely beyond the scope of
powers of the Labour Court undersection
33-C(2)of the said Act. Besides, the Labour
Court also erred in holding that such issues
are incidental to the main issue underSection 33-C(2). Hence, the impugned order
cannot be sustained and is liable to be set5aside, and the application underSection 33-C(2) of the said Act is liable to be

              dismissed."(Emphasis added)7.In the case ofSouth Central Railway, Secunderabad vs.

     LabourCourt, Hyderabad, And Another 1983         FJR Vol-63 p 171

     it was held that the jurisdiction of Labour Court is different from

     that of a Civil Court and it must be shown to have jurisdiction

     which depends on the status of the claimant as workman. It was

     further held that proceedings U/s33 C (2) of the Act are in the

     nature of execution proceeding. Therefore, Labour Court cannot

     go into the question whether the claimant is a workman in these

     proceedings. I quote the relevant observations:"The scope of a Labour Court's jurisdiction

              undersection 33-C(2)of the Act has been
              held to be in the nature of an execution
              proceeding. If so, when the right of the
              petitioner to a particular status is denied,
              that cannot form the subject - matter of an
              execution proceeding and, therefore, cannot
              form the subject - matter of a petition
              undersection 33-C(2). Though the Labour
              Court may initially entertain the petition,
              when    the   employer    denies   that    the
              petitioner is a workman, it cannot go into
              that question, for, undersection 33-C(2)a6right vested in a workman may be enquired
into even if that right is denied, but not
whether a person claiming the right is a
"workman" at all. If the status of the
"workman"      is     determined     in        some
proceeding, or is admitted and only the
right   to   the    benefit   accruing    to    the
workman under any award, settlement or
statute is denied, notwithstanding the
denial, the right to that benefit may be
determined and the amount computed in
terms of money and awarded under section-33C(2). When a right to a benefit due to a
workman is denied, not on the ground that
he is not a workman at all, but on the
ground that such a benefit did not accrue to
him, then, notwithstanding the denial of the
right, since proceeding undersection 33-C(2) is said to be in the nature of an
execution proceeding, that right may be
enquired into,. In that sense it is not
entirely in the nature of a mere execution
proceeding. To that extent, the scope ofsection 33-C(2)may be slightly wider than
that of strict execution proceedings before a
Civil Court. But, that does not certainly go
further than that and clothe the Labour
Court with the jurisdiction to enquire into
the status of the person as to whether he is
a workman or not.Section 33-C(2)proceeds
on the basis that the application is made by7a workman and does not comtemplate an
              enquiry as to whether he is a workman or
              not....So, on the terms of the Section itself, the
              question whether a workman is entitled to
              receive from the employer any money or
              benefit, may be enquired; but not whether

              he is a "workman" at all or not."(Emphasis mine)8.          In the case of East India Coal Co. v. Rameshwar, [1967]

     33 FJR 90 it was held by the Hon'ble Apex Court as under:"It is clear that the right to the benefit

              which is sought to be computed must be an
              existing   one,   that is   to say,   already
              adjudicated upon or provided for and must
              arise in the course of and in relation to the
              relationship      between    an     industrial

              workman and his employer."9.In the case ofManagement, Elko Computers (P) Ltd.,

     Chennai v. C.K. Jayachandran and another2006 LLR 979

     claimant who was Assistant Manager (Marketing) of the company

     filed a claim petition undersection 33-C(2)of the Act claiming

     wages for two months. The employer disputed his status as a

     workman. It was held that Labour Court does not have8jurisdiction to adjudicate upon the disputed status of the

claimant. It was held that it enjoys very limited jurisdiction

undersection 33-C(2)of the Act and it cannot arrogate to itself

the functions of the Tribunal under Reference undersection 10of

the Act. I quote the relevant observations :9. "In the instant case, the Labour Court

            has proceeded to adjudicate the petition
            filed underS. 33-C(2)inspite of the fact
            that the management has disputed the
            fact that the first respondent is not a
            workman,     but     a     senior   marketing
            executive and would not fall under the
            definition ofsection 2(s)of the Act. When
            the petitioner has categorically disputed
            this fact, the Labour Court ought not to
            have proceeded to adjudicate the petition
            undersection 33-C(2).10.In view of the fact, that the claim
            petition has been filed underS. 33(2)even before adjudication of the issue as to
            whether    the     first   respondent   is   a
            workmen or not and whether by the
            nature of his appointment, the first
            respondent will be entitled to claim the
            right as workmen as defined underS.2(s),
            the order of the second respondent has to

            set aside as without jurisdiction."910.In the case ofState Bank of India V. Ram Chandra Dubey and

     Others, 2000 (87) FLR 849, Supreme Court has held as under :"that the benefit sought by the respondent to be
               enforced undersection 33C(2)of the Act,
               would be necessarily a pre-existing benefit or
               one flowing from a pre-existing right."1.            In case Smt. Pakkiyam v. Executive Engineer/C.N. Southern

     Railway, Salem & others 2002 (94) FLR 1207 the Kerala High Court

     observed as follows :In the instant case the status of the workman is in

               dispute and unless the status is decided, it will not be

               possible for the Labour Court underSection 33 C (2)to compute the benefits. Therefore, on that ground

               also the rejection of the petition cannot be said to be

               improper.               (Emphasis mine)2.            Thus, the Courts have clearly stated that status of the applicant, if

     disputed, cannot be determined in proceedings U/s 33 C (2) of the Act. So,

     this court cannot determine his claim on merits in the absence of any prior

     determination on his status as workman of the respondent management.3.            As such, claim is held to be not maintainable U/s 33 C (2) of the

     Act without prior determination on the status of the claimant as workman of

     the respondent management.104.        Ordered accordingly. File be consigned to record room.



Announced in the open           PRESIDING OFFICER
Court on 04.04.2007           LABOUR COURT NO. XIII
                           KARKARDOOMA COURTS, DELHI11