IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA COURTS : SHAHDARA : DELHI LCA NO. 464/2006 BETWEEN SH. ASHOK KUMAR S/O SH. MISHRI LAL, C/O RASHTRIYA RAJDHANI KAMGAR SANGTHAN (REGD.), B-2695, GALI NO.68, SANT NAGAR, DELHI-84. AND MANAGEMENT OF : 1. M/S A-VON WATCH & RADIO COMPANY, SHOP NO.13-A, G.T. KARNAL ROAD, AZADPUR, DELHI-33. THROUGH PROPRIETOR SH. DINA NATH. 2. M/S SANGAT WATCH & ELECTRONICS, SHOP NO.G-6, ANUPAM BHAWAN, COMMERCIAL COMPLEX, AZADPUR, DELHI-33. ORDER
1. The applicant filed the present application under [SECTION] of the [ACT] (hereinafter referred to as the Act), pleading therein the following facts :
He was working with the respondent as a Karigar for the last 17 years and his last drawn wages were Rs.4,900/-. He worked honestly and diligently. He never gave any cause of complaint to the respondent.
Respondent did not issue him any appointment letter nor maintained his service record. He was not given casual or annual leave, bonus, payment for overtime work. Respondent used to deduct Rs.1,500/- per month w.e.f.
May 2003 from the wages of the claimant and assured him that it would be paid to him whenever he needed the same. They obtained his signatures on blank papers on 25.8.2005 and terminated his services. He has claimed Rs.70,033/- out of which Rs.39,000/- is on account of alleged deductions made from his wages @ Rs.1,500/- w.e.f. May 2003 to June 2005;
Rs.8,983/- on account of earned wages w.e.f. 1.7.2005 to 25.8.2005;
Rs.7,350/- on account of earned leave and Rs.14,700/- on account of bonus for 2002-03, 2003-04 and 2004-05.
2. The respondent contested his claim vide its written statement. It is stated that he is not a workman. It is stated that he was employed as Counter Manager who controlled and dealt with all the business and shop of the management. It is stated that he joined the management no.2 w.e.f. 21.4.1997 as Manager. It is further pleaded that later on he was sent for maintenance and control of management no.1 in 1998. It is stated that since status and nature of the employment of the applicant is disputed, his claim is not maintainable U/[SECTION] of the Act as the said provision is in the nature of execution proceedings. It is denied that no deduction was made from his wages. It is further denied that no leave encashment is due to him. It is stated that bonus is not payable.
3. Following preliminary issue needed adjudication before proceedings further :
1. Whether the claim is maintainable U/[SECTION] of the [ACT]?
Preliminary Issue :
4. Applicant claims to be a Karigar. Respondent has stated that he was working as a Counter Manager who controlled and dealt with all the business of the management and as such he was not a workman. In other words, status of the claimant and the nature of his employment is disputed by the respondent.
5. In [PRECEDENT], the Apex Court has held as under :
"It is clear that the question of maintainability of the applications under [SECTION] 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 under [SECTION]."
It was also held that the claim under [SECTION] 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 under [SECTION] for computation of wages does not arise.
The 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 under [SECTION] of the [ACT] (hereinafter referred to as Act in short) as is evident from the following judgments.
6. In [PRECEDENT], 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 of [SECTION] of the [ACT]. The controversy falls in the ambit of [SECTION] of the [ACT]. The Labour Court could not have computed the wages under [SECTION] of the [ACT] unless the question of his employment was adjudicated by competent Court in a reference "
(Emphasis mine)
7. In the case of [PRECEDENT], Labour Court's jurisdiction under [SECTION] of the Act read with [SECTION] of the [ACT] 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 under [SECTION] 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 under [SECTION] of the said Act and the law laid down by the Apex court, therefore, 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 under [SECTION] of the [ACT] 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 under [SECTION] 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 under [SECTION] of the said Act. Besides, the Labour Court also erred in holding that such issues are incidental to the main issue under [SECTION]. Hence, the impugned order cannot be sustained and is liable to be set aside, and the application under Section 33-
C(2) of the said Act is liable to be dismissed."
(Emphasis added)
8. In the case of [PRECEDENT] 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/[SECTION] 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 under [SECTION] 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 under [SECTION]. 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, under [SECTION] a right 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 under [SECTION] 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 of [SECTION] 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] proceeds on the basis that the application is made by a 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)
9. In the case of [PRECEDENT] 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."
10. In the case of [PRECEDENT] claimant who was Assistant Manager (Marketing) of the company filed a claim petition under [SECTION] of the Act claiming wages for two months. The employer disputed his status as a workman. It was held that Labour Court does not have jurisdiction to adjudicate upon the disputed status of the claimant. It was held that it enjoys very limited jurisdiction under [SECTION] of the Act and it cannot arrogate to itself the functions of the Tribunal under Reference under [SECTION] of the Act. I quote the relevant observations :
9. "In the instant case, the Labour Court has proceeded to adjudicate the petition filed under [SECTION] 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 of [SECTION] of the Act. When the petitioner has categorically disputed this fact, the Labour Court ought not to have proceeded to adjudicate the petition under [SECTION].
10.In view of the fact, that the claim petition has been filed under [SECTION] 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 under [SECTION], the order of the second respondent has to set aside as without jurisdiction."
11. In the case of MCD Vs. Ganesh Razak and another, 1995, -1-
LLJ-395 the claim of the workman was of daily rated casual worker to be paid wages at the same rate as a regular worker had not been earlier adjudicated or recognised by the employer and it was held by the Hon'ble Apex court that in absence of such adjudication or recognition the stage for computation of that benefit could not reach. Hon'ble Supreme Court has held as follows :
Where the very basis of the claim of the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication 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 proceedings under [SECTION] 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] 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 there of some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under [SECTION] like that of the execution court's power to interpret the decree for the purpose of its execution.
12. In the case of [PRECEDENT], Supreme Court has held as under :
"that the benefit sought by the respondent to be enforced under [SECTION] of the Act, would be necessarily a pre-existing benefit or one flowing from a pre-existing right."
1. In case [PRECEDENT] 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 under [SECTION] 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/[SECTION] 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. Ld. AR for workman filed written arguments. It is stated therein that management in their reply before the conciliation officer stated that the claimant was appointed as Counter Manager by they have not produced any document to show that he was not their workman. It is further stated that management, on one hand, has stated that he was working as Counter Manager and on the other hand has denied relationship of master and servant between the parties. It is further stated that management has not paid the balance amount as prayed in the present application and is liable to pay the same. The said averments do not in any way show how the claim is maintainable U/[SECTION] of the Act in view of the judgments quoted above.
4. As such, claim is held to be not maintainable U/[SECTION] of the Act without prior determination on the status of the claimant as workman of the respondent management. Ordered accordingly. File be consigned to record room.
Announced in the open PRESIDING OFFICER Court on 12.03.2007 LABOUR COURT NO. XIII KARKARDOOMA COURTS, DELHI