1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5283 OF 1996 Smt. Ramabai Kishanlal Dayama, aged major, occupation : Nil, r/o Municipal Colony, Kileark, Rangeen Gate, Aurangabad. ..Petitioner versus 1. Shri Sukhdeo Kishanlalji Jaju Jumbarlal Govardhan 1809, Mahakali Street,Secunderabad-3 2. Shri Ramprasad Wamanrao Kadam, at/po/Tq.Jintur,Dist. Parbhani. 3. Shri Krishnakant Jayantilal Gandhi Industrial Sales Agencies, 243, Sant Tukaram Marg, Masjid Bunder, Bombay. 4. Shri Kewalchand Laxmichand Achha, At/po Jintur, District Parbhani. 5. Shri Gopal Balaprasad Ajmera, PWD Contractor, Deelipsingh Colony, Wajribad, Nanded. ..Respondents 2 -------------------------------------------------- Shri U. S. Sawaji, Advocate, instructed by Shri T. K. Prabhakarn, Advocate for the petitioner. Shri Jayant Chitnis, Advocate for Respondent No.5. -------------------------------------------------- Coram: P.R. Borkar J. Date : October 16, 2009 ORAL JUDGMENT 01. This writ petition is filed by Smt. Ramabai the applicant in Application No.I.D.A.9/92 filed under Section 33-C(2) of the Industrial Dispute Act, 1947 ("I.D.Act" for short) filed before the Labour Court, Jalna, for grant of amounts of gratuity, leave with wages and retrenchment compensation which, according to her, was due and payable to her deceased husband Kishanlal Dayama. The learned Judge, Labour Court, Jalna, by his order dated 29.9.1995 partly allowed the said application by granting claim in respect of gratuity and leave with wages for three years. However, as regards claim for retrenchment compensation, the same was not granted. 3 2. Some of the facts giving rise to this writ petition are admitted at this stage. Original respondent No.1 Sukhdeoji Krishnalalji Jaju was the owner of the factory named and styled as "M/s Saraswati Ginning Pressing Factory and Dal & Oil Mills" at Selu, District Parbhani. (hereinafter referred to as the "said Mill"). On 18.10.1989, Respondent Nos. 2 to 5 purchased the said Mill from Respondent No.1. Deceased Kishanlal Dayama was employed and was working as a manager with respondent No.1 in the said mill. He worked for about 41 years in the said mill. Kishanlal Dayama expired on 11.7.1992. It is not disputed that his serves were terminated by Respondent No.1 on 15.9.1989 which was prior to purchase of the said mill by Respondent Nos. 2 to 5 on 18.10.1989. 03. In the circumstances, on 20.10.1992 present petitioner Ramabai, widow of Kishanlal filed application bearing I.D.A. No.9 of 1992 under Section 33-C (2) of the I.D.Act before the Labour Court for recovery of amounts as stated 4 earlier. Present Respondents contested the same. 04. After hearing both the sides, the learned Labour Court, Jalna, vide order dated 29.9.1995 allowed the said application so far as the amount of gratuity and amount of leave with wages for three years prior to termination are concerned. However, he refused to grant any compensation towards retrenchment. It is this order which is challenged before this court. 05. Heard learned counsel Shri Sawaji for the writ petitioner and Shri Chitnis for Respondents. 06. One of the major arguments advanced before this court is that the present writ petitioner is not entitled to retrenchment compensation because deceased Kishanlal Dayama was not `Workman' within the meaning of the I.D.Act. He was described as "Manager" and as per proviso (iii) of clause (s) of Section 2 of the I.D.Act, a person who is employed mainly in a managerial or administrative capacity is excluded from the 5 definition `workman' and, therefore, Section 25-F of the I.D. Act will not be applicable to Kishanlal Dayama and consequently his widow will not be entitled to claim any retrenchment compensation. 07. Second point that is raised is that the termination was at the time when Respondent No.1 was owner/employer of the deceased Kishanlal and services of deceased Kishanlal were terminated on 15.9.1989 whereas Respondent Nos. 2 to 5 have purchased the mill on 18.10.1989 and, therefore, if there is any liability, the same is on Respondent No. 1 who was admittedly employer of deceased Kishanlal prior to sale of the said mill on 18.10.1989 and hence, the legal heirs of deceased Kishanlal Dayama are not entitled to any amount from Respondent Nos. 2 to 5. 08. It is also argued that in writ petition, not only the claim for Rs.18568/= was made towards retrenchment compensation, but compensation was also claimed from 8.9.1989 to 8.9.1996. It is very 6 clear from Section 25-F of the I.D.Act that after the date of retrenchment the workman would not be entitled to further compensation towards retrenchment, but he will be entitled to compensation due and payable only upto the date of termination. 09. Both sides have cited certain authorities. Learned Advocate Shri Sawaji for the petitioner has referred to the case of Aloysius Nunes vs. Thomas Cook India Ltd. 2000 II CLR 649. The court while considering the issue whether the person has worked as a `Manager', has laid down certain tests. It is laid down that one of the tests to find out whether the person is employed in managerial or administrative capacity is to ascertain if he was entrusted with duty/ responsibility of distribution of work. Another test is whether in the discharge of his managerial or administrative duties, did he perform any supervisory work. Further test would be to ascertain whether he occupies a position to command or decide and is he authorised to act in 7 certain matters within the limits of the authority given to him without the sanction of manager or other supervisor. Yet further test or indication would be, is a person in command of a territory or department over which he exercises his managerial function. The designation of the person in the official record and in the attendance register would also be a relevant aspect. In other words, the manager must be in a position to give orders and see that the work is done. He must have powers to lay down the norms, to direct that the work be done in terms of those norms, powers to take disciplinary action and where application for leave is made to sanction or reject those application. 10. In the present case, the applicant herself described in his application that deceased Kishanlal Dayama was Manager and Respondents have also accepted that he was Manager with respondent No.1. In the circumstances, before this court can hold that deceased Kishanlal Dayama is entitled to retrenchment compensation, 8 it will have to be decided whether he was, in fact, working as `manager' as described in the application filed before the Labour Court or are we to accept that he was a clerk as submitted in the argument now advanced across the bar. 11. Since there was no dispute that deceased Kishanlal Dayama was working as `Manager', no specific issue was framed. But unless it is held that Kishanlal was `workman' within the meaning of Section 2(s) of the I.D. Act, the applicant is entitled to retrenchment compensation. 12. The writ petitioner herself in paragraph 2 of her application before the Labour Court stated that deceased Kishanlal Dayama served for 40 years and 11-1/2 months in capacity as Manager with M/s Saraswati Ginning Pressing Factory and Dal & Oil Mills, Selu. In cross examination, the applicant admitted that termination of her late husband Kishanlal was when Respondent No.1 was the owner of the said mill and 8 days after the 9 notice of termination, Kishanlal Dayama had handed over charge i.e. on 14.9.1989. It is suggested that thereafter the said mill was sold by Respondent No.1 to Respondent Nos. 2 to 5 and, therefore, Respondent Nos. 2 to 5 were not liable to pay any amount to the applicant. 13. On behalf of Respondent No.2 to 5, one Gopal Ajmera is examined. He deposed that he did not know Kishanlal Dayama, as the Respondents purchased the said mill and factory subsequently when nobody was working in the said mill and factory. 14. The scope of application under Section 33-C(2) of the I.D.Act is very limited. On this point the first case cited on behalf of the petitioner is State Bank of India vs. Ram Chandra Dubey, 2001 (1) SCC 73. In the reported matter, the Supreme Court has laid down that whenever workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is 10 entitled to receive from his employer and is denied of such benefit, can approach Labour Court under Section 33-C(2) of the Act and 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 or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. Now, it is well settled position in law that the proceedings under Section 33-C(2) are more in the nature of execution proceedings and the investigation into disputed question of fact falls outside the scope of Section 33-C(2). We find reference to the said position in law in paragraph 4 of the judgment in the case of State Bank of India vs. Ram Chandra Dubey (supra). 15. The second case cited by Advocate Shri Sawaji is Board of directors of South Arcot Electricity Distribution Co.Ltd. vs. N.K.Mohammed Khan SCLJ 1950-83 Vol.3 pg 138. It is held therein that the right under the principal clause of Section 25-FF is conferred on the basis of the 11 legal fiction that the workmen are to be deemed to have been retrenched unless their services are continued in accordance with the condition laid down in the proviso to the section and compensation in accordance with provisions of Section25-F or accrued under Section 25-FF can be claimed in an application under Section 33-C(2) of the I.D.Act. 16. Another case on the same point is of Delhi High Court in Jeetlal Sharma vs. Presiding Officer, Labour Court 2000 II CLR 56. In that case also, it is held that the dispute as to how much leave was to the credit of the petitioner which he could encash is a dispute which can be decided in the proceedings under Section 33-C(2) which is incidental to the main issue. 17. This court in the case of Pioneer Embroideries Ltd. vs. Prithvi Singh 2009 (2) Bom.C.R.697, has held that the proceedings under Section 33-C(2) of the I.D.Act are summary proceedings equal to execution and if a question 12 as to existence of right is raised it cannot go behind the orders or decide controversies. It has been held that right to receive certain benefits have first to be adjudicated and or based on a settlement or award. However, it is evident that the jurisdiction of Labour Court is not so limited or narrowed so as to dismiss application at threshold. If some ancillary questions are to be dealt with which may not squarely fall within its jurisdiction it can decide the same. 18. So, it is argued on behalf of the petitioner that this court can decide the question whether the petitioner was entitled to retrenchment compensation. However, the basic question in the present case is whether the deceased Kishanlal Dayama though was working with Respondent No.1 in capacity as `Manager' was a `Workman' within the meaning of Section 2(s) of the I.D. Act. No evidence whatsoever was led before the labour court on that point, nor issue to that effect was raised. In fact, it is an admitted position from the pleadings and evidence 13 on record that the deceased Kishanlal Dayama was working in his capacity as `Manager'. 19. In this view of the matter, in my opinion, issue which is raised in the application under Section 33-C(2) of the I.D.Act, that in spite of deceased Kishanlal Dayama being the Manager, he was coming under the definition `Workman' within the meaning of Section 2(s) of the I.D.Act, is outside the scope of application u/Sec. 33-C(2) of the Industrial Disputes Act. 20. In the circumstances, no interference is called for in the impugned order passed by the Labour Court. Writ Petition, therefore, deserves to be and is accordingly dismissed. No order as to costs. pnd/wp5283.96 (P.R.BORKAR, J.)